    [House Report 107-807]
    [From the U.S. Government Publishing Office]

                                                     Union Calendar No. 508
    107th Congress                                                   Report
                            HOUSE OF REPRESENTATIVES
     2d Session                                                     107-807

    ======================================================================

                            REPORT ON THE ACTIVITIES

                                     of the

                           COMMITTEE ON THE JUDICIARY

                                     of the

                            HOUSE OF REPRESENTATIVES

                                   during the

                          ONE HUNDRED SEVENTH CONGRESS

                                  pursuant to

                    Clause 1(d) Rule XI of the Rules of the

                            House of Representatives

    January 2, 2003.--Committed to the Committee of the Whole House on the
                  State of the Union and ordered to be printed

                           COMMITTEE ON THE JUDICIARY
                            House of Representatives
                          one hundred seventh congress

                                     ------
                F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
    HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
    GEORGE W. GEKAS, Pennsylvania        BARNEY FRANK, Massachusetts
    HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
    LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
    ELTON GALLEGLY, California           JERROLD NADLER, New York
    BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
    STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
    BOB BARR, Georgia                    ZOE LOFGREN, California
    WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
    CHRIS CANNON, Utah                   MAXINE WATERS, California
    LINDSEY O. GRAHAM, South Carolina    MARTIN T. MEEHAN, Massachusetts
    SPENCER BACHUS, Alabama              WILLIAM D. DELAHUNT, Massachusetts
    JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
    MARK GREEN, Wisconsin                TAMMY BALDWIN, Wisconsin
    RIC KELLER, Florida                  ANTHONY D. WEINER, New York
    DARRELL E. ISSA, California          ADAM B. SCHIFF, California
    MELISSA A. HART, Pennsylvania
    JEFF FLAKE, Arizona
    MIKE PENCE, Indiana
    J. RANDY FORBES, Virginia
                Philip G. Kiko, Chief of Staff--General Counsel
                   Perry H. Apelbaum, Minority Chief Counsel
                Subcommittees of the Committee on the Judiciary

                                     ------

                    Crime, Terrorism, and Homeland Security

                          LAMAR SMITH, Texas, Chairman
    MARK GREEN, Wisconsin                ROBERT C. SCOTT, Virginia
    HOWARD COBLE, North Carolina         SHEILA JACKSON LEE, Texas
    BOB GOODLATTE, Virginia              MARTIN T. MEEHAN, Massachusetts
    STEVE CHABOT, Ohio                   WILLIAM D. DELAHUNT, Massachusetts
    BOB BARR, Georgia                    ADAM B. SCHIFF, California
    RIC KELLER, Florida
    MIKE PENCE, Indiana
                                     ------

                       Commercial and Administrative Law

                          BOB BARR, Georgia, Chairman
    JEFF FLAKE, Arizona                  MELVIN L. WATT, North Carolina
    GEORGE W. GEKAS, Pennsylvania        JERROLD NADLER, New York
    MARK GREEN, Wisconsin                TAMMY BALDWIN, Wisconsin
    DARRELL E. ISSA, California          ANTHONY D. WEINER, New York
    STEVE CHABOT, Ohio                   MAXINE WATERS, California
    MIKE PENCE, Indiana
                                     ------

                Courts, the Internet, and Intellectual Property

                     HOWARD COBLE, North Carolina, Chairman
    HENRY J. HYDE, Illinois              HOWARD L. BERMAN, California
    ELTON GALLEGLY, California           JOHN CONYERS, Jr., Michigan
    BOB GOODLATTE, Virginia              RICK BOUCHER, Virginia
    WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
    CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
    LINDSEY O. GRAHAM, South Carolina    ROBERT WEXLER, Florida
    SPENCER BACHUS, Alabama              MAXINE WATERS, California
    JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
    RIC KELLER, Florida                  TAMMY BALDWIN, Wisconsin
    DARRELL E. ISSA, California          ANTHONY D. WEINER, New York
    MELISSA A. HART, Pennsylvania
                                     ------

                    Immigration, Border Security, and Claims

                    GEORGE W. GEKAS, Pennsylvania, Chairman
    DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
    MELISSA A. HART, Pennsylvania        BARNEY FRANK, Massachusetts
    LAMAR SMITH, Texas                   HOWARD L. BERMAN, California
    ELTON GALLEGLY, California           ZOE LOFGREN, California
    CHRIS CANNON, Utah                   MARTIN T. MEEHAN, Massachusetts
    JEFF FLAKE, Arizona
    J. RANDY FORBES, Virginia
                                     ------

                                The Constitution

                          STEVE CHABOT, Ohio, Chairman
    WILLIAM L. JENKINS, Tennessee        JERROLD NADLER, New York
    LINDSEY O. GRAHAM, South Carolina    BARNEY FRANK, Massachusetts
    SPENCER BACHUS, Alabama              JOHN CONYERS, Jr., Michigan
    JOHN N. HOSTETTLER, Indiana          ROBERT C. SCOTT, Virginia
    MELISSA A. HART, Pennsylvania        MELVIN L. WATT, North Carolina
    LAMAR SMITH, Texas
    J. RANDY FORBES, Virginia
                             LETTER OF TRANSMITTAL

                                  ----------

                              House of Representatives,
                                    Committee on the Judiciary,
                                       Washington, DC, January 2, 2003.
    Hon. Jeff Trandahl,
    Clerk of the House of Representatives,
    Washington, DC.
        Dear Mr. Trandahl: Pursuant to clause 1(d) of rule XI of
    the Rules of the House of Representatives, I am transmitting
    the report on the activities of the Committee on the Judiciary
    of the U.S. House of Representatives in the 107th Congress.
                Sincerely,
                                   F. James Sensenbrenner, Jr.,
                                                              Chairman.

                                C O N T E N T S

                                  ----------
                                                                       Page
    Jurisdiction of the Committee on the Judiciary...................     1
    Tabulation of Legislation and Activity...........................     3
    Printed Hearings.................................................     4
    Committee Prints.................................................     8
    House Documents..................................................     8
    Summary of Activities of the Committee on the Judiciary..........     9
        Public Laws..................................................     9
        Private Laws.................................................    14
        Conference Appointments......................................    15
        Full Committee Activities....................................    20
        Legislative activities:
            Antitrust:
                H.R. 768, the Need-Based Educational Aid Act.........    20
                H.R. 809, the Antitrust Technical Corrections Act....    22
                H.R. 1253, the Free Market Antitrust Immunity Reform
                  (FAIR) Act.........................................    23
                H.R. 1407, to amend title 49, U.S.C. to permit air
                  carriers to meet and discuss their schedules in
                  order to reduce flight delays......................    28
                H.R. 1542, the Internet Freedom and Broadband
                  Deployment Act, also H.R. 1697, H.R. 1698, and H.R.
                  2120...............................................    30
                H.R. 3288, the Fairness in Antitrust in National
                  Sports (FANS) Act..................................    37
            Liability:
                H.R. 2037, the Protection of Lawful Commerce in Arms
                  Act................................................    42
                H.R. 2341, the Class Action Fairness Act.............    42
                H.R. 2926, the Air Transportation Safety and System
                  Stabilization Act..................................    47
                H.R. 3210, the Terrorism Risk Insurance Act..........    48
                H.R. 4600, the Help Efficient, Accessible, Low-cost,
                  Timely Healthcare (Health) Act.....................    48
            Matters held at Full Committee:
                H.R. 7, the Community Solutions Act..................    49
                H.R. 169, the Notification and Federal Employee
                  Antidiscrimination and Retaliation Act.............    52
                H.R. 741, the Madrid Protocol Implementation Act.....    53
                H.R. 802, the Public Safety Officer Medal of Valor
                  Act................................................    53
                H.R. 860, the Multidistrict, Multiparty, Multiforum
                  Trial Jurisdiction Act.............................    54
                H.R. 861, to make technical amendments to section 10
                  of Title 9, U.S.C..................................    54
                H.R. 1209, the Child Status Protection Act...........    55
                H.R. 1701, the Consumer Rental Purchase Agreement Act    56
                H.R. 2068, to revise, codify, and enact without
                  substantive change certain general and permanent
                  laws related to public buildings, property, and
                  works, as Title 40, U.S.C. ``Public Buildings,
                  Property, and Works''..............................    57
                H.R. 2137, the Criminal Law Technical Amendments Act.    57
                H.R. 2215, 21st Century Department of Justice
                  Appropriations Authorization Act...................    58
                H.R. 2458, E-Government Act of 2002..................    73
                H.R. 2882, Public Safety Officer Benefits Act........    74
                H.R. 3162, H.R. 2975, the USA Patriot Act............    74
                H.R. 3295, the Help America Vote Act.................    79
                H.R. 3525, the Enhanced Border Security and Visa
                  Entry Reform Act...................................    83
                H.R. 3925, the Digital Tech Corps Act of 2002........    87
                H.R. 5005, the Homeland Security Act.................    88
                H.R. 5710, the Homeland Security Act.................    88
                H. Res. 193, Requesting that the President Focus
                  Appropriate Attention on the Issues of Neighborhood
                  Crime Prevention, Community policing, and Reduction
                  of School Crime....................................   101
                H. Res. 417, Recognizing and honoring the career and
                  work of Justice C. Clifton Young...................   102
                H. Con. Res. 225, Expressing the sense of the
                  Congress that, as a symbol of solidarity following
                  the terrorist attacks on the United States on
                  September 11, 2001, every United States citizen is
                  encouraged to display the flag of the United States   103
                H. Con. Res 227, Condemning Bigotry and Violence
                  against Arab-Americans, American Muslims, and
                  Americans from South Asia in the wake of terrorist
                  attacks in New York City, New York, and Washington,
                  D.C., on September 11, 2001........................   103
                H. Con. Res. 243, Expressing the sense of Congress
                  that the Public Safety Officer Medal of Valor
                  should be presented to the public safety officers
                  who have perished and select other public safety
                  officers who deserve special recognition for
                  outstanding valor above and beyond the call of duty
                  in the aftermath of the terrorist attacks in the
                  United States on September 11, 2001................   104
                S. 320, Intellectual Property and High Technical
                  Amendments Act.....................................   104
                S. 1888, to amend title 18, of the U.S.C., to correct
                  a technical error in the codification of title 36
                  of the U.S.C.......................................   104
            Other Matters of the Committee:
                H.R. 1, the No Child Left Behind Act.................   105
                Energy legislation, H.R. 4...........................   105
                H.R. 1586, National Defense Authorization............   106
                H.R. 718, the Unsolicited Commercial E-mail Act......   107
                Agriculture, H.R. 2646...............................   109
                Terrorism, H.R. 3016.................................   109
                Immigration/Terrorism, H.R. 1646.....................   110
                H.R. 2581, the Export Administration Act of 2001.....   111
                Trade, H.R. 3009.....................................   112
                Bioterrorism, H.R. 3448..............................   113
                Corporate Accountability, H.R. 3763..................   114
                H.R. 3951, the Financial Services Regulatory Relief..   115
                Defense Authorization, H.R. 4546.....................   116
            Oversight Activities:
                List of Oversight hearings...........................   117
                Implementation of the USA PATRIOT Act................   117
                Revisions to the Attorney General Guidelines.........   121
                Review of Documents Relating to the Competitive
                  Imbalance in Major League Baseball.................   125
                Review of Judicial Security..........................   133
                Review of FBI Stolen Vehicle Parts Regulations.......   134
                Review of Office of Crime Victims....................   134
                Reorganization of the Office of Justice Programs.....   135
                Department of Justice Information Technology and
                  Systems............................................   136
                FBI Information Technology...........................   136
                IDENT/IAFIS Integration..............................   137
                Immigration Systems..................................   138
                INS/DOJ System Project Management....................   138
                INS Planning for the Entry/Exit System...............   140
                Federal Agencies use of Biometrics to Combat
                  Terrorism, Improve Law Enforcement, and Enhance
                  Border Security....................................   141
                Application of the Federal Tort Claims Act...........   145
                Review of Case Assignments in Sixth Circuit in Racial
                  Discrimination.....................................   147
                Review of the Circumstances Surrounding Senior
                  Circuit Judge Richard D. Cudahy's Disclosure that a
                  Grand Jury was Considering Evidence of President
                  Clinton's Now Admittedly False Deposition Testimony
                  in Jones v. Clinton................................   151
    Summary of activities of the subcommittees of the Committee on
      the Judiciary:
        Subcommittee on Crime, Terrorism, and Homeland Security:
            Tabulation and disposition of bills referred to the
              subcommittee...........................................   155
            Jurisdiction of the subcommittee.........................   155
            Legislative Activities:
                Anti-Hoax Terrorism Act..............................   156
                International Convention for the Suppression of
                  Terrorist Bombings and for the International
                  Convention for the Suppression of the Financing of
                  Terrorism..........................................   157
                Cyber Security Enhancement...........................   158
                Anti-Terrorism Explosives Act........................   160
                Homeland Security Information Sharing................   160
                Fairness in Drug Sentencing Act......................   162
                Hometown Heroes Survivors Benefits Act...............   163
                RAVE Act.............................................   163
                Consequences for Juvenile Offenders Act..............   164
                Child Sex Crimes Wiretapping Act.....................   165
                Child Obscenity and Pornography Prevention Act.......   166
                Sex Tourism Prohibition Act..........................   167
                Two Strikes and You're Out Child Protection Act......   168
                Lifetime Consequences for Sex Offenders Act..........   169
                Child Abduction Prevention Act.......................   169
                Innocence Protection Act.............................   171
                James Guelff and Chris McClurley Body Armor Act......   171
                Law Enforcement Tribute Act..........................   173
                Financial Services Antifraud Network Act of 2001.....   173
                Human Cloning Prohibition Act........................   174
                Consumer Product Protection Act......................   175
                Federal Prison Industries Competition in Contracting
                  Act................................................   176
                Combatting Illegal Gambling Reform...................   176
                Our Lady of Peace Act................................   177
                Bail Bond Fairness Act...............................   178
                Honoring the New Jersey State Law Enforcement
                  Officers Association...............................   178
                Requesting that the President focus appropriate
                  attention on neighborhood crime prevention and
                  community policing, and coordinate certain Federal
                  efforts to participate in ``National Night Out'',
                  including by supporting local efforts and
                  neighborhood watches and by supporting local
                  officials to provide homeland security, and for
                  other purposes.....................................   179
                Mychal Judge Police and Fire Chaplains Public Safety
                  Officers' Benefit Act of 2002......................   179
            Oversight Activities:
                List of Oversight hearings...........................   179
                Counterintelligence Program for the 21st Century.....   180
                Department of Homeland Security......................   180
                First Responder Training and Assistance for Terrorist
                  Events.............................................   181
                Drug Trafficking on the Southwest Border.............   185
                Narco-terrorism......................................   185
                OxyContin............................................   186
                Medical Marijuana....................................   187
                Protecting Seniors from Fraud........................   187
                Reauthorization of the Department of Justice.........   189
                Office of Justice Programs...........................   190
                FBI: Criminal Justice Information Services...........   191
                Computer Hacking.....................................   192
                FBI Reorganization...................................   192
                FBI Academy: Hostage Rescue Team.....................   192
                Implementation of USA Patriot Act....................   193
                FBI Outdated Technology Issues.......................   193
                FBI Technology Issues................................   193
                Secret Service: Counterfeiting.......................   194
                Electronic Crime Task Force..........................   194
                ATF: Gun Shows.......................................   195
                ATF: New York Office.................................   195
                Ballistic Imaging....................................   196
                Dog Training.........................................   196
                ATF: Explosives......................................   196
                Bureau of Prisons....................................   196
                United States Sentencing Commission..................   196
                Racial Profiling.....................................   197
                Newport News Courthouse..............................   198
                New Jersey Speed Violation Survey....................   198
                Misleading Testimony before the Subcommittee.........   198
    Summary of activities of the subcommittees of the Committee on
      the Judiciary:
        Subcommittee on Commercial and Administrative Law:
            Tabulation and disposition of bills referred to the
              subcommittee...........................................   201
            Jurisdiction of the subcommittee.........................   201
            Legislative activities:
                Administrative Law and Regulatory Reform.............   202
                    Homeland Security Act............................   202
                    Federal Agency Protection of Privacy Act.........   203
                    Housing Affordability for America Act............   204
                Bankruptcy...........................................   205
                    Chapter 12 of Title 11 of the United States Code
                      Is Reenacted...................................   206
                    Bankruptcy Abuse Prevention and Consumer
                      Protection.....................................   207
                State Taxation Affecting Interstate Commerce.........   213
                    Electronic Commerce..............................   214
                    Internet Tax Freedom.............................   214
                    Internet Tax Nondiscrimination...................   215
                    Internet Tax Moratorium and Equity...............   215
                    Satellite Radio Freedom and Satellite Services...   216
                    Internet Tax Fairness............................   217
                    Federal Long-Term Care Insurance.................   219
                Federal Arbitration..................................   219
                    Motor Vehicle Franchise Contract Arbitration
                      Fairness.......................................   219
                Interstate Compacts..................................   220
                    New Hampshire-Vermont Interstate School Compact..   220
                    Utah-Nevada State Boundary.......................   221
                    Tax Treatment of Bonds and Other Obligations
                      Issued by the Government of American Samoa.....   222
                Litigation Reform....................................   223
                    Health Care Litigation Reform and Help Efficient,
                      Accessible, Low-cost, Timely Healthcare........   223
            Oversight activities:
                List of Oversight hearings...........................   224
                Executive Orders and Presidential Directives.........   224
                United States Department of Justice..................   226
                    Executive Office for the United States Attorneys.   226
                    Civil Division...................................   227
                    Environmental and Natural Resources Division
                      (ENRD).........................................   227
                    Executive Office for the United States Trustees..   227
                    Office of the Solicitor General (OSG)............   227
                Executive Office of United States Attorneys (EOUSA)..   227
                Settlement Agreement by and among the United States
                  of America, the Federal Communications Commission,
                  NextWave Telecom, Inc., and certain affiliates and
                  Participating Auction 35 Winning Bidders...........   229
                Alabama-Coosa-Tallapoosa River Basin Compact and the
                  Apalachicola-Chattahoochee and Flint River Basin
                  Compact............................................   231
                Legal Services Corporation...........................   233
                Rails-to-Trails Program..............................   240
                Federal Reserve Board/Department of Treasury Proposed
                  Rule Concerning Competition in the Real Estate
                  Brokerage and Management Markets...................   242
    Summary of activities of the subcommittees of the Committee on
      the Judiciary:
        Subcommittee on Courts, The Internet, and Intellectual
          Property:
            Tabulation and disposition of bills referred to the
              subcommittee...........................................   245
            Jurisdiction of the subcommittee.........................   246
            Legislative activities:
                H.R. 1203, the Ninth Circuit Court of Appeals
                  Reorganization Act.................................   246
                H.R. 2048, To require a report on the operations of
                  the State Justice Institute........................   246
                H.R. 2336, To make permanent the authority to redact
                  financial disclosure statements of judicial
                  employees and judicial officers....................   247
                H.R. 2522, Federal Courts Improvement Act............   247
                H.R. 3892, Judicial Improvements Act.................   247
                H.R. 4125, Federal Courts Improvement Act............   248
            Intellectual Property....................................   248
                H.R. 5469, To suspend for a period of 6 months the
                  determination of the librarian of Congress of July
                  8, 2002, relating to rates and terms for the
                  digital performance of sound recordings and
                  ephemeral recordings...............................   250
                S. 487, Technology, Education, and Copyright
                  Harmonization Act of 2001..........................   251
            Patents..................................................   252
                H.R. 740, Patent and Trademark Office Reauthorization
                  Act................................................   252
                H.R. 1866, To amend title 35, United States Code, to
                  clarify the basis for granting requests for
                  reexamination of patents...........................   252
                H.R. 1886, To amend title 35, U.S.C., to provide for
                  appeals by third parties in certain patent
                  reexamination proceedings..........................   252
                H.R. 2047, Patent and Trademark Office Authorization
                  Act................................................   252
                H.R. 5119, Plant Breeders Equity Act.................   253
            Oversight Activities:
                List of Oversight hearings...........................   254
                Review of Operations of the United States Copyright
                  Office.............................................   254
                Review of the Operations of the United States Patent
                  and Trademark Office including Review of Agency
                  Funding............................................   255
                Review of Operations of the Federal Judicial
                  Misconduct and Recusal Statutes....................   256
                Review of the United States Patent and Trademark
                  Office: Operations and Fiscal Year 2003 Budget.....   257
                Review of the Copyright Arbitration Royalty Panel
                  (CARP) Structure and Process.......................   258
                Review of Unpublished Judicial Opinions..............   259
                Review of the United States Patent and Trademark
                  Office: Fee Schedule Adjustment and Agency Reform..   259
    Summary of activities of the subcommittees of the Committee on
      the Judiciary:
        Subcommittee on Immigration, Border Security, and Claims:
            Tabulation and disposition of bills referred to the
              subcommittee...........................................   261
            Jurisdiction of the subcommittee.........................   262
            Legislative Activities:
                Immigration..........................................   262
                    Family Reunification Act.........................   262
                    Section 245(i) Extension.........................   264
                    Work authorization for nonimmigrant spouses of
                      treaty traders and treaty investors............   265
                    Work authorization for nonimmigrant spouses of
                      intra- company transferees.....................   265
                    Basic Pilot Extension............................   266
                    Family Sponsor Immigration.......................   267
                    Eligibility for In-Country Refugee Processing in
                      Vietnam........................................   268
                    Barbara Jordan Immigration Reform and
                      Accountability.................................   269
                    Embassy Employee Compensation....................   278
                    Irish Peace Process Cultural and Training Program
                      Extension......................................   279
                    Improving Access to Physicians in Medically
                      Underserved Areas..............................   279
                    Border Commuter Student..........................   279
                    Concurrence by the House with amendments in the
                      amendment of the Senate to H.R. 1885...........   280
                    Persian Gulf War POW/MIA Accountability..........   280
                    Permanent Authority for Admission of ``S'' Visa
                      Non-Immigrants.................................   281
                Claims...............................................   281
                    Honorary Citizenship of the United States
                      posthumously on Marie Joseph Paul Yves Roche
                      Gilbert du Motier, the Marquis de Lafayette....   281
                    Sober Borders....................................   282
                    United States-Jordan Free Trade Area
                      Implementation Act.............................   283
                    Posthumous Citizenship Restoration...............   283
                    Bar federal agencies from accepting any
                      identification-related purposes................   284
                    Prevent nonimmigrant aliens who are delinquent in
                      child support payments from gaining entry to
                      the United States..............................   284
                    Illegal Immigration Reform and Responsibility....   285
                    Justice for United States Prisoners of War.......   285
                    Temporary Emergency Wildfire Suppression.........   286
                Federal Charters.....................................   286
                    New Federal Charters.............................   286
                    Charter of the AMVETS Organization...............   287
                    Charter of the Veterans of Foreign Wars of the
                      United States..................................   287
                    Requirements for Eligibility in the American
                      Legion.........................................   288
                    Private Claims and Private Immigration...........   289
            Oversight Activities:
                List of Oversight hearings...........................   289
                Examination of INS management of it's Dual Missions..   290
                Review of the Immigration Detention Policies and
                  Procedures of the Department of Justice............   292
                Issuance of Visas to and Admission to the United
                  States of the 19 September 11 Hijackers............   295
                Review of the INS Issuance of Visa Approval Letters
                  for Mohammed Atta and Marwan Al-Shehhi.............   296
                Federal Agency Policies and Law Enforcement Efforts
                  to Prevent Identity Theft..........................   301
                INS Systems Oversight................................   307
                INS Information Technology...........................   308
                INS' Failure to Implement the Border Crossing Card...   309
                INS' Implementation of a ENTRY-EXIT Tracking System
                  at U.S. Ports of Entry.............................   310
                Operations of the Executive Office for Immigration
                  Review.............................................   310
                INS Admission of Four Aliens from the Progesso.......   314
                INS' Foreign Student Tracking Program................   316
                INS Interior Enforcement Strategy....................   318
                State Department shredding of completed diversity
                  visa applications..................................   322
                INS interactions with Hesham Mohammed Ali Hedayet....   323
                Immigration History of Suspected Criminals in High-
                  Profile Cases......................................   329
                Information on Alleged Mexican Incursions into the
                  United States......................................   330
                INS Maintenance of Alien Address Records.............   330
                Examination of Immigration and United States
                  Population.........................................   330
                Review of INS and Office of Special Counsel for
                  Immigration-related Unfair employment Practices....   332
                U.S. and Canada Safe Third Country Agreement.........   333
                GAO on the INS Forensic Document Lab.................   335
                GAO Report on Immigration Benefit Fraud..............   336
                State Department's Visa Condor Program...............   337
                Foreign Guestworker Programs.........................   339
                Visa Waiver Program..................................   342
    Summary of activities of the subcommittees of the Committee on
      the Judiciary:
        Subcommittee on Constitution:
            Tabulation and disposition of bills referred to the
              subcommittee...........................................   345
            Jurisdiction of the subcommittee.........................   345
            Legislative Activities:
                Born-Alive Infants Protection........................   346
                Child Custody Protection.............................   347
                Community Recognition................................   347
                Newdow v. U.S. Congress..............................   348
                George Washington letter to Touro Synagogue in
                  Newport, Rhode Island..............................   349
                Partial-Birth Abortion Ban...........................   349
                Congress to prohibit the physical desecration of the
                  flag of the United States..........................   350
                Memorializing fallen firefighters by lowering the
                  American flag to half-staff in honor of the
                  national Fallen Firefighters memorial service in
                  Emmittsburg, Maryland..............................   351
                Governors to Appoint Persons Temporarily to Take the
                  Place of Representatives Who Had Died or Become
                  Incapacitated in Emergency Situations..............   351
                Tax Limitation.......................................   352
                Office of Government Ethics Authorization Act of 2001   353
                To Reaffirm the reference to One Nation under God in
                  the Pledge of Allegiance...........................   354
                Unborn Victims of Violence...........................   355
            Oversight Activities:
                List of Oversight hearings...........................   356
                Presidential Pardon Power............................   356
                United States Commission on Civil Rights.............   357
                Department of Justice Civil Rights Division..........   361
                Judicial Vacancy Crisis..............................   362
                Genetic Privacy......................................   363

                                                     Union Calendar No. 508
    107th Congress                                                   Report
                            HOUSE OF REPRESENTATIVES
     2d Session                                                     107-807

    ======================================================================

           REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY

                                    _______

    January 2, 2003.--Committed to the Committee of the Whole House on the
                  State of the Union and ordered to be printed

                                    _______

     Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
                                   following

                                  R E P O R T

                 Jurisdiction of the Committee on the Judiciary

        The jurisdiction of the Committee on the Judiciary is set
    forth in Rule X, 1.(k) of the Rules of the House of
    Representatives for the 107th Congress:

               *       *       *       *       *       *       *

         Rule X.--Establishment and Jurisdiction of Standing Committees

                     THE COMMITTEES AND THEIR JURISDICTION

        1. There shall be in the House the following standing
    committees, each of which shall have the jurisdiction and
    related functions assigned to it by this clause and clauses 2,
    3, and 4. All bills, resolutions, and other matters relating to
    subjects within the jurisdiction of the standing committees
    listed in this clause shall be referred to those committees, in
    accordance with clause 2 of rule XII, as follows:

               *       *       *       *       *       *       *

        (k) Committee on the Judiciary
              (1) The judiciary and judicial proceedings, civil and
            criminal.
              (2) Administrative practice and procedure.
              (3) Apportionment of Representatives.
              (4) Bankruptcy, mutiny, espionage, and
            counterfeiting.
              (5) Civil liberties.
              (6) Constitutional amendments.
              (7) Federal courts and judges, and local courts in
            the Territories and possessions.
              (8) Immigration and naturalization.
              (9) Interstate compacts, generally.
              (10) Claims against the United States.
              (11) Meetings of Congress, attendance of Members and
            their acceptance of incompatible offices.
              (12) National penitentiaries.
              (13) Patents, the Patent Office, copyrights, and
            trademarks.
              (14) Presidential succession.
              (15) Protection of trade and commerce against
            unlawful restraints and monopolies.
              (16) Revision and codification of the Statutes of the
            United States.
              (17) State and Territorial boundaries.
              (18) Subversive activities affecting the internal
            security of the United States.

                     Tabulation of Legislation and Activity

                        ____________________________________________________

                         legislation referred to committee

    Public Legislation:
        House bills...................................................   760
        House joint resolutions.......................................    66
        House concurrent resolutions..................................    35
        House resolutions.............................................    25
                                                                      ______
                                                                         886
                            =================================================================
                            ________________________________________________
        Senate bills..................................................    24
        Senate joint resolutions......................................     1
        Senate concurrent resolutions.................................     2
                                                                      ______
                                                                          27
                            =================================================================
                            ________________________________________________
            Subtotal..................................................   913
                            =================================================================
                            ________________________________________________
    Private Legislation:
        House bills (claims)..........................................    24
        House bills (copyrights)......................................     1
        House bills (immigration).....................................    48
        House resolutions (claims)....................................     1
                                                                      ______
                                                                          74
                            =================================================================
                            ________________________________________________
        Senate bills (claims).........................................     1
        Senate bills (immigration)....................................     7
                                                                      ______
                                                                           8
                            =================================================================
                            ________________________________________________
            Subtotal..................................................    82
                            =================================================================
                            ________________________________________________
            Total.....................................................   995

                  action on legislation not referred to committee

    Held at desk for House action:
        Senate bills..................................................     2
                                                                      ______
                                                                           2
    Conference appointments:
        House bills...................................................     5
        Senate bills..................................................     1
                                                                      ______
                                                                           6
                            =================================================================
                            ________________________________________________
            Total.....................................................     8

                                   final action

    House concurrent resolutions approved (public)....................     3
    House resolutions approved (public)...............................     4
    Public legislation vetoed by the President........................     0
    Public Laws.......................................................    56
    Private Laws......................................................     6

                                Printed Hearings
                              Serial No. and Title
                                   __________
        1. Consequences for Juvenile Offenders Act of 2001. Subcommittee on
    Crime. March 8, 2001. (H.R. 863).
        2. Presidential Pardon Power. Subcommittee on the Constitution.
    February 28, 2001.
        3. Drug Trafficking on the Southwest Border. Subcommittee on Crime.
    March 29, 2001.
        4. Unborn Victims of Violence Act of 2001. Subcommittee on the
    Constitution. March 15, 2001. (H.R. 503).
        5. Business Method Patents. Subcommittee on Courts, the Internet,
    and Intellectual Property. April 4, 2001.
        6. United States Copyright Office. Subcommittee on Courts, the
    Internet, and Intellectual Property. May 2, 2001.
        7. Bankruptcy Abuse Prevention and Consumer Protection Act of 2001.
    Committee on the Judiciary. February 7, 8, 2001. (H.R. 333).
        8. ICANN, New gTLDS, and the Protection of Intellectual Property.
    Subcommittee on Courts, the Internet, and Intellectual Property. March
    22, 2001.
        9. Patents: Improving Quality and Curing Defects. Subcommittee on
    Courts, the Internet, and Intellectual Property. May 10, 2001.
        10. Executive Orders and Presidential Directives. Subcommittee on
    Commercial and Administrative Law. March 22, 2001.
        11. Federal Prison Industries Competition in Contracting Act of
    2001. Subcommittee on Crime. April 26, 2001. (H.R. 1577).
        12. Music on the Internet. Subcommittee on Courts, the Internet,
    and Intellectual Property. May 17, 2001.
        13. State and Local Implementation of Existing Charitable Choice
    Programs. Subcommittee on the Constitution. April 24, 2001.
        14. Technology, Education and Copyright Harmonization Act of 2001.
    Subcommittee on Courts, the Internet, and Intellectual Property. June
    27, 2001. (S. 487).
        15. Reauthorization of the U.S. Department of Justice: Executive
    Office for U.S. Attorneys, Civil Division, Environment and Natural
    Resources Division, Executive Office for U.S. Trustees, and Office of
    the Solicitor General. Subcommittee on Commercial and Administrative
    Law. May 9, 2001.
        16. U.S. Patent and Trademark Office Operations and Funding.
    Subcommittee on Courts, the Internet, and Intellectual Property. June
    7, 2001.
        17. Constitutional Role of Faith-Based Organizations in
    Competitions for Federal Social Service Funds. Subcommittee on the
    Constitution. June 7, 2001.
        18. Internet Freedom and Broadband Deployment Act of 2001.
    Committee on the Judiciary. June 5, 2001. (H.R. 1542).
        19. American Broadband Competition Act of 2001 and the Broadband
    Competition and Incentives Act of 2001. Committee on the Judiciary. May
    22, 2001. (H.R. 1698 and H.R. 1697).
        20. Constitutional Issues Raised by Recent Campaign Finance
    Legislation Restricting Freedom of Speech. Subcommittee on the
    Constitution. June 12, 2001.
        21. INS and the Executive Office for Immigration Review.
    Subcommittee on Immigration and Claims. May 15, 2001.
        22. Guestworker Visa Programs. Subcommittee on Immigration and
    Claims. June 19, 2001.
        23. Whois Database: Privacy and Intellectual Property Issues.
    Subcommittee on Courts, the Internet, and Intellectual Property. July
    12, 2001. (See also Serial No. 70).
        24. Unsolicited Commercial Electronic Mail Act of 2001 and the
    Anti-Spamming Act of 2001. Committee on the Judiciary. May 10, 2001.
    (H.R. 718 and H.R. 1017).
        25. Federal Courts Improvement Act of 2001. Subcommittee on Courts,
    the Internet, and Intellectual Property. July 26, 2001. (H.R. 2522).
        26. Internet Tax Nondiscrimination Act. Subcommittee on Commercial
    and Administrative Law. June 26, 2001. (H.R. 1552 and H.R. 1675).
        27. Notification and Federal Employee Anti-Discrimination and
    Retaliation Act of 2001. Committee on the Judiciary. May 9, 2001. (H.R.
    169).
        28. Consumer Product Protection Act of 2001. Subcommittee on Crime.
    July 26, 2001. (H.R. 2621).
        29. Preauthorization of the United States Department of Justice:
    Criminal Law Enforcement. Subcommittee on Crime. May 3, 15, 2001.
        30. U.S. Population and Immigration. Subcommittee on Immigration
    and Claims. August 2, 2001.
        31. Internet Tax Moratorium and Equity Act. Subcommittee on
    Commercial and Administrative Law. July 18, 2001. (H.R. 1410).
        32. Born-Alive Infants Protection Act of 2001. Subcommittee on the
    Constitution. July 12, 2001. (H.R. 2175).
        33. Fighting Caber Crime. Subcommittee on Crime. May 24, June 12,
    14, 2001.
        34. Law Enforcement and Community Efforts to Address Crimes Against
    Seniors. Subcommittee on Crime. July 11, 2001.
        35. Child Sex Crimes Wiretapping Act of 2001. Subcommittee on
    Crime. June 21, 2001. (H.R. 1877).
        36. Child Custody Protection Act. Subcommittee on the Constitution.
    September 6, 2001. (H.R. 476).
        37. United States Department of Justice. Committee on the
    Judiciary. June 6, 2001.
        38. Two Strikes and You're Out Child Protection Act of 2001.
    Subcommittee on Crime. July 31, 2001. (H.R. 2146).
        39. Administration's Draft Anti-Terrorism Act of 2001. Committee on
    the Judiciary. September 24, 2001.
        40. Human Cloning. Subcommittee on Crime. June 7, 19, 2001.
    [Oversight, H.R. 1644, and H.R. 2172 (a bill referred to the Committee
    on Energy and Commerce).]
        41. Internet Tax Fairness Act of 2001. Subcommittee on Commercial
    and Administrative Law. September 11, 2001. (H.R. 2526).
        42. Market Power and Intellectual Property Litigation. Subcommittee
    on Courts, the Internet, and Intellectual Property. November 8, 2001.
        43. Using Information Technology to Secure America's Borders: INS
    Problems with Planning and Implementation. Subcommittee on Immigration
    and Claims. October 11, 2001.
        44. Immigration and Naturalization Service Performance Issues.
    Subcommittee on Immigration and Claims. October 17, 2001.
        45. Operations of Federal Judicial Misconduct Statutes.
    Subcommittee on Courts, the Internet, and Intellectual Property.
    November 29, 2001.
        46. Implementation of the International Convention for the
    Suppression of Terrorist Bombings and the International Convention for
    the Suppression of the Financing of Terrorism. Subcommittee on Crime.
    November 14, 2001. (H.R. 3275).
        47. Unlawful Internet Gambling Funding Prohibition Act and the
    Combating Illegal Gambling Reform and Modernization Act. Subcommittee
    on Crime. November 29, 2001. (H.R. 556 and H.R. 3215).
        48. Anti-Hoax Terrorism Act of 2001. Subcommittee on Crime.
    November 7, 2001. (H.R. 3209).
        49. Help America Vote Act of 2001. Committee on the Judiciary.
    December 5, 2001. (H.R. 3295).
        50. Direct Broadcast Satellite Service and Competition in the
    Multichannel Video Distribution Market. Committee on the Judiciary.
    December 4, 2001.
        51. Fairness in Antitrust in National Sports (FANS) Act of 2001.
    Committee on the Judiciary. December 6, 2001. (H.R. 3288).
        52. Digital Millennium Copyright Act Section 104 Report.
    Subcommittee on Courts, the Internet, and Intellectual Property.
    December 12, 13, 2001.
        53. Federal Trademark Dilution Act. Subcommittee on Courts, the
    Internet, and Intellectual Property. February 14, 2002.
        54. Alabama-Coosa-Tallapoosa River Basin Compact and the
    Apalachicola-Chattahoochee and Flint River Basin Compact. Subcommittee
    on Commercial and Administrative Law. December 19, 2001.
        55. Review of Department of Justice Immigration Detention Policies.
    Subcommittee on Immigration and Claims. December 19, 2001.
        56. Settlement Agreement by and among the United States of America,
    the Federal Communications Commission, NextWave Telecom, Inc., et al.
    Subcommittee on Commercial and Administrative Law jointly with the
    Subcommittee on Courts, the Internet, and Intellectual Property.
    December 6, 2001.
        57. Operations of the Executive Office for Immigration Review
    (EOIR). Subcommittee on Immigration and Claims. February 6, 2002.
        58. Cyber Security Enhancement Act of 2001. Subcommittee on Crime.
    February 12, 2002. (H.R. 3482).
        59. Class Action Fairness Act of 2001. Committee on the Judiciary.
    February 6, 2002. (H.R. 2341).
        60. Patent Law and Non-Profit Research Collaboration. Subcommittee
    on Courts, the Internet, and Intellectual Property. March 14, 2002.
        61. Implications of Transnational Terrorism for the Visa Waiver
    Program. Subcommittee on Immigration and Claims. February 28, 2002.
        62. Temporary Filling of House of Representatives Vacancies During
    National Emergencies. Subcommittee on the Constitution. February 28,
    2002. (H.J. Res. 62).
        63. INS's March 2002 Notification of Approval of Change of Status
    for Pilot Training for Terrorist Hijackers Mohammed Atta and Marwan Al-
    Shehhi. Subcommittee on Immigration and Claims. March 19, 2002.
        64. U.S. Patent and Trademark Office: Operations and Fiscal year
    2003 Budget. Subcommittee on Courts, the Internet, and Intellectual
    Property. April 11, 2002.
        65. Proposed Change of Utah-Nevada State Boundary; Amendments to
    the New Hampshire-Vermont Interstate School Compact; and Tax Treatment
    of Bonds Issued by the Government of American Samoa. Subcommittee on
    Commercial and Administrative Law. March 6, 2002. (H.R. 2054, H.R.
    3180, and H.R. 1448).
        66. Legal Services Corporation. Subcommittee on Commercial and
    Administrative Law. February 28, 2002.
        67. HUD's ``Legislative Guidebook'' and Its Potential Impact on
    Property Rights and Small Businesses, Including Minority-Owned
    Businesses. Subcommittee on the Constitution. March 7, 2002.
        68. INS and Office of Special Counsel for Immigration Related
    Unfair Employment Practices. Subcommittee on Immigration and Claims.
    March 21, 2002.
        69. Restructuring the INS--How the Agency's Dysfunctional Structure
    Impedes the Performance of Its Dual Mission. Committee on the
    Judiciary. April 9, 2002.
        70. Accuracy and Integrity of the Whois Database. Subcommittee on
    Courts, the Internet, and Intellectual Property. May 22, 2002. (See
    also Serial No. 23).
        71. Office of Justice Programs. Subcommittee on Crime. March 5, 7,
    14, 2002.
        72. Consumer Benefits of Today's Digital Rights Management (DRM)
    Solutions. Subcommittee on Courts, the Internet, and Intellectual
    Property. June 5, 2002.
        73. U.S. Commission on Civil Rights. Subcommittee on the
    Constitution. April 11, 2002.
        74. Victims' Rights Amendment. Subcommittee on the Constitution.
    May 9, 2002. (H.J. Res. 91).
        75. Enhancing Child Protection Laws After the April 16, 2002
    Supreme Court Decision, Ashcroft v. Free Speech Coalition. Subcommittee
    on Crime, Terrorism, and Homeland Security. May 1, 2002.
        76. Child Obscenity and Pornography Prevention Act of 2002 and the
    Sex Tourism Prohibition Improvement Act of 2002. Subcommittee on Crime,
    Terrorism, and Homeland Security. May 9, 2002. (H.R. 4623 and H.R.
    4477).
        77. Administrative and Procedural Aspects of the Federal Reserve
    Board/Department of the Treasury Proposed Rule Concerning Competition
    in the Real Estate Brokerage and Management Markets. Subcommittee on
    Commercial and Administrative Law. May 16, 2002.
        78. Copyright Arbitration Royalty Panel (CARP) Structure and
    Process. Subcommittee on Courts, the Internet, and Intellectual
    Property. June 13, 2002.
        79. Patent Reexamination and Small Business Innovation.
    Subcommittee on Courts, the Internet, and Intellectual Property. June
    20, 2002.
        80. Federal Agency Protection of Privacy Act. Subcommittee on
    Commercial and Administrative Law. May 1, 2002. (H.R. 4561).
        81. Civil Rights Division of the U.S. Department of Justice.
    Subcommittee on the Constitution. June 25, 2002.
        82. Unpublished Judicial Opinions. Subcommittee on Courts, the
    Internet, and Intellectual Property. June 27, 2002.
        83. Homeland Security Information Sharing Act. Subcommittee on
    Crime, Terrorism, and Homeland Security. June 4, 2002. (H.R. 4598).
        84. Anti-Terrorism Explosives Act of 2002. Subcommittee on Crime,
    Terrorism, and Homeland Security. June 11, 2002. (H.R. 4864).
        85. Immigration and Naturalization Service's (INS) Interior
    Enforcement Strategy. Subcommittee on Immigration, Border Security, and
    Claims. June 19, 2002.
        86. Risk to Homeland Security from Identity Fraud and Identity
    Theft. Subcommittee on Immigration, Border Security, and Claims jointly
    with the Subcommittee on Crime, Terrorism, and Homeland Security. June
    25, 2002.
        87. Tort Liability Under the Temporary Emergency Wildfire
    Suppression Act. Subcommittee on Immigration, Border Security, and
    Claims. June 28, 2002. (H.R. 5017).
        88. Free Market Antitrust Immunity Reform (FAIR) Act of 2001.
    Committee on the Judiciary. June 5, 2002. (H.R. 1253).
        89. Innocence Protection Act of 2001. Subcommittee on Crime,
    Terrorism, and Homeland Security. June 18, 2002. (H.R. 912).
        90. Litigation and Its Effect on the Rails-to-Trails Program.
    Subcommittee on Commercial and Administrative Law. June 20, 2002.
        91. Role of Immigration in the Department of Homeland Security
    Pursuant to H.R. 5005, the Homeland Security Act of 2002. Subcommittee
    on Immigration, Border Security, and Claims. June 27, 2002.
        92. U.S. Patent and Trademark Office: Fee Schedule Adjustment and
    Agency Reform. Subcommittee on Courts, the Internet, and Intellectual
    Property. July 18, 2002.
        93. Partial-Birth Abortion Ban Act of 2002. Subcommittee on the
    Constitution. July 9, 2002. (H.R. 4965).
        94. Proposal to Create a Department of Homeland Security.
    Subcommittee on Crime, Terrorism, and Homeland Security. July 9, 2002.
        95. Ninth Circuit Court of Appeals Reorganization Act of 2001.
    Subcommittee on Courts, theInternet, and Intellectual Property. July
    23, 2002. (H.R. 1203).
        96. Administrative Law, Adjudicatory Issues, and Privacy
    Ramifications of Creating a Department of Homeland Security.
    Subcommittee on Commercial and Administrative Law. July 9, 2002.
        97. Health Care Litigation Reform: Does Limitless Litigation
    Restrict Access to Health Care? Subcommittee on Commercial and
    Administrative Law. June 12, 2002.
        98. Fairness in Sentencing Act of 2002. Subcommittee on Crime,
    Terrorism, and Homeland Security. May 14, 2002. (H.R. 4689).
        99. Homeland Security Act of 2002. Committee on the Judiciary. June
    26, 2002. (H.R. 5005).
        100. Privacy Concerns Raised by the Collection and Use of Genetic
    Information by Employers and Insurers. Subcommittee on the
    Constitution. September 12, 2002.
        101. Supreme Court's School Choice Decision and Congress' Authority
    to Enact Choice Programs. Subcommittee on the Constitution. September
    17, 2002.
        102. Preserving the Integrity of Social Security Numbers and
    Preventing Their Misuse by Terrorists and Identity Thieves.
    Subcommittee on Immigration, Border Security, and Claims of the
    Committee on the Judiciary jointly with the Subcommittee on Social
    Security of the Committee on Ways and Means. September 19, 2002.
        103. Piracy of Intellectual Property on Peer-to-Peer Networks.
    Subcommittee on Courts, the Internet, and Intellectual Property.
    September 26, 2002.
        104. Plant Breeders Equity Act of 2002. Subcommittee on Courts, the
    Internet, and Intellectual Property. September 19, 2002. (H.R. 5119).
        105. Immigration and Naturalization Service's (INS's)
    Implementation of the Foreign Student Tracking Program. Subcommittee on
    Immigration, Border Security, and Claims. September 18, 2002.
        106. Justice for United States Prisoners of War Act of 2001.
    Subcommittee on Immigration, Border Security, and Claims. September 25,
    2002. (H.R. 1198).
        107. Satellite Radio Freedom Act and the Satellite Services Act.
    Subcommittee on Commercial and Administrative Law. September 25, 2002.
    (H.R. 4869 and H.R. 5429).
        108. A Judiciary Diminished is Justice Denied: The Constitution,
    the Senate, and the Vacancy Crisis in the Federal Judiciary.
    Subcommittee on the Constitution. October 10, 2002.
        109. Reducing Americans' Vulnerability to Ecstasy Act of 2002.
    Subcommittee on Crime, Terrorism, and Homeland Security. October 10,
    2002. (H.R. 5519).
        110. Immigration and Naturalization Services' (INS's) Interactions
    with Hesham Mohamed Ali Hedayet. Subcommittee on Immigration, Border
    Security, and Claims. October 9, 2002.
        111. United States and Canada Safe Third Country Agreement.
    Subcommittee on Immigration, Border Security, and Claims. October 16,
    2002.
        112. Child Abduction Prevention Act. Subcommittee on Crime,
    Terrorism, and Homeland Security. October 1, 2002. (H.R. 5422).
        113. Bail Bond Fairness Act of 2001. Subcommittee on Crime,
    Terrorism, and Homeland Security. October 8, 2002. (H.R. 2929).

                                Committee Prints
                              Serial No. and Title
                                   __________
        1. Federal Rules of Appellate Procedure. December 1, 2001.
        2. Federal Rules of Civil Procedure. December 1, 2001.
        3. Federal Rules of Criminal Procedure. December 1, 2001.
        4. Federal Rules of Evidence. December 1, 2001.
        5. Federal Rules of Appellate Procedure. December 1, 2002.
        6. Federal Rules of Civil Procedure. December 1, 2002.
        7. Federal Rules of Criminal Procedure. December 1, 2002.
        8. Federal Rules of Evidence. December 1, 2002.

                                House Documents
                             H. Doc. No. and Title
                                   __________
        107-12. Apportionment Population and State Representation.
    Communication from the President of the United States transmitting his
    report on the apportionment population for each State as of April 1,
    2000, and the number of Representatives to which each State would be
    entitled, pursuant to 2 U.S.C. 2a(a) and 13 U.S.C. 141(b). Referred to
    the Committee on the Judiciary and the Committee on Government Reform.
    January 6, 2001. (Executive Communication No. 88).
        107-15. Legislative Proposal for an Agreement Between the United
    States and Jordan on the Establishment of a Free Trade Area. Message
    from the President of the United States transmitting a legislative
    proposal to implement the agreement between the United States of
    America and the Hashemite Kingdom of Jordan on the establishment of a
    free trade area. Referred to the Committee on Ways and Means and the
    Committee on the Judiciary. January 20, 2001. (Presidential Message No.
    3).
        107-36. Rallying the Armies of Compassion. Message from the
    President of the United States transmitting a report to support the
    heroic works of faith-based and community groups across America.
    Referred to the Committees on Ways and Means, the Judiciary, Education
    and the Workforce, Government Reform, and Financial Services. January
    31, 2001. (Presidential Message No. 4).
        107-39. New Freedom Initiative. Communication from the President of
    the United States transmitting his report to increase investment in and
    access to assistive technologies and a quality education, and help
    integrate Americans with disabilities into the workforce and into
    community life. Referred jointly to the Committees on Education and the
    Workforce, Financial Services, Ways and Means, Energy and Commerce,
    Transportation and Infrastructure, the Judiciary, and House
    Administration. February 6, 2001. (Executive Communication No. 672).
        107-60. Amendments to the Federal Rules of Bankruptcy Procedure.
    Communication from the Chief Justice, the Supreme Court of the United
    States, transmitting amendments to the Federal Rules of Bankruptcy
    Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
    2075. April 24, 2001. (Executive Communication No. 1574).
        107-61. Amendments to the Federal Rules of Civil Procedure.
    Communication from the Chief Justice, the Supreme Court of the United
    States, transmitting amendments to the Federal Rules of Civil Procedure
    that have been adopted by the Court, pursuant to 28 U.S.C. 2072. April
    24, 2001. (Executive Communication No. 1575).
        107-62. A Letter Regarding Section 245(i) of the Immigration and
    Nationality Act. Communication from the President of the United States
    transmitting a letter in support of legislation to extend the window
    created under section 245(i) of the Immigration and Nationality Act
    during which qualified immigrants may obtain legal residence in the
    United States without being forced to leave the country and their
    families for several years. May 1, 2001. (Executive Communication No.
    1677).
        107-139. A Legislative Proposal. Message from the President of the
    United States transmitting a legislative proposal to implement the
    International Convention for the Suppression of Terrorist Bombings and
    the International Convention for the Suppression of the Financing of
    Terrorism. October 29, 2001. (Presidential Message No. 53).
        107-203. Amendments to the Federal Rules of Criminal Procedure.
    Communication from the Chief Justice, the Supreme Court of the United
    States, transmitting amendments to the Federal Rules of Criminal
    Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
    2072. May 3, 2002. (Executive Communication No. 6621).
        107-204. Amendments to the Federal Rules of Civil Procedure.
    Communication from the Chief Justice, the Supreme Court of the United
    States, transmitting amendments to the Federal Rules of Civil Procedure
    that have been adopted by the Court, pursuant to 28 U.S.C. 2072. May 3,
    2002. (Executive Communication No. 6623).
        107-205. Amendments to the Federal Rules of Bankruptcy Procedure.
    Communication from the Chief Justice, the Supreme Court of the United
    States, transmitting amendments to the Federal Rules of Bankruptcy
    Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
    2075. May 3, 2002. (Executive Communication No. 6624).
        107-206. Amendments to the Federal Rules of Appellate Procedure.
    Communication from the Chief Justice, the Supreme Court of the United
    States, transmitting amendments to the Federal Rules of Appellate
    Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
    2072. May 3, 2002. (Executive Communication No. 6622).

            Summary of Activities of the Committee on the Judiciary

                                  ----------

                          Legislation Enacted Into Law

        A variety of legislation within the Committee's
    jurisdiction was enacted into law during the 107th Congress.
    The public and private laws, along with approved resolutions,
    are listed below and are more fully detailed in the subsequent
    sections of this report recounting the activities of the
    Committee and its individual subcommittees.

                                  PUBLIC LAWS

        Public Law 107-8.--To extend for 11 additional months the
    period for which chapter 12 of title 11 of the United States
    Code is reenacted. (H.R. 256) (Approved May 11, 2001; effective
    date July 1, 2000).
        Public Law 107-12.--To authorize the Public Safety Officer
    Medal of Valor, and for other purposes. ``Public Safety Officer
    Medal of Valor Act of 2001.'' (H.R. 802) (Approved May 30,
    2001).
        Public Law 107-17.--To extend for 4 additional months the
    period for which chapter 12 of title 11 of the United States
    Code is reenacted. (H.R. 1914) (Approved June 26, 2001;
    effective date June 1, 2001).
        Public Law 107-37.--To provide for the expedited payment of
    certain benefits for a public safety officer who was killed or
    suffered a catastrophic injury as a direct and proximate result
    of a personal injury sustained in the line of duty in
    connection with the terrorist attacks of September 11, 2001.
    (H.R. 2882) (Approved September 18, 2001).
        Public Law 107-42.--To preserve the continued viability of
    the United States air transportation system. ``Air
    Transportation Safety and System Stabilization Act.'' (H.R.
    2926) (Approved September 22, 2001).
        Public Law 107-43.--To implement the agreement establishing
    a United States-Jordan free trade area. ``United States-Jordan
    Free Trade Area Implementation Act.'' (H.R. 2603) (Approved by
    the President September 28, 2001; effective dates vary).
        Public Law 107-45.--To amend the Immigration and
    Nationality Act to provide permanent authority for the
    admission of ``S'' visa non-immigrants. (S. 1424) (Approved
    October 1, 2001).
        Public Law 107-51.--Memorializing fallen firefighters by
    lowering the American flag to half-staff in honor of the
    National Fallen Firefighters Memorial Service in Emmitsburg,
    Maryland. (H.J. Res. 42) (Approved October 16, 2001).
        Public Law 107-56.--To deter and punish terrorist acts in
    the United States and around the world, to enhance law
    enforcement investigatory tools, and for other purposes.
    ``Uniting and Strengthening America by Providing Appropriate
    Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
    ACT) Act of 2001.'' (H.R. 3162) (Approved October 26, 2001;
    effective dates and termination dates vary).
        Public Law 107-72.--To amend the Improving America's
    Schools Act of 1994 to extend the favorable treatment of need-
    based educational aid under the antitrust laws. ``Need-Based
    Educational Aid Act of 2001.'' (H.R. 768) (Approved November
    20, 2001; effective date September 30, 2001).
        Public Law 107-75.--To extend the moratorium enacted by the
    Internet Tax Freedom Act through November 1, 2003, and for
    other purposes. ``Internet Tax Nondiscrimination Act.'' (H.R.
    1552) (Approved November 28, 2001).
        Public Law 107-104.--To amend chapter 90 of title 5, United
    States Code, relating to Federal long-term care insurance.
    (H.R. 2559) (Approved December 27, 2001; effective as if
    included in the enactment of section 1002 of the Long-Term Care
    Security Act--Public Law 106-265).
        Public Law 107-107.--To authorize appropriations for fiscal
    year 2002 for military activities of the Department of Defense,
    for military construction, and for defense activities of the
    Department of Energy, to prescribe personnel strengths for such
    fiscal year for the Armed Forces, and for other purposes.
    ``National Defense Authorization Act for Fiscal Year 2002.''
    (S. 1438) (Approved December 28, 2001; effective dates vary).
        Public Law 107-110.--To close the achievement gap with
    accountability, flexibility, and choice, so that no child is
    left behind. ``No Child Left Behind Act of 2001.'' (H.R. 1)
    (Approved January 8, 2002; effective dates vary).
        Public Law 107-119.--To amend the Ethics in Government Act
    of 1978 (5 U.S.C. App.) to extend the authorization of
    appropriations for the Office of Government Ethics through
    fiscal year 2006. ``Office of Government Ethics Authorization
    Act of 2001.'' (S. 1202) (Approved January 15, 2002).
        Public Law 107-124.--To provide for work authorization for
    nonimmigrant spouses of treaty traders and treaty investors.
    (H.R. 2277) (Approved January 16, 2002).
        Public Law 107-125.--To provide for work authorization for
    nonimmigrant spouses of intracompany transferees, and to reduce
    the period of time during which certain intracompany
    transferees have to be continuously employed before applying
    for admission to the United States. (H.R. 2278) (Approved
    January 16, 2002).
        Public Law 107-126.--To extend for 4 years, through
    December 31, 2005, the authority to redact financial disclosure
    statements of judicial employees and judicial officers. (H.R.
    2336) (Approved January 16, 2002).
        Public Law 107-128.--To extend the basic pilot program for
    employment eligibility verification, and for other purposes.
    ``Basic Pilot Extension Act of 2001.'' (H.R. 3030) (Approved
    January 16, 2002).
        Public Law 107-140.--To amend title 18 of the United States
    Code to correct a technical error in the codification of title
    36 of the United States Code. (S. 1888) (Approved February 8,
    2002).
        Public Law 107-150.--To amend the Immigration and
    Nationality Act to provide for the acceptance of an affidavit
    of support from another eligible sponsor if the original
    sponsor has died and the Attorney General has determined for
    humanitarian reasons that the original sponsor's classification
    petition should not be revoked. ``Family Sponsor Immigration
    Act of 2002.'' (H.R. 1892) (Approved March 13, 2002; effective
    dates vary).
        Public Law 107-155.--To amend the Federal Election Campaign
    Act of 1971 to provide bipartisan campaign reform. ``Bipartisan
    Campaign Reform Act of 2002.'' (H.R. 2356) (Approved March 27,
    2002; general provisions effective date November 6, 2002; other
    effective dates vary).
        Public Law 107-169.--To make technical amendments to
    section 10 of title 9, United States Code. (H.R. 861) (Approved
    May 7, 2002).
        Public Law 107-170.--To extend for 8 additional months the
    period for which chapter 12 of title 11 of the United States
    Code is reenacted. (H.R. 4167) (Approved May 7, 2002; effective
    date October 1, 2001).
        Public Law 107-171.--To provide for the continuation of
    agricultural programs through fiscal year 2011. (H.R. 2646)
    (Approved May 13, 2002).
        Public Law 107-173.--To enhance the border security of the
    United States, and for other purposes. ``Enhanced Border
    Security and Visa Entry Reform Act of 2002.'' (H.R. 3525)
    (Approved May 14, 2002).
        Public Law 107-174.--To require that Federal agencies be
    accountable for violations of antidiscrimination and
    whistleblower protection laws; to require that each Federal
    agency post quarterly on its public Web site, certain
    statistical data relating to Federal sector equal employment
    opportunity complaints filed with such agency; and for other
    purposes. ``Notification and Federal Employee
    Antidiscrimination and Retaliation Act of 2002.'' (H.R. 169)
    (Approved May 15, 2002).
        Public Law 107-179.--To require a report on the operation
    of the State Justice Institute. (H.R. 2048) (Approved May 20,
    2002).
        Public Law 107-185.--To extend eligibility for refugee
    status of unmarried sons and daughters of certain Vietnamese
    refugees. (H.R. 1840) (Approved May 30, 2002).
        Public Law 107-188.--To improve the ability of the United
    States to prevent, prepare for, and respond to bioterrorism and
    other public health emergencies. ``Public Health Security and
    Bioterrorism Preparedness and Response Act of 2002.'' (H.R.
    3448) (Approved June 12, 2002; effective dates vary).
        Public Law 107-196.--To amend the Omnibus Crime Control and
    Safe Streets Act of 1968 to ensure that chaplains killed in the
    line of duty receive public safety officer death benefits.
    ``Mychal Judge Police and Fire Chaplains Public Safety
    Officers'' Benefit Act of 2002.'' (S. 2431) (Approved June 24,
    2002; effective date September 11, 2001, and applicable to
    injuries or deaths that occur in the line of duty on or after
    such date).
        Public Law 107-197.--To implement the International
    Convention for the Suppression of Terrorist Bombings to
    strengthen criminal laws relating to attacks on places of
    public use, to implement the International Convention of the
    Suppression of the Financing of Terrorism, to combat terrorism
    and defend the Nation against terrorist acts, and for other
    purposes. (H.R. 3275) (Approved June 25, 2002; effective dates
    vary).
        Public Law 107-204.--To protect investors by improving the
    accuracy and reliability of corporate disclosures made pursuant
    to the securities laws, and for other purposes. ``Sarbanes-
    Oxley Act of 2002.'' (H.R. 3763) (Approved July 30, 2002).
        Public Law 107-207.--To protect infants who are born alive.
    ``Born-Alive Infants Protection Act of 2002.'' (H.R. 2175)
    (Approved August 5, 2002).
        Public Law 107-208.--To amend the Immigration and
    Nationality Act to determine whether an alien is a child, for
    purposes of classification as an immediate relative, based on
    the age of the alien on the date the classification petition
    with respect to the alien is filed, and for other purposes.
    ``Child Status Protection Act.'' (H.R. 1209) (Approved August
    6, 2002).
        Public Law 107-209.--Conferring honorary citizenship of the
    United States posthumously on Marie Joseph Paul Yves Roche
    Gilbert du Motier, the Marquis de Lafayette. (S.J. Res. 13)
    (Approved August 6, 2002).
        Public Law 107-210.--To extend the Andean Trade Preference
    Act, to grant additional trade benefits under that Act, and for
    other purposes. (H.R. 3009) (Approved August 6, 2002).
        Public Law 107-217.--To revise, codify, and enact without
    substantive change certain general and permanent laws, related
    to public buildings, property, and works, as title 40, United
    States Code, ``Public Buildings, Property, and Works.'' (H.R.
    2068) (Approved August 21, 2002).
        Public Law 107-228.--To authorize appropriations for the
    Department of State for fiscal years 2002 and 2003, and for
    other purposes. (H.R. 1646) (Approved September 30, 2002).
        Public Law 107-234.--To extend the Irish Peace Process
    Cultural and Training Program. (H.R. 4558) (Approved October 4,
    2002).
        Public Law 107-241.--To amend the charter of the AMVETS
    organization. (H.R. 3214) (Approved October 16, 2002).
        Public Law 107-242.--To amend the charter of the Veterans
    of Foreign Wars of the United States organization to make
    members of the armed forces who receive special pay for duty
    subject to hostile fire or imminent danger eligible for
    membership in the organization, and for other purposes. (H.R.
    3838) (Approved October 16, 2002).
        Public Law 107-252.--To establish a program to provide
    funds to States to replace punch card voting systems, to
    establish the Election Assistance Commission to assist in the
    administration of Federal elections and to otherwise provide
    assistance with the administration of certain Federal election
    laws and programs, to establish minimum election administration
    standards for States and units of local government with
    responsibility for the administration of Federal elections, and
    for other purposes. ``Help America Vote Act of 2002.'' (H.R.
    3295) (Approved October 29, 2002).
        Public Law 107-258.--To amend the Bring Them Home Alive Act
    of 2000 to provide an asylum program with regard to American
    Persian Gulf War POW/MIAs, and for other purposes. ``Persian
    Gulf War POW/MIA Accountability Act of 2002.'' (S. 1339)
    (Approved October 29, 2002).
        Public Law 107-273.--To authorize appropriations for the
    Department of Justice for fiscal year 2002, and for other
    purposes. ``21st Century Department of Justice Appropriations
    Authorization Act.'' (H.R. 2215) (Approved November 2, 2002).
        Public Law 107-274.--To establish new nonimmigrant classes
    for border commuter students. ``Border Commuter Student Act of
    2002.'' (H.R. 4967) (Approved November 2, 2002).
        Public Law 107-293.--To reaffirm the reference to one
    Nation under God in the Pledge of Allegiance. (S. 2690)
    (Approved November 13, 2002).
        Public Law 107-296.--To establish the Department of
    Homeland Security, and for other purposes. ``Homeland Security
    Act of 2002.'' (H.R. 5005) (Approved November 25, 2002).
        Public Law 107-297.--To ensure the continued financial
    capacity of insurers to provide coverage for risks from
    terrorism. ``Terrorism Risk Insurance Act of 2002.'' (H.R.
    3210) (Approved November 26, 2002).
        Public Law 107-307.--To amend title 18, United States Code,
    with respect to consumer product protection. ``Product
    Packaging Protection Act of 2002.'' (H.R. 2621) (Approved
    December 2, 2002).
        Public Law 107-309.--To amend title 36, United States Code,
    to clarify the requirements for eligibility in the American
    Legion. (H.R. 3988) (Approved December 2, 2002).
        Public Law 107-314.--To authorize appropriations for fiscal
    year 2003 for military activities of the Department of Defense,
    for military construction, and for defense activities of the
    Department of Energy, to prescribe personnel strengths, for
    such fiscal year for the Armed Forces, and for other purposes.
    ``Bob Stump National Defense Authorization Act for Fiscal Year
    2003.'' (H.R. 4546) (Approved December 2, 2002).
        Public Law 107-321.--To suspend for a period of 6 months
    the determination of the Librarian of Congress of July 8, 2002,
    relating to rates and terms for the digital performance of
    sound recordings and ephemeral recordings. ``Small Webcaster
    Settlement Act of 2002.'' (H.R. 5469) (Approved December 4,
    2002).
        Public Law 107-347.--To enhance the management and
    promotion of electronic Government services and processes by
    establishing a Federal Chief Information Officer within the
    Office of Management and Budget, and by reestablishing a broad
    framework of measurers that require using Internet-based
    information technology to enhance citizen access to Government
    information and services, and for other purposes. ``E-
    Government Act of 2002.'' (H.R. 2458) (Approved December 17,
    2002).
        Public Law 107-352.--To consent to certain amendments to
    the New Hampshire-Vermont Interstate School Compact. (H.R.
    3180) (Approved December 17, 2002).
        Public Law 107-377.--To extend for 6 months the period for
    which chapter 12 of title 11 of the United States Code is
    reenacted. (H.R. 5472) (Approved December 19, 2002).

                                  PRIVATE LAWS

        Private Law 107-1.--For the relief of Rita Mirembe Revell
    (a.k.a. Margaret Rita Mirembe). (S. 560) (Approved July 17,
    2001).
        Private Law 107-2.--For the relief of retired Sergeant
    First Class James D. Benoit and Wan Sook Benoit (S. 1834)
    (Approved October 1, 2002).
        Private Law 107-3.--For the relief of Barbara Makuch. (H.R.
    486) (Approved October 4, 2002).
        Private Law 107-4.--For the relief of Eugene Makuch. (H.R.
    487) (Approved October 4, 2002).
        Private Law 107-5.--For the relief of Anisha Goveas Foti.
    (H.R. 2245) (Approved November 5, 2002).
        Private Law 107-8.--For the relief of So Hyun Jun. (H.R.
    3758) (Approved December 2, 2002).

                   CONCURRENT AND SIMPLE RESOLUTIONS APPROVED

        H. Con. Res. 225.--Expressing the sense of the Congress
    that, as a symbol of the solidarity following the terrorist
    attacks on the United States on September 11, 2001, every
    United States citizen is encouraged to display the flag of the
    United States. Agreed to by the House September 13, 2001;
    agreed to by the Senate September 13, 2001.
        H. Con. Res. 227.--Condemning bigotry and violence against
    Arab-Americans, American Muslims, and Americans from South Asia
    in the wake of terrorist attacks in New York City, New York,
    and Washington, D.C., on September 11, 2001. Agreed to by the
    House September 15 (legislative day September 14), 2001; agreed
    to by the Senate September 26, 2001.
        H. Con. Res. 243.--Expressing the sense of the Congress
    that the Public Safety Officer Medal of Valor should be
    presented to the public safety officers who have perished and
    select other public safety officers who deserve special
    recognition for outstanding valor above and beyond the call of
    duty in the aftermath of the terrorist attacks in the United
    States on September 11, 2001. Agreed to by the House October
    30, 2001; agreed to by the Senate April 18, 2002.
        H. Res. 103.--Referring the bill (H.R. 1258), entitled ``A
    bill for the relief of Sarabeth M. Davis, Robert S. Borders,
    Victor Maron, Irving Berke, and Adele E. Conrad'', to the chief
    judge of the United States Court of Federal Claims for a report
    thereon. Agreed to by the House May 21, 2002.
        H. Res. 193.--Requesting that the President focus
    appropriate attention on the issues of neighborhood crime
    prevention, community policing, and reduction of school crime
    by delivering speeches, convening meetings, and directing his
    Administration to make reducing crime an important priority,
    and for other purposes. Agreed to by the House August 2, 2001.
        H. Res. 224.--Honoring the New Jersey State Law Enforcement
    Officers Association. Agreed to by the House November 1, 2001.
        H. Res. 417.--Recognizing and honoring the career and work
    of Justice C. Clifton Young. Agreed to by the House October 1,
    2002.
        H. Res. 459.--Expressing the sense of the House of
    Representatives that Newdow v. U.S. Congress was erroneously
    decided, and for other purposes. Agreed to by the House June
    27, 2002.

                            Conference Appointments

        Members of the Committee were named by the Speaker as
    conferees on the following bills which were not referred to the
    Committee but which contained legislative language within the
    Committee's Rule X jurisdiction:

    H.R. 4 (S. 517)

        To enhance energy conservation, research and development
    and to provide for security and diversity in the energy supply
    for the American people, and for other purposes. ``Securing
    America's Future Energy Act of 2001'' or the ``SAFE Act of
    2001.'' Passed the House, amended, August 2 (legislative day
    August 1), 2001 (240 yeas; 189 nays). Passed the Senate,
    amended, April 25, 2002 (88 yeas; 11 nays). The Senate
    requested a conference April 25, 2002; appointed conferees May
    1, 2002. The House agreed to a conference June 12, 2002, and
    appointed conferees (including from the Committee on the
    Judiciary). The House appointed an additional conferee October
    3, 2002. The conference committee did not file a conference
    report.

    H.R. 1646 (S. 1803)

        To authorize appropriations for the Department of State for
    fiscal years 2002 and 2003, and for other purposes. ``Foreign
    Relations Authorization Act, Fiscal years 2002 and 2003.''
    Passed the House, amended, May 16, 2001. Passed the Senate,
    amended, May 1, 2002. The Senate requested a conference May 1,
    2002, and appointed conferees. The House agreed to a conference
    September 12, 2002, and appointed conferees (including from the
    Committee on the Judiciary). Conference report filed in the
    House September 23, 2002 (H. Rept. 107-671). The House agreed
    to the conference report September 25, 2002 (voice vote). The
    Senate agreed to the conference report September 26, 2002
    (unanimous consent). Approved by the President September 30,
    2002--Public Law 107-228.

    H.R. 2646 (S. 1731)

        To provide for the continuation of agricultural programs
    through fiscalyear 2011. ``Farm Security Act of 2001.'' Passed
    the House, amended, October 5, 2001. Passed the Senate, amended,
    February 13, 2002. The Senate requested a conference February 13, 2002,
    and appointed conferees. The House agreed to a conference February 28,
    2002, and appointed conferees from the Committee on Agriculture. The
    House named additional conferees March 7, 2002 (including from the
    Committee on the Judiciary). Conference report filed in the House May
    1, 2002 (H. Rept. 107-424). The House agreed to the conference report
    May 2, 2002 (280 yeas; 141 nays). The Senate agreed to the conference
    report May 8, 2002 (64 yeas; 35 nays). Approved by the President May
    13, 2002--Public Law 107-171.

    H.R. 3009

        To extend the Andean Trade Preference Act, to grant
    additional trade benefits under that Act, and for other
    purposes. ``Andean Trade Promotion and Drug Eradication Act.''
    Passed the House, amended, Nov. 16, 2001. Passed the Senate,
    amended, May 23, 2002. The House agreed to the Senate
    amendment, amended, June 27, 2002. The House requested a
    conference June 27, 2002, and appointed conferees (including
    from the Committee on the Judiciary). The Senate agreed to a
    conference July 12, 2002, and appointed conferees. Conference
    report filed in the House July 27 (legislative day July 26),
    2002 (H. Rept. 107-624). The House agreed to the conference
    report July 27 (legislative day July 26), 2002 (215 yeas; 212
    nays). The Senate agreed to the conference report August 1,
    2002 (64 yeas; 34 nays). Approved by the President August 6,
    2002--Public Law 107-210.

    H.R. 3448

        To improve the ability of the United States to prevent,
    prepare for, and respond to bioterrorism and other public
    health emergencies. ``Public Health Security and Bioterrorism
    Response Act of 2001.'' Passed the House December 12, 2001.
    Passed the Senate, amended, December 20, 2001. The Senate
    requested a conference December 20, 2001, and appointed
    conferees. The House agreed to a conference February 28, 2002,
    and appointed conferees (including from the Committee on the
    Judiciary). Conference report filed in the House May 21, 2002
    (H. Rept. 107-481). The House agreed to the conference report
    May 22, 2002 (425 yeas; 1 nay). The Senate agreed to the
    conference report May 23, 2002 (98 yeas; 0 nays). Approved by
    the President June 12, 2002--Public Law 107-188.

    H.R. 3763 (S. 2673)

        To protect investors by improving the accuracy and
    reliability of corporate disclosures made pursuant to the
    securities laws, and for other purposes. ``Corporate and
    Auditing Accountability, Responsibility, and Transparency Act
    of 2002.'' Passed the House, amended, April 24, 2002. Passed
    the Senate, amended, July 15, 2002. The Senate requested a
    conference July 15, 2002, and appointed conferees July 17,
    2002. The House agreed to a conference July 17, 2002, and
    appointed conferees (including from the Committee on the
    Judiciary). Conference report filed in the House July 24, 2002
    (H. Rept. 107-610). The House agreed to the conference report
    July 25, 2002 (423 yeas; 3 nays). The Senate agreed to the
    conference report July 25, 2002 (99 yeas; 0 nays). Approved by
    the President July 30, 2002--Public Law 107-204.

    H.R. 4546 (S. 2514)

        To authorize appropriations for fiscal year 2003 for
    military activities of the Department of Defense, for military
    construction, and for defense activities of the Department of
    Energy, to prescribe personnel strengths for such fiscal year
    for the Armed Forces, and for other purposes. ``National
    Defense Authorization Act for Fiscal Year 2003.'' Passed the
    House, amended, May 10 (legislative day May 9), 2002. Passed
    the Senate, amended, June 27, 2002. The House requested a
    conference July 25, 2002, and appointed conferees (including
    from the Committee on the Judiciary). The Senate agreed to a
    conference July 26, 2002, and appointed conferees. The House
    appointed additional conferees July 27, 2002. Conference report
    filed in the House November 12, 2002 (H. Rept. 107-772). The
    House agreed to the conference report November 12, 2002, by
    voice vote. The Senate agreed to the conference report November
    13, 2002, by voice vote. Approved by the President December 2,
    2002--Public Law 107-314.

    S. 1438 (H.R. 2586)

        To authorize appropriations for fiscal year 2002 for
    military activities of the Department of Defense, for military
    construction, and for defense activities of the Department of
    Energy, to prescribe personnel strengths for such fiscal year
    for the Armed Forces, and for other purposes. ``National
    Defense Authorization Act for Fiscal Year 2002.'' Passed the
    Senate, amended, October 2, 2001. Passed the House, amended,
    October 17, 2001. The House requested a conference October 17,
    2001, and appointed conferees (including from the Committee on
    the Judiciary). The Senate agreed to a conference October 17,
    2001, and appointed conferees. Conference report filed in the
    House December 12, 2001 (H. Rept. 107-333). The House agreed to
    the conference report December 13, 2001 (382 yeas; 40 nays).
    The Senate agreed to the conference report December 13, 2001
    (96 yeas; 2 nays). Approved by the President December 28,
    2001--Public Law 107-107.

                           COMMITTEE ON THE JUDICIARY

       F. JAMES SENSENBRENNER, Jr.,
          Wisconsin, Chairman \1\

    JOHN CONYERS, Jr., Michigan          HENRY J. HYDE, Illinois
    BARNEY FRANK, Massachusetts          GEORGE W. GEKAS, Pennsylvania
    HOWARD L. BERMAN, California         HOWARD COBLE, North Carolina
    RICK BOUCHER, Virginia               LAMAR S. SMITH, Texas
    JERROLD NADLER, New York             ELTON GALLEGLY, California
    ROBERT C. SCOTT, Virginia            BOB GOODLATTE, Virginia
    MELVIN L. WATT, North Carolina       ED BRYANT, Tennessee \6\ \8\
    ZOE LOFGREN, California              STEVE CHABOT, Ohio
    SHEILA JACKSON LEE, Texas            BOB BARR, Georgia
    MAXINE WATERS, California            WILLIAM L. JENKINS, Tennessee
    MARTIN T. MEEHAN, Massachusetts      ASA HUTCHINSON, Arkansas \4\
    WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
    ROBERT WEXLER, FLorida               LINDSEY O. GRAHAM, South Carolina
    STEVEN R. ROTHMAN, New Jersey \2\    SPENCER BACHUS, Alabama
    TAMMY BALDWIN, Wisconsin             JOE SCARBOROUGH, Florida \5\
    ANTHONY D. WEINER, New York          JOHN N. HOSTETTLER, Indiana
    ADAM B. SCHIFF, California \3\       MARK GREEN, Wisconsin
                                         RIC KELLER, Florida
                                         DARRELL E. ISSA, California
                                         MELISSA A. HART, Pennsylvania
                                         JEFF FLAKE, Arizona
                                         MIKE PENCE, Indiana \7\
                                         J. RANDY FORBES, Virginia \9\

    ----------
    \1\ F. James Sensenbrenner, Jr., Wisconsin, elected to the Committee as
    Chairman pursuant to House Resolution 19, approved by the House January
    7, 2001.
    Republican Members elected to the Committee pursuant to House
    Resolution 19, approved by the House January 7, 2001.
    Democratic Members elected to the Committee pursuant to House
    Resolution 25, approved by the House January 31, 2001.
    \2\ Steven R. Rothman, New Jersey, resigned from the Committee
    effective February 7, 2001.
    \3\ Adam B. Schiff, California, elected to the Committee pursuant to
    House Resolution 33, approved by the House February 8, 2001.
    \4\ Asa Hutchinson, Arkansas, resigned from the House effective
    midnight August 6, 2001.
    \5\ Joe Scarborough, Florida, resigned from the House effective
    September 6, 2001.
    \6\ Ed Bryant, Tennessee, elected to the Committee to rank after Mr.
    Goodlatte pursuant to House Resolution 249, approved by the House
    October 2, 2001.
    \7\ Mike Pence, Indiana, elected to the Committee pursuant to House
    Resolution 249, approved by the House October 2, 2001.
    \8\ Ed Bryant, Tennessee, resigned from the Committee effective May 16,
    2002.
    \9\ J. Randy Forbes, Virginia, elected to the Committee pursuant to H.
    Res. 423, approved by the House May 16, 2002.

    Tabulation of activity on legislation held at the full Committee

    Legislation held at the full Committee............................   150
    Legislation failed to be ordered reported to the House............     1
    Legislation reported favorably to the House.......................    26
    Legislation reported adversely to the House.......................     1
    Legislation discharged from the Committee.........................    17
    Legislation pending in the House..................................     6
    Legislation failed passage by the House...........................     1
    Legislation passed by the House...................................    37
    Legislation pending in the Senate.................................     8
    Legislation enacted into public law as part of another measure....     5
    Legislation enacted into public law...............................    18
    House concurrent resolutions approved.............................     3
    House resolutions approved........................................     1
    Legislation on which hearings were held...........................    10
    Days of legislative hearings......................................    11
    Days of oversight hearings........................................     4

                           Full Committee Activities

        During the 107th Congress, the full Judiciary Committee
    retained original jurisdiction with respect to a number of
    legislative and oversight matters. This included exclusive
    jurisdiction over antitrust and liability issues. In addition,
    a number of specific legislative issues were handled
    exclusively by the full Committee, including the 21st Century
    Department of Justice Appropriations Authorization Act, the No
    Fear Act, and the USA/Patriot Act.

                             Legislative Activities

                                   ANTITRUST

        The Committee on the Judiciary has jurisdiction over all
    laws relating to antitrust. United States antitrust laws are
    tailored to ensure the competitive functioning of the
    marketplace--i.e. competition in the marketplace and not the
    protection of any individual competitor. There are two
    principal antitrust laws in the United States--the Sherman Act
    and the Clayton Act. Both are enforceable by the Antitrust
    Division of the Department of Justice (DOJ), the Federal Trade
    Commission (FTC), and private persons. Other federal agencies
    have authority to examine competitive aspects of market
    transactions within their jurisdiction.

    H.R. 768, the ``Need-Based Educational Aid Act of 2001''

        Summary.--H.R. 768 makes permanent an existing temporary
    antitrust exemption that allows colleges and universities that
    admit students on a need-blind basis to agree on common
    standardsfor assessing need for purposes of awarding
    institutional financial aid. The current temporary exemption is set to
    expire on September 30, 2001.
        Beginning in the mid-1950's, a number of prestigious
    private colleges and universities agreed to award institutional
    financial aid (i.e. aid from the school's own funds) solely on
    the basis of demonstrated financial need. Last year,
    institutional grant aid at all colleges and universities
    amounted to about $12.2 billion as compared to Federal grant
    aid of about $8.9 billion. These schools also agreed to use
    common principles to assess each student's financial need and
    to give essentially the same financial aid award to students
    admitted to more than one member of the group. Among the
    schools engaging in this practice were the Ivy Overlap Group
    (Brown, Columbia, Cornell, Dartmouth, Harvard, Princeton, Penn,
    Yale, and MIT) and the Pentagonal/Sisters Overlap Group
    (Amherst, Williams, Wesleyan, Bowdoin, Dartmouth, Barnard, Bryn
    Mawr, Mount Holyoke, Radcliffe, Smith, Vassar, Wellesley,
    Colby, Middlebury, Trinity, and Tufts).
        From the 1950's through the late 1980's, the practice
    continued undisturbed. In 1989, the Antitrust Division of the
    Department of Justice brought suit against the nine members of
    the Ivy Overlap Group to enjoin these practices. In 1991, the
    eight Ivy League schools (i.e. all of the Ivy Overlap Group
    except for MIT) agreed to a consent decree that for all
    practical purposes ended the practices of the Overlap Group.
    See United States v. Brown University, 1991 U.S. Dist. Lexis
    21168, 1993-2 Trade Cases 70,391 (E.D. Pa. 1991).
        In 1992, Congress passed a temporary antitrust exemption to
    allow the schools to agree to award financial aid on a need-
    blind basis and to use common principles of needs analysis.
    Higher Education Amendments of 1992, Sec. 1544, Pub. L. No.
    102-325, 106 Stat. 448, 837 (1992). This temporary exemption
    specifically prohibited any agreement as to the terms of a
    financial aid award to any specific student. By its terms, it
    expired on September 30, 1994.
        In the meantime, MIT continued to contest the lawsuit.
    After a non-jury trial, the district court ruled that the
    practices of the Overlap Group violated the antitrust laws, but
    specifically invited a legislative solution. United States v.
    Brown University, 805 F.Supp. 288 (E.D. Pa. 1992). On appeal,
    MIT won a reversal of the district court's decision. United
    States v. Brown University, 5 F.3d 658 (3d Cir. 1993). The
    appeals court held that the district court had not engaged in a
    sufficiently thorough antitrust analysis and remanded for
    further consideration. After that decision, the parties reached
    a final settlement.
        In 1994, Congress passed another temporary exemption from
    the antitrust laws. Improving America's Schools Act of 1994,
    Sec. 568, Pub. L. No. 103-382, 108 Stat. 3518, 4060 (1994).
    This exemption resembled the one passed in 1992 in that it
    allowed agreements to provide aid on the basis of need only and
    to use common principles of needs analysis. It also prohibited
    agreements on awards to specific students. However, unlike the
    1992 exemption, it also allows agreement on the use of a common
    aid application form and the exchange of the student's
    financial information through a third party. This exemption
    roughly mirrors the settlement reached in 1993. It was to
    expire on September 30, 1997.
        Under that exemption, financial aid officers from some of
    the affected schools in 1997 proposed a set of guidelines to
    determine eligibility for institutional aid. These guidelines
    address issues like expected contributions from non-custodial
    parents, treatment of depreciation expenses which may reduce
    apparent income, valuation of rental properties, and unusually
    high medical expenses. However, a number of schools were
    reluctant to join the discussions because of fears about the
    expiration of the exemption. In 1997, Congress extended the
    exemption again through September 30, 2001. The 1997 extension
    passed the Committee and the full House by voice vote. It
    passed the Senate by unanimous consent.
        Since that extension, the affected schools have made
    further progress. Seventeen prestigious colleges that were not
    part of the original overlap groups have joined the
    discussions. Thus, the exemption has encouraged these schools
    to adhere to need-blind admissions and need-based aid. That is
    particularly important when the cost of elite universities is
    increasingly beyond the reach of the middle class. See, e.g.,
    Stuart Rojstaczer, ``Colleges Where the Middle Class Need Not
    Apply,'' The Washington Post, at A27, March 9, 2001. The
    presidents of the universities have tentatively agreed to a
    common set of principles affirming the primacy of need-based
    aid. In addition, they are discussing and testing guidelines
    based on the 1997 proposals of the financial aid officers. The
    presidents expect to announce agreement on the principles and
    guidelines in the next several months. In the past 2 months,
    Harvard, Princeton, and MIT have announced major new efforts to
    reduce the amount of loans that students must take out by
    substantially increasing their institutional grant aid. These
    efforts demonstrate that nothing in the exemption limits the
    ability of schools to respond to demonstrated need on an
    individual basis. As this progress shows, common treatment of
    these types of issues makes sense. The existing exemption has
    worked well so far. Progress is being made, and more schools
    are moving to need-blind admissions and need-based aid.
        The need-based financial aid system serves social goals
    that the antitrust laws do not adequately address--namely,
    making financial aid available to the broadest number of
    students solely on the basis of demonstrated need. Without it,
    the schools would be required to compete, through financial aid
    awards, for the very top students. Those very top students
    would get all of the aid available which would be more than
    their demonstrated need. The rest would get less than their
    demonstrated need or none at all. Ultimately, such a system
    would serve to undermine the principles of need-based aid and
    need-blind admissions. No student who is otherwise qualified
    ought to be denied the opportunity to go to one of the nation's
    most prestigious schools because of the financial situation of
    his or her family. H.R. 768 will help protect need-based aid
    and need-blind admissions and preserve that opportunity.
        Legislative History.--H.R. 768 was introduced by Rep. Lamar
    Smith (R-TX) on February 28, 2001, and was referred to the
    Judiciary Committee on the same day. On March 28, 2001, the
    Committee met in open session and reported the bill without
    amendment by voice vote (H. Rept. 107-32). On April 3, 2001,
    H.R. 768 passed the House on suspension of the rules by a vote
    of 414-0. On November 20, 2001, the bill was enacted into law
    after receiving the signature of President Bush (Public Law
    107-72).

    H.R. 809, the ``Antitrust Technical Corrections Act of 2001''

        Summary.--There are two primary federal antitrust statutes.
    Enacted in 1890, the Sherman Act (15 U.S.C. Sec. Sec. 1-7)
    prohibits contracts or conspiracies in ``restraint of trade,''
    or attempts toward market monopolization. The Clayton Act of
    1914 (15 U.S.C. Sec. Sec. 12-27) contains the damage provisions
    of the antitrust laws, and contains provisions requiring pre-
    merger notification to antitrust authorities of specified
    acquisitions or merger. H.R. 809 makes miscellaneous changes to
    the antitrust laws. Three of these changes repeal outdated
    provisions; one clarifies a longstanding ambiguity regarding
    the application of the antitrust laws in the District of
    Columbia and the territories; and two correct typographical
    errors in recently passed laws.
        First, H.R. 809 repeals the Act of March 3, 1913, which
    required public proceedings for the taking of depositions for
    equitable suits brought by the United States under the Sherman
    Act. Second, the bill repeals provisions of the Panama Canal
    Act which bar the use of the Panama Canal to violators of U.S.
    antitrust laws.
        H.R. 809 also amends the Sherman Act to extend the
    prohibitions against monopolizing trade or commerce among the
    States or with foreign nations to monopolizing trade or foreign
    commerce in or among any U.S. Territories and the District of
    Columbia. In addition, the bill amends the Wilson Tariff Act of
    1894 (15 U.S.C. Sec. 8 and 9), which prohibits conspiracies in
    restraint of import trade, to repeal provisions that authorized
    any person injured in his business or property by this statute
    from recovering treble damages and the costs of litigation in
    Federal Circuit Court.
        Legislative History.--H.R. 809 was introduced by Committee
    Chairman F. James Sensenbrenner, Jr. on March 1, 2001. In
    addition to the Judiciary Committee, the bill was referred to
    the Committee on Armed Services. The Committee held a markup on
    March 8, 2001, and the bill was ordered favorably reported
    without amendment by voice vote (H. Rept. 107-17, part 1). H.R.
    809 was then referred to the Committee on Armed Services, which
    discharged the bill without further consideration. H.R. 809 was
    included without amendment in H.R. 2215, the 21st Century
    Department of Justice Authorization Act, and passed the House
    under suspension of the rules by voice vote on March 14, 2001.
    On November 2, 2002, this bill was signed into law by President
    Bush (Pub. Law 107-273).

    H.R. 1253, the ``Free Market Antitrust Immunity Reform (FAIR) Act of
            2001''

        Summary.--Ocean carriers and ports form the basis of an
    international trading system upon which America's economic
    vitality depends. Nearly 80 percent of U.S. merchandise exports
    and 85 percent of merchandise imports are carried over
    international shipping lanes, and in times of war ocean
    carriers play a critical transportation role. Because
    transportation costs are an important factor in the
    determination of market prices for goods shipped to and from
    the United States, the shipping industry directly affects the
    consumer choices of all Americans.
        To understand the discussion below, one must first
    understand the terms applied to the various participants in the
    ocean shipping industry. The businesses which own ships and
    sell the service of transporting cargo on those ships are known
    as carriers. While American carriers were central actors in
    this market for several decades, today all of the major
    carriers operating to and from the United States are foreign-
    owned. The businesses which transport their goods on these
    carriers are commonly known as ``shippers.'' Shippers range in
    size from large retail operations like J.C. Penney or Wal-Mart
    to much smaller businesses. Carriers generally sell cargo space
    on their ships in relatively large units, and larger shippers
    generally receive lower rates. As a result, smaller shippers
    use several methods to consolidate their cargo into larger
    shipments in order to obtain lower rates. One of the primary
    methods that smaller shippers use is to ship through ``non-
    vessel operating common carriers'' (known as ``NVOCCs'' or
    simply ``NVOs''). NVOs contract with carriers for larger cargo
    volumes, and then fill that space by consolidating numerous
    small shipments into one large shipment in order to obtain a
    volume-discounted rate.
        In addition to contracting with NVOs, shippers have also
    formed ``shippers'' associations'' of their own to obtain lower
    ocean transportation costs. Shippers' associations perform
    essentially the same consolidation and brokerage function as
    NVOs, but are generally owned cooperatively by shippers
    themselves. Finally, some shippers use businesses known as
    ``freight forwarders'' or ``customs brokers'' to assist with
    their shipping needs. These businesses simply help shippers
    with the administrative burdens associated with importing or
    exporting goods. However, because freight forwarders and
    customs brokers do not consolidate transportation contracts on
    behalf of shippers, they are unable to obtain the discounted
    carrier transportation rates provided to shippers by NVOs and
    shippers' associations. All of these businesses conduct
    shipping activity through ports, which are more formally known
    as ``marine terminal operators.'' Shipping ports are owned by
    local governments, but are sometimes operated by private
    contractors selected by state or local governments. Some
    businesses also have their own private marine terminal
    facilities, but operations at these facilities are generally
    limited to the activities of the owning business and not open
    to the general public. Like ocean carriers, port authorities
    are exempt from antitrust scrutiny.
        Goods destined for export or import must be transported to
    and from ports for carriage. Interport transfer of goods is
    known as drayage. Trucking companies also transport cargo
    between ports and inland points. Truckers have long contended
    that ocean carriers occupy a dominant and unfair marketing
    position that has been used to set artificially low and
    discriminatory trucking prices. These trucking companies assert
    that ocean carriers abuse their antitrust immunity by
    collectively establishing secret ``voluntary rate guidelines''
    which include inland transportation costs. According to
    trucking concerns, including the International Brotherhood of
    Teamsters, ocean carriers then contract with port drivers to
    deliver goods to and from ports at sub-market rates. Trucking
    businesses and unions which represent these drivers further
    contend that carriers discriminate against union truckers, and
    that these carriers use their dominant and united market
    position to extract unfair market concessions. Trucking
    interests further assert that this bargaining disparity is
    compounded by the fact that port drivers, the vast majority of
    whom operate as independent contractors, are prevented from
    organizing or taking collective action under federal law.
        Overcapacity has plagued the ocean shipping industry since
    its inception in the mid-1800s. This overcapacity arises for
    several reasons. The primary cause of shipping overcapacity is
    the presence of international policies designed to promote
    national-flag carriers and to promote indigenous shipbuilding
    capacity for employment purposes and to maintain maritime
    militarytransportation in time of war.\1\ Ocean liners are
    expensive to manufacture, requiring an extensive investment in both
    time and capital. Once built, ocean liners tend to last a long time,
    and their owners must use them for several years in order to recoup the
    costs of construction. In addition, these vessels cannot easily be
    converted to other uses in times of low demand. Thus, once transport
    ships are built, they tend to remain a part of total available capacity
    for several years.
    ---------------------------------------------------------------------------
        \1\ S. Rep. No. 105-61, at 3 (1997).
    ---------------------------------------------------------------------------
        Some governments have exacerbated overcapacity in the
    international shipping market by subsidizing their own liners.
    For example, Taiwan, the People's Republic of China, South
    Korea, and Japan provide direct and indirect financial support
    to domestic ocean carrier lines. This subsidization takes the
    form of both direct government ownership or payments or other
    favorable policies for national carrier owners. While there is
    growing international pressure to reassess whether ocean
    carriers should be accorded antitrust immunity, all other
    maritime nations currently exempt ocean carrier conferences and
    discussion groups from the application of antitrust or
    competition laws.\2\
    ---------------------------------------------------------------------------
        \2\ Supra, note 6.
    ---------------------------------------------------------------------------
        In the late 1800s, overcapacity led to rate wars and
    vigorous competition among carriers. As early as 1875, carriers
    began to form ``conferences'' to privately and jointly set
    rates to avoid potentially self-destructive rate wars. From
    that time until World War I, the United States did not regulate
    these conferences. In the mid 1910s, Congress began to
    investigate these agreements and concluded that the conference
    system served the public interest by providing stability to
    U.S. ocean carriers and international commerce.\3\ Congress
    passed the Shipping Act of 1916 (``the 1916 Act'') to provide a
    statutory basis for this conclusion.\4\
    ---------------------------------------------------------------------------
        \3\ Id. In a 1915 report to Congress, the Alexander Committee,
    named after the then-Chairman of the House Committee on Merchant Marine
    and Fisheries, recommended providing legal protection to the conference
    system but also determined that conference practices should be
    regulated to ensure carriers did not abuse their market position at the
    expense of shippers.
        \4\ Shipping Act of 1916, ch. 451, 39 Stat. 728 (1916) (Those parts
    of the 1916 Act that have not been subsequently repealed are codified
    at 46 U.S.C. App. Sec. 801 et seq.).
    ---------------------------------------------------------------------------
        The 1916 Act gave ocean carrier conferences antitrust
    immunity to set rates jointly. It also gave similar antitrust
    immunity to port authorities and operators. Recognizing the
    potential for anti-competitive practices associated with
    exempting carriers and port authorities from antitrust laws,
    the 1916 Act also established the United States Shipping Board,
    a predecessor of today's Federal Maritime Commission, to
    regulate the industry. The Board was given authority to review
    rates set by carrier conferences before they could take effect.
    The 1916 Act also created a common carrier obligation which
    required international shipping companies to carry the cargo of
    shippers on nondiscriminatory terms overseen by the Board.\5\
    In subsequent judicial decisions, the Supreme Court broadly
    construed the scope of the antitrust immunity contained in the
    1916 Act. For example, in a 1932 decision, the Court held that
    carriers and their conferences can not be sued under the
    antitrust laws even if they failed to file their conference
    agreements with the regulating United States Shipping Board.\6\
    Subsequently expansive interpretations of the 1916 Act
    triggered concern that the 1916 Act required legislative
    revision.\7\
    ---------------------------------------------------------------------------
        \5\ A common carrier is required by law to convey passengers or
    freight without refusal if the approved fare or charge is paid in
    contrast to private or contract carriers. Black's Law Dictionary 275
    (6th ed. 1990).
        \6\ United States Navigation Co. v. Cunard Steamship Co., 284 U.S.
    474 (1932).
        \7\ See, e.g. Far East Conference v. United States, 342 U.S. 570
    (1952) (in which the Court upheld a conference-set, dual-rate system
    against a private shipper seeking relief under the Sherman Act for
    anti-competitive practices).
    ---------------------------------------------------------------------------
        In 1961, Congress responded to these concerns by amending
    the Shipping Act of 1916. The 1961 legislation abolished the
    United States Shipping Board and replaced it with the Federal
    Maritime Commission (FMC) that exists today.\8\ In addition,
    Congress made important substantive changes to the 1916 Act in
    separate legislation known commonly as the ``1961 Amendments.''
    \9\ Most importantly, the 1961 Amendments required the FMC to
    disapprove of any conference agreement it determined to be
    contrary to the public interest. The 1961 Amendments also
    instituted a mandatory public tariff filing system in order to
    give substance to the shipping companies' common carrier
    obligations. The public interest and mandatory public filing
    system expanded the FMC's authority to investigate and punish
    ocean carrier transgressions and authorized it to disapprove
    rates considered to be detrimental to United States commerce.
    ---------------------------------------------------------------------------
        \8\ See Reorganization Plan No. 7 of 1961, 75 Stat. 840 (1961).
        \9\ Act of October 3, 1961, Pub. L. No. 87-346, 75 Stat. 762
    (1961).
    ---------------------------------------------------------------------------
        The FMC subsequently issued regulations that specified the
    grounds upon which conference agreements would be considered
    inconsistent with the public interest. The regulations stated
    that agreements that were contrary to the pro-competitive goals
    of the antitrust laws would be considered presumptively
    invalid. In litigation stemming from the promulgation of these
    regulations, the Supreme Court began to narrow the antitrust
    exemption accorded to carrier conferences.\10\ Carriers
    asserted that this new policy substantially eroded their
    antitrust immunity and undermined the purposes of the 1916 Act.
    Carriers further contended that the FMC was ill-equipped to
    analyze the antitrust implications of carrier conference
    agreements and that this analysis resulted in costly and
    protracted delays.\11\
    ---------------------------------------------------------------------------
        \10\ See, e.g. Carnation Co. v. Pacific Westbound Conference, 383
    U.S. 213 (1966). Federal Maritime Commission v. Aktiebol Svenska
    Amerika Linien, 390 U.S. 238 (1968).
        \11\ Senate Report, supra, note 8 at 6.
    ---------------------------------------------------------------------------
        In 1984, Congress revisited the international shipping
    industry by enacting the Shipping Act of 1984 \12\ (``the 1984
    Act''). The 1984 Act represented the most substantive,
    comprehensive overhaul of the nation's shipping law since 1916.
    However, it maintained the basic compromise of the 1916 Act by
    preserving antitrust immunity for collective carrier
    ratesetting, while continuing to subject ocean carriers to
    common carrier obligations and continued regulatory scrutiny by
    the FMC. The principle innovation of the 1984 Act was to allow
    carriers to attempt to weaken the unity of carrier conferences
    by entering into contracts with individual shippers at rates
    discounted from established conference rates. The legislation
    also allowed conferences to enter into service contracts in
    which shippers receive a discounted rate (from the conference-
    set schedule) in return for agreeing to ship a minimum amount
    of cargo with a particular carrier. However, the legislation
    specified that if a carrier entered into such service
    contracts, it had to offer the same terms to all similarly
    situated shippers and further required that these rates be
    publicly disclosed. The 1984 Act made several other important
    changes. The legislation strengthened carrier antitrust
    immunity by explicitly protecting carriers from the Clayton
    Antitrust Act. In addition, the 1984 Act formally recognized
    the existence of NVOs and shippers' associations, and gave them
    substantive rights to petition the FMC in instances of carrier
    violations. Finally, the 1984 Act set up an Advisory Commission
    to study the legislation's impact after it had been in effect
    for five and a half years.
    ---------------------------------------------------------------------------
        \12\ Shipping Act of 1984, Pub. L. No. 98-237, 98 Stat. 67
    (codified at 46 U.S.C. App. Sec. 1701 et seq.,) repealed by the Ocean
    Shipping Reform Act of 1998, 112 Stat.1902 (1998).
    ---------------------------------------------------------------------------
        Since passage of the 1984 Act, the market power of
    traditional carrier conferences has declined. To some extent,
    conferences have been replaced by broader groups of carriers
    commonly known as discussion agreements. These broader groups
    are not officially recognized in either the statute or FMC
    regulations, but they are arguably encompassed within the
    statutory term ``cooperative working agreements'' defined in
    the 1984 Act. As with conferences, these agreements operate
    under protection from antitrust laws, but membership includes
    independent shippers as well as traditional conference
    carriers. In addition, the collective ratemaking authority of
    these agreements is limited to nonbinding recommendations.
    Shippers have expressed continued concern about the power of
    discussion agreements in a seller's market. While discussion
    agreements are purportedly voluntary bodies without joint
    ratemaking authority, some industry analyst assert that, as a
    practical matter, these bodies set rates jointly.\13\
    ---------------------------------------------------------------------------
        \13\ See Robert J. Bowman, Maritime Reform Will Re-Make Shipper-
    Carrier Relationships, Global Logistics and Supply Chain Strategies,
    January/February, 1999.
    ---------------------------------------------------------------------------
        The Advisory Commission established by the 1984 Act filed
    its report in April of 1992. Although it did not come to a
    consensus, the Commission report highlighted a number of key
    concerns by various industry participants. These conclusions
    formed the basis of the Ocean Shipping Reform Act of 1998
    (OSRA).\14\ OSRA's principle reform was to permit carriers to
    enter into service contracts with individual shippers on a
    confidential basis.\15\ In addition, carriers were no longer
    required to provide the same rates to other similarly-situated
    shippers. Rather than issuing mandatory rate guidelines,
    conferences were required only to publish voluntary
    schedules.\16\ Under OSRA, carrier conferences could continue
    to discuss and jointly set rates without losing their antitrust
    immunity. The 1998 Act did not afford the same rights to NVOs
    and other participants in discussion groups. NVOs may enter
    into confidential service contracts with carriers when they buy
    space, but they must still publicly disclose their shipping
    contracts through a public tariff filing system.
    ---------------------------------------------------------------------------
        \14\ Ocean Shipping Reform Act of 1998, Pub. L. No. 105-258, 112
    Stat. 1902 (codified as amended at 46 U.S.C. et seq. (2000)).
        \15\ See Paul Edelman, The Ocean Shipping Reform Act of 1998, Intl.
    Trade L. J., Summer 2000.
        \16\ Id.
    ---------------------------------------------------------------------------
        Finally, OSRA expressly permits ocean carriers to set rates
    they will charge for inland transportation through ``joint
    rates by a conference, joint venture, or an association of
    ocean common carriers.'' \17\ Providing antitrust exemption to
    permit carriers to jointly set inland transportation rates in a
    noncompetitive context is strenuously opposed by independent
    transportation providers and trucking organizations.
    ---------------------------------------------------------------------------
        \17\ 46 U.S.C. Sec. 1702 (11) and (12) (2000).
    ---------------------------------------------------------------------------
        While all other maritime nations have retained antitrust
    immunity for ocean carriers, the scope of this privilege has
    received increased scrutiny in recent years. The European
    Union, for example, has moved away from granting broad
    antitrust immunity for carriers to set shipping and inland
    transportation rates. Earlier this year, a European Court held
    that European carrier conferences were prohibited from
    collectively establishing joint inland transportation
    rates.\18\ This holding directly conflicts with existing U.S.
    law. International organizations, such as the Organization for
    Economic Cooperation and Development (OECD), which includes the
    world's industrialized economies, have pointedly questioned the
    economic justification for continued exemption.
    ---------------------------------------------------------------------------
        \18\ In Case T-96/95, Judgment of the Court of First Instance
    (Third Chamber), para. 12, (2002).
    ---------------------------------------------------------------------------
        For example, on April 22, 2002, the OECD issued a report
    recommending the abolition of antitrust immunity for ocean
    carriers.\19\ The report's authors concluded that they had
    ``not found convincing evidence that the practice of discussing
    and/or fixing rates and surcharges among competing carriers
    offers more benefits than costs to shippers and customers.''
    \20\ The report also made little distinction between carrier
    conferences and less formal discussion agreements, terming the
    latter ``soft cartels.'' Finally, the report concluded that
    ``antitrust exemptions for [carrier] conference price-fixing no
    longer serve their stated purpose * * * and are no longer
    relevant.'' \21\
    ---------------------------------------------------------------------------
        \19\ Organization for Economic Cooperation and Development,
    Competition Policy in Liner Shipping: Final Report, April 16, 2002.
        \20\ Id.
        \21\ Id. at 77.
    ---------------------------------------------------------------------------
        H.R. 1253 would lift the antitrust exemption currently
    accorded to ocean carriers which transport goods to and from
    the United States. The bill would not affect the antitrust
    exemption currently provided to port authorities. During the
    106th Congress, the Judiciary Committee held a legislative
    hearing on H.R. 3138, the ``Free Market Antitrust Immunity
    Reform (FAIR) Act of 1999.''
        Legislative History.--H.R. 1253 was introduced by Chairman
    Sensenbrenner on March 27, 2001. The following witnesses
    testified at the hearing: Charles James, Assistant Attorney
    General, Antitrust Division, United States Department of
    Justice; James P. Hoffa, President, International Brotherhood
    of Teamsters; Robert Coleman, President, Pacific Coast
    Forwarders and Customs Association; and Christopher Koch,
    President and Chief Executive Officer, World Shipping Council.
    H.R. 1253 received no further Committee consideration.

    H.R. 1407, to amend title 49, United States Code, to permit air
            carriers to meet and discuss their schedules in order to reduce
            flight delays, and for other purposes

        Summary.--The Sherman Act of 1980 (15 U.S.C. Sec. Sec. 1-7)
    prohibits contracts or conspiracies in ``restraint of trade,''
    or attempts toward market monopolization. These provisions
    prohibit competitors from joint rate-setting or other practices
    which might be considered anticompetitive. On August 31, 1984,
    the Civil Aeronautics Board (CAB) issued an order granting
    antitrust immunity to airlines to meet and discuss their
    schedules. This action was taken to alleviate aviation system
    congestion and to reduce flight delays following the air
    traffic controller strike of 1981. Several airlines availed
    themselves of this immunity, but CAB's authority to grant
    antitrust immunity passed to the Department of Transportation
    (DOT) after its abolition in 1984. DOT extended antitrust
    immunity for airlines to discuss and set schedules in 1987, and
    in 1989, the Department of Justice was provided authority to
    grant antitrust immunity in this area. No further extensions
    were granted by the Department of Justice.
        H.R. 1407 amends Federal aviation law to authorize an air
    carrier to file with the Attorney General a request for: (1)
    authority to discuss with one or more other air carriers or
    foreign air carriers agreements or cooperative arrangements
    limiting flights at an airport during a time period when
    scheduled air transportation exceeds airport capacity; and (2)
    approval of such agreements or cooperative arrangements with
    respect to such limits on interstate air transportation. The
    bill also would direct the Attorney General, notwithstanding
    U.S. antitrust laws, to approve such requests if the following
    conditions are met. First, these discussions and resulting
    agreements are not adverse to the public interest. Second,
    these agreements will facilitate voluntary adjustments in air
    carrier schedules that could lead to a substantial reduction in
    travel delays and improvement of air transportation service to
    the public. Third, these arrangements will not substantially
    lessen competition or tend to create a monopoly. Finally, any
    resulting reduction in delays achieved by these agreements
    cannot be obtained by any other immediately available means.
        Furthermore, H.R. 1407 would authorize the Attorney General
    to: (1) approve such agreements and cooperative arrangements
    only if each air carrier or foreign air carrier providing
    service or seeking to provide service to an airport under such
    an agreement or cooperative arrangement has agreed to it; and
    (2) impose any terms or conditions on any approved agreement
    that are needed to protect the public interest and to protect
    air service to an airport that has less than .25 percent of the
    total annual boardings in the United States (non-hub and small
    hub airports). The bill would explicitly prohibit participants
    in approved discussions from: (1) discussing or entering into
    agreements regarding rates, fares, charges, or in-flight
    services; or (2) discussing particular city pairs, or
    submitting to other air carriers or foreign air carriers
    information on their proposed service or schedules in a fashion
    that indicates the involvement of city pairs.
        Legislative History.--H.R. 1407 was introduced by Rep. Don
    Young (R-AK) and 26 co-sponsors on April 4, 2001. The bill
    sequentially referred to the Committee on Transportation and
    Infrastructure and the Committee on the Judiciary. On May 15,
    2001, the Committee on Transportation and Infrastructure
    reported H.R. 1407 with amendment by voice vote. It was
    referred to the Judiciary Committee on May 23, 2001, and was
    ordered favorably reported without amendment by voice vote on
    June 20, 2001. (H. Rept. 107-77, Part II). The bill was then
    placed on the Union Calender, but received no further
    consideration by the House.

    H.R. 1542, the ``Internet Freedom and Broadband Deployment Act of
            2001''; H.R. 1697, the ``Broadband Competition and Incentives
            Act of 2001''; H.R. 1698, the ``American Broadband Competition
            Act of 2001''; H.R. 2120, the ``Broadband Antitrust Restoration
            and Reform Act''

        Summary.--The version of H.R. 1542 which passed the floor
    on February 27, 2002, contained versions of the two amendments
    which were adopted by the Judiciary Committee. These amendments
    were negotiated between the Judiciary and Energy and Commerce
    Committees. The first amendment provides that, not less than 30
    days before offering interLATA high speed data service or
    Internet backbone service in an in-region State, a Bell
    operating company shall submit to the Attorney General a
    statement expressing the intention to commence providing such
    service, providing a description of the service to be offered,
    and identifying the geographic region in which the service will
    be offered. This statement shall not be made public except as
    may be relevant to any administrative or judicial proceeding.
        This amendment is important because of the long and
    checkered antitrust history of the telecommunications market.
    H.R. 1542 would eliminate the need to go through a regulatory
    process in deploying broadband, as the RBOCs will continue to
    be required to do for telephone services, and this amendment
    mandates that the antitrust enforcers at the Department of
    Justice will get 30 days notice before such service is offered.
        The second amendment provides that the savings clause found
    in section 601(b) of the Telecommunications Act of 1996 shall
    be interpreted to mean that the antitrust laws are not repealed
    by, not precluded by, not diminished by, and not incompatible
    with the Communications Act of 1934, this Act, or any law
    amended by either such Act. This amendment, a version of which
    was adopted by the Judiciary Committee, is a response to
    concerns raised about any conflicting, confusing, or
    contradictory language found in the Seventh Circuit Court of
    Appeals' opinion in Goldwasser v. Ameritech Corp., 222 F. 3d
    390 (7th Cir. 2000). In Goldwasser, the Seventh Circuit Court
    of Appeals construed the savings clause found in section
    601(b)(1) (47 U.S.C. Sec. 152 note) of the Telecommunications
    Act of 1996 (P.L. No. 104-104, 110 Stat. 56).

                The Telecommunications Act of 1996
        The Telecommunications Act of 1996 arose from an antitrust
    consent decree. That consent decree, the Modified Final
    Judgement (MFJ), prevented the Regional Bell Operating
    Companies (RBOCs) from entering the long distance business
    because of their monopoly control over the local exchange.
    Congress structured the 1996 Act to offer the RBOCs a basic
    trade: the RBOCs were to open their local exchanges to
    competitors for interconnection and, in return, they were to be
    allowed entry into the long distance market.
        In particular, it added a new Sec. 271 to the
    Communications Act to provide criteria and a process for
    scrutinizing RBOC efforts to open their local monopolies. 47
    U.S.C. 271. Given the Justice Department's unique expertise in
    competitive matters, Congress expressly provided within 271
    that the Department would review RBOC compliance with the
    market-opening provisions of the act and that the Federal
    Communications Commission would give the Department's analysis
    substantial weight in making its decision with respect to an
    RBOC application to provide long distance service. 47 U.S.C.
    271(d)(2)(A). These provisions were included at the insistence
    of the Committee on the Judiciary. In providing this role for
    the Department, Congress sought to expand the Department's
    traditional enforcement authority in an effort to prevent
    anticompetitive harms.
        During the 5 years since enactment of the 1996 Act, the
    Department has fulfilled its statutory obligations in reviewing
    RBOC applications for entry into long distance service. In
    fact, after reviewing each of the first five petitions filed by
    RBOCs under the 1996 Act, the Department concluded that none of
    the RBOCs met its obligation under the act. The FCC concurred
    and ultimately denied each of the first five RBOC petitions.
        In 2000, the Justice Department recommended denial of two
    applications based on antitrust concerns--one involving SBC,
    the other involving Verizon. In each instance, the applicant
    withdrew and resubmitted its application, in an effort to
    remedy the antitrust concerns raised by the Justice Department.
    In five cases, including the two resubmitted applications--New
    York, Texas, Kansas, Oklahoma, and Massachusetts--the
    Department did not recommend rejection, but did indicate
    problems that needed to be addressed before approval. In those
    five instances, the FCC approved the applications. Thus, the
    Justice Department's Sec. 271 opinion has essentially
    determined the outcome of each application that the RBOCs have
    filed to date.

                Telecommunications Since the 1996 Act
        President Clinton signed the 1996 Act on February 8, 1996.
    At that time, the Internet was in its infancy. Most observers
    thought that the RBOCs would remain separate companies, that
    they would begin competing in long distance quickly, and that
    they might enter the cable business. By the same token, most
    observers thought that the long distance companies would remain
    separate companies, that they would begin competing in local
    service quickly, and that they probably would not enter the
    cable business. As for the cable companies, most observers
    thought that they would remain separate companies, that they
    might enter the telephone business, and that they would face
    substantial competition in the cable business from satellite
    companies and telephone companies.
        In the 5 years since the 1996 Act was signed, the Internet
    has changed everything. At that time, it was a technological
    marvel that was just becoming available to ordinary people and
    was hardly used for commerce. Since then, it has become a means
    for conducting a substantial and ever growing amount of
    commerce.
        In 1996, data traffic was not a substantial portion of the
    long distance business. Estimates vary as to what the
    percentage was, but it was probably less than 10%. Today, it is
    probably more than 50%. The demand keeps exploding. As a
    result, being a carrier of voice (i.e. traditional telephone
    calls) has become relatively less important and being a carrier
    of data has become relatively more important. Moreover, it is
    now possible to transmit voice telephone calls over the
    Internet thus blurring the distinction between voice and data.
        As anyone who has used the Internet knows, it can be
    frustratingly slow depending on what technology one is using.
    Both cable companies and telephone companies are upgrading
    their networks in many areas. At the same time, both of these
    technologies are getting better and faster, and they are also
    becoming capable of carrying voice (i.e. telephone calls),
    video (i.e. cable programming), and data (i.e. Internet
    content) through the same pipe. This is what is referred to as
    ``convergence'' of the technologies.
        Most telecommunications companies, irrespective of whether
    they started as RBOCs, long distance companies, cable
    companies, or something else, now think that their future lies
    in being capable of providing a package of all of the
    ``convergent'' services on a global basis. Because getting into
    a new part of this business from scratch requires massive
    investment, many companies have decided to buy another company
    rather than build from scratch. That has led to a wave of
    mergers.
        First, the RBOCs began to merge with each other. Bell
    Atlantic bought Nynex and GTE. SBC bought Pacific Telesis and
    Ameritech. Then, new competitors began to buy existing
    companies. WorldCom, a relatively new local competitor, bought
    MCI, one of the major long distance companies. WorldCom also
    tried to buy Sprint, but the deal failed because of antitrust
    concerns. Qwest, a relatively new long distance competitor,
    bought USWest, an RBOC.
        Finally, AT&T, the biggest of the old line long distance
    companies, bought Tele-Communications, Inc. (``TCI'') and
    MediaOne. TCI and MediaOne were two of the largest cable
    companies in the nation. These mergers gave AT&T ownership of
    many cable lines going into American homes. Again, estimates of
    the percentage vary depending on who is counting. At the same
    time, Microsoft has purchased a stake in AT&T as part of an
    effort to accelerate the deployment of broadband services
    across the country.
        When Congress was considering the 1996 Act, most observers
    thought that controlling the transmission of telephone voice
    calls was the future. Now, most observers believe that
    controlling broadband communications lines, be they phone or
    cable, is the future. H.R. 1542 seeks to allow the RBOCs to
    leverage their monopoly control of the local exchange to
    control the broadband future.

                The Provisions of H.R. 1542
        Fundamentally, H.R. 1542, as reported by the Committee on
    Energy and Commerce, eliminates several of the most important
    restrictions on the monopoly power of the incumbent local
    exchange carriers. In addition, with respect to data, it
    completely undoes the basic trade that made the 1996 Act
    possible: the RBOCs would no longer have to open their networks
    in order to offer long distance data service.
        Section 4(a) of H.R. 1542 creates a new Sec. 232 of the
    Communications Act of 1934. Subsection (a) of that new 232
    provides for a sweeping prohibition of any Federal
    Communications Commission or State limits of any kind on any
    high speed data service, Internet backbone service, Internet
    access service, or network elements used to provide such
    services. Section 3(a) of H.R. 1542 defines the terms ``high
    speed data service,'' ``Internet backbone service,'' and
    ``Internet access service'' in very broad terms. For example,
    high speed data service is defined as any packet-switched or
    successor technology that transmits information at a speed
    generally not less than 384 kilobits per second. This
    definition could easily include voice transmission over the
    Internet. The desire to let the Internet grow unfettered is
    understandable. However, this sweeping language could eliminate
    even basic anti-fraud protections as well as many other
    consumer protection statutes. In addition, this sweeping
    language could be read to eliminate the rights of the
    Commission and the State attorneys general to bring antitrust
    suits under 4, 4C, and 11 of the Clayton Act. 15 U.S.C. 15,
    15c, & 21.
        Section 4(b) of H.R. 1542 creates a new subsection (j) of
    Sec. 251 of the Communications Act. 47 U.S.C. 251. Section 251
    sets forth the basic obligations of RBOCs and other incumbent
    local exchange carriers to open their local exchanges for
    competitors to interconnect. The new 251(j) contains exemptions
    that would generally eliminate their obligations to share the
    fiber optic parts of their network, to provide unbundled
    network elements for high speed data service, and to provide
    access to remote terminals as an unbundled network element.
    These obligations on incumbent local exchange carriers allow
    competitors the ability to provide competing high speed data
    service. In short, this provision allows the incumbents
    effectively to leverage their monopoly control over the local
    exchange and exclude competition in high speed data service.
    That is troublesome enough, but taken together with the broad
    definition of high speed data service, it could represent the
    potential remonopolization of the industry.
        Subsection 6(a) of H.R. 1542 inserts high speed data
    service and Internet access service into the definition of
    incidental interLATA services contained in Sec. 271(g) of the
    act. 47 U.S.C. 271(g). Under 271(b)(3), the RBOCs are allowed
    to provide incidental interLATA services without meeting the
    antimonopoly provisions of 271. 47 U.S.C. 271(b)(3). Thus, this
    provision moves high speed data service and Internet access
    service out of the 271 process altogether and allows the RBOCs
    to start providing them immediately without any further review
    by the Department of Justice, the Federal Communications
    Commission, or the States. Given the broad definitions of these
    terms, this provision undoes much of the basis of the 1996 Act.
    More specifically, this language would eliminate the role of
    the Department of Justice in reviewing much activity that would
    currently fall within the parameters of 271.
        Subsection 6(b) of H.R. 1542 creates a new Sec. 271(k) that
    would prohibit the RBOCs from offering in any in-region State
    any interLATA voice telecommunications service obtained by
    means of a high speed data access or Internet access service.
    This provision attempts to maintain the 271 restrictions for
    voice in the face of the broad definitions for the two key
    terms. However, it does not provide any definition of the term
    ``interLATA voice telecommunications service.'' Apparently,
    this would be left to the FCC. Thus, in what claims to be a
    deregulatory bill, the purportedly fundamental distinction
    between voice and data is left undefined. However, regardless
    of how voice or data are defined or who defines them, this
    provision is intended to, and will, change the parameters of
    what the Justice Department will review in 271 applications.
        Finally, subsection 6(c)(2) of H.R. 1542 eliminates the
    act's requirement that the RBOCs must conduct their interLATA
    information services through a separate affiliate. The act's
    definition of ``information services'' appears to include high
    speed data access or Internet access service. 47 U.S.C. Sec.
    153(20). The separate affiliate requirement was a key provision
    designed to ensure that the RBOCs could not leverage their
    monopoly power over the local exchange to other lines of
    business. The elimination of this requirement simply adds to
    the elimination of any restriction on that monopoly power.
        In short, H.R. 1542, as reported by the Energy and Commerce
    Committee, reverses many of the basic antimonopoly provisions
    of the 1996 Act. In doing so, it eliminates potential antitrust
    actions by the FCC and the States and substantially limits the
    role of the Department of Justice in reviewing the monopoly
    power of the RBOCs.

                The Goldwasser Case
        One recent development in the courts particularly interests
    this Committee. The Telecommunications Act of 1996 included an
    antitrust savings clause that read as follows: ``Except as
    provided in paragraphs (2) and (3) [which are not relevant
    here], nothing in this act or the amendments made by this act
    shall be construed to modify, impair, or supersede the
    applicability of any of the antitrust laws.'' Sec. 601(b)(1) of
    the Telecommunications Act of 1996. It also included a general
    savings clause that read as follows: ``This act and the
    amendments made by this act shall not be construed to modify,
    impair, or supersede Federal, State, or local law unless
    expressly so provided in such act or amendments.'' 601(c)(1) of
    the Telecommunications Act of 1996. Until recently, it was
    widely thought that this language made clear that nothing in
    the Telecommunications Act in any way effected any implied
    repeal of the antitrust laws.
        Recently, however, the Seventh Circuit effectively read
    these savings clauses out of the law in Goldwasser v. Ameritech
    Corp., 222 F.3d 390 (7th Cir. 2000). It held:
        [S]uch a conclusion [i.e., that the complaint at issue
    alleged a freestanding antitrust claim] would then force us to
    confront the question whether the procedures established under
    the 1996 Act for achieving competitive markets are compatible
    with the procedures that would be used to accomplish the same
    result under the antitrust laws. In our view, they are not. The
    elaborate system of negotiated agreements and enforcement
    established by the 1996 Act could be brushed aside by any
    unsatisfied party with the simple act of filing an antitrust
    action. Court orders in those cases could easily conflict with
    the obligations the State commissions or the FCC imposes under
    the sec. 252 agreements. The 1996 Act is, in short, more
    specific legislation that must take precedence over the general
    antitrust laws, where the two are covering precisely the same
    field.
        This is not the kind of question that requires further
    development of a factual record, either on summary judgment or
    at a trial. We therefore agree with the district court that it
    was proper for resolution under rule 12(b)(6). There are many
    markets within the telecommunications industry that are already
    open to competition and that are not subject to the detailed
    regulatory regime we have been discussing; as to those, the
    antitrust savings clause makes it clear that antitrust suits
    may be brought today. At some appropriate point down the road,
    the FCC will undoubtedly find that local markets have also
    become sufficiently competitive that the transitional
    regulatory regime can be dismantled and the background
    antitrust laws can move to the fore. Our holding here is simply
    that this is not what Congress has mandated at this time for
    the ILEC duties that are the subject of the Goldwasser
    complaint. The district court thus correctly rejected the
    plaintiffs' antitrust theory.

              Id. at 401-02. The Committee believes that this
            holding is wrong and plainly misstates the clear intent
            of Congress in both savings clauses. However, for the
            moment at least, it is the law in the Seventh Circuit.
            Another case raising the same issue, Intermedia
            Communications, Inc. v. BellSouth Telecommunications,
            Inc., is currently pending before the Eleventh Circuit.
            In that case, the Department of Justice and the Federal
            Communications Commission have filed a joint amicus
            brief arguing that the Seventh Circuit wrongly decided
            Goldwasser with respect to this issue.

                Chairman Sensenbrenner's Amendment
        Chairman Sensenbrenner offered an amendment to address two
    of the antitrust problems in the bill. First, the Sensenbrenner
    amendment restores current law in Sec. 271 of the
    Communications Act with respect to Bell entry into long
    distance data service except that it makes the Justice
    Department the decisionmaker rather than the Federal
    Communications Commission. Second, it adds language clarifying
    the meaning of the antitrust savings clause in the
    Telecommunications Act of 1996 and reversing the
    misinterpretation of that clause in the Goldwasser case. The
    Committee adopted the Chairman's amendment by voice vote.
        A great deal of confusion has arisen over the meaning of
    the part of the Sensenbrenner amendment that addresses the
    Goldwasser decision. In light of that confusion, the Committee
    wishes to clarify the following matters. First, the
    clarification is directed only at that part of the Goldwasser
    decision that is quoted above in section E. This clarification
    is not intended to disturb other parts of the decision. Second,
    the clarification is not limited to the local exchange context,
    but would apply to any case in which a party claimed that the
    Communications Act in some way effected an implied repeal of
    the antitrust laws.
        Third, over the years, case law has added to antitrust law
    in ways that are not explicitly set out in the antitrust
    statutes, like the primary jurisdiction doctrine, the filed
    rate doctrine, the State action immunity doctrine, and other
    similar matters. The Committee believes these matters are part
    of the ``rights, obligations, powers, and remedies'' provided
    under the antitrust laws that the language in the provision
    intends to save. The provision is not intended to limit or
    eliminate these or other similar doctrines.
        Fourth, parties are free to sign contracts that waive their
    rights to bring antitrust actions or actions under the
    Communications Act. This language is not intended to override
    any otherwise valid contract provision that makes such a
    waiver.
        Finally, the Committee emphasizes again the general notion
    that the quoted portion of Goldwasser upset. With respect to
    conduct within the ambit of the Communications Act, the Act and
    the antitrust laws are parallel and complementary remedy
    systems. Conduct may violate the Act and not the antitrust
    laws; it may violate the antitrust laws and not the Act; it may
    violate both; or it may violate neither. When an action like
    Goldwasser is filed alleging conduct violating both the Act and
    the antitrust laws, a court should analyze the conduct to see
    if it violates the Act, and it should separately analyze the
    conduct to see if it violates the antitrust laws. The Committee
    understands the portion of Goldwasser quoted in section E,
    above, to hold that such conduct--at least if it relates to an
    incumbent local exchange carrier's obligations under Sec. 251
    of the Act before the local exchange market becomes
    competitive--can only be analyzed under the Act and not the
    antitrust laws.
        That is not what Congress intended in 1996. The courts may
    not simply read the antitrust savings clause out of the law.
    Accordingly, the Committee believes this clarification is in
    order to make it clear to the courts that the antitrust savings
    clause meant what its plain language said.
        Legislative History.--Chairman Tauzin introduced H.R. 1542
    on April 4, 2001. Congressman Conyers introduced H.R. 1697 on
    May 3, 2001. Congressman Cannon introduced H.R. 1698 on May 3,
    2001. Congressman Cannon introduced H.R. 2120 on June 12, 2001.
    All three bills were referred to the Committee. On May 22,
    2001, the Committee held a hearing on H.R. 1697, and H.R. 1698.
    The Committee received testimony from four witnesses: Honorable
    Terry Harvill, Commissioner, Illinois Commerce Commission,
    Chicago, Illinois; Honorable Bill Barr, Executive Vice
    President and General Counsel, Verizon, Washington, DC; Mr.
    Jeff Blumenfeld, Partner, Blumenfeld & Cohen, Washington, DC;
    and Mr. John Malone, President and Chief Executive Officer, The
    Eastern Management Group, Bedminster, New Jersey.
        The Committee held a hearing on H.R. 1542 on June 5, 2001.
    The Committee received testimony from four witnesses: Honorable
    Tom Tauke, Senior Vice President for Public Policy and External
    Affairs, Verizon, Washington, DC; Mr. Clark McLeod, Chairman
    and Co-Chief Executive Officer, McLeodUSA, Cedar Rapids, Iowa;
    Ms. Margaret Greene, Executive Vice President for Regulatory
    and External Affairs, BellSouth Corporation, Atlanta, Georgia;
    and Mr. Jim Glassman, Resident Fellow, American Enterprise
    Institute, Washington, DC.
        On June 13, 2001, the Committee conducted a markup session
    on H.R. 1542 and H.R. 2120. The Committee defeated the motion
    to report on H.R. 2120, by a 15-19 vote. The Committee
    adversely ordered reported, amended H.R. 1542, by voice vote.
    On June 18, 2001, the Committee filed its report, H. Rept. 107-
    83 pt. II. On February 27, 2002, the House passed H.R. 1542, by
    a vote of 273-157.

    H.R. 3288, the ``Fairness in Antitrust in National Sports (FANS) Act of
            2001''

                Review of Major League Baseball's antitrust status and
                        documents submitted by the Office of the
                        Commissioner of Major League Baseball
        Summary.--The Committee on the Judiciary has maintained
    thorough oversight over the operation of Major League Baseball
    (MLB). While the jurisdiction of the Committee includes the
    operation of other professional sports leagues, MLB is the only
    professional sports league that enjoys a judicially created
    exemption to the antitrust laws. On November 6, 2001, MLB voted
    to contract two teams from the 2002 season roster to address
    the League's alleged financial crisis. As a result H.R. 3288,
    the ``Fairness in Antitrust in National Sports (FANS) Act of
    2001,'' which would have applied the antitrust laws to the
    contraction or relocation of Major League clubs, was introduced
    on November 14, 2001. On December 6, 2001, the Committee
    conducted a legislative hearing on H.R. 3288 that included: a
    detailed submission of financial statements by MLB; a careful
    review by the Committee to assess these and other related
    documents; and subsequent requests by the Committee for
    additional information. Although no legislative action was
    taken on H.R. 3288, MLB did not contract two teams from the
    2002 roster. In addition, wide concerns over inflated costs to
    baseball fans and supporting communities have been highlighted
    by: MLB's claim of financial peril and the increasing valuation
    of Major League Club sales; the increasing value of player's
    salaries; and threats of a labor strike by the Major League
    Baseball Players Association.

                History of Major League Baseball's antitrust status
        MLB is the only professional sport that enjoys a virtual
    exemption from the antitrust laws. In 1922, the Supreme Court
    held that ``exhibitions of baseball'' were not interstate
    commerce for the purposes of federal antitrust
    jurisdiction.\22\ In 1953 the Court reaffirmed that position,
    noting that ``if there are evils in this field which now
    warrant application of the antitrust laws it should be by
    legislation'' and not by judicial action.\23\ In 1972, the
    Court opined that the antitrust-exempt status of professional
    baseball an ``anomaly'' and an ``aberration'' in the
    application of the antitrust laws--both to business generally
    and to professional sports particularly, but that the
    ``inconsistency or illogic'' of that situation would have to be
    ``remedied by Congress and not by this Court.'' \24\
    ---------------------------------------------------------------------------
        \22\ Federal Baseball Club of Baltimore, Inc. v. National League of
    professional Baseball Clubs, 259 U.S. 200 (1922).
        \23\ Toolson v. New York Yankess, 346 U.S. at 356, 357 (1953).
        \24\ Flood v. Kuhn, 407 U.S. at 282, 284, 258 (1972).
    ---------------------------------------------------------------------------

                Legislative history of baseball antitrust
        In the 103rd Congress, (1) the Senate Judiciary Committee
    voted not to report S. 500 (Sen. Metzenbaum, ``Professional
    Baseball Reform Act of 1993''); (2) H.R. 108 (Rep. Bilirakis, a
    measure to make the antitrust laws applicable to professional
    baseball teams and the leagues of which they are a part
    remained pending in the Economic and Commercial Law
    Subcommittee of the House Judiciary Committee; (3) several
    measures--each titled ``Baseball Fans Protection Act''--to
    ``encourage serious negotiation between the players and the
    owners of major league baseball'' by amending the Clayton Act
    to make the antitrust laws applicable to ``unilateral terms or
    conditions * * * imposed by any party that has been subject to
    an agreement between the owners of major league baseball and
    labor organizations representing the players of major league
    baseball * * *,'' were introduced immediately prior to or at
    the beginning of the 1994 baseball strike; (4) September 1994
    hearings before the Economic and Commercial Law Subcommittee of
    the House Committee on the Judiciary focused on labor-specific
    measures; (5) in November, 1994, H.R. 4994 (Rep. Synar,
    ``Baseball Fans and Communities Protection Act,'' which
    appliedthe antitrust laws to MLB's labor negotiations but exempted
    ``non-major league baseball club[s]'') was reported by the Judiciary
    Committee (H.Rept. 103-871), but not acted upon; and (6) S. 2380 (Sen.
    Metzenbaum, ``Baseball Fans Protection Act of 1994,'' which applied the
    antitrust laws to MLB's labor negotiations) was placed on the Senate
    calendar, but not acted upon by the full Senate. More than a dozen
    other measures that would have applied the antitrust laws to were
    introduced in the 104th Congress, many of which coincided with the 1994
    Baseball labor strike.
        In 1998 (105th Congress), the ``Curt Flood Act,'' Pub. L.
    105-297, was enacted (S. 53, 105th Congress). The Curt Flood
    Act establishes a new section Sec. 27 to the Clayton Act (15
    U.S.C. Sec. Sec. 12 et seq.) to clarify that major league
    baseball players are covered under the federal antitrust laws
    to the same extent as are other professional athletes. Although
    questions over the Act's efficacy have not been tested, the Act
    defines ``major league baseball players'' as persons who are or
    were parties to major league players' contracts, and
    specifically does not purport to affect in any way, inter alia:
    (1) professional baseball's relations with ``organized
    professional minor league baseball''; or (2) ``the agreement
    between organized professional major league baseball teams and
    the National Association of Professional Baseball Leagues
    (``Professional Baseball Agreement'').'' The Act is intended to
    provide more autonomy for major league players by allowing them
    to market themselves as free agents and has little impact on
    MLB's antitrust status.
        The only statute which exempts professional sports leagues
    other than baseball from the antitrust laws is the Sports
    Broadcasting Act.\25\ This Act permits professional sports
    teams to pool their separate telecasting rights and the
    revenues received from these rights without violating the
    antitrust laws. As media rights are the most valuable economic
    contributor to the bottom line of individual sports franchises,
    this law plays a significant role in the ongoing debate over
    MLB's decision to contract two Major League clubs. While it is
    widely known that MLB's richest teams are located in the
    largest media markets and its poorest teams are located in the
    smallest media markets, ``revenue sharing'' of broadcasting
    revenues, or the lack thereof, creates a severe anti-
    competitive perception.
    ---------------------------------------------------------------------------
        \25\ See 15 U.S.C. Sec. Sec. 1291 et seq.
    ---------------------------------------------------------------------------
                Major League Baseball owners decide to contract the League
        On the evening of November 6, 2001, the Associated Press
    reported that the MLB owners had made the decisions that day to
    contract the League by two teams. According to the news report,
    the owners:

              * * * would not specify which cities would be cut * *
            *. The vote was 28-2, with the Minnesota Twins and
            Montreal Expos opposing contraction * * *. Montreal,
            Minnesota and the Florida Marlins recently have been
            mentioned as the likeliest candidates, while Oakland
            and Tampa Bay were discussed earlier this year.
              ``It makes no sense for Major League Baseball to be
            in markets that generate insufficient local revenues to
            justify the investment in the franchise,'' commissioner
            Bud Selig said. ``The teams to be contracted have a
            long record of failing to generate enough revenues to
            operate a viable major league franchise.''
              Baseball's decision reverses nearly a half-century of
            expansion during which the major leagues grew from 16
            teams in 1960 to 30 since 1998, when Arizona and Tampa
            Bay were added.
              The amount of money that would be paid to the
            eliminated teams was not discussed during the meeting.
              This would be the first contraction by Major League
            Baseball since the National League shrank from 12 teams
            to eight following the 1899 season. No major league
            team has moved since the Washington Senators became the
            Texas Rangers in 1972.\26\
    ---------------------------------------------------------------------------
        \26\ Associated Press Newswire Report, ``Owners vote to eliminate
    two MLB teams,'' November 6, 2001.

        Based on this news, the Committee recognized the necessity
    of examining the antitrust implications of a League
    contraction. The Committee requested a Congressional Research
    Service memorandum from the American Law Division addressing
    the Antitrust Status of MLB as well as the impact of H.R. 3288
    on the contraction or relocation of Major League clubs. H.R.
    3288 establishes a provision of the Clayton Act to apply the
    antitrust laws to the elimination or relocation of a Major
    League club in the same manner that the antitrust laws are
    applied to the elimination or relocation of a franchise in any
    other professional sports business affecting interstate
    commerce. The bill would apply only to the elimination or
    relocation of Major League clubs and would allow the antitrust
    exemption to remain for the balance of MLB's operations,
    notably revenue sharing authorized in the Sports Broadcasting
    Act and minor league operations. The advocates of the bill
    proposed it as a remedy under the idea that, except for MLB's
    antitrust exemption, a decision by MLB's owners to consolidate
    would be found by a court to violate the federal antitrust
    laws. However, removing MLB's antitrust exemption only for the
    purposes of Major League club contraction or relocation, could
    permit the owners to act unilaterally to contract or relocate a
    club without agreement by the other owners. Therefore, while
    H.R. 3288 is narrowly tailored to the contraction or relocation
    of Major League clubs and presumably would prevent the owners
    from voting to contract or relocate a Major League club, the
    bill would not necessarily provide a predictable or desirable
    outcome.

                December 6, 2001 hearing on anti-trust issues in Major
                        League Baseball
        While it was noticed as a Legislative Hearing on H.R. 3288,
    the ``Fairness in Antitrust in National Sports (FANS) Act of
    2001,'' the Full Committee hearing on December 6, 2001,included
    a comprehensive examination of MLB's antitrust status, the effect of
    multi-million dollar player salary contracts, and the use of public
    funds for stadiums to house Major League clubs and possibly attract new
    Major League clubs. The Committee Chairman's opening statement provided
    an eloquent explanation of the Committee's intent.

              In 1922, the judicial branch of government was there
            to help Major League Baseball. In a unique decision,
            the United States Supreme Court held that baseball was
            not a business and thus not subject to the antitrust
            laws. With minor modification, baseball's antitrust
            exemption has survived to this day. It is an exemption
            enjoyed by none of the other major league sports.
            Seventy-nine years ago Major League Baseball consisted
            of 16 teams clustered in the Northeast and Midwest.
            Players were paid what was generously described as a
            pittance. Ballparks were privately owned, and genuine
            fan loyalty was built upon stars playing with the same
            team for most of their careers. Today 30 teams play in
            major cities throughout the country except one, the
            Nation's Capital. Players receive astronomical
            salaries, the newer parks were largely built with
            taxpayers' money, and free agency sends the stars from
            one team to another almost before they can warm their
            places in the dugout. The major argument for using
            taxpayers' funds to build new stadiums has been the
            economic boom brought to a community by having a Major
            League Baseball team.
              At this hearing we will receive testimony that
            baseball is in dire financial straits and that the
            antitrust exemption should remain. One of the many
            questions which baseball must answer is why so many
            teams are in financial peril with the protection of
            special legal status when major league football,
            basketball and hockey teams are not? Perhaps the help
            given to baseball by the Supreme Court in 1922 really
            has not been so helpful after all. And another question
            to be answered by baseball is how a sport which grosses
            over $3 billion a year is still not a business when the
            presence of a team obviously stimulates business
            throughout the lucky communities.
              For years baseball has told Congress that it can heal
            itself, and it obviously has not done so, even though
            this year baseball has had record attendance and the
            best World Series in history. The numbers do not add
            up. Success on the field and at the box office should
            bring success to the bottom line. So maybe the Supreme
            Court's help in 1922 has outlived its usefulness, and
            the market should be allowed to work in baseball like
            it has in other major sports.

        Legislative History.--Witnesses testifying at the hearing
    were Mr. Allan H. (Bud) Selig, Commissioner of Major League
    Baseball (Commissioner), The Honorable Jesse Ventura, Governor
    of Minnesota (Governor), Mr. Jerry Bell, President, Minnesota
    Twins, and Mr. Steven A. Fehr, outside counsel for the Major
    League Baseball Players Association. Also, all Members of the
    Minnesota House delegation accepted an invitation to
    participate in this hearing.
        The first witness, the Commissioner, identified MLB's
    economic problems, and discussed MLB's decision to contract two
    teams to advance the long-term economic interests of
    professional baseball. The decision to contract teams was
    justified to eliminate MLB's most severe financial burdens. The
    Commissioner testified that ``the consolidated loss for all
    thirty clubs in 2001 will be approximately $519 million.
    Twenty-five clubs lost money and five made money.'' He provided
    further details of the losses and directed attention to written
    documents distributed at the hearing (see below). The
    Commissioner testified that H.R. 3288, as introduced, would not
    be helpful to MLB and would severely undermine the franchise
    stability league owners have worked to achieve. Additionally,
    the Commissioner questioned how far the removal of the
    exemption would go since there was a 1998 change to the
    exemption in the area of labor relations.
        Governor Jesse Ventura, the 38th governor of Minnesota,
    testified against eliminating the Minnesota Twins and
    criticized Major League Baseball's ``failed logic'' in support
    of eliminating the Twins.\27\ The Governor emphasized that, in
    order to rectify the MLB situation, Congress simply has to pass
    a law that ``says the Sherman Act applies to all businesses
    without exception,'' and to make clear that there is no
    exemption for MLB.
    ---------------------------------------------------------------------------
        \27\ Id. at 27-31.
    ---------------------------------------------------------------------------
        The Committee then heard testimony from Jerry Bell,
    President of the Minnesota Twins. Mr. Bell testified to the
    need for a new revenue sharing approach in MLB to increase
    prospects for improving local revenues for clubs such as the
    Twins. Mr. Bell specifically noted the severe lack of local
    revenues in Minnesota and testified that the only way to
    generate sufficient local revenue was with a new ballpark.
        Finally, the Committee heard testimony from Steven A. Fehr,
    Outside Counsel for the Major League Baseball Players
    Association. Mr. Fehr testified that the players fully
    supported the FANS Act of 2002, and oppose contraction within
    the league. Mr. Fehr agreed with Gov. Ventura that passing the
    bill would remove all doubt that MLB is subject to antitrust
    laws.

                                LIABILITY ISSUES

    H.R. 2037, Protection of Lawful Commerce in Arms Act

        Summary.--H.R. 2037, the ``Protection of Lawful Commerce in
    Arms Act,'' provides protections for those in the firearms
    industry from lawsuits arising out of the criminal or unlawful
    acts of people who misuse their products. The legislation would
    allow Congress to prevent one or a few state courts from
    bankrupting the national firearms industry and undermining all
    citizens' right to bear arms.
        A gun, by its very nature, must be dangerous. Tort law,
    however, rests upon a moral foundation which presupposes that a
    product may not be defined as defective unless there is
    something ``wrong'' with the product, rather than with the
    product's user. However, in the last several years, lawsuits
    have been filed against the firearms industry on theories of
    liability that would hold those in the firearms industry liable
    for the actions of others who use their products in a criminal
    or unlawful manner. Such lawsuits threaten to separate tort law
    from its basis in personal responsibility, and to force
    firearms manufacturers into bankruptcy, leaving potential
    plaintiffs asserting traditional claims of product
    manufacturing defects unable to recover more than pennies on
    the dollar in federal bankruptcy court.
        Lawsuits seeking to hold the firearms industry responsible
    for the criminal and unlawful use of its products by others are
    attempts to accomplish through litigation what has not been
    achieved by legislation and the democratic process. An equally
    destructive dynamic of such lawsuits is created when plaintiffs
    seek to obtain through the courts stringent limits on the sale
    and distribution of firearms beyond the court's jurisdictional
    boundaries. Under the currently unregulated tort system, a
    state lawsuit in a single county could destroy a national
    industry and deny citizens nationwide the ability to keep and
    bear arms guaranteed by the Constitution. These complaints have
    the practical effect of shutting down interstate commerce in
    firearms, and Congress has the power to protect interstate
    commerce. Such lawsuits directly implicate core federalism
    principles articulated by the United States Supreme Court.
        H.R. 2037 would allow Congress to fulfill its
    constitutional duty and exercise its authority under the
    Commerce Clause to prevent a few state courts from bankrupting
    the national firearms industry and denying all Americans their
    fundamental right to self-defense.
        Legislative History.--Representative Stearns introduced
    H.R. 2037, the ``Protection of Lawful Commerce in Arms Act,''
    on May 25, 2001. The Judiciary Committee held a mark-up session
    on H.R. 2037 on October 2, 2002, and reported the bill
    favorably as amended by the yeas and nays: 18-7. The Committee
    filed its report on October 8, 2002, H. Rept. 107-727, Part II.

    H.R. 2341, the ``Class Action Fairness Act of 2002''

        Summary.--H.R. 2341 provides meaningful improvements in
    litigation management by allowing federal courts to hear large
    interstate class actions and by establishing new protections
    for consumers against abusive class action settlements. In
    making these improvements, H.R. 2341 does not limit access to
    the courthouse or alter any existing state or federal
    substantive law. Furthermore, it will help prevent a handful of
    state courts from usurping the authority of other states and
    the rights of their citizens.
        First, H.R. 2341 amends the current federal diversity-of-
    citizenship jurisdiction statute (28 U.S.C. Sec. 1332)--to
    allow large interstate class actions to be adjudicated in
    federal courts. Currently, federal courts have jurisdiction
    over (a) lawsuits dealing with a federal question and (b) cases
    meeting current diversity jurisdiction requirements--matters in
    which all plaintiffs are citizens of jurisdictions different
    than all defendants, and each claimant has an amount in
    controversy in excess of $75,000. H.R. 2341 would change the
    diversity jurisdiction requirement for class actions, generally
    permitting access to federal courts in class actions where
    there is ``minimal diversity'' (that is, any member of the
    proposed class is a citizen of a state different from any
    defendant) and the aggregate amount in controversy among all
    class members exceeds $2 million. In that way, H.R. 2341
    recognizes that large interstate class actions deserve federal
    court access because they typically affect more citizens,
    involve more money, and implicate more interstate commerce
    issues than any other type of lawsuit.
        Secondly, it implements long needed protections for
    consumers against abusive settlements. These protections are
    established in the ``Consumer Class Action Bill of Rights''
    (Bill of Rights), which is located in Section 3 of the bill.
    The Bill of Rights would: (1) establish new ``Plain English''
    requirements (non-legal jargon) so that class members can
    better understand class action settlement notices and how these
    notices effect their rights; (2) enhance judicial scrutiny of
    coupon settlements; (3) provide judicial scrutiny over
    settlements that would result in a net monetary loss to
    plaintiffs; (4) prohibit unjustified payments, also known as
    bounties, to class representatives; and (5) protect out-of-
    state class members against settlements that favor class
    members based upon geographic proximity to the courthouse.

                Federal diversity jurisdiction
        While federal courts have jurisdiction over questions or
    disputes concerning federal law, Article III of the
    Constitution empowers Congress to establish federal
    jurisdiction over any law when there is diversity--disputes
    ``between citizens of different States.'' Diversity
    jurisdiction is premised on concerns that state courts might
    discriminate against out of state defendants. Since 1806, with
    some exceptions, the federal courts have followed the rule of
    Strawbridge v. Curtiss, which states that federal jurisdiction
    lies only where all plaintiffs are citizens of states different
    than all defendants.\28\ This is known as the ``complete
    diversity'' rule.\29\ In a class action, only the citizenship
    of the named plaintiffs is considered for determining
    diversity, which means that federal diversity jurisdiction will
    not exist if the named plaintiff is a citizen of the same state
    as the defendant, regardless of the citizenship of the rest of
    the class. See Snyder v. Harris, 394 U.S. 332 (1969). And,
    since the early days of the country, Congress has imposed a
    monetary threshold--now $75,000--for federal diversity
    claims.\30\ However, the amount in controversy requirement is
    satisfied in a class action only if all of the class members
    are seeking damages in excess of the statutory minimum.\31\
    ---------------------------------------------------------------------------
        \28\ Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806).
        \29\ The Supreme Court has regularly recognized that the decision
    to require complete diversity, and to set a minimum amount in
    controversy, are political decisions not mandated by the Constitution.
    See, e.g., Newman-Green, Inc. v. Alfonzo-Larrian, 490 U.S. 826, 829 n.1
    (1989). It is therefore the prerogative of the Congress to broaden the
    scope of diversity jurisdiction to any extent it sees fit, as long as
    any two adverse parties to a lawsuit are citizens of different states.
    See State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530-31 (1967).
        \30\ See 28 U.S.C. Sec. 1332(a).
        \31\ See Zahn v. International Paper Co., 414 U.S. 291 (1973).
    ---------------------------------------------------------------------------
        These jurisdictional statutes were originally enacted years
    ago, well before the modern class action arose, and they lead
    to perverse results. For example, under current law a citizen
    of one state may bring in federal court a simple $75,001 slip-
    and-fall claim against a party from another state. But if a
    class of 25 million consumers living in all 50 states brings
    claims collectively worth $15 billion against the manufacturer,
    the lawsuit usually must be heard in state court. The current
    statutes also allow attorneys to game the system to keep class
    actions out of federal court. Attorneys often name irrelevant
    parties to their class actions in an effort to ``destroy
    diversity''--that is, to keep the case from qualifying for
    federal diversity jurisdiction. In fact, plaintiff's counsel
    have made statements about a case to prevent a defendant from
    removing the case to federal court (e.g., ``plaintiffs seek
    only a very small amount of money in this case''). After one
    year, however, the same counsel will recant those statements,
    since at that point, current statutes bar removal of the case
    to federal court.\32\
    ---------------------------------------------------------------------------
        \32\ Hearings on H.R. 1875 and 2005: the ``Interstate Class Action
    Jurisdiction Act of 1999'' and ``Workplace Goods Job Growth and
    Competitiveness Act of 1999'' Before the House Comm. on the Judiciary,
    106th Cong., 1st Sess. 57 (July 21, 1999) (prepared statement of John
    Beisner).
    ---------------------------------------------------------------------------
                Removal statute

        The general federal removal statute provides, inter alia,
    that any civil action brought in a State court of which U.S.
    district courts have original jurisdiction, may be removed by
    the defendant(s) to the appropriate Federal court.\33\ Removal
    is based on the same general assumption as diversity
    jurisdiction, that an out-of-state defendant may become a
    victim of local prejudice in State court.\34\
    ---------------------------------------------------------------------------
        \33\ See 28 U.S.C. Sec. 1441(a).
        \34\ See David P. Currie, Federal Jurisdiction at 140 (3rd ed.
    1990).
    ---------------------------------------------------------------------------
        A defendant must file for removal to Federal court within
    30 days after receipt of a copy of the initial pleading (or
    service of summons if a pleading has been filed in court and is
    not required tobe served on the defendant).\35\ An exception
    exists beyond the 30-day deadline when the case stated by the initial
    pleading is not removable. If so, a notice of removal must be filed
    within 30 days of receipt by the defendant of ``a copy of an amended
    pleading, motion, order, or other paper from which it may first be
    ascertained that the case [is removable].'' In no event may a case
    where Federal jurisdiction is based on diversity be removed more than
    one year from commencement of the action.\36\
    ---------------------------------------------------------------------------
        \35\ See 28 U.S.C. Sec. 1446(b).
        \36\ Id.
    ---------------------------------------------------------------------------

                The Act
        H.R. 2341 establishes the following six requirements to
    enhance the rights of members of a class action:
              (1) Judicial scrutiny over coupon and other noncash
            settlements--requires the court to conduct a hearing to
            determine whether a coupon or noncash settlement is
            fair, reasonable, and adequate for class members;
              (2) Protections against net losses by class members--
            requires the court to make a written finding that non-
            monetary benefits to class members outweigh the
            monetary loss of a proposed settlement in which any
            class member is obligated to pay sums to class counsel
            that would result in a net loss to the class member;
              (3) Protections against discrimination based on
            geographic location--prohibits settlements providing
            greater awards to class members on the basis they are
            in closer geographic proximity to the court;
              (4) Prohibit the payment of bounties--prohibits
            settlements providing additional awards to class
            representatives other than awards approved by the court
            for reasonable time or costs associated with the class
            member's obligation as a class representative;
              (5) Clearer and simpler settlement information--
            establishes a new ``Plain English'' requirement for any
            written and broadcast notices concerning a proposed
            class action settlement; and
              (6) Pleading requirements for class actions--
            establishes the following pleading requirements for
            class actions:
                      (a) The complaint shall specify with
                    particularity the nature and amount of all
                    relief sought on behalf of any class member,
                    and the nature of the injury allegedly caused
                    to members of the class.
                      (b) In actions asserting that the defendant
                    acted with a particular state of mind, the
                    complaint shall state with particularity the
                    facts, if proven, with respect to each alleged
                    act demonstrating that the defendant acted with
                    the required state of mind.
                      (c) Any defendant may move to dismiss a
                    complaint based on failure to comply with the
                    provisions of this section. All discovery shall
                    be stayed during the pendency of a motion to
                    dismiss.
        H.R. 2341 expands federal diversity jurisdiction by
    amending 28 U.S.C. Sec. 1332 to grant original jurisdiction in
    federal court to hear interstate class actions where any member
    of the proposed class is a citizen of a state different from
    any defendant and the total amount in controversy is at least
    $2,000,000. This would include civil actions where a named
    plaintiff purports to act on behalf of other at least 100 other
    members of the same action on the grounds that claims involve
    common questions of law or fact, and would apply to any class
    action before or after the entry of a class certification
    order. An interstate class (i.e. federal diversity
    jurisdiction) action would not include:
              (1) Intrastate cases--cases in which a ``substantial
            majority'' of the class members and defendants are
            citizens of the same state and the claims will be
            governed primarily by that state's law;
              (2) Limited scope cases--cases involving fewer than
            100 class members or where the aggregate amount in
            controversy is less than $2 million; and
              (3) State action cases--cases where the primary
            defendants are states or state officials, or other
            governmental entities against whom the district court
            may be foreclosed from ordering relief.
        Other class actions excluded from this expanded diversity
    jurisdiction are specific actions, including claims brought by
    shareholders that solely involve:
              (1) Section 16(f)(3) of the Securities Act of 1933
            and section 28 (f)(5)(E) of the Securities Exchange Act
            of 1934;
              (2) The internal affairs or governance of a
            corporation or other form of incorporated business
            enterprise; and
              (3) The rights, duties, and obligations relating to
            any security.
        H.R. 2341 establishes a new section providing for removal
    of class actions to federal court where the action is filed in
    State court and the federal court has original jurisdiction.
    While the existing general removal provisions contained in
    chapter 89 of Title 28 would continue to apply, the new removal
    section overrides circumstances where these statutes may be in
    conflict. Generally, the new removal provision preserves all
    facets of the expanded diversity jurisdiction established by
    the bill and provides three distinctive features:
              (1) Unnamed class members (plaintiffs) may remove to
            federal court class actions in which their claims are
            being asserted within 30 days after formal notice.
            Under current rules only the defendants are allowed to
            remove.\37\
    ---------------------------------------------------------------------------
        \37\ In 1875, the right to remove was extended to plaintiffs as
    well as defendants, but the experiment was short-lived, and in 1887,
    the predecessor of 28 U.S.C. 1441 once again restricted removal to
    defendants only. In individual cases, this reflects the fact that the
    plaintiff has chosen voluntarily to submit to the jurisdiction of the
    state court by choosing to file suit there. This rationale does not
    apply in the case of putative plaintiff class members who did not
    control the decision as to where to bring a class action; See 28 U.S.C.
    1446.
    ---------------------------------------------------------------------------
              (2) Removal of class actions to federal court would
            be available to (a) any defendant without the consent
            of all defendants, (b) any named plaintiff class member
            without the consent of all members, or (c) any unnamed
            plaintiff class member after the class has been
            certified by a state court. Current removal rules--
            which apply only to defendants--require the consent of
            all defendants.
              (3) Section 1446 of Title 28 requires that a notice
            of removal be filed within 30 days of the receipt by
            the defendant of a copy of the pleading which gives
            notice of grounds for removal. However, that section
            bars the removal of cases to federal court after one
            year, even if the basis for removal does not occur
            until after that time. H.R. 2341 would eliminate the
            bar to removal of class actions after one year, and
            would apply the same removal notice rules to
            plaintiffs.
        Under H.R. 2341, if a removed class action is found not to
    meet the requirements for proceeding on a class basis, the
    federal court would dismiss the action without prejudice.
    Plaintiffs would then be permitted to re-file their claims in
    state court, presumably in a form amended either to fall within
    one of the types of cases not considered interstate class
    actions, or to be maintainable as a class action under federal
    Rule 23. The statute of limitations on individual class
    members' claims in such a dismissed class action would not run
    during the period the action was pending in federal court.
        Finally, H.R. 2341 provides for an immediate appeal of an
    order by a Federal District Court granting or certifying class
    certification under Rule 23 of the Federal Rules of Civil
    Procedure. Accordingly, discovery pursuant to the certification
    order at issue will be stayed until the Federal Circuit court
    has ruled on the appeal in question. However, the court may
    order discovery by motion and a showing of necessity by a party
    to the action.
        Legislative History.--H.R. 2341 was introduced by
    Congressmen Bob Goodlatte and Rick Boucher on June 27, 2001 and
    ultimately garnered 56 cosponsors. The full committee conducted
    a hearing on the bill on February 6, 2002, those testifying
    include: Ms. Hilda Bankston of Jefferson County, Mississippi;
    Mr. John Beisner, Esq., O'Melveny & Myers LLP; Mr. Peter
    Detkin, Vice President, Assistant General Counsel, Intel
    Corporation; and Mr. Andrew Friedman, Esq., Bonnett, Fairbourn,
    Friedman & Balint. Following two days of markup on March 6th
    and 7th, the full committee ordered the bill reported to the
    House, as amended, by a vote of 16 ayes to 10 nays. H.R. 2341
    was reported to the House on March 12, 2002, (House Report No.
    107-370. By a vote of 233 ayes to 190 nays, the House passed
    H.R. 2341 on March 13, 2002. While the Senate Judiciary
    Committee conducted a hearing on July 31, 2002 on companion
    legislation S. 1712 no additional legislative activity was
    conducted on this legislation by the Senate.

    H.R. 2926, the ``Air Transportation Safety and System Stabilization
            Act''

        Summary.--Litigation management provisions were necessary
    to address the exposure of air carriers to potentially
    limitless and bankrupting lawsuits for damages arising out of
    the terrorist attacks of September 11, 2001. H.R. 2926 included
    provisions creating a ``September 11th Victims Compensation
    Fund'' to be administered by a Special Master. The Fund was
    created to provide compensation to any individual (or relatives
    of a deceased individual) who was physically injured or killed
    as a result of the terrorist-related aircraft crashes of
    September 11, 2001. H.R. 2926 also included provisions
    providing that notwithstanding any other provision of law,
    liability for all claims, whether for compensatory or punitive
    damages, arising from the terrorist-related aircraft crashes of
    September 11, 2001, against any air carrier shall not be in an
    amount greater than the limits of the liability coverage
    maintained by the air carrier. H.R. 2926 also provided that
    there shall exist a Federal cause of action for damages arising
    out of the hijacking and subsequent crashes of American
    Airlines flights 11 and 77, and United Airlines flights 93 and
    175, on September 11, 2001, that would be the exclusive remedy
    for damages arising out of the hijacking and subsequent crashes
    of such flights. The substantive law for decision in any such
    suit shall be derived from the law, including choice of law
    principles, of the State in which the crash occurred unless
    such law is inconsistent with or preempted by Federal law. H.R.
    2926 also provided that the United States District Court for
    the Southern District of New York shall have original and
    exclusive jurisdiction over all actions brought for any claim
    (including any claim for loss of property, personal injury, or
    death) resulting from or relating to the terrorist-related
    aircraft crashes of September 11, 2001. H.R. 2926 also provided
    that nothing in such provisions shall in any way limit any
    liability of any person who is a knowing participant in any
    conspiracy to hijack any aircraft or commit any terrorist act.
        Legislative History.--On September 21, 2001, H.R. 2926 was
    referred to the House Judiciary Committee. That same day, H.R.
    2926 passed the House by the yeas and nays, 356-54, with 2
    Members voting present. On September 22, 2001, H.R. 2926 was
    signed by the President and became Public Law No. 107-42.

    H.R. 3210, the ``Terrorism Risk Insurance Act''

        Summary.--As introduced, H.R. 3210 contained a prohibition
    on punitive damages and a provision providing that a defendant
    would be liable only for the amount of noneconomic damages
    allocated to the defendant in direct proportion to the
    percentage of responsibility of the defendant for the harm to
    the claimant. These provisions applied only in actions brought
    for damages claimed by an insured pursuant to, or in connection
    with, any commercial property and casualty insurance. These
    provisions failed to protect innocent Americans and American
    businesses who were the victims of terrorist attacks and who
    might be sued by non-insureds for damages arising out of
    terrorist attacks.
        Legislative History.--H.R. 3210 was introduced by
    Representative Oxley, Chairman of the House Financial Services
    Committee, on November 1, 2001. On November 19, 2001, it was
    referred sequentially to the House Committee on the Judiciary
    for a period ending not later than November 26, 2001 for
    consideration of such provisions of the bill and amendment as
    fall within the jurisdiction of that committee pursuant to
    clause 1(k), rule X. On November 26, 2001, H.R. 3210 was
    discharged by the Committee on Judiciary. Pursuant to H. Res.
    297, H.R. 3357 was adopted as an amendment in the nature of a
    substitute to H.R. 3210. H.R. 3210 passed the House on November
    29, 2001, by the yeas and nays, 227-193. On November 14, 2002,
    the conference report on the bill, H. Rept. 107-779, was agreed
    to by the House by voice vote. On November 26, 2002, H.R. 3210
    was signed by the President and became Public Law No. 107-297.

    H.R. 4600, Help Efficient, Accessible, Low-cost, Timely Healthcare Act
            (the HEALTH Act)

        Summary.--A national insurance crisis is ravaging the
    nation's health care system. Skyrocketing insurance rates have
    caused major insurers to drop coverage, and decimated the ranks
    of doctors and other health care providers by forcing them to
    abandon patients and practices, particularly in high-risk
    specialties such as obstetrics and emergency medicine. The
    problem is particularly acute for practitioners in managed
    care, where prescribed fixed costs prevent them from recouping
    insurance costs. The HEALTH Act, modeled after California's
    quarter-century old and highly successful health care
    litigation reforms, addresses the current crisis and will make
    health care delivery more accessible and cost-effective in the
    United States. Its time-tested reforms will make medical
    malpractice insurance affordable again, encourage health care
    practitioners to maintain their practices, reduce health care
    costs for patients, and save billions of dollars a year in
    federal taxpayer dollars by significantly reducing the
    incidence of wasteful ``defensive medicine'' without increasing
    the incidence of adverse health outcomes. Its enactment will
    particularly help traditionally under-served rural and inner
    city communities, and women seeking obstetrics care. It will
    create a ``fair share'' rule, by which damages are allocated
    fairly, in direct proportion to fault, reasonable guidelines--
    but not caps--on the award of punitive damages, and a rule
    preventing unfair and wasteful windfall double-recoveries.
    Finally, it will accomplish reform without in any way limiting
    compensation for 100% of plaintiffs' economic losses, their
    medical costs, their lost wages, their future lost wages,
    rehabilitation costs, and any other economic out of pocket loss
    suffered as the result of a health care injury. The HEALTH Act
    also does not preempt any State law that caps non-economic
    damages, such as those for pain and suffering.
        Legislative History.--Rep. Greenwood, along with Rep. Cox,
    Murtha, Toomey, Moran of Virginia, Peterson of Minnesota,
    Stenholm, Lucas of Kentucky, Pickering, and Weldon of Florida,
    introduced H.R. 4600 on April 25, 2002. The Judiciary Committee
    held a mark-up session on H.R. 4600 on July 23, 2002, and on
    September 10, 2002, when it reported the bill favorably as
    amended by voice vote. The Committee filed its report on
    September 25, 2002, H. Rept. 107-693, Part I. On September 26,
    2002, the House passed H.R. 4600 by the yeas and nays: 217-203.

                         MATTERS HELD AT FULL COMMITTEE

    H.R. 7, the ``Community Solutions Act''

        Summary.--Government should ensure that members of
    organizations seeking to take part in government programs
    designed to meet basic and universal human needs are not
    discriminated against because of their religious views. The
    rules for participation in programs of government funding
    through grants and cooperative agreements, and through indirect
    forms of assistance, for the provision of social services must
    assess eligibility to participate without regard to the
    religious character of an organization, and any religious
    beliefs that organization might hold, or the intensity of those
    beliefs, should not be a basis for rejecting their
    participation out-of-hand. Indeed, faith-based organizations
    often allow their beneficiaries greater and more flexible
    access to the social services they offer.
        These so-called ``charitable choice'' principles, embodied
    in H.R. 7, allow for the public funding of faith-based
    organizations on the same basis as other nongovernmental
    organizations and permit them to maintain their religious
    character by choosing their staff, board members, and methods.
    These principles also protect the rights of conscience of their
    clients and ensure that alternative providers that are
    unobjectionable to them on religious grounds are available.
        ``Charitable choice'' is not new. Examples of existing laws
    that include ``charitable choice'' provisions are the Substance
    Abuse and Mental Health Services Administration, P.L. 106-310,
    42 U.S.C. Sec. 300x-65; the Community Services Block Grant Act
    of 1998, Pub. L. No. 105-285, 42 U.S.C. Sec. 9920; the Welfare
    Reform Act of 1996, P.L. 104-193, 42 U.S.C. Sec. 604a; and the
    Community Renewal Tax Relief Act of 2000, P.L. 106-554, 42
    U.S.C. Sec. 290kk-1. Each was signed into law by President
    Clinton.
        H.R. 7 simply seeks to apply the tested principles of
    charitable choice, which in the case of welfare services have
    been federal law for five years, to cover additional federal
    programs, bringing greater clarity and constitutional adherence
    to a wider scope of federal funding programs. The charitable
    choice language in H.R. 7 has been carefully tailored to
    respond to discussions of earlier versions of the provision.
    New language emphasizes that government funding of a religious
    service provider is not intended to endorse religion but rather
    to purchase effective assistance; makes it clearer that
    beneficiaries may not be coerced into religious observance, but
    instead inherently religious activities such as worship and
    proselytization must be privately funded, voluntary, and
    offered separately from the government-funded services;
    requires religious organizations to sign a certificate
    acknowledging this duty of non-coercion; clearly obligates
    government to inform clients of their religious liberty rights;
    emphasizes that the civil rights exemption that allows
    religious organizations to take religion into account in hiring
    decisions does not remove their obligation to respect the other
    non-discrimination requirements in federal law from which they
    are not already exempt; requires religious organizations to
    keep direct government funds separate from other funds to
    enable government to audit the books of a religious
    organization without entangling itself in strictly religious
    matters; emphasizes that religious organizations that receive
    federal funds are held to the same performance standards as
    well as the same accounting standards as other grantees;
    requires religious organizations to conduct an annual self
    audit to ensure compliance and corrective action; provides for
    $50 million in new federal funding for technical assistance to
    novice and small nongovernmental organizations to help ensure
    that they have the knowledge and administrative capacity to
    comply with these and other federal requirements; and clarifies
    how charitable choice principles apply when an organization
    that receives federal funds in turn subgrants funds to other
    organizations.
        Under H.R. 7, religious organizations receiving grants
    under covered programs may not use the provided funds for
    ``sectarian instruction, worship, or proselytization,'' and a
    beneficiary's taking advantage of a social service program
    cannot be conditioned on taking part in such activities.
    Existing charitable choice law, part of the Welfare Reform Act
    of 1996, contains an explicit protection of a beneficiary's
    right to ``refus[e] to actively participate in a religious
    practice,'' thereby insuring a beneficiary's right to avoid any
    unwanted religious practices, and a similar provision in H.R. 7
    makes clear that participation, if any, in sectarian
    instruction, worship, or proselytization must be voluntary and
    noncompulsory.
        H.R. 7 also requires a religious organization receiving
    funds under a covered program to sign a certificate of
    compliance that certifies that the organization is aware of and
    will comply with the provisions against the use of government
    funds for inherently religious activities. This certificate,
    which has the purpose of impressing upon both the government
    grantor and the faith-based organization the importance of both
    voluntariness and the need to separate sectarian instruction,
    worship, and proselytization, must be filed with the government
    agency disbursing the funds.
        Subsection (g) of the Community Solutions Act also protects
    beneficiaries of charitable choice programs by requiring the
    presence of an alternative that is unobjectionable to
    beneficiaries on religious grounds when a religious
    organization is providing social services. Subsection (g) also
    requires the appropriate Federal, State, or local governmental
    agency to give notice to beneficiaries receiving services under
    the covered programs of their right to an alternative that is
    unobjectionable to them on religious grounds.
        Further, charitable choice principles prohibit faith-based
    organizations taking part in programs covered by Title II of
    H.R. 7 from discriminating on the basis of religion against
    those who seek to be beneficiaries of such programs. Subsection
    (m) of the Community Solutions Act also provides that
    intermediaries authorized to act under a grant or other
    agreement to select nongovernmental organizations to provide
    assistance under any program covered by Title II of H.R. 7 have
    the same duties under Title II as the government when selecting
    or otherwise dealing with subgrantors, but the intermediary
    grantor, if it is a religious organization, shall retain all
    other rights of a religious organization under Title II.
        Misguided understandings of the Constitutional have for too
    long deterred Federal, State, andlocal governments from even
    inviting religious organizations to participate in informational
    meetings designed for those willing to compete for social service
    funds. H.R. 7 simply make clear to the federal government, states, and
    localities, that if they provide a grant to or enter into a cooperative
    agreement with religious organizations under charitable choice
    principles, they need not fear that their actions are unconstitutional.
        Legislative History.--Representative Watts, Representative
    Hall, and Speaker Hastert introduced H.R. 7, the ``Community
    Solutions Act,'' on March 29, 2001. On June 7, 2001, the
    Subcommittee on the Constitution held an oversight hearing on
    the ``Constitutional Role of Faith-Based Organizations in
    Competitions for Federal Social Service Funds.'' The following
    witnesses testified at the hearing: Carl Esbeck, Senior Counsel
    to the Deputy Attorney General, United States Department of
    Justice; Douglas Laycock, Associate Dean for Research and Alice
    McKean Young Regents Chair in Law, The University of Texas
    School of Law; David N. Saperstein, Adjunct Professor of Law;
    Director, Religious Action, Center of Reform Judaism,
    Georgetown University Law Center; Ira C. Lupu, Louis Harkey
    Mayo Research Professor of Law, The George Washington
    University School of Law. On April 24, 2001, the Subcommittee
    on the Constitution held an oversight hearing on ``State and
    Local Implementation of Existing Charitable Choice Programs.''
    The following witnesses testified at the hearing: Dr. Amy
    Sherman, Senior Fellow, Welfare Policy Center, Hudson
    Institute; Reverend Donna Lawrence Jones, Cookman United
    Methodist Church, Philadelphia, Pennsylvania; Charles Clingman,
    Executive Director, Jireh Development Corporation, Cincinnati,
    Ohio; Reverend J. Brent Walker, Executive Director, Baptist
    Joint Committee on Public Affairs. On June 28, 2002, the
    Judiciary Committee held a mark-up session on H.R. 7 and
    reported the bill favorably as amended by the yeas and nays:
    20-5. The Committee filed its report on July 12, 2001, H. Rept.
    107-138, Part II. On July 19, 2001, the House passed H.R. 7 by
    the yeas and nays: 233-198.

    H.R. 169, the ``Notification and Federal Employee Antidiscrimination
            and Retaliation Act of 2001''

        Summary.--Chairman Sensenbrenner introduced H.R. 169, the
    ``Notification and Federal Employee Antidiscrimination and
    Retaliation Act of 2001,'' (No FEAR Act) on January 3, 2001.
    The bill requires that Federal agencies be accountable for
    violations of discrimination and whistleblower protection laws.
    H.R. 169 provides Federal employees throughout the Federal
    Government with additional on-the-job protection from illegal
    discrimination, retaliation, and other mistreatment by
    deterring and punishing government misconduct toward them.
        H.R. 169, the No FEAR Act, was in response to a year-long
    congressional investigation under the direction of Chairman
    Sensenbrenner as the Chairman of the Committee on Science of
    civil rights violations at the Environmental Protection Agency
    (EPA). When the EPA was questioned on its behavior, the agency
    responded that it had a great diversity record. When questioned
    about notifying employees of their rights under the various
    whistleblower provisions, the EPA responded that it was only
    required to notify the employees under one of the laws, not the
    others. When asked how the agency pays for judgements and
    settlements for discriminating or retaliating, the EPA
    responded such payments were made of the general treasury--not
    the Federal agencies. Following the hearings and the
    investigation, Federal employees in other agencies began
    contacting the Committee on Science with allegations of similar
    problems. Immediately after the October 2000 hearing, Chairman
    Sensenbrenner and Representatives Sheila Jackson Lee and Connie
    Morella introduced the No FEAR Act to rectify the three
    problems highlighted in the investigation. The bill was
    reintroduced on the first day of the 107th Congress.
        Legislative History.--On May 9, 2001, the Committee on the
    Judiciary held a legislative hearing on H.R. 169, the No FEAR
    Act. The four witnesses that testified were: Kweisi Mfume,
    President & CEO of the National Association for the Advancement
    of Colored People; J. Christopher Mihm, Director of Strategic
    Issues for the General Accounting Office; Bobby L. Harnage,
    Sr., National President of the American Federation of
    Government Employees, AFL-CIO; and Marsha Coleman-Adebayo,
    Ph.D, private citizen. The National Whistleblower Center also
    provided written testimony to the Committee regarding the need
    for the bill to protect whistleblowers. On May 23, 2001, the
    Committee met in open session and ordered favorably reported
    the bill, with an amendment in the nature of substitute, by
    voice vote, a quorum being present. The bill was reported to
    the House on June 14, 2001 (H. Rept. 107-101, Part I). On
    October 2, 2001, the bill passed the House by a recorded vote
    of 420 yeas to 0 nays (roll no. 360). On April 23, 2002, the
    bill passed the Senate with amendments by unanimous consent. On
    April 30, 2002, the House agreed to the Senate amendments by a
    recorded vote of 412 yeas to 0 nays (roll no. 117). The
    President signed the bill on May 15, 2002, and it became Public
    Law 107-174.

    H.R. 741, the ``Madrid Protocol Implementation Act''

        Summary.--Introduced by Representative Howard Coble, H.R.
    741 implements the Madrid Protocol, an international trademark
    treaty. It makes the process of registering marks in other
    countries more convenient and far less expensive for American
    citizens and businesses.
        Legislative History.--On March 8, 2001, the Committee met
    in open session and ordered favorably reported H.R. 741 without
    amendment, by voice vote. On March 13, 2001, the Committee
    reported S. 741 to the House (H. Rept. 107-19). On March 14,
    2001, the House passed H.R. 741 under suspension of the rules,
    by voice vote. The provisions of H.R. 741 were later
    incorporated into H.R. 2215, the ``21st Century Department of
    Justice Appropriations Authorization Act,'' which is Public Law
    107-273.

    H.R. 802, the ``Public Safety Officer Medal of Valor Act of 2001''

        Summary.--Representative Lamar Smith (R-TX) introduced H.R.
    802, the ``Public Safety Officer Medal of Valor Act of 2001,''
    on February 28, 2001. While law enforcement agencies at all
    levels present their own awards and medals to those who
    demonstrate bravery, the Federal Government has no medal in
    recognition of acts of courage and valor demonstrated by public
    safety officers. This bill establishes a national medal, to be
    given by the President in the name of the United States
    Congress, to public safety officers who display extraordinary
    valor above and beyond the call of duty. The Public Safety
    Medal of Valor will be the highest national award for valor by
    a public safety officer. The Attorney General may select up to
    five recipients of the medal each year. The legislation creates
    a Medal of Valor Review Board, composed of members appointed by
    Congress and the President, to make recommendations to the
    Attorney General as to persons deserving of the medal. The
    Board will be staffed by a new office within the Department of
    Justice known as the National Medal of Valor Office.
        Legislative History.--On March 8, 2001, the Committee met
    in open session and ordered favorably reported the bill, H.R.
    802, by voice vote, a quorum being present. The bill was
    reported to the House on March 12, 2001 (H. Rept. 107-15). The
    House passed the bill on March 22, 2001, by a recorded vote of
    414 yeas to 0 nays (Roll no. 59). On May 14, 2001, the Senate
    passed the bill by unanimous consent. The President signed the
    bill on May 30, 2001, and it became Public Law 107-12.

    H.R. 860, the ``Multidistrict, Multiparty, Multiforum Trial
            Jurisdiction Act of 2001''

        Summary.--Introduced by Representative F. James
    Sensenbrenner, Jr., H.R. 860 would allow a designated U.S.
    district court (a so-called ``transferee'' court) under the
    multidistrict litigation statute to retain jurisdiction over
    referred cases arising from the same fact scenario for purposes
    of determining liability and punitive damages, or to send them
    back to the respective courts from which they were transferred.
    In addition, the legislation would streamline the process by
    which multidistrict litigation governing disasters are
    adjudicated.
        Legislative History.--On March 8, 2002, the Committee met
    in open session and favorably reported H.R. 860 without
    amendment, by voice vote. H.R. 860 was reported by the
    Committee to the House on March 12, 2001 (H. Rept. 107-14). On
    March 14, 2001, the House passed H.R. 860 under suspension of
    the rules, by voice vote. The provisions of H.R. 860 were later
    incorporated into H.R. 2215, the ``21st Century Department of
    Justice Appropriations Authorization Act,'' which is Public Law
    107-273.

    H.R. 861, to make technical amendments to Section 10 of Title 9, United
            States Code (Pub. L. No. 107-169)

        Summary.--Title 9 of the United States Code pertains to
    domestic and international arbitration law. Chapter 1 of title
    9 contains the title's general provisions, including section
    10. Subsection 10(a) enumerates the grounds for which a Federal
    district court may vacate an arbitration award and authorizes
    the court to order a rehearing, under certain circumstances. As
    drafted, subsection 10(a) consists of five paragraphs, four of
    which enumerate the grounds for vacating an arbitration award.
    The fifth paragraph, however, is clearly intended to be a
    separate provision of subsection 10(a) as it specifies the
    basis of the court's authority to direct a rehearing by the
    arbitrator.
        H.R. 861 corrects this drafting error, which has existed
    from the legislation's original enactment in 1925, by simply
    converting the fifth paragraph into a separate subsection of
    section 10, namely, subsection 10(b), and making conforming
    grammatical and technical revisions to section 10. H.R. 861 is
    identical to legislation introduced by Representative George W.
    Gekas (R-PA) and passed by the House in the 105th and 106th
    Congresses.
        Legislative History.--Representative Gekas introduced H.R.
    861 on March 6, 2001. Given the noncontroversial nature of H.R.
    861 (for example, it has often been referred to as the ``Comma
    Bill''), no hearings were held on this legislation and it was
    retained by the Committee for its consideration. On March 8,
    2001, the Committee ordered favorably reported the bill without
    amendment by voice vote. Thereafter, the Committee filed its
    report on March 12, 2001 as H. Rept. 107-16.
        On March 14, 2001, the House passed the bill under the
    suspension of the rules by a vote of 413 to 0. H.R. 861 was
    received in the Senate on the following day and referred to the
    Senate Committee on the Judiciary. Thereafter, the Senate
    Judiciary Committee reported the bill without amendment and
    without a written report on December 13, 2001. On April 18,
    2002, the Senate passed H.R. 861 without amendment by unanimous
    consent. The bill was thereafter signed into law on May 7, 2002
    as Public Law 107-169.

    HR. 1209, the ``Child Status Protection Act'' (Public Law 107-208)

        Summary.--The Immigration and Nationality Act provides two
    avenues for family-based immigrants to acquire permanent
    resident status. Immediate relatives (spouses, unmarried
    children under 21, and parents) of United States citizens may
    receive such status without numerical limitation. Certain other
    relatives of U.S. citizens (unmarried sons and daughters 21 or
    over, married sons and daughters, and siblings) and of
    permanent resident aliens (spouses, unmarried children under
    21, unmarried sons and daughters 21 or over) may receive such
    status as family-based preference immigrants, which are subject
    to numerical limitations each year.
        Under prior law, the date at which the age of an alien was
    measured for purposes of eligibility for an immigrant visa was
    the date the adjustment of status application filed on his or
    her behalf was processed by INS, not the date that the
    preceding immigrant visa petition was filed on their behalf.
    With the INS taking up to 3 years to process applications,
    aliens who were under 21 when their petitions were filed often
    found themselves over 21 by the time their applications were
    processed. When a child of a U.S. citizen ``ages out'' by
    turning 21, the child automatically shifted from the immediate
    relative category to the family first preference category. This
    put the child at the end of long waiting list for a visa. H.R.
    1209 provides that the determination of whether the unmarried
    son or daughter of a citizen is considered a child (under 21)
    is to be made using the alien's age as of the time an immigrant
    visa petition is filed on his or her behalf.
        This rule also applies: (1) when permanent resident parents
    petition for immigrant visas for their sons and daughters and
    later naturalize (making the sons and daughters potentially
    eligible for immediate relative visas); and (2) when citizen
    parents petition for immigrant visas for their married sons and
    daughters, and the sons and daughters later divorce (making
    them potentially eligible for immediate relative visas).
        The Act also extends age-out protection to cover:
         Children of Permanent Residents. When a child of a
    permanent resident turns 21, he or she goes from the second
    preference ``A'' waiting list to the second preference ``B''
    waiting list, which is much longer.
         Children of Family and Employer-Sponsored
    Immigrants and Diversity Lottery Winners.When an alien receives
    permanent residence as a preference-visa recipient or a winner of the
    diversity lottery, a minor child receives permanent residence at the
    same time. After the child turns 21, the parent has to apply for him or
    her to be put on the second preference ``B'' waiting list.
         Children of Asylees and Refugees. When an alien
    receives asylum or is granted refugee status, a minor child
    receives permanent residence at the same time as the parent.
    After the child turns 21, the parent has to apply for him or
    her to be put on the second preference ``B'' waiting list.
        Finally, the Act fixes a troubling anomaly in the
    immigration law. Under prior law, when a permanent resident
    naturalized who had sponsored adult sons and daughters for
    preference visas, they moved from the second preference ``B''
    category (for the adult sons and daughters of permanent
    residents) to the first preference category (for the adult sons
    and daughters of citizens). Normally, the wait for a first
    preference visa is much shorter than the wait for a second
    preference ``B'' visa. However, currently this is not the case
    for the sons and daughters of immigrants from the Philippines.
    The line actually gets longer for the sons and daughters when
    the parent naturalizes. The Act ameliorates this impact by
    allowing an adult son or daughter of a naturalized citizen who
    has already been sponsored for permanent residence to choose
    not to be transferred from the second preference ``B'' category
    to the first preference category.
        Legislative History.--On March 26, 2001, Subcommittee on
    Immigration and Claims Chairman George Gekas introduced H.R.
    1209. On April 4, 2001, the Judiciary Committee ordered H.R.
    1209 reported by a voice vote. On April 20, 2001, the Judiciary
    Committee reported H.R. 1209 (H. Rept. 107-45). On June 6,
    2001, the House passed H.R. 1209 under suspension of the rules
    by a vote of 416-0. On May 16, 2002, the Senate Judiciary
    Committee ordered H.R. 1209 reported, as amended, and reported
    H.R. 1209 without a written report. On June 13, 2002, the
    Senate passed H.R. 1209, as amended, by unanimous consent. On
    July 22, 2002, the House passed H.R. 1209, as amended, by the
    Senate under suspension of the rules by a voice vote. On August
    6, 2002, the President signed H.R. 1209 into law (Public Law
    107-208).

    H.R. 1701, the ``Consumer Rental Purchase Agreement Act''

        Summary.--While H.R. 1701 establishes a ``Federal floor''
    for consumer protection in rental-purchase transactions in many
    states, it preempts the existing law regulating rent-to-own
    transactions in Wisconsin, Minnesota, New Jersey, Vermont, and
    North Carolina. Provisions dealing with civil liability,
    government liability, and criminal liability were sequentially
    referred to the Committee on the Judiciary.
        Legislative History.--H.R. 1701 was introduced by the
    Congressman Walter Jones on May 3, 2001 and ultimately garnered
    83 cosponsors. H.R. 1701 was reported, as amended, by the
    Committee on Financial Services on June 27, 2002. (House Report
    No. 107-590 Part I) and provisions within the jurisdiction of
    the Committee on the Judiciary were sequentially referred for a
    time not later than September 9, 2002. The Committee on the
    Judiciary conducted no hearings on H.R. 1701, and ordered
    reported the bill, as amended, on September 5, 2002 by a vote
    of 14 ayes to 12 nays. The Committee on the Judiciary reported
    H.R. 1701 on September 9, 2002, (House Report No. 107-590 Part
    II). On September 18, 2002, the House of Representatives passed
    H.R. 1701 by a vote of 215 ayes to 201 nays. H.R. 1701 was
    received in the Senate and referred to the Senate Committee on
    Banking, Housing, and Urban Affairs, no legislative action was
    taken.

    H.R. 2068, to revise, codify, and enact without substantive change
            certain general and permanent laws, related to public
            buildings, property, and works, as title 40, United States
            Code, ``Public Buildings, Property, and Works''

        Summary.--H.R. 2068 was prepared by the Office of the Law
    Revision Counsel as part of the program, required by 2 U.S.C.
    285b, to prepare and submit to the Committee on the Judiciary,
    one title at a time, a complete compilation, restatement, and
    revision of the general and permanent laws of the United
    States. The bill makes no substantive change in existing law.
    Rather, the bill removes ambiguities, contradictions, and other
    imperfections from existing law and repeals obsolete,
    superfluous, and superseded provisions.
        H.R. 2068 was introduced on June 6, 2001, and referred to
    the Committee on the Judiciary in accordance with clause
    1(k)(16) of rule X of the Rules of the House of
    Representatives. Upon introduction, the bill was circulated for
    comment to interested parties including committees of Congress
    and agencies and departments of the Government. The Office of
    the Law Revision Counsel reviewed and considered all comments,
    contacting parties to resolve outstanding questions. Some
    comments, suggesting substantive changes, could not be
    incorporated in the restatement because this bill makes no
    substantive change in existing law. Other comments, proposing
    changes to improve organization and clarity, were incorporated
    in the restatement. The Office of the Law Revision Counsel has
    prepared an amendment in the nature of a substitute which
    reflects the changes resulting from the review and comment
    process.
        Legislative History.--Chairman Sensenbrenner introduced
    H.R. 2068 on June 6, 2001, and it was referred to the
    Committee. On May 8, 2002, the Committee ordered reported H.R.
    2068, with an amendment, by voice vote. On June 11, 2002, the
    House passed amended H.R. 2068, by a voice vote. On August 1,
    2002, the Senate passed H.R. 2068, without amendment by
    unanimous consent. H.R. 2068 was signed by the President on
    August 21, 2002, and became Public Law 107-217.

    H.R. 2137, the ``Criminal Law Technical Amendments Act of 2001''

        Summary.--The last half of the 20th century saw an
    explosion of federal criminal statutes. According to a study
    conducted by the Task Force on Federalization of Criminal Law
    of the Criminal Law Section of the American Bar Association,
    ``[m]ore than 40% of the federal criminal provisions enacted
    since the Civil War have been enacted since 1970.'' This
    explosion of lawmaking has resulted in numerous technical
    mistakes which litter the criminal code. This legislation
    corrects those mistakes.
        H.R. 2137, introduced by Chairman Sensenbrenner is
    cosponsored by Reps. Conyers, Smith of Texas, and Scott of
    Virginia. The bill makes over 60 clerical and technical
    corrections to title 18and other criminal laws. The technical
    amendments are related to criminal law and procedure. This bill makes
    over 60 separate technical changes to various criminal statutes by
    correcting missing and incorrect words, margins, punctuation,
    redundancies, outmoded fine amounts, cross references, and table of
    sections. These amendments resulted from suggestions and extensive
    consultation between the majority and minority and the Office of
    Legislative Counsel and the Office of Law Revision Counsel.
        Legislative History.--Chairman Sensenbrenner introduced
    H.R. 2137 on June 12, 2001, and it was referred to the
    Committee. On June 26, 2001, the Committee conducted a markup
    session on H.R. 2137. On June 26, 2001, the Committee ordered
    H.R. 2137 reported by a voice vote. On July 10, 2001, the
    Committee filed its report, H. Rept. 107-126. On July 24, 2001
    the House passed amended, H.R. 2137 by a vote of 374-0. For
    further action see H.R. 2215, which became Public law 107-273
    on November 2, 2002.

    H.R. 2215, the ``21st Century Department of Justice Appropriations
            Authorization Act'' (Public Law Number 107-273)

        Summary.--H.R. 2215, the ``21st Century Department of
    Justice Appropriations Authorization Act,'' is a comprehensive
    authorization of the United States Department of Justice
    (``DOJ'' or the ``Department'').
        The Department of Justice has not been formerly authorized
    since 1979. Since that time, several attempts to authorize the
    Department have failed either because of poor timing or because
    the authorization bills were compromised by controversial
    amendments. H.R. 2215 represents the first statutory
    authorization of the Department and its various components in
    nearly a quarter century. H.R. 2215 also contains several
    additional legislative proposals, many of which passed the
    House during the 107th Congress. Through authorization,
    legislative committees establish management objectives and
    provide expertise and guidance to the Appropriations Committee.
        The following is a detailed summary of H.R. 2215, as signed
    into law on November 2, 2002.
        Section 101 authorizes appropriations to carry out the work
    of the various components of the Department of Justice for
    fiscal year 2002. Section 102 authorizes appropriations to
    carry out the work of the various components of the Department
    of Justice for fiscal year 2003. Section 103 authorizes the
    Attorney General to transfer 200 additional Assistant U.S.
    Attorneys from among the six litigating divisions at the
    Justice Department's headquarters (Main Justice) in Washington,
    D.C., to the various U.S. Attorneys offices around the country.
    Section 104 adds 94 additional U.S. Attorneys to work with
    State and local law enforcement for identification and
    prosecution of violations of Federal firearms laws, especially
    in and around schools.
        Section 201 sets out the Attorney General's authority to
    use appropriated funds to carry out his official duties.
    Section 202 requires the Attorney General to submit a report to
    Congress if: (1) any officer of the Department of Justice
    establishes a formal or informal policy to refrain from
    enforcing any provision of Federal law, or any rules,
    regulations, programs or policies within the responsibility of
    the Attorney General on the grounds that such a provision is
    unconstitutional or within the jurisdiction of the judicial
    branch: (2) the Attorney General decides to challenge the
    constitutionality of any Federal law, rule, regulation, or
    policy, or declines to defend the constitutionality of Federal
    law rule, regulation, or policy; or (3) approves the settlement
    of a claim against the United States that exceeds or likely to
    exceed $2 million, or any agreement, consent decree or order
    that provides injunctive or other nonmonetary relief that
    exceeds 3 years. Section 203 amends the Omnibus Crime Control
    and Safe Streets Act of 1968 to clarify that grants or
    contracts to the Bureau of Justice Assistance Grant Programs
    are used for law enforcement or law enforcement support.
    Section 204 makes miscellaneous amendments to the Department.
    Section 204 makes technical amendments to section 524(c) of
    title 28, United States Codes, clarifies the Attorney General's
    authority to transfer property of marginal value, and requires
    the use of standard criteria for the purpose of categorizing
    offenders, victims, actors, and those acted upon in any data,
    records, or other information acquired, collected, classified,
    preserved, or published by the Attorney General for any
    statistical, research, or other aggregate reporting purpose. It
    also requires the Attorney General to notify Congress in
    writing of any civil asset forfeiture award greater than
    $500,000. Section 205 requires the Attorney General to submit
    to the Committees on the Judiciary and Appropriations of each
    House of Congress a report: (1) identifying and describing
    every grant, cooperative agreement that was made for which
    additional or supplemental funds were provided in the
    immediately preceding year; (2) identifying and reviewing every
    Office of Justice Programs grant, cooperative agreement, or
    programmatic contract. Section 206 provides clarifying
    amendments to title 28, United States Code, relating to the
    enforcement of Federal criminal law. Section 207 allows the
    payment of a retention bonus and other extended assignment
    incentives to retain law enforcement personnel in U.S.
    territories, commonwealths and possessions.
        Section 301 repeals open-ended authorization of
    appropriations for the National Institute of Corrections and
    United States Marshals Service. Section 302 makes several minor
    clarifying amendments to title 18, United States Code. Section
    303 requires the President (as he may judge necessary and
    expedient) to submit to the House and Senate Committees on the
    Judiciary proposed legislation authorizing appropriations for
    the Department of Justice for fiscal years 2004 and 2005.
    Section 304 directs the Attorney General to conduct a study
    within six months of enactment to assess the number of untested
    rape examination kits that currently exist nationwide and
    submit the findings to Congress. Section 305 would require the
    Attorney General to report to Congress on the use of DCS 1000
    (Project Carnivore) under a title 18 U.S.C. 3123 order, which
    is a pen register or trap and trap order and under a title 18
    U.S.C. 2518 order, which is a wiretap order. Generally, law
    enforcement will need a wiretap order, pen/trap register or
    search warrant for surveillance, depending the information
    sought. A pen register captures the outgoing numbers or email
    addresses (the to's) and a trap and trace device captures the
    incoming numbers or email addresses (the from's). A wiretap
    allows law enforcement to intercept live communications. DCS
    1000 is an electronic surveillance system used by the FBI to
    filter and conduct electronic surveillance through wire tap,
    pen register and trap and trace investigations for
    communications occurring over computer networks. The system is
    installed on the network of an Internet Service Provider to
    monitor communications on the network and record messages sent
    or received by a targeted user. The Federal Bureau of
    Investigation (FBI) initially called the system ``Carnivore''
    because the system could get to ``the meat'' of an enormous
    quantity of data. The FBI has explained that the system
    provides the FBI with the ability to intercept and collect only
    the communications subject to the lawful order and ignore
    communications the FBI is not authorized to intercept. The
    reports will provide Congress with a better understanding of
    the FBI's use of this system.
        Section 306 requires the Attorney General to submit (within
    six months of enactment of this Act) a report to the chairman
    and ranking member of the House and Senate Committees on the
    Judiciary, detailing the distribution and allocation of
    appropriated funds, attorneys and per-attorney workloads, for
    each Office of United States Attorney except those at the
    Justice Management Division. Section 307 expands the purposes
    for truth-in-sentencing and violent offender grants to allow
    use of these funds to establish separate detention facilities,
    correctional staff and an ombudsman for juvenile offenders.
    Section 308 provides the Inspector General discretion to
    investigate allegations of criminal wrongdoing or
    administrative misconduct by an employee of the Department of
    Justice, and allows the Inspector General to refer such
    allegations to the Office of Professional Responsibility or the
    internal affairs office of the appropriate component of the
    Department of Justice. Also requires the Inspector General to
    refer allegations of misconduct involving Department attorneys,
    investigators, or law enforcement personnel (where the
    allegations relate to official authority) to the Counsel,
    Office of Professional Responsibility. Section 309 requires the
    Inspector General to appoint an official from the IG's office
    to supervise and coordinate independent oversight of programs
    and operations of the FBI until September 30, 2004. Also
    requires the Inspector General to submit to the chairman and
    ranking member of the House and Senate Judiciary Committees an
    oversight plan of the FBI within 30 days after enactment of
    this Act. Section 310 authorizes $2 million to the Department
    to increase the Office of Inspector General by 25 employees, to
    fund expanded audit coverage of Office of Justice Programs
    (OJP) and to conduct special reviews of efforts by the FBI to
    implement recommendations of the Inspector General. This
    section further authorizes $1.7 million to the FBI to increase
    staffing of the Office of Professional Responsibility by 10
    special agents and 4 full time support employees.
        Section 311 requires the Attorney General to report to
    Congress (not later than 45 days after the end of fiscal year
    2002) on the number of investigations and prosecutions
    involving Federal law enforcement officials, Federal judges and
    other Federal officials in the FY 2002. Section 312 authorizes
    eight new permanent judgeships as follows: five judgeships in
    the Southern District of California, two judgeships in the
    Western District of Texas, and one judgeship in the Western
    District of North Carolina. It would also convert four
    temporary judgeships to permanent judgeships--one each in the
    Central District of Illinois, the Southern District of
    Illinois, the Northern District of New York, and the Eastern
    District of Virginia. Additionally, section 312 creates seven
    new temporary judgeships, one each in the Northern District of
    Alabama, the District of Arizona, the Central District of
    California, the Southern District of Florida, the District of
    New Mexico, the Western District of North Carolina, and the
    Eastern District of Texas. Finally, it extends the temporary
    judgeship in the Northern District of Ohio for five years.
        Section 401 creates a Violence Against Women Office (VAWO)
    in the Department of Justice, under the general authority of
    the Attorney General. The Office shall be headed by a Director
    who reports directly to the Attorney General and has final
    authority over all grants, cooperative agreements and contracts
    awarded by VAWO. The compromise version gives the Attorney
    General the discretion to place VAWO wherever he deems
    appropriate at the Department. Section 403 states that this
    Title shall take effect 90 days after the date of enactment of
    this amendment.
        Section 1101 provides for an increase in funds available
    for grants to the Boys and Girls Club for FY 2002-2005. The
    funds will allow the Boys and Girls Clubs to increase outreach
    efforts and increase membership nationwide.
        Section 2001 provides that the short title of this Act
    shall be the ``Drug Abuse Education, Prevention, and Treatment
    Act of 2001.'' Section 2101 authorizes the use of Residential
    Substance Abuse Treatment (RSAT) Grants for treatment and
    sanctions both during incarceration and after release. Section
    2102 would allow states to use RSAT funds to establish
    nonresidential aftercare programs as well. Additionally, this
    section requires that 10% of any funds under the RSAT program
    shall be used to make grants to local correctional facilities.
    Section 2103 allows revocation of probation or supervised
    release if an individual tests positive for illegal controlled
    substances more than 3 times over the course of 1 year. Section
    2201 requires the National Institute of Justice to conduct a
    study alternative drug-testing technologies and report its
    conclusions to Congress within one year after enactment of the
    Act. Section 2202 requires the President, in consultation with
    the Attorney General, and Secretary of Health and Human
    Services, to deliver a review of all Federal drug and substance
    abuse treatment and prevention programs and to recommend to
    Congress ways in which those programs could be streamlined,
    consolidated, simplified, coordinated, and made more effective.
        Section 2203 provides authority to expand research and
    disciplinary trials with treatment centers of the National Drug
    Abuse Treatment Clinical Trials Network.
        Section 2301 reauthorizes the Drug Courts program. However,
    this section improves the current system by consolidating all
    drug court programs into one office and incorporating the
    evaluation methods suggested by the General Accounting Office.
    Section 2302 authorizes appropriations for the Drug Courts
    Office to provide grants to states. Section 2303 requires the
    General Accounting Office (GAO) to assess the effectiveness of
    programs established with grants provided by the Drug Courts
    office, including specific data to be evaluated.
        Section 2411 establishes a Federal Reentry Center
    Demonstration project, under which individualized plans will be
    developed to reduce recidivism by offenders to be released from
    the Federal prison population. Section 2421 authorizes the
    Attorney General to make grants of up to $1 million to States,
    Territories, and Indian tribes to establish demonstration
    projects to promote successful reentry of criminal offenders.
        Section 2501 amends the Controlled Substances Act. Current
    law provides for a 3-year moratorium on a State's ability to
    preclude physicians, by regulation, from prescribing schedule
    III, IV, or IV drugs for maintenance or detoxification
    treatment (21 U.S.C. 823(g)(2)(I)). The moratorium ends on
    October 17, 2003. This section would prevent States from
    precluding the use of such drugs for maintenance or
    detoxification treatment for 3 years after the FDA approval of
    any drug in these categories. Section 2502 transfers a
    methamphetamine study requirement from the Institute of
    Medicine of the National Academy of Sciences to the National
    Institute on Drug Abuse. Section 2503 authorizes not less than
    $5 million for FY03 for regional antidrug training by the DEA
    for law enforcement entities in the South and Central Asia
    region. Section 2504 authorizes $75,000 for FY03 and FY04 to
    establish an exchange program for prosecutors, judges, and
    policy makers of Thailand to observe U.S. Federal prosecutors.
        Section 3001 raises the penalty for using physical force or
    attempting physical force to tamper with a witness from a
    maximum imprisonment of 10 years to a maximum imprisonment of
    20 years. This section also adds a conspiracy section to the
    tampering and retaliating against a witness statutes so that
    whoever conspires to commit any of the offenses shall be
    subject to the same penalties as those prescribed for the
    offense the commission of which was the object of
    theconspiracy. Section 3002 corrects certain statutes in title 18 and
    title 28 to allow for both the imposition of a fine and a sentence of
    imprisonment. Section 3003 allows Federal District Courts to reinstate
    any charges that are dismissed as a result of a plea agreement if the
    guilty plea is vacated on the motion of the defendant.
        Section 3004 amends the statute that allows the United
    States to appeal an order of a District Court dismissing an
    indictment to clarify that any part of any count of the
    dismissed indictment may be appealed. Section 3005 clarifies
    that the longer periods of supervised release set forth in
    title 21 for certain drug related crimes are not superseded by
    the shorter terms set forth in the general supervised release
    statute of title 18. Section 3006 clarifies that in certain
    cases where the court has reduced the term of imprisonment
    because the defendant is over the age of 70 and has served at
    least 30 years, the court may impose a period of supervised
    release.
        Section 3007 clarifies that the need to provide victims
    with restitution in a case is a factor to be considered by the
    court in determining whether to include a term of supervised
    release in a defendant's sentence.
        Section 4001 makes over 60 separate technical changes to
    various criminal statutes by correcting missing and incorrect
    words, margins, punctuation, redundancies, outmoded fine
    amounts, cross references, and other technical and clerical
    errors. This section incorporates H.R. 2137, which was reported
    from the House Judiciary Committee on July 10, 2001, and which
    passed the House on July 23, 2001. Section 4003 makes
    additional minor, technical corrections to Federal criminal
    statutes. Section 4004 further repeals outdated provisions in
    the criminal code. Section 4005 makes technical amendments to
    the USA Patriot Act. Section 4006 makes technical corrections
    to the International Convention for the Suppression of
    Terrorist Bombings.
        Section 5001 amends the Paul Coverdell National Forensic
    Sciences Improvement Act of 2000 to permit local crime labs to
    receive grants. Section 5002 authorizes necessary funds for
    fiscal years 2002 through 2007 for the Center for Domestic
    Preparedness of the Department of Justice; the Texas
    Engineering Extension Service of Texas A&M University; the
    Energetic Materials Research and Test Center of the New Mexico
    Institute of Mining and Technology; the Academy of
    Counterterrorist Education at Louisiana State University; the
    National Exercise, Test, and Training Center of the Department
    of Energy, located at the Nevada test site; the National Center
    for the Study of Counter-Terrorism and Cyber-Crime at Norwich
    University; and the Northeast Counterdrug Training Center at
    Fort Indiantown Gap, Pennsylvania.
        Section 11101 authorizes grants for the construction of
    memorials to honor the men and women in the United States who
    were killed or disabled while serving as law enforcement or
    public safety officers. Section 11002 adds sections 1956 and
    1957 of Title 18 (money laundering) to the list of ``banking
    law violations'' where a prosecutor can disclose grand jury
    information to a Federal or State financial institution
    regulatory agency. Section 11003 expands the uses for grant
    funds and changes the name from the Office of State and Local
    Domestic Preparedness Support to the Office of Domestic
    Preparedness. Section 11004 allows the Attorney General to
    exchange NCIC information with the United States Sentencing
    Commission. The U.S. Sentencing Commission has stated that this
    provision is necessary to help complete a study on recidivism
    rates that they have been charged by Congress to complete. The
    Sentencing Commission is currently working with the FBI, which
    supports this provision.
        Section 11005 amends section 151 of the Foreign Relations
    Act, fiscal years 1990 and 1991 (5 U.S.C. 5928 note), to
    prohibit the ``Secretary of State from denying a request by the
    Federal Bureau of Investigation (FBI) to authorize a danger pay
    allowance under title 5 section 5928 for any employee of the
    FBI. Under title 5 section 5928, ``an employee serving in a
    foreign area may be granted a danger pay allowance on the basis
    of civil insurrection, civil war, terrorism, or wartime
    conditions which threaten physical harm or imminent danger to
    the health or well-being of the employee.'' The note stated
    that the Secretary of State may not deny a request by the Drug
    Enforcement Administration. This section expands this note to
    cover the FBI.
        Section 11006 provides for increases in the tuition
    allotments for police corps officers scholarship/reimbursement
    from $10,000 to $13,333 per year. It reauthorizes the program
    for four more years and increases the stipend for training from
    $250 to $400 per week. It also eliminates the $10,000 direct
    payment to participating police agencies. Section 11007 amends
    the Radiation Exposure Compensation Act of 1990 (RECA). RECA
    was enacted to affirm the responsibility of the Federal
    Government to compensate individuals who were harmed by
    radioactive fallout from atomic testing, or were harmed by
    being a test site participant, or in the mining of the uranium
    necessary for the production of nuclear weapons. This section
    contains technical amendments to this Act.
        Section 11008 incorporates S. 1099, the ``Federal Judiciary
    Protection Act of 2001,'' which passed the Senate on December
    20, 2001. Section 11008 enhances penalties for threatening or
    attempting to impede Federal officials carrying out their
    official duties. Section 11009 incorporates H.R. 1007 and S.
    166, of the same name. S. 166 passed the Senate on May 14, 2001
    and H.R. 1007 was reported favorably by the Judiciary Committee
    on July 19, 2001. This section directs the United States
    Sentencing Commission to review and amend the Federal
    sentencing guidelines to provide an appropriate enhancement for
    any crime of violence or drug trafficking in which the
    defendant used body armor. This section also prohibits the
    purchase, ownership, or possession of body armor by convicted
    violent felons.
        Section 11010 amends Federal law to clarify that a law
    enforcement officer does not need to be present for a warrant
    to be served or executed ``for service or execution of a search
    warrant directed to a provider of electronic communication
    service or remote computing service for records or other
    information pertaining to a subscriber to or customer of such
    service.'' Due to the nature of electronic communications, much
    of this information is in the possession of Internet Provider
    Services (ISPs) and law enforcement officials often serve such
    warrants over facsimile machines and are not present at the
    site of the ISP. The ISP accept theses warrants. In a recent
    child pornography case, a Michigan Federal district court, in
    U.S. v. Bach, however, ruled that this procedure was an
    unreasonable search and seizure. The Court found that a police
    officer had to be present at the time. This section makes it
    clear that a police officer does not have to be present at the
    time a warrant is served.
        Section 11011 requires the Attorney General to conduct a
    study of offenders with mental illness who are released from
    prison or jail to determine how many such offenders qualify for
    Medicaid, SSI, or SSDI, and other government aid. Section 11012
    makes technical corrections and revisions to the Omnibus Crime
    Control and Safe Streets Act. Section 11013 expands the use of
    the Department's Three Percent Debt Collection Fund. This fund
    was established by Section 108 of P.L. 103-121. The language of
    that Act permits the Department to credit three percent of
    allcivil debt collections resulting from Department debt collection
    activities to the Working Capital Fund (the Three Percent Fund) and to
    use those deposits to the Fund only for the costs of processing and
    tracking civil debt collection litigation. Section 11014 reauthorizes
    funds for the State Criminal Alien Assistance Program (SCAAP) for FY
    2003 and 2004. Under this program, the Federal government provides
    payments to states who house illegal or criminal aliens. Section 11015
    reforms the Department of Justice's practice for using annuity brokers
    in structured settlements in two ways. First, it directs the Attorney
    General to establish a list of annuity brokers who meet minimum
    qualifications for providing annuity brokerage services in connection
    with structured settlements entered by the United States. Second, this
    provision permits the United States Attorney (or his designee) involved
    in any settlement negotiations (except those negotiated exclusively
    through the Civil Division of the Department of Justice) to have the
    exclusive authority to select an annuity broker from the list of such
    brokers established by the Attorney General, provided that all
    documents related to any settlement comply with Department of Justice
    requirements.
        Section 11016 amends the Immigration and Nationality Act to
    specify that processing fees for certain entry documents shall
    be deposited in the Land Border Inspection Fee Account as
    offsetting receipts. Section 11017 extends the authority of the
    U.S. Parole Commission to continue operations for an additional
    three years. This section also requires the Attorney General to
    prepare a report to Congress on the most efficient entity to
    administer the District of Columbia supervised release program.
    Section 11018 incorporates H.R. 4858, to ``Improve Access to
    Physicians in Medically Underserved Areas,'' which was reported
    by the House Judiciary Committee on June 24, 2002, and passed
    the House on June 25, 2002. This section extends authorization
    for a waiver to permit certain foreign medical doctors to
    practice medicine in underserved areas without first leaving
    the United States. Aliens who attend medical school in the
    United States on ``J'' visas must leave the U.S. after school
    to reside abroad for two years before they may practice
    medicine in the U.S. In 1994, Congress created a waiver of the
    two-year requirement for foreign doctors who commit to
    practicing medicine for no less than three years in the
    geographic area or areas which are designated by the Secretary
    of Health and Human Services as having a shortage of health
    care professionals. The waiver limited the number of foreign
    doctors to 20 per state so that under-served areas in all
    states receive doctors. Section 11018 increases the numerical
    limitation on waivers to 30 per state. It also extends the
    deadline for the authorization of the waiver until June 1,
    2006.
        Section 11019 restores two provisions of Rule 16 of the
    Federal Rules of Criminal Procedure that were inadvertently
    omitted when the Supreme Court transmitted a revision of the
    Rules to Congress on April 29, 2002. Section 11020 incorporates
    H.R. 860, the ``Multiparty, Multiforum Trial Jurisdiction Act
    of 2002,'' which was reported by the House Judiciary Committee
    on March 8, 2001 and passed the House on March 14, 2001. It
    would streamline the process by which multidistrict litigation
    governing disasters are adjudicated. Section 11021 authorizes
    judges in the Southern District of Ohio to hold court in St.
    Clairsville, Ohio. Section 11022 states that during any period
    that the Federal Aviation Administration has in effect
    restrictions on airline passengers to ensure their safety, a
    person who purchases wine while visiting a winery can ship wine
    to another state provided that the purchaser could have carried
    or brought the wine into the state to which the wine is
    shipped.
        Section 11023 would require the FBI to implement the
    Webster Commission Implementation Report. In response to the
    Robert Hanssen espionage case, former Director Freeh of the FBI
    asked Judge Webster to conduct a review of the FBI's internal
    security functions and procedures and recommend improvements.
    The March 31, 2002, Webster Report included strong criticism
    and several recommendations to improve the security at the FBI.
    This section would require the FBI to submit a plan for
    implementing the recommendations of the Commission by no later
    than six months after the enactment of this Act. Section 11024
    authorizes the establishment of a police force within the FBI
    to provide protection for FBI buildings and personnel in areas.
    For example, FBI police provide security and protection at the
    main headquarters building in Washington, D.C., the FBI academy
    at Quantico, Virginia, and the Criminal Justice Information
    Services Complex in Clarksburg, West Virginia. Additionally,
    the FBI police will be authorized to provide these security
    services at the FBI's larger field offices. Section 11025
    requires the Director of the FBI to submit to Congress a report
    on the information management and technology programs of the
    FBI including recommendations for any legislation needed to
    enhance the effective of such programs. The report is due no
    later than nine months after the date of enactment of this Act.
    Section 11026 requires the Comptroller General of the United
    States to submit a report on the issue of how statistics are
    reported and used by Federal law enforcement agencies. The
    report is due no later than nine months after the date of
    enactment of this Act.
        Section 11027 authorizes $30 million over three years for
    the Attorney General to make grants to State criminal justice,
    Byrne, or other designated agencies to develop rural States'
    capacity to assist local communities in the prevention and
    reduction of crime, violence, and substance abuse. Section
    11028 incorporates H.R. 1296 and S. 1140, the ``Motor Vehicle
    Franchise Contract Arbitration Fairness Act of 2001,'' which
    was reported by the Senate Judiciary Committee on October 31,
    2001. It requires that whenever a motor vehicle franchise
    contract provides for the use of arbitration to resolve a
    controversy arising out of or relating to the contract,
    arbitration may be used to settle the controversy only if both
    parties consent in writing after such controversy arises. This
    section also requires the arbitrator to provide the parties
    with a written explanation of the factual and legal basis for
    the decision. The section provides that its provisions shall
    apply only to contracts entered into, modified, renewed or
    extended after the date of enactment. This section does not
    amend the Federal Arbitration Act.
        Section 11029 permits the U.S. District Court for the
    Southern District of Iowa to hold court in Rock Island,
    Illinois, from January 1, 2003 through July 1, 2005, while the
    Davenport, Iowa courthouse undergoes renovation. Section 11030
    incorporates H.R. 2623, the ``Posthumous Citizenship
    Restoration Act of 2001.'' In 1990, Congress passed the
    Posthumous Citizenship for Active Duty Service Act (Pub. L. No.
    101-249). This permitted the next-of-kin or another
    representative to file a posthumous citizenship claim on behalf
    of a United States non-citizen war veteran who died as a result
    of military service to our nation. Currently, the request for
    the posthumous citizenship must be filed no later than two
    years after the date of enactment of the Act (March 6, 1990),
    or two years after the date of the person's death, whichever
    date is later.
        This provision establishes an additional two-year period
    for the family members of deceased non-citizen veterans to file
    posthumous citizenship claims. This will give families who
    missed the opportunity to file posthumous citizenship claims on
    behalf of their deceased relatives when the law was enacted in
    1990 another opportunity to file for citizenship. The provision
    retains the two-year filing window for deaths which may occur
    after the bill's grace period expires.
        Section 11030A pertains the status for aliens with lengthy
    adjudications. Prior to the enactment of the American
    Competitiveness in the 21st Century Act of 2000 (Pub. L. 106-
    313), an alienpossessing a H-1B nonimmigrant visa was
    authorized work in the U.S. for up to six years. The Act provided for
    an extension of H-1B status beyond 6 years in one year increments, as
    long as an employment based immigrant visa petition or employment based
    adjustment of status application has been filed and at least 365 days
    have elapsed since the filing of the petition or a labor certification
    application on the alien's behalf (In many instances, labor
    certifications are required to be approved by the Department of Labor
    before an employment based immigrant visa petition or adjustment of
    status application can be filed.). This provision was added to the
    Immigration and Nationality Act so that employers would not have to
    dismiss H-1B workers after 6 years because their petitions for
    immigrant visas or applications for adjustment of status were caught in
    processing backlogs. Growing delays in the processing of labor
    certifications have in certain instances prevented employers from
    taking advantage of the 2000 Act, since their labor certifications had
    not been approved in time for them to be able to file immigrant visa
    petitions or adjustment of status applications by the required date.
    Thus, this provision eliminates the requirement that an immigrant visa
    petition or adjustment of status application have been filed. As long
    as 365 days have elapsed since the filing of a labor certification
    application (that is filed on behalf of or used by the alien) or an
    immigrant visa petition, H-1B status can likewise be extended in one
    year increments. This will be true even if the alien has since obtained
    a non-H-1B nonimmigrant status. If an application for a labor
    certification or adjustment of status or a petition for a immigrant
    visa petition is denied, the extended H-1B status ends at that point.
        Section 11030B amends the Immigration and Nationality Act
    to permit a United States citizen grandparent or U.S. citizen
    legal guardian to apply for naturalization on behalf of a child
    born outside of the U.S., who has not acquired citizenship
    automatically under section 320 of the INA, if the child's U.S.
    citizen parent has died during the preceding five years.
        Section 11031 sets forth new procedures for certain
    investors to remove conditional resident status. They must meet
    three conditions: (1) they filed an I-526 petition and had it
    approved by the INS between January 1, 1995 and August 31,
    1998; (2) they obtained conditional resident status; and (3)
    before the date of enactment of this bill they filed an I-829
    to remove their conditional resident status. Section 11032
    provides similar procedures for EB-5 investors whose I-526
    petitions were approved, but who never became conditional
    residents because the INS never acted on their adjustment of
    status applications or because they remained overseas. This
    subsection states that the INS must approve applications under
    this section within 180 days after enactment.
        Section 11033 requires the INS to publish implementing
    regulations within 120 days of enactment. Until regulations are
    promulgated, the INS may not deny a pending I-829 petition or
    adjustment of status application relating to an alien covered
    under the terms of sections 11031 or 11032, or commence or
    continue removal proceedings against affected EB-5 investors.
    Section 11034 states that the terms used in this title shall
    have the meaning given such terms in section 101(b) of the
    Immigration and Nationality Act (``INA''), unless otherwise
    provided. Section 11035 defines full-time employment for
    purposes of section 203(b)(5) of the INA as a position
    requiring at least 35 hours a week. Section 11034 amends
    section 203(b)(5) of the INA to eliminate the ``establishment''
    requirement for EB-5 investors. Instead of showing that they
    have ``established'' a commercial enterprise, Investors need
    only that they have ``invested'' in a commercial enterprise.
    This section also amends section 216A of the INA to eliminate
    the ``establishment'' requirement for EB-5 investors who have
    filed I-829 petitions. They also must show that they have
    ``sustained'' their investment actions over the two-year
    period. This section also clarifies that a ``commercial
    enterprise'' may include a limited partnership. The changes
    made by this section apply to I-526 and I-829 petitions pending
    on or after the date of enactment.
        Section 11037 amends section 610(a) of the 1993 Commerce,
    State, Justice appropriations act to clarify that an EB-5
    regional center can promote increased export sales, improved
    regional productivity, job creation, or increased domestic
    capital investment.
        Section 11041 names this subtitle the ``Judicial
    Improvements Act of 2002, which pertains to judicial discipline
    procedures. It is based upon H.R. 3892 and S. 2713, of the same
    name. H.R. 3892 passed the House on July 22, 2002. S. 2713 was
    reported by the Senate Judiciary Committee on July 31, 2002.
    These amendments ``tighten'' the existing statute that permits
    individuals to file misconduct complaints against federal
    judges and magistrates. As a result, the statute will be easier
    to locate and use, and will clarify the responsibilities of the
    chief judge in a given circuit who initially reviews a
    complaint.
        Section 11043 makes technical and conforming amendments to
    title 28 relating to the judicial discipline amendment. Section
    11044 states that if any part of this subtitle is found
    unconstitutional, the remainder of the Act will not be
    affected.
        Section 11051 incorporates H.R. 2325, ``the Antitrust
    Modernization Commission Act of 2001.'' Section 11052
    establishes and states that the responsibilities of the
    Commission are to examine whether the antitrust laws are in
    need of modernization, to solicit the views of all concerned
    parties, to evaluate proposals, and to prepare and submit a
    report to Congress and the President. Section 11054 sets out
    the membership of the Commission, which will have 12 members,
    with four appointed by the President, two each by the majority
    and minority leaders of the Senate, and two each by the Speaker
    and minority leader of the House. The President's nominees will
    include two members of the opposing party, to be chosen by that
    party's Congressional leaders. The President will choose the
    chair of the Commission, while the Congressional leaders from
    the other party will choose the vice chair. Section 11055
    describes the compensation of those who serve on the
    Commission. Section 11056 states that the chairperson of the
    Commission may appoint and terminate an executive director and
    other necessary staff, and use experts and consultants. Section
    11057 states that the Commission may hold such hearings and
    take such testimony as it considers appropriate, may take
    testimony under oath, and obtain information directly from any
    executive agency or court. Section 11058 states that the
    Commission shall submit a detailed report to Congress and the
    President within three years after its first meeting, including
    recommendations for legislative and administrative action the
    Commission considers appropriate. Section 11059 states that the
    Commission shall cease to exist 30 days after it submits its
    report. Section 11060 authorizes $4 million to carry out this
    subtitle.
        Section 12101 provides that the short title of this
    subtitle may be cited as the ``Consequences for Juvenile
    Offenders Act of 2002.'' Section 12102 incorporates, H.R. 863,
    the ``Consequences for Juvenile Offenders Act of 2002,'' into
    the bill. H.R. 863 passed the House on October 16, 2001 by
    voice vote. This subtitle incorporates H.R. 863 to authorize
    the Department of Justice to make grants to States and local
    governments to strengthen their juvenile justice systems. The
    subtitle allows the States and localities flexibility in using
    the grant funds and provides an illustrative list of possible
    uses for the grant money. The grant money may be used for a
    range of purposes from the hiring of more judges, prosecutors
    and corrections personnel to supporting juvenile gun courts,
    drug court programs and accountability-based school safety
    programs. The flexibility allows States and localities to
    strengthen their juvenile justicesystems in way that best meet
    their needs. To be eligible for the grant funds, a State must have or
    agree to implement a system of graduated sanctions for juvenile
    offenders. Under the bill, the graduated sanctions system must ensure
    that sanctions are imposed on juveniles offenders for every offense,
    that the sanctions escalate in intensity with each subsequent more
    serious offense, that the courts will be flexible in applying sanctions
    that address the specific problems of the individuals offender, and
    that consideration is given to public safety and victims of crime.
    Additionally, this subtitle provides that a state or locality may still
    qualify for a grant even if its system of graduated sanctions is
    discretionary, allowing juvenile courts to not participate. If an
    application's system is discretionary, however, then the non-
    participating juvenile courts must report at the end of the year why
    they did not impose graduated sanctions.
        Section 12201 states that this subtitle may be cited as the
    ``Juvenile Justice and Delinquency Prevention Act of 2002.''
    This section incorporates H.R. 1900, which passed the House on
    September 20, 2002. Section 12202 states the findings of
    Congress on the seriousness of juvenile crime. Section 12203
    describes the purpose of this subsection: to assist State and
    local governments in preventing acts of juvenile delinquency
    and holding offenders accountable.
        Section 12204 modifies and adds to the definitions under
    the Juvenile Justice and Delinquency Act (JJDPA). Section 12205
    modifies the duties of the Administrator of the Office of
    Juvenile Justice and Delinquency Prevention. Section 12206
    makes a technical correction to the JJDPA to comply with the
    current title of the House Education and Workforce Committee.
        Section 12207 amends section 207 of the JJDPA to require an
    annual evaluation of the effectiveness of programs under this
    title. Section 12208 makes technical changes to clarify the
    process by which States and territories receive funding under
    the Act. Section 12209 eliminates specific state plan
    requirements and modify the list of activities eligible for
    funding under the formula grant program. Section 12210 creates
    a new Part C that establishes the Juvenile Delinquency
    Prevention Block Grant and sets forth the allocation of funds,
    state plan requirements and criteria and eligibility for state
    and local grants. Section 12211 creates new authority for
    research, training, technical assistance and information
    dissemination regarding juvenile justice matters through the
    Office of Juvenile Justice and Delinquency Prevention.
        Section 12212 permits the administrator to award grants for
    developing, testing, and demonstrating new initiatives and
    programs for the prevention, control or reduction of juvenile
    delinquency. Section 12213 authorizes such sums as may be
    appropriate to carry out Title II of this act. Section 12214
    modifies the administrator's authority to establish rules,
    regulations, and procedures. Section 12215 amend section 299C
    of the JJDPA to state, among other things, that no funds shall
    be paid to a residential program unless the State in which it
    is located has minimum licensing standards. Section 12216
    amends the JJDPA by adding a requirement that funds not be used
    to support the unsecured release of juveniles charged with a
    violent crime.
        Section 12217 amends the JJDPA by adding a new section to
    clarify that nothing in Titles I or II (a) prevents otherwise
    eligible organizations from receiving grants, or (b) should be
    construed to modify or affect existing federal or state laws
    related to collective bargaining rights of employees. Section
    12218 permits the administrator to receive surplus Federal
    property and lease it to eligible entities for use in juvenile
    facilities or for delinquency prevention and treatment
    activities. Section 12219 allows the administrator to issue
    rules to carry out this title.
        Section 12220 amends JJDPA to add a new section requiring
    that materials funded by this act for the purpose of hate
    crimes prevention shall not abridge or infringe upon the
    constitutionally protected rights of free speech, religion, and
    equal protection of juveniles or their parents or legal
    guardians. Section 12221 sets forth technical and conforming
    amendments. Section 12222 reauthorizes Title V of the JJDPA,
    which provides for grants for delinquency prevention programs
    and activities. Section 12223 establishes the effective date of
    the act and states that amendments made by the act shall apply
    to fiscal years beginning after September 30, 2002.
        Section 12301 amends 18 U.S.C. Sec. 5037 to modify current
    federal law regarding the sentencing of juvenile delinquents.
    Specifically, it (1) provides authority to impose a term of
    juvenile delinquency supervision to follow a term of official
    detention, (2) provides authority to sanction a violation of
    probation when a person adjudicated a juvenile delinquent is
    over 21 at the time of the violation, and (3) makes technical
    corrections in response to the Supreme Court's decision in
    United States v. R.L.C.
        Section 13101 states that the short title of this subtitle
    is the ``Patent and Trademark Authorization Act of 2002.'' This
    section incorporates H.R. 2047, which passed the House on
    November 16, 2001, and S. 674, which passed the Senate on June
    26, 2002. Section 13102 authorizes the Patent and Trademark
    Office (PTO) to receive appropriations for fiscal years 2003
    through 2008 in amounts equal to those fees collected by the
    agency in each such fiscal year. The Director of the PTO must
    submit estimates of the fees for the next fiscal year to the
    Committees on Appropriations and Judiciary of the Senate and
    the Committees on Appropriations and Judiciary of the House of
    Representatives no later than February 15 each fiscal year.
    Section 13103 requires the Director to develop a user-friendly
    electronic system for the filing and processing patent and
    trademark applications. The system must be completed within 3
    years of the date of enactment of this legislation. This
    section authorizes not more than $50,000,000 for each of fiscal
    years 2003, 2004 and 2005 to carry out this Section. Section
    13104 requires the Secretary of Commerce to submit annual
    updates to the House and Senate Committees on the Judiciary on
    the implementation of the ``21st Century Strategic Plan,''
    which was issued on June 3, 2002, and any amendments to that
    plan. Section 13105 modifies the sections of Title 35 of the
    U.S. Code that instruct the Director to determine whether
    substantial new questions of patentability are raised by
    requests for prior art citations to the Office, ex parte
    reexaminations of patents, or inter partes reexaminations of
    patents.
        Section 13106 amends 35 U.S.C. Section 315 by adding the
    Court of Appeals for the Federal Circuit as a venue where a
    third party requester may appeal, or be a party to an appeal
    of, a final decision on patentability. Section 13201 may be
    cited as the ``Intellectual Property and High Technology
    Technical Amendments Act of 2002.'' This section incorporates
    S. 320, of the same name, which passed the Senate on February
    13, 2002, and the House on March 13, 2001.
        Section 13202 of the bill clarifies the Patent Act's inter
    partes reexamination section by stipulating that it will apply
    to the proper parties and operate as envisioned. Section 13203
    clarifies the status and authority of the Deputy Director of
    the PTO and conforms the membership of the Trademark Trial and
    Appeal Board and the Board of Patent Appeals and Interferences
    to include the Deputy Director. Section 13204 is technical in
    nature and clarifies the effective date of international
    applications which may qualify for the provisional rights based
    on early publication. Section 13205 contains a safeguard that
    the PTO will only rely on information published in English in
    patent applications as it makes the essential determination of
    novelty during the examination of a patent application. This
    limits the evidence from foreignapplications that may be
    considered ``prior art'' and could affect patentability. This is an
    important safeguard for independent inventors and small American
    businesses that do not have access to expensive translation services
    and the foreign patent offices.
        Section 13206 contains a series of highly technical
    clerical amendments developed by the Office of Legislative
    Counsel upon its own initiative. Section 13207 makes technical
    corrections to Trademark Law by removing redundancies without
    foreclosing remedies. Section 13208 corrects a clerical error
    pertaining to the section of the law cited relating to the
    adjustment of trademark fees and the consumer price index.
    Section 13209 makes amendments to Title I of IPCORA to
    eliminate existing ambiguities. Section 13210 makes several
    technical amendments and revisions to Title 17. Section 13211
    makes additional technical and conforming amendments.
        Section 13301 amends the Copyright Act to encompass
    performances and displays of copyrighted works in digital
    distance education under appropriate circumstances. The section
    expands the scope of works to which the amended section 110(2)
    exemption applies to include performances of reasonable and
    limited portions of works other than nondramatic literary and
    musical works
        Section 13401 incorporates the ``Madrid Protocol
    Implementation Act.'' Section 13402 incorporates H.R. 741 (of
    the same name), which passed the House on March 14, 2001. This
    section streamlines the process by which holders of
    applications or registrations before the Patent and Trademark
    Office (PTO) may file an international application for
    trademark protection at the PTO and requires the PTO Director
    to transmit the application to the WIPO International Bureau.
    Section 13403 states that the effective date of the act shall
    commence on the date on which the Madrid Protocol enters into
    force with respect to the United States or 1 year after the
    date of enactment, whichever occurs later.
        Section 14101 incorporates the ``Antitrust Technical
    Corrections Act of 2001,'' which made minor antitrust-related
    amendments. It is identical to H.R. 809 and S. 809. H.R. 809
    was reported by the Judiciary Committee on March 12, 2001, and
    passed the House on March 14, 2001. S. 809 was reported by the
    Senate Judiciary Committee on March 15, 2001. Section 14102
    amends the Panama Canal Act, which prohibits ships owned by
    persons who are violating the antitrust laws from passing
    through the Canal. Section 14103 establishes the effective
    dates for these provisions.
        Legislative History.--H.R. 2215 was introduced by Chairman
    Sensenbrenner and Ranking Member Conyers on June 19, 2001.
    Several Judiciary Committee Subcommittees conducted hearings on
    this bill. The Committee's Subcommittee on Crime, Terrorism,
    and Homeland Security conducted an oversight hearing on May 3,
    2001 and received testimony from four witnesses: Louie
    McKinney, Acting Director for the United States Marshals
    Service; Donnie Marshall, Administrator of the Drug Enforcement
    Administration; Thomas Pickard, Deputy Director for the Federal
    Bureau of Investigation; and Kathleen Sawyer, Director of the
    Federal Bureau of Prisons.
        On May 9, 2001, the Subcommittee on Commercial and
    Administrative Law conducted an oversight hearing and received
    testimony from five witnesses: Mark Calloway, Director of the
    Executive Office for the United States Attorneys; John Cruden,
    Acting Assistant Attorney General for the Environment and
    Natural Resources Division; Martha Davis, Acting Director of
    the Executive Office for United States Trustees; Stuart
    Schiffer, Acting Assistant Attorney General for the Civil
    Division; Barbara Underwood; Acting Solicitor General of the
    United States.
        On May 15, 2001, the Subcommittee on Crime, Terrorism and
    Homeland Security conducted a second oversight hearing and
    received testimony from five witnesses: Michael Horowitz, Chief
    of Staff of the Department's Criminal Division; Ralph Justus,
    Acting Director of the Community Oriented Policing Services
    Program (COPS); and Mary Leary, Acting Assistant Attorney
    General for the Office of Justice Programs. Also on May 15,
    2001, the Subcommittee on Immigration and Claims conducted an
    oversight hearing and received testimony from five witnesses:
    Roy Beck, Executive Director of Numbers USA.com; John Lacey,
    Chairman of the Foreign Claims Settlement Commission; Peggy
    Philbin, Acting Director for the Executive Office for
    Immigration Review; Kevin Rooney, Acting Commissioner of the
    Immigration and Naturalization Service (INS); and Bishop Thomas
    G. Wenski, Auxiliary Bishop of Miami on behalf of National
    Conference of Catholic Bishops' Committee on Migration. In
    addition, Attorney General Ashcroft testified before the Full
    Committee during a June 6, 2001, oversight hearing.
        On Wednesday, June 20, 2001, the Committee reported H.R.
    2215, as amended, by voice vote (H. Rept. 107-125). H.R. 2215
    passed the House under suspension of the rules on July 23,
    2002. On October 30, 2002, the bill was reported by the Senate
    Judiciary Committee with an amendment in the nature of a
    substitute. The Senate passed its amended version of the bill
    on December 20, 2002. The bill then proceeded to conference.
    Chairman Sensenbrenner, and Representatives Henry Hyde (R-IL);
    George W. Gekas (R-PA); Howard Coble (R-NC); Lamar Smith (R-
    TX); Elton Gallegly (R-CA); John Conyers (D-MI); Barney Frank
    (D-MA); Bobby Scott (D-VA); and Tammy Baldwin (D-WI) were
    appointed House Judiciary Committee conferees. In addition,
    Representative Berman was appointed in lieu of Ms. Baldwin for
    consideration of section 312 (Additional Federal Judgeships) of
    the Senate amendment.
        The House filed the Conference Report (H. Rept. 107-685) on
    September 25, 2002. On September 26, 2002, the House agreed to
    the Conference Report by a vote of 400-4. On October 3, 2002,
    the Conference Report passed the Senate by voice vote. On
    November 2, 2002, the bill was signed by President Bush and
    became Public Law Number 107-273. On October 8, 2002, the house
    passed H. Con. Res. 503 to correct the enrollment of the bill
    H.R. 2215. The Senate agreed to H. Con. Res. 503 by Unanimous
    Consent on October 17, 2002.

    H.R. 2458, the E-Government Act of 2002

        Summary.--H.R. 2458 establishes the Office of Information
    Policy in the Office of Management and Budget (OMB) to be
    administered by a Federal Chief Information Officer who shall
    provide direction, coordination, and oversight of the
    development, application, and management of information
    resources by the government. H.R. 2458 establishes an E-
    government Fund in the Treasury to be used to fund interagency
    information technology projects and other innovative uses of
    information technology. H.R. 2458 also establishes an online
    federal telephone directory, an online national Library, and an
    individual Federal court websites. Lastly the legislation
    requires the Chief Information Officer and each agency to
    develop and post on the Internet a public domain directory of
    government websites.
        Legislative History.--H.R. 2458 was introduced on July 11,
    2001 by Congressman Turner. On November 11, 2002 the Committee
    on the Judiciary was granted a sequential referral for
    consideration of provisions of the bill for a period not later
    than November 14, 2002. On November 15, 2002 the bill passed
    the House without objection. On November 15, 2002 the Senate
    passed the bill without amendment by Unanimous Consent. On
    Decmber 17, 2002 the President signed H.R. 2458 and the bill
    became Public law 107-347.

    H.R. 2882, to provide for the expedited payment of certain benefits for
            a public safety officer who was killed or suffered a
            catastrophic injury as a direct and proximate result of a
            personal injury sustained in the line of duty in connection
            with the terrorist attacks of September 11, 2001

        Summary.--Under 42 U.S.C. Sec. 3796, the Bureau of Justice
    Assistance (BJA) is allowed to determine whether or not a
    public officer has died as a direct or proximate cause of a
    personal injury sustained in the line of duty, and if such
    criteria is met the Bureau is directed to pay a monetary
    benefit to such officers surviving family members. After the
    tragedy of September 11, H.R. 2882 was introduced as a way to
    expedite the disbursement of those funds to the proper
    beneficiaries as determined by the Public Safety Officer
    Benefit Program outline. H.R. 2882 allowed that, upon
    certification by a public agency that a public safety officer
    employed by such agency was killed or suffered a catastrophic
    injury as a direct and proximate result of a personal injury
    sustained in the line of duty in connection with the rescue or
    recovery efforts related to the terrorist attacks of September
    11, 2001, the Director of the Bureau of Justice Assistance was
    authorized to make payment to qualified beneficiaries, with
    such payment to be made not later than 30 days after receipt of
    such certification.
        Legislative History.--On September 13, 2001, H.R. 2882 was
    introduced by Representative Nadler of New York, and
    subsequently referred to the Committee on the Judiciary. On
    that same day the Committee discharged the bill to the House
    without amendment. Also on that day, the House passed the bill
    H.R. 2882, 413-0. On that same day, the Senate considered H.R.
    2882 by unanimous consent and was subsequently signed into law
    by the President on September 18, 2001, becoming Public Law No.
    107-037.

    H.R. 3162/H.R.2975, the ``Uniting and Strengthening America by
            Providing Appropriate Tools Required to Intercept and Obstruct
            Terrorism (USA PATRIOT ACT) Act of 2001''

        Summary of crime related provisions.--On September 11,
    2001, terrorists attacked the United States and killed nearly
    3,000 United States citizens. These attacks demonstrated the
    immediate need for changes in U.S. Federal law to protect our
    Nation, our liberty, our economy and our citizens' within our
    own borders. The Committee immediately made the fight against
    terrorism its top priority. In response to the attacks,
    Chairman Sensenbrenner introduced H.R. 2975, ``the Provide
    Appropriate Tools Required to Intercept and Obstruct Terrorism
    Act of 2001,'' (PATRIOT Act) on October 2, 2001. This bill was
    similar to the Administration's proposal.
        The legislation provided enhanced investigative tools and
    improved information sharing for the law enforcement and
    intelligence communities to combat terrorism and terrorist
    related crimes. The enhanced law enforcement tools and
    information sharing provisions assist in the prevention of
    future terrorist activities and the preliminary acts and crimes
    which further such activities. To protect the delicate balance
    between privacy and protection, the bill provided additional
    government reporting requirements, disciplinary actions for
    abuse, and civil penalties. The bill also provided for
    increased penalties for Federal terrorism offenses, eliminated
    the statute of limitations, and provided for extended post-
    incarceration supervised release for persons convicted of such
    offenses. Additionally, the bill amended Federal money
    laundering laws, added new terrorism offenses, updated the
    bioterrorism laws, and adjusted existing federal criminal
    procedures relating to terrorism. The bill also changed
    immigration law to increase the Federal Government's ability to
    prevent foreign terrorists from entering the U.S., to detain
    suspected foreign terrorists and to deport foreign terrorists.
        Summary of immigration related provisions.--Under Title IV,
    subtitle A--Protecting the Northern Border, authorizes sums
    necessary to triple the number of Border Patrol agents, INS
    inspectors and Customs Service personnel, along with supporting
    personnel and infrastructure, in each State (and port of entry)
    along the northern border. It also authorizes $50 million to
    both the INS and the Customs Service to make improvements in
    technology for monitoring the northern border and acquiring
    additional equipment at the northern border.
        The subtitle requires that the Attorney General and the FBI
    Director provide the INS and the State Department with access
    to the criminal history record information contained in the
    National Crime Information Center's Interstate Identification
    Index and certain other files in the form of extracts for the
    purpose of determining whether or not visa applicants or
    applicants for admission have criminal history records. The
    State Department can receive complete records upon submission
    of fingerprints and any required fee. The Department shall
    implement procedures for the taking of fingerprints and
    establish conditions for use of information received from the
    FBI to limit its redissemination, to ensure that it is used
    solely for visa issuance and admittance decisions, to secure
    its security and confidentiality and to protect any privacy
    rights of the subjects of the information.
        The Attorney General and the Secretary of State shall have
    two years to develop and certify a technology standard that can
    be used to verify the identity of persons applying for U.S.
    visas or seeking to enter the U.S. in order to conduct
    background checks and confirm identity. This shall be done
    through the National Institute of Standards and Technology and
    other federal law enforcement and intelligence agencies. The
    technology standard shall be the technological basis for an
    electronic database system to share law enforcement and
    intelligence information necessary to confirm the identity of
    persons seeking to enter the U.S. This system shall be readily
    and easily accessible to consular officers responsible for the
    issuance of visas, federal inspection agents at border
    inspection points, and to law enforcement and intelligence
    officers responsible for the investigation or identification of
    aliens admitted to the U.S. Periodic reports shall be provided
    to Congress regarding the technology standard and the database
    system. Such sums as may be necessary are authorized to carry
    out these provisions.

                Subtitle B--Enhanced Immigration Provisions
        Under prior law, an alien was inadmissible and deportable
    for engaging in many terrorist activities only when the alien
    had used explosives or firearms. The subtitle provides that an
    alien using any weapon or dangerous device in terrorist
    activity is inadmissible and deportable.
        Under prior law, there was no general prohibition against
    an alien contributing funds or other material support to a
    terrorist organization, while there was a prohibition against
    soliciting membership in or funds from others for a terrorist
    organization. The subtitle provides that an alien is
    inadmissible and deportable for contributing funds or other
    material support to, or soliciting funds for, or membership in,
    an organization that has been designated as a terrorist
    organization by the Secretary of State, or for contributing to,
    or soliciting in or for, any non-designated terrorist
    organization, unless the alien can demonstrate that he did not
    know and should not reasonably have known that the funds or
    other material support or solicitation would further terrorist
    activity. However, inadmissibility or deportability for
    material support provided to an organization or individual who
    has committed terrorist activity shall not apply if the
    Attorney General or Secretary of State concludes that they
    should not.
        Prior immigration law did not define ``terrorist
    organization'' for purposes of making an alien inadmissible and
    deportable. The subtitle defines such an organization to
    include (1) an organization so designated by the Secretary of
    State (under a process provided for under prior and continuing
    law); (2) an organization otherwise publically designated by
    the Secretary of State as a terrorist organization, after
    finding that the organization engages in certain forms of
    terrorist activity or provides material support to further
    terrorist activity; and (3) any group of two of more
    individuals, whether organized or not, that engages in certain
    forms of terrorist activity. The subtitle clarifies that the
    Secretary of State can redesignate organizations as terrorist
    organizations and can revoke designations and redesignations.
        The subtitle provides that an alien is inadmissible if the
    alien is a representative of a political, social, or other
    similar group whose public endorsement of terrorism undermines
    the effort of the U.S. to eliminate or reduce terrorism. Also
    inadmissable will be an alien who has used his or her
    prominence to endorse or espouse terrorism or to persuade
    others to support terrorism, if this would undermine the
    efforts of the U.S. to reduce or eliminate terrorism, and an
    alien who is associated with a terrorist organization and
    intends, while in the U.S., to engage in activities that could
    endanger the welfare, safety, or security of the U.S. These
    provisions are similar to the ``foreign policy'' ground of
    inadmissibility, barring entry to an alien whose entry or
    proposed activities in the U.S. would have potentially serious
    adverse foreign policy consequences for the U.S.
        The subtitle provides that the spouses or children of
    aliens who are inadmissible for engaging in terrorist activity
    within the last five years are also inadmissible (with certain
    exceptions). The Secretary of State may determine that the
    amendments made by the foregoing provisions of this subtitle
    shall not apply with respect to actions by an alien taken
    outside the U.S. before the date of enactment of this Act upon
    the recommendation of a consular officer who has concluded that
    there are not reasonable grounds to believe that the alien knew
    or reasonably should have known that the actions would further
    terrorist activity.
        Under the prior regulatory regime, the INS could detain an
    alien for 48 hours before making a decision as to charging the
    alien with a crime or removable offense (except that in the
    event of emergency or other extraordinary circumstance, an
    additional reasonable time was allowed). The INS used this time
    to establish an alien's true identity, to check domestic and
    foreign databases for information about the alien, and to
    liaise with law enforcement agencies.
        This subtitle provides an alternative mechanism whereby the
    Attorney General can certify an alien as a suspected terrorist
    (or as having engaged in espionage and certain other offenses)
    and detain him for up to seven days before placing him in
    removal proceedings or charging him with a crime. If no charges
    are filed by the end of this period, the alien must be
    released. Otherwise, the Attorney General shall maintain
    custody of the alien until the alien is removed from the U.S.
    or found not to be inadmissible or deportable. The Attorney
    General must submit a report to Congress on the use of these
    provisions every six months.
        Under this mechanism, the Attorney General or Deputy
    Attorney General (with no further power of delegation) may
    certify an alien if they have reasonable grounds for their
    belief. The alien shall be maintained in custody irrespective
    of any relief from removal granted the alien, until the
    Attorney General determines that the alien no longer warrants
    certification. However, if an alien detained pursuant to this
    section is ordered removed as a terrorist (or on the other
    grounds allowing certification) but has not been removed within
    90 days and is unlikely to be removed in the reasonably
    foreseeable future, the alien may only be detained for
    additional periods in six month allotments if the Attorney
    General demonstrates that release will threaten the national
    security of the U.S. or the safety of the community or of any
    person.
        The Attorney General shall review his certification of an
    alien every six months. If the Attorney General determines in
    his discretion that the certification should be revoked, the
    alien may be released on such conditions as the Attorney
    General deems appropriate. The alien may request each six
    months in writing that the Attorney General reconsider the
    certification and may submit documents or other evidence in
    support of that request.
        Judicial review as to certification or detention is limited
    to habeas corpus review. A final order of any circuit or
    district judge is subject to review on appeal only by the U.S.
    Court of Appeals for the District of Columbia Circuit. The law
    applied by the Supreme Court and the Court of Appeals for the
    District of Columbia Circuit shall be regarded as the rule of
    decision in all such habeas corpus proceedings. Habeas corpus
    review shall include review of the merits of a decision to
    certify an alien as a terrorist or to detain an alien despite
    the fact that removal is unlikely in the reasonably foreseeable
    future.
        The subtitle provides that the Secretary of State may, on
    the basis of reciprocity, provide to aforeign government
    information in the State Department's visa lookout database and related
    information with regard to individual aliens at any time on a case-by-
    case basis for the purpose of preventing, investigating, or punishing
    acts that would constitute crimes in the U.S., or with regard to any or
    all aliens in the database pursuant to conditions the Secretary
    establishes in an agreement with the foreign government in which that
    government agrees to use such information only for such purposes or to
    deny visas to person who would be inadmissible in the U.S.
        The subtitle also states the sense of Congress of the need
    to expedite implementation of the integrated entry and exit
    data system established by the Illegal Immigration Reform and
    Immigrant Responsibility Act of 1996.
        The subtitle amends the foreign student tracking system
    created by IIRIRA to clarify that the system applies to
    educational institutions such as air flight schools, language
    training schools, or vocational schools approved by the
    Attorney General to accept foreign students under ``F'', ``J'',
    or ``M'' student visas. The subtitle authorizes approximately
    $37 million to fully implement the tracking system by January
    1, 2003.
        Finally, the subtitle advances the date by which aliens
    wanting to be admitted through the visa waiver program must
    have machine-readable passports to October 1, 2003. However,
    between that date and the old deadline of October 1, 2007, the
    Secretary of State may waive this requirement with respect to
    aliens of particular countries if he determines that a country
    is making progress toward making such passports generally
    available and has taken appropriate measures to protect against
    misuse of its passports that are not machine readable.

                Subtitle C--Preservation of Immigration Benefits for
                        Victims of Terrorism
        A number of aliens legally present in the United States
    were likely victims of the terrorist attacks on the U.S. on
    September 11, 2001, were the family members of victims, or were
    caught up in the attacks' aftermath. This subtitle was designed
    to make certain modifications to the immigration law to provide
    humanitarian relief to these aliens. Most importantly, the
    subtitle provides permanent resident status through the special
    immigrant program to an alien who was the beneficiary of a
    petition filed on or before September 11 to grant the alien
    permanent residence as a family-sponsored or employer-sponsored
    immigrant, or the beneficiary of an application for labor
    certification filed on or before September 11, if the petition
    or application would otherwise have been rendered null because
    of the death or disability of the petitioner, applicant, or
    beneficiary, or the loss of employment due to physical damage
    of, or destruction of, the business of the petitioner or
    applicant, as a direct result of the terrorist attacks on
    September 11.
        Another of the provisions provides for the extension of
    status for aliens who were legally in a nonimmigrant status on
    September 11 and were the spouses and children of aliens who
    died as a direct result of the terrorist attacks, or who
    themselves had been disabled as a direct result of the
    terrorist attacks on September 11. The extension lasts until
    the later of the date that his or her status normally would
    have terminated or one year after the death or onset of
    disability.
        Legislative History.--On September 24, 2001, the Committee
    on the Judiciary held one hearing on the Administration's
    proposed legislation ``the Mobilization Against Terrorism Act
    of 2001,'' which formed the basis of H.R. 2975, ``the Provide
    Appropriate Tools Required to Intercept and Obstruct Terrorism
    Act of 2001,'' (PATRIOT Act). Testimony was received from four
    witnesses, representing the Department of Justice. The
    witnesses were: the Honorable John Aschroft, Attorney General;
    Michael Chertoff, Assistant Attorney General for the Criminal
    Division; Larry Thompson, Deputy Attorney General; and Viet
    Dinh, the Assistant Attorney General for Legal Policy. On
    October 3, 2001, the Committee met in open session and ordered
    favorably reported the bill H.R. 2975, as amended, by a 36-0
    vote, a quorum being present. The bill was reported to the
    House on October 11, 2001 (H. Rept. 107-236). On October 12,
    2001, Chairman Sensenbrenner introduced H.R. 3108, which was
    incorporated as an amendment in the nature of a substitute into
    H.R. 2975. On October 11, 2001, the Senate passed its version
    of the bill, S. 1510, the ``Uniting and Strengthening America
    Act of 2001,'' (U.S.A. Act). The House passed H.R. 2975, as
    amended, on October 12, 2001, by a recorded vote (Roll No. 385)
    of 337 yeas to 79 nays. After informal negotiations, the House
    and Senate incorporated the two versions into H.R. 3162, the
    ``Uniting and Strengthening America by Providing Appropriate
    Tools Required to Intercept and Obstruct Terrorism Act of
    2001,'' (The U.S.A. Patriot Act). H.R. 3162 also incorporated
    provisions of H.R. 3004, the ``Financial Anti-Terrorism Act,''
    and H.R. 3160, the ``Bioterrorism Prevention Act of 2001.''
    H.R. 3162 became Public Law 107-56 on 10/26/2001.

    H.R. 3295, the ``Help America Vote Act of 2002'' (Public Law 107-252)

        Summary.--Reports of problems in Florida and elsewhere
    during the 2000 election raised concerns among the American
    public about specific failures and the overall integrity of the
    election system such as: voting fraud and irregularities;
    problems with ballots from military and overseas voters; the
    electoral college; and the effect of media projections of state
    outcomes before the polls have closed. Previously obscure
    details of voting and vote counting became the focus of public
    attention. More than 80 bills and resolutions were introduced
    in the 107th Congress to make broad-reaching or more limited
    changes to the electoral system in the U.S. The House and
    Senate each passed differing versions of election reform bills.
    Subsequently, a House/Senate conference committee was convened
    and resulted in passage of H.R. 3295, the ``Help America Vote
    Act of 2002,'' in response to the concerns of Americans raised
    by the 2000 Presidential elections. This legislation marked the
    first significant reforms to our electoral system in the U.S.
    since passage of the Voting Rights Act of 1964.
        H.R. 3295 establishes a new federal commission to replace
    the Office of Election Administration (OEA) of the Federal
    Election Commission and also to perform some new functions.
    Funding for the Commission is authorized for three fiscal years
    and members are appointed by the President. It also establishes
    two new boards, with broad-based state and local membership, to
    address various aspects of voting system standards. The main
    duties of the Commission include administering the grant
    programs, providing for testing and certification of voting
    systems, studying elections issues,and issuing voluntary
    guidelines for voting systems and other federally-mandated requirements
    in the bill. The Commission will not have any new rule-making
    authority.
        H.R. 3295 provides formula grants to replace punchcard
    systems, lever voting machines, and other general election
    administration improvements. With respect to voting systems and
    technology, H.R. 3295 requires voters be provided with an
    opportunity to correct errors and sets minimum requirements for
    voting systems to assure voting machinery meets minimum error
    rates.
        H.R. 3295 also provides grants to states to help ensure the
    disabled have access to the polling place and that the voting
    systems are fully accessible to those with disabilities.
        The final agreement also contains new anti-vote fraud
    provisions, including the following: (1) states are now
    required to maintain a computerized statewide voter
    registration list; (2) voter registration applicants must
    specifically affirm their American citizenship; (3) new voters
    who register by mail must provide proof of identity at some
    point in the process; \38\ (4) it is now a federal crime to
    conspire to commit voter fraud; (5) voters who do not appear on
    a registration list must be allowed to cast a provisional
    ballot, however, those ballots will be held and counted
    separately until verified a legal vote; (6) if a poll is held
    open beyond the time provided by state law, votes cast after
    that time will be cast provisionally and held separately; and
    (7) voters will be required to include either their driver's
    license number or the last four digits of their social security
    number on their voter registration form.
    ---------------------------------------------------------------------------
        \38\ Among the acceptable forms of identification are the
    following: utility bill, government check, bank statement, or driver's
    license. In lieu of the individual providing proof of identity, states
    may also electronically verify an individual's identity against
    existing state databases.
    ---------------------------------------------------------------------------
        And finally, H.R. 3295 leaves the specific methods of
    implementing the requirements to the discretion of the states
    but requires the OEA develop voluntary guidance to help states
    meet the requirements. In addition, states must establish
    administrative procedures to receive and act on complaints with
    regard to violations of the requirements set out in the Act.

                The Senate amendment sections within the Judiciary
                        Committee's jurisdiction
        Both the House and Senate versions of the bill provided
    grants to state and local governments for replacing and
    improving registration and voting systems and improvements in
    election administration. However, the method of administering
    the grant programs were significantly different and of primary
    concern to the Committee. Under the Senate-passed amendment,
    Title II, parts A, B, and C, required the Civil Rights Division
    of the DOJ to promulgate implementation guidelines for states
    to meet federally mandated requirements for voting systems,
    provisional voting, voting information requirements, and voter
    registration. And, if states were not in compliance with such
    guidelines, the Attorney General was then to bring a civil
    action against any noncompliant states. The conference report
    eliminates the role of the DOJ in administering the grant
    programs.
        Under the final version conference report, states will now
    self-certify compliance with the Act, and if a state is found
    to be noncompliant, the DOJ will enforce the Act. In addition,
    section 311 of the Senate amendment was then eliminated in the
    conference report due to the change in responsibility for
    administration of the grant program from the Department of
    Justice to the newly created Election Assistance Commission.
        Section 101 of the Senate amendment describing Voting
    Systems Standards became section 301 of the conference report.
    The significant change to the original language was to Section
    101(a)(4) referring to alternative language accessibility. The
    conference report section 301(a)(4) made this provision
    consistent with the already existing requirements of section
    203 of the Voting Rights Act of 1965 (42 U.S.C. 1973aa-1a).
        Section 102 of the Senate amendment providing for
    provisional voting was kept essentially the same in the
    conference report, however, one significant portion was added.
    Section 302(c) added language that now requires that if polls
    are held open after the poll-closing time as a result of a
    court order, those votes will be held separately from other
    provisional ballots.
        Section 104 of the Senate amendment provided for
    enforcement of Title I by the Assistant Attorney General of the
    Civil Rights Division to bring any civil actions for
    declaratory or injunctive relief. The role of the Civil Rights
    Division was eliminated from the final version, and enforcement
    power for the new law is found in Title IV and was given to the
    Attorney General. In addition, the safe harbor provision which
    protected states until January 1, 2010 from civil action for
    noncompliance with certain provision of the Act, such as
    provisional voting, was removed. This change now requires
    states to comply with the provisional voting and computerized
    statewide voter registration system by 2004, and to comply with
    the voting equipment requirements by 2006.
        Sections 501 (providing for the AG to review and report on
    existing electoral fraud statutes and penalties and provide
    such a report to Congress) and 502 (providing new criminal
    penalties for conspiracy to deprive voters of a fair election
    and providing false information when registering or voting) of
    the Senate amendments remained in the final version of the
    conference report.

                The House bill sections within the Judiciary Committee's
                        jurisdiction
        Section 216 of the House bill remained exactly the same in
    the conference report. This section provides that 28 U.S.C.
    chapters 161 and 171 apply with respect to the liability of the
    Standards Board, and the Board of Advisors, such that there is
    no protection from personal liability for criminal acts of a
    member of the Standards Board or the Board of Advisors.
        Section 221 of the House bill covered voluntary election
    standards and made the Election Assistance Commission
    responsible for making periodic studies available to the public
    regarding election administration issues. The conference report
    changes this section in several ways. First,it makes election
    standards mandatory, and second, section 241(b)(5-13) makes the
    language more explicit with respect to blind and visually impaired
    voters, Native American or Alaska Native citizens, and other
    information regarding voter fraud, intimidation and eligibility.
        Title IV of the House bill became Section 601 of the
    conference report and remained the same. Section 601 amends
    Part B of subtitle II of 36 U.S.C. to establish the federally
    chartered Help America Vote Foundation to mobilize secondary
    school students to participate as nonpartisan poll workers and
    assistants. It permits the Attorney General to bring a civil
    action for relief for behavior by the foundation that is
    inconsistent with the purposes designated in the Act.
        Legislative History.--H.R. 3295, the ``Help America Vote
    Act of 2001'' was introduced on November 14, 2002, after
    several months of negotiation, by the Chairman and Ranking
    Member of the House Administration Committee, Representatives
    Bob Ney (R-OH) and Steny Hoyer (D-MD) (for themselves and 77
    original cosponsors). A markup was held by the House
    Administration Committee on November 15, 2001, and the bill was
    reported favorably to the House by a unanimous vote of the
    Committee. The House Administration Committee file H. Rept.
    107-325, on December 12, 2001. The following committees
    received referrals of H.R. 3295 at introduction: Armed
    Services, Science, Government Reform and Judiciary. The other
    three committees waived their jurisdiction, however, the
    Judiciary Committee held a legislative hearing on H.R. 3295 on
    December 5, 2001. The particular provisions of the original
    bill that invoked Judiciary Committee jurisdiction included
    certain provisions of Title II, which required statutory
    compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973,
    et. seq.), as well as Title V provisions authorizing the
    Attorney General of the United States to bring a civil action
    against any state that did not satisfy the requirements of the
    title.
        The witnesses testifying at the hearing included: Cleta
    Mitchell, Election Law Attorney, Foley & Lardner; Philip D.
    Zelikow, Executive Director, National Commission on Federal
    Election Reform (The Ford/Carter Commission); John R. Lott Jr.,
    Resident Scholar, American Enterprise Institute; Lloyd J.
    Leonard, Legislative Director, The League of Women Voters; and
    Jim Dickson, Vice President of Government Affairs, American
    Association of People with Disabilities. Of significant concern
    to the Committee was the issue of voter fraud, enforcement of
    the proposed law by the Department of Justice (DOJ), and
    enforcement of current laws involving voting rights and voting
    fraud.
        The Armed Services, Science, Government Reform, and
    Judiciary Committees were discharged from further consideration
    of the bill on December 10, 2001. H.R. 3295 passed in the House
    on December 12, 2001 on a 362 to 63 vote and H.R. 3295 was
    referred to the Senate for consideration. The Senate passed
    H.R. 3295, amended, by a vote of 99 to 1 on April 11, 2002.
        The Senate appointed conferees on May 1, 2002, and the
    House appointed conferees on May 16, 2002. The following
    Members from the Committee on the Judiciary were appointed as
    conferees for the consideration of sections 216, 221, Title IV,
    sections 502, and 503 of the House bill and sections 101, 102,
    104, subtitles A, B and C of Title II, sections 311, 501 and
    502 of the Senate amendments, and modifications committed to
    conference: Chairman Sensenbrenner, Steve Chabot (R-OH), and
    Ranking Member John Conyers (D-MI).
        On July 9, 2002, the House voted to instruct conferees to
    accept the Senate provision on standards for polling place
    accessibility. Additional instructions urging conferees to
    reach agreement by early October were passed on September 19,
    September 26, and October 2, 2002. A conference agreement was
    announced by the managers on October 4, 2002 and the conference
    report, H. Rept. 107-730, was filed on October 8, 2002. It was
    adopted by the House on October 10, 2002 on a vote of 357 to
    48, and by the Senate on October 16, 2002, on a vote of 92 to
    2. The President signed the bill into law on October 29, 2002
    (P.L. 107-252).

    H.R. 3525, the Enhanced Border Security and Visa Entry Reform Act of
            2002 (Public Law 107-173)

        Summary.--Since September 11, 2001, the nation has learned
    how deeply vulnerable our immigration system is to exploitation
    by aliens who wish to harm Americans. H.R. 3525 makes needed
    changes to our immigration laws to fight terrorism and prevent
    such exploitation.
        H.R. 3525 authorizes an increase of INS inspectors and
    support staff by at least 200 full-time employees over the
    levels authorized in the USA-PATRIOT Act for fiscal years 2003-
    06, and an increase of INS investigators and support staff by
    the same amount. The Act also authorizes sums necessary to
    increase the rate of pay for certain Border Patrol agents,
    inspectors and other INS personnel and necessary to train INS
    personnel in order to better protect U.S. borders and enforce
    the Immigration and Nationality Act. The Act authorizes $150
    million in order for the INS to improve border security
    technology and to facilitate the flow of commerce and persons
    at ports of entry. The Act authorizes funds for the INS and
    State Department to improve facilities used by their employees.
        The Act provides that the State Department's machine-
    readable visa fee shall be the higher of $65 or the actual
    cost, and that a $10 surcharge may be added for the issuance of
    a machine-readable visa in a nonmachine-readable passport.
        The Act requires the President to submit to Congress a
    report identifying federal law enforcement and intelligence
    community information needed by the State Department to screen
    visa applicants and by the INS to screen applicants for
    admission and to identify inadmissible and deportable aliens.
    This report replaces one that had been required by the USA-
    PATRIOT Act. Based on the findings of this report, the
    President shall develop and implement a plan to require federal
    law enforcement agencies and the intelligence community to
    provide the necessary information to the State Department and
    INS. This plan shall establish conditions on the use of this
    information in order to limit its redissemination; to ensure
    that it is used solely for its intended purposes; to secure its
    accuracy, security and confidentiality; to protect privacy
    rights of subjects; to provide for data integrity; and to
    protect the sources and methods of intelligence information.
    Misuse of informationcarries criminal penalties. Until the plan
    is implemented, federal law enforcement agencies and the intelligence
    community shall, to the extent practicable, share information with the
    State Department and the INS relevant to the admissibility and
    deportability of aliens.
        The Act advances the dates established by the USA-PATRIOT
    Act by which the Attorney General and the Secretary of State
    must develop and certify a technology standard that can be used
    to verify the identity of persons applying for U.S. visas.
        By the time the President begins implementing the
    information sharing plan, he must develop and implement an
    interoperable electronic data system to provide immediate
    access to information in databases of federal law enforcement
    agencies and the intelligence community relevant to determining
    whether to issue a visa or to determine the admissibility or
    deportability of an alien. As part of this system, the INS must
    fully integrate all its databases that process or collect
    information on aliens. In developing the system, the President
    shall consult with the National Institute of Standards and
    Technology and other appropriate agencies. The technology
    standard utilized shall be the one established by the USA-
    PATRIOT Act. Information in the data system shall be readily
    and easily accessible to consular officers, federal officials
    responsible for determining the admissibility or deportability
    of aliens, or any federal law enforcement or intelligence
    officer responsible for the investigation or identification of
    aliens. The President shall develop appropriate limitations on
    access to the information. The system shall have the capacity
    to compensate for different spelling of names in different
    component databases. The system shall also be searchable in a
    linguistically sensitive basis that accounts for variations in
    name formats and transliterations and that incorporates
    advanced linguistic and other methods. Linguistically sensitive
    algorithms shall be developed and implemented within certain
    time frames for no fewer than four high priority languages
    selected by the Secretary of State. Such sums as are necessary
    are authorized to carry out this system.
        The President shall establish a Commission on Interoperable
    Data Sharing to provide oversight of the data system and
    monitor the associated privacy and other protections regarding
    the data.
        The Attorney General may hire and fix the compensation of
    (up to the rate payable at level III of the Executive Schedule)
    necessary scientific, technical, engineering, and other
    analytical personnel for purposes of the development and
    implementation of the system.
        The Act requires the Secretary of State to provide to the
    INS an electronic version of the visa file of each alien who
    has been issued a visa so that it is available to INS
    inspectors at ports of entry.
        In developing the integrated entry and exit data system for
    ports of entry required by the Illegal Immigration Reform and
    Immigrant Responsibility Act of 1996, as amended, the Attorney
    General and the Secretary of State shall use the technology
    standard required under the USA-PATRIOT Act; establish a
    database containing the arrival and departure data from
    machine-readable visas, passports and other documents; and make
    interoperable all security databases relevant to making
    determinations of inadmissibility of aliens.
        The Act requires that no later than October 26, 2004, the
    Attorney General and the Secretary of State shall issue to
    aliens only machine-readable, tamper-resistant visas and other
    travel documents that use biometric identifiers, employing the
    technology standard established pursuant to the USA-PATRIOT
    Act. Document authentication standards and biometric
    identifiers standards are to be employed from among those
    biometric identifiers recognized by domestic and international
    standards organizations. By this same date, the Attorney
    General shall install at all ports of entry equipment to allow
    biometric comparison and authentication of all U.S. visas and
    travel documents and passports issued by visa waiver program
    countries, also relying on the USA-PATRIOT Act technology
    standard. Also by this date, each country participating in the
    visa waiver program shall certify, as a condition for
    participation in the program, that it has a program to issue to
    its nationals machine-readable passports that are tamper-
    resistant and incorporate biometric and document
    authentification identifiers that comply with International
    Civil Aviation Organization standards. On or after the October
    26, 2004, date, any alien applying for admission under the visa
    waiver program must present a passport that meets these
    requirements unless the passport was issued prior to that date.
    Not later than 180 days after enactment, a report must be
    submitted to Congress assessing the actions that will be
    necessary to carry out these plans by the October 2004 date.
    The Act authorizes such sums as may be necessary to carry out
    these plans.
        The Act requires the Secretary of State to maintain
    terrorist lookout committees that meet at least monthly at each
    U.S. mission in a foreign country to identify known or
    potential terrorists and to ensure that such information is
    brought to the attention of appropriate U.S. officials and
    entered into the appropriate lookout databases. The Act
    authorizes such sums as may be necessary to carry out these
    plans.
        The Secretary of State shall require that all consular
    officers responsible for adjudicating visa applications first
    receive specialized training in the effective screening of visa
    applicants who pose a threat to the safety or security of the
    U.S. Consular officers should also be provided with as much
    nonclassified information as possible regarding such visa
    applicants. The Act authorizes such sums as may be necessary to
    carry out these plans.
        The Act provides that no nonimmigrant visa may be issued to
    any alien who is a national of a country that is a state
    sponsor of international terrorism as determined by the
    Secretary of State, unless the Secretary determines that such
    alien does not pose a threat to the safety or national security
    of the U.S.
        The Act provides that a country can only be designated into
    the visa waiver program if it certifies that it report to the
    U.S. on a timely basis the theft of blank passports issued by
    that country. The Attorney General must evaluate at least every
    two years the effect of each participating country's continued
    participation in the visa waiver program on the law enforcement
    and security interests of the U.S. Also, if the Attorney
    General and the Secretary of State jointly determine that a
    participating country is not reporting the theft of blank
    passports as required, the country shall beterminated from the
    program. Prior to the admission of any alien under the visa waiver
    program, the INS must determine that the alien does not appear on any
    of the appropriate lookout databases available to immigration
    inspectors.
        Once the law enforcement and intelligence data system is
    implemented, the Attorney General and the Secretary of State
    shall enter into the system the corresponding identification
    number for lost or stolen passports within 72 hours of
    receiving notification. The identification numbers of U.S. and
    foreign passports lost or stolen prior to the implementation of
    the data system shall be entered to the extent practicable.
        The Act requires the President to conduct a study of the
    feasibility of establishing a North American National Security
    Program to enhance the mutual security and safety of the U.S.,
    Canada, and Mexico. The study shall consider the feasibility of
    establishing a program enabling foreign national travelers to
    the U.S. to submit voluntarily to a preclearance procedure and
    of expanding reinspection facilities at foreign airports.
        The Act requires that for each commercial vessel or
    aircraft transporting any person to any U.S. seaport or airport
    from abroad, the U.S. border officer at the port must be given
    manifest information about each passenger, crew member, and
    other occupant prior to its arrival. Similar departure
    manifests must be given when leaving the U.S. (unless the
    Attorney General authorizes their provision at a later date
    regarding certain vessels and aircraft making regular trips to
    the U.S.). Not later than January 1, 2003, manifest information
    must be transmitted electronically. No clearance papers will be
    granted until the manifest provisions are complied with. If a
    carrier refuses or fails to provide manifest information, or
    provides inaccurate or incomplete information, a fine of $1,000
    per traveler will be assessed. The Attorney General may waive
    the manifest provisions upon such circumstances and conditions
    as he may specify. The Act requires that the President conduct
    a study regarding the feasibility of extending the manifest
    requirements to commercial land carriers.
        The Act repeals the provision of immigration law requiring
    that arriving passengers on scheduled airline flights have
    their immigration processing completed within 45 minutes.
    However, the INS should staff ports of entry with the goal of
    meeting the 45 minute standard.
        The Act allows U.S. border inspection agencies to conduct
    joint U.S.-Canada inspections projects on the international
    border between the two countries.
        The Act modifies the electronic foreign student tracking
    system so that it monitors and verifies: (1) the issuance of an
    acceptance of a foreign student or an exchange visitor by an
    educational institution; (2) the transmittal of the
    documentation to the State Department; (3) the issuance of a
    visa to such alien; (4) the admission into the U.S. of the
    alien; (5) the notification of the institution that the alien
    has been admitted to the U.S.; (6) the enrollment of the
    student or participation in the exchange program; and (7) any
    change in institution by the alien or termination of studies or
    participation.
        Institutions must report within 30 days of a deadline for
    an alien registering for classes or commencing participation in
    an exchange program any failure of the alien to enroll or to
    commence participation. Not later than 120 days after the date
    of enactment, and until the electronic foreign student tracking
    system (as here amended) is fully implemented, a transitional
    program must be in place to provide much of this information.
        Not later than two years after enactment, and every two
    years thereafter, the INS shall conduct a review of the
    institutions certified to receive aliens under the student and
    exchange visitor nonimmigrant visa programs. The review shall
    determine the institutions' compliance with the record keeping
    and reporting requirements of the visa programs and of the
    electronic foreign student tracking system. Also, the Secretary
    of State shall conduct similar reviews of entities designated
    to sponsor exchange visitors. Material failure of an
    institution or entity to comply shall result in suspension for
    at least one year, or termination of the institution's approval
    to accept students or to sponsor exchange visitors.
        Finally, the Act extended to October 1, 2002, the deadline
    by which only the biometric border crossing identification
    cards required by the IIRIRA will be accepted. See discussion
    of H.R. 2276.
        Legislative History.--On December 19, 2001, Chairman F.
    James Sensenbrenner introduced H.R. 3525. On December 19, 2001,
    the House passed H.R. 3525 under suspension of the rules, as
    amended, by a voice vote. On April 18, 2002, the Senate passed
    H.R. 3525, as amended, by a vote of 97-0. On May 8, 2002, the
    House passed H.R. 3525, as amended, by the Senate by a vote of
    411-0 with 2 present. On May 14, 2002, the President signed
    H.R. 3525 into law (Public Law No. 107-173). See H. Res. 365.

    H.R. 3925, the ``Digital Tech Corps Act''

        Summary.--Representative Tom Davis introduced H.R. 3925,
    the ``Digital Tech Corps Act,'' on March 12, 2002. The bill
    establishes an employee exchange program for information
    technology management personnel between the Federal Government
    and the private sector. H.R. 3925 provides Federal employees
    throughout the Federal Government with additional on-the-job
    training and education. Additionally, the bill will enhance the
    ability of Federal agencies to attract and retain quality
    information technology experts.
        H.R. 3925, the ``Digital Tech Corps Act of 2002'', is in
    response to a growing concern that the Federal Government is
    unable to attract and retain quality information technology
    experts. This problem is magnified with the increased use of
    technology throughout the Federal Government. The Government
    Accounting Office (GAO) found that the Federal Government faces
    a substantial human capital shortage that is estimated to
    intensify because 34 percent of the Federal workforce is
    eligible to retire in the next 5 years. This shortfall is even
    worse for the information technology fields. When a GAO
    official testified before the Government Reform Committee last
    summer on the earlier version of the bill, GAO explained that
    ``estimated that fifty percent of thegovernment's technology
    workforce will be eligible to retire by 2006.'' \39\ Information
    technology is one of the top priorities for the Nation in all respects
    including national security, law enforcement and economic growth. This
    legislation addressed the human resource issues.
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        \39\ H.R. Rep. No. 107-379, pt. 1, at 6.
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        Legislative History.--The Committee on Government Reform
    reported the bill, as amended, favorably on March 14, 2002. The
    legislation was then referred to the Committees on the
    Judiciary and Ways and Means for a 1-day referral on March 18,
    2002 and that referral was extended to April 9, 2002. The
    Committee on the Judiciary did not hold hearings on H.R. 3925,
    the ``Digital Tech Corps Act of 2002.'' On March 20, 2002, the
    Committee met in open session and ordered favorably reported
    the bill, as amended, by voice vote, a quorum being present.
    The bill was reported to the House on April 9, 2002 (H. Rept.
    107-379, Part II). On April 10, 2002, the bill passed the House
    by voice vote. No further action was taken on the bill, H.R.
    3925, during the 107th Congress.

    H.R. 5005/H.R. 5710, the ``Homeland Security Act of 2002'' (Public Law
            Number 107-296)

        Summary.--The United States faces increasingly diffuse
    threats to its internal security. Given the overwhelming
    superiority of U.S. military power, hostile nations and
    terrorist organizations increasingly employ nonconventional
    methods to threaten the American people and institutions. A
    basic and fundamental role of the federal government under our
    Constitution is to protect the American people from domestic
    and foreign threats. Currently, the United States does not
    possess a coordinated assessment, reduction, and response
    program to protect the American homeland against these
    increasingly diverse threats. Federal antiterrorism and
    homeland defense responsibilities are dispersed over more than
    22 departments and agencies throughout the federal
    government.\40\
    ---------------------------------------------------------------------------
        \40\ David. M. Walker, Comptroller General, General Accounting
    Office, Combating Terrorism, Selected Challenges and Related
    Recommendations, Report to Congressional Committees, September 20,
    2001, GAO-01-822, at 5.
    ---------------------------------------------------------------------------
        The terrorist attacks on the World Trade Center and the
    Pentagon took more than 3,000 lives, caused approximately $100
    billion in economic losses, triggered U.S. military
    intervention in Afghanistan to topple the Taliban regime, and
    led to passage of an historic overhaul of federal law
    enforcement policies and priorities culminating in the
    enactment of the PATRIOT Act.\41\ The events of September 11th,
    2001 will reverberate for many years, if not decades.\42\ These
    events also lent impetus to House passage of legislation to
    tighten security at America's airports,\43\ reform the
    Immigration and Naturalization Service,\44\ and to enhance
    border security.\45\
    ---------------------------------------------------------------------------
        \41\ Pub. L. No. 107-56, 115 Stat 272 (codified as amended in
    scattered sections of 18 U.S.C.) (2001).
        \42\ See Michael E. O'Hanlon, et. al, Protecting the American
    Homeland, A Preliminary Analysis, The Brookings Institution, Brookings
    Institution Press, 2002 at 1, visited June 23, 2002),
        \43\ ``Air Transportation Safety and System Stabilization Act,''
    Pub L. No. 107-42, 115 Stat. 230 (2001).
        \44\ H.R. 3231, the ``Barbara Jordan Immigration Reform and
    Accountability Act,'' 107th Congress (2002), (passed the House of
    Representatives, April 25, 2002).
        \45\ ``Enhanced Border Security and Visa Entry Reform Act of
    2002,'' Pub. L. No. 107-173, 116 Stat 543 (2002).
    ---------------------------------------------------------------------------

                   JUDICIARY COMMITTEE AND HOMELAND SECURITY

        The creation of a Department of Homeland Security
    overwhelmingly implicates the jurisdiction of the Committee on
    the Judiciary. House Rule X provides the Judiciary Committee
    with jurisdiction over ``subversive activities affecting the
    internal security of the United States.'' \46\ The Committee
    also has jurisdiction over civil and criminal judicial
    proceedings.\47\ As a result, the Committee has jurisdiction
    over federal law enforcement activities undertaken by a number
    of federal departments and agencies, including the United
    States Secret Service, Federal Bureau of Investigation, and the
    Immigration and Naturalization Service of the Department of
    Justice. The proposed Department's central, predominate purpose
    is to assess, prevent, and respond to terrorism and other
    threats affecting America's internal security. The Committee
    also has exclusive jurisdiction over the nation's immigration
    and naturalization laws,\48\ as well as the federal
    administrative practice and procedure which governs federal
    agencies.\49\ In addition, the proposed Department would
    incorporate a number of federal agencies over which the
    Judiciary Committee presently exercises exclusive legislative
    and oversight responsibilities. The centrality of the newly
    established Department's law enforcement mission necessitates
    careful consideration by this Committee.
    ---------------------------------------------------------------------------
        \46\ See House Rule X (k)(18), Rules of the House of
    Representatives; see also Judy Schneider, House and Senate Committee
    Organization and Jurisdiction: Considerations Related to Proposed
    Department of Homeland Security, Congressional Research Service, June
    10, 2002, RL31449, .
        \47\ House Rule X (k)(1).
        \48\ Id. at (k)(8).
        \49\ Id. at (k)(2).
    ---------------------------------------------------------------------------
                Departmental components transferred by H.R. 5005 (as
                        introduced) to the Department of Homeland Security
                        within the jurisdiction of the Judiciary Committee
                Immigration and Naturalization Service, including the
                        Border Patrol
        Section 402 of H.R. 5005 would have transferred all
    operational assets and control over the Immigration and
    Naturalization Service to the new Department's Border and
    Transportation Security Division. Transferring the Immigration
    and Naturalization Service (INS) raises a number of critical
    questions. The proposal vests the Secretary of the new
    Department with authority to regulate the issuance of entry
    visas at United States diplomatic or consular offices overseas
    ``through the authority of the Secretary of State.'' As a
    result, the Department of State would continue to exercise
    authority over the issuance of visas by United States embassies
    and consulates.

                United States Secret Service
        Section 720 of H.R. 5005 transfers the United States Secret
    Service to the new Department. However, the bill specifies that
    the Secret Service shall be maintained as a distinct entity
    with the new Department. The Committee on the Judiciary has
    authorizing jurisdiction over the Service. The bill maintains
    the present appointment of the Director of the Secret Service
    by the President, but transfers operation control of the
    Service from the Department of the Treasury. The measure
    maintains the security role the Secret Service has begun to
    provide at national security events, and retains the Service's
    core mission of protecting the President and his family. Crime
    prevention is central to the mission of the Secret Service.
    Under applicable statutes, the Secret Service engages in
    several law enforcement functions, such as anti-
    counterfeiting,\50\ threats against the President or his
    successors,\51\ credit card fraud,\52\ computer crimes,\53\ and
    fraud against financial institutions.\54\ The Secret Service's
    core law enforcement functions would be maintained under the
    President's proposal.
    ---------------------------------------------------------------------------
        \50\ 18 U.S.C. Sec. Sec. 331-333 and 470-504 (2000).
        \51\ Id. at Sec. 871.
        \52\ Id. at Sec. 1029.
        \53\ Id. at Sec. 1030.
        \54\ Id. at Sec. 1344.
    ---------------------------------------------------------------------------
                National Infrastructure Protection Center, Federal Bureau
                        of Investigation
        Section 202 of H.R. 5005 would have transferred operational
    control of the National Infrastructure Protection Center (NIPC)
    of the F.B.I. to the new Department. NIPC, was established in
    1998 to ensure coordination among intergovernmental and private
    organizations to protect against terrorist threats to critical
    infrastructures.\55\ NIPC's mission is to serve as the federal
    government's focal point for threat assessment, warning,
    investigation, and response for threats or attacks against
    critical facilities, including telecommunications, computer,
    energy, banking and finance, water systems, government
    operations, and emergency services. A significant part of its
    mission involves establishing mechanisms to increase the
    sharing of vulnerability and threat information between the
    government and private industry.
    ---------------------------------------------------------------------------
        \55\ See Federal Bureau of Investigation, National Infrastructure
    Protection Center, [available at: http://www.fas.org/irp/agency/doj/
    fbi/nipc/].
    ---------------------------------------------------------------------------
        On May 22, 1998 President Clinton announced two new
    directives designed to strengthen U.S. defenses against
    terrorism and other unconventional threats: Presidential
    Decision Directives (PDD) 62 and 63. PDD-62 highlights the
    growing range of unconventional threats, including ``cyber-
    terrorism'' and chemical, radiological, and biological weapons,
    and creates a new and more systematic approach to defending
    against them.\56\ PDD-63 focuses specifically on protecting the
    Nation's critical infrastructures from both physical and
    computer-based attacks.\57\ NIPC was established as a result of
    this Directive.
    ---------------------------------------------------------------------------
        \56\ Presidential Decision Directive 62, Protection Against
    Unconventional Threats to the Homeland and Americans Overseas, May 22,
    1998.
        \57\ Presidential Decision Directive 63, Critical Infrastructure
    Protection, May 22, 1998.
    ---------------------------------------------------------------------------
                Office for Domestic Preparedness of the Office of Justice
                        Programs, Department of Justice
        The Office for Domestic Preparedness (ODP) was established
    by the Attorney General in 1998 to develop and implement a
    national program to enhance the capacity of state and local
    agencies to respond to incidents of domestic terrorism,
    particularly those involving weapons of mass destruction (WMD),
    through coordinated training, equipment acquisition, technical
    assistance, and support for Federal, state, and local
    exercises.\58\ ODP fulfills this mission through a series of
    program efforts responsive to the specific requirements of
    state and local agencies; ODP works directly with emergency
    responders and conducts assessments of state and local needs
    and capabilities to guide the development and execution of
    these programs. Assistance provided by ODP is directed at a
    broad spectrum of state and local emergency responders,
    including firefighters, emergency medical services, emergency
    management agencies, law enforcement, and public officials. The
    Office for Domestic Preparedness (ODP) (formerly The Office for
    State & Local Domestic Preparedness) is the program office
    within the Department of Justice (DOJ) responsible for
    enhancing the capacity of state and local jurisdictions to
    respond to, and mitigate the consequences of, incidents of
    domestic terrorism.
    ---------------------------------------------------------------------------
        \58\ See United States Department of Justice, Office of Justice
    Programs, Office for Domestic Preparedness, Overview, [available at:
    http://www.ojp.usdoj.gov/odp/about/ overview.htm].
    ---------------------------------------------------------------------------
                National Domestic Preparedness Office, Federal Bureau of
                        Investigation
        Former Attorney General Janet Reno created the National
    Domestic Preparedness Office (NDPO) on October 16, 1998,
    following a stakeholders conference that brought together
    leading members of the emergency response community. At this
    meeting, stakeholders recommended that all federal WMD
    preparedness assistance programs be coordinated by a single
    office. After consultation with the National Security Council,
    the Federal Bureau of Investigation (FBI), and others, the
    Attorney General directed the Bureau to lead an interagency
    coordination effort now known as the NDPO.
        The NDPO's federal partners include the Federal Emergency
    Management Agency, FBI, Department of Energy, Environmental
    Protection Agency, Department of Justice, Office for State and
    Local Domestic Preparedness Support, Department of Health and
    Human Services, and the National Guard Bureau. To coordinate
    and facilitate all federal WMD efforts to assist state and
    local emergency responders with planning, training, equipment,
    exercise, and health and medical issues necessary to respond to
    a WMD events. The NDPO's program areas encompass the six broad
    areas of domestic preparedness requiring coordination and
    assistance, including: Planning, Training, Exercises,
    Equipment, Information Sharing, and Public Health and Medical
    Services.

                Additional federal law enforcement functions transferred by
                        H.R. 5005 to the Department of Homeland Security
                United States Coast Guard
        The President's proposal transfers the Coast Guard from the
    Department of Transportation to the new Department of Homeland
    Security. With approximately 43,600 full-time uniformed and
    civilian personnel, the Coast Guard would be the largest
    federal agency absorbed into the Department. The Coast Guard is
    the federal government's principal maritime law-enforcement
    agency. It has about 37,000 active-duty uniformed personnel,
    about 6,000 civilian personnel, about 8,000 reserve uniformed
    personnel, and an annual budget of $5.702 billion.\59\ It
    performs a variety of missions that it groups into four major
    roles--maritime law enforcement, maritime safety, marine
    environmental protection, and national defense. The Coast Guard
    also performs a variety of law enforcement functions, including
    maritime narcotics enforcement.\60\
    ---------------------------------------------------------------------------
        \59\ United States Coast Guard, Overview, 1,5

      LAMAR S. SMITH, Texas, Chairman

    ROBERT C. SCOTT, Virginia            MARK GREEN, Wisconsin, Vice Chair
    ANTHONY D. WEINER, New York 2ARD COBLE, North Carolina
    SHEILA JACKSON LEE, Texas            BOB GOODLATTE, Virginia
    MARTIN T. MEEHAN, Massachusetts      STEVE CHABOT, Ohio
    WILLIAM D. DELAHUNT, Massachusetts   BOB BARR, Georgia
    ADAM B. SCHIFF, California 3A HUTCHINSON, Arkansas
                                         4
                                         RIC KELLER, Florida
                                         MIKE PENCE, Indiana 6

    ----------
    1 Subcommittee chairmanship and assignments approved January
    31, 2001.
    2  Anthony D. Weiner, New York, reassignment from the
    Subcommittee on Crime to the Subcommittee on Courts, the Internet, and
    Intellectual Property approved May 23, 2001.
    3 Adam B. Schiff, California, assignment to the Subcommittee
    approved May 23, 2001.
    4 Asa Hutchinson, Arkansas, resigned from House effective
    midnight August 6, 2001.
    5 Subcommittee name change from ``Crime'' to ``Crime,
    Terrorism, and Homeland Security'' approved March 20, 2002.
    6 Mike Pence, Indiana, assignment to the Subcommittee
    approved June 13, 2002.

    Tabulation of subcommittee legislation and activity

    Legislation referred to the Subcommittee..........................   297
    Legislation on which hearings were held...........................    21
    Legislation reported favorably to the full Committee..............    15
    Legislation reported adversely to the full Committee..............     0
    Legislation reported without recommendation to the full Committee.     0
    Legislation reported as original measure to the full Committee....     0
    Legislation discharged from the Subcommittee......................     8
    Legislation pending before the full Committee.....................     0
    Legislation reported to the House.................................    24
    Legislation discharged from the Committee.........................     6
    Legislation pending in the House..................................     6
    Legislation passed by the House...................................    24
    Legislation pending in the Senate.................................    20
    Legislation vetoed by the President (not overridden)..............     0
    Legislation enacted into Public Law...............................     3
    Legislation enacted into Public Law as part of other legislation..     6
    Days of legislative hearings......................................    18
    Days of oversight hearings........................................    14

                        Jurisdiction of the Subcommittee

        The Subcommittee on Crime, Terrorism, and Homeland Security
    has jurisdiction over the Federal Criminal Code, anti-terrorism
    efforts, homeland security, espionage, sabotage, drug
    enforcement, sentencing, parole and pardons, Federal Rules of
    Criminal Procedure, prisons, law enforcement and anti-terrorism
    assistance to state and local governments, and other
    appropriate matters as referred by the Chairman, and relevant
    oversight including the U.S. Coast Guard, Customs, U.S.
    Marshals, Bureau of Prisons, the Department of Homeland
    Security, the Drug Enforcement Administration, Bureau of
    Alcohol, Tobacco and Firearms, the Federal Bureau of
    Investigations, the Office of Justice Programs, and the
    Criminal Division of Justice. This report summarizes the
    highlights of the Subcommittee's activities during the 107th
    Congress.

                             Legislative Activities

           PROTECTING THE HOMELAND AND FIGHTING THE WAR ON TERRORISM

    H.R. 3209, the ``Anti-Hoax Terrorism Act of 2001''

        Summary.--Chairman Sensenbrenner, (R-WI) and Congressman
    Lamar Smith (R-TX) introduced H.R. 3209, the ``Anti-Hoax
    Terrorism Act of 2001,'' on November 1, 2001. This bill creates
    criminal and civil penalties for persons engaging in any
    conduct, with intent to convey false or misleading information,
    under circumstances where the conveyed information may
    reasonably be believed and where such information concerns an
    activity which would constitute a violation of 18 U.S.C.
    Sec. Sec. 175 (relating to biological weapons attacks), 229
    (relating to chemical weapons attacks), 831 (nuclear attacks)
    or 2332a (weapons of mass destruction attacks). Under current
    law, it is a felony to perpetrate a hoax such as falsely
    claiming there is a bomb on an airplane. It is also a felony to
    communicate, in interstate commerce, threats of personal injury
    to another. A gap exists, however, in the current law as it
    does not address a hoax related to biological, chemical, or
    nuclear dangers where there is no specific threat.
        Because of the tragic September 11, 2001 attacks and the
    October 2001 anthrax attacks, the public is alarmed and
    appropriately reporting suspicious activity. Our Nation is on
    high alert and our law enforcement cannot afford to be
    distracted with hoaxes. Such hoaxes may not be designed to
    influence public policy or governments, but are serious threats
    to the public's safety on many levels and are their own form of
    terrorism. H.R. 3209 makes it a felony to perpetrate a hoax
    related to biological, chemical, nuclear, and weapons of mass
    destruction attacks.
        Legislative History.--On November 7, 2001, the Subcommittee
    on Crime held one hearing on H.R. 3209, the ``Anti-Hoax
    Terrorism Act of 2001.'' The two witnesses who testified were:
    James F. Jarboe, Section Chief, Counterterrorism Division,
    Domestic Terrorism, Federal Bureau of Investigation, and James
    Reynolds, Chief, Terrorism and Violent Crime Section, Criminal
    Division, U.S. Department of Justice. On November 14, 2001, the
    Subcommittee met in open session and ordered favorably reported
    the bill, H.R. 3209, as amended, by voice vote, a quorum being
    present. On November 15, 2001, the Committee met in open
    session and ordered favorably reported the bill with an
    amendment by voice vote, a quorum being present. The bill was
    reported to the House on November 29, 2001 (H. Rept. 107-306).
    The House passed the bill on December 12, 2001, by a recorded
    vote (roll no. 491) of 423 yeas to 0 nays. No further actionwas
    taken on the bill, H.R. 3209, during the 107th Congress.

    H.R. 3275, the implementation legislation for the International
            Convention for the Suppression of Terrorist Bombings and for
            the International Convention for the Suppression of the
            Financing of Terrorism

        Summary.--Representative Lamar Smith (R-TX) introduced H.R.
    3275, the implementation legislation for the International
    Convention for the Suppression of Terrorist Bombings and for
    the International Convention for the Suppression of the
    Financing of Terrorism on November 9, 2001. H.R. 3275 amends
    title 18 of the United States Code to allow the U.S. to comply
    with the conditions of the two Conventions.
        Title I of the bill covers the International Convention for
    the Suppression of Terrorist Bombings. The U.S. proposed the
    International Convention for the Suppression of Terrorist
    Bombings after the 1996 bombing of the U.S. military personnel
    in Saudi Arabia. The U.S. signed the treaty on January 12,
    1998, and transmitted the treaty on September 8, 1999, to the
    Senate for its advice and consent to ratification. The
    Convention entered into force internationally on May 23, 2001.
    Treaty participants must either prosecute or extradite any
    person within their jurisdiction who unlawfully and
    intentionally delivers, places, discharges, or detonates an
    explosive or other lethal device in, into, or against a place
    of public use, a state or government facility, a public
    transportation system, or an infrastructure facility. A Nation
    is subject to these obligations without regard to the place
    where the alleged act covered by the Convention took place.
        Title II of the bill covers the International Convention
    for the Suppression of Financing of Terrorism. The United
    States signed this treaty on January 10, 2000, and transmitted
    it to the Senate for its advice and consent to ratification on
    October 12, 2000. This Convention imposes binding legal
    obligations upon Nations either to prosecute or to extradite
    any person within their jurisdiction who unlawfully and
    willfully provides or collects funds with the intent to carry
    out various terrorist activities. A Nation is subject to these
    obligations without regard to the place where the alleged act
    covered by the Convention took place.
        On October 23, 2001, the Senate Committee on Foreign
    Relations held a hearing on the ``terrorist bombings'' and the
    ``financing terrorism'' conventions. President Bush sent
    Congress a legislative proposal to implement these two treaties
    on October 26, 2001 (House Document 107-139). These treaties,
    once ratified, expand the legal framework for international
    cooperation in the investigation, prosecution, and extradition
    of persons who engage in bombings and financially support
    terrorist organizations to fill an important gap in
    international law.
        Legislative History.--On November 14, 2001, the
    Subcommittee on Crime held a legislative hearing and markup on
    H.R. 3275. The two witnesses who testified were: Sam Witten,
    Deputy Legal Adviser, U.S. Department of State and Michael
    Chertoff, Assistant Attorney General, Criminal Division, U.S.
    Department of Justice. On November 14, 2001, the Subcommittee
    on Crime met in open session and ordered favorably reported the
    bill, H.R. 3275, by voice vote, a quorum being present. On
    November 15, 2001, the Committee met in open session and
    ordered favorably reported the bill, H.R. 3275, with amendment
    by voice vote, a quorum being present. The bill was reported to
    the House on November 29, 2001 (H. Rept. 107-307). On December
    19, 2001, the bill passed the House by a recorded vote (roll
    no. 501) of 381 yeas to 36 nays. On June 14, 2002, the bill
    passed the Senate with an amendment by 83 yeas to 1 nay. On
    June 18, 2002, the House agreed to the Senate amendment through
    unanimous consent. On June 25, 2002, the President signed the
    bill and it became Public Law 107-197.

    H.R. 3482, the ``Cyber Security Enhancement Act of 2002''

        Summary.--Representative Lamar Smith (R-TX) introduced H.R.
    3482, the ``Cyber Security Enhancement Act of 2002,'' on
    December 13, 2001. This legislation increases penalties for
    cybercrimes to better reflect the seriousness of the crime;
    enhances law enforcement efforts through better coordination;
    and makes the Office of Science and Technology (OST) an
    independent office to serve as the national focal point for law
    enforcement science and technology efforts. OST will continue
    to assist in the development and dissemination of law
    enforcement technology, and to make technical assistance
    available to Federal, state, and local law enforcement agencies
    under the approval of the National Institute of Justice.
        Terrorists and high-tech vandals use computers and other
    technology to terrorize and harass businesses, private
    citizens, and the government. For example, hackers invade the
    privacy of citizens' homes to program personal computers into
    ``zombie computers.'' These zombie computers are then used for
    the denial-of-service attacks that bombard a target site with
    nonsense data. In February 2000, a denial-of-service attack on
    Yahoo and other companies cost millions of dollars. These types
    of attacks not only threaten our economy, but also our public
    safety. An attack on an emergency service network could prevent
    prompt responses to people in life threatening situations,
    causing injury or death.
        The Subcommittee on Crime, Terrorism, and Homeland Security
    held a series of oversight hearings. On May 24, 2001, the
    Subcommittee heard from three state and local officials on the
    efforts and needs of the police, the prosecutors, and the state
    governments to fight cyber crime. The witnesses were Michael T.
    McCaul, the Texas Deputy Attorney General for Criminal Justice;
    the Honorable Joseph I. Cassilly, the State's Attorney for
    Harford County, Maryland and Chairman of the Cyber Crime
    Committee for the National District Attorneys Association; and
    Ronald R. Stevens, the Senior Investigator for the Bureau of
    Criminal Investigation for the New York State Police, Computer
    Crime Unit. All three testified that they need better
    resources, training, standards, and equipment.
        On June 12, 2001, officials from three federal agencies
    testified before the Subcommittee. The witnesses were Michael
    Chertoff, the Assistant Attorney General of the Criminal
    Division for the Department of Justice; Thomas T. Kubic, the
    Deputy Assistant Director of the Criminal Investigative
    Division for the Federal Bureau of Investigation; and James A.
    Savage, Jr., the Deputy Special Agent in Charge of the
    Financial Crimes Division for United States Secret Service. The
    witnesses agreed that Federal laws regarding the processes and
    procedures to investigate and prosecute cybercrime were
    outdated.
        Alan Davidson, Associate Director at the Center for
    Democracy and Technology (CDT), a Washington, DC, non-profit
    group interested in civil liberties and human rights on the
    Internet and other new digital media, also testified. He urged
    the Subcommittee to consider privacy issues when drafting new
    legislation and updating the law. At the February 12, 2002
    legislative hearing on H.R. 3482, the ``Cyber Security
    Enhancement Act of 2002,'' Mr. Davidson testified that the
    ``[Center for Democracy and Technology (CDT)] commends this
    committee for holding this hearing, and for the relatively
    measured approach taken in H.R. 3482. We agree that computer
    crime and security is a serious problem that requires serious
    government response.''
        On June 14, 2001, representatives from the business
    community testified about the problems they face with
    cybercrime. The hearing focused on the efforts and concerns of
    private industry with regard to this issue. The witnesses
    agreed that sharing information was key to successfully address
    and prevent cybercrime. Additionally, the witnesses urged
    Congress to examine stricter penalties for cybercrime.
        The three hearings highlighted the threat of cybercrime and
    cyberterrorism against our citizens and our Nation and the
    definitive need for legislation. Representative Lamar Smith (R-
    TX) introduced H.R. 2915, ``the Public Safety and Cyber
    Security Enhancement Act of 2002,'' on September 20, 2001, to
    address the concerns brought forth in the hearings. Most of
    H.R. 2915 was adopted as part of the U.S.A. Patriot Act,\1\ the
    anti-terrorism bill, enacted on October 26, 2001, in response
    to the September 11th attacks. H.R. 3482, ``the Cyber Security
    Enhancement Act of 2002,'' responds to the previous hearings
    and ongoing discussions with law enforcement, industry, and
    academia representatives on the issues not covered in the
    U.S.A. Patriot Act.
    ---------------------------------------------------------------------------
        \1\ Pub. L. No. 107-56
    ---------------------------------------------------------------------------
        Legislative History.--The Subcommittee on Crime held one
    day of hearings on H.R. 3482 on February 12, 2002. The four
    witnesses who testified were: John G. Malcolm, Deputy Assistant
    Attorney General, Criminal Division of the Department of
    Justice; Susan Kelley Koeppen, Corporate Attorney, Microsoft
    Corporation; Clint Smith, Vice President and Chief Network
    Counsel of WorldCom; and Alan Davidson, Staff Counsel, Center
    for Democracy and Technology. On February 26, 2002, the
    Subcommittee met in open session and ordered favorably reported
    the bill, H.R. 3482, as amended, by voice vote, a quorum being
    present. On May 8, 2002, the Committee met in open session and
    ordered favorably reported the bill, H.R. 3482, as amended, by
    voice vote, a quorum being present. The bill was reported to
    the House on June 11, 2002 (H. Rept. 107-497). On July 15,
    2002, the bill passed the House by a recorded vote (roll no.
    296) of 385 yeas to 3 nays. The bill was incorporated into H.R.
    5710, the Homeland Security Act of 2002. On November 13, 2002,
    H.R. 5710 passed the House by a recorded vote (roll no. 477) of
    299 yeas to 121 nays. On November 19, 2002, the Senate
    incorporated H.R. 5710, as amended in the nature of a
    substitute, and passed H.R. 5005 by 90 yeas to 9 nays. The
    House agreed to the Senate amendment to H.R. 5005 on November
    22, 2002. On November 25, 2002, the President signed the bill
    and it became Public Law 107-296.

    H.R. 4864, the ``Anti-Terrorism Explosives Act of 2002''

        Summary.--Chairman Sensenbrenner (R-WI), Ranking Minority
    Member John Conyers (D-MI), and Congressman Lamar Smith (R-TX)
    introduced H.R. 4864, the ``Anti-Terrorism Explosives Act,'' on
    June 5, 2002. This bill tightens security for explosive
    materials and enhances security measures for purchasers and for
    possessors of explosives. The legislation requires all persons
    who wish to obtain explosives, even for limited use, to obtain
    a permit.
        Additionally, the legislation expands the list of persons
    prohibited from receiving explosive materials. The provisions
    of the bill conform with the list of persons restricted from
    possessing firearms. The bill requires companies applying for a
    permit ``to possess, use or transfer explosives'' to submit a
    list to the Bureau of Alcohol, Tobacco and Firearms (ATF) of
    all employees who have responsibility for, or will have
    possession of, explosive materials to verify that these
    individuals are not on the list of persons who are prohibited
    from receiving or possessing explosives. Explosives
    manufacturers are also required, under this legislation, to
    provide a sample of their explosives to facilitate the tracking
    of these materials for ATF. Finally, the bill expands Federal
    jurisdiction over intentional fires or explosions occurring on
    Federal property to include institutions or organizations
    receiving Federal financial assistance.
        Legislative History.--The Subcommittee on Crime, Terrorism,
    and Homeland Security held one hearing on H.R. 4864, the
    ``Antiterrorism Explosives Act of 2002,'' on June 11, 2002. The
    three witnesses who testified were: The Honorable Kenneth
    Lawson, Assistant Secretary of Enforcement, U.S. Department of
    the Treasury; Bradley A. Buckles, Director, Bureau of Alcohol,
    Tobacco and Firearms; and J. Christopher Ronay, President,
    Institute of Makers of Explosives. On June 13, 2002, the
    Subcommittee met in open session and ordered favorably reported
    the bill, by voice vote, a quorum being present. On June 19,
    2002, the Committee on the Judiciary met in open session and
    ordered favorably reported the bill, as amended, by voice vote,
    a quorum being present. The bill was reported to the House on
    September 17, 2002 (H. Rept. 107-658). This bill was
    incorporated with minor modifications into H.R. 5710, the
    Homeland Security Act of 2002. On November 13, 2002, H.R. 5710
    passed the House by a recorded vote (roll no. 477) of 299 yeas
    to 121 nays. On November 19, 2002, the Senate incorporated H.R.
    5710, as amended in the nature of a substitute and passed H.R.
    5005 by 90 yeas to 9 nays. The House agreed to the Senate
    amendment to H.R. 5005 on November 22, 2002. On November 25,
    2002, the President signed the bill and it became Public Law
    107-296.

    H.R. 4598, the ``Homeland Security Information Sharing Act''

        Summary.--Representatives Saxby Chambliss (R-GA), Chairman
    Sensenbrenner (R-WI), Lamar Smith (R-TX) and Jane Harman, (D-
    CA) introduced H.R. 4598, the ``Homeland Security Information
    Sharing Act,'' on April 25, 2002. With the passage of the
    U.S.A. Patriot Act,\2\ the 107th Congress began to break down
    the barriers to facilitate information sharing between Federal
    law enforcement officials and the intelligence community. H.R.
    4598, the ``Homeland Security Information Sharing Act''
    continues that effort. This bill requires the President to
    create procedures to strip out classified information so that
    state and local officials may receive the information without
    clearances. The bill also incorporates H.R. 3285, a bill
    introduced by Representative Anthony Weiner (D-NY) to remove
    the barriers for state and local officials to share law
    enforcement and intelligence information with Federal
    officials.
    ---------------------------------------------------------------------------
        \2\ Pub. L. No. 107-56, 115 Stat. 242.
    ---------------------------------------------------------------------------
        After September 11, 2001, it was clear that there were
    serious problems with communications between Federal law
    enforcement agencies and the intelligence community. The lack
    of information sharing was one factor that prevented the U.S.
    intelligence community from appropriately responding to prior
    warnings about September 11. The Administration and the
    Congress took immediate action to address this problem by
    drafting and passing the U.S.A. Patriot Act. The very purpose
    of the Patriot Act was to improve information sharing for the
    law enforcement and intelligence communities to combat
    terrorism and terrorist-related crimes. The Patriot Act,
    however, did not remove restrictions in sharing homeland
    security information with states and localities. The country
    needs a comprehensive information sharing system that includes
    Federal, state and local law enforcement agencies. Accordingly,
    H.R. 4598 directs the Administration to establish procedures to
    share classified and unclassified, but sensitive, homeland
    security information. The bill also extends provisions in the
    U.S.A. Patriot Act to state and local officials to cover grand
    jury information and law enforcement or intelligence
    surveillance information.
        Legislative History.--The Subcommittee on Crime, Terrorism,
    and Homeland Security held one day of hearings on H.R. 4598,
    the ``Homeland Security Information Sharing Act,'' on June 4,
    2002. The three witnesses who testified were: the Honorable
    Saxby Chambliss (GA-08); the Honorable Jane Harman (CA-36); and
    the Honorable John Cary Bittick, President of the National
    Sheriff's Association. On June 4, 2002, the Subcommittee met in
    open session and ordered favorably reported the bill, as
    amended, by voice vote, a quorum being present. On June 13,
    2002, the Committee met in open session and ordered favorably
    reported the bill, H.R. 4598, with amendment, by voice vote, a
    quorum being present. The bill was reported to the House on
    June 25, 2002 (H. Rept. 107-534). The House passed the bill on
    June 26, 2002, by a recorded vote (roll no. 258) of 422 yeas to
    2 nays. The bill was incorporated into H.R. 5710, the Homeland
    Security Act of 2002. On November 13, 2002, H.R. 5710 passed
    the House by a recorded vote (roll no. 477) of 299 yeas to 121
    nays. On November 19, 2002, the Senate incorporated H.R. 5710,
    as amended in the nature of a substitute, and passed H.R. 5005
    by 90 yeas to 9 nays. The House agreed to the Senate amendment
    to H.R. 5005 on November 22, 2002. On November 25, 2002, the
    President signed the bill and it became Public Law 107-296.

                               ANTI-DRUG EFFORTS

    H.R. 4689, the ``Fairness in Drug Sentencing Act of 2002''

        Summary.--Representative Lamar Smith (R-TX) introduced H.R.
    4689, the ``Fairness in Drug Sentencing Act,'' on May 9, 2002.
    This bill would disapprove an amendment to the Sentencing
    Guidelines that the United States Sentencing Commission
    submitted to Congress on May 1, 2002. The Sentencing
    Commission's proposed amendment creates a drug quantity ``cap''
    for those persons convicted of trafficking in large quantities
    of drugs if those persons also qualify for a mitigating role
    adjustment under the existing guidelines. For example, a person
    convicted of trafficking 150 kilograms or more of cocaine who
    qualifies for the mitigating role adjustment would have their
    sentence reduced to the same level as someone who was convicted
    of trafficking one-half (\1/2\) kilogram of cocaine. This would
    result in the less culpable defendant (one who moved less
    drugs) unfairly receiving a disproportionately longer sentence
    than the more culpable defendant (one who moved more drugs).
        The Sentencing Commission, in its ``Reason for Amendment,''
    states that the current guidelines overstate the culpability of
    certain drug offenders ``who perform relatively low level
    trafficking functions, have little authority in the drug
    trafficking organization, and have a lower degree of individual
    culpability.'' However, such persons already receive an
    individual downward adjustment to reflect these facts. This
    amendment will be nothing short of a windfall for large drug
    traffickers. It gives drug dealers the incentive to move more
    drugs, rather than less, and is contrary to the consistent and
    long-standing congressional intent that drug quantity form the
    centerpiece of the guidelines in drug sentencing. The greater
    the drug quantity involved in the trafficking operation, the
    greater the harm to our Nation.
        The intent of Congress has been clear that there be an
    orderly gradation of sentences based primarily upon the
    objective criterion of drug quantity. The proposed amendment to
    ``cap'' drug quantity is inconsistent with that congressional
    intent and also with basic notions of fairness. The
    ``mitigating role'' participant in a given case whose lower
    base offense level does not trigger the ``cap'' (because he
    moved less drugs) will receive a disproportionately higher
    sentence than the ``mitigating role'' participant in another
    case whose level does trigger the ``cap'' (because he moved
    more drugs).
        Legislative History.--On May 14, 2002, the Subcommittee on
    Crime, Terrorism, and Homeland Security held a legislative
    hearing on H.R. 4689. The four witnesses who testified were:
    Charles Tetzlaff, General Counsel, United States Sentencing
    Commission; John Roth, Section Chief, Department of Justice;
    the Honorable James M. Rosenbaum, Chief Judge, United States
    District Court, Minneapolis, Minnesota; and William G. Otis,
    former Assistant U.S. Attorney for the Eastern District of
    Virginia. On May 14, 2002, the Subcommittee met in open session
    and ordered favorably reported the bill, H.R. 4689, by voice
    vote, a quorum being present. On September 10, 2001, the
    Committee met in open session and ordered favorably reported
    the bill, by voice vote, a quorum being present. The bill was
    reported to the House on October 31, 2002 (H. Rept. 107-769).
    No further action was taken on H.R. 4689 during the 107th
    Congress.

    H.R. 5334, the ``Hometown Heroes Survivors Benefits Act of 2002''

        Summary.--H.R. 5334, the Hometown Heroes Survivors Benefits
    Act of 2002, amends the Omnibus Crime Control and Safe Streets
    Act of 1968 to provide that a public safety officer who dies as
    the direct and proximate result of a heart attack or stroke
    suffered while on duty or within 24 hours after participating
    in a training exercise or responding to an emergency situation
    shall be presumed to have died as the direct and proximate
    result of a personal injury sustained in the line of duty, for
    purposes of survivor benefits. H.R. 5334 also makes this
    applicable to deaths occurring on or after January 1, 2002.
        Legislative History.--On September 5, 2002 Congressman
    Etheridge introduced H.R. 5334. OnOctober 9, 2002 the Judiciary
    Committee ordered reported H.R. 5334 by voice vote. The Judiciary
    Committee filed H. Rept. 107-786 on November 14, 2002. On November 15,
    2002 H.R. 5334 passed the House of Representatives without objection.
    On November 15, 2002, H.R. 5334 was received in the Senate. No further
    action was taken on the bill.

    H.R. 5519, the ``Reducing Americans' Vulnerability to Ecstasy Act of
            2002,'' or the ``RAVE Act''

        Summary.--H.R. 5519, the ``Reducing Americans Vulnerability
    to Ecstasy Act,'' was introduced by Lamar Smith (R-TX) on
    October 1, 2002. This legislation would amend the Controlled
    Substances Act to prohibit knowingly leasing, renting, or
    using, or intentionally profiting from, any place (as well as
    opening, maintaining, leasing, or renting any place, as
    provided under current law), whether permanently or
    temporarily, for the purpose of manufacturing, storing,
    distributing, or using a controlled substance. The bill
    subjects violators to: (1) a civil penalty of the greater of
    $250,000 or twice the gross receipts derived from each
    violation; and (2) declaratory and injunctive remedies. H.R.
    5519 also directs the U.S. Sentencing Commission to review and
    consider amending the Federal sentencing guidelines for
    offenses involving GHB, a popular club drug, to provide for
    increased penalties. The bill authorizes appropriations to the
    Drug Enforcement Administration for: (1) a Demand Reduction
    Coordinator in each State; and (2) educating youth, parents,
    and other interested adults regarding drugs associated with
    raves.
        Each year tens of thousands of young people are initiated
    into the drug culture at ``rave'' parties or events (all-night,
    alcohol-free dance parties typically featuring loud, pounding
    dance music). The trafficking and use of ``club drugs'',
    including Ecstasy or MDMA, Ketamine, Rohypnol, and GHB, is
    deeply embedded in the rave culture. Ecstasy is the most
    popular of the club drugs associated with raves. Thousands of
    teenagers are treated for overdoses and Ecstasy-related health
    problems in emergency rooms each year. The Drug Abuse Warning
    Network reports that Ecstasy mentions in emergency visits grew
    1,040 percent between 1994 and 1999. Ecstasy damages neurons in
    the brain which contain serotonin, the chemical responsible for
    mood, sleeping and eating habits, thinking processes,
    aggressive behavior, sexual function, and sensitivity to pain.
    According to the National Institute on Drug Abuse, this can
    lead to long-term brain damage that is evident 6 to 7 years
    after Ecstasy use.
        Legislative History.--On October 10, 2002, the Subcommittee
    on Crime, Terrorism, and Homeland Security held one legislative
    hearing on this bill. The four witnesses who testified were:
    The Honorable Asa Hutchinson, Administrator, Drug Enforcement
    Administration; Andrea Craparotta, Investigator, Middlesex
    County Prosecutor's Office, New Jersey; Judy Kreamer,
    President, Educating Voices, Inc.; and Graham Boyd, Director,
    Drug Policy Litigation Project, American Civil Liberties Union.
    No further action was taken on H.R. 5519 during the 107th
    Congress.

                    PROTECTING THE NATION'S MOST VULNERABLE

    H.R. 863, the ``Consequences for Juvenile Offenders Act of 2001''

        Summary.--As in the 106th, juvenile justice reform remained
    a top priority for the Crime Subcommittee in the 107th
    Congress. Representative Lamar Smith (R-TX) introduced H.R.
    863, the ``Consequences for Juvenile Offenders Act of 2001,''
    on March 6, 2001. The bill provides needed resources and
    flexibility to state and local juvenile justice systems. The
    legislation seeks to ensure meaningful, proportional
    consequences for juvenile wrongdoing, starting with the first
    offense, and intensifying with each subsequent more serious
    offense. The bill ensures flexibility by providing that a wide
    range of juvenile justice system activities and services can be
    supported. From new detention facilities and hiring more judges
    and probation officers, to juvenile gun courts, drug court
    programs and accountability-based school safety programs--this
    bill allows states and localities to strengthen their juvenile
    justice systems as they see fit.
        Specifically, H.R. 863 authorizes the Department of Justice
    to make grants to states and local governments to strengthen
    their juvenile justice systems. The bill allows the states and
    localities flexibility in using the grant funds and provides an
    illustrative list of possible uses for the grant money. To be
    eligible for the grant funds, states must have in place or
    agree to implement a system of graduated sanctions for juvenile
    offenders within one year of applying for the funds. Under the
    legislation, the graduated sanctions system will ensure that
    the sanctions are imposed on juvenile offenders for every
    offense, that the sanctions escalate in intensity with each
    subsequent more serious offense, that the courts have
    flexibility in applying the sanction to address the specific
    problems of the individual offender, and that the courts
    consider public safety and victims of crime when applying
    sanctions. A state or locality can still qualify for a grant
    even if its system of graduated sanctions is discretionary--not
    requiring juvenile courts to participate. If the applicant has
    a discretionary system, then the bill requires that a non-
    participating juvenile court report at the end of the year why
    it did not impose graduated sanctions.
        Legislative History.--The Subcommittee on Crime held one
    hearing on H.R. 863, the ``Consequences for Juvenile Offenders
    Act of 2001,'' on March 8, 2001. The four witnesses who
    testified were Steve Robinson, Executive Director, Texas Youth
    Commission; the Honorable Jim Payne, Marion County, Indiana,
    Juvenile Court; the Honorable Michael Anderegg, Marquette,
    Michigan Juvenile Court; and Vincent N. Schiraldi, Center on
    Juvenile and Criminal Justice. On March 21, 2001, the
    Subcommittee met in open session and ordered favorably reported
    the bill, H.R. 863, as amended, by voice vote, a quorum being
    present. On March 28, 2001, the Committee met in open session
    and ordered favorably reported the bill, H.R. 863, with
    amendment by voice vote, a quorum being present. The bill was
    reported to the House on April 20, 2001 (H. Rept. 107-46). On
    October 16, 2001, the House passed the bill by voice vote. The
    bill was incorporated into H.R. 2215, the ``21st Century
    Department of Justice Appropriations Authorization Act,'' which
    was signed by the President on November 2, 2002, and became
    Public Law 107-273.

    H.R. 1877, the ``Child Sex Crimes Wiretapping Act of 2002''

        Summary.--Representative Nancy Johnson (R-CT) introduced
    H.R. 1877, the ``Child Sex Crimes Wiretapping Act of 2002,'' on
    May 16, 2001. This bill was previously introduced in the 106th
    Congress as H.R. 3482. H.R. 1877 assists law enforcement
    officials in investigating certain sex crimes that may involve
    children. The bill adds four new wiretap predicates under
    section 2516of title 18 that relate to sexual exploitation
    crimes against children. This legislation amends 18 U.S.C. Sec. 2516 to
    authorize the interception of wire, oral, or electronic communications
    in the investigation of: (1) the selling and buying of a child for
    sexual exploitation under 18 U.S.C. Sec. 2251A; (2) child pornography
    under 18 U.S.C. Sec. 2252A; (3) the coercion and enticement to engage
    in prostitution or other illegal sexual activity under 18 U.S.C.
    Sec. 2422; and (4) the transportation of minors to engage in
    prostitution or other illegal sexual activity and travel with intent to
    engage in a sexual act with a juvenile under 18 U.S.C. Sec. 2423.
        These four new authorities in no way change the strict
    limitations on how and when wiretaps may be used. Congress
    enacted Title III of the Omnibus Crime Control and Safe Streets
    Act of 1968\3\ that outlines what is, and is not, permissible
    with regard to wiretaps and electronic surveillance.\4\ Title
    III restrictions go beyond Fourth Amendment constitutional
    protections and include a statutory suppression rule to exclude
    evidence that was collected in violation of Title III.\5\
    Except under limited circumstances, it is unlawful to intercept
    oral, wire, and electronic communications.\6\ Accordingly under
    the Act, Federal and state law enforcement may use wiretaps and
    electronic surveillance under strict limitations.\7\ Congress
    created these procedures to allow limited law enforcement
    access to private communications and communication records for
    investigations while protecting Fourth Amendment rights. In
    addition to these restrictions, Congress only provided
    authority to use a wiretap in investigations of specifically
    enumerated crimes, commonly called ``wiretap predicates.'' \8\
    ---------------------------------------------------------------------------
        \3\ Omnibus Crime Control and Safe Streets Act, 87 Stat. 197 (1968)
    (codified as amended at 18 U.S.C. Sec. Sec. 2510-2520 (1970)).
        \4\ Charles Doyle & Gina Stevens, Congressional Research Service,
    Library of Congress, Privacy: An Overview of Federal Statutes Governing
    Wiretapping and Electronic Eavesdropping, at 6 (2001).
        \5\ 87 Stat. 197, 18 U.S.C. 2510-2520 (1970 ed.).
        \6\ 18 U.S.C. Sec. 2511.
        \7\ 18 U.S.C. Sec. 2518.
        \8\ 18 U.S.C. Sec. 2516.
    ---------------------------------------------------------------------------
        Legislative History.--The Subcommittee on Crime held one
    hearing on H.R. 1877, the ``Child Sex Crimes Wiretapping Act of
    2001,'' on June 21, 2001. Testimony was received from the
    Honorable Nancy Johnson (R-Conn.); Deputy Assistant Director
    Francis A. Gallagher of Criminal Investigative Division of the
    Federal Bureau of Investigation; and James Wardwell, Detective
    Bureau of the New Britain Police Department, New Britain,
    Connecticut. On June 21, 2001, the Subcommittee on Crime met in
    open session and ordered favorably reported the bill, as
    amended, by voice vote, a quorum being present. On April 24,
    2002, the Committee met in open session and ordered favorably
    reported the bill, H.R. 1877, by a recorded vote of 20-4, a
    quorum being present. The bill was reported to the House on May
    16, 2002 (H. Rept. 107-468). The House passed the bill on May
    21, 2002, by a recorded vote of 396 yeas to 11 nays (roll no.
    175). The bill was also incorporated into H.R. 5422, the
    ``Child Abduction Prevention Act.'' No further action was taken
    on either H.R. 1877 or H.R. 5422 during the 107th Congress.

    H.R. 4623, the ``Child Obscenity and Pornography Prevention Act of
            2002''

        Summary.--Representative Lamar Smith (R-TX) introduced H.R.
    4623, the ``Child Obscenity and Pornography Prevention Act of
    2002,'' on April 30, 2002, to address the April 16, 2002
    Supreme Court decision in Ashcroft v. the Free Speech
    Coalition.\9\ That decision held that two parts of the Federal
    definition of child pornography in title 18 of the United
    States Code were overbroad and unconstitutional. Those two
    provisions are 18 U.S.C. Sec. 2256(8)(B), which defined child
    pornography to include wholly computer generated pictures that
    appear to be of a minor engaging in sexually explicit conduct,
    and 18 U.S.C. Sec. 2256(8)(D), which defines child pornography
    to include a visual depiction where it is advertised, promoted,
    or presented, to convey the impression that the material
    contains a visual depiction of a minor engaging in sexually
    explicit conduct. This decision did not hold that all virtual
    child pornography was protected by the First Amendment. The
    result of this decision, however, is that the Country now faces
    a proliferation of child pornography. At risk are the
    prosecutions against child pornographers who are frequently
    child molesters.\10\ In any criminal case, the prosecution must
    prove beyond a reasonable doubt that a crime was committed. A
    prosecutor would face an impossible burden if a distinction
    must be proved between virtual child pornography, which may
    include parts of real children or be completely generated by a
    computer but indistinguishable from a real child, and child
    pornography that depicts an actual child or part of an actual
    child when the child is still identifiable.
    ---------------------------------------------------------------------------
        \9\ 122 S.Ct. 1389 (2002).
        \10\ Andres E. Hernandex, Psy.D. Federal Bureau of Prisons', Self-
    Reported Contact Sexual Offenses by Participants in the Federal Bureau
    of Prisons' Sex Offender Treatment Program: Implications for Internet
    Sex Offenders. (In November 2000, the Federal Bureau of Prisons
    released a study on Internet sex offenders who used the Internet to
    download, trade, and distribute child pornography as well as offenders
    who lure children for sexual abuse and exploitation. The study examined
    two groups: those convicted of sexual contact crimes against children
    and those convicted of nonsexual contact crimes against children. The
    nonsexual contact crimes consisted of those convicted under the child
    pornography laws and those convicted of traveling to meet a child with
    the intent to sexually exploit that child. Of the 90 subjects of the
    study 66 were convicted of crimes that did not include sexual contact.
    Out of the 66 who were convicted of non-contact crimes, 62 were still
    related to the sexual exploitation of children through child
    pornography or traveling to meet a child with the intent to sexually
    abuse a child. Of the 62, 49 were convicted of child pornography
    (trading or possessing child pornography) and 13 were convicted for
    traveling to meet a child. None of those convicted were producers of
    pornography. Of the 62 convictions for non-contact crimes against
    children, 76 percent of offenders admitted to sexually abusing or
    exploiting a child. These offenders admitted to an average of 30.5
    victims per offender.)
    ---------------------------------------------------------------------------
        To ensure the continued protection of children from sexual
    exploitation, this legislation addresses the concerns of the
    Supreme Court by narrowing the definition of child pornography,
    strengthening the existing affirmative defense, amending the
    obscenity laws to address virtual and real child pornography
    that involves visual depictions of pre-pubescent children,
    establishing new offenses against pandering visual depictions
    as child pornography, and creating newoffenses against
    providing children obscene or pornographic material.
        Legislative History.--The Subcommittee on Crime, Terrorism,
    and Homeland Security held two days of hearings on H.R. 4623.
    The three witnesses who testified on May 1, 2002, were: Michael
    J. Heimbach, Unit Chief, Crimes Against Children Unit, Federal
    Bureau of Investigation; Ernie Allen, President and Chief
    Executive Officer for the National Center for Missing &
    Exploited Children; and Lt. Bill Walsh, with the Dallas
    Internet Crimes Against Children Taskforce. At the May 9, 2002
    hearing, Daniel Collins, Associate Deputy Attorney General,
    Office of the Attorney General, U.S. Department of Justice
    testified. On May 9, 2002, the Subcommittee met in open session
    and ordered favorably reported the bill, H.R. 4623, as amended,
    by voice vote, a quorum being present. On June 19, 2002, the
    Committee met in open session and ordered favorably reported
    the bill, H.R. 4623, with amendment by a recorded vote of 22 to
    3, a quorum being present. The bill was reported to the House
    on June 24, 2002 (H. Rept. 107-526). The House passed the bill
    on June 25, 2002, by a recorded vote of 413 yeas to 8 nays and
    1 present (roll no. 256). No further action was taken on the
    bill, H.R. 4623, during the 107th Congress.

    H.R. 4477, the ``Sex Tourism Prohibition Act of 2002''

        Summary.--Chairman Sensenbrenner (R-WI) introduced H.R.
    4477, the ``Sex Tourism Prohibition Improvement Act of 2002,''
    on April 17, 2002. The bill addresses a number of problems
    related to persons who travel to foreign countries and engage
    in illicit sexual relations with minors. Current law requires
    the Federal Government to prove that the defendant traveled to
    a foreign country with the intent to engage in sex with a
    minor. H.R. 4477 eliminates the intent requirement where the
    defendant completes the travel and actually engages in the
    illicit sexual activity with a minor. The bill also
    criminalizes the actions of sex tour operators by prohibiting
    persons from arranging, inducing, procuring, or facilitating
    the travel of a person knowing that such a person is traveling
    in interstate or foreign commerce for the purpose of engaging
    in illicit sexual conduct with a minor.
        According to the National Center for Missing and Exploited
    Children, child-sex tourism is an increasing and major
    component of the worldwide sexual exploitation of children. In
    Asia alone, there are more than 100 web sites devoted to
    promoting teenage commercial sex. Because poor countries are
    often under economic pressure to develop tourism and the sex
    tourism industry produces a good income, those governments
    often turn a blind eye toward this devastating problem. As a
    result, children around the world have become trapped and
    exploited by the sex tourism industry. This legislation will
    close significant loopholes in the law that persons who travel
    to foreign countries seeking sex with children are currently
    using to their advantage in order to avoid prosecution.
        Legislative History.--The Subcommittee on Crime, Terrorism,
    and Homeland Security held 2 days of hearings on H.R. 4477 and
    other bills relating to similar issues. The three witnesses who
    testified on May 1, 2002, were: Michael J. Heimbach, Unit
    Chief, Crimes Against Children Unit, Federal Bureau of
    Investigation; Ernie Allen, President and Chief Executive
    Officer for the National Center for Missing & Exploited
    Children; and Lt. Bill Walsh, with the Dallas Internet Crimes
    Against Children Taskforce. On May 9, 2002, the Subcommittee
    received testimony from Daniel Collins, Associate Deputy
    Attorney General, Office of the Attorney General, U.S.
    Department of Justice. On May 9, 2002, the Subcommittee met in
    open session and ordered favorably reported the bill by voice
    vote, a quorum being present. On June 19, 2002, the Committee
    met in open session and ordered favorably reported the bill, as
    amended, by voice vote, a quorum being present. The bill was
    reported to the House on June 24, 2002 (H. Rept. 107-525). The
    House passed the bill on June 26, 2002, by a recorded vote
    (roll no. 259) of 418 yeas to 8 nays. The bill was also
    incorporated into H.R. 5422, the ``Child Abduction Prevention
    Act.'' No further action was taken on either H.R. 4477 or H.R.
    5422 during the 107th Congress.

    H.R. 2146, the ``Two Strikes and You're Out Child Protection Act''

        Summary.--H.R. 2146, the ``Two Strikes and You're Out Child
    Protection Act,'' was introduced by Mark Green (R-WI) on June
    13, 2001. This legislation establishes a mandatory sentence of
    life imprisonment for twice-convicted child sex offenders. H.R.
    2146 amends 18 U.S.C. Sec. 3559 of the Federal criminal code to
    provide for a mandatory minimum sentence of life imprisonment
    for any person convicted of a ``Federal sex offense'' if they
    had previously been convicted of a similar offense under either
    federal or state law. The bill defines federal sex offense to
    include offenses committed against a person under the age of 17
    and involving the crimes of sexual abuse, aggravated sexual
    abuse, sexual abuse of a minor, abusive sexual contact, and the
    interstate transportation of minors for sexual purposes.
        According to the United States Department of Justice's
    Bureau of Justice Statistics, since 1980, the number of
    prisoners sentenced for violent sexual assault other than rape
    increased by an annual average of nearly 15 percent--faster
    than any other category of violent crime. Of the estimated
    95,000 sex offenders in state prisons today, well over 60,000
    likely committed their crime against a child under 17.
    Compounding this growing problem is the high rate of recidivism
    among sex offenders. A review of frequently cited studies of
    sex offender recidivism indicates that offenders who molest
    young girls repeat their crimes at rates up to 25 percent, and
    offenders who molest young boys, at rates up to 40 percent.
    Moreover, the recidivism rates do not appreciably decline as
    offenders age.
        Legislative History.--The Subcommittee on Crime held a
    legislative hearing on H.R. 2146 on July 31, 2001. The four
    witnesses were: Marc Klaas, founder of Klaas Kids Foundation
    and advocate for victim's and children's rights; Robert
    Fusfeld, Probation and Parole Agent for the Wisconsin
    Department of Corrections Sex Offender Intensive Supervision
    Team; Polly Sweeney, mother of two victims of a sex offender;
    and Phyllis Turner Lawrence, Esq., a Victim Assistance and
    Restorative Justice Consultant. On August 2, 2001, the
    Subcommittee met in open session and ordered favorably reported
    the bill, H.R. 2146, with amendment, by voice vote, a quorum
    being present. On February 27, 2002, the Committee commenced a
    markup of H.R. 2146 which was continued on March 6, 2002, when
    the Committee met in open session and ordered favorably
    reported the bill, H.R. 2146, with amendment, by voice vote, a
    quorum being present. The bill was reported to the House on
    March 12, 2002 (H. Rept. 107-373). The House passed the bill on
    March 14, 2002, by a recorded vote of 382 yeas to 34 nays (roll
    no. 64). The bill was also incorporated into H.R. 5422, the
    ``Child Abduction Prevention Act.'' No further action was taken
    on either H.R. 2146 or H.R. 5422 during the 107th Congress.

    H.R. 4679, the ``Lifetime Consequences for Sex Offenders Act of 2002''

        Summary.--H.R. 4679, the ``Lifetime Consequences for Sex
    Offenders Act of 2002'' amends the Federal criminal code to
    make the authorized term of supervised release after
    imprisonment for the offenses of sexual abuse, sexual
    exploitation of children, transportation for illegal sexual
    activity (generally), and sex trafficking of children any term
    of years or life.
        Legislative History.--H.R. 4679 was introduced on May 8,
    2002 by Congressman Gekas. The Committee on the Judiciary held
    a mark-up session on June 19, 2002. The Committee on the
    Judiciary ordered H.R. 4679 to be reported amended by a voice
    vote. The Committee on the Judiciary filed H. Rept. 107-527 on
    June 24, 2002. On June 25, 2002, H.R. 4679 was passed under a
    motion to suspend the rules and pass the bill as amended by a
    vote of 409-3. H.R. 4679 was referred to the Senate Committee
    on the Judiciary.

    H.R. 5422, the ``Child Abduction Prevention Act''

        Summary.--Chairman Sensenbrenner (R-WI) introduced H.R.
    5422, the ``Child Abduction Prevention Act'' on September 19,
    2002. This legislation sends a clear message to any potential
    child abductor that they will not escape justice. This
    legislation provides stronger penalties against kidnapping,
    ensures lifetime supervision of sexual offenders and kidnappers
    of children, gives law enforcement the tools it needs to
    effectively prosecute these crimes, and provides assistance to
    the community when a child is abducted.
        According to the Department of Justice's (DOJ) Office of
    Juvenile Justice Delinquency Prevention (OJJDP), the number of
    missing persons reported to law enforcement has increased 468
    percent, from 154,341 in 1982 to 876,213 in 2000. Out of those
    cases, about 3,000 to 5,000 are non-family abductions reported
    to police each year, most of which are short-term sexually-
    motivated cases. About 200 to 300 of these cases, or about 6
    percent, make up the most serious cases where the child was
    murdered, ransomed or taken with the intent to keep. Federal
    Government statistics report that three out of four children
    who are kidnapped and murdered are killed within 3 hours of
    their initial abduction. Authorities believe that promptly
    alerting the general public when a child is abducted by a
    stranger is crucial to saving their life. To accomplish this,
    H.R. 5422 authorizes funding for a national AMBER Alert program
    to help expand the child abduction communications warning
    network throughout the United States.
        For those individuals that would harm a child, H.R. 5422
    ensures that punishment is severe and that sexual predators are
    not allowed to slip through the cracks of the system to harm
    other children. Specifically, this legislation provides a 20-
    year mandatory minimum sentence of imprisonment for stranger
    abductions of a child under the age of 18, lifetime supervision
    for sex offenders, and mandatory life imprisonment for second
    time offenders. Furthermore, H.R. 5422 removes any statute of
    limitations and opportunity for pretrial release for crimes of
    child abduction and sex offenses. Recognizing the important
    role that the National Center for Missing and Exploited
    Children (NCMEC) plays in our Nation's efforts to prevent child
    abductions, the bill doubles the funding for NCMEC to $20
    million through 2004. The NCMEC is the Nation's resource center
    for child protection and assists parents, children, law
    enforcement, schools, and communities in recovering missing
    children. NCMEC also raises public awareness to prevent child
    abduction, molestation, and sexual exploitation. To date, NCMEC
    has worked on more than 73,000 cases of missing and exploited
    children and helped recover more than 48,000 children.
        Legislative History.--On October 1, 2002, the Subcommittee
    on Crime, Terrorism, and Homeland Security held a legislative
    hearing on H.R. 5422. Testimony was received from Daniel P.
    Collins, Associate Deputy Attorney General, U.S. Department of
    Justice; and Ernest E. Allen, President and Chief Executive
    Officer, National Center for Missing and Exploited Children. On
    October 1, 2002, the Subcommittee met in open session and
    ordered favorably reported the bill, H.R. 5422, by voice vote,
    a quorum being present. On October 2, 2002, the Committee met
    in open session and ordered favorably reported the bill, H.R.
    5422, with amendment, by voice vote, a quorum being present.
    The bill was reported to the House on October 7, 2002 (H. Rept.
    107-723). The House passed the bill on October 8, 2002, by a
    recorded vote of 390 yeas to 24 nays (roll no. 446). No further
    action was taken on H.R. 5422 during the 107th Congress.

                 IMPROVING JUSTICE THROUGH ENHANCED TECHNOLOGY

    H.R. 912, the ``Innocence Protection Act''

        Summary.--Representative William Delahunt (D-MA) introduced
    H.R. 912, the ``Innocence Protection Act of 2001,'' on March 7,
    2001. This bill would provide for post-conviction DNA testing
    for every Federal and state crime, and not just those crimes
    where a defendant is facing the death penalty. Defendants in
    misdemeanor cases would be allowed to petition the courts to
    have DNA testing done to prove their innocence along with those
    defendants that are facing the death penalty. The bill
    establishes a National Commission on Capital Representation to
    formulate standards specifying the elements of an effective
    system for providing adequate representation. The Attorney
    General is directed to withhold prison grant funds to any State
    that allows for the death penalty and is not in compliance with
    the standards set forth by the National Commission on Capital
    Representation. In addition, those States would also be
    penalized in habeas corpus proceedings. The bill also increases
    the amount of damages that may be awarded in a case where the
    defendant proves he was unjustly convicted and imprisoned from
    $5,000 total to $50,000 for each year of incarceration and up
    to $100,000 per year if the defendant was sentenced to death.
        According to the sponsor of the bill, in more than 80 cases
    in the United States, DNA evidence has led to the exoneration
    of innocent men and women who were wrongfully convicted. This
    number includes at least 10 individuals sentenced to death,
    some of whom came within days of being executed. In more than a
    dozen cases, post-conviction DNA testing that has exonerated an
    innocent person has also enhanced public safety by providing
    evidence that led to the identification of the actual
    perpetrator. The purpose of H.R. 912 is to ensure that
    wrongfully convicted persons have an opportunity to establish
    their innocence through DNA testing, by requiring the
    preservation of DNA evidence for a limited period.
        Legislative History.--The Subcommittee on Crime, Terrorism
    and Homeland Security held a legislative hearing on H.R. 912,
    the ``Innocence Protection Act of 2001,'' on June 18, 2002. The
    four witnesses who testified were: Hon. Paul A. Logli, State's
    Attorney, Winnebago Co., IL; Peter J. Neufeld, Esq., Co-
    Director, Innocence Project, Benjamin N. Cardozo School of Law;
    Robert A. Graci, Esq., Assistant Executive Deputy Attorney
    General of Pennsylvania; and Beth A. Wilkinson, Esq., former
    Federal prosecutor, Oklahoma City bombing case. No further
    action was taken on H.R. 912 during the 107th Congress.

                        PROTECTING AND SUPPORTING POLICE

    H.R. 1007, the ``James Guelff and Chris McCurley Body Armor Act of
            2001''

        Summary.--Representative Bart Stupak (D-MI) introduced H.R.
    1007, the ``James Guelff and Chris McCurley Body Armor Act of
    2001,'' on March 13, 2001. This legislation amends title 18 of
    the United States Code to prohibit violent felons from
    purchasing, owning, or possessing body armor. Any person
    convicted of violating this prohibition is subject to a fine or
    imprisonment of not more than 3 years, or both. H.R. 1007 also
    directs the United States Sentencing Commission to provide an
    appropriate sentencing enhancement for any crime of violence or
    drug trafficking in which the defendant used body armor. The
    bill includes a sense of Congress that any sentencing
    enhancement should be at least two levels. In addition, the
    language authorizes Federal agencies to donate body armor that
    is surplus property and in serviceable condition directly to
    any state or local law enforcement agency. Under the
    legislation the United States is not liable for any harm
    occurring in connection with the use or misuse of any body
    armor donated by the Federal agencies.
        H.R. 1007 will ensure that criminals do not have body
    armor, and that state and local police officers do. The bill is
    named for Officer James Guelff and Captain Chris McCurley who
    were killed by gunmen wearing body armor. On November 13, 1994,
    James Guelff, a highly decorated ten-year veteran of the San
    Francisco Police Department, responded to a ``shots fired''
    call. Officer Guelff, the first to respond to the scene,
    returned fire but the bullets could not penetrate the gunman's
    kevlar vest and bullet-proof helmet, which allowed this one
    gunman to fire over 200 rounds of ammunition and hold off 120
    police officers for over half an hour. Several officers
    actually ran out of ammunition in their attempt to stop the
    heavily protected gunman. Officer Guelff was shot several times
    and died the following morning. Captain Chris McCurley of the
    Etowah County, Alabama Drug Task Force was murdered in much the
    same way as Officer Guelff. Captain McCurley was shot and
    killed by a drug dealer wearing protective body armor when he
    and another officer were trying to execute a search warrant on
    October 10, 1997.
        Unfortunately, these scenarios are not unique. In 1997,
    eleven officers were wounded in North Hollywood despite the two
    perpetrators being hit a total of 33 times by police gunfire.
    Those two gunmen held off 350 police officers for over an hour.
    In August of that same year, a gunman wearing a bulletproof
    vest shot and killed troopers Scott Phillips and Leslie Lord
    and two civilians in Colebrook, New Hampshire. In July 2000, a
    kevlar vest and helmet protected gunman murdered Sgt. Todd
    Stamper in Crandon, Wisconsin. These are just a few examples of
    many incidents where gunmen prolonged shootouts, fired more
    rounds of ammunition, and caused more devastation because they
    were shielded by body armor.
        At the same time criminals have body armor, the Department
    of Justice estimates that 25 percent of state and local police
    do not. Furthermore, more than 30 percent of the approximately
    1,200 officers killed in the line of duty since 1980, could
    have been saved by body armor. Dying from gunfire is estimated
    to be 14 times more likely for an officer who does not wear a
    bulletproof vest. This could be reduced by allowing FBI, DEA,
    ATF, INS, and U.S. Marshals, just a few of the Federal agencies
    that have surplus body armor, to donate the surplus to local
    jurisdictions.
        Legislative Hearing.--No hearings were held on H.R. 1007
    during the 107th Congress. On July 19, 2001, the Subcommittee
    on Crime met in open session and ordered favorably reported the
    bill, H.R. 1007, with amendment, by voice vote, a quorum being
    present. On July 24, 2001, the Committee met in open session
    and ordered favorably reported the bill, H.R. 1007, with
    amendment, by voice vote, a quorum being present. The bill was
    reported with amendment to the House on August 2, 2001 (H.
    Rept. 107-193, Part I). The bill was incorporated into H.R.
    2215, the ``21st Century Department of Justice Appropriations
    Authorization Act,'' which was signed by the President on
    November 2, 2002, and became Public Law 107-273.

    H.R. 2624, the ``Law Enforcement Tribute Act''

        Summary.--Representative Adam Schiff (D-CA) introduced H.R.
    2624, the ``Law Enforcement Tribute Act,'' on July 25, 2001.
    This bill authorizes the Attorney General to make grants to
    states, units of local government, and Indian Tribes to
    construct permanent tributes to honor the achievements of
    United States law enforcement or public safety officers who
    were killed or disabled in the line of duty. The legislation
    establishes a program to award grants directly to a state,
    local government, or Indian tribe for up to 50 percent of the
    cost of construction of a permanent tribute. The Federal
    contribution may not exceed $150,000 for any single recipient.
        More than 700,000 men and women risk assault, injury, and
    their lives to serve as law enforcement officers in this
    country. Each year, one in nine officers is assaulted, one in
    25 is injured, and one in 4,400 is killed in the line of duty.
    Nationwide, 51 law enforcement officers were feloniously killed
    in the line of duty in the year 2000, compared with 42 in 1999,
    according to statistics from the Federal Bureau of
    Investigation (FBI). Additionally, FBI statistics show that 83
    officers were accidentally killed in the line of duty in 2000,
    compared with 65 accidental deaths in 1999. In 1999, 112
    firefighters also died in the line of duty.
        Legislative Hearing.--No hearings were held on H.R. 2624,
    the ``Law Enforcement Tribute Act.'' On August, 2, 2001, the
    Subcommittee on Crime, Terrorism, and Homeland Security met in
    open session and ordered favorably reported the bill, H.R.
    2624, by voice vote, a quorum being present. On April 24, 2002,
    the Committee met in open session and ordered favorably
    reported the bill, by voice vote, a quorum being present. The
    bill was reported to the House on May 14, 2002 (H. Rept. 107-
    458). The bill was incorporated into H.R. 2215, the ``21st
    CenturyDepartment of Justice Appropriations Authorization
    Act,'' which was signed by the President on November 2, 2002, and
    became Public Law No. 107-273.

                          GENERAL CRIMINAL PROVISIONS

    H.R. 1408, the ``Financial Services Antifraud Network Act of 2001''

        Summary.--H.R. 1408 will coordinate information sharing
    among 250 financial services agencies around the country as a
    fraud-fighting tool. H.R. 1408 would link existing antifraud
    records via a network that may be as simple as a computer
    search engine. The bill's purpose is to reduce the amount of
    money loss due to financial services fraud.
        Legislative History.--H.R. 1408 was introduced by
    Congressman Rogers on April 4, 2001. On October 10, 2001 the
    Committee on the Judiciary held a mark-up on H.R. 1408 and
    ordered the bill reported by a voice vote. The Committee on the
    Judiciary filed H. Rept. 107-192 pt. II on November 16, 2001.
    On November 6, 2001, H.R. 1408, was passed on a motion to
    suspend the rules and agree to the bill as amended by a 392-4.
    On November 7, 2001, H.R. 1408 was referred to the Senate
    Committee on Banking, Housing, and Urban Affairs. No further
    action was taken on the bill.

    H.R. 2505, the ``Human Cloning Prohibition Act of 2001''

        Summary.--Representative Dave Weldon (R-FL) introduced H.R.
    2505, the ``Human Cloning Prohibition Act of 2001,'' on July
    16, 2001. This bill amends Title 18 of the United States Code
    by establishing a comprehensive ban on human cloning and
    prohibiting the importation of a cloned embryo, or any product
    derived from such embryo. Any person or entity that is
    convicted of violating this prohibition on human cloning is
    subject to a fine or imprisonment of not more than ten years,
    or both. In addition, H.R. 2505 provides a civil penalty of not
    less than $1,000,000 for any person who receives a pecuniary
    gain from cloning humans. However, H.R. 2505 does not prohibit
    the use of cloning technology to produce molecules, DNA, cells,
    tissues, organs, plants, or animals.
        The National Bioethics Advisory Commission (NBAC) was
    ordered to review the legal and ethical issues involved in the
    cloning of human beings and delivered its recommendations in
    June of 1997. The NBAC agreed that the creation of a child by
    somatic cell nuclear transfer is scientifically and ethically
    objectionable because: (1) the efficiency of nuclear transfer
    is so low and the chance of abnormal offspring is so high that
    experimentation of this sort in humans was premature; and (2)
    the cloning of an already existing human being may have a
    negative impact on issues of personal and social well being
    such as family relationships, identity and individuality,
    religious beliefs, and expectations of sameness.
        Currently, no clear regulations exist in the United States
    that would prevent a private group from attempting to clone a
    human being. The Food and Drug Administration (FDA) has
    announced that it has the authority to regulate human cloning,
    but that authority has been questioned by many experts and
    remains unclear today. With recent reports that otherwise
    reputable scientists and physicians plan to produce the first
    human clone and no clear regulations in place, it has become
    imperative that Congress act to prevent this ethically and
    morally objectionable procedure.
        Legislative History.--H.R. 2505 is substantially similar to
    H.R. 1644 which the Subcommittee on Crime held two days of
    hearings on June 7, 2001, and June 19, 2001. The Subcommittee
    also heard testimony on a related bill, H.R. 2172, at those
    hearings. Testimony was received from eight witnesses,
    representing eight organizations. The witnesses were: Dr. Leon
    R. Kass, Professor of Bioethics, The University of Chicago; Dr.
    David A. Prentice, Professor of Life Sciences, Indiana State
    University; Dr. Daniel Callahan, Director of International
    Programs for The Hastings Center; Robyn S. Shapiro, Esq.,
    Professor of Bioethics, the Medical College of Wisconsin; Alex
    Capron, Esq., Professor of Law and Medicine, University of
    Southern California, School of Law; Dr. Jean Bethke Elshtain,
    Professor of Social and Political Ethics, The University of
    Chicago; Gerard Bradley, Esq., Professor of Law, Notre Dame Law
    School; Dr. Thomas Okarma, President and CEO of the Geron
    Corporation. On July 19, 2001, the Subcommittee in open session
    and ordered favorably reported the bill, H.R. 2505, by voice
    vote, a quorum being present. On July 24, 2001, the Committee
    met in open session and ordered favorably reported the bill,
    H.R. 2505, by a recorded vote of 18 to 11, a quorum being
    present. The bill was reported to the House on July 27, 2001
    (H. Rept. 107-170). The House passed the bill on July 31, 2001,
    by a recorded vote of 265 yeas to 162 nays (roll no. 304). No
    further action was taken on the bill, H.R. 2505, during the
    107th Congress.

    H.R. 2621, the ``Consumer Product Protection Act of 2002''

        Summary.--Representative Melissa Hart (R-PA) introduced
    H.R. 2621, the ``Consumer Product Protection Act of 2002,'' on
    July 25, 2001. This bill would criminalize the unauthorized
    placement of any writings in consumer product packages before
    their sale to customers. Both adults and children throughout
    the country have been subjected to violent, racist, gory, and/
    or otherwise disturbing materials hidden in tampered with
    products. This legislation prohibits the unscrupulous from
    invading products and inflicting their message upon
    unsuspecting audiences. Moreover, by filling this gap in
    Federal law, H.R. 2621 will appropriately punish, and likely
    prevent, individuals whose current activities damage the value
    of manufacturers' brand names, tarnish companies' well-deserved
    reputation for safe, high quality products, and violate the
    integrity of the food that reaches consumers' homes and
    families.
        In the past five years, manufacturers of food products
    regularly found that grocery stores have received complaints
    from consumers about hate-filled, pornographic, or political
    literature being found in groceries. It appears that the
    literature is being folded and inserted into certain groceries
    that are packaged in boxes. Cereal boxes, frozen pizza boxes,
    and macaroni and cheese boxes are among the more frequently
    tampered product packages. The incidents involve pamphlets
    espousing racist, anti-Semitic, and white supremacist
    sentiments. Leaflets have been found that attack African-
    Americans, praised the Holocaust and encourage the killing of
    immigrants. For example, one leaflet showed a ``coupon'' with
    racial slurs thereon and a demand for African-Americans to go
    back to Africa.
        Legislative Hearing.--The Subcommittee on Crime, Terrorism,
    and Homeland Security held a legislative hearing on H.R. 2621
    on July 26, 2001. The four witnesses who testified were: The
    Honorable Melissa Hart; Tracey Weaver, a victim; David
    Zlotnick, Professor at the Roger Williams School of Law; and
    William Macleod, an industry representative testifying on
    behalf of the Grocery Manufacturers of America. On July 26,
    2001, the Subcommittee met in open session and ordered
    favorably reported the bill, H.R. 2621, with amendment, by
    voice vote, a quorum being present. On May 8, 2002, the
    Committee met in open session and ordered favorably reported
    the bill, as amended, by voice vote, a quorum being present.
    The bill was reported to the House on May 23, 2002 (H. Rept.
    107-485). The House passed the bill on June 11, 2002, by voice
    vote. On October 16, 2002, the Senate passed the bill by
    unanimous consent with an amendment. The House agreed to the
    Senate amendment by unanimous consent on November 15, 2002. The
    President signed the bill on December 2, 2002, and it became
    Public Law 107-307.

    H.R. 1577, the ``Federal Prison Industries Competition in Contracting
            Act of 2001''

        Summary.--Representative Peter Hoekstra (R-MI) introduced
    H.R. 1577, the ``Federal Prison Industries Competition in
    Contracting Act of 2001,'' on April 24, 2001. This bill
    fundamentally amends Federal Prison Industries' (FPI) 1934
    authorizing statute. The legislation gradually phases out by
    October 1, 2008, the exclusive right of FPI (deemed ``mandatory
    source'') to sell goods to Federal agencies. The bill changes
    the manner in which FPI sells its products and services to the
    various Federal departments and agencies. During the phase-out
    period, FPI is required to provide the agencies with a product
    that meets its needs at a ``fair and reasonable price'' in a
    timely manner.
        This legislation establishes new competitive procedures for
    government procurement of products or services that are offered
    for sale by FPI. H.R. 1577 requires that FPI sales to its
    Federal agency customers be made through contracts won on a
    competitive basis, for both products and services. Like other
    suppliers to the Federal Government, FPI is required to fulfill
    its contractual obligations in a timely manner.
        Legislative History.--The Subcommittee on Crime, Terrorism,
    and Homeland Security held one day of hearings on H.R. 1577 on
    April 26, 2001. During that hearing Representative Peter
    Hoekstra (MI-2d), the sponsor of H.R. 1577, testified and
    submitted for the record the printed hearing records from five
    oversight hearings conducted by the Subcommittee on Oversight
    and Investigations of the Committee on Education and the
    Workforce during the 104th, 105th, and 106th Congress. The
    three other witnesses that testified were: Stephen M. Ryan,
    Esq., Manatt, Phelps & Phillips, LLP, Washington, D.C.; Michael
    Mansh, President, Ashland, Sales & Service Company,
    Philadelphia, Pennsylvania; and Philip W. Glover, President,
    Council of Prison Locals, American Federation of Government
    Employees, Johnstown, Pennsylvania. On April 24, 2002, the
    Committee met in open session and ordered favorably reported
    the bill, as amended, by voice vote, a quorum being present.
    The bill was reported to the House on July 16, 2002 (H. Rept.
    107-583). No further action was taken on H.R. 1577 in the 107th
    Congress.

    H.R. 3215, the ``Combating Illegal Gambling Reform and Modernization
            Act''

        Summary.--Representative Bob Goodlatte (R-VA) introduced
    H.R. 3215, the ``Combating Illegal Gambling Reform and
    Modernization Act,'' on November 1, 2001. This bill would
    modernize the ``Wire Act,\11\'' to make it clear that its
    prohibitions include Internet gambling and would bring the
    current prohibition against wireline interstate gambling up to
    speed with the development of new technology. The bill also
    prohibits a gambling business from accepting certain forms of
    non-cash payment, including credit cards and electronic
    transfers, for the transmission of bets and wagers. The bill
    further provides an additional tool to fight illegal gambling
    by allowing Federal, state, local and tribal law enforcement
    officials to seek injunctions against any party to prevent and
    restrain violations of the Act.
    ---------------------------------------------------------------------------
        \11\ 18 U.S.C. 1084
    ---------------------------------------------------------------------------
        Over the last few years, gambling websites have
    proliferated on the Internet. The Internet gambling industry's
    revenues grew from $445 million in 1997 to an estimated $1.6
    billion in 2001. Industry analysts estimate that it could soon
    easily become a $10 billion a year industry. There are
    currently over 1,400 gambling sites on the Internet, offering
    everything from sports betting to blackjack. Most of these
    virtual casinos are organized and operated from tropical off-
    shore locations, where the operators feel free from both State
    and Federal interference. Among the most popular locales are
    Antigua, St. Martin and Costa Rica.
        Legislative History.--The Subcommittee on Crime held a
    legislative hearing on H.R. 3215 on November 29, 2001. The
    Subcommittee on Crime also heard testimony on a related bill,
    H.R. 556, at those hearings. The four witnesses that testified
    were: the Honorable Bob Goodlatte; the Honorable James A.
    Leach; Timothy A. Kelly, Ph.D., Executive Director, National
    Gambling Impact Study Commission; and Frank Catania
    representing the Interactive Gaming Council (IGC). The
    Department of Justice submitted testimony for the record in
    support of H.R. 3215. On March 12, 2002, the Subcommittee met
    in open session and ordered favorably reported the bill, H.R.
    3215, with amendment, by voice vote, a quorum being present. On
    June 18, 2002, the Committee met in open session and ordered
    favorably reported the bill with amendments by a recorded vote
    of 18 to 12, a quorum being present. The bill was reported to
    the House on July 18, 2002 (H. Rept. 107-591, Part I). A
    supplemental report was filed by the Committee on October 16,
    2002 (H. Rept. 107-591, Part II). No further action was taken
    on H.R. 3215 during the 107th Congress.

    H.R. 4757, the ``Our Lady of Peace Act''

        Summary.--Representative Carolyn McCarthy (D-NY) introduced
    H.R. 4757, the ``Our Lady Of Peace Act,'' on May 16, 2002. This
    bill provides states with the tools to comply with the 1968 Gun
    Control Act by giving states additional funds to automate and
    share criminal, mental health, and domestic violence
    restraining order records with the FBI's National Instant
    Criminal Background Check (NICS) database. Under this
    legislation, all Federal agencies will transmit relevant
    records relating to persons disqualified from acquiring a
    firearm under Federal law to the Attorney General for inclusion
    in the National Instant Criminal Background Check System,
    including all records related to immigration status.
        To comply with the grants under this legislation, states
    must provide more thorough and up-to-date information relating
    to persons disqualified from acquiring a firearm under Federal
    law to the Attorney General for inclusion in the NICS. The
    Attorney General will award grants to states to improve
    computer systems and ensure accurate reporting, especially with
    regard to domestic violence and mental health records.
    Additionally, the legislation establishes a grant program for
    state courts to assess and improve handling of proceedings
    related to criminal history dispositions, and temporary
    restraining orders, as they relate to disqualification from
    firearms ownership under state and Federal laws.
        Legislative History.--No hearings were held on H.R. 4757 in
    the 107th Congress. On July 23, 2002, the Committee met in open
    session and ordered favorably reported the bill, H.R. 4757, as
    amended, by recorded vote of 30-2. The bill was reported to the
    House on October 15, 2002 (H. Rept. 107-748). On October 15,
    2002, the House passed the bill by voice vote. No further
    action was taken on H.R. 4757 during the 107th Congress.

    H.R. 2929, the ``Bail Bond Fairness Act of 2001''

        Summary.--Representative Bob Barr (R-GA) introduced H.R.
    2929, the ``Bail Bond Fairness Act of 2001,'' on September 21,
    2001. The bill limits the circumstances for which bail can be
    forfeited. Bail set by a judge in Federal court typically
    includes provisions to require a defendant to make all court
    appearances and meet other conditions, including a requirement
    that the defendant ``break no laws.'' This bill was drafted in
    response to a 1995 decision from the Ninth Circuit and would
    prohibit Federal judges from forfeiting bail bonds except in
    cases where the defendant actually fails to appear physically
    before a court as ordered. It would not permit forfeiture when
    the defendant violates some other condition of release. In
    other words, it makes bail ``appearance-related'' rather than
    ``performance-related.''
        On April 26, 2002, the Committee on Judiciary sent a letter
    to the Judicial Conference of the United States to inquire
    about its review of the appropriate circumstances for
    forfeiture of bail. The Judicial Conference responded that it
    had reviewed the matter and determined that a change in its
    policy regarding forfeiture of bail was not appropriate.
        Legislative History.--On October 8, 2002, the Subcommittee
    on Crime, Terrorism, and Homeland Security held one hearing on
    H.R. 2929, the ``Bail Bond Fairness Act of 2001.'' The two
    witnesses who testified were: the Honorable Edward Carnes, U.S.
    Court of Appeals for the 11th Circuit and Chairman, Advisory
    Committee on Criminal Rules, U.S. Judicial Conference,
    Secretary, Judicial Conference of the United States; and
    Stephen H. Kreimer; Executive Director, Professional Bail
    Agents of the United States. No further action was taken on
    this bill in the 107th Congress.

    H. Res 224, honoring the New Jersey State Law Enforcement Officers
            Association

        Summary.--H. Res. 224 honors the New Jersey State Law
    Enforcement Officers Association. The legislation recognizes
    the bravery and honor of the law enforcement officers of New
    Jersey and the service those officers provide to the
    communities that they serve.
        Legislative History.--H. Res 224 was introduced by
    Congressman Ferguson on August 2, 2001. On November 1, 2001,
    the House passed the resolution without objection.

    H. Res. 437, Requesting that the President focus appropriate attention
            on neighborhood crime prevention and community policing, and
            coordinate certain Federal efforts to participate in ``National
            Night Out'', including by supporting local efforts and
            neighborhood watches and by supporting local officials to
            provide homeland security, and for other purposes

        Summary.--H. Res 437 is a sign of support for the
    ``National Night Out (NNO). The National Night Out held on
    August 6, 2002, is widely known as America's night out against
    crime where people in thousands of communities take to the
    streets to support their communities. Since 1984, the NNO has
    promoted neighborhood watch programs and established police
    community partnerships in the fight against crime.
        Legislative History.--On June 6, 2002, Congressman Stupak
    introduced H. Res. 437. On July 17, 2002 the Judiciary
    Committee ordered the resolution reported by a voice vote. The
    Committee on the Judiciary filed H. Rept 107-606. H. Res. 437
    was placed on the House Calendar on July 29, 2002.

    S. 2431, the ``Mychal Judge Police and Fire Chaplains Public Safety
            Officers'' Benefit Act of 2002''

        Summary.--S. 2431 and H.R. 3297 addresses the ambiguity
    under current law in regards to making payments of monetary
    amounts to survivors of public safety officers who are killed
    in the line of duty. S. 2431 specifically names chaplains who
    are in service as being eligible for the same benefits as other
    public service officers.
        Legislative History.--S. 2431 was introduced on May 1, 2002
    by Senator Leahy. On May 1, 2002 the Senate Committee ordered
    reported S. 2431 with an amendment and without a written
    report. On May 7, 2002 the Senate agreed to S. 2431 by
    unanimous consent. On June 11, 2002 the House of
    Representatives passed S. 2431 and H.R. 3297 was laid on the
    table without objection. H.R 3297 was considered on March 3,
    2002, at the Committee on the Judiciary and was ordered to be
    reported by a voice vote with an amendment. The Committee on
    the Judiciary filed H. Rept. 107-384 on April 9, 2002. The
    House of Representatives passed as amended H.R. 3297 by a voice
    vote. On June 24, 2002 the President signed S. 2431. S. 23431
    is Public law 107-196.

                              Oversight Activities

    List of Oversight hearings

    Drug Trafficking on the Southwest Border, March 29, 2001
                (Serial No. 3)
    Reauthorization of the United States Department of Justice--
                Part I: Criminal Law Enforcement Agencies, May 3,
                2001 (Serial No. 29)
    Reauthorization of the United States Department of Justice--
                Part II: Criminal Law Componentsat Main Justice,
    May 15, 2001 (Serial No. 29)
    Reauthorization of the United States Department of Justice--
                Part III: Criminal Law Enforcement Agencies,
                (Serial No. 29)
    Fighting Cyber Crime: Efforts by State and Local Officials, May
                24, 2001 (Serial No. 33)
    Fighting Cyber Crime: Efforts by Federal Law Enforcement, June
                12, 2001 (Serial No. 33)
    Fighting Cyber Crime: Efforts by Private Business Interests,
                June 14, 2001 (Serial No. 33)
    Ethics of Cloning, June 7, 2001 (Serial No. 40)
    Law Enforcement and Community Efforts to Address Crimes Against
                the Elderly, July 11, 2001 (Serial No. 34)
    Office of Justice Programs--Part I: Coordination and
                Duplication, March 5, 2002 (Serial No. 71)
    Office of Justice Programs--Part II: Evaluation and
                Effectiveness, March 7, 2002 (Serial No. 71)
    Office of Justice Programs--Part III: Waste, Fraud and Abuse,
                March 14, 2002 (Serial No. 71)
    Enhancing the Child Protection Laws After the April 16, 2002
                Supreme Court Decision, Ashcroft v. Free Speech
                Coalition, May 1, 2002 (Serial No. 75)
    Risk to Homeland Security from Identity Fraud and Identity
                Theft (held jointly with the Subcommittee on
                Immigration, Border Security and Claims), June 25,
                2002 (Serial No. 86)
    Proposal to Create a Department of Homeland Security, July 9,
                2002 (Serial No. 94)

    Creation of the Counterintelligence Program for the 21st Century

        In March 2001, the President released a directive to create
    a new program called CI-21 or the Counterintelligence for the
    21st century. The FBI Director (Louis Freeh), selected David
    Szady, a FBI special agent who was the chief of an interagency
    counterintelligence/ counterespionage from 1997 to 1999 that
    reported to the CIA and the FBI. The directive stated that the
    program and Czar are to work to improve the counterintelligence
    communities ability to meet its mission of identifying,
    understanding, prioritizing and counteracting the intelligence
    threats faced by the United States. Judiciary staff met with
    the newly selected counterintelligence Czar in March 2001.

    Creation of the Department of Homeland Security

        On July 9, 2002, the Subcommittee on Crime, Terrorism, and
    Homeland Security held an oversight hearing on the creation of
    a Homeland Security Department. The hearing focused on the
    Administration's proposed transfer of the Coast Guard, Customs,
    FEMA, Secret Service, and Transportation Security
    Administration to the proposed Department of Homeland Security.
    The Committee heard testimony from Admiral Thomas H. Collins,
    Commandant of the United States Coast Guard; the Honorable John
    W. Magaw, Under Secretary of Transportation for Security for
    the Transportation Security Administration; the Honorable
    Robert C. Bonner, Commissioner of the United States Customs
    Service; and Brian L. Stafford, Director of the United States
    Secret Service. The Honorable Joe M. Allbaugh, Director of the
    Federal Emergency Management Agency, declined to testify.
        The hearing was in response to H.R. 5005, the ``Homeland
    Security Act,'' introduced on June 24, 2002. This bill was the
    Administration's proposal for the creation of a Homeland
    Security Department. The bill provided for the creation of a
    new Department with the primary mission to prevent terrorist
    attacks within the United States, to reduce the vulnerability
    of the Nation to an attack, to minimize the damage of an
    attack, and to assist in the recovery. As a terrorist threat or
    attack is a criminal event that requires a law enforcement
    response, the hearing examined the roles of law enforcement
    agencies the Administration proposed to transfer into the new
    Department.
        The House of Representatives created a temporary House
    Select Committee to enact H.R. 5005. The bill was referred to
    12 standing committees, including the Committee on the
    Judiciary, which had the bulk of jurisdiction. The Committee on
    the Judiciary considered and reported the bill favorably with
    amendment to the Select Committee on July 10, 2002. The House
    passed the bill by a vote of 295 yeas to 132 nays (roll no.
    367) on July 26, 2002. This version contained a substantial
    number of recommendations from the Subcommittee and Committee
    on the Judiciary. A compromise bill with the Senate and the
    White House passed on November 13, 2002, by a recorded vote
    (roll no. 477) of 299 yeas to 121 nays. This version was H.R.
    5710. On November 19, 2002, the Senate passed H.R. 5005 by 90
    yeas to 9 nays. H.R. 5005 included a substitute amendment that
    substituted text essentially the same as H.R. 5710 in H.R.
    5005. The House agreed to the Senate amendment to H.R. 5005 on
    November 22, 2002. On November 25, 2002, the President signed
    the bill and it became Public Law 107-296.

    First Responder Training and Assistance for Terrorist Events

        Congress has been debating the best way to coordinate
    Federal agencies and the state and local first responders \12\
    in responding to domestic terrorist threats and events. In
    1998, the Department of Justice established the National
    Domestic Preparedness Office which was housed in the FBI, the
    lead agency for crisis management in such an event.
    ---------------------------------------------------------------------------
        \12\ First responders are state and local officials, such as law
    enforcement, and fire and emergency medical services officers that are
    likely to be first on the scene of a domestic terrorist act.
    ---------------------------------------------------------------------------
        The National Domestic Preparedness Office (NDPO) was
    created to serve as a single point of contact and clearinghouse
    for Federal assistance programs related to weapons of mass
    destruction \13\ (WMD) information. The Federal Emergency
    Management Agency, the lead agency for consequence management,
    argued that it should house the coordinating office. The new
    Administration agreed and on May 8, 2001, the President
    announced that Vice President Cheney would oversee the
    development of a coordinated national effort to deal with
    consequence management for the counterterrorism threats. The
    new office, the Office of National Preparedness (ONP), was
    created in FEMA to deal with consequence management
    coordination. The President stated that ``FEMA would work
    closely with the Department of Justice, in its lead role for
    crisis management, to ensure that all facets of our response to
    the threat from weapons of mass destruction are coordinated and
    cohesive.''
    ---------------------------------------------------------------------------
        \13\ The United States Government Interagency Domestic Terrorism
    Concept of Operations Plan defines Weapons of Mass Destruction as ``any
    device, material, or substance used in a manner, in a quantity or type,
    or under circumstances evidencing an intent to cause death or serious
    injury to persons or significant damage to property.''
    ---------------------------------------------------------------------------
        This announcement caused some confusion on the role of the
    FBI and NDPO in crisis management. Staff of the National
    Security Council assured Subcommittee staff that the role of
    the NDPO was not affected. However, the Washington Post
    reported on May 9, 2001, that Administration officials said
    ``FEMA will assume a role previously played by the FBI's
    National Domestic Preparedness Office for working with local
    police, fire and emergency management agencies.''
        On July 30, 2001, the Subcommittee sent a letter to the
    Attorney General requesting information as to whether NDPO
    would be transferred. The Department of Justice responded in
    the affirmative. The transfer never took place, however. The
    NDPO did become defunct because of the battle of its programs.
    This skeleton office was transferred to the Department of
    Homeland Security in H.R. 5005 that was signed into law on
    November 25, 2002.
        Office of Domestic Preparedness (ODP) was another office
    within the Department of Justice that is responsible for
    establishing Federal domestic preparedness programs and
    activities to assist state and local governments to prepare for
    and respond to terrorist incidents, including attacks involving
    weapons of mass destruction.
        On January 24, 2002, the President announced FEMA would
    operate the homeland security first responder initiative. On
    January 29, 2002, the Committee on the Judiciary sent a letter
    requesting FEMA respond to a number of questions. The ONP was
    authorized by Congress to carry out similar responsibilities,
    including assessment reports of threats and needs of the states
    and localities as well as training and exercise. The
    Appropriations Committees provided authorization for these
    duties through the last few appropriation bills. Moreover,
    after the September 11, 2001 terrorist attacks this Committee
    passed and Congress enacted Public Law 107-56, the Patriot Act.
    Section 1014 of the USA Patriot Act authorized the Office for
    State and Local Domestic Preparedness Support of the Office of
    Justice Programs in the Department of Justice to provide State
    grants that enhance the capability of State and local
    jurisdictions to prepare for and respond to terrorist acts
    including events of terrorism involving weapons of mass
    destruction. The name of this office was changed to the Office
    of Domestic Preparedness. Public Law 107-273, the ``21st
    Century Department of Justice Appropriations Authorization
    Act,'' also authorized the Office of Domestic Preparedness.
        The Director of the Office of National Preparedness (ONP)
    at FEMA stated in a January 30, 2002 letter to the Subcommittee
    on Crime, Terrorism and Homeland Security that ONP was created
    to perform duties relative to consequence management. He
    further stated that FEMA's mission and function in no way
    interferes with, or compromises the authority of, the
    Department of Justice or its various departments or programs to
    carry out its mission with regard to crisis management.
        Through the ongoing meetings and correspondence with FEMA,
    the Committee found FEMA's response alarming. FEMA determined
    that a terrorist event was not a law enforcement or crisis
    management event. FEMA emphatically rejected the need for such
    training and assured the Committee they would not offer such
    training. Later in the year, FEMA and the Office of Homeland
    Security later argued that their was no such distinction
    between crisis and consequence management. The Office of
    Homeland Security stated this in its description of its draft
    legislation to create a new Department.
        Law enforcement first responders became immediately
    concerned that they would lose the vital training and
    assistance for crisis management. The Subcommittee and
    Committee believed that the proposed Department of Homeland
    Security must serve all first responders through integrated
    training and assistance of both crisis and consequence
    management.
        In a March 13, 2002 letter to the Committee on the
    Judiciary, the Director of FEMA emphatically stated that FEMA
    and the Office of National Preparedness within FEMA would not
    handle crisis management or law enforcement training, technical
    assistance, exercises and equipment. The Director stated that
    ``While FEMA will coordinate grants and assistance to first
    responders, it will not assume any law enforcement functions,
    nor will FEMA provide law enforcement training--training on
    investigative techniques, evidence collection techniques.''
        Notable experts, including many in the emergency first
    responder community, urged the Congress not to give FEMA the
    governing role in training first responders for terrorist
    events. Even the Heritage Foundation appeared to have concerns.
    For example, David Muhlhausen, policy analyst for the Heritage
    Foundation, in testifying before the Senate Judiciary Committee
    on March 21, 2002, stated ``[g]iven the nation's continuing
    susceptibility to future terrorist attacks, the [F]ederal
    government has the responsibility to assist state and local law
    enforcement in their efforts to detect, prevent, and respond to
    terrorism. FEMA's traditionally reactive approach to disasters
    is not well suited for the needs of law enforcement in
    responding to prospective terrorist threats.''
        As the National Sheriff's Association testified before the
    Subcommittee, ``[t]he prevention, detection and apprehension of
    terrorists are law enforcement functions, and it is not
    appropriate for training and coordination to be assigned to the
    FEMA regime, where there are no such responsibilities. In the
    tragic event that there is a terrorist attack, that crisis is
    also a law enforcement responsibility. Sheriffs and Chiefs of
    Police are shocked that OMB would propose that FEMA should
    assume responsibility in these areas, where there is neither
    experience nor legal authority to act.''
        In a March 8, 2002 letter to the Subcommittee on Crime,
    Terrorism and Homeland Security the International Brotherhood
    of Police Officers (IBPO) stated that it ``is concerned that
    FEMA does not have the experience or understanding that a law
    enforcement agency has when investigating terrorism.''
        Additionally, the Police Executive Research Forum (PERF), a
    national organization of police executive professionals, that
    serves more than 50 percent of the country's population,
    explained that while it respects and values FEMA's role in
    disaster mitigation, it was troubled about FEMA assuming a new
    role in training in antiterrorism efforts by state and local
    law enforcement. PERF explained:

            [t]he mission of FEMA and its area of expertise are
            based ondisaster response and mitigation. While law
    enforcement, firefighting, emergency medical services, and HAZMAT
    agencies could all be first responders to a critical incident, the role
    of law enforcement is unique in its crisis prevention, detection
    activities, and apprehension of suspects. Police agencies have primary
    responsibility for local intelligence gathering, public safety and
    maintaining public order before and during a crisis. They do this
    through combinations of community policing, criminal investigation, and
    emergency response. All of this must be done while meeting the day-to-
    day demands of a local police department. These efforts require
    [F]ederal support that is based on extensive experience and knowledge
    of local police operations and challenges. * * * The knowledge that
    comes from this experience cannot be easily transferred to an agency
    that is relatively new to law enforcement issues.
              FEMA's experience and expertise have traditionally
            been in other areas of public safety and welfare than
            law enforcement. They have little history of effective
            partnership with local law enforcement on proactive
            efforts.

        In the Committee's FY 2003 Views and Estimates, the
    Committee stated that it was ``concerned that FEMA is not the
    appropriate agency for these responsibilities.'' A terrorist
    attack is a criminal event, not a natural disaster. Yet in the
    FY 2003 budget, the Office of Management and Budget proposed
    transferring the Office of Domestic Preparedness out of the
    Department of Justice and into FEMA.
        On April 11, 2002, Chairman Sensenbrenner sent a letter to
    the President expressing strong opposition to this proposal.
    The Chairman stated transferring ODP's function to FEMA would
    ``leave a gaping hole in our nation's counterterrorism
    efforts'' because there would be no training for crisis
    management. The Chairman stated that ``[i]t would eliminate an
    effective grant-making office, which currently offers the only
    integrated program that provides needed funds for training,
    equipment and technical assistance to state and local law
    enforcement first responders for crisis management and
    consequence management in the event of a terrorist attack or
    planned attack.''
        On May 20, 2002, the Committee wrote Chairman Young of the
    Appropriations Committee commending him for continuing the
    funding of ODP and its first responder programs as part of the
    2002 Supplemental Appropriation.
        On July 10, 2002, the Judiciary Committee reported out its
    recommendation to the House Select Committee for the creation
    of a new Department of Homeland Security. Committee recommended
    that only the Office for National Preparedness in FEMA would be
    transferred. In conjunction with FEMA's Office of National
    Preparedness, the Committee recommended that the Justice
    Department's Office for Domestic Preparedness be transferred to
    create a central office within the new Department for Federal,
    state, and local training and coordination. This office would
    ensure a coordinated Federal, state, and local response in
    crisis and consequence management to a terrorist threat or
    attack.
        For the above reasons, the Committee on the Judiciary
    adamantly opposed FEMA's lead role in the training of first
    responders. Due to the oversight of this Committee, the
    training of first responders under the new Department of
    Homeland Security will be placed under the law enforcement
    division of the new Department that carries out border security
    and other law enforcement functions. In fact, the Office of
    National Preparedness was moved out of FEMA and placed into the
    law enforcement division of the new Department of Homeland
    Security.

    Drug Trafficking on the Southwest border

        On March 29, 2001, the Subcommittee on Crime held an
    oversight hearing on drug trafficking on the Southwest border
    of the United States. The four witnesses were: the Honorable
    Donnie R. Marshall, Administrator, Drug Enforcement
    Administration, U.S. Department of Justice; John Varrone,
    Assistant Commissioner, Office of Investigations, U.S. Customs
    Service; Mike Scott, Chief of Criminal Law Enforcement,
    Department of Public Safety, Austin, TX; the Honorable W. Royal
    Furgeson, Jr., Judge, U.S. District Court for the Western
    District of Texas.
        According to the Drug Enforcement Administration (DEA), the
    ever-increasing legitimate cross-border traffic and commerce
    between the U.S. and Mexico has brought with it a significant
    increase in narcotics trafficking at the U.S./Mexico border in
    the last several years. Several international organized crime
    groups have established elaborate smuggling infrastructures on
    both sides of the border, which has made the Southwest border
    the smuggling corridor of preference for the flow of marijuana,
    cocaine, heroin, and methamphetamine. The latest figures show
    that about 63 percent of all U.S. drug seizures (representing
    over 76 percent of the total weight seized) occur along the
    Southwest border and that number threatens to increase as
    Mexico-based drug trafficking organizations grow even more
    powerful. This hearing examined not only the increased drug
    trafficking, but also the effects that the increase has had on
    the safety of the surrounding communities and the overwhelming
    burden imposed on the judicial districts along the border.

    Narco-terrorism

        On December 4, 2001, the Subcommittee staff met with the
    DEA to discuss the relationship between narcotics trafficking
    and terrorism. According to the DEA, illegal drug production in
    Mexico, Columbia, Thailand, and Afghanistan funds terror and
    represents a clear and present danger to our national security.
    During this meeting the DEA briefed the staff on its strategy
    in dealing with drugs and terrorism. That strategy is to focus
    on DEA's priorities; to develop intelligence to a greater
    extent; and to develop international cooperation. The
    Subcommittee continues to conduct oversight over the DEA's role
    in dealing with the issue of narco-terrorism.

    OxyContin

        Beginning on May 9, 2001, the Subcommittee staff met with
    the DEA on numerous occasions to discuss the issue of drug
    diversion relating to the prescription medication OxyContin.
    OxyContin is a trade name product for the generic narcotic
    oxycodone. It is a synthetic drug that acts exactly like
    morphine and is prescribed for moderate to high pain relief
    associated with injuries, arthritis, lower back pain and
    terminal cancer pain. OxyContin was approved by the Food and
    Drug Administration in 1995 and was seen as a breakthrough drug
    in dealing with the treatment of pain.
        What makes OxyContin unique is that it contains a time
    release mechanism that allows for a slow release of the
    narcotic oxycodone over a twelve hour period. A patient can
    take one pill and receive a steady release of pain reliever
    over a long period of time, rather than suffer the common
    ``roller-coaster'' of pain effect that shorter duration pain
    relievers are subject to. There is a highly significant problem
    with the time release mechanism of which the DEA says the
    manufacturer was aware. The time release mechanism is destroyed
    if you simply break up the pill or dissolve it in water. This
    is why the packaging makes it very clear that the pills must be
    swallowed whole. When you crush the pill you are left with a
    highly addictive pile of pure morphine that can be snorted or
    injected.
        Opiate abusers have quickly learned the ease of converting
    the tablets from a safe medication for the chronic treatment of
    pain to a suitable substitute for heroin. Drug abuse treatment
    centers, law enforcement personnel, and pharmacists have
    recently reported a sudden increase in the abuse of OxyContin
    across the country and among all ethnic and economic groups.
    The number of emergency department episodes involving OxyContin
    abuse have doubled from 3,190 episodes in 1996 to 6,429
    episodes in 1999.
        Drugs such as OxyContin are diverted in a variety of ways
    including pharmacy diversion, ``doctor shopping,'' and improper
    prescribing practices by physicians. Pharmacy diversion occurs
    when individuals working in pharmacies take products directly
    from the shelves, or when people make fraudulent prescriptions.
    The most widely used diversion technique at the street level is
    doctor shopping.
        DEA has had two separate meetings with the manufacturer
    concerning this problem. DEA officials present at those
    meetings say that the company has expressed a willingness to
    cooperate, however, correspondence received from the company
    following those meetings makes clear that the company feels
    that they are producing a lawful product, is operating within
    FDA guidelines, and believes that there have been no deaths
    attributable to OxyContin. The Subcommittee continues to
    conduct oversight over the DEA's handling of the problem of the
    diversion of OxyContin.

    Medical marijuana

        On July 11, 2002, the Subcommittee staff met with the DEA
    to discuss the issue of ``medical marijuana.'' State laws in
    Oregon, Alaska, Hawaii, and California allow medical use of
    marijuana under specified conditions. All four states require a
    patient to have a physician's recommendation to be eligible for
    medical marijuana use. Alaska, Hawaii, and Oregon established
    state-run registries for patients and caregivers to document
    their eligibility to engage in medical marijuana use; and
    require physician documentation of a person's debilitating
    condition to register. However, under Federal law, marijuana is
    still classified as a Schedule I drug and is therefore still
    illegal.
        DEA addressed some of the serious difficulties associated
    with ``medical marijuana'' programs. Specifically, DEA
    discussed the inherent conflict between state laws permitting
    the use of marijuana and Federal laws that do not; the
    potential for facilitating illegal trafficking; the impact of
    such laws on cooperation among Federal, state, and local law
    enforcement; and the lack of data on the medicinal value of
    marijuana. DEA further discussed that the use of the phrase
    ``medical marijuana'' implicitly accepts a premise that is
    contrary to existing federal law.
        DEA has been aggressive in enforcing Federal drug laws
    relating to the sale and distribution of marijuana in states
    that have passed contrary laws. For example, on February 12,
    2002, the DEA raided ``medical marijuana clubs'' in San
    Francisco, confiscating 8,300 plants, a handgun and a shotgun
    and arresting three men who allegedly provided the marijuana.
    The Subcommittee continues to conduct oversight over the DEA's
    enforcement of federal drug laws.

    Protecting Seniors from fraud

        On April 30, 2001, the Subcommittee on Crime staff met with
    the FBI to discuss the Nation's problem with crimes against
    seniors. Currently, there are 34.5 million Americans over the
    age of 65 and that number is expected to double by 2030.
    Seniors are frequently targets of frauds and scams, purse
    snatching, pick pocketing, theft of checks from the mail and
    crimes in long-term care settings.\14\ Con artists set up
    sophisticated investment scams and steal life savings. For
    example, there is the lottery fraud, where a caller offers the
    senior a percentage of a lottery ticket for a price promising
    that it is easier to win the lottery in another country. After
    the senior pays for the ticket, the con will call back claiming
    the senior won and that for the senior to receive the money he
    or she must pay thousands in taxes. Another common fraud scheme
    is the Bank Examiner Fraud. Here, a caller claims to be a
    ``bank examiner'' and tells the senior his or her checking or
    savings account has had some unusual withdrawals. The ``bank
    examiner'' will then say that the bank is investigating a
    dishonest teller who is allegedly making withdrawals from the
    senior's account. Someone posing as law enforcement will then
    ask the senior to help by catching the teller in the act. The
    senior is asked to withdraw money and give it to the examiner
    for marking and recording serial numbers.
    ---------------------------------------------------------------------------
        \14\ TRIAD: reducing crime against the elderly (4th ed.) P. 15.
    ---------------------------------------------------------------------------
        This meeting lead to the July 11, 2001 Subcommittee
    oversight hearing on law enforcement and community efforts to
    address crimes against seniors. The four witnesses that
    testified at the hearing were: Joseph Pollock, the Sheriff of
    Burnet, Texas; Susan Reed, the District Attorney of Bexar
    County Courthouse in San Antonio Texas; Frank Donaghue, the
    Chief Deputy Attorney General and the Director of the Bureau of
    Consumer Protection of the Pennsylvania Office of Attorney
    General; and Michele J. Bruno, State Director of Triad Program,
    Office of the Attorney General in Richmond, Virginia.
        The states and communities with the support of the Federal
    Government have lead the effort against such crime. For
    instance, the National Association of Attorneys General (NAAG)
    have worked with Federal, state and local law enforcement and
    communities addressing crimes against the elderly ranging from
    health care abuse to telemarketing scams to sweepstakes
    problems. Last fall, the State Attorneys General reached
    settlements with two sweepstakes companies regarding claims
    that those companies disseminated promotional material which
    claimed consumers had won when they had not.\15\
    ---------------------------------------------------------------------------
        \15\ Consumer Protection Report: (Sept. 2000) 1.
    ---------------------------------------------------------------------------
        Another federally supported state and communities effort is
    TRIAD. In 1988, the American Association of Retired Persons,
    the International Association of Chiefs of Police and the
    National Sheriffs Association signed a cooperative agreement to
    reduce crime against seniors and to improve law enforcement
    services to the elderly. This agreement is known as TRIAD and
    works to connect senior citizens with police and sheriff
    departments. A volunteer council called SALT (Seniors and Law
    Enforcement Together) is organized for each local TRIAD. The
    local SALT Council determines what services or programs the
    TRIAD will offer, recruits volunteers, and oversees the
    results.
        The ``Protecting Seniors from Fraud Act'' \16\ was enacted
    on November 22, 2000, and authorized appropriations to the
    Attorney General for fiscal years 2001 through 2005 for TRIAD
    programs. Among other things, that law directed the Secretary
    of Health and Human Services, acting through the Assistant
    Secretary of Health and Human Services for Aging, to provide to
    the Attorney General of each State and to publicly disseminate
    in each State (including to area agencies on aging) information
    designed to educate senior citizens and raise awareness about
    the dangers of fraud, including telemarketing and sweepstakes
    fraud. Additionally, the law required the Attorney General to:
    (1) conduct a study to assist in developing new strategies to
    prevent and otherwise reduce the incidence of crimes against
    seniors; and (2) include as part of each National Crime
    Victimization Survey statistics related to crimes targeting or
    disproportionately affecting seniors, crime risk factors for
    seniors, and specific characteristics of the victims of crimes
    who are seniors.
    ---------------------------------------------------------------------------
        \16\ Pub. L. No. 106-534.
    ---------------------------------------------------------------------------
        In response to the hearing and to ensure the implementation
    of the Act, the Subcommittee on Crime sent a letter to the
    Department of Health and Human Services on July 11, 2001,
    requesting a status report on the Department's implementation
    of this bill. The Department responded on September 19, 2001,
    stating that the Administration on Aging (AoA) is implementing
    this law through its existing programs and networks. In this
    letter, the Secretary of Health and Human Services reported:

              The AoA administers Older American Act (OAA) formula
            grants for state activities designed to protect seniors
            from abuse, neglect, and exploitation. These include
            efforts to train law enforcement officials, develop and
            distribute education materials, conduct public
            awareness campaigns, and create community coalitions.
              The AoA provides comprehensive consumer protection
            information on its web site. It also funds the National
            Center on Elder Abuse and five national legal resource
            centers. These organizations provide the public with
            information on consumer scams. They also share fraud
            information with other professionals. For example,
            three of the legal resource centers participate in a
            quarterly conference call with the National Association
            of Attorneys General.
              On May 2001, the National Consumer Law Center (NCLC)
            used OAA funds to produce and disseminate the enclosed
            document, ``What To Do If You've Become The Victim Of
            Telemarketing Fraud.'' Next year NCLC will produce an
            elder fraud brochure, two fact sheets for seniors, and
            two for advocates. The center will disseminate these
            materials to State Attorneys General, senior legal
            services providers, and senior centers.

        Additionally, the Subcommittee sent a letter to the
    Department of Justice on July 11, 2001, requesting the status
    of its compliance. The Department of Justice responded on
    August 22, 2001. In compliance with the law, the Department's
    Bureau of Justice Statistics (BJS) now reports the levels and
    rates of violent and property crimes against persons age 65 or
    older. BJS recently published ``Crimes Against Persons Age 65
    or Older, 1992-97.'' This report does not include fraud data,
    however. The Department's National Institute for Justice (NIJ)
    is working with BJS to determine if fraud data may be obtained
    through the National Incident Based Reporting System.

    Reauthorization of the United States Department of Justice

        In preparation for H.R. 2215, the ``21st Century Department
    of Justice Appropriations Authorization Act'' the legislation
    that reauthorizes the programs within the Department of
    Justice. On May 3 and May 15, 2001, the Subcommittee on Crime
    held two oversight hearings on the reauthorization of the
    United States Department of Justice. Specifically, the
    Subcommittee held one hearing on the criminal law enforcement
    components (the Federal Bureau of Investigation, the Drug
    Enforcement Administration, the Bureau of Prison, and the
    United States Marshal Service) of the Justice Department that
    comprise the largest portion of the Department, employing the
    largest number of employees and accounting for most of the
    Department's budget. All of these divisions fall within the
    oversight and legislative jurisdiction of the Subcommittee on
    Crime. Because of the wide breadth of the Department of
    Justice's activities, the Subcommittee held a second hearing on
    the criminal law components of the Department of Justice that
    are not its direct law enforcement agencies--the Criminal
    Division, the Office of Justice Programs (OJP), and the
    Community Oriented Policing Services office (COPS).

    Office of Justice Programs

        The Subcommittee on Crime held three oversight hearings on
    the Office of Justice programs on March 5, March 7, and March
    14, 2002. The Office of Justice Programs (OJP) is the primary
    grant-making office within the Department of Justice. The
    programs that OJP currently operateswere authorized by various
    crime bills throughout the past two decades. Although these grant
    programs provide a vital resource for state and local law enforcement
    agencies, studies on the effectiveness of these grants have been
    inconclusive. Additionally, some of the programs at OJP overlap or
    duplicate other programs at OJP, at other Department of Justice offices
    (e.g., COPS) and at other agencies.
        At a March 5, 2002 hearing, witnesses testified on how
    duplication and lack of coordination in OJP various grant
    programs prevent OJP from effectively achieving its core
    mission of delivering Federal crime funds to state and local
    units of government. The four witnesses were: the Honorable
    Deborah Daniels, Assistant Attorney General, Department of
    Justice Office of Justice Programs; the Honorable Laurie
    Robinson, former Assistant Attorney General, Office of Justice
    Programs; Dr. Nolan Jones, National Governor's Association; and
    Ralph Kelley, Commissioner, Kentucky Department of Juvenile
    Justice.
        The witnesses at the March 7, 2002 hearing testified on how
    OJP's programs are evaluated for effectiveness. The four
    witnesses were: Dr. Laurie Ekstrand, Director, Justice Issues,
    General Accounting Office; David Muhlhausen, Policy Analyst,
    Heritage Foundation; Sheriff John Cary Bittick, President of
    the National Sheriffs Association; and The Honorable David B.
    Mitchell, Executive Director National Council of Juvenile and
    Family Court Judges.
        On March 14, 2002, the Subcommittee on Crime held the third
    hearing at which witnesses testified on the administration of
    Federal law enforcement grants by the Office of Justice
    Programs (OJP), the principal grant-making arm of the Justice
    Department, as well as the Community Oriented Policing Services
    (COPS) Program. Those witnesses were: Glenn A. Fine, Inspector
    General of the Department of Justice; Tracy Henke, OJP
    Principal Deputy Assistant Attorney General; Carl Peed,
    Director of the COPS Office; and Bonnie Campbell, Esq., Former
    Director, Violence Against Women Office, OJP.
        These hearings pointed out the need for continued oversight
    of OJP, especially in light of the President's FY 2003 Budget
    proposal to redirect Federal law enforcement funding into
    counter-terrorism and homeland security. By examining certain
    COPS and OJP grants some consider to be wasteful or
    ineffective, the Subcommittee seeks ways to ensure that Federal
    law enforcement funds will have a more direct and measurable
    impact on crime.
        To prepare for these hearings, the Subcommittee on Crime
    sent a letter to the Office of Justice Programs (OJP) asking
    for information regarding coordination, duplication, and
    evaluations of effectiveness at OJP. Additionally, the
    Subcommittee sent two letters directing General Accounting
    Office (GAO) to perform studies on programs within the Office
    of Justice Programs. The first GAO letter sent on January 25,
    2002, requested that the GAO review the effectiveness of the
    Weed and Seed programs. The second letter sent on February 8,
    2002, requested that the GAO review the evaluations being
    performed by the National Institute of Justice. These studies
    will be completed during the 108th Congress.

    Federal Bureau of Investigation: Criminal Justice Information Services
            (CJIS)

        On February 21, 2001, the Subcommittee on Crime staff met
    with the Criminal Justice Information Services (CJIS) at FBI
    headquarters in Washington, D.C. The CJIS Advisory Panel
    advises the FBI with respect to programs administered on behalf
    of the U.S. criminal justice community and is located in
    Clarksburg, West Virginia. To meet its mission to reduce
    criminal activity, CJIS provides timely and relevant criminal
    justice information to the FBI and to qualified law
    enforcement, criminal justice, civilian, academic employment,
    and licensing agencies concerning individuals, stolen property,
    criminal organizations and activities and other law
    enforcement-related data. CJIS has six components: (1)
    Fingerprint Identification System; (2) National Crime
    Information Center (NCIC); (3) National Instant Criminal
    Background Check System; (4) Law Enforcement On-Line; (5)
    Uniform Crime Reporting; and (6) other systems determined by
    the FBI Director to have some relationship to the above
    programs.
        The primary function of the CJIS Division is to provide
    fingerprint identification services and to maintain a national
    criminal history repository. This is very important in the war
    against terrorism. On July 28, 1999, CJIS implemented the new
    integrated automated tool--the Integrated Automated Fingerprint
    Identification System (IAFIS). IAFIS has three parts which have
    automated much of the existing work flow and manual processes
    and eliminated the need to process and retain paper fingerprint
    cards. IAFIS can process up to 62,500 ten-print fingerprint
    searchers (i.e. rolled paper prints) and 635 latent fingerprint
    (i.e. one left at the scene of a crime) search.
        The National Crime Information Center (NCIC) is a
    nationwide computerized information system accessed by more
    than 80,000 law enforcement and criminal justice agencies at
    all levels of government. The Uniform Crime Reporting/National
    Incident-Based Reporting System (NIBRS) is a nationwide
    cooperative effort of city, county, and state law enforcement
    agencies to report data on crimes. There are eight crimes in
    the Crime Index: murder, nonnegligent manslaughter, forcible
    rape, robbery, aggravated assault, and property crimes of
    burglary, larceny-theft, motor vehicle theft, and arson.
        Another component, the National Instant Criminal Background
    Check System (NICS) was established as a result of the Brady
    Act, which in 1998 required the Federal Firearms Licensees
    (FFL) to initiate a background check on all persons who attempt
    to purchase a firearm. The FBI established the NICS operation
    center to enforce the provisions of the Brady Act and to
    manage, operate and support NICS. The NICS mission is to ensure
    the timely transfer of firearms to individuals who are not
    specifically prohibited under Federal law and to deny the
    transfer to those who are prohibited from possessing or
    receiving a firearm.
        Law Enforcement On-Line (LEO), is a national interactive
    computer communications. LEO provides a state-of-the-art
    Intranet to link all levels of law enforcement nationwide. LEO
    offers real-time chat capability, news groups, distance
    learning, and articles on law enforcement issues, to name a
    few. Additionally, CJIS runs other systems related to the above
    programs.
        On February 21, 2002, the staff of the Subcommittee on
    Crime, Terrorism, and Homeland Security traveled to CJIS in
    West Virginia. In particular the Subcommittee concentrated on
    the FBI Operations Center-NICS. Subcommittee staff met
    examiners who perform NICS instantbackground checks for
    federally licensed firearms dealers. The meetings provided the
    Subcommittee with firsthand knowledge of the instant check system and
    the appeal process for firearms purchases and assisted in the drafting
    of legislation. FBI personnel also highlighted the types of technology
    available at the center to perform background checks and fingerprint
    identifications, which are a concern after the terrorist attacks of
    2001. Specifically, the FBI described its effort to integrate their
    biometric technology with other Federal agencies and with the states.

    Computer hacking issues

        On March 22, 2001, the Subcommittee staff met with the FBI
    to discuss the growing threat of computer hacking to the
    Nation's economy and security. This meeting provided invaluable
    information that the Subcommittee used in drafting various
    cyber crime provisions enacted in the 107th Congress.

    FBI reorganization

        On October 23, 2001, the Subcommittee staff met with the
    FBI Director Robert Mueller for a briefing on the proposed
    reorganization of the FBI. At that meeting the FBI explained
    that due to the 9-11 attacks and terrorism threat that
    terrorism was now the FBI's number one priority and that the
    reorganization was based on these new priorities.

    FBI Academy/Hostage Rescue Team

        On April 17, 2002, the Subcommittee staff toured the FBI
    Academy at Quantico, Virginia, to review FBI training efforts.
    Staff were also briefed on the FBI training for state and local
    law enforcement and on the Hostage Rescue Team's work.

    Implementation of USA Patriot Act information sharing requirements

        On September 30, 2002, the Subcommittee and Committee staff
    met with the Department of Justice, the FBI and the CIA to
    discuss the implementation of the information sharing
    provisions of the USA Patriot Act. The Committee continues to
    conduct oversight over these and other Patriot Act provisions.

    FBI outdated technology issues

        In April and May of 2001, the Subcommittee staff met with
    the FBI to discuss concerns that the FBI computer systems are
    slow, unreliable, and obsolete.

    Problems with document retrieval on Oklahoma City

        The Subcommittee also met with the FBI and DOJ on the
    belated production of documents related to the Oklahoma City
    case. On April 25, 2001, the Committee on the Judiciary sent an
    oversight letter to the Justice Department regarding this
    problem and urged the FBI and DOJ to take steps to upgrade
    their information technology systems. The Chairman of the
    Subcommittee on Crime issued a public statement on May 11,
    2001, expressing further concern after problems developed in
    the Timothy McVeigh case relating to inaccurate record keeping.
    Subcommittee staff also met with the FBI to discuss these
    issues and concerns. In March 2002, the Office of Inspector
    General (OIG) issued a report that found that the FBI's
    failures to disclose numerous documents related to the case in
    a timely manner were due to a number of causes including:

            individual mistakes made by FBI employees, the FBI's
            cumbersome and complex document-handling procedures,
            agents' failures to follow FBI policies and directives,
            inconsistent interpretations of FBI policies and
            procedures, agents' lack of understanding of the
            unusual discovery agreement in this case, and the
            tremendous volume of material being processed within a
            short period of time. The OIG concluded that the FBI's
            computer systems--although antiquated, inefficient, and
            badly in need of improvement--were not the chief cause
            of the failures.

    Missing equipment at the FBI

        In July, the Subcommittee learned that the FBI could not
    account for 449 firearms and 184 laptops. On July 17, 2001, the
    Attorney General directed that the Department of Justice's
    Inspector General would conduct a Department-wide review. The
    Immigration and Naturalization Service and the Bureau of
    Prisons had similar problems. The reviews are examining the
    inventory of Federal law enforcement equipment that may pose a
    danger to the public (i.e., missing guns) or a threat to
    national security (i.e., missing laptops). The OIG is
    conducting three separate reviews and in August 2002 reported
    its findings on the Bureau of Prisons. That report recommends
    that the Bureau of Prisons improve their controls.
        The Committee sent a letter on July 12, 2001 to the
    Department of Justice requesting specific information on the
    missing equipment. Of the 449 weapons, 265 are reported lost
    and 184 are reported stolen. Ninety-one of those weapons were
    training weapons that are inoperative. The weapons that were
    stolen were from automobile trunks, home burglaries, and armed
    robberies. One of the stolen guns was used in a murder in
    Detroit, Michigan. Of the 184 laptops, 13 were stolen and 171
    were reported lost. Of the 171 reported lost one contained and
    three others may have contained classified information. Since
    July 17, 2001, one of the three laptops that may contain
    classified information has been found. None of the stolen
    computers contained classified information. These computers
    could also contain law enforcement sensitive information.
        On July 24, 2001, the FBI briefed Members of the Committee
    on the Judiciary on the ``lost and stolen weapons and
    laptops.'' A hearing was not requested because the FBI and
    Department of Justice were in the middle of reviewing the
    situation. The informal briefing allowed the FBI and the
    attending Judiciary Members to participate in an informative
    open dialogue on the problem. These questions solicited answers
    that demonstrated to the FBI and the Department of Justice that
    they needed to resolve a few more issues. In response to the
    briefing, the Committee sent a letter on August 2, 2001,
    requesting additional information from the Department of
    Justice.

    Secret Service oversight: Counterfeiting

        On August 15, 2001, staff of the Subcommittee on Crime met
    with the special agents of the Unites States Secret Service's
    counterfeiting divisions. The meeting provided staff with
    knowledge of the new counterfeiting problems related to
    computer technology and dollarization. ``Dollarization''
    throughout the world will increase overseas counterfeit
    activities of U.S. currency. Dollarization is when another
    country adopts the U.S. dollars as its own currency. This has
    already happened in such countries as Guatemala, Ecuador and
    Panama. The Committee on the Judiciary expressed its support
    for the establishment of four foreign offices in regions where
    increased liaison, training and other services to foreign
    financial institutions and law enforcement agencies are
    necessary to prevent the manufacturing of counterfeit U.S.
    currency and financial crimes victimizing U.S. financial
    institutions in the FY 2003 Views and Estimates. Counterfeiting
    is a serious threat to the Nation's security as it undermines
    our financial structure and assists criminals such as drug
    traffickers and terrorists in financing their activities.

    Electronic crime task forces

        On May 30, and August 18, 2001, staff of the Subcommittee
    on Crime traveled to New York City to meet with the special
    agents of United States Secret Service's New York Electronic
    Crimes Task Force. At these meetings, the staff learned about
    the operations of the task force. The meetings provided the
    staff with firsthand knowledge of sensitive law enforcement
    efforts and cases carried out by the Secret Service. Bob
    Weaver, the Special Agent in Charge of the Unit, highlighted
    the types of technology and crime that are occurring. The
    evidence and technology reviewed by staff were destroyed in the
    September 11, 2001 terrorist attacks. These meetings allowed
    the staff an opportunity to determine whether to suggest
    authorizing a national network of electronic crime task forces
    based on the New York task force. This national network was
    authorized in Public Law 107-56, the Uniting and Strengthening
    America by Providing Appropriate Tools Required to Intercept
    and Obstruct Terrorism Act (USA Patriot Act) of 2001.

    ATF/Gun Issues: Gun shows

        On January 11, and 12, 2002, staff from the Subcommittee on
    Crime attended a gun show with Americans for Gun Safety in
    Richmond, Virginia. The purpose of the trip was to afford the
    Subcommittee staff an opportunity to experience a gun show
    firsthand and receive a briefing from the Americans for Gun
    Safety's position on the ``gun show loophole.'' Americans for
    Gun Safety (AGS) is a non-partisan, not-for-profit advocacy
    organization that supports the right of individuals to own
    firearms and urges responsibility in keeping guns out of the
    hands of criminals and children. Overall, this gun show did not
    present any evidence that the ``gun show loophole'' is a major
    problem that needs to be addressed by legislation.

    ATF New York Office

        On August 14-16, 2002, staff of the Subcommittee on Crime,
    Terrorism, and Homeland Security and the Judiciary Committee
    traveled to New York City to learn about the operations of the
    ATF in New York. The ATF took staff to a platform on the
    building next the World Trade Center site, which overlooks the
    site. Several New York ATF agents described the events of 9-11
    from their perspective inside Tower 7 and the rescue and
    cleanup efforts. We were shown much of the destruction from
    that day including other buildings and the damage each
    sustained. Communications, evacuations and response efforts
    after the attack were discussed. In addition, the differences
    between this investigation and the investigation of the 1993
    World trade Center were described.
        Staff of the Subcommittee on Crime, Terrorism, and Homeland
    Security were briefed on the ATF National Response Team
    facility in Red Hook, N.Y., which consists of a large,
    emergency response vehicle and trained specialists in arson,
    explosives and bio-weapons. The primary mission of the ATF
    National Response Teams is to assist state and local fire and
    police agencies. The teams are trained to assist local fire
    investigators in the investigation of suspected crime sites,
    e.g. car bombings or arson to cover up other crimes. Evidence
    extraction and preservation is key to subsequent stages of
    investigations and prosecutions.
        In the afternoon, Paul Browne, Deputy Commissioner of the
    New York Police Department briefed us on the added security
    precautions that have been taken since 9/11 especially with
    regard to certain bridges and buildings that have been the
    subject of intelligence reports provided to the NYPD by Federal
    agencies. Additionally, counsels were given a tour of the new
    offices of the New York Field Division of ATF and briefed us on
    the transition and the great assistance that GSA and the
    appropriation by Congress of emergency supplemental funding
    provided. We were also briefed on the ATF Crime Gun Center
    (Center) operated out of the New York Field Division offices.
    The Center compiles crime gun information that is used
    primarily for assisting state and local police agencies to
    solve crimes, deploy additional resources to areas where crime
    weapons are recovered, and proactive investigations and arrests
    of Federal firearms licensees (FFLs) who may be engaged in
    illegal firearms trafficking. The Center compiles data such as
    the number of crime guns traced to an FFL in a 1-year time
    frame, time to crime information, numbers of firearms stolen,
    multiple gun sales by a dealer to one individual, and the
    number of unsuccessful traces by a particular FFL trends.

    Ballistics imaging

        On November 8, 2002, staff from the Subcommittee on Crime,
    Terrorism, and Homeland Security visited the ATF's Ballistics
    Imaging Center in Rockville, Maryland, and it's weapons library
    in Washington, D.C. to learn about how bullets and casings are
    entered into the system and matched to guns and to learn about
    the various types of weapons that are banned in the United
    States.

    Dog training

        On April 2, 2002, staff from the Subcommittee on Crime
    toured the Bureau of Alcohol, Tobacco and Firearms and the U.S.
    Customs Service canine training center in Front Royal,
    Virginia, to learn about the training program for bomb sniffing
    and drug sniffing dogs that these two agencies employ,
    respectively.

    Explosives

        On August 29, 2002, staff of the Subcommittee on Crime,
    Terrorism, and Homeland Security traveled to Fredericksburg,
    VA, with the Bureau of Alcohol, Tobacco and Firearms for a
    demonstration of the different types of explosives and the
    damage each can cause.

    Bureau of Prisons

        On November 21, 2002, staff from the Subcommittee on Crime,
    Terrorism, and Homeland Security toured the Federal
    Correctional Institute (FCI) at Fairton, New Jersey, to learn
    about the conditions and the opportunities for education,
    skills training and counseling the prisoners receive. FCI
    Fairton houses prisoners classified at both medium security and
    minimum security levels.

    United States Sentencing Commission: Crack/powder cocaine penalty
            ratios

        On January 17, 2002, the United States Sentencing
    Commission (the Commission) published in the Federal Register a
    request for public comment regarding proposed amendments to the
    U.S. Sentencing Guidelines regarding penalties for crack
    cocaine. Under the current statutory scheme and sentencing
    guidelines, there is a 100-1 differential between powder and
    crack cocaine that triggers a 5- and 10-year mandatory minimum
    sentence. For example, someone trafficking 5 grams of crack
    cocaine would receive the same 5 year mandatory minimum
    sentence as someone trafficking 500 grams of powder cocaine. On
    March 29, 2002, the Subcommittee sent a letter to the
    Commission objecting to any change to the current Federal
    sentencing policy and guidelines.
        The Subcommittee noted in that letter and in meetings with
    the staff of the Commission that Congress's decision to
    differentiate crack cocaine from powder cocaine in the penalty
    structure was deliberate and the Commission appropriately
    followed those directives in implementing the drug penalty
    guidelines in 1989. Crack is more addictive than powder
    cocaine; it accounts for more emergency room visits; it is most
    popular among juveniles; it has a greater likelihood of being
    associated with violence; and crack dealers have more extensive
    criminal records than other drug dealers and tend to use young
    people to distribute the drug at a greater rate.
        On April 15, 2002, in a letter to the Subcommittee, the
    Commission stated that they were persuaded by the reasoning of
    the Subcommittee's March 29, 2002 letter and therefore decided
    not to promulgate an amendment to the Sentencing Guidelines.
    The Commission would instead make a recommendation to Congress
    for a change to the crack/powder cocaine penalty ratios.

    Racial profiling

        The Subcommittee has had several meetings with the
    Department of Justice with regard to the issue of racial
    profiling and possible legislation such as H.R. 2074, a bill
    introduced by Representative John Conyers, Jr., that seeks to
    address the issue. The Subcommittee has expressed two important
    points to the Department with regard to the issue of racial
    profiling: (1) Racial profiling is prohibited under current
    law; and (2) H.R. 2074 would undermine legitimate law
    enforcement and have a disproportionate effect on minority
    communities.
        Racial profiling, as any reasonable person understands it--
    intentional police action against a person based solely upon
    that person's race--is already prohibited under the
    Constitution's Equal Protection Clause of the Fourteenth
    Amendment, see Whren v. United States, 517 U.S. 806, 813
    (1966), as well as existing criminal and civil statutes.
        Title 18 U.S.C. Sec. Sec. 241 and 242 are criminal
    provisions already available to prosecute Federal, state and
    local police officials who target persons solely because of
    race or ethnicity. The Courts have consistently ruled that the
    Constitution does not prohibit police from routinely taking
    race into account, as long as race is only one of several
    factors considered and it is not done for the purpose of
    harassment. See, United States v. Weaver, 966 F.2d 391, 394
    (8th Cir.1992). H.R. 2074 would prohibit investigative agencies
    from using both historical and practical experience to focus an
    investigation. It would also prohibit the use of case-specific
    information from informants or cooperators in cases where
    criminals were using persons of particular races or ethnicity
    to further the criminal enterprise. The Subcommittee will
    continue to conduct oversight of the Department of Justice and
    its enforcement of the Federal laws prohibiting racial
    profiling.

    Newport News Courthouse

        On April 17, 2002, the Subcommittee sent a letter to the
    Administrative Office of the United States Courts expressing
    its concern about the proposed transfer of the U.S. Magistrate
    Judge in Newport News, Virginia, along with a majority of the
    clerk's office personnel, to Norfolk, Virginia. The concern of
    the Subcommittee was that this transfer was inconsistent with
    case load requirements. The Newport News Division handled a
    third of the criminal work in addition to a fourth of the civil
    work of the combined Newport News and Norfolk Division offices.
    Since the U.S. Attorneys office had increased its presence in
    Newport News and the Federal Public Defender had similar plans,
    it did not seem to be a coordinated action by the Court and the
    Subcommittee sought justification for the relocation.
        In a letter dated April 25, 2002, Judge Rebecca Beach Smith
    of the United States District Court of the Eastern District of
    Virginia stated that the decision was a thoughtful action taken
    in an effort to best serve the growing Norfolk and Newport News
    dockets with the limited judicial resources available to the
    Courts. Additionally, Judge Smith informed the Subcommittee
    that the federal court facility in Newport News is in an
    extremely deteriorating condition, which poses grave security
    concerns for the court and the public. The Subcommittee will
    continue to monitor the effect the transfer of the Magistrate
    has on the courts of the Norfolk Division.

    New Jersey speed violation survey

        On April 23, 2002, the Subcommittee wrote to Attorney
    General Ashcroft concerning press reports that the Department
    of Justice may have attempted to suppress or delay the public
    release of a December 13, 2001 final report by the Public
    Services Research Institute entitled ``Speed Violation Survey
    of the New Jersey Turnpike: Final Report, December 13, 2001.''
    That report reflected that Black motorists in New Jersey were
    much more likely than White or Hispanicmotorists there to
    exceed the lawful speed limits on the New Jersey Turnpike. This is
    currently an ongoing oversight matter.

    Misleading testimony before the subcommittee

        On May 14, 2002, the Subcommittee held a legislative
    hearing on the bill, H.R. 4689, the ``Fairness in Sentencing
    Act of 2002.'' This bill would disapprove of an amendment to
    the Sentencing Guidelines submitted by the United States
    Sentencing Commission to Congress that would create a drug
    quantity ``cap'' for those persons convicted of trafficking in
    large quantities of drugs if those persons also qualify for a
    mitigating role adjustment under the existing guidelines. One
    of the witnesses that testified at the hearing was the
    Honorable James M. Rosenbaum, Chief Judge, U.S. District Court,
    District of Minnesota. Judge Rosenbaum testified against the
    bill and advocated strongly that the Sentencing Commission's
    amendment to cap the base offense level for those trafficking
    in large quantities of drugs was very much needed to bring
    equity to the Federal sentencing system.
        In describing those persons who would be affected by the
    Sentencing Commission's amendment, he testified: ``they are the
    women whose boyfriends tell them, `A package will be coming by
    mail or from a package delivery service in the next 2 weeks.
    Keep it for me, and I'll give you $200, or maybe I'll buy you
    food for the kids.' Or they are drug couriers who either
    swallow, wear, or drive drugs from one place to another. And
    they frequently have no idea what they are carrying or
    receiving, and if they have an idea of what, they usually don't
    know how much.'' Throughout his testimony, Judge Rosenbaum
    described drug cases in his courthouse in which defendants with
    minor roles in drug organizations were subject to prison terms
    of a decade or more. He also described how the Sentencing
    Commission's amendment to the guidelines would lessen those
    sentences.
        Following the hearing, the Subcommittee submitted
    additional written questions to Judge Rosenbaum on May 22,
    2002, in order to ascertain, among other things, the actual
    cases to which Judge Rosenbaum referred during his testimony.
    After receiving the May 22, 2002 letter, Judge Rosenbaum
    contacted Subcommittee Chairman Lamar Smith by telephone and
    asked that the Chairman agree to permit the Judge to limit his
    response to ``publicly available information.'' The Chairman
    agreed that the Judge's initial response could be so limited.
    Thereafter, Judge Rosenbaum responded to the Subcommittee's May
    22, 2002 letter on June 6, 2002. Along with his response, Judge
    Rosenbaum conveyed copies of nine Judgment and Commitment
    Orders, which reveal some, but by no means all, of the
    information sought by the Sub-committee. Both in his June 6,
    2002 response, and thereafter, Judge Rosenbaum declined,
    however, to answer certain questions posed to him by the
    Subcommittee relevant to his testimony, even for the cases over
    which he personally presided.
        The Subcommittee was able to determine, through pre-
    sentence investigation reports and transcripts of sentencing
    proceedings, that Judge Rosenbaum inaccurately represented the
    sentences of the defendants in the examples he offered as
    evidence that the amendment to the guidelines was necessary.
    For example, Judge Rosenbaum said a woman he identified as
    ``MGA'' was in court after she received $2,000 for agreeing to
    accept a package of drugs. He stated that her guideline range
    was 57 to 71 months, or five to seven years, after reductions
    for role, acceptance and other factors. According to the Judge,
    under the proposed change, her range would instead be 37 to 46
    months, or three to four years. However, Judge Rosenbaum never
    explained that the woman was actually sentenced to six months
    of work release.
        At a meeting on November 7, 2002, with representatives of
    the Administrative Office of the United States Courts,
    Committee staff stated that it was the opinion of the Committee
    that Eighth Circuit Chief Judge David Hansen should initiate a
    complaint against Judge Rosenbaum for consideration by the
    Circuit Council. In a letter dated December 4, 2002, Judge
    Hansen stated he is disinclined to exercise his statutory
    discretion to initiate a complaint against Judge Rosenbaum at
    this time. Judge Hansen noted that one of the cases used by
    Judge Rosenbaum is still on appeal and that Judge Rosenbaum has
    yet to respond to the Subcommittee's October 16, 2002 letter
    requesting additional information. Judge Hansen stated that he
    thinks it is ``advisable to await his response before I decide
    what action, if any, is merited under the discipline statute.''
             SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW \1\

        BOB BARR, Georgia, Chairman

    MELVIN L. WATT, North Carolina       JEFF FLAKE, Arizona, Vice Chair
    JERROLD NADLER, New York             GEORGE W. GEKAS, Pennsylvania
    TAMMY BALDWIN, Wisconsin             MARK GREEN, Wisconsin
    ANTHONY D. WEINER, New York          DARRELL E. ISSA, California
    MAXINE WATERS, California            STEVE CHABOT, Ohio
                                         MELISSA A. HART, Pennsylvania \2\
                                         MIKE PENCE, Indiana \3\

    ----------
    \1\ Subcommittee chairmanship and assignments approved January 31,
    2001.
    \2\ Melissa A. Hart, Pennsylvania, removal from the subcommittee
    approved June 13, 2002.
    \3\ Mike Pence, Indiana, assignment to the subcommittee approved June
    13, 2002.

    Tabulation of subcommittee legislation and activity

    Legislation referred to the Subcommittee..........................    63
    Legislation reported favorably to the full Committee..............    10
    Legislation reported adversely to the full Committee..............     0
    Legislation reported without recommendation to the full Committee.     0
    Legislation reported as original measure to the full Committee....     0
    Legislation discharged from the Subcommittee......................     1
    Legislation ordered tabled in the Subcommittee....................     1
    Legislation pending before the full Committee.....................     1
    Legislation reported to the House.................................     8
    Legislation discharged from the Committee.........................     4
    Legislation pending in the House..................................     2
    Legislation passed by the House...................................    10
    Legislation pending in the Senate.................................     3
    Legislation vetoed by the President...............................     0
    Legislation enacted into public law...............................     7
    Legislation enacted into public law as part of another bill.......     2
    Legislation on which hearings were held...........................    10
    Days of legislative hearings......................................     6
    Days of oversight hearings........................................     9

                        Jurisdiction of the Subcommittee

        The Subcommittee on Commercial and Administrative Law has
    legislative and oversight responsibility for the Independent
    Counsel statute, the Legal Services Corporation, the Office of
    Solicitor General, the U.S. Bankruptcy Courts, the Executive
    Office for the U.S. Trustees of the Department of Justice, the
    Executive Office of United States Attorneys, and the
    Environment and Natural Resources Division of the Department of
    Justice. The Subcommittee's legislative responsibilities
    include administrative law (practice and procedure), regulatory
    flexibility, State taxation affecting interstate commerce,
    bankruptcy law, bankruptcy judgeships, legal services, Federal
    debt collection, the Contract Disputes Act, the Federal
    Arbitration Act, and interstate compacts.

                             Legislative Activities

                    ADMINISTRATIVE LAW AND REGULATORY REFORM

        The Subcommittee has jurisdiction over the Administrative
    Procedure Act 1 and related legislation. In
    addition, the Subcommittee has responsibility for matters
    affecting privacy rights. Administrative law provides the
    framework for accountability of administrative agencies,
    including agency rulemaking, adjudicatory proceedings, and
    judicial review.
    ---------------------------------------------------------------------------
        \1\ 5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521
    (2001).
    ---------------------------------------------------------------------------

    H.R. 5005, the ``Homeland Security Act of 2002'' (Pub. L. No. 107-296)

        Summary.--On June 6, 2002, President George W. Bush
    announced his proposal to create a Cabinet-level Department of
    Homeland Security and provide for the transfer of numerous
    governmental entities from various Federal agencies into a
    single unit devoted to domestic security protection. At the
    request of the Administration, implementing legislation was
    subsequently introduced on June 24, 2002 as H.R. 5005, the
    ``Homeland Security Act of 2002,'' by Majority Leader Dick
    Armey together with 113 original cosponsors.
        H.R. 5005 was intended to respond to the terrorist attacks
    of September 11, 2001. These attacks and the apparent breach of
    national security which permitted their occurrence starkly
    documented the dangers threatening the security of our nation
    in the twenty-first century. Given these developments and the
    unprecedented challenges presented by constantly evolving
    technological advances, H.R. 5005 represented an important
    legislative response. It also presented issues with respect to
    whether one integrated authority dedicated to ensuring the
    safety and security of our nation's homeland would be an
    effective response and how to craft the administrative
    implementation of this new agency so its components would
    function in a cohesive and operationally functional manner.
        Under the President's proposal, 22 existing governmental
    units consisting of approximately 170,000 employees will be
    integrated into one agency--the Department of Homeland
    Security--organized into four divisions. Each division, in
    turn, will be headed by a Senate-confirmed Under Secretary. The
    creation of such a comprehensive Federal agency presented
    important issues concerning administrative law and procedure as
    well as privacy concerns.
        Legislative History.--On July 9, 2002, the Subcommittee
    conducted a hearing on the administrative law, adjudicatory
    issues, and privacy ramifications related to the creation of
    the proposed Department of Homeland Security presented by H.R.
    5005. Witnesses included: Mark Everson, Deputy Director for
    Management at the Office of Management and Budget nominee,
    appearing on behalf of the Administration; Professor Jeffrey
    Lubbers of American University Washington College of Law; and
    Professor Peter Swire of Ohio State University Moritz College
    of Law.
        The hearing provided an opportunity to explore issues
    relating to how the divergent rulemaking and adjudicative
    processes of the various governmental units being integrated
    into theDepartment of Homeland Security would be harmonized and
    whether Congressional review of the constituent entities comprising the
    Department of Homeland Security would be affected. The potential impact
    on personal privacy with respect to information sharing authorized
    under the President's proposal between the Department and other law
    enforcement agencies was also explored at the hearing.
        In addition, the hearing highlighted the privacy
    ramifications presented by the creation of this new Federal
    agency. For example, section 201 of H.R. 5005 (as originally
    introduced) specified the primary responsibilities of the Under
    Secretary for Information Analysis. In pertinent part, it
    stated that this officer would be responsible for ``making
    recommendations for improvements in policies and procedures
    governing the sharing of law enforcement, intelligence, and
    other information relating to homeland security within the
    Federal government and between such government and State and
    local government personnel, agencies, and authorities.'' Given
    the nature of the Department's authority in this regard,
    witnesses were extensively queried about the privacy impact of
    regulations and the possible need for the appointment of a
    privacy officer.
        As a result of this hearing, the Subcommittee made various
    recommendations with respect to the proposed legislation. At
    the Committee's mark up of H.R. 5005 on July 10, 2002, several
    of Subcommittee Chairman Barr's amendments reflecting these
    recommendations were adopted. As passed by the Committee, the
    bill would require the appointment of a privacy officer to
    ensure the Department's compliance with the Privacy Act of 1974
    and permit congressional oversight of such compliance. In
    addition to information technologies, this officer would be
    responsible for assuring that all forms of technologies,
    including surveillance systems such as the Carnivore Project,
    do not erode citizens' privacy protections. This officer would
    report to Congress on privacy violations and conduct privacy
    impact assessments of proposed rules when such assessment is
    deemed appropriate by the Secretary. The bill, as amended by
    the Committee, also would direct the Secretary to establish
    procedures ensuring the confidentiality and accuracy of
    personally identifiable information. The text of this provision
    is substantively identical to H.R. 4598, the Homeland Security
    Information Sharing Act. Further, the bill contains a clear
    mandate that it not be construed to authorize the development
    of a national identification system or card. Finally, the bill
    includes provisions intended to better effectuate the
    administrative procedures and adjudicative processes of the new
    Department, including the appointment of a task force on
    administrative procedure. For a discussion of the subsequent
    disposition of H.R. 5005, see the Full Committee section of
    this report.

    H.R. 4561, the ``Federal Agency Protection of Privacy Act''

        Summary.--H.R. 4561, the ``Federal Agency Protection of
    Privacy Act,'' was intended to help safeguard privacy rights of
    Americans. While existing Federal statutes protect against the
    disclosure of information already obtained by the Federal
    government, the Federal Agency Protection of Privacy Act would
    have provided the public with prospective notice and an
    opportunity to comment on how proposed Federal rules might
    affect personal privacy before they become binding regulations.
    The bill would have required rules noticed for public comment
    by Federal agencies to be accompanied by an initial assessment
    of the rule's impact on personal privacy interests, including
    the extent to which the proposed rule provided notice of the
    collection of personally identifiable information, the type of
    personally identifiable information to be obtained, and the
    manner in which this information would be collected,
    maintained, protected, transferred, or disclosed by the Federal
    government. The bill also would have required a final rule to
    be accompanied by a final privacy impact analysis detailing how
    the issuing agency considered and responded to privacy concerns
    raised by the public during the comment period and explaining
    whether the agency considered less burdensome alternatives.
    H.R. 4561, in addition, contained a provision for judicial
    review to ensure agency compliance with its requirements.
        Legislative History.--Subcommittee Chairman Bob Barr (R-GA)
    (for himself and six original cosponsors) introduced H.R. 4561
    on April 24, 2002. H.R. 4561 attracted strong bipartisan
    support as evidenced by its 43 cosponsors representing a broad
    cross-section of the political spectrum.
        The Subcommittee held a legislative hearing on H.R. 4561 on
    May 1, 2002. Although witnesses who testified at the hearing
    represented an ideologically-diverse range of viewpoints, each
    one expressed strong support for the legislation. Witnesses who
    testified included: Lori Waters on behalf of the Eagle Forum;
    Gregory Nojeim, representing the American Civil Liberties
    Union; James Harper on behalf of Privacilla.com and Progress &
    Freedom Foundation; and Edward Mierzwinski, representing the
    United States Public Interest Group.
        On July 9, 2002, the Subcommittee ordered H.R. 4561
    favorably reported without amendment by voice vote. Thereafter,
    the Committee ordered the bill favorably reported without
    amendment by voice vote on September 10, 2002. The Committee
    reported H.R. 4561 on September 30, 2002 as H. Rept. 107-701.
    On October 7, 2002, the House passed H.R. 4561 by voice vote
    under suspension of the rules. The bill was received by the
    Senate on the following day, but was not acted upon prior to
    the conclusion of the 107th Congress.

    H.R. 3995, the ``Housing Affordability for America Act of 2002''

        Summary.--H.R. 3995, the ``Housing Affordability for
    America Act of 2002,'' improves access to affordable housing
    for more Americans by amending specified laws related to
    housing and community opportunity. The vast majority of H.R.
    3995 was referred to the Financial Services Committee, while
    Title VIII of the bill, pertaining to housing affordability
    impact analyses, was the only portion referred to the Judiciary
    Committee. Title VIII requires agencies, when promulgating any
    proposed or final rule for notice and comment, to issue a
    housing impact analysis when that rule has a significant
    economic impact on housing affordability. ``Significant,'' as
    it applies to impact, is defined as increasing consumers' cost
    of housing by more than $100,000,000 per year.
        Title VIII directs an agency, when publishing general
    notice of a proposed rulemaking, to prepare and make available
    for public comment an initial housing impact analysis which
    describes and, where feasible, estimates the extent to which
    the proposed rule would increase the cost or reduce the supply
    of housing or land for residential development. Agencies must
    also prepare a final housing impact analysis when promulgating
    a final rule. Each final housing impact analysis must summarize
    and assess the issues, analyses and alternatives to the
    proposed rule raised during the comment period, and must state
    any changes made in the proposed rule as a result of such
    comments. The final housing impact analysis must also describe
    and estimate the extent of the rule's impact on housing
    affordability.
        Title VIII of H.R. 3995 includes procedures for the
    exemption from these reportingrequirements when a proposed or
    final rule does not have a significant deleterious impact on housing
    affordability. The initial housing impact analysis may be delayed or
    waived upon publication in the Federal Register of a certification and
    written finding by the head of the respective agency that the final
    rule is being promulgated in response to an emergency. A final housing
    impact analysis may be delayed, but not waived, for a period of not
    more than 180 days after the date of publication in the Federal
    Register of a final rule. In such instances, the head of the agency
    must publish in the Federal Register a certification and written
    finding that the final rule is being promulgated in response to an
    emergency.
        Legislative History.--H.R. 3995 was introduced on March 19,
    2002 by Representative Marge Roukema (R-NJ) (for herself and 23
    original cosponsors). During the 106th Congress, the House
    overwhelmingly passed H.R. 1776, the ``American Homeownership
    and Economic Opportunity Act of 2002,'' a bill containing
    language nearly identical to title VIII. In addition, title
    VIII of H.R. 3995 is virtually identical to H.R. 2753, the
    ``Housing Affordability Assurance Act,'' which was introduced
    by Representative Mark Green (R-WI) on August 2, 2001, and
    referred to the Judiciary Committee. The Committee took no
    action on that bill.
        Given the limited nature of its jurisdiction over the bill,
    the Subcommittee did not conduct hearings on H.R.
    3995.2 On July 16, 2002, the Subcommittee ordered
    favorably reported H.R. 3995, without amendment, by voice vote.
    On July 23, 2002, the Judiciary Committee met in open session
    and ordered favorably reported H.R. 3995 without amendment by
    voice vote. On September 4, 2002, title VIII of H.R. 3995 was
    reported by the Judiciary Committee as H. Rept. 107-640, pt. I.
    On September 17, 2002, H.R. 3995 was reported by the Committee
    on Financial Services as H. Rept. 107-640, pt. II. Prior to the
    adjournment of the 107th Congress, there was no further
    consideration of H.R. 3995.
    ---------------------------------------------------------------------------
        \2\ The Subcommittee on Housing and Community Opportunity of the
    Financial Services Committee conducted hearings on the remaining
    portions of the bill on April 10, 23, and 24, 2002. The Housing
    Affordability for America Act of 2002: Hearings on H.R. 3995 Before the
    Subcomm. on Housing and Community Opportunity of the House Comm. on
    Financial Services, 107th Cong. (2002).
    ---------------------------------------------------------------------------

                                   BANKRUPTCY

        Under the Constitution, Congress is given the power to
    promulgate ``uniform Laws on the subject of Bankruptcies
    throughout the United States[.]'' 3 The Subcommittee
    has jurisdiction over bankruptcy legislation and bankruptcy
    judges.
    ---------------------------------------------------------------------------
        \3\ U.S. Const. art. I, Sec. 8, cl. 4.
    ---------------------------------------------------------------------------

    H.R. 188, H.R. 256, H.R. 1914, H.R. 2870, H.R. 2914, H.R. 4167, H.R.
            5348 and H.R. 5472, to extend the period of time for which
            chapter 12 of title 11 of the United States Code is reenacted
            (Pub. L. Nos. 107-8, 107-17, 107-170, 107-171, 107-377)

        Summary.--Chapter 12 is a specialized form of bankruptcy
    relief available to a ``family farmer with regular annual
    income,'' as defined in the Bankruptcy Code.\4\ This form of
    bankruptcy relief permits eligible family farmers, under the
    supervision of a bankruptcy trustee, to reorganize their debts
    pursuant to a repayment plan. The special attributes of chapter
    12 make it better suited to meet the particularized needs of
    family farmers in financial distress than other forms of
    bankruptcy relief, such as chapter 11 (business reorganization)
    and chapter 13 (individual reorganization). It was enacted on a
    temporary seven-year basis as part of the Bankruptcy Judges,
    United States Trustees, and Family Farmer Bankruptcy Act of
    1986 \5\ in response to the farm financial crisis of the early
    1980's. It has subsequently been extended eight times.
    ---------------------------------------------------------------------------
        \4\ 11 U.S.C. Sec. 101(19) (2001).
        \5\ Pub. L. No. 99-554, 100 Stat. 3124 (1986).
    ---------------------------------------------------------------------------
        During the 107th Congress, eight bills were introduced to
    either extend chapter 12 or make it a permanent component of
    the Bankruptcy Code. In addition, similar provisions were
    included in omnibus legislation.
        Legislative History.--The first bill introduced in the
    107th Congress that pertained to chapter 12 was H.R. 188. This
    bill, introduced by Representative Nick Smith (R-MI) on January
    3, 2001, would have made chapter 12 a permanent component of
    the Bankruptcy Code. Thereafter, Mr. Smith introduced H.R. 256
    on January 30, 2001, a bill to retroactively reenact and extend
    chapter 12 for eleven months until June 1, 2001. Chapter 12 had
    previously elapsed as of July 1, 2000.6
    ---------------------------------------------------------------------------
        \6\ During the 106th Congress, the House passed H.R. 4718 on June
    22, 2000 to extend chapter 12 for an additional three months until
    October 1, 2000, but the Senate failed to act on this bill and chapter
    12 accordingly expired as of July 1, 2000.
    ---------------------------------------------------------------------------
        In light of the noncontroversial nature of the bill, H.R.
    256 was held at the full Committee, which marked up the bill
    and ordered it favorably reported by a vote of 24 to 0 on
    February 12, 2001 without amendment. The bill was reported by
    the Committee on February 26, 2001 as H. Rept. 107-2. On
    February 28, 2001, H.R. 256 was considered under the suspension
    of the rules and passed by a vote of 408 to 2. It thereafter
    passed the Senate on unanimous consent without amendment on
    April 26, 2001. The bill was signed into law on May 11, 2001 as
    Public Law 107-8.
        On May 17, 2001, Representative Smith (for himself and
    Representative Tammy Baldwin (D-WI)) introduced H.R. 1914, to
    extend chapter 12 for four additional months. Given the
    imminent expiration date of chapter 12, the bill was considered
    under suspension of the rules and agreed to by the House by a
    vote of 411 to 1 without amendment on June 6, 2001. As passed
    by the House, the bill extended chapter 12 for three additional
    months until October 1, 2001. H.R. 1914 was received in the
    Senate on the following day and passed by unanimous consent
    without amendment on June 8, 2001. Thereafter, the bill was
    signed into law on June 26, 2001 as Public Law 107-17.
        Over the ensuing months, three additional bills were
    introduced further extending chapter 12. On September 10, 2001,
    Representative Baldwin introduced H.R. 2870, which would have
    extended chapter 12 for six additional months to April 1, 2002.
    On September 20, 2001, Representative Smith introduced H.R.
    2914, which also would have extended chapter 12 until April 1,
    2002. Neither the Subcommittee nor the Committee considered
    these bills in light of the subsequent introduction of H.R.
    4167 by Chairman F. James Sensenbrenner on April 11, 2002. H.R.
    4167, which retroactively extended chapter 12 for eight
    additional months until June 1, 2002, was considered by the
    House under the suspension of the rules and passed by a vote of
    407 to 3 without amendment on April 16, 2002. The bill was
    received in the Senate on the following day and passed by
    unanimous consent without amendment on April 23, 2002. H.R.
    4167 was subsequently signed into law on May 7, 2002 as Public
    Law 107-170.
        A provision further extending chapter 12 until January 1,
    2003 was included in the conference report on H.R. 2646, the
    ``Farm Security and Rural Investment Act of 2002.''
    7 This legislation was signed into law on May 13,
    2002 as Public Law 107-171.
    ---------------------------------------------------------------------------
        \7\ H. Rep. No. 107-424 (2002).
    ---------------------------------------------------------------------------
        On September 9, 2002, Representative Baldwin introduced
    H.R. 5348, the ``Family Farmers and Family Fishermen Protection
    Act of 2002,'' a bill providing for the permanent enactment of
    chapter 12 and extending its protections to family fishermen.
    Neither the Subcommittee nor the Committee considered this bill
    in light of the introduction of H.R. 5472, the ``Protection of
    Family Farmers Act of 2002,'' by Chairman Sensenbrenner on
    September 26, 2002. H.R. 5472 further extends chapter 12 from
    December 31, 2002 to July 1, 2003. It was passed by the House
    under suspension of the rules without amendment on October 1,
    2002 by voice vote. The bill was received in the Senate on the
    following day. The Senate subsequently passed H.R. 5472 without
    amendment on unanimous consent on November 20, 2002. This
    legislation was signed into law on December 19, 2002 as Public
    Law 107-377.

    H.R. 333, the ``Bankruptcy Abuse Prevention and Consumer Protection Act
            of 2002''

        Summary.--Representative George W. Gekas (R-PA) (for
    himself and 56 original cosponsors) introduced H.R. 333, the
    ``Bankruptcy Abuse Prevention and Consumer Protection Act,'' on
    January 31, 2001. H.R. 333 represented the culmination of more
    than five years of intensive Congressional consideration of
    comprehensive bankruptcy reform legislation.
        Legislative History.--As introduced, H.R. 333 was virtually
    identical to the conference report on H.R. 2415, the ``Gekas-
    Grassley Bankruptcy Reform Act of 2000,'' 8 which
    passed the House in the 106th Congress by voice vote on October
    12, 2000, and passed the Senate on December 7, 2000 by a vote
    of 70 to 28. On December 19, 2000, the conference report on
    H.R. 2415 was pocket-vetoed by President Clinton.
    ---------------------------------------------------------------------------
        \8\ H. Rep. No. 106-970 (2000). The only differences were H.R.
    333's title and the deletion of section 1224 (pertaining to the
    Bankruptcy Administrator Program) from the conference report, as this
    provision was previously enacted into law. Federal Courts Improvement
    Act of 2000, Pub. L. No. 106-518, 501, 114 Stat. 2410, 2422 (2000).
    ---------------------------------------------------------------------------
        In the preceding two Congresses, as well as the 107th
    Congress, bankruptcy reform legislation received overwhelming
    bipartisan support. In the 105th Congress for example, the
    House passed legislation similar to H.R. 333 on two occasions
    by veto-proof margins.9 The Senate passed this
    legislation by a vote of 97 to 1. The House again in the 106th
    Congress passed bankruptcy reform legislation by a veto-proof
    margin 10 and adopted the conference report by voice
    vote. The Senate thereafter passed the conference report by a
    vote of 70 to 28.
    ---------------------------------------------------------------------------
        \9\ On June 10, 1998, the House passed H.R. 3150, the ``Bankruptcy
    Reform Act of 1998,'' by a vote of 306 to 118. 144 Cong. Rec. H4442
    (daily ed. June 10, 1998). Thereafter, the House passed the conference
    report on H.R. 3150 by a vote of 300 to 125 on October 9, 1998. 144
    Cong. Rec. H10239-40 (daily ed. Oct. 9, 1998).
        \10\ On May 5, 1999, the House passed H.R. 833, the ``Bankruptcy
    Reform Act of 1999,'' by a vote of 313 to 108. 145 Cong. Rec. H2771
    (daily ed. May 5, 1999).
    ---------------------------------------------------------------------------
        H.R. 333 consisted of a comprehensive package of reform
    measures pertaining to both consumer and business bankruptcy
    cases. The purpose of the bill was to improve bankruptcy law
    and practice by restoring personal responsibility and integrity
    in the bankruptcy system and by ensuring that the system is
    fair for both debtors and creditors. It was introduced in
    response to several developments affecting bankruptcy law and
    practice. One development has been the continuing surge in
    bankruptcy filings. According to the Administrative Office of
    the United States Courts, bankruptcy filings as of 2002
    exceeded 1.5 million, which ``broke all records'' and
    represented the ``largest number of cases ever filed'' in any
    one-year period.11 Since 1996, when bankruptcy
    filings first exceeded one million, filings as of June 2002
    increased by 150 percent.12
    ---------------------------------------------------------------------------
        \11\ Administrative Office of the U.S. Courts News Release,
    Bankruptcy Cases Total Over 1.5 Million for First Time--Personal
    Bankruptcy and Quarterly Filings Hit Historic Highs (Aug. 14, 2002).
        \12\ Id.
    ---------------------------------------------------------------------------
        Coupled with this development was the release of a
    privately funded study, which estimated financial losses in
    1997 resulting from bankruptcy exceeded $44 billion, a loss
    equal to approximately $400 per each American
    household.13 This study projected that even if the
    growth rate in personal bankruptcies slowed to only 15 percent
    over the next three years, the American economy would have to
    absorb a cumulative cost of more than $220
    billion.14
    ---------------------------------------------------------------------------
        \13\ Bankruptcy Reform Act of 1998: Hearings on H.R. 3150 Before
    the Subcomm. on Commercial and Admin. Law of the House Comm. on the
    Judiciary, 105th Cong. 147 (1998).
        \14\ Id.
    ---------------------------------------------------------------------------
        The consumer bankruptcy provisions of H.R. 333 were
    intended to enhance recoveries for creditors and include
    protections for consumer debtors. With respect to creditors,
    H.R. 333's principal provisions consisted of needs-based
    bankruptcy relief, general protections for creditors, and
    protections for specific types of creditors. The bill's debtor
    protections included heightened requirements for those
    professionals and others who assist consumer debtors in
    connection with their bankruptcy cases, expanded notice
    requirements for consumers with regard to alternatives to
    bankruptcy relief, required participation in debt repayment
    programs for consumers before they may be eligible to be
    debtors in bankruptcy, mandatory consumer financial management
    education for debtors, and heightened disclosures in connection
    with credit card solicitations, monthly billing statements, and
    related matters.
        The heart of H.R. 333's consumer bankruptcy reforms was the
    implementation of a mechanism to ensure that consumer debtors
    repay their creditors the maximum that they can afford. This
    income/expense mechanism, variously referred to as the ``needs-
    based test'' or ``means test,'' articulated objective criteria
    so that debtors and their counsel could self-evaluate their
    eligibility for relief under chapter 7 (a form of bankruptcy
    relief where the debtor generally receives a discharge of his
    or her personal liability for most unsecured debts). Certain
    expense allowances were localized and a debtor's special
    circumstances were recognized, including episodic losses of
    income. Parties in interest, such as creditors, were empowered
    under H.R. 333 to move for dismissal of chapter 7 cases for
    abuse. These reforms were not intended to affect consumer
    debtors lacking the ability to repay their debts and deserving
    of an expeditious fresh start.
        With regard to business bankruptcy reforms, H.R. 333
    addressed the special problems that small business debtors
    present by instituting a variety of time frames and enforcement
    mechanisms to identify and weed out those cases not likely to
    reorganize. It also required more active monitoring of these
    cases by United States Trustees and the bankruptcy courts. In
    addition, H.R. 333 included provisions dealing with business
    bankruptcy cases in general. With regard to single asset real
    estate debtors, H.R. 333 eliminated the monetary cap from the
    Bankruptcy Code's definition applicable to these debtors and
    made them subject to the small business provisions of the bill.
    The small business and single asset real estate provisions of
    H.R. 333 were largely derived from consensus recommendations of
    the National Bankruptcy Review Commission. Many of these
    recommendations received broad support from those in the
    bankruptcy community, including various bankruptcy judges,
    creditor groups, and the Executive Office for United States
    Trustees.
        Other business provisions in H.R. 333 related to the
    treatment of certain financial contracts under the banking laws
    as well as under the Bankruptcy Code. In addition, H.R. 333
    responded to the special needs of family farmers by making
    chapter 12 of the Bankruptcy Code, a form of bankruptcy relief
    available only to eligible family farmers, permanent.
        H.R. 333, in addition, contained several provisions having
    general impact with respect to bankruptcy law and practice.
    Under H.R. 333, certain appeals from final bankruptcy court
    decisions would be heard directly by the court of appeals for
    the appropriate circuit. Another general provision of H.R. 333
    required the Executive Office for United States Trustees to
    compile various statistics regarding chapter 7, 11 and 13
    cases, to make these data available to the public, and to
    report annually to Congress on the data collected. Other
    general provisions included an allowance of shared compensation
    with bona fide public service attorney referral programs.
        The Judiciary Committee began its consideration of
    comprehensive bankruptcy reform early in the 105th Congress. On
    April 16, 1997, the Subcommittee conducted a hearing on the
    operation of the bankruptcy system that was combined with a
    status report from the National Bankruptcy Review Commission.
    This would be the first of 17 hearings that the Subcommittee
    and the Committee would hold on the subject of bankruptcy
    reform over the ensuing years. Ten of these hearings were
    devoted solely to consideration of H.R. 333 and its
    predecessors, H.R. 3150, the Bankruptcy Reform Act of 1998,
    which was considered during the 105th Congress, and H.R. 833,
    the Gekas-Grassley Bankruptcy Reform Act, which was considered
    during the 106th Congress. Over the course of these hearings,
    nearly 130 witnesses, representing nearly every major
    constituency in the bankruptcy community, testified. With
    regard to H.R. 833 alone, testimony was received from 66
    witnesses, representing 23 organizations, with additional
    material submitted by other groups. In fact, the Subcommittee's
    inaugural hearing on H.R. 833 was held jointly with the Senate
    Subcommittee on Administrative Oversight and the Courts on
    March 11, 1999.15 This marked the first time in more
    than 60 years that a bicameral hearing was held on the subject
    of bankruptcy reform.
    ---------------------------------------------------------------------------
        \15\ Bankruptcy Reform: Joint Hearing Before the Subcomm. on
    Commercial and Admin. Law of the House Comm. on the Judiciary and the
    Subcomm. on Admin. Oversight and the Courts of the Senate Comm. on the
    Judiciary, 106th Cong. (1999).
    ---------------------------------------------------------------------------
        During the 107th Congress, the Committee held two days of
    hearings on H.R. 333 on February 7 and 8, 2001. Testimony was
    received from eight witnesses, representing seven
    organizations. During the course of the first hearing, the
    Committee received testimony from Kenneth Beine on behalf of
    the Credit Union National Association who explained how the
    current bankruptcy system impacts small business entrepreneurs
    and non-profit businesses. The Committee also received
    testimony from R. Bruce Josten on behalf of the U.S. Chamber of
    Commerce, who described the current consumer bankruptcy law's
    adverse impact on businesses. In addition, the Committee heard
    from Phillip Strauss, a professional with more than 25 years of
    experience in child support enforcement. Speaking on behalf of
    the California District Attorneys Association and the
    California Family Support Council, Mr. Strauss described the
    ways in which H.R. 333 would help ensure payment of these
    obligations. George Wallace, the final witness appeared on
    behalf of The Coalition for Responsible Bankruptcy Laws. He
    explained the differences between the version of the bill as
    reported by the Committee in the 106th Congress and H.R. 333.
        The second day of hearings provided a different
    perspective. The witnesses included Charles Trapp, who was a
    former chapter 7 debtor. He was joined by Ralph Mabey, who
    appeared on behalf of the National Bankruptcy Conference and
    Professor Karen Gross of New York Law School. The final witness
    was Damon Silvers, who testified on behalf of the AFL-CIO.
    Although each of these witnesses acknowledged that H.R. 333 did
    make needed improvements to current bankruptcy law, they
    questioned the efficacy of certain provisions of the proposed
    legislation.
        On February 14, 2001, the Committee met in open session and
    ordered favorably reported H.R. 333 with amendment by a
    recorded vote of 19 to 8. The legislation, as reported by the
    Committee, included two amendments offered by Chairman
    Sensenbrenner which conformed: (1) the fee allocation
    percentage in section 325 of the bill with that specified under
    Section 406(b) of the Judiciary Appropriations Act; and (2) a
    statutory cross reference necessitated by the enactment of the
    Commodity Futures Modernization Act of 2000. On February 26,
    2001, the Committee filed its report on H.R. 333 as H. Rept.
    107-3, pt. 1.
        The House, under a rule making certain amendments in order,
    thereafter passed H.R. 333, as amended, on March 1, 2001 by a
    vote of 306 to 108. Among the principal changes to the bill
    occurring as the result of floor action was the inclusion of a
    provision permitting a debtor to deduct public school expenses
    up to a specified amount as an allowable expense under the
    means test and a provision treating public and private school
    expenses equally. In addition, the bill as passed by the House
    included a provision restricting the disclosure of the name of
    a debtor's child in a bankruptcy case.
        H.R. 333 was received in the Senate on March 5, 2001. On
    July 12, 2001, cloture was invoked by a vote of 88 to 10.
    Thereafter, the Senate struck all of H.R. 333's language after
    its enacting clause and substituted the text of S. 420, as
    amended. H.R. 333, as amended, was then passed by the Senate in
    lieu of S. 420 by a recorded vote of 82 to 16 on July 17, 2001.
    The Senate then insisted on its amendment and requested a
    conference.
        On July 31, 2001, Chairman Sensenbrenner asked unanimous
    consent that the House disagree to the Senate amendment to H.R.
    333. His motion was granted without objection. The House then
    considered a motion to instruct conferees offered by
    Representative Tammy Baldwin (D-WI). The instructions, which
    required the managers on the part of the House to agree to
    title Xof the Senate amendment to H.R. 333 (relating to family
    farmers and family fishermen), was agreed to by voice vote.
        The following Members from the Committee on the Judiciary
    were appointed as conferees for the consideration of the House
    bill and the Senate amendment: Chairman Sensenbrenner, Henry
    Hyde (R-IL), George Gekas (R-PA), Lamar Smith (R-TX), Steve
    Chabot (R-OH), Bob Barr (R-GA), Ranking Member John Conyers (D-
    MI), Rick Boucher (D-VA), Jerrold Nadler (D-NY), and Mel Watt
    (D-NC). The following Members from the Committee on Financial
    Services were appointed as conferees for consideration of
    sections 901-906, 907A-909, 911, and 1301-1309 of the House
    bill, and sections 901-906, 907A-909, 911, 913-4, and title
    XIII of the Senate amendment: Mike Oxley (R-OH), Spencer Bachus
    (R-AL), and John LaFalce (D-NY). The following Members from the
    Committee on Energy and Commerce were appointed for
    consideration of title XIV of the Senate amendment, and
    modifications committed to conference: Billy Tauzin (R-LA), Joe
    Barton (R-TX), and John Dingell (D-MI). The following Members
    from the Committee on Education and the Workforce were
    appointed for consideration of section 1403 of the Senate
    amendment: John Boehner (R-OH), Mike Castle (R-DE), and Dale
    Kildee (D-MI). The conference committee formally met on three
    occasions: November 14, 2001, April 23, 2002, and May 22, 2002.
    The conference report was filed on July 26, 2002 as H. Rept.
    107-617.
        The conference report differed from the House-passed
    version of H.R. 333 in several respects. New provisions
    included section 204, concerning the preservation of certain
    claims and defenses upon sale of predatory loans; section 205,
    requiring the General Accounting Office to study and report on
    the reaffirmation agreement process; sections 231 and 232,
    relating to the protection of personally identifiable
    information, section 329, clarifying the treatment of
    postpetition wages and benefits; section 330, providing for the
    nondischargeability of debts incurred through violations of
    laws relating to the provision of lawful goods and services;
    section 331, requiring the entry of a debtor's discharge to be
    delayed during pendency of certain proceedings; section 446,
    specifying the duties of a debtor who is a plan administrator
    for an employee benefit plan; section 447, requiring the
    appointment of committee of retired employees, under certain
    circumstances; sections 1004 through 1006, providing additional
    protections to family farmers; section 1007, allowing certain
    family fishermen to be eligible for bankruptcy relief under
    chapter 12 of the Bankruptcy Code; section 1234, pertaining to
    the filing criteria for involuntarily commenced bankruptcy
    cases; and section 1235, making certain Federal election law
    fines and penalties nondischargeable.
        In addition, the conference report on H.R. 333 deleted
    several provisions from the House-passed version of this
    legislation. These include section 907A, which dealt with
    securities and commodity broker liquidation; section 912,
    pertaining to asset-backed securitizations; and section 1310,
    concerning the enforceability of certain foreign judgments.
        Further, the conference report modified several provisions
    of the House-passed version of H.R. 333. These included
    modifications to section 102, which clarified who was included
    as the debtor's immediate family, a provision with respect to
    additional education expenses; a provision permitting the
    debtor, under certain circumstances, to include an allowance
    for housing and utilities in excess of the specified amount; a
    provision allowing a debtor to exclude from the income
    component of the needs-based test payments to victims of
    international or domestic terrorism; a modified version of the
    safe harbor from dismissal for abuse based on ability to repay
    with respect to consideration of the income of the debtor's
    spouse; a provision permitting a chapter 13 debtor to include a
    special allowance for health insurance, under certain
    circumstances; and revisions pertaining to the imposition of
    sanctions against a debtor's counsel.
        Other sections reflecting substantive modifications
    included section 202, clarifying the priority of payment for
    domestic support obligations; section 224, requiring the $1
    million maximum for certain exempt retirement funds to be
    automatically adjusted for inflation; section 233, clarifying
    that a debtor may be required to disclose the name of a minor
    child under certain circumstances; section 307, clarifying that
    if the effect of the domiciliary requirement for exemptions
    renders the debtor ineligible for any exemption, the debtor may
    elect to claim Federal exemptions; and section 308, specifying
    that the homestead exemption includes real or personal property
    claimed as homestead property, and extending the reachback
    period from 7 to 10 years for the purpose of reducing a
    debtor's homestead exemption to the extent it is attributable
    to any portion of any property that the debtor fraudulently
    disposed of during such period. Section 311, was substantively
    modified with respect to the types of eviction proceedings
    excepted from the automatic stay and the procedure with respect
    to such. Section 312 was modified with respect to the time
    periods during which subsequent discharges were prohibited from
    being granted.
        The conference report also contained a modified version of
    section 313, pertaining to the definition of household goods
    and antiques; section 316, concerning the mandatory dismissal
    of a bankruptcy case, under certain circumstances; section 322,
    pertaining to the allowability of homestead exemptions; section
    438, relating to chapter 11 plan confirmation deadlines;
    section 439, concerning the termination of the automatic stay;
    section 441, pertaining to the grounds for dismissal or
    conversion of a chapter 11 case; section 708, concerning the
    nondischargeability of certain debts in a chapter 11 case;
    section 910, dealing with the measure of damages for certain
    terminated financial contracts; section 1224 (renumbered as
    section 1223), providing for the authorization of additional
    bankruptcy judgeships; and section 1234 (renumbered as section
    1233) concerning expedited appeals of bankruptcy court
    decisions. In addition, section 1401 was revised with respect
    to when certain provisions concerning the treatment of
    homestead exemptions become effective.
        On July 26, 2002, the Committee on Rules reported H. Res.
    506 providing for the consideration of the conference report on
    H.R. 333. On unanimous consent, however, the resolution was
    laid on the table on September 12, 2002. Thereafter, the Rules
    Committee reported H. Res. 606 providing for consideration of
    the conference report on H.R. 333 on November 13, 2002. The
    resolution was not agreed to by a vote of 172 to 243 on
    November 14, 2002.
        Later that day, Representative Gekas moved that the House
    agree with an amendment to the Senate amendment to H.R. 333.
    The motion consisted of replacing the text of the Senate
    amendment with the text of H.R. 5745, which was introduced by
    Representative Gekas on November 14, 2002. H.R. 5745 was
    virtually identical to the conference report on H.R. 333 except
    that it did not include section 330, providing for the
    nondischargeability of debts incurred through violations of
    laws relating to the provision of lawful goods and services;
    and section 1223, authorizing the appointment of additional
    bankruptcy judgeships. In addition, the text included various
    technical revisions. The House agreed with an amendment to the
    Senate amendment to H.R. 333 by a vote of 244 to 116. The
    Senate received the bill the following day, but did not act
    upon it prior to the end of the 107th Congress.

                  STATE TAXATION AFFECTING INTERSTATE COMMERCE

        The right of States to tax economic activities within their
    borders is a key aspect of Federalism rooted in the
    Constitution and long recognized by Congress. At the same time,
    the authority of States to lay and collect taxes is subject to
    various constitutional limitations. First, the Commerce Clause
    prohibits States from assessing taxes which unduly burden
    interstate commerce. Second, the Due Process clause prohibits
    States from taxing those who lack a ``substantial nexus'' with
    the taxing State. Finally, the Privileges and Immunities clause
    prevents States from assessing taxes which discriminate against
    nonresidents. During the 107th Congress, the Subcommittee
    considered a number of bills that bear directly on State taxes
    affecting interstate commerce.

    Electronic commerce

        The Internet and information technology (IT) industries
    comprise an increasingly vital component of U.S. economic
    health. Internet retail sales continue to accelerate at an
    impressive rate. While some forecasts estimate Internet retail
    sales could reach $300 billion annually, 16 these
    claims have yet to materialize.
    ---------------------------------------------------------------------------
        \16\ See, e.g., Clayton W. Shan, Taxation of Global E-Commerce on
    the Internet: The Underlying Issues and Proposed Plans, 9 Minn. J.
    Global Trade 233, 235 (2000).
    ---------------------------------------------------------------------------
        Contrary to the widespread impression that the Internet is
    a tax-free haven, electronic commercial transactions do not
    escape all State and local taxes. Telecommunications channels
    such as telephone lines, wireless transmissions, cable, and
    satellites are subject to State and local taxes. Electronic
    merchants are required to pay State and local income,
    licensing, franchise, business activity and other direct taxes.
    In addition, physically-present electronic merchants are
    required to collect and remit all applicable sales and use
    taxes for all intrastate transactions. In short, online
    transactions are subject to nearly all taxes imposed on
    traditional, brick and mortar enterprises. The only substantive
    difference between the tax treatment of online and traditional
    retailers is a State's authority to require nonresident
    electronic merchants to collect and remit sales and use taxes.
        In 1998, Congress passed the Internet Tax Freedom Act
    17 (ITFA) to help address the emerging challenges
    associated with Internet commerce. The ITFA imposed a three-
    year moratorium on both Internet access taxes and multiple and
    discriminatory taxes on electronic commerce. The bill also
    created a 19-member Advisory Commission on Electronic Commerce
    to examine, among other things, the effect of State and local
    taxes on Internet commerce. While a majority of Commissioners
    recognized the need to move toward national uniform treatment
    of electronic commerce, no consensus on the taxing status of
    the Internet was achieved.
    ---------------------------------------------------------------------------
        \17\ 47 U.S.C. Sec. 151 (1998).
    ---------------------------------------------------------------------------

    H.R. 1552, the ``Internet Tax Nondiscrimination Act'' (Pub. L. No. 107-
            75)

        Summary.--H.R. 1552 preserves and promotes the commercial
    potential of the Internet by protecting electronic commerce
    from multiple or discriminatory State and local taxes. H.R.
    1552 accomplishes this purpose by extending the ITFA moratorium
    on multiple and discriminatory taxes on electronic commerce
    until November 1, 2003. It also maintains for two years the
    authority of States to collect Internet access taxes if these
    taxes were generally imposed and collected before October 1,
    1998.
        Legislative History.--H.R. 1552 was introduced by
    Representative Christopher Cox (R-CA) on April 25, 2001. As
    introduced, the bill would have extended the ITFA moratorium on
    multiple or discriminatory taxes for an additional five years.
        On June 26, 2001 the Subcommittee held a hearing on H.R.
    1552 at which the following witnesses testified: James S.
    Gilmore, III, Governor of the State of Virginia and Chairman of
    the Advisory Commission on Electronic Commerce; Representative
    Cox; Robert Comfort, Vice President for Tax and Tax Policy,
    Amazon.com; and John Engler, Governor of the State of Michigan,
    on behalf of the National Governors Association. Additional
    information was submitted by the Internet Tax Fairness
    Coalition and by Frank Julian, Operating Vice President of
    Federated Department Stores, Inc.
        On August 2, 2001, the Subcommittee ordered favorably
    reported H.R. 1552 without amendment by voice vote. On October
    10, 2001, the Committee ordered favorably reported H.R. 1552,
    with an amendment, by voice vote. The Committee reported the
    bill, as amended, as H. Rept. 107-240. The amendment limited
    the extension of the ITFA moratorium on multiple or
    discriminatory taxes on electronic commerce until November 21,
    2003. On October 16, 2001, H.R. 1552, as amended, passed the
    House under suspension of the rules by voice vote without
    amendment. On November 15, 2001, H.R. 1552 passed the Senate by
    voice vote without amendment. It was signed into law by
    President Bush on November 28, 2001 as Public Law 107-75.

    H.R. 1675, the ``Internet Tax Nondiscrimination Act''

        Summary.--H.R. 1675 would have: (1) permanently extended
    the ITFA's moratorium on multiple and discriminatory taxes on
    electronic commerce; (2) permanently extended the ban on
    Internet access taxes; and (3) abolished the ITFA's exemption
    which permitted a handful of States to continue collecting
    taxes on electronic commerce if those were widely imposed at
    the time the ITFA was originally enacted.
        Legislative History.--H.R. 1675 was introduced by
    Representative Christopher Cox (R-CA) on May 2, 2001. On June
    26, 2001, the Subcommittee held a hearing on the bill at which
    the following witnesses testified: James S. Gilmore, III,
    Governor of the State of Virginia and Chairman of the Advisory
    Commission on Electronic Commerce; Representative Cox; Robert
    Comfort, Vice President for Tax and Tax Policy, Amazon.com; and
    John Engler, Governor of the State of Michigan, on behalf of
    the National Governors Association. Additional information was
    submitted by the Internet Tax Fairness Coalition and by Frank
    Julian, Operating Vice President of Federated Department
    Stores, Inc. H.R. 1675 received no further Subcommittee
    consideration.

    H.R. 1410, the ``Internet Tax Moratorium and Equity Act''

        Summary.--H.R. 1410 would have: (1) amended the ITFA's
    moratorium on multiple and discriminatory electronic taxes
    until December 31, 2005; (2) continued to allow States
    thatimposed Internet access taxes before passage of the ITFA to
    continue to do so; (3) expressed the sense of Congress that States and
    localities should work together to develop a uniform streamlined sales
    and use tax system defining goods and services; and (4) stated that a
    joint comprehensive study should be undertaken to determine the cost of
    collecting and remitting State and local sales and use taxes under such
    a streamlined system. Furthermore, H.R. 1410 would have authorized
    States to enter into an Interstate Sales and Use Tax Compact if: at
    least twenty States approved the Compact; Congress consented to the
    Compact within 120 days after it was submitted to Congress; and the
    Compact would be formed before January 1, 2006. States entering into
    the Compact would then have been permitted to collect sales and use
    taxes on nonresident sellers that conduct more than $5 million in gross
    annual sales. Finally, the bill would have specifically exempted
    franchise taxes, income taxes, licensing taxes, and any other State
    taxes from the scope of its coverage.
        Legislative History.--H.R. 1410 was introduced by
    Representative Ernest Istook (R-OK) and eleven cosponsors on
    April 4, 2001. On July 18, 2001, the Subcommittee held a
    hearing on H.R. 1410 at which the following witnesses
    testified: Representative Istook; Grover Norquist, President of
    Americans for Tax Reform and member of the Advisory Commission
    on Electronic Commerce; Frank Julian, Operating Vice President
    and Tax Counsel, Federated Department Stores, Inc., testifying
    on behalf of the Direct Marketing Association and Internet Tax
    Fairness Coalition; and Jon W. Abolins, Chief Tax Counsel and
    Vice President for Tax and Government Affairs, TAXWARE
    International, Inc. The bill received no further consideration
    by the Subcommittee.

    H.R. 4869, the ``Satellite Radio Freedom Act,'' and H.R. 5429, the
            ``Satellite Services Act''

        Summary.--H.R. 4869, the ``Satellite Radio Freedom Act''
    and H.R. 5429, the ``Satellite Services Act,'' reflect two
    approaches to provide a burgeoning telecommunications
    technology with an exemption from the collection or remittance
    of local income and business taxes. H.R. 4869 and H.R. 5429
    were introduced by Representative Tom Davis (R-VA) on June 5,
    2002 and September 23, 2002, respectively.
        H.R. 4869 would exempt digital audio radio service (DARS)
    providers from taxes or fees by local taxing authorities. DARS
    is a direct-to-customer, satellite-delivered subscription
    service providing continuous radio programming across the
    country in digital quality and without interruption or fading.
    H.R. 4869 would not exempt providers from local taxation in
    those jurisdictions in which DARS providers maintain a land-
    based ``repeater,'' or transmission apparatus. Charges subject
    to State taxes would be sourced to the customer's place of
    primary use; for other purposes, charges would be sourced to
    the customer's home or business address.
        Subsequent to the introduction of H.R. 4869, Mr. Davis
    introduced an alternative bill, H.R. 5429, which exempts from
    the collection or remittance of local taxation ``direct-to-
    subscriber satellite service providers,'' a class broader than
    solely DARS. Direct-to-subscriber satellite services are those
    which currently broadcast by satellite directly to the service
    subscriber as well as future services operating in the same
    manner. The bill's preemption extends to those localities in
    which providers maintain a terrestrial repeater. Both H.R. 4869
    and H.R. 5429 preserve State authority to impose taxes on their
    respective service providers and would not prevent a local
    taxing jurisdiction from receiving tax revenue collected by a
    State.
        The bills would achieve parity with Section 602 of the
    Telecommunications Act of 1996, 18 wherein ``direct-
    to-home'' (DTH) satellite services receive an exemption from
    local taxation and fees. DTH, also known as ``direct-broadcast
    satellite video services,'' encompasses satellite television
    services whose consumers are equipped with satellite receivers
    located at their premises. Similar to DTH services, direct-to-
    subscriber satellite services, including satellite radio, are
    delivered via satellite directly to consumers equipped with
    satellite receivers. Because these national services utilize
    little to none of the public rights-of-way or physical
    facilities of a community to transmit their signals, the
    administrative burdens associated with the collection and
    remittance of taxation to thousands of local jurisdictions are
    considered unnecessary and undue. Direct-to-subscriber
    satellite services are excluded from the scope of the exemption
    under the Telecommunications Act because that exemption applies
    only to DTH services. H.R. 4869 and H.R. 5429 would achieve
    parity of treatment between DTH and direct-to-subscriber
    satellite services. The bills promote the development of
    technology while respecting reasonable concepts of State and
    local taxing prerogatives.
    ---------------------------------------------------------------------------
        \18\ Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in
    scattered sections of 47 U.S.C.) (1996).
    ---------------------------------------------------------------------------
        Legislative History.--On September 25, 2002, the
    Subcommittee held a hearing on H.R. 4869 and H.R. 5429.
    Witnesses testifying at the hearing were: Representative Davis,
    sponsor of H.R. 4869 and 5429; Andrew Wright, president of the
    Satellite Broadcasting and Communications Association; Nicholas
    Miller, a partner with the law firm of Miller & Van Eaton,
    P.L.L.C., on behalf of the National League of Cities, the
    TeleCommunity Alliance, and the United States Conference of
    Mayors; and Arthur Rosen, Chairman of the Coalition for Fair
    and Rational Taxation and a partner with the law firm of
    McDermott, Will & Emery. The witnesses discussed the reasons
    for their support/opposition to the concept of a local tax
    exemption for satellite-delivered services; in addition, the
    hearing allowed the Members to assess the two approaches
    offered by H.R. 4869 and H.R. 5429. A number of questions were
    presented to witnesses following the hearing. Their responses
    became part of the formal hearing record. The Subcommittee took
    no further action on either H.R. 4869 or H.R. 5429.

    H.R. 2526, the ``Internet Tax Fairness Act of 2001''

        Summary.--H.R. 2526 would have permanently banned all
    Internet access taxes while prohibiting multiple or
    discriminatory taxes on electronic commerce. In addition, the
    legislation would have created a bright-line physical presence
    nexus requirement for States to collect business activity taxes
    on multistate enterprises. 19 The genesis of the
    physical-presence-nexus portion of the bill is the Supreme
    Court's ruling in Quill Corp. v. North Dakota, which
    invalidated State efforts to compel out-of-State sellers to
    collect and remit sales and use taxes without the existence of
    a physical presence or other ``substantial nexus.''
    20 While the Court established in Quill a physical
    presence threshold for the collection of sales taxes, it did
    not fully articulate a coherent basis for determining when a
    nonresident business enterprise has a sufficient economic
    presence to justify the imposition of business activity taxes.
    As a result, the degree of connection or nexus necessary to
    justify the imposition of business activity taxes has been the
    result of costly and protracted litigation between State taxing
    authorities and multistate businesses.
    ---------------------------------------------------------------------------
        \19\ H.R. 2526 defined business activities taxes as those imposed
    or measured by net income, a business license tax, a franchise tax, a
    single business tax or a capital stock tax, or any similar tax or fee
    imposed by a State or locality on an a business for the right to
    conduct business within the taxing jurisdiction which is measured by
    the amount of such business or related activity.
        \20\ 504 U.S. 298, 311 (1992).
    ---------------------------------------------------------------------------
        Most States and some local governments levy a range of
    business activities taxes on companies that either operate or
    conduct business activities within their jurisdictions. With
    the exception of Michigan, Nevada, South Dakota, Washington,
    and Wyoming, all States and the District of Columbia levy
    general corporate income taxes. H.R. 2526 would reduce the
    uncertainties--and litigation costs--surrounding business
    activity taxes by establishing a bright-line physical presence
    requirement for States and localities as a prerequisite to
    collect such taxes on multistate businesses. The bill also
    lists those conditions which would not meet the ``substantial
    physical presence'' threshold sufficient to warrant the
    imposition of business activity taxes upon a nonresident
    enterprise.
        Legislative History.--H.R. 2526 was introduced by
    Representative Bob Goodlatte (R-VA) on July 17, 2001. On
    September 11, 2001, the Subcommittee held a hearing on H.R.
    2526. Testimony was received from the following witnesses:
    Arthur Rosen, Chairman of the Coalition for Fair and Rational
    Taxation and partner with the law firm of McDermott, Will &
    Emery; Stanley Sokul, Member of the Advisory Commission on
    Electronic Commerce and Principal of Davidson & Company; Fred
    Montgomery, Director of State and Local Tax of Sara Lee
    Corporation; and June Summers Haas, Commissioner of Revenue of
    the Michigan Department of Treasury. 21
    ---------------------------------------------------------------------------
        \21\ The hearing was adjourned prematurely due to the events
    surrounding the terrorist attacks on the Pentagon and other sites;
    however testimony in oral and written form was received from the
    witnesses.
    ---------------------------------------------------------------------------
        The Subcommittee held a mark up of H.R. 2526 on July 17,
    2002. The bill was reported by voice vote with an amendment in
    the nature of a substitute offered by Subcommittee Chairman
    Barr. The amendment struck the title and Internet tax language
    contained in H.R. 2526 and renamed the bill the ``Business
    Activity Tax Modernization Act of 2002.'' There was no further
    consideration of H.R. 2526 by the Committee prior to the
    conclusion of the 107th Congress.

         ADDITIONAL LEGISLATION PERTAINING TO STATE TAXATION AFFECTING
                              INTERSTATE COMMERCE

    H.R. 2559, to amend chapter 90 of title 5, United States Code, relating
            to Federal Long-Term Care Insurance (Pub. L. No. 107-104)

        Summary.--The Long-Term Care Security Act of 2001 (LTCSA)
    22 established a program under which qualified
    Federal personnel (including postal and other civilian
    employees and military personnel), retirees receiving an
    annuity, and certain family members may purchase long-term care
    insurance from one or more private insurance carriers at a
    group discount. ``Long-term care'' refers to a broad range of
    supportive, medical, personal, and social services designed for
    individuals who are limited in their ability to function
    independently on a daily basis. While the legislation contained
    broad preemption language, it did not explicitly prohibit
    States and localities from taxing LTCSA insurance premiums.
    H.R. 2559 makes the LTCSA more consistent with analogous
    programs under which insurance is offered to Federal employees,
    and makes enrollment in the LTCSA program more affordable to
    potential enrollees, by amending the LTCSA to exempt premiums
    under the program from State and local taxes. The bill also
    expands coverage to include retired government personnel who
    are not yet receiving annuity payments but are entitled to a
    deferred annuity under Federal retirement programs.
    ---------------------------------------------------------------------------
        \22\ Pub. L. No. 106--265 (2001).
    ---------------------------------------------------------------------------
        Legislative History.--Introduced by Representative Joe
    Scarborough (R-FL) on July 18, 2001, H.R. 2559 remedies this
    perceived oversight by amending LTCSA to exempt its premiums
    from State and local taxes. On October 3, 2001, the Committee
    ordered favorably reported the bill without amendment by voice
    vote. The Committee filed its report on H.R. 2559, H. Rept.
    107--235, pt. I. The bill passed the Senate on December 17,
    2001 and was signed into law by President Bush on December 27,
    2001 as Public Law 107-104.

                            FEDERAL ARBITRATION ACT

        During the 107th Congress, the Subcommittee considered
    legislation pertaining to the Federal Arbitration Act.
    23
    ---------------------------------------------------------------------------
        \23\ 9 U.S.C. Sec. Sec. 1-14 (1998).
    ---------------------------------------------------------------------------

    H.R. 1296, the ``Motor Vehicle Franchise Contract Arbitration Fairness
            Act of 2001''

        Summary.--H.R. 1296 would have amended the Federal
    Arbitration Act to make arbitration clauses in certain sales
    and service contracts enforceable only if parties to the
    contract consent in writing to arbitrate the dispute after the
    controversy in question arises. A bill similar to H.R. 1296 was
    passed by the House during the 106th Congress. 24
    ---------------------------------------------------------------------------
        \24\ H.R. 543, 106th Cong. (1999).
    ---------------------------------------------------------------------------
        Legislative History.--H.R. 1296, the ``Motor Vehicle
    Franchise Contract Arbitration Fairness Act of 2001,'' was
    introduced by Representative Mary Bono (R-CA) on March 29, 2001
    (for herself and 33 original co-sponors). During the 106th
    Congress, legislation similar to H.R. 1296 was considered by
    the Subcommittee and passed by the House. 25
    Although the Subcommittee took no action on the bill during the
    107th Congress, legislation substantively identical to H.R.
    1296 was passed into law as part of H.R. 2215, the ``21st
    Century Department of Justice Appropriations Authorization
    Act,'' as a free-standing provision and not as an amendment to
    the Federal Arbitration Act. H.R. 2215 was signed by the
    President on November 2, 2002 as Public Law 107-273.
    ---------------------------------------------------------------------------
        \25\ See, e.g., Fairness and Voluntary Arbitration Act: Hearing on
    H.R. 534 Before the Subcomm. on Commercial and Admin. Law of the House
    Comm on the Judiciary, 106th Cong. (2000).
    ---------------------------------------------------------------------------

                              INTERSTATE COMPACTS

        Article I, section 10, clause 3 of the United States
    Constitution provides that ``No State shall, without the
    consent of Congress * * * enter into any Agreement or Compact
    with another State, or with a foreign power.'' The Subcommittee
    considered a number of interstate compacts during the 107th
    Congress.

    H.R. 3180, to provide the consent of Congress to certain amendments to
            the New Hampshire-Vermont Interstate School Compact (Pub. L.
            No. 352)

        Summary.--H.R. 3180 provides congressional consent to
    certain amendments in the New Hampshire-Vermont Interstate
    School Compact of 1969. Specifically, the bill provides
    participating interstate school districts with the option of
    choosing ``Australian balloting'' to incur debt to support
    school construction. 26 Last year, the Vermont and
    New Hampshire State legislatures passed legislation adopting
    these proposed changes. The proposed amendments make these
    decisions a matter of local prerogative and do not dictate a
    State-wide or Federal approach to resolving these questions.
    ---------------------------------------------------------------------------
        \26\  This paper ballot system was first adopted in the Australian
    State of Victoria in 1856 and in the remaining Australian States over
    the next several years. The paper ballot system thereafter became known
    as the ``Australian ballot.'' New York became the first American State
    to adopt the paper ballot for Statewide elections in 1889. As of 1996,
    paper ballots were still used by 1.7% of the registered voters in the
    United States. They are used as the primary voting system in small
    communities and rural areas, and quite often for absentee balloting in
    other jurisdictions. See Federal Election Commission, available at
    http://www.fec.gov/pages/paper.htm (last visited Mar. 1, 2002).
    ---------------------------------------------------------------------------
        Originally approved by Congress in 1969, the New Hampshire-
    Vermont Interstate School Compact was established to increase
    educational opportunities and to promote administrative
    efficiency by encouraging the formation of interstate school
    districts across the New Hampshire-Vermont State line.
    27 In 1978, Congress consented to a number of
    amendments to the original Compact. 28 These
    amendments clarified the terms of the Compact to ensure that
    participating interstate school districts would receive support
    from their States commensurate with their respective
    contributions. The 1978 revisions also clarified the procedures
    by which amendments to the articles of agreement among
    interstate school district members could be approved.
    ---------------------------------------------------------------------------
        \27\  Pub. L. No. 91-21, 83. Stat. 14 (1969).
        \28\  Pub. L. No. 95-536, 92 Stat. 2035 (1978).
    ---------------------------------------------------------------------------
        Legislative History.--H.R. 3180 was introduced by
    Representatives Charles Bass (R-NH) and Bernard Sanders (I-VT)
    on October 30, 2001. The Subcommittee held a hearing and mark
    up on H.R. 3180 on March 6, 2002. Representative Bass testified
    at the hearing. The bill was reported by the Subcommittee
    without amendment by voice vote on March 6, 2002. On May 8,
    2002, the Committee ordered H.R. 3180 favorably reported by
    voice vote. The bill was reported as H. Rept. 107-478. On June
    25, 2002, H.R. 3180 passed the House under suspension of the
    rules by a vote of 425 to 0. The measure passed the Senate on
    November 20, 2002 and was signed into law on December17, 2002
    as Public Law 107-352.

    H.R. 2054, to provide the consent of Congress to a proposed change in
            the Utah-Nevada State boundary

        Summary.--H.R. 2054 would have given the prior consent of
    Congress to an anticipated compact between Utah and Nevada
    regarding a change in the boundaries of those States. The area
    involved relates to the city and surrounding area of Wendover,
    Utah, which would be, under an agreement between the two
    States, part of Nevada.
        The City of Wendover, Utah and West Wendover, Nevada sit
    astride the Utah-Nevada State boundary. While the two
    communities of Wendover, Utah and West Wendover, Nevada are
    divided only by a line painted across the street, they are
    vastly different. West Wendover is a thriving city with liberal
    alcohol laws, legalized gambling, and a vibrant tax base. The
    town's casinos attract more than 300,000 visitors a month, and
    its population has more than doubled in the past decade to
    about 5,000 permanent residents. Wendover, Utah, however, is
    quite different. In Wendover, gambling is illegal, and many of
    the 1,500 residents live in mobile homes and work at casinos
    located across the State line. Wendover's motels and businesses
    have a difficult time competing with their Nevada neighbors,
    and a steady erosion in Wendover's local tax base, coupled with
    costly duplication of government services, makes the efficient
    delivery of quality public services difficult to provide.
        For some time the Wendover communities have been
    considering ways to bridge the economic divide between
    themselves. State and local officials have considered shifting
    the State boundary in order to incorporate Wendover into
    Nevada. This solution would involve moving the State line
    approximately three miles into Utah and, in the process,
    shifting approximately 10,000 square acres from Utah to Nevada.
    On September 7, 2001, the City Councils of Wendover and West
    Wendover agreed that their citizens should have a vote on
    whether the State line should be moved to allow the communities
    to unite. The two councils, meeting jointly on the Nevada side
    of the border, agreed to ask Congress to condition its consent
    to the proposed boundary change upon passage of local
    referenda. H.R. 2054 would facilitate State efforts to redraw
    the Nevada-Utah State line by removing Federal obstacles to a
    boundary change that takes place in a manner consistent with
    conditions contained in the bill.
        H.R. 2054 gave congressional consent to a proposed border
    change if: (1) the compact is consented to by both State
    legislatures within a specified period after the date of the
    enactment of the legislation; (2) the compact does not conflict
    with Federal law; (3) the agreement does not change the
    boundary of any other State; (4) the amount of land transferred
    is not more than 10,000 acres; and (5) the primary purpose of
    changing the boundaries of Utah and Nevada is to ensure that
    lands located within the municipal boundaries of the City of
    Wendover-Utah, including the municipal airport, shall be
    located within the boundaries of Nevada. Further, H.R. 2054
    would have required that Nevada and Utah enter into this
    agreement no later than December 31, 2006, and that the
    affirmation of Wendover, Utah and West Wendover, Nevada be
    demonstrated by a majority vote taking place on the issue of
    boundary movement.
        Legislative History.--H.R. 2054 was introduced by
    Representative James Hansen (R-UT) on June 5, 2001. The
    Subcommittee held a hearing and mark up of H.R. 2054 on March
    6, 2002. Representative Hansen, Chairman of the House Resources
    Committee, testified in support of its passage. The
    Subcommittee favorably reported H.R. 2054 by voice vote without
    amendment. On May 8, 2002, the Committee ordered reported the
    bill favorably to the House, with an amendment, by voice vote.
    On May 16, 2002, the Committee filed the report as H. Rept.
    107-469. On June 11, 2002, the House passed the bill as amended
    under suspension of the rules by voice vote without amendment.
    The Senate took no action on this bill prior to the conclusion
    of the 107th Congress.

    H.R. 1448, to clarify the tax treatment of bonds and other obligations
            issued by the government of American Samoa

        Summary.--Like most States and localities, American Samoa
    issues government bonds to fund a variety of public projects.
    However, its bond raising activities are very limited. Relevant
    sections of the Internal Revenue Code exclude interest from
    State and local bonds from Federal taxation. This exemption
    specifically applies to the ``District of Columbia and any
    possession of the United States.'' 29 This
    definition, however, does not explicitly encompass United
    States territories. Bonds issued by other U.S. territories and
    possessions such as Guam and Puerto Rico are exempt from
    Federal, State, and local taxes.
    ---------------------------------------------------------------------------
        \29\  48 U.S.C. Sec. 103(c)(2) (2001).
    ---------------------------------------------------------------------------
        H.R. 1448 provides that bonds issued by American Samoa are
    exempt from Federal, State, and local income taxes. As
    introduced, H.R. 1448 extended this exemption to a variety of
    bonds, including ``private activity bonds,'' municipal bonds
    used either entirely or partially for private purposes and
    which enjoy Federal tax-exempt status.
        Legislative History.--H.R. 1448 was introduced by
    Representative Eni F.H. Faleomovaega (D-AS) on April 4, 2001.
    On March 6, 2002, the Subcommittee held a hearing and mark up
    on the bill. An amendment in the nature of a substitute offered
    by Subcommittee Chairman Barr to limit the tax exemption to
    government-issued bonds was reported by voice vote. H.R. 1448
    passed the House under suspension of the rules on September 24,
    2002, but the Senate failed to consider the bill prior to the
    conclusion of the 107th Congress.

                               LITIGATION REFORM

    Hearing on health care litigation reform and H.R. 4600 the ``Help
            Efficient, Accessible, Low-cost, Timely Healthcare Act''

        On June 12, 2002, the Subcommittee held a hearing to
    examine the impact of excessive litigation on patients' access
    to health care. The following witnesses testified at the
    hearing: Donald J. Palmisano, Secretary-Treasurer of the
    American Medical Association; Joanne Doroshow, Executive
    Director of the Center for Justice & Democracy; Danielle
    Walters, Executive Vice President of Californians Allied for
    Patient Protection; and Lawrence E. Smarr, President of the
    Physician Insurers Association of America.
        Much of the witnesses' testimony included a discussion of
    some or all aspects of H.R. 4600, the ``Help Efficient,
    Accessible, Low-cost, Timely Healthcare Act,'' introduced by
    Representative James Greenwood (R-PA) (together with nine
    original cosponsors) on April 25, 2002.
        The hearing explored the causes of this current health care
    crisis, its effects on health care providers and patients'
    access to health care, and the success of the approach to
    address these problems undertaken by California more than 25
    years ago. Virtually unscathed by the effects of the current
    medical professional liability insurance crisis, Californians
    have enjoyed the protection of highly successful health care
    litigation reforms that have made health care delivery more
    accessible and cost-effective in their State.
        California's Medical Injury Compensation Reform Act
    (MICRA), which was signed into law by Governor Jerry Brown in
    1976, has proved immensely successful in increasing access to
    affordable medical care in California. MICRA's reforms include
    a $250,000 cap on non-economic damages; limits on contingency
    fees lawyers can charge so that more money goes to victims and
    less to lawyers; authorization for defendants to introduce
    evidence showing the plaintiff received compensation for losses
    from outside sources in order to prevent double recoveries; and
    authorization for courts to require periodic payments for
    future damages, instead of lump sum awards, in order to prevent
    bankruptcies in which plaintiffs would receive only pennies on
    the dollar.
        Premiums in California, adjusted for inflation, are lower
    than what they were before that State implemented its health
    care litigation reforms. Insofar as those premiums have risen
    at all since then, they are rising at much smaller rates than
    elsewhere in the nation.
        Along with restricting access to insurance by physicians
    and to health care by patients, the mere threat of potentially
    limitless and bankrupting litigation also causes doctors to
    engage in ``defensive medicine''--the sometimes harmful and
    certainly wasteful prescription of medically unnecessary
    medicine, and the performance of unnecessary tests simply to
    reduce liability exposure. In this way, the current,
    unregulated medical tort system can force doctors to practice
    bad medicine. It also discourages improvements in the delivery
    of medical care, by deterring doctors from freely discussing
    errors or potential errors due to a fear of litigation.
    Defensive medicine also wastes billions of dollars a year in
    taxpayer funds, by directing money to medically unnecessary
    prescriptions and tests in Federally-funded programs.
        The Committee marked up H.R. 4600 on July 23, 2002 and
    September 10, 2002, and ordered it reported favorably as
    amended by voice vote. The Committee filed its report on
    September 25, 2002 as H. Rept. 107-693, pt. I. On September 26,
    2002, the House passed H.R. 4600 by a vote of 217 to 203. The
    Senate failed to act on the bill prior to the conclusion of the
    107th Congress.

                              Oversight Activities

    List of oversight hearings

    Executive Orders and Presidential Directives, March 22, 2001
                (Serial No. 10)
    Reauthorization of the United States Department of Justice:
                Executive Office for United States Attorneys, Civil
                Division, Environment and Natural Resources
                Division, Executive Office for United States
                Trustees, and Office of the Solicitor General, May
                9, 2001 (Serial No. 15)
    Settlement Agreement by and among the United States of America,
                the Federal Communications Commission, NextWave
                Telecom, Inc., and certain affiliates, and
                Participating Auction 35 Winning Bidders, December
                6, 2001 (Serial No. 56)
    The Alabama-Coosa-Tallapoosa River Basin Compact and the
                Apalachiola-Chattahoochee and Flint River Basin
                Compact, December 19, 2001 (Serial No. 54)
    Legal Services Corporation, February 28, 2002 (Serial No. 66)
    Administrative and Procedural Aspects of the Federal Reserve
                Board/Department of the Treasury Proposed Rule
                Concerning Competition in the Real Estate Brokerage
                and Management Markets, May 16, 2002 (Serial No.
                77)
    Litigation and its Effect on the Rails-to-Trails Program, June
                20, 2002 (Serial No. 90)

    Hearing on executive orders and presidential directives

        The executive order is the best known instrument by which
    Presidents implement policy and manage the affairs of the
    executive branch. Most executive orders and other presidential
    directives are routine and unremarkable. Sometimes, however,
    the substance of an executive order may be controversial or may
    exceed the scope of the President's statutory or constitutional
    authority. Executive orders that lack a statutory or
    constitutional predicate implicate the separation of powers
    doctrine and tend to disturb the balance of powers enumerated
    to the legislative and executive branches under the
    Constitution.
        The Property Clause of the Constitution provides that
    ``Congress shall have Power to dispose of and make all needful
    Rules and Regulations respecting the Territory or other
    property belonging to the United States.'' 30 The
    Supreme Court has broadly interpreted this provision, holding
    that Congress has sovereign authority to make laws pertaining
    to all aspects of Federal land management. 31 The
    Antiquities Act of 1906 grants the President the power to
    declare national monuments by ``public proclamation.''
    32 However, the Act is not a blank grant of
    authority. Under the Act, the President is required to
    specifically designate the ``archeological, historic or
    scientific'' interest of withdrawn land. Moreover, when making
    designations under the Antiquities Act, the President is
    explicitly required to reserve the ``smallest area compatible
    with the proper care and management of the objects to be
    protected.'' 33
    ---------------------------------------------------------------------------
        \30\ U.S. Const. art. IV, Sec. 3, cl. 2.
        \31\ Kleppe v. New Mexico, 426 U.S. 540, 547 (1976).
        \32\ 16 U.S.C. Sec. 431 (1996).
        \33\ Id.
    ---------------------------------------------------------------------------
        Since its passage, the Antiquities Act has been used by
    successive Presidents to designate nearly 70 million acres of
    Federal land. It has been repeatedly challenged in Federal
    court, with little success. In 1908, the scale of President
    Theodore Roosevelt's designation of the Grand Canyon was
    challenged unsuccessfully.34 In 1943, Wyoming
    unsuccessfully challenged President Roosevelt's designation of
    the Jackson Hole National Monument.35 Legal
    challenges to President Carter's 1978 decision to withdraw
    millions of acres of Federal land in Alaska under the
    Antiquities Act also proved unavailing.36
    ---------------------------------------------------------------------------
        \34\ Cameron v. United States, 252 U.S. 450 (1920).
        \35\ Wyoming v. Franke, 58 F. Supp. 890 (D. Wy. 1945).
        \36\ Anaconda Copper Co. v. Andrus, Case No. A79-161 CIV (D. Ala.
    1980).
    ---------------------------------------------------------------------------
        During his eight years in office, President Clinton used
    the Antiquities Act to establish 19 national monuments spanning
    more than five million acres. With one exception, all of these
    designations were made during the final year of his term. For
    example, on January 11, 2000, President Clinton proclaimed
    three national monuments and enlarged a fourth. The largest of
    these, the Grand Canyon-Parashant National Monument in Arizona,
    encompasses 1.02 million acres of Federal land and nearly
    30,000 acres of private land. The Agua Fria National Monument,
    located within 40 miles of Phoenix, Arizona, contains over
    71,000 acres of Federal land and nearly 1,500 acres of private
    land. On April 15, 2000, President Clinton proclaimed the Giant
    Sequoia National Monument, which extends over 380,00 acres of
    public and private land in California. Two months
    later,President Clinton declared another four national monuments,
    including the Canyons of the Ancients National Monument (Colorado), the
    Cascade-Sikouyou National Monument (Oregon), the Hanford Reach National
    Monument (Washington), and the Ironwood Forest National Monument
    (Arizona). Finally, on November 9, 2000, President Clinton withdrew an
    additional 300,000 acres of land in Arizona when he declared the
    Vermilion Cliffs National Monument. All of these designations took
    place after little or no prior consultation with affected communities.
        On March 22, 2001, the Subcommittee conducted a hearing
    which examined the historical, statutory, constitutional, and
    administrative aspects of Executive Orders and other
    presidential directives.37 The hearing focused on
    the surge of Clinton-era environmental proclamations issued
    under the purported authority of the Antiquities Act of 1906
    and examined steps Congress might take to address executive
    decrees that exceed the President's constitutional or statutory
    authority. Testimony was received from the following witnesses:
    House Resources Committee Chairman Jim Hansen (R-UT); Bruce
    Fein, former Associate Deputy Attorney General under the Reagan
    Administration and constitutional law expert; Todd Gaziano,
    Director of the Center for Legal and Judicial Studies at the
    Heritage Foundation; and Professor Kenneth Mayer from the
    University of Wisconsin-Madison.
    ---------------------------------------------------------------------------
        \37\ Executive Orders and Presidential Directives: Hearing Before
    the Subcomm. on Commercial and Admin. Law of the House Comm. on the
    Judiciary, 107th Cong. (2001).
    ---------------------------------------------------------------------------

    Oversight hearing on the reauthorization of the United States
            Department of Justice: Executive Office for United States
            Attorneys, Civil Division, Environment and Natural Resources
            Division, Executive Office for United States Trustees, and
            Office of the Solicitor General

        Pursuant to House Rules, the Judiciary Committee has
    jurisdiction over the functions of the Department of Justice
    (``Department'' or ``DOJ''). The Subcommittee on Commercial and
    Administrative Law has jurisdiction over the following
    components of the Department of Justice: Executive Office for
    United States Attorneys, the Civil Division, the Environment
    and Natural Resources Division, the Executive Office for United
    States Trustees, the Office of the Solicitor General of the
    United States, and any other areas which may be assigned to it
    by the Chairman.
        On May 9, 2001, the Subcommittee held a reauthorization
    oversight hearing on the components of the Department of
    Justice within the Subcommittee's jurisdiction. The purpose of
    the hearing was to examine the budget and policy priorities
    within the respective divisions, and focus on the efforts to
    address any needed improvements.
        The witnesses from the Department of Justice who testified
    at the hearing were: Mark Calloway, Acting Director, Executive
    Office for United States Attorneys; Stuart Schiffer, Acting
    Assistant Attorney General, Civil Division; John Cruden, Acting
    Assistant Attorney General, Environment and Natural Resources
    Division; and Martha Davis, Acting Director, Executive Office
    of United States Trustees. The Solicitor General's Office also
    submitted a statement for the record.
        On August 7, 2001, the Honorable Bob Barr, Chairman of the
    Subcommittee on Commercial and Administrative Law, sent a
    letter to the Department of Justice requesting additional
    information relating to each of the five components of the DOJ
    within the Subcommittee's area of jurisdiction. On November 14,
    2001, the Department sent the Subcommittee its responses.

                (a) The Executive Office for United States Attorneys
        The Subcommittee's examination of DOJ's budget priorities
    for programs within the responsibility of the United States
    Attorneys included questions as to whether adequate resources
    were being devoted to support those responsibilities. The
    Subcommittee also inquired into how well the EOUSA coordinates
    and supports the activities of the United States Attorneys. The
    Subcommittee also explored the effect of the so-called McDade
    Amendment on the United States Attorneys' conduct of undercover
    sting operations.

                (b) Civil Division
        The Civil Division's requested increase of approximately
    $7.3 million for Fiscal Year (FY) 2003 is primarily comprised
    of expenditures for compensation-related adjustments ($4.6
    million), rent ($1.6 million), and health insurance premiums
    ($.3 million). It also includes expenditures for lease
    expirations in the amount of $654,000. The areas of inquiry
    during the hearing focused on the ways in which the Civil
    Division can maximize its resources. Among the areas of inquiry
    at the hearing, the question of whether Civil Division
    attorneys should be transferred from Main Justice to United
    States Attorneys Offices in the field and if there is any
    duplication or overlap between the Civil Division and the
    United States Attorneys.
        These areas of inquiry will also be further explored by the
    GAO in the EOUSA study requested by the Subcommittee and
    described later.

                (c) Environment and Natural Resources Division (ENRD)
        The Subcommittee examined with the witnesses and in follow-
    up questions the priorities of ENRD in its efforts to balance
    the enforcement of environmental laws with the legitimate
    concerns of private land owners and businesses. The sufficiency
    of government appraisals of land values during takings
    proceedings was also explored. Following up on this issue, the
    Subcommittee held an oversight hearing on the Rails-to-Trails
    program in June 2002, which is described later.

                (d) The Executive Office for United States Trustees
        The Subcommittee reviewed the preparedness of U.S. Trustees
    to handle the impact on the bankruptcy system if the Bankruptcy
    Abuse Prevention and Consumer Protection Act of 2001 were to
    pass. Specifically, the Subcommittee examined the efforts to
    prevent bankruptcy abuse with a focus on identifying those who
    file for Chapter 7 protection but have the means to fund a
    Chapter 13 repayment plan.
        The Subcommittee also examined efforts by the U.S. Trustees
    Program to coordinate its bankruptcy anti-fraud program with
    U.S. Attorneys, the FBI, and other law enforcement agencies.
    Finally, the Subcommittee looked at the success of the U.S.
    Trustees Program's automation initiative, a costly program
    intended to facilitate the handling of bankruptcy filings to
    reduce the considerable administrative expenses faced by the
    agency.

                (e) Office of the Solicitor General (OSG)
        The Subcommittee examined the criteria utilized by the OSG
    in determining which issues toappeal, the relationship between
    the OSG and other areas of the DOJ with regard to control of appellate
    matters, improving efficiency, and general administrative matters.

    Oversight of the Executive Office of United States Attorneys (EOUSA)

        The Department of Justice Appropriations Act for 2002 was
    passed by the House on July 18, 2001. An appropriation was
    included for more than $1.3 billion in salaries and expenses
    for U.S. Attorneys' offices, including the Executive Office for
    U.S. Attorneys (``EOUSA'') in the main office of the Department
    of Justice in Washington, D.C.
        In appropriating these funds, Congress relied on
    information provided by the DOJ, for which there was little
    correlation to DOJ's Strategic Plan and Performance Plan, as
    required by the Government Performance and Results Act (GPRA).
    In fact, DOJ's Strategic Plan and Performance Plan both suggest
    an allocation of resources by the U.S. Attorneys toward law
    enforcement goals, yet fail to describe how that effort will be
    managed to achieve the desired results.
        Chairman F. James Sensenbrenner, Jr., Subcommittee Chairman
    Bob Barr, and the respective ranking Members John Conyers and
    Melvin Watt, were concerned by the lack of specifics regarding
    DOJ's performance goals for the U.S. Attorneys' Offices and the
    apparent absence of measurable performance targets. Also of
    concern was how DOJ management communicates the need for U.S.
    Attorneys to develop meaningful performance objectives and case
    management so DOJ's law enforcement goals can be better met. On
    September 24, 2001, they requested the General Accounting
    Office (``GAO'') prepare a report to address the application of
    GPRA requirements as well as a results-oriented management of
    costs and human resources in the Executive Office for U.S.
    Attorneys and the U.S. Attorneys' offices.
        The report will address how and to what degree the
    management of the financial budget and human resources are
    directed to achieving specific performance goals. It will also
    describe the methods used to identify and communicate the GPRA
    goals pertaining to the U.S. Attorneys' offices and describe to
    what degree objectives stated in DOJ's Strategic Plan and
    Performance Plan are applied to evaluate the performance of
    individual Assistant U.S. Attorneys. The report will also
    describe and evaluate how the budget is actually developed by
    EOUSA and to what extent actual budget execution follows the
    proposed use of funds contained in DOJ's submissions in support
    of the appropriation request.
        As part of the study, the GAO was asked to identify how
    strategies are used to achieve performance goals and determine
    if the goals can be measured against actual results. For
    example, as points of comparison, does EOUSA establish baseline
    performance standards based on measurable criteria, such as
    statistical reductions in crime? Are there measurable goals,
    and do those goals challenge management or are they easily
    attained through routine performance? Are there annual goals
    that support long term objectives? Do human resource management
    policies and practices link to DOJ performance goals and, if
    so, how do they contribute to the achievement of those goals?
        With regard to EOUSA's budget planning and execution
    processes, the report will describe whether management applies
    performance consequences in allocation of budget and human
    resources. It will also describe how management allocates
    funding toward meeting DOJ's defined performance goals. For
    example, does the budget process take into account the impact
    of technology, and how will the proposed information technology
    investments contribute to achieving performance goals? How does
    the agency measure and allocate its human capital toward
    achieving performance goals? How do the requested budget
    amounts relate to the achievement of specific performance
    goals?
        The report will identify the direction provided by EOUSA to
    U.S. Attorneys and oversight, if any, undertaken by EOUSA, OJP,
    or other offices within DOJ to determine if U.S. Attorneys are
    fulfilling their responsibilities under OJP grant programs.
    There are programs within the Office of Justice Programs (OJP)
    requiring U.S. Attorneys to take a significant role in
    directing the use of appropriated grant funding, such as
    operation ``Weed and Seed.'' And finally, the report will
    include GAO's recommendations for improving DOJ's management of
    the GPRA plan preparation and implementation.
        On October 23, 2001, the GAO formally accepted the
    Subcommittee's request as work within the scope of their
    authority. On January 30, 2002, Subcommittee staff met with the
    GAO EOUSA team assigned to complete the study in an effort to
    clarify the request and receive approval by the Subcommittee to
    proceed and on June 12, 2002, the formal scope and methodology
    was presented to the Subcommittee. The final report on the
    management of EOUSA and U.S. Attorney's Offices will be issued
    by February 28, 2003.

    Joint hearing with the Subcommittee on Courts, the Internet, and
            Intellectual Property on the Settlement Agreement by and among
            the United States of America, the Federal Communications
            Commission, NextWave Telecom, Inc., and certain affiliates, and
            Participating Auction 35 Winning Bidders

        For approximately six years, NextWave Telecom Inc. and
    certain of its affiliates have been involved in a contentious
    dispute with the Federal Communications Commission (FCC)
    concerning the ownership of personal communications services
    (PCS) spectrum licenses that NextWave acquired in an auction
    conducted by the FCC in 1996. The Communications Act of 1934
    gives the FCC exclusive regulatory authority over the radio
    spectrum, including the issuance of licenses and construction
    permits. In 1993, the Act was amended to permit the FCC to sell
    licenses and construction permits through a competitive bidding
    process. Intended to promote economic opportunity for
    ``designated entities'' (i.e., qualified small businesses,
    rural telephone companies, and businesses owned by members of
    minority groups and women), the legislation permitted
    successful bidders to pay for their licenses in installments.
    The legislation also authorized the FCC to retain auction
    revenues as offsetting collections.
        Beginning in 1996, the FCC held a series of PCS license
    auctions pursuant to this legislation. The licenses offered for
    sale at these auctions were divided into ``blocks.'' The ``C-
    block'' licenses were offered exclusively to designated
    entities such as NextWave, which successfully bid approximately
    $4.7 billion for 63 C-block licenses. After initial payment of
    a $474 million deposit, NextWave consummated the transaction in
    February of 1997 by executing $4.26 billion in promissory notes
    to the Federal government payable over ten years.
        Subsequent to these auctions, however, the market value of
    the C-block licenses plummeted, which interfered with the
    ability of some licensees to obtain funding for their purchases
    and operations. Due to the depressed C-block market, NextWave
    was unable to obtain adequate financing to fund its promissory
    note obligations to the FCC. It subsequently filed for
    bankruptcy relief under chapter11 of the Bankruptcy Code on
    June 8, 1998. Other than the deposit, NextWave made no further payments
    to the FCC. Approximately 20 other C-block licensees also filed for
    chapter 11 bankruptcy relief. During the pendency of the bankruptcy
    case, the FCC cancelled NextWave's licenses and reauctioned them.
        In response to the issues presented by the NextWave
    bankruptcy case and the actions of the FCC, the Subcommittee
    held an oversight hearing regarding the limits on governmental
    regulatory powers under the Bankruptcy Code on April 11, 2000.
    38 Specifically, the hearing examined the exception
    to the automatic stay as codified in section 362(b)(4) of the
    Bankruptcy Code as applied to certain types of regulatory
    powers exercised by governmental entities. Witnesses at the
    hearing included representatives from the Justice Department
    and the FCC as well as panelists presenting views from the
    bankruptcy community perspective. The general tenor of the
    testimony and comments of participating Subcommittee Members
    was that the current law with respect to the exception from the
    automatic stay clearly did not apply to actions by governmental
    regulators that were inherently attempting to collect monetary
    obligations.
    ---------------------------------------------------------------------------
        \38\ Oversight Hearing on the Limits on Regulatory under the
    Bankruptcy Code Before the Subcomm. on Commercial and Admin. Law of the
    House Comm. on the Judiciary, 106th Cong. (2000).
    ---------------------------------------------------------------------------
        In November of 2001, the FCC, NextWave and certain other
    parties entered into an agreement intended to resolve the
    issues raised by the disputed ownership of NextWave's licenses.
    The settlement agreement, in essence, provided for the transfer
    of the licenses by NextWave to the FCC, which, in turn, would
    convey them to the successful reauction bidders. Under the
    terms of the settlement agreement, NextWave, in exchange for
    transferring the licenses to the FCC, would have received from
    the Federal government an approximate cash payment of $6.5
    billion. In addition, the Federal government would have made a
    cash payment directly to the Internal Revenue Service on behalf
    of NextWave in the approximate amount of $3 billion. Pursuant
    to the settlement agreement, NextWave would have paid the
    Federal government $180 million in addition to the deposit it
    previously paid. As a result of this settlement, the United
    States Government would have received net proceeds of
    approximately $10 billion. The settlement was premised on the
    enactment of legislation approving the settlement and
    authorizing the appropriation of $9.55 billion to implement it,
    among other provisions. The proposed legislation also contained
    provisions for expedited judicial review and limitations on
    jurisdiction of actions taken pursuant to the settlement
    agreement. These provisions substantially altered regular court
    procedures and should be carefully reviewed.
        On December 6, 2001, the Subcommittee, in conjunction with
    the Subcommittee on Courts, the Internet, and Intellectual
    Property, held an oversight hearing on a proposed settlement
    agreement that NextWave, the FCC and certain other parties
    entered into on November 26, 2001. Witnesses who testified at
    the hearing included Jay S. Bybee, Assistant Attorney General,
    Office of Legal Counsel, and Jody Hunt, Counsel to the Deputy
    Attorney General, on behalf of the Department of Justice; John
    A. Rogovin, Deputy General Counsel of the FCC; Donald Verrilli,
    General Partner, Jenner & Block, on behalf of NextWave; and
    Stephen M. Roberts on behalf of Eldorado Communications, LLC.
    The hearing allowed Members to assess whether legislation was
    necessary to implement this settlement agreement, the basis of
    the allocation of the reauction proceeds, and whether the
    legislation would affect other pending bankruptcy cases. In
    addition, it provided an opportunity to examine whether the
    proposed legislation violated the Bankruptcy Clause of the U.S.
    Constitution in light of the fact that it specifically provided
    relief to parties in a pending bankruptcy case. 39
    ---------------------------------------------------------------------------
        \39\ The Constitution provides that ``[t]he Congress shall have the
    power * * * [t]o establish * * * uniform Laws on the subject of
    Bankruptcies throughout the United States[.]'' U.S. Const. art. I,
    Sec. 8, cl. 4 (emphasis added).
    ---------------------------------------------------------------------------
        Subsequent to this hearing, Representative Billy Tauzin (R-
    LA) (for himself and three original cosponsors) introduced H.R.
    3484, the ``Prompt Utilization of Wireless Spectrum Act of
    2001,'' on December 13, 2001. The bill was not considered by
    the Committee prior to the conclusion of the 107th Congress.

    Hearing on the Alabama-Coosa-Tallapoosa River Basin Compact and the
            Apalachicola-Chattahoochee and Flint River Basin Compact

        On December 19, 2001, the Subcommittee conducted a hearing
    on the status of two interstate compacts that the Congress
    approved during the 105th Congress. The compacts provided for
    the creation of respective commissions to develop a formula
    allocating waters from various river basins among the signatory
    States. The Alabama-Coosa-Tallapoosa (ACT) River Basin Compact
    40 involved Georgia and Alabama, while the
    Apalachicola-Chattahoochee and Flint (ACF) River Basin Compact
    41 involved Georgia, Alabama and Florida.
    Congressional consent is required for such agreements and
    compacts in order to determine whether they work to the
    detriment of another State, and to ensure they do not conflict
    with Federal law or Federal interests.
    ---------------------------------------------------------------------------
        \40\ Pub. L. No. 105-104 (1997).
        \41\ Pub. L. No. 105-105 (1997).
    ---------------------------------------------------------------------------
        Testifying at the hearing were: Newt Gingrich, Chief
    Executive Officer of the Gingrich Group and the former Speaker
    of the United States House of Representatives; Lindsay Thomas,
    former United States Representative from Georgia and then
    Federal Commissioner of the ACT and ACF River Basin
    Commissions; Jerome C. Muys, President of Muys and Associates;
    and George William Sherk, (the latter two witnesses being
    experts in water resources and allocation law).
        The issue of water use in the southeast United States has a
    considerable history. Alabama, Florida and Georgia have for
    some time been negotiating over the waters of the ACF River
    Basin. Concerned with the potential impact of a proposed
    reallocation of storage from Federal reservoirs in Georgia,
    Alabama filed suit in 1990 in Federal district court to prevent
    the U.S. Army Corps of Engineers from reallocating storage
    without completing adequate environmental assessments. Florida
    later joined Alabama in the suit. Thereafter, the three States
    and the Corps of Engineers, seeking to negotiate and resolve
    the issue, agreed that a comprehensive study should be
    conducted by a partnership of the three States and the Federal
    government.
        The waters from the ACF and ACT River Basins are extremely
    important to the economic vitality of the entire region. The
    ACF and ACT River basins affect more than 22,000 square miles
    in Georgia, comprising 39 percent of the land mass of that
    State. Within Alabama, the figure is more than 17,000 square
    miles and 34 percent of the State's land mass. Florida's
    affected area is more than 2,000 square miles representing four
    percent of the State. The ACF River Basin intertwines the three
    States in a cause and effect commonality of interests. Two
    droughts in the 1980's created significant water shortages in
    the ACF River Basin and led to disputes and litigation about
    waterallocation in the basins from Federally owned and operated
    flood control projects. The increased need for drinking water, as well
    as water for agricultural and industrial uses, have affected the
    availability of fresh water flowing downstream into Apalachicola Bay in
    Florida. As a result, salinity, sedimentation, and pollutant levels
    have increased, posing a threat to marine life in the bay, especially
    oyster beds.42 In 1992, the three States adopted a
    Memorandum of Agreement committing themselves to: (1) a partnership
    which involved a ``live-and-let-live'' understanding on water use and
    management in ACF Basin; (2) conducting a joint comprehensive study of
    water resource issues; (3) achieving a long-term water management
    agreement among the partners; and (4) placing the lawsuit in an
    inactive status. The ACF Compact, together with a virtually identical
    compact concerning the ACT River Basin, was negotiated from September
    through December 1996 by the States and the Federal government.
    ---------------------------------------------------------------------------
        \42\ Apalachicola-Chattahoochee-Flint River Basin Compact; Alabama-
    Coosa-Tallapoosa River Basin Compact: Hearing on H.J. Res. 91 Before
    the Subcomm. on Commercial and Admin. Law of the House Comm. on the
    Judiciary, 105th Cong. (1997) (statement of Rep. F. Allan Boyd).
    ---------------------------------------------------------------------------
        During the 105th Congress, the Subcommittee held a hearing
    on H.J. Res. 91 and 92, approving the compacts that were
    subsequently adopted by the Congress.43 Testifying
    at the hearing were members of Congress and representatives
    from the Department of Justice and the participating States.
    Since the adoption of the compacts, the commissions created
    under them have continued to meet and negotiate in an effort to
    develop mutually agreeable water allocation formulas with the
    potential for a successful outcome varying from month to month.
    ---------------------------------------------------------------------------
        \43\ Id.
    ---------------------------------------------------------------------------
        In conducting the hearing during the 107th Congress, the
    Subcommittee sought to determine the progress of the parties
    and encourage an outcome which the Congress had anticipated
    would be achieved when it approved the compacts. The
    Subcommittee also examined relevant water law issues in order
    to lay a better foundation for consideration of the final
    agreements into which the States may ultimately enter.
    Moreover, the Subcommittee determined that continued review of
    the ACT and ACF compacts would be helpful in assessing how well
    States can balance such water rights issues with Federal
    interests in coming to ultimate allocation agreements.
        Subsequent to the hearing, the Subcommittee presented
    additional questions to the witnesses and engaged in oversight
    of the progress of the States, but took no further legislative
    action.

    Oversight of the Legal Services Corporation

        A priority of the Subcommittee during the 107th Congress
    was oversight of the Legal Services Corporation. The
    Subcommittee was concerned about whether the Legal Services
    Corporation (``LSC'' or the ``Corporation''), and its grantees,
    comply with statutory mandates passed by Congress in 1996.
    Congressional oversight of the LSC and its grantees' compliance
    with these mandates is an essential element of ensuring that
    funding for legal services for the poor is not diverted to
    other unauthorized uses that violate Congressional mandates.
    Any unlawful diversion of resources to prohibited activity
    would frustrate Congressional objectives and deprive many needy
    individuals of the legal representation that Congress intended
    to fund.
        The Subcommittee initiated an oversight investigation in
    January of 2002 and has completed an extensive review of LSC
    documents, the hearing record of a Subcommittee on Commercial
    and Administrative Law oversight hearing of February 28,
    2002,44 interviews with LSC staff and confidential
    sources, and other records obtained by the Subcommittee.
    Following the February 28, 2002 hearing, the Subcommittee
    submitted further record questions to LSC President John N.
    Erlenborn on April 4, 2002.45 President Erlenborn
    provided the LSC's responses and documents to the Subcommittee
    on May 8, 2002.46
    ---------------------------------------------------------------------------
        \44\ This Subcommittee held two other oversight hearings since the
    1996 restrictions were enacted: the first hearing was two months after
    the restrictions were effective, and the second hearing was after the
    General Accounting Office issued a highly critical report of the case
    counting numbers reported to Congress. Legal Services Corp.: Hearing
    Before the Subcomm. on Commercial and Admin. Law of the House Comm. on
    the Judiciary, 104th Cong., (June 26, 1996) and Legal Services
    Corporation: Hearing Before the Subcomm. on Commercial and Admin. Law
    Before the House Comm. on the Judiciary, 106th Cong. (Sept. 29, 1999).
        \45\ Letter from Hon. Bob Barr, Chairman, Subcomm. on Commercial
    and Admin. Law, and Hon. Jeff Flake, Vice-Chairman, Subcomm. on
    Commercial and Admin. Law, to John N. Erlenborn, President, LSC (Apr.
    4, 2002) (on file with the Subcomm. on Commercial and Admin. Law).
        \46\ Letter from John N. Erlenborn, President, Legal Services
    Corp., to Hon. Bob Barr, Chairman, Subcomm. on Commercial and Admin.
    Law (May 8, 2002) (on file with the Subcomm. on Commercial and Admin.
    Law). It should be noted the LSC produced to the Subcommittee many
    unnecessary and unrequested documents. For example, pages H-01939 to H-
    02127 provided the Subcommittee with unrequested U.S. Census Bureau
    documents that were unrelated and irrelevant to the substance of
    questions asked in section H of the Subcommittee's April 4, 2002
    letter.
    ---------------------------------------------------------------------------

    Development and background of the Legal Services Corporation

        The Legal Services Corporation Act of 1974 (the ``Act'')
    was originally intended to provide funding for legal
    representation of the indigent in our society. Since the
    earliest days of the program, however, the Legal Services
    Corporation was the subject of concerns that federal tax
    dollars would be used to promote a political and ideological
    agenda, instead of providing important legal services to the
    neediest Americans.47 In response to over a decade
    of complaints, and in an effort to protect the integrity of the
    program, Congress passed significant restrictions, which were
    included in the Fiscal Year (``FY'') 1996 Commerce, Justice,
    and State, the Judiciary, and Related Agencies appropriations
    legislation.48 Many of these restrictions directed
    the Board to promulgate federal regulations in order to
    implement the statute effectively.49 The
    Subcommittee is concerned that Congressional reforms have been
    diluted by the Board's implementation of weak, unworkable, and
    unenforceable regulations.
    ---------------------------------------------------------------------------
        \47\  Kenneth F. Boehm, The Legal Services Program: Unaccountable,
    Political, Anti-Poor, Beyond Reform and Unnecessary, 17:2 ST. Louis U.
    Pub. L. Rev. 328 (1998).
        \48\  Omnibus Consolidated Rescissions and Appropriations Act, Pub.
    L. No. 104-134, 110 Stat. 1321-50 (1996). These restrictions include,
    among others, prohibitions on class actions, collection of attorney's
    fees, rulemaking, participation in lobbying or political activities,
    litigation on behalf of prisoners, representation of drug-related
    public housing evictions, and representation of certain categories of
    aliens.
        \49\  Legal Services Corp. Act, Pub. L. No. 93-355 Sec. 1006(b)(A)
    (1974).
    ---------------------------------------------------------------------------
        Ensuring accountability of the LSC for compliance with the
    restrictions is made more difficult because the LSC, although
    funded by Congressional appropriation, is a nonprofit
    corporation,50 not a federal agency subject to the
    laws applicable to federal agencies, their employees, and third
    parties who deal with them.51
    ---------------------------------------------------------------------------
        \50\ The LSC replaced the Office of Legal Services by amending the
    Economic Opportunity Act of 1964 a major part of President Lyndon B.
    Johnson's ``War on Poverty.'' Legal Services Corp. Act, Pub. L. No. 93-
    355 Sec. 2 (1974). In doing so however, Congress created an office
    that, unlike the Office of Economic Opportunity, is independent of the
    Executive Branch. For example, by law the LSC budget is submitted
    directly to Congress. 42 U.S.C. Sec. 2996(d) (2001).
        \51\ Boehm, supra note 4, at 322.
    ---------------------------------------------------------------------------
        The LSC has not been reauthorized since 1980. In 1995, this
    Subcommittee held an extensive series of hearings on the
    reauthorization of the LSC.52 Following those
    hearings, the House Judiciary Committee reported legislation to
    the full House that would have replaced the LSC with a program
    of block grants administered by individual states.53
    This legislation was never voted on by the full House.
    ---------------------------------------------------------------------------
        \52\ Rauthorization of Legal Services Corporation: Hearings Before
    the Subcomm. on Commercial and Admin. Law of the House Comm. on the
    Judiciary, 104th Cong. (1995).
        \53\ The Legal Aid Act of 1995, H.R. 2277, 104th Cong. (1995); H.R.
    REP. NO. 104-255 (1995).
    ---------------------------------------------------------------------------
        Congress followed this effort in 1996 with the passage of
    the most sweeping reforms since 1974, enumerating restrictions
    on the types of cases LSC grantee attorneys could pursue. Under
    current restrictions, LSC grantees may not:
              (1) Engage in partisan litigation related to
            redistricting;
              (2) Attempt to influence regulatory, legislative, or
            adjudicative action at the federal, state, or local
            level;
              (3) Attempt to influence oversight proceedings of the
            LSC;
              (4) Initiate or participate in any class action suit;
              (5) Represent certain categories of aliens, except
            that non-federal funds may be used to represent aliens
            who have been victims of domestic violence or child
            abuse; 54
    ---------------------------------------------------------------------------
        \54\ In 1997, a narrow exception to the 1996 regulations was added
    to provide that, under certain conditions, non-LSC funds could be used
    for representation of undocumented aliens who are battered. Departments
    of Commerce, Justice, and State, the Judiciary and Related Agency
    Appropriations, 1998, Pub. L. 105-119 Sec. 502, 111 Stat. 2440-2510
    (1997).
    ---------------------------------------------------------------------------
              (6) Conduct advocacy training on a public policy
            issue or encourage political activities, strikes, or
            demonstrations;
              (7) Claim or collect attorney's fees;
              (8) Engage in litigation related to abortion;
              (9) Represent federal, state, or local prisoners;
              (10) Participate in efforts to reform a federal or
            state welfare system; 55
    ---------------------------------------------------------------------------
        \55\ On February 28, 2001, the U.S. Supreme Court held in the case
    of Legal Services Corp. v. Velazquez, 121 S. Ct. 1043 (2001), that an
    LSC funding restriction related to welfare reform violates the First
    Amendment rights of LSC grantees and their clients and is thereby
    unconstitutional. The Supreme Court agreed with the Second Circuit
    Court's ruling that, by prohibiting LSC-funded attorneys from
    litigating cases that challenge existing welfare statutes or
    regulations, Congress had improperly prohibited lawyers from presenting
    certain arguments to the courts, which had the effect of distorting the
    legal system and altering the traditional role of lawyers and advocates
    for their clients. Id. Although this statutory restriction was struck
    down, it is important to realize the Court implicitly approved the
    other congressional restrictions when it refused to hear arguments why
    all the restrictions should be overturned. See id.
    ---------------------------------------------------------------------------
              (11) Represent clients in eviction proceedings if
            they have been evicted from public housing because of
            their own illegal drug-related activities; or
              (12) Solicit representation of clients.

    Internal controls over the Corporation

        The legal authority regulating the LSC and its grantees,
    include the Legal Services Corporation Act of 1974, the
    congressional restrictions incorporated through the budget
    process since 1996, and the LSC regulations, which are
    promulgated by the LSC Board and published in the Federal
    Register. Since the LSC was not organized as a federal agency,
    LSC is subject only to those federal laws expressly enumerated
    by Congress as applicable to the LSC, including the Government
    in the Sunshine Act and the Freedom of Information
    Act.56
    ---------------------------------------------------------------------------
        \56\ Legal Services Corp. Act, Pub. L. No. 93-355 Sec. 1005(f) and
    (g) (1974).
    ---------------------------------------------------------------------------
        The LSC has two divisions intended to ensure LSC, its
    employees, and its grantees comply with all applicable laws and
    regulations, including the specific restrictions passed by
    Congress in 1996. Those divisions are the Office of Compliance
    and Enforcement (the ``OCE'') and the Office of Inspector
    General (the ``OIG''). If any other individual or entity
    discovers a violation of the LSC Act by an LSC grantee, there
    is no private right of action to enforce the Act.57
    Similarly, LSC employees and its grantees are not protected by
    the Whistleblower Protection Act for reporting waste, fraud, or
    abuse of federal laws or resources, nor are they protected from
    retaliation and discrimination for whistleblowing provided by
    the newly enacted Notification and Federal Anti-discrimination
    and Retaliation Act (``No FEAR'').58 Finally, any
    failure by the LSC, including its Board of Directors, to
    enforce congressional restrictions is not subject to judicial
    review.59
    ---------------------------------------------------------------------------
        \57\ Grassley v. Legal Services Corp., 535 F. Supp. 818 (S. D. Iowa
    1982).
        \58\ Notification and Federal Employee Antidiscrimination and
    Retaliation Act of 2002 (``No FEAR''), Pub. L. No. 107-174, 116 Stat.
    566 (2002). No FEAR is intended to fight discrimination and retaliation
    at federal agencies by forcing agencies that discriminate or retaliate
    pay the costs associated with their actions, rather than those costs
    being paid by the general federal judgment fund.
        \59\ Regional Mgmt. Corp. v. Legal Services Corp., 186 F.3d 457
    (4th Cir. 1999); see also Lindquist v. Bangor Mental Health Inst., 770
    A.2d 616, 619 (Me. 2001) (noting Congress' amendment to the LSC Act
    prohibiting courts from inquiring into client eligibility questions in
    individual cases); Milbourne v. Mid-Penn Consumer Disc. Co., 108 B.R.
    522, 544 (Bankr. E.D. Pa. 1989) (remarking that Motion to Disqualify
    debtor's legal services program counsel was misplaced). By reference to
    42 U.S.C. Sec. 2996e(b)(1)(B) (2002), the court observed that the only
    recourse for lender appeared to be through the administrative channels
    of LSC. Id.
    ---------------------------------------------------------------------------
        LSC's oversight responsibilities with respect to its
    grantees include establishing guidelines so grantees will
    properly determine the eligibility of clients on the basis of
    certain specified factors,60 and ensuring grants and
    contracts provide the most economical and effective delivery of
    legal assistance to persons in both urban and rural
    areas.61 In addition, LSC's enabling legislation
    mandates various restrictions with respect to the activities of
    grantees; 62 namely proscriptions against engaging
    in certain types of litigation 63 and prohibitions
    against engaging in specified lobbying activities.64
    ---------------------------------------------------------------------------
        \60\ These include:
    ---------------------------------------------------------------------------

              (i) the liquid assets and income level of the client,
              (ii) the fixed debts, medical expenses, and other factors
            which affect the client's ability to pay,
              (iii) the cost of living in the locality, and
              (iv) such other factors as relate to financial inability to
            afford legal assistance, which may include evidence of a prior
            determination that such individual's lack of income results
            from refusal or unwillingness, without good cause, to seek or
            accept an employment situation.
    42 U.S.C. Sec. 2996f(a)(2)(B) (2001).
    ---------------------------------------------------------------------------
        \61\ 42 U.S.C. Sec. 2996f(a)(3) (2001).
        \62\ These restrictions include restrictions against lobbying,
    political activities, class actions, except under certain restrictions,
    and cases involving abortion, school desegregation, and draft
    registration or desertion from the military. 42 U.S.C.
    Sec. Sec. 2996f(b)(8)-(10) (2001).
        \63\ See e.g., 42 U.S.C. Sec. 2996e(d)(5) (2001) (restrictions on
    representation of class actions).
        \64\ See e.g., 42 U.S.C. Sec. 2996e(c)(2) (2001).
    ---------------------------------------------------------------------------
        The LSC's Inspector General (``IG'') is subject to the
    Inspector General Act of 1978,65 which requires the
    LSC IG to report to the President of LSC, and in turn, the
    President should then report to Congress, whenever the IG
    becomes aware of particularly serious or flagrant problems,
    abuses, or deficiencies relating to the administration of
    programs and operations of such establishment.
    ---------------------------------------------------------------------------
        \65\ Inspector General Act of 1978, 5 U.S.C. app. 3 Sec. 8G(a)(2).
    ---------------------------------------------------------------------------

    Oversight hearing of the Legal Services Corporation

        On February 28, 2002, the Subcommittee held an oversight
    hearing in an effort to examine compliance by Legal Services
    grantees with the congressionally mandated restrictions and the
    Board of Directors' role in the monitoring the activities of
    the Corporation and its grantees.
        The witnesses who testified at the oversight hearing were
    the following: the Honorable Edwin Meese III, Chairman, Center
    for Legal and Judicial Studies, Heritage Foundation; the
    Honorable John M. Erlenborn, President, Legal Services
    Corporation; Kenneth F. Boehm, Chairman, National Legal and
    Policy Center; and L. Jonathan Ross, Chairman, Standing
    Committee on Legal Aid and Indigent Defendants, American Bar
    Association.
        Testimony was received to address the following questions:
        (1) Has an effective system of competition been implemented
    by the LSC, as directed by Congress in 1996, resulting in the
    promotion of competition among potential grant recipients to
    deliver the best service, at the best price, to the truly
    needy?
        The 1996 congressional reforms specifically changed the Act
    to require LSC grantees to compete for their
    grants.66 This reform was passed in response to
    critics of LSC who charged that LSC grantee attorneys produced
    substandard work, engaged in controversial litigation, received
    their LSC funding regardless of work quality, and that renewal
    of grant funding had become, in essence, an entitlement. The
    LSC Board of Directors then promulgated regulations
    implementing a system of competition,67 as required
    by the 1996 law.68 The hearing and follow-up
    questions explored the competition mandate. The Subcommittee
    remained concerned about the implementation of the mandate and,
    on May 7, 2002, requested the GAO explore the issue further.
    ---------------------------------------------------------------------------
        \66\ Sec. 503 of Pub. L. 104-134 states:
    ---------------------------------------------------------------------------

              (a)(1) Not later than April 1, 1996, the Legal Services
            Corporation shall implement a system of competitive awards of
            grants and contracts for all basic field programs.
              (f) No person or entity that was previously awarded a grant
            or contract by the Legal Services Corporation for the provision
            of legal assistance may be given any preference in the
            competitive selection process.
    ---------------------------------------------------------------------------
        \67\ 45 C.F.R. Sec. 1634 (2001).
        \68\ Omnibus Consolidated Rescissions and Appropriations Act, Pub.
    L. No. 104-134, Stat. 1321-50 (1996).
    ---------------------------------------------------------------------------
        (2) What has been the role of the Board of Directors in
    working towards a solution for American farmers, plagued by
    frivolous and expensive lawsuits by the migrant and seasonal
    worker community? In addition, The Erlenborn Commission Report,
    essentially allows LSC lawyers to represent any alien who has
    ever worked in the U.S. at any time. What is the implementing
    regulation resulting from the findings of the Commission?
        Extensive questioning about the findings of the Erlenborn
    Commission occurred at the hearing but without a satisfactory
    resolution to the issue. In addition to a series of follow up
    records questions sent to the Corporation, Subcommittee counsel
    attended a negotiated rulemaking session of 45 C.F.R.
    Sec. 1626, involving representation of undocumented aliens by
    LSC-funded attorneys. The Subcommittee's concerns about the
    findings of the Erlenborn Commission remain and the negotiated
    rulemaking process and final rule will be closely monitored
    during the 108th Congress.
        (3) Is there a renewed or continuing effort by LSC grantees
    to set up ``mirror corporations'' to handle restricted cases,
    in violation of the ``physically and financially separate''
    requirement of the federal regulations?
        In the 1980s the LSC grantees sought to evade the 1974
    statutory restrictions, by setting up closely affiliated but
    not legally distinct entities. Typically, the legal services
    group would provide a subgrant to another group, that would
    then engage in the restricted activities. 69 This
    strategy was commonly referred to as setting up ``mirror
    corporations.'' 70 However, this strategy was not
    available in the 1990's because LSC interpreted its regulations
    to require subgrantees to comply with LSC restrictions imposed
    by Congress.71
    ---------------------------------------------------------------------------
        \69\ Id.
        \70\ Id.
        \71\ Id.
    ---------------------------------------------------------------------------
        The Subcommittee was concerned about evidence that new
    similar strategies had been developed to circumvent the
    restrictions. The hearing and the Subcommittee follow-up
    questions included extensive questioning in this area, which
    remains an area of concern to the Subcommittee.
        (4) How accurate are the case reporting statistics the LSC
    is currently reporting to Congress since a 1999 GAO report
    critical of LSC case reporting?
        Prior to 1998, critics contend, inadequate recordkeeping
    requirements precluded effectively auditing LSC grantee's files
    to determine if the cases they were handling were both (1)
    client eligible, as required by the LSC Act, and (2) cases
    violating the restrictions. Congress added a provision to the
    1998 appropriations bill, requiring basic information be
    recorded by grantees.72 LSC grantees are now
    required by statute to keep records of each case they handle
    with the following information: name and full address of each
    party to the action, cause of action, and name and address of
    the court and the assigned case number. On March 7, 2002, the
    Subcommittee requested the GAO conduct a formal follow-up
    review of their 1999 findings in this area.
    ---------------------------------------------------------------------------
        \72\ Sec. 505(b) of Pub. L. No. 105-119, 110 Stat. 2440-2510.
    ---------------------------------------------------------------------------

    First request to the GAO to complete a study concerning the LSC

        In September 1999, the General Accounting Office issued a
    report to Congress entitled ``LegalServices Corporation: More
    Needs To Be Done To Correct Case Service Reporting Problems.'' This
    report resulted from a May 1999 request from several Members of
    Congress that GAO review the accuracy of LSC's case handling statistics
    for Fiscal Year (FY) 1997. The 1999 congressional request to GAO for
    this report resulted from significantly inaccurate and inflated annual,
    nation-wide case handling statistics, which were reported to Congress
    in 1997 incorrectly indicating the LSC's grantees served 1.9 million
    clients. In the report, the GAO concluded ``we do not believe that
    LSC's efforts to date have been sufficient to resolve the case
    reporting problems that occurred in 1997.'' In addition, the GAO made
    seven specific recommendations to the President of the Legal Services
    Corporation in order to resolve the problems.
        LSC President Erlenborn testified that the error rate in FY
    1999 had dropped to 11 percent, and, even more dramatically in
    FY 2000, to five percent. These figures were derived from
    audits by LSC's staff in conjunction with self-inspection by
    the grantees. Mr. Erlenborn further stated to the Subcommittee
    that ``all of those things that the GAO recommended the
    Corporation do to get accurate figures, we have accomplished.''
    In light of GAO's earlier work on this subject, the
    Subcommittee requested that GAO prepare a report on the
    following areas:
              (1) LSC's response to GAO's 1999 report;
              (2) LSC's implementation of GAO's recommendations;
              (3) The practical outcome of the alleged changes by
            the LSC, in terms of accuracy and error rates in FYs
            1999, 2000 and 2001;
              (4) The accuracy of recent case reporting to
            Congress; and
              (5) Problems with GAO or OIG access to records since
            1999.
        The report will also include GAO's further recommendations
    for improving case reporting accuracy and provide notification
    to Congress of any other problems or issues which arise during
    the course of the investigation.

    Development of additional information post-hearing

        On April 5, 2002, Subcommittee Chairman Bob Barr and Vice-
    Chairman Jeff Flake sent an extensive twenty-one page follow up
    letter to LSC President John Erlenborn. The questions pertained
    to the following areas:
              (1) The Erlenborn Commission;
              (2) The LSC Inspector General's Office and Its
            Functions;
              (3) Access to Records;
              (4) Lobbying by LSC Grantees;
              (5) LSC Regulations, including Alien Representation
            and Financial Eligibility;
              (6) Program Integrity and Mirror Corporations;
              (7) State Planning and Reconfiguration of LSC State
            Programs;
              (8) Competition for LSC Funds;
              (9) Case Overcounting;
              (10) Litigation against the LSC; and
              (11) Class Action Lawsuits.
        On April 5 and 6, 2002, Subcommittee counsel attended the
    LSC Board meeting held in Washington, D.C. The Board's agenda
    included Board consideration and action on a new policy
    defining audit compliance by LSC grantees to case file records,
    described in a policy document titled ``LSC's Access
    Protocol.'' At the last minute, the new Access to Records
    Protocol was stricken from the agenda and instead issued by
    Presidential directive the week following the Board meeting.
    Elimination of Board consideration thwarted any public
    discussion and a recorded transcript of the proceedings.
        After the issuance of the ``Access Protocol,'' Subcommittee
    staff requested meetings with LSC staff. The first meeting took
    place on April 23, 2002 with the LSC `s President, General
    Counsel, and Director of Congressional Affairs to discuss the
    newly issued Access Protocol. At that meeting, LSC staff was
    questioned about its records retention policy and possible
    shredding of documents. The Corporation could not provide the
    Subcommittee with the records retention policy but indicated
    that all documents would be retained.
        The next meeting was held on April 30, 2002 with LSC's IG
    and General Counsel. During this meeting, the Subcommittee
    received information about auditors who could not gain access
    to case file records. Upon examination of the additional
    information received by the Subcommittee, a second request was
    made to the GAO for a study of the LSC. The scope of GAO's
    investigation of the LSC was expanded and is to address the
    following specific areas:
        (1) Has the Legal Services Corporation process and practice
    of conducting State Planning, resulted in the use of LSC funds
    to support work for persons who are restricted from receiving
    assistance by LSC programs? If so, to what extent have LSC
    resources been used to support restricted activities?
        (2) Has the Legal Services Corporation required its
    programs/grantees to coordinate and work with non-LSC programs
    conducting prohibited work, as part of the creation of State
    Justice Communities? If so, has such coordinated work utilized
    federally funded Corporation or LSC grantee staff time, or any
    other federal resources?
        (3) Have LSC funds been used, in any way, to establish and
    support services forpersons, or groups of persons, who are
    prohibited by statute from receiving federal funds?
        (4) Has the creation of larger program service areas, and
    many statewide service areas, resulted in anti-competitive
    conditions?
        (5) Has the creation of ``State Justice Communities''
    resulted in discouraging competition for grants instead of
    encouraging competition?
        (6) Since the congressional mandate for competition was
    prescribed by Congress in 1996, has competition occurred? If
    not, what does GAO recommend for promoting competition for
    federal grants?
        In addition to reporting to the Subcommittee on prior
    access issues, the GAO is expected to analyze how the recently
    issued policy will affect future access to records requests
    from the grantees/programs.

    Oversight hearing on litigation relating to the Rails-to-Trails Program

        On June 20, 2002, the Subcommittee held an oversight
    hearing entitled ``Litigation and its effect on the Rails-to-
    Trails Program.'' Testimony was received from the following
    witnesses: Thomas L. Sansonetti, Assistant Attorney General,
    Environment and Resources Division, U.S. Department of Justice;
    Nels Ackerson, Chairman, The Ackerson Group, Chartered; Andrea
    Ferster, General Counsel, Rails-to-Trails Conservancy; and Tom
    Murphy, Mayor, the City of Pittsburgh.
        The hearing examined the effect of the 1983 Amendments
    73 to the National Trails System Act
    (NTSA),74 more commonly known as the ``Rails-to-
    Trails'' program. The program permitted the conversion of land
    from abandoned railroad tracks, previously conveyed to the
    federal government for railroad use, into recreational trails.
    The Subcommittee was concerned that the transfer of land
    created by the 1983 Amendments has created significant
    litigation involving the Environment and Natural Resources
    Division (ENRD) of the Department of Justice (DOJ), due to the
    large number of landowners who are asserting Fifth Amendment
    takings claims against the federal government for the
    conversion of their reversionary interests in the railroad
    easements without compensation.
    ---------------------------------------------------------------------------
        \73\ Pub.L. No. 98-11, Title II, Sec. 208 (March 28, 1983), 97
    Stat. 48.
        \74\ 16 U.S.C. Sec. 1241-1251 (2000).
    ---------------------------------------------------------------------------
        The Subcommittee was also concerned with the potential
    budget impact of substantial awards to the plaintiffs in such
    litigation that the Congressional Budget Office (CBO) did not
    contemplate in its original cost estimate of zero federal
    dollars for the program. In one case alone, Presault v. U.S.,
    75 compensation and attorneys' fees amounted to more
    than $1.4 million. Recent DOJ statistics indicate there are 19
    such cases pending in the ENRD, a figure which includes over
    5,000 plaintiffs. The potential explosion of litigation could
    require Congress to consider a significant allocation of
    federal resources, including both staff and judgement costs, to
    the ENRD to address the effects of the program.
    ---------------------------------------------------------------------------
        \75\ Presault v. U.S., 100 F.3d 1525 (1996).
    ---------------------------------------------------------------------------
        The hearing examined whether landowners, whose property
    rights have been affected by the rails-to-trails conversions,
    have been fairly compensated by the federal government. The
    hearing did not dispute benefits of this program, but rather
    focused on whether landowners have a legitimate claim against
    the federal government for a Fifth Amendment taking. In
    addition, the hearing examined the process whereby the
    government, through the ENRD of the DOJ, handles this type of
    litigation with landowners.
        The hearing also explored the role of the complex and
    expensive litigation in delaying payment to landowners and the
    possibility that future litigation could involve filings by
    large classes of plaintiffs. Finally, possible legislative and
    administrative remedies to address the costly complex
    litigation were explored.

    Federal legislation

        In 1922, Congress passed 43 U.S.C. Sec. 912, providing some
    guidance on how federally granted rights-of-way should be
    handled upon abandonment for railroad purposes. Until that
    time, the common law for the disposition of the right-of-ways
    after abandonment was the abutting property owner, whether the
    government or the successor in title to the government,
    received the right-of-way free and clear. The new federal
    statute asserted if the right-of-way was within the boundary
    limits of a municipality, then the right-of-way went to the
    municipality free and clear, otherwise it went to the abutting
    property owner.
        Although the National Trails Systems Act was originally
    enacted in 1968,76 the Rails-to-Trails Program was
    not created until 1983 when Congress amended section 8(d) of
    the NTSA.77 This so-called ``rails-to-trails''
    statute provides that a railroad that ceases operations along a
    particular route may negotiate with a State, municipality, or
    private group prepared to assume financial and managerial
    responsibility for the right-of-way.
    ---------------------------------------------------------------------------
        \76\ The National Trails System Act of 1968 was intended by the
    Congress to be a generic measure through which the outdoor recreation
    opportunities of America could be expended by the development of a
    nationwide program to establish and maintain trails of various kinds.
    H.R. Rep. No. 98-28, at 1 (1983).
        \77\ 16 U.S.C. Sec. 1247(d)(2000).
    ---------------------------------------------------------------------------
        If the parties reach agreement, the land may, subject to
    Interstate Commerce Commission (ICC) 78 terms and
    conditions, be transferred to the trail operator for interim
    trail use notwithstanding whatever reversionary interests may
    exist in the property under state law. An important source of
    the current problem can be found in the legislative history of
    the Senate Committee on Energy and Natural Resources, which
    states: ``[T]he key finding of this amendment is that interim
    use of a railroad right-of-way for trail use, when the route
    itself remains intact for future railroad purposes, shall not
    constitute an abandonment.'' 79 Further language in
    the Senate Committee Report finds ``(t)his provision will
    protect railroad interests by providing that the right-of-way
    can be maintained for future railroad use even though service
    is discontinued and tracks removed, and by protecting the
    railroad interests from any liability or responsibility in the
    interim period.'' 80 This language has led the DOJ
    to contend the railroad land is never abandoned and is always
    waiting further use and therefore, there is no reversionary
    property interest and no compensable taking.
    ---------------------------------------------------------------------------
        \78\ The ICC was succeeded by the Surface Transportation Board
    (STB) as the body responsible for issuance of Certificates of Interim
    Trail Use (CITU). The CITU allows the interested party to begin the
    process of conversion of the rail to a trail.
        \79\ S. Rep. No. 98-1, at 9 (1983).
        \80\ Id at 10.
    ---------------------------------------------------------------------------
        Notwithstanding this position, the U.S. Court of Appeals
    for the Federal Circuit, in an en banc decision, found that a
    taking had occurred in the 1996 case Presault v.
    U.S.,81 relying on state court determinations that
    the interest conveyed by the property owner was an easement and
    that conversion to the non-railroad use entitled the previous
    landowner to assert a reversionary interest. The Court held the
    reversionary property owner is entitled to just compensation
    from the federal government for a Fifth Amendment
    taking.82 The Court found such takings are properly
    classified as physical takings, and not the rather complicated
    regulatory takings, and therefore, just compensation is due to
    the landowner from the U.S. government. In practical terms,
    this stage of litigation is also extremely complicated since
    land appraisals and determinations of the types of interest
    originally conveyed must be made on a case-by-case basis.
    ---------------------------------------------------------------------------
        \81\ Presault v. U.S., 100 F. 3d 1525 (1996).
        \82\ Id.
    ---------------------------------------------------------------------------

    Hearing on administrative and procedural aspects of the Federal Reserve
            Board/Department of the Treasury proposed rule concerning
            competition in the real estate brokerage and management markets

        The Gramm-Leach-Bliley Act 83 (GLBA) was enacted
    into law in 1999 and became effective a year later. Its purpose
    was to deregulate financial institutions and expand the
    permissible range of activities in which they could offer
    services. GLBA permitted banks, insurance companies, and
    securities firms to not only interact with one another, but to
    offer a range of previously prohibited financial services. Many
    of its supporters believed that ``by tearing down the legal
    barriers between commercial banking, investment banking, and
    insurance, [GLBA] would lead to dramatic new efficiencies, the
    rise of huge financial conglomerates, exciting new financial
    products and substantial savings to consumers.'' 84
    In relevant part, the measure allows ``'financial holding
    companies'' to engage in any activity that is financial in
    nature or incidental to such financial activity * * * [or is]
    complementary to a financial activity and does not pose a
    substantial risk to the safety or soundness of depository
    institutions or the financial system generally.'' 85
    The ambiguity of this section has produced considerable
    uncertainty.
    ---------------------------------------------------------------------------
        \83\ Pub. L. No. 106-102, 113 Stat. 1338 (1999) (codified in
    scattered sections of 12, 15, 16, 18 U.S.C.).
        \84\ The Federal Reserve Bank of St. Louis, One Year After Gramm-
    Leach-Bliley: Are We Modern Yet? (2001), available at: http: //
    www.stls.frb.org/publications/cb/2001/a/pages/p3-article.html (last
    visited Apr. 26, 2002).
        \85\ Gramm-Leach-Bliley Act, 12 U.S.C. Sec. 1843(k)(i) (2000).
    ---------------------------------------------------------------------------
        On January 3, 2001, the Federal Reserve Board and Treasury
    Department noticed for public comment a proposed rule that
    would enable commercial banks to compete in the real estate
    brokerage and management markets.86 If finalized,
    the proposed rule would have the effect of transforming the
    definition of ``financial activity'' to include a range of
    services heretofore considered ``commercial'' in nature. This
    departure from existing policy, which was not articulated in
    the text or legislative history of GLBA, would permit
    Federally-chartered banks, subsidiaries and financial services
    to enter the real estate brokerage and management market; an
    arena long reserved under State law to realtors and other
    ``commercial'' businesses.
    ---------------------------------------------------------------------------
        \86\ Bank Holding Companies and Change in Bank Control, 66 Fed.
    Reg. 307-14 (proposed Jan. 3, 2001) (to be codified at 12 C.F.R. pt.
    225).
    ---------------------------------------------------------------------------
        Financial services organizations such as the American
    Bankers Association, the Financial Services Roundtable, and the
    New York Clearing House Association were the most vocal
    supporters of expanding the definition of ``financial
    activity'' to include real estate brokerage and management.
    Proponents contend that large commercial banks will be able to
    offer a range of services to potential homebuyers, which will
    spur competition by creating complementary financial/brokerage
    services by these financial institutions. Those who favor the
    proposed rule further contend that consumer protections will
    not suffer if this rule is finalized. Finally, proponents
    insist that Congress completely delegated its authority to
    determine what institutions are financial in nature under the
    GLBA.87
    ---------------------------------------------------------------------------
        \87\ See American Bankers Association, Banks and Real Estate
    Brokerage Dispelling the Misrepresentations of the Real Estate
    Industry, http://www.aba.com/Press+Room/brokerage 050101.htm (last
    visited Apr. 30, 2002).
    ---------------------------------------------------------------------------
        The National Association of Realtors (NAR) has become the
    most vocal opponent of the proposed rule. NAR, which counts
    over 900,000 realtors among its membership, asserts the
    proposed rule is inconsistent with existing law, violates the
    Administrative Procedure Act, and would further hasten
    consolidation in the financial industry and stifle competition
    in this market. Currently, several thousand real estate
    brokerage and management firms compete in this market, and NAR
    contends they would be replaced by large commercial banks with
    access to low interest Federal Reserve prime lending
    rates.88 Opponents also contend real estate
    brokerage and management are historically and fundamentally
    commercial in character. They assert real estate brokerage is
    not incident to banking, but that banking is incident to real
    estate brokerage, and that the proposed rule violates this
    widely-accepted precept.
    ---------------------------------------------------------------------------
        \88\ See Steve Cook, NAR Letters Argue Against Proposed Rule to
    Allow Banks Into Real Estate (May 1, 2001), available at: http://
    nar.realtor.com/news/2001REleases/May/56.htm; Steve Cook, NAR President
    Testifies Against Bankers Entering Real Estate (May 2, 2001).
    ---------------------------------------------------------------------------
        While H.R. 3424, the ``Community Choice in Real Estate
    Act,'' was introduced during the 107th Congress to reverse this
    proposal, the rule raises a number of administrative law
    questions concerning the process by which it was proposed. For
    example, was the rule proposed in compliance with congressional
    statutes pertaining to the regulatory process? Was the proposed
    rule consistent with the agencies' organic statutes and the
    implementing legislation upon which it was predicated? Did the
    proposed rule implicate the ``nondelegation doctrine,'' which
    limits congressional authority to delegate legislative power to
    agencies? Have agencies provided proper deference to
    congressional intent?
        On May 16, 2002, the Subcommittee conducted a hearing to
    help answer these questions and to consider the possibility of
    subsequent legislative remedies to ensure agency compliance
    with congressional intent. The following witnesses testified at
    the hearing: Sheila Bair, Assistant Secretary, United States
    Department of Treasury; Martin Edwards, Jr., President of NAR;
    and Mr. Edward Yingling, Executive Director, American Bankers
    Association. At the hearing, Secretary Bair defended the legal
    validity of the proposed rule. She testified that GLBA provided
    the regulatory agencies (Department of Treasury and Federal
    Reserve Board) with broad authority to define activities
    commercial activities. Secretary Bair also repeatedly stressed
    that the rule in question was a proposal, rather than a
    finalized regulation. Mr. Yingling also defended the validity
    of the proposed rule. However, Martin Edwards challenged the
    legal validity of the rule, citing what he considered to be
    grave administrative and procedural defects associated with its
    formulation and notice. A number of detailed questions were
    submitted to witnesses following the hearing. Their responses
    to these questions became a part of the formal hearing record.

      SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY \1\

      HOWARD COBLE, North Carolina,
                 Chairman

    HOWARD L. BERMAN, California         HENRY J. HYDE, Illinois
    JOHN CONYERS, Jr., Michigan          ELTON GALLEGLY, California
    RICK BOUCHER, Virginia               BOB GOODLATTE, Virginia, Vice
    ZOE LOFGREN, California              Chair
    WILLIAM D. DELAHUNT, Massachusetts   WILLIAM L. JENKINS, Tennessee
    ROBERT WEXLER, Florida               ASA HUTCHINSON, Arkansas \4\
    MAXINE WATERS, California            CHRIS CANNON, Utah
    MARTIN T. MEEHAN, Massachusetts      LINDSEY O. GRAHAM, South Carolina
    STEVEN R. ROTHMAN, New Jersey \2\    SPENCER BACHUS, Alabama
    TAMMY BALDWIN, Wisconsin             JOE SCARBOROUGH, Florida \5\
    ANTHONY D. WEINER, New York \3\      JOHN N. HOSTETLER, Indiana
                                         RIC KELLER, Florida
                                         DARRELL E. ISSA, California \6\
                                         MELISSA A. HART, Pennsylvania \6\

    ----------
    \1\ Subcommittee chairmanship and assignments approved January 31,
    2001.
    \2\ Steven R. Rothman, New Jersey, resigned from the Committee
    effective February 7, 2001.
    \3\ Anthony D. Weiner, New York, reassignment from the Subcommittee on
    Crime to the Subcommittee on Courts, the Internet, and Intellectual
    Property approved May 23, 2001.
    \4\ Asa Hutchinson, Arkansas, resigned from the House effective
    midnight August 6, 2001.
    \5\ Joe Scarborough, Florida, resigned from the House effective
    September 6, 2001.
    \6\ Darrell E. Issa, California, and Melissa A. Hart, Pennsylvania,
    assignments to the subcommittee approved November 15, 2001.

    Tabulation of subcommittee legislation and activity

    Public:
        Legislation referred to the Subcommittee......................    64
        Legislation on which hearings were held.......................     4
        Legislation reported favorably to the full Committee..........     6
        Legislation reported adversely to the full Committee..........     0
        Legislation reported without recommendation to the full
          Committee...................................................     0
        Legislation reported as original measure to the full Committee     0
        Legislation discharged from the Subcommittee..................     2
        Legislation pending before the full Committee.................     0
        Legislation reported to the House.............................    11
        Legislation discharged from the Committee.....................     1
        Legislation pending in the House..............................     0
        Legislation passed by the House...............................    12
        Legislation pending in the Senate.............................     1
        Legislation vetoed by the President (not overridden)..........     0
        Legislation enacted into Public Law...........................     3
        Legislation enacted into Public Law as part of other
          legislation.................................................    11
        Days of legislative hearings..................................     4
        Days of oversight hearings....................................    22
    Private:
        Legislation referred to the Subcommittee......................     1
        Legislation on which hearings were held.......................     0
        Legislation reported favorably to the full Committee..........     0
        Legislation discharged from the Subcommittee..................     0
        Legislation pending before the full Committee.................     0
        Legislation reported to the House.............................     0
        Legislation discharged from the Committee.....................     0
        Legislation pending in the House..............................     0
        Legislation passed by the House...............................     0
        Legislation pending in the Senate.............................     0
        Legislation enacted into Private Law..........................     0

                        Jurisdiction of the Subcommittee

        The Subcommittee has legislative and oversight
    responsibility for (1) the intellectual property laws of the
    United States (including authorizing jurisdiction over the
    Patent and Trademark Office of the Department of Commerce and
    the Copyright Office of the Library of Congress); and (2)
    Article III Federal courts (including authorizing jurisdiction
    over the Administrative Office of the United States Courts, the
    Judicial Conference of the United States, and the Federal
    Judicial Center); the Federal Rules of Evidence and Civil and
    Appellate Procedure; and judicial discipline and misconduct.

                             Legislative Activities

                                     COURTS

    H.R. 1203, Ninth Circuit Court of Appeals Reorganization Act of 2001

        Summary.--Introduced by Representative Michael K. Simpson,
    H.R. 1203 amends chapter 3 of title 28, United States Code, to
    divide the Ninth Judicial Circuit of the United States into two
    circuits. On July 23, 2002, the Subcommittee held a hearing on
    H.R. 1203. Testimony was received from the following witnesses:
    The Honorable Mary M. Schroeder, Chief Judge, U.S. Court of
    Appeals for the Ninth Circuit; The Honorable Alan G. Lance,
    Attorney General, State of Idaho; The Honorable Diarmuid F.
    O'Scannlain, Judge, U.S. Court of Appeals for the Ninth
    Circuit; and the Honorable Sidney R. Thomas, Judge, U.S. Court
    of Appeals for the Ninth Circuit. No further action was taken
    on the bill.

    H.R. 2048, to require a report on the operations of the State Justice
            Institute (Pub. L. No. 107-179)

        Summary.--Introduced by Representative Howard Coble, H.R.
    2048 requires the Attorney General, in consultation with the
    State Justice Institute (SJI, ``the Institute''), to submit a
    report to the House and Senate Committees on the Judiciary
    regarding the effectiveness of the Institute in fulfilling its
    missions, which include providing funds to improve the quality
    of justice in state courts, facilitating enhanced coordination
    between state and federal courts, and developing solutions to
    common problems faced by all courts. The report would be done
    in consultation with SJI, and would be due not later than
    October 1, 2002.
        Legislative History.--On July 16, 2001, the Subcommittee
    was discharged from further consideration of H.R. 2048. On July
    24, 2001, the Committee met in open session and ordered
    favorably reported H.R. 2048, without amendment, by voice vote.
    HR. 2048 was reported by the Committee to the House on August
    2, 2001 (H. Rept. 107-189). On September 5, 2001, the House
    passed H.R. 2048 under suspension of the rules, by voice vote.
    On December 13, 2001, H.R. 2048 was reported favorably to the
    Senate by Senator Leahy. On May 20, 2002, the President signed
    H.R. 2048 and it is Public Law 107-179.

    H.R. 2336, to make permanent the authority to redact financial
            disclosure statements of judicial employees and judicial
            officers (Pub. L. No. 107-126)

        Summary.--Introduced by Representative Howard Coble, H.R.
    2336 extends for 4 years, through December 31, 2005, the
    authority of the Judicial Conference of the United States to
    redact financial disclosure statements of judicial employees
    and judicial officers where the release of the information
    could endanger the filer or his or her family.
        Legislative History.--On October 2, 2001, the Subcommittee
    was discharged from further consideration of H.R. 2336. On
    October 3, 2001, the Committee met in open session and ordered
    favorably reported H.R. 2336 without amendment by voice vote.
    H.R. 2336 was reported by the Committee to the House on October
    12, 2001 (H. Rept. 107-239). On October 16, 2001, the House
    passed H.R. 2336 under suspension of the rules, by voice vote.
    On December 7, 2001, H.R. 2336 was reported favorably to the
    Senate by Senator Lieberman (S. Rept. 107-111). The Senate
    passed H.R. 2336, amended, on December 11, 2001. On December
    20, 2001, the House agreed to the Senate amendments under
    suspension of the rules. The President signed H.R. 2336 on
    January 16, 2002, and it is Public Law 107-126.

    H.R. 2522, Federal Courts Improvement Act of 2001

        Summary.--Introduced by Representative Howard Coble, by
    request, H.R. 2522 contains several provisions that are needed
    to improve the Federal Court System. The bill affects a wide
    range of judicial branch programs and operations. It addresses
    judicial financial administration, judicial process
    improvements, judiciary personnel administration, and benefits
    and protections.
        Legislative History.--On July 26, 2001, the Subcommittee
    held a hearing on H.R. 2522. Testimony was received from the
    Honorable Deanell R. Tacha, Chief Judge, United States Court of
    Appeals for the Tenth Circuit. Nearly all of the provisions in
    H.R. 2522 were later incorporated into H.R. 4125, the ``Federal
    Courts Improvement Act of 2002.''

    H.R. 3892, Judicial Improvements Act of 2002

        Summary.--Introduced by Representative Howard Coble, H.R.
    3892 reorganizes and clarifies the existing statutory mechanism
    that allows individuals to file complaints against Article III
    judges. These reforms will offer more guidance to circuit chief
    judges when evaluating individual complaints, while providing
    individuals with more insight as to the disposition of their
    cases. The overall reorganization will make the process of
    learning about and filing a complaint more user-friendly.
        Legislative History.--The Subcommittee conducted an
    oversight hearing on judicial misconduct on November 29, 2001.
    Testimony was received from the following witnesses: The
    Honorable William L. Osteen, U.S. District Judge for the Middle
    District of North Carolina; Professor Arthur D. Hellman,
    Professor of Law, University of Pittsburgh School of Law;
    Michael J. Remington, Partner, Drinker Biddle & Reath LLP; and
    Douglas T. Kendall, Executive Director, Community Rights
    Counsel. On March 20, 2002, the Subcommittee met in open
    session and ordered favorably reported H.R. 3892, amended, by
    voice vote. On April 24, 2002, the Committee met in open
    session and ordered favorably reported the bill H.R. 3892, as
    amended, by voice vote. H.R. 3892 was reported by the Committee
    to the House on May 14, 2002 (H. Rept. 107-459). On July 22,
    2002, the House passed H.R. 3892, as amended, under suspension
    of the rules, by voice vote. H.R. 3892 was reported favorably
    to the Senate, amended, by Senator Leahy on July 31, 2002. The
    provisions of H.R. 3892 were later incorporated into H.R. 2215,
    the ``21st Century Department of Justice Appropriations
    Authorization Act,'' which is Public Law 107-273.

    H.R. 4125, Federal Courts Improvement Act of 2002

        Summary.--Introduced by Representative Howard Coble, H.R.
    4125 contains several provisions that are needed to improve the
    Federal Court System. The bill affects a wide range of judicial
    branch programs and operations. It addresses judicial financial
    administration, judicial process improvements, judiciary
    personnel administration, and benefits and protections.
        Legislative History.--On May 2, 2002, the Subcommittee met
    in open session and ordered favorably reported H.R. 4125,
    amended, by voice vote. On September 10, 2002, the Committee
    met in open session and ordered favorably reported H.R. 4125,
    as amended, with additional Full Committee amendments by voice
    vote. H.R. 4125 was reported by the Committee to the House on
    September 30, 2002 (H. Rept. 107-700). On October 1, 2002, the
    House passed H.R. 4125, as amended, under suspension of the
    rules by a recorded vote of 370 yeas and 21 nays. No further
    action was taken on the bill.

                             INTELLECTUAL PROPERTY

    Copyrights

    H.J. Res. 116, Consumer Technology Bill of Rights

        Introduced by Representative Christopher Cox, H.J. Res. 116
    recognizes the rights of consumers to use copyright protected
    works. No action was taken on the resolution.

    H.R. 614, Copyright Technical Corrections Act of 2001

        Introduced by Representative Howard Coble, H.R. 614 amends
    title 17, United States Code, to make technical corrections.
    The provisions of H.R. 614 were later incorporated into S. 320.

    H.R. 615, Intellectual Property Technical Amendments Act of 2001

        Introduced by Representative Howard Coble, H.R. 615 makes
    technical corrections in the patent, copyright, and trademark
    laws. The provisions of H.R. 615 were later incorporated into
    S. 320.

    H.R. 2724, Music Online Competition Act of 2001

        Introduced by Representative Chris Cannon, H.R. 2724: (1)
    expands the current exemption from license fees for in-store
    sampling of sound recordings by ``brick and Mortar'' music
    retailers to include online sampling; (2) expands the current
    exemption from copyright fees for broadcasters' ``server'' or
    ephemeral copies to also exempt the multiple server copies
    webcasters use to accommodate different bit rates, formats, and
    caching; (3) provides for direct payment to artists of receipts
    from statutory licensing of sound recordings; (4) amends the
    Copyright Act to address the difficulties digital media
    companies have experienced in attempting to use the statutory
    license by instructing the Copyright Office to implement an
    electronic filing system and collect the fees; and (5) exempts
    the copying of sound recordings and works included in sound
    recordings that is incidental to the operation of a device in
    the course of lawful use of the work and permits the owners of
    lawfully acquired digital phonorecord deliveries to make an
    archival copy. No action was taken on the bill.

    H.R. 5057, Intellectual Property Protection Act of 2002

        Introduced by Representative Lamar Smith, H.R. 5057 amends
    the Federal criminal code to prohibit trafficking in a physical
    authentication feature that: (1) is genuine but has been
    tampered with or altered without the authorization of the
    copyright owner to induce a third party to reproduce or accept
    distribution of a phono-record, a copy of a computer program, a
    copy of a motion picture or other audiovisual work, or
    documentation or packaging, where such reproduction or
    distribution violates the rights of the copyright owner; (2) is
    genuine but has been or is intended to be distributed without
    the authorization of the copyright owner and not in connection
    with the lawfully made copy or phono-record to which it was
    intended to be affixed or embedded by the copyright owner; or
    (3) appears to be genuine but is not. It also authorizes an
    injured copyright owner to bring a civil action in an
    appropriate U.S. district court. No action was taken on the
    bill.

    H.R. 5211, to amend title 17, United States Code, to limit the
            liability of copyright owners for protecting their works on
            peer-to-peer networks

        Introduced by Representative Howard L. Berman, H.R. 5211
    amends Federal copyright law to protect a copyright owner from
    liability in any criminal or civil action for impairing, with
    appropriate technology, the unauthorized distribution, display,
    performance, or reproduction of his or her copyrighted work on
    a publicly accessible peer-to-peer file trading network, if
    such impairment does not, without authorization, alter, delete,
    or otherwise impair the integrity of any computer file or data
    residing on the computer of a file trader. No action was taken
    on the bill.

    H.R. 5285, Internet Radio Fairness Act

        Introduced by Representative Jay Inslee, H.R. 5285 declares
    that the July 8, 2002, determination by the Librarian of
    Congress of rates and terms for the digital performance of
    sound recordings and ephemeral recordings shall not apply to
    transmissions and ephemeral recordings by a small business,
    small organization, or small governmental jurisdiction (small
    entities). It further declares that the first determination of
    terms and rates of royalty payments made after enactment of
    this Act shall apply to transmissions made by small business
    concerns during the period between the enactment of the Digital
    Millennium Copyright Act and the date provided for in that
    determination. It also amends Federal copyright law to declare
    that, except in the case of a motion picture or other
    audiovisual work, it is not a copyright infringement for a
    transmitting organization entitled to transmit to the public a
    performance or display of a work, under a license or transfer
    of the copyright, or for a broadcast radio station licensed by
    the Federal Communications Commission that makes a broadcast
    transmission of a sound recording in a digital format on a
    nonsubscription basis, to make one or more copies or
    phonorecords of that work, if each copy or phonorecord is: (1)
    retained and used solely by the transmitting organization that
    made it; and (2) used solely for the purpose of making the
    transmitting organization's own transmissions or for purposes
    of archival preservation or security. No action was taken on
    the bill.

    H.R. 5469, to suspend for a period of 6 months the determination of the
            librarian of Congress of July 8, 2002, relating to rates and
            terms for the digital performance of sound recordings and
            ephemeral recordings (Pub. L. No. 107-321)

        Summary.--Introduced by Representative F. James
    Sensenbrenner, Jr., H.R. 5469 suspends royalties due from
    noncommercial webcasters for the digital performance of sound
    recordings for six months and from small commercial webcasters
    for 30 days. At the end of the specified periods, all royalties
    shall be due under the then applicable rates. The legislation
    also authorizes SoundExchange to negotiate a global settlement
    agreement with small webcasters on behalf of copyright owners
    and performers. It also permits nonprofit agents designated to
    distribute statutory royalties to artists and labels to deduct
    from royalties the reasonable costs of collection and
    distribution and the licensing or enforcing of statutory
    rights, including costs incurred in rate setting arbitration
    proceedings. Agents designated to distribute statutory
    royalties to featured artists are required to pay such
    royalties directly to those artists.
        Legislative History.--On October 7, 2002, the Committee on
    the Judiciary was discharged from further consideration of the
    bill. On October 7, 2002, the House passed H.R. 5469, amended,
    under suspension of the rules, by voice vote. On November 14,
    2002, the Senate passed H.R. 5469, amended, by unanimous
    consent. On November 15, 2002, the House agreed to the Senate
    amendment and passed H.R. 5469 by unanimous consent. The
    President signed H.R. 5469 on December 4, 2002, and it is
    Public Law 107-321.

    H.R. 5522, Digital Choice and Freedom Act of 2002

        Introduced by Representative Zoe Lofgren, H.R. 5522 amends
    title 17, United States Code, to safeguard the rights and
    expectations of consumers who lawfully obtain digital
    entertainment. No action was taken on the bill.

    H.R. 5544, Digital Media Consumers' Rights Act of 2002

        Introduced by Representative Rick Boucher, H.R. 5544 amends
    the Federal Trade Commission Act to provide that the
    advertising or sale of a mislabeled copy-protected music disc
    is an unfair method of competition and an unfair and deceptive
    act or practice. No action was taken on the bill.

    S. 487, Technology, Education, and Copyright Harmonization Act of 2001

        Summary.--Introduced by Senator Orrin G. Hatch, S. 487
    revises Federal copyright law to extend the exemption from
    infringement liability for instructional broadcasting to
    digital distance learning or distance education. The Copyright
    Act contains provisions outlining permissible uses of
    copyrighted material for educational purposes, such as fair use
    and other educational exemptions from copyright infringement.
    These provisions were written more than 20 years ago, however,
    prior to the advent of digital technologies. Accordingly, S.
    487 updates the Copyright Act by appropriately striking a
    balance between the rights of copyright owners and the ability
    of users to access copyrighted material via the Internet and
    other media for educational pursuits. The legislation makes
    three basic changes to current law: (1) it eliminates the
    current eligibility requirements for the distance learning
    exemption that the instruction occur in a physical classroom or
    that special circumstances prevent the attendance of students
    in the classroom; (2) it clarifies that the distance learning
    exemption covers the transient or temporary copies that may
    occur through the automatic technical process of transmitting
    material over the Internet; and (3) it amends the Copyright Act
    to allow educators to show reasonable and limited portions of
    dramatic literary and musical works, audiovisual works, and
    sound recordings, in addition to the complete versions of non-
    dramatic literary and musical works which are currently
    exempted.
        Legislative History.--On June 5, 2001, S. 487 was reported
    favorably to the Senate, amended, by Senator Hatch (S. Rept.
    107-31). On June 7, 2001, the Senate passed S. 487, as amended,
    with additional floor amendments. On June 18, 2001, S. 487 was
    referred to the Subcommittee. On June 27, 2001, the
    Subcommittee held a hearing on S. 487. Testimony was received
    from the following witnesses: The Honorable Marybeth Peters,
    Register of Copyrights, Copyright Office of the United States,
    The Library of Congress; Allan Robert Adler, Vice President,
    Legal & Government Affairs, Association of American Publishers,
    Inc; and John C. Vaughn, Executive Vice President, Association
    of American Universities. On July 11, 2001, the Subcommittee
    met in open session and favorably reported S. 487, without
    amendment, by a recorded vote of 12 yeas and 0 nays. On July
    17, 2002, the Committee met in open session and favorably
    reported S. 487 without amendment, by voice vote. On September
    25, 2002, the Committee reported S. 487 to the House (H. Rept.
    107-687). The provisions of S. 487 were later incorporated into
    H.R. 2215, the ``21st Century Department of Justice
    Appropriations Authorization Act,'' which is Public Law 107-
    273.

                                    PATENTS

    H.R. 740, Patent and Trademark Office Reauthorization Act

        Summary.--Introduced by Representative Howard Coble, H.R.
    740 amends Federal patent law to authorize fees collected for
    Patent and Trademark Office services or materials to be
    available until expended for Office activities. (Currently,
    such fees are available only to the extent and in the amounts
    provided in advance in appropriations Acts.) The provisions of
    H.R. 740 were later incorporated into H.R. 2047.

    H.R. 1866, to amend title 35, United States Code, to clarify the basis
            for granting requests for reexamination of patents

        Summary.--Introduced by Representative Howard Coble, H.R.
    1866 clarifies the basis for the U.S. Patent and Trademark
    Office (PTO) to determine whether the request for the
    reexamination of a patent should be granted.
        Legislative History.--On May 22, 2001, the Subcommittee met
    in open session and ordered favorably reported H.R. 1866,
    amended, by voice vote. On June 20, 2001, the Committee met in
    open session and ordered favorably reported H.R. 1866, as
    amended, with an additional Full Committee amendment, by voice
    vote. On June 28, 2001, the Committee reported H.R. 1866 to the
    House (H. Rept. 107-120). On September 5, 2001, the House
    passed H.R. 1866, as amended, under suspension of the rules, by
    voice vote. The provisions of H.R. 1866 were later incorporated
    into H.R. 2215, the ``21st Century Department of Justice
    Appropriations Authorization Act,'' which is Public Law 107-
    273.

    H.R. 1886, to amend title 35, United States Code, to provide for
            appeals by third parties in certain patent reexamination
            proceedings

        Summary.--Introduced by Representative Howard Coble, H.R.
    1886 repeals a prohibition which bars judicial review of
    certain patent inter partes reexamination decisions. The
    legislation permits the third-party requester in an inter
    partes reexamination to appeal the decision by the U.S. Patent
    and Trademark Office (PTO) to the U.S. Court of Appeals for the
    Federal Circuit.
        Legislative History.--On May 22, 2001, the Subcommittee met
    in open session and ordered favorably reported H.R. 1886,
    without amendment,by voice vote. On June 20, 2001, the
    Committee met in open session and ordered favorably reported H.R. 1886,
    without amendment, by voice vote. On June 28, 2001 the Committee
    reported H.R. 1886 to the House (H. Rept. 107-121). On September 5,
    2001, the House passed H.R. 1886 under suspension of the rules, by
    voice vote. The provisions of H.R. 1886 were later incorporated into
    H.R. 2215, the ``21st Century Department of Justice Appropriations
    Authorization Act,'' which is Public Law 107-273.

    H.R. 2047, Patent and Trademark Office Authorization Act of 2002

        Summary.--Introduced by Representative Howard Coble, H.R.
    2047 authorizes the Patent and Trademark Office (PTO) to retain
    all of the user fee revenue it collects in fiscal year 2002 for
    agency operations. In addition, PTO is to earmark a portion of
    this revenue to address problems relating to its computer
    systems, and to develop a 5-year strategic plan to establish
    goals and methods by which the agency can enhance patent and
    trademark quality while reducing application pendency.
        On June 7, 2001, the Subcommittee held an oversight hearing
    on: ``The Operations of the United States Patent and Trademark
    Office, Including Review of Agency Funding.'' Testimony was
    received from the following witnesses: The Honorable Nicholas
    Godici, Acting Undersecretary of Commerce for Intellectual
    Property and Acting Director of the U.S. Patent and Trademark
    Office; Ronald E. Myrick, Chief Intellectual Property Counsel,
    General Electric Capital Services, on behalf of Intellectual
    Property Owners (IPO); Nils Victor Montan, Vice President,
    Senior Intellectual Property Counsel, Warner Brothers, on
    behalf of the International Trademark Association (INTA); and
    Ronald J. Stern, President, Patent Office Professional
    Association (POPA).
        Legislative History.--On June 14, 2001, the Subcommittee
    met in open session and ordered favorably reported H.R. 2047,
    amended, by voice vote. On July 24, 2001, the Committee met in
    open session and ordered favorably reported H.R. 2047, as
    amended, with additional full Committee amendments, by voice
    vote. On August 2, 2001, the Committee reported H.R. 2047 to
    the House (H. Rept. 107-190). On November 6, 2001, the House
    passed H.R. 2047, as amended, under suspension of the rules, by
    voice vote. On June 26, 2002, H.R. 2047 passed the Senate,
    amended. The provisions of H.R. 2047 were later incorporated
    into H.R. 2215, the ``21st Century Department of Justice
    Appropriations Authorization Act,'' which is Public Law 107-
    273.

    H.R. 5119, Plant Breeders Equity Act of 2002

        Summary.--Introduced by Representative Darrell E. Issa,
    H.R. 5119 amends Federal patent law to declare that no plant
    patent application shall be denied, nor shall any issued plant
    patent be invalidated, on the grounds that the invention was
    described in a printed publication in this or a foreign country
    or in public use or on sale in this country, more than one year
    before the date of the U.S. patent application, unless the
    invention was described in a printed publication in this or a
    foreign country more than ten years before the date of the U.S.
    patent application.
        Legislative History.--On September 19, 2002, the
    Subcommittee held a hearing on H.R. 5119. Testimony was
    received from the following witnesses: The Honorable James A.
    Toupin, General Counsel, U.S. Patent and Trademark Office;
    Vincent E. Garlock, Deputy Executive Director, American
    Intellectual Property Law Association (AIPLA); Craig J.
    Regelbrugge, Senior Director, Government Relations, The
    American Nursery & Landscape Association; and Peter T. DiMauro,
    Ph.D., Director, PatentWatch Project, International Center for
    Technology Assessment. No further action was taken on the bill.

                              Oversight Activities

    List of oversight hearings

    Internet Corporation for Assigned Names and Numbers (ICANN),
                New global Top Level Domains (gTLDs), and the
                Protection of Intellectual Property, March 22, 2001
                (Serial No. 8)
    Business Method Patents, April 4, 2001 (Serial No. 5)
    United States Copyright Office, May 2, 2001 (Serial No. 6)
    Patents: Improving Quality and Curing Defects, May 10, 2001
                (Serial No. 9)
    Music on the Internet, May 17, 2001 (Serial No. 12)
    Operations of the United States Patent and Trademark Office,
                Including Review of Agency Funding, June 7, 2001
                (Serial No. 16)
    Whois Database: Privacy and Intellectual Property Issues, July
                12, 2001 (Serial No. 23)
    Market Power and Intellectual Property Litigation, November 8,
                2001 (Serial No. 42)
    Operations of Federal Judicial Misconduct and Recusal Statutes,
                November 29, 2001 (Serial No. 45)
    Settlement Agreement by and among the United States of America,
                the Federal Communications Commission, NextWave
                Telecom, Inc., and Certain Affiliates, and
                Participating Auction 35 Winning Bidders (Held
                jointly with the Subcommittee on Commercial and
                Administrative Law), December 6, 2001 (Serial No.
                56)
    Digital Millennium Copyright Act Section 104 Report, December
                12 and 13, 2001 (Serial No. 52)
    Federal Trademark Dilution Act, February 14, 2002 (Serial No.
                53)
    Patent Law and Non-Profit Research Collaboration, March 14,
                2002 (Serial No. 60)
    United States Patent and Trademark Office--Operations and
                Fiscal Year 2003 Budget, April 11, 2002 (Serial No.
                64)
    Accuracy and Integrity of the Whois Database, May 22, 2002
                (Serial No. 70)
    Consumer Benefits of Today's Digital Rights Management (DRM)
                Solutions, June 5, 2002 (Serial No. 72)
    Copyright Arbitration Royalty Panel (CARP) Structure and
                Process, June 13, 2002 (Serial No. 78)
    Patent Reexamination and Small Business Innovation, June 20,
                2002 (Serial No. 79)
    Unpublished Judicial Opinions, June 27, 2002 (Serial No. 82)
    United States Patent and Trademark Office: Fee Schedule
                Adjustment and Agency Reform, July 18, 2002 (Serial
                No. 92)
    Piracy of Intellectual Property on Peer-to-Peer Networks,
                September 26, 2002 (Serial No. 103)

    Review of operations of the United States Copyright Office

        On May 2, 2001, the Subcommittee held an oversight hearing
    to review the administrative activities and the funding and
    expenditures of the Copyright Office to ensure that it is
    utilizing its resources effectively. Testimony was received
    from The Honorable Marybeth Peters, Register of Copyrights,
    Copyright Office of the United States, The Library of Congress.
        The Copyright Office is a division in the Library of
    Congress. It performs several functions aside from its primary
    responsibility to examine and register copyright claims. These
    other functions include: maintaining records regarding
    transfers and terminations of copyright, administering the
    Copyright Arbitration Royalty Panel, providing information to
    the public about copyright law and registration procedures,
    providing technical assistance to the Congress, assisting the
    domestic and international copyright community in copyright
    protection and collecting works to be deposited in the Library
    of Congress. The Copyright Office funds roughly two-thirds of
    its operations through fee receipts and the balance through
    appropriations.
        Register Peters provided the Subcommittee with an overview
    of two operational improvement initiatives underway at the
    Office--information technology planning and business process
    reengineering. She also provided a detailed review of FY 2000
    operational activities and ongoing work; the legislative and
    policy assistance provided to the Legislative and Executive
    branches by the Office; recent and ongoing rulemakings; and
    litigation in which the Office is involved. Finally, she
    explained the FY 2002 budget request, citing several reasons
    for the need for an increased appropriation.

    Review of the Operations of the United States Patent and Trademark
            Office including Review of Agency Funding

        On June 7, 2001, the Subcommittee held an oversight hearing
    on: ``The Operations of the United States Patent and Trademark
    Office, Including Review of Agency Funding.'' Testimony was
    received from the following witnesses: The Honorable Nicholas
    Godici, Acting Undersecretary of Commerce for Intellectual
    Property and Acting Director of the U.S. Patent and Trademark
    Office; Ronald E. Myrick, Chief Intellectual Property Counsel,
    General Electric Capital Services, on behalf of Intellectual
    Property Owners (IPO); Nils Victor Montan, Vice President,
    Senior Intellectual Property Counsel, Warner Brothers, on
    behalf of the International Trademark Association (INTA); and
    Ronald J. Stern, President, Patent Office Professional
    Association (POPA).
        The purpose of the hearing was to review the general
    operations of the U.S. Patent and Trademark Office (PTO). The
    agency generates its funding by imposing statutory user fees on
    individuals and businesses which file for patent and trademark
    protection in the United States. Since congressional
    appropriators have consistently diverted a percentage of PTO
    revenue to other programs over the past decade, the
    Subcommittee explored the extent to which this budget practice
    has created administrative problems at the agency and for its
    users.
        Nicholas Godici elaborated on the increased agency
    workload, and described various ``e-government'' initiatives
    which the USPTO is developing to enhance productivity. Ronald
    Myrick emphasized that implementation of electronic filing was
    an imperative given the rise of application pendency rates; and
    voiced his support for H.R. 2047, which would require the
    development of a detailed Strategic Business Plan by USPTO.
    Nils Montan concurred with Mr. Myrick's points while
    articulating his opposition to a recent effort by the
    Department of Commerce to implement a hiring freeze at USPTO.
    Ronald Stern voiced his displeasure with the ongoing practice
    of fee diversion, and stated his belief that USPTO would
    benefit from additional examiner hires who should be permitted
    to spend more time reviewing applications.

    Review of Operations of the Federal Judicial Misconduct and Recusal
            Statutes

        The Subcommittee conducted an oversight hearing on Judicial
    Misconduct on November 29, 2001. Testimony was received from
    the following witnesses: The Honorable William L. Osteen, U.S.
    District Judge for the Middle District of North Carolina;
    Professor Arthur D. Hellman, Professor of Law, University of
    Pittsburgh School of Law; Michael J. Remington, Partner,
    Drinker Biddle & Reath LLP; and Douglas T. Kendall, Executive
    Director, Community Rights Counsel. The hearing reviewed the
    operations and effectiveness of the Code of Conduct for U.S.
    judges, which governs Federal judicial misconduct, including
    the so-called ``disability and discipline'' act (28 U.S.C.
    Sec. 372 (c)), and two recusal measures (28 U.S.C. Sec. 144 and
    Sec. 455). Specifically, the purpose was to determine whether
    the affected judicial committees, judicial councils, and the
    Judicial Conference accord appropriate consideration to those
    complaints brought before them; the general willingness of
    judges to police their colleagues and recuse themselves from
    cases when necessary; whether appropriate disciplinary measures
    are taken when warranted; and any other possible misuse or
    abuse of these statutes which might compromise the integrity of
    and public confidence in the Federal judiciary.
        Judge William L. Osteen testified that judges do not
    neglect their ethical obligations by attending private
    education seminars. He further testified that over the past few
    years the relative number of reported problems regarding judges
    recusal practices were small, and that nevertheless, the
    judiciary has taken numerous steps to correct those problems
    which were identifiable. Professor Arthur Hellman recommended
    that the Judicial Conduct and Disability Act of 1980 should be
    amended to explicitly recognize the authority of the chief
    judge to conduct a limited inquiry into the validity of the
    complaint as well as the ability to dismiss the complaint if
    the limited inquiry demonstrates that the allegations lack any
    factual foundation or are conclusively refuted by objective
    evidence. Section 372(c)(3)(A) should more fully specify other
    bases for dismissal that can be identified on the face of a
    complaint, and the Act should be amended to permit petitions
    for review to be considered by a standing or rotating panel of
    the judicial council, rather than by the entire council. In
    order to ensure that judicial conflict of interests are
    properly dealt with, all federal courts should post on their
    web sites conflict lists for all judges of that court. 28
    U.S.C. Sec. 46(c) should be amended to make clear that recused
    judges are not counted as part of the majority for purposes of
    this statute. Michael J. Remington approved the 1980 Act in its
    current structure but felt that the public and practicing bar
    were largely unaware of its existence. He stated that the
    Committee should examine whether any of the National
    Commissions' recommendations have continuing merit,
    necessitating statutory or administrative implementation, and
    that the issue must be taken in context with an understanding
    of the informal methods utilized in the areas of judicial
    misconduct and disqualification. Douglas T. Kendall stated that
    the Judicial Conference should enact reforms that prevent the
    appearanceof impropriety currently stemming from private
    judicial seminars; that there should be more effective penalties to
    enforce judges' disclosure obligations and the ban on ruling in cases
    in which a judge owns stock; that judges should be required to maintain
    an up-to-date ``recusal list'' available to litigants (without advance
    notification of the judge) at the clerk's office; and unless there is a
    threat to a particular federal judge, that financial disclosure forms
    should be made immediately unavailable to those requesting review.
        In response to issues brought forth in this hearing,
    Chairman Coble introduced H.R. 3892, the ``Judicial
    Improvements Act of 2002.'' The legislation proposes to
    reorganize the Judicial Conduct and Disability Act of 1980 by
    recodifying it as a new chapter of title 28 of the U.S. Code,
    and clarifies the responsibilities of a circuit chief judge in
    making initial evaluations of a complaint. The testimony of
    Professor Hellman and Mr. Remington were critical in the
    drafting of H.R. 3892. See H.R. 3892 above for legislative
    history.

    Review of the United States Patent and Trademark Office: Operations and
            Fiscal Year 2003 Budget

        On April 11, 2002, the Subcommittee held an oversight
    hearing on: ``The United States Patent and Trademark Office:
    Operations and Fiscal Year 2003 Budget.'' Testimony was
    received from the following witnesses: The Honorable James
    Rogan, Undersecretary of Commerce for Intellectual Property and
    Director of the U.S. Patent and Trademark Office; Michael K.
    Kirk, Executive Director, American Intellectual Property Law
    Association (AIPLA); Colleen Kelley, National President,
    National Treasury Employees Union (NTEU); and John K.
    Williamson, President, Intellectual Property Owners (IPO).
        The Administration's fiscal year 2003 budget requested a
    21-percent increase in the operating budget of the Patent and
    Trademark Office (PTO), funded primarily through a one-year
    19.3-percent surcharge on patent fees and a 10.3-percent
    surcharge on trademark fees. This budget also signaled that the
    Administration plans to develop a major fee-restructuring
    proposal to fund future PTO operations. The primary purpose of
    the hearing was to encourage PTO Director Rogan to release,
    present, and defend his strategic plan for the agency; and to
    elicit comments from the user community about the relative
    merits of the plan. Such compliance will enable the Committee
    to make informed judgments as to the development of policy
    initiatives that will assist PTO in fulfilling its missions.
        Director James E. Rogan noted a sharp increase in the
    volume and complexity of his agency's workload. He emphasized
    his intention to conduct a top-to-bottom review of the USPTO
    with the goal of increasing productivity and efficiency.
    Michael Kirk announced his continued support for H.R. 2047 and
    the development of a USPTO Strategic Business Plan. He further
    restated the general ``user group'' opposition to fee
    diversion. Mr. Kirk's views were essentially reiterated by John
    Williamson. Colleen Kelley discussed the need for greater
    agency funding of the agency and NTEU opposition to efforts to
    privatize or contract-out certain USPTO functions.

    Review of the Copyright Arbitration Royalty Panel (CARP) structure and
            process

        As part of the 1976 Copyright Act Amendments, Congress
    acknowledged the need for the government to oversee the royalty
    rate-making and distribution process by creating the Copyright
    Royalty Tribunal (CRT). By 1993, Congress, the Copyright
    office, and rate-making participants believed that greater
    efficiencies could be realized under a different system which
    led to the creation of the CARP. Once more, the rate-making
    participants and the Copyright office lodged complaints about
    the CARP's overall ineffectiveness, thus prompting the
    Subcommittee to conduct an oversight hearing on the process and
    structure of the CARP (Copyright Arbitration Royalty Panel) on
    June 10, 2002. Testimony was received from the following
    witnesses: Michael J. Remington, Attorney-at-Law and Partner,
    Drinker Biddle & Reath, LLP; Robert A. Garrett, Attorney-at-Law
    and Partner, Arnold & Porter; R. Bruce Rich, Attorney-at-Law,
    Weil, Gotschal & Manges, LLP; and The Honorable Marybeth
    Peters, Register of Copyrights and Associate Librarian for
    Copyright Services, Copyright Office of the United States, The
    Library of Congress.
        Michael J. Remington made the following recommendations:
    the current CARP system should be reformed to include a
    permanent panel of salaried administrative law judges supported
    by a professional staff; a small claims process should be
    created; costs should be further reduced and fiscal
    accountability should be added to the process; various
    administrative improvements should be promoted; and there
    should be a continuance of vigorous oversight by the
    legislature. Robert Alan Barrett advocated maintaining the
    current structure of the CARP while focusing on ``revising''
    the process. Among the various alternative measures that he
    championed were, achieving cost savings without eliminating
    evidentiary hearings, and allowing the parties to choose how
    much underlying documentation should accompany their written
    testimony. R. Bruce Rich stated that regardless of what
    construct was chosen, reform of the CARP should be focused upon
    hiring panelists who possess an understanding of macroeconomics
    and basic principles of antitrust law; the ability to
    assimilate facts concerning multiple media marketplaces; the
    ability evaluate complex statistical and economic data put
    forth by the parties' experts; and, the ability to sift through
    and properly evaluate record evidence, including making
    judgements on issues such as witness credibility. Marybeth
    Peters testified that the CARP system should be revised so as
    to allow the Copyright Office and the Library to hire full-time
    employees; and that consideration should be given to whether
    the Register should have discretion to assign additional
    copyright work to the Copyright office-based decision makers
    during these periods of inactivity.

    Review of unpublished judicial opinions

        On June 27, 2002, the subcommittee conducted an oversight
    hearing on unpublished judicial opinions in an attempt to
    ascertain whether the use of limited publication/non-citation
    rules is constitutional; whether the varying rules within the
    circuits as to limited publication/non-citation rules should be
    uniform; what precedential effect non-published opinions should
    be given; and what level of access the public is entitled to
    with regard to non-published opinions. Testimony was received
    from the following witnesses: Professor Arthur Hellman,
    Professor of Law, University of Pittsburgh School of Law;
    Kenneth Schmier, Chairman, Committee for the Rule of Law; the
    Honorable Alex Kozinski, Judge, United States Court of Appeals
    for the Ninth Circuit; and the Honorable Samuel A. Alito, Jr.,
    Judge, United States Court of Appeals for the Third Circuit;
    and Chair, Advisory Committee on the Federal Rules of Appellate
    Procedure.
        Professor Arthur Hellman testified that, at minimum, courts
    should allow attorneys to cite unpublished dispositions; and
    that, when an unpublished disposition is closely on point, an
    opinion clarifying the law on that issue should be published.
    In addition, Professor Hellman stated that he would not favor a
    national rule on the precedential status of unpublished
    opinions and that he considered the rule under advisement by
    the Advisory Committee at the time of the hearing to be
    favorable. Kenneth J. Schmier testified that all cases should
    be decided by written decisions which set forth the prevailing
    party and why that party prevailed so as to ensure adherence to
    the doctrine of stare decisis. Judge Alex Kozinski took the
    position that each court should be entitled to independently
    address the issues of non-citation/non-publication according to
    its own customs and needs. Judge Samuel Alito, Jr. stated that
    while the justification for the creation of the concept of
    unpublished opinions was originally grounded in equity, the
    concept might no longer be viable. For example, technological
    advances (the Internet) provide greater access to opinions.

    Review of the United States Patent and Trademark Office: Fee Schedule
            Adjustment and Agency Reform

        On Thursday, July 18, 2002, the Subcommittee held an
    oversight hearing on: ``The U.S. Patent and Trademark Office:
    Fee Schedule Adjustment and Agency Reform.'' Testimony was
    received from the following witnesses: The Honorable James
    Rogan, Undersecretary of Commerce for Intellectual Property and
    Director of the U.S. Patent and Trademark Office; Kathryn
    Barrett Park, Executive Vice President, International Trademark
    Association (INTA); Michael K. Kirk, Executive Director,
    American Intellectual Property Law Association (AIPLA); and
    Charles P. Baker, Chair, Intellectual Property Law Section,
    American Bar Association. The purpose of the hearing was to
    provide James E. Rogan, Director of the U.S. Patent and
    Trademark Office (PTO), with the opportunity to present and
    defend his ``21st Century Strategic Plan'' for the agency. The
    testimony and questioning focused on Director Rogan's request
    that Congress enact a new fee schedule to subsidize PTO
    operations beginning in fiscal year 2003. Given that PTO is
    completely funded through the imposition of user fees, the
    hearing also gave organizations representing the interests of
    inventors and trademark owners an opportunity to critique the
    plan, especially the proposed fee schedule.
        Director James E. Rogan described and defended the general
    contents of the June 3, 2001, USPTO Strategic Business Plan,
    developed in response to Subcommittee requests and the text of
    H.R. 2047. The other witnesses--Michael Kirk, Charles Baker,
    and Kathryn Barrett Park--praised portions of the Plan,
    including certain work-sharing and employee-evaluation
    procedures. However, they also criticized other provisions,
    most especially the proffered fee schedule, which included some
    increases described as ``punitive.''

       SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS 1,2

          GEORGE W. GEKAS,
          Pennsylvania, Chairman

    SHEILA JACKSON LEE, Texas            DARRELL E. ISSA, California
    BARNEY FLAKE, Massachusetts          MELISSA A. HART, Pennsylvania
    HOWARD L. BERMAN, California         LAMAR S. SMITH, Texas
    ZOE LOFGREN, California              ELTON GALLEGLY, California
    MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah, Vice Chair
    J. RANDY FORBES, Virginia \3\        JEFF FLAKE, Arizona

    ----------
    \1\ Subcommittee chairmanship and assignments approved January 31,
    2001.
    \2\ Subcommittee name change from ``Immigration and Claims'' to
    ``Immigration, Border Security, and Claims'' approved June 13, 2002.
    \3\ J. Randy Forbes, Virginia, assignment to the subcommittee approved
    June 13, 2002.

    Tabulation of subcommittee legislation and activity

    Public:
        Legislation referred to the Subcommittee......................   201
        Legislation on which hearings were held.......................     3
        Legislation reported favorably to the full Committee..........    15
        Legislation reported adversely to the full Committee..........     0
        Legislation reported without recommendation to the full
          Committee...................................................     0
        Legislation reported as original measure to the full Committee     0
        Legislation discharged from the Subcommittee..................     3
        Legislation pending before the full Committee.................     4
        Legislation reported to the House.............................    10
        Legislation discharged from the Committee.....................     3
        Legislation pending in the House..............................     2
        Legislation passed by the House...............................    11
        Legislation pending in the Senate.............................     1
        Legislation vetoed by the President (not overridden)..........     0
        Legislation enacted into Public Law...........................    13
        Days of legislative hearings..................................     3
        Days of oversight hearings....................................    17
    Private:
        Claims:
            Legislation referred to the Subcommittee..................    25
            Legislation on which hearings were held...................     0
            Legislation reported favorably to the full Committee......     6
            Legislation pending before the full Committee.............     0
            Legislation reported to the House.........................     6
            Legislation discharged from the Committee.................     0
            Legislation pending in the House..........................     1
            Legislation passed by the House...........................     5
            Legislation pending in the Senate.........................     1
            Legislation enacted into Private Law......................     3
        Immigration:
            Legislation referred to the Subcommittee..................    56
            Legislation on which hearings were held...................     0
            Legislation reported favorably to the full Committee......     3
            Legislation pending before the full Committee.............     0
            Legislation reported to the House.........................     3
            Legislation discharged from the Committee.................     0
            Legislation pending in the House..........................     0
            Legislation passed by the House...........................     3
            Legislation pending in the Senate.........................     0
            Legislation enacted into Private Law......................     3

                        Jurisdiction of the Subcommittee

        The Subcommittee on Immigration, Border Security and Claims
    has legislative and oversight jurisdiction over matters
    involving: immigration and naturalization, admission of
    refugees, border security, treaties, conventions and
    international agreements, claims against the United States,
    federal charters of incorporation, private immigration and
    claims bills, and other appropriate matters as referred by the
    Chairman of the Judiciary Committee.

                      Public Legislation Enacted Into Law

                                  IMMIGRATION

    H.R. 1452, the Family Reunification Act of 2002

        Summary.--Prior to enactment of the Antiterrorism and
    Effective Death Penalty Act of 1996 and the Illegal Immigration
    Reform and Immigrant Responsibility Act of 1996, permanent
    resident aliens who were domiciled in the United States for
    seven continuous years and were subject to deportation could
    seek discretionary ``212(c)'' relief from deportation, unless
    they had been convicted of one or more aggravated felonies and
    had served for such felonies terms of imprisonment of at least
    five years. AEDPA rescinded judicial review of final orders of
    deportation based on the commission of certain crimes
    (including aggravated felonies), requiring the detention of any
    alien convicted of an aggravated felony upon release from
    incarceration, making aliens who have been convicted of certain
    crimes (including any aggravated felonies) ineligible for
    212(c) relief, and expanding the number of crimes considered
    aggravated felonies under the Immigration and Nationality Act.
    The Illegal Immigration Reform and Immigrant Responsibility Act
    of 1996 refined these reforms. ``212(c)'' relief was repealed.
    In its place, deportable permanent residents could
    seek``cancellation of removal''--discretionary relief from removal by
    an immigration judge--if the alien: (1) has been an alien lawfully
    admitted for permanent residence for not less than 5 years; (2) has
    resided in the United States continuously for 7 years after having been
    admitted in any status; and (3) has not been convicted of any
    aggravated felony. IIRIRA defined ``term of imprisonment'' as including
    a period of incarceration or confinement, regardless of any suspension
    of the imposition or execution of the imprisonment. IIRIRA also defined
    continuous residence to end when the alien was served a notice to
    appear at a removal proceeding or when the alien has committed certain
    crimes making him inadmissible or removable (including aggravated
    felonies).
        A number of cases have arisen in which the deportation of
    legal permanent resident aliens under the 1996 laws seemed
    harsh. The first category of such hardship cases involves
    permanent residents who were brought legally to the U.S., when
    still young children and now face deportation to countries that
    they no longer even remember, let alone to which they have any
    ties or speak the language. The second category involves
    permanent residents who committed crimes well before 1996 that
    were reclassified as aggravated felonies in that year. Some of
    these aliens have fully reformed, raised families and become
    productive members of their communities in the ensuing years.
    The third category involves aliens who have committed
    relatively minor crimes. Since an aggravated felony is now
    defined to include any crime of theft or violence for which an
    alien is sentenced to one year or more of prison, or any drug
    trafficking offense (regardless of whether any jail sentence is
    imposed), crimes such as shoplifting, drunk driving, and very
    low- level drug trafficking can carry with them mandatory
    deportation for permanent residents.
        H.R. 1452 was designed to strike an appropriate and fair
    balance on the issue of relief from deportation for legal
    permanent resident aliens. It would have retained the
    beneficial reforms from 1996 while letting a select group of
    legal permanent residents request discretionary relief from
    deportation. Because of concerns about the willingness of some
    immigration judges to grant relief from deportation
    profligately if given the ability, the bill would have provided
    that only the Attorney General or Deputy Attorney General could
    grant the relief provided.
        The bill would have set forth four avenues of relief from
    removal for permanent residents who have been convicted of a
    crime. None of those four forms of relief would have been
    available to aliens who had engaged in, or are likely to engage
    in, terrorist activity or have been convicted of murder, rape,
    or sexual abuse of a minor:
         First, a non-violent aggravated felon would have
    been able to seek relief if he: (1) had been a permanent
    resident for at least 5 years; (2) had resided in the U.S.
    continuously for at least seven to 10 years; (3) was convicted
    in connection with a single scheme of misconduct for which the
    alien received a sentence of four years or less, or two schemes
    of misconduct for which the alien received a sentence of four
    years or less, but was never actually imprisoned; and (4) was
    not an organizer or leader of the aggravated felony or
    felonies. If the alien has served jail time in connection with
    any other offense, he would not have been eligible for this
    relief. In addition, the criminal prosecutor would have been
    able to block such relief if the alien failed to provide the
    prosecutor with all information he possesses about the offense.
         Second, an alien convicted of a violent aggravated
    felony would have been able to seek relief under the same
    standards, except that the requirement of not having been
    sentenced to more than four years would have been reduced to
    more than two years, and the crime could not have resulted in
    serious bodily injury or death.
         The third form of relief in H.R. 1452 provided
    that an alien who legally arrived in the U.S. before age 10
    would have been able to seek relief if the alien had: (1) been
    a permanent resident for at least five years; (2) has resided
    in the U.S. continuously for at least seven years after having
    arrived in the U.S.; and (3) had not been imprisoned for
    aggravated felonies arising out of more than two patterns of
    criminal misconduct.
         Fourth, an alien who legally entered the U.S.
    before age 16 would have been able to apply for relief in the
    same manner as those aliens who arrived before the age of 10,
    except that such aliens were barred from relief if they
    committed any aggravated felony within their first seven years
    in the U.S.
        The bill would have provided that an alien who was made
    ineligible for relief by the 1996 immigration legislation, but
    who would be eligible for one of these four forms of relief,
    could move to reopen his case within one year of the Attorney
    General's issuance of regulations. While aliens who have
    already been deported could move to reopen to apply for relief,
    those aliens would have had to apply from abroad and could only
    reenter the United States if they were actually granted relief.
        The bill also would have provided that an immigration judge
    could release a permanent resident from detention if the alien
    could demonstrate that he or she was prima facie eligible for
    one of the four forms of relief, would not pose a danger to
    persons, property, or national security, and would likely
    appear at all future proceedings.
        Finally, the bill would have ceased to have effect as of
    the later of three years after the date on which a final rule
    implementing the bill was promulgated, or December 31, 2005.
        Legislative History.--On April 4, 2001, Representative
    Barney Frank introduced H.R. 1452. On July 23, 2002, the
    Judiciary Committee ordered H.R. 1452 reported, as amended, by
    a vote of 18-15. On November 14, 2002, the Judiciary Committee
    reported H.R. 1452 (H. Rept. 107-785). No further action was
    taken on H.R. 1452 in the 107th Congress.

    H.R. 1885, the Section 245(i) Extension Act of 2001

        Summary.--Section 245(i) of the Immigration and Nationality
    Act allows aliens who are eligible for immigrant visas, but who
    are illegally in the U.S., to adjust their status with the INS
    in the U.S. upon payment of a $1,000 penalty. In the absence of
    section 245(i), illegal aliens must pursue their visa
    applications abroad. Those who have been illegally present in
    the U.S., for a year would be barred from reentry for 10 years,
    pursuant to the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996. The Legal Immigration Family Equity
    Act of 2000 allowed illegal aliens who were in the U.S. as of
    December 21, 2000, and who had immigrant visa petitions filed
    on their behalf by April 30, 2001, to utilize section 245(i).
    However, aliens eligible to utilize this provision may not have
    had the four month window to apply that the Act contemplated.
    The INS did not issue implementing regulations until March 2001
    and many aliens claimed to have difficulty procuring the
    services of immigration lawyers in time to apply.
        H.R. 1885, as it passed the House, would have allowed
    illegal aliens to utilize section 245(i) as long as they had
    immigrant visa petitions filed on their behalf within 120 days
    of its enactment. The bill retained the LIFE Act's requirement
    that aliens must have been in the U.S. as of December 21, 2000,
    so as not to encourage further illegal immigration into the
    U.S. It also would have required that eligible aliens must have
    entered into the family or business relationships qualifying
    them for green cards by April 30, 2001, the original filing
    deadline. This requirement was designed to ensure that there
    would not be a wave of sham marriages designed purely to
    procure immigrant visas. Numerous news articles had reported
    that many thousands of illegal aliens rushed to get married to
    U.S. citizens to beat the April 30 deadline.
        Legislative History.--On May 17, 2001, Subcommittee on
    Immigration and Claims Chairman George Gekas introduced H.R.
    1885. On May 21, 2001, the House passed H.R. 1885 under
    suspension of the rules by a vote of 336-43. On September 6,
    2001, the Senate passed H.R. 1885 as amended by unanimous
    consent. No further action was taken on H.R. 1885 in the 107th
    Congress. See H. Res. 365.

    H.R. 2277, to provide for work authorization for nonimmigrant spouses
            of treaty traders and treaty investors (Public Law 107-124)

        Summary.--E visas are available for treaty traders and
    investors. An E visa is available to an alien who: is entitled
    to enter the United States under and in pursuance of the
    provisions of a treaty of commerce and navigation between the
    United States and the foreign state of which he is a national,
    and the spouse and children of any such alien if accompanying
    or following to join him: (1) solely to carry on substantial
    trade, including trade in services or trade in technology,
    principally between the United States and the foreign state of
    which he is a national; or (2) solely to develop and direct the
    operations of an enterprise in which he has invested * * * a
    substantial amount of capital.
        Alien employees of a treaty trader or treaty investor may
    receive E visas if they are coming to the U.S. to engage in
    duties of an executive or supervisory character, or, if
    employed in a lesser capacity, if they have special
    qualifications that make the services to be rendered essential
    to the efficient operation of the enterprise. The alien
    employee would need to be of the same nationality as the treaty
    trader or investor. E visas are issued directly by the State
    Department (requiring no preliminary petition to the INS). Visa
    recipients can stay in the U.S. for as long as they maintain
    their status.
        While prior law allowed spouses (and minor children) to
    come to the U.S. with the E visa recipients, spouses were not
    allowed to work in the U.S. H.R. 2277 allows the spouses of E
    visa recipients to work in the United States while accompanying
    the primary visa recipients.
        Legislative History.-- On June 21, 2001, Subcommittee on
    Immigration and Claims Chairman George Gekas introduced H.R.
    2277. On June 27, 2001, the Subcommittee on Immigration and
    Claims reported H.R. 2277 to the Judiciary Committee by a voice
    vote. On July 24, 2001, the Judiciary Committee ordered H.R.
    2277 reported by a voice vote. On August 2, 2001, the Judiciary
    Committee reported H.R. 2277 (H. Rept. 107-187). On September
    5, 2001, the House passed H.R. 2277 under suspension of the
    rules by a voice vote. December 13, 2001, the Senate Judiciary
    Committee ordered H.R. 2277 reported and reported H.R. 2277
    without a written report. On December 20, 2001, the Senate
    passed H.R. 2277 by unanimous consent. On January 16, 2002, the
    President signed H.R. 2277 into law (Public Law 107-124).

    H.R. 2278, to provide for work authorization for nonimmigrant spouses
            of intracompany transferees (Public Law 107-125)

        Summary.--L visas are available for intracompany
    transferees. A visa is available to an alien who: Within 3
    years preceding the time of his application for admission into
    the United States, has been employed continuously for 1 year by
    a firm * * * or an affiliate or subsidiary thereof and who
    seeks to enter the United States temporarily in order to
    continue to render his services to the same employer or a
    subsidiary or affiliate thereof in a capacity that is
    managerial, executive, or involves specialized knowledge, and
    the alien spouse and minor children of any such alien if
    accompanying him.* * *
        The visas are good for up to 5 years for aliens admitted to
    render services in a capacity that involves specialized
    knowledge and for up to 7 years for aliens admitted to render
    services in a managerial or executive capacity.
        To make the L visa program more convenient for established
    and frequent users of the program, ``blanket'' L visas are
    available. If an employer meets certain qualifications--it (1)
    is engaged in commercial trade or services; (2) has an office
    in the U.S. that has been doing business for at least 1 year;
    (3) has three or more domestic and foreign branches,
    subsidiaries, or affiliates; and (4) has received approval for
    at least 10 L visa professionals during the past year or has
    U.S. subsidiaries or affiliates with annual combined sales of
    at least $25 million or has a U.S. workforce of at least 1,000
    employees--it can receive pre-approval for an unlimited number
    of L visas from the INS. While prior law allowed spouses (and
    minor children) to come to the U.S. with the L visa recipients,
    spouses were not allowed to work in the U.S. H.R. 2278 would
    allow the spouses of L visa recipients to work in the United
    States while accompanying the primary visa recipients.
        Additionally, prior law required that a beneficiary of a L
    visa have been employed for at least 1 year overseas by the
    petitioning employer. H.R. 2278 allows aliens to qualify for L
    visas after having worked for 6 months overseas for employers
    if the employers have filed blanket L petitions and have met
    the blanket petitions' requirements.
        Legislative History.--On June 21, 2001, Subcommittee on
    Immigration and Claims Chairman George Gekas introduced H.R.
    2278. On June 27, 2001, the Subcommittee on Immigration and
    Claims reported H.R. 2278 to the Judiciary Committee by a voice
    vote. On July 24, 2001, the Judiciary Committee ordered H.R.
    2278 reported by a voice vote. On August 2, 2001, the Judiciary
    Committee reported H.R. 2278 (H. Rept. 107-188). On September
    5, 2001, the House passed H.R. 2278 under suspension of the
    rules by a voice vote. On December 13, 2001, the Senate
    Judiciary Committee ordered H.R. 2278 reported and reported
    H.R. 2278 without a written report. On December 20, 2001, the
    Senate passed H.R. 2278 by unanimous consent. On January 16,
    2002, the President signed H.R. 2278 into law (Public Law 107-
    125).

    H.R. 3030, the Basic Pilot Extension of 2001 (Public Law 107-128)

        Summary.--The Immigration Reform and Control Act of 1986
    made it unlawful for employers to knowingly hire or employ
    aliens not eligible to work and required employers to check the
    identity and work eligibility documents of all new employees.
    If the documents provided by an employee reasonably appear on
    their face to be genuine, the employer has met its document
    review obligation. If a new hire produces the required
    documents, the employer is not required to solicit the
    production of additional documents and the employee is not
    required to produce additional documents. In fact, an
    employer's request for more or different documents than are
    required, or refusal to honor documents that reasonably appear
    to be genuine, shall be treated as an unfair immigration-
    related employment practice if made for the purpose or with the
    intent of discriminating against an individual because of such
    individual's national origin or citizenship status.
        The easy availability of counterfeit documents has made a
    mockery of IRCA. Fake documents are produced by the millions
    and can be obtained cheaply. In response to the deficiencies of
    IRCA, title IV of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996 instituted three employment
    eligibility confirmation pilot programs for volunteer employers
    that were to last for 4 years. Under the basic pilot, the
    proffered Social Security numbers and alien identification
    numbers of new hires are checked against Social Security
    Administration and INS records in order to weed out documents
    containing counterfeit numbers and real numbers used by
    multiple individuals and thus to ensure that new hires are
    genuinely eligible to work. Operation of the basic pilot
    program commenced in November 1997 and was set to expire in
    November 2001.
        Businesses and trade associations participating in the
    basic pilot program reported to the Judiciary Committee that
    the program has been a great success and that they favored a 2-
    year extension. They wrote that the pilot program ``enhance[s]
    the current * * * employment verification process by providing
    employers with greater assurances that they are not hiring
    unauthorized aliens and by establishing larger obstacles to
    aliens seeking to work illegally.'' H.R. 3030 extends the
    operation of the basic pilot program for an additional two
    years.
        Legislative History.--On October 4, 2001, Representative
    Tom Latham introduced H.R. 3030. On November 1, 2001, the
    Subcommittee on Immigration and Claims reported H.R. 3030 to
    the Judiciary Committee by a voice vote. On November 15, 2001,
    the Judiciary Committee ordered H.R. 3030 reported by a voice
    vote. On November 30, 2001, the Judiciary Committee reported
    H.R. 3030 (H. Rept. 107-310, Part I), and the Committee on
    Education and the Workforce was discharged from consideration
    of H.R. 3030. On December 11, 2001, the House passed H.R. 3030,
    as amended, under suspension of the rules by a voice vote. On
    December 20, 2001, the Senate passed H.R. 3030 by unanimous
    consent. On January 16, 2002, the President signed H.R. 3030
    into law (Public Law 107-128).

    H.R. 1892, the Family Sponsor Immigration Act of 2002 (Public Law 107-
            150)

        Summary.--INS regulations provide for automatic revocation
    of an immigrant visa petition when the petitioner dies,
    ``unless the Attorney General in his or her discretion
    determines that for humanitarian reasons revocation would be
    inappropriate.'' However, the Illegal Immigration Reform and
    Immigrant Responsibility Act of 1996 requires that when a
    family member petitions for a relative to receive an immigrant
    visa, the visa can only be granted if the petitioner signs a
    legally binding affidavit of support promising to provide for
    the support of the immigrant. Obviously, if the petitioner has
    died, he or she can obviously not sign an affidavit. Thus, even
    in cases where the Attorney General feels a humanitarian waiver
    of the revocation of the visa petition is warranted, under
    prior law, a permanent resident visa could not be granted
    because the affidavit requirement was unfulfilled.
        The consequences are severe for a beneficiary when his or
    her petitioner dies before the beneficiary has adjusted status
    or received an immigrant visa. If no other relative can qualify
    as a petitioner, then the beneficiary would lose the
    opportunity to become a permanent resident. If another relative
    can file an immigrant visa petition for the beneficiary, the
    beneficiary would still go to the end of the line if the visa
    category was numerically limited.
        H.R. 1892 provides that in cases where the petitioner has
    died and the Attorney General determines for humanitarian
    reasons that revocation of the petition would be inappropriate,
    a close family member other than the petitioner would be
    allowed to sign the necessary affidavit of support. Eligible
    family members of beneficiaries would include spouses, parents,
    grandparents, mother and fathers-in-law, siblings, adult sons
    and daughters, adult son and daughters-in-law and
    grandchildren. In order to sign an affidavit of support, the
    family member would need to meet the general eligibility
    requirements needed to be an immigrant's sponsor. He or she
    would need to be a citizen or national of the United States or
    an alien who is lawfully admitted to the United States for
    permanent residence, be at least 18 years of age, be domiciled
    in a State, the District of Columbia, or any territory or
    possession of the United States, and demonstrate the means to
    maintain an annual income equal to at least 125% of the Federal
    poverty line.
        Legislative History.--On May 17, 2001, Representative Ken
    Calvert introduced H.R. 1892. On June 6, 2001, the Subcommittee
    on Immigration and Claims reported H.R. 1892 to the Judiciary
    Committee, as amended, by a voice vote. On June 26, 2001, the
    Judiciary Committee ordered H.R. 1892 reported, as amended, by
    a voice vote. On July 10, 2001, the Judiciary Committee
    reported H.R. 1892 (H. Rept. 107-127). On July 23, 2001, the
    House passed H.R. 1892 under suspension of the rules by a vote
    of 379-0. On December 13, 2001, the Senate Judiciary Committee
    ordered H.R. 1892 reported, as amended, and reported H.R. 1892
    without a written report. On December 20, 2001, the Senate
    passed H.R. 1892, as amended, by unanimous consent. On February
    26, 2002, the House passed H.R. 1892, as amended, by the Senate
    by a vote of 404-3. On March 13, 2002, the President signed
    H.R. 1892 into law (Public Law 107-150).

    H.R. 1840, eligibility for in-country refugee processing in Vietnam
            (Public Law 107-185)

        Summary.--H.R. 1840 amends section 255 of Title II, the
    Department of State Authorities and Activities, of the
    ``Admiral James W. Nance and Meg Donovan Foreign Relations
    Authorization Act, Fiscal Years 2000 and 2001,'' contained in
    H.R. 3194, the ``Consolidated Appropriations Act for FY2000''
    (Public Law 106-113), to extend eligibility for refugee status
    of unmarried sons and daughters of certain Vietnamese refugees.
    H.R. 1840 extends the time period that the State Department and
    the INS have to process eligible adult, unmarried sons and
    daughters through fiscalyear 2003. It also removes the date of
    April 1, 1995, imposed by the McCain Amendment (Section 584 of the
    Foreign Operations, Export Financing, and Related Programs
    Appropriations Act, 1997, Division A of H.R. 3610, Public Law 104-208),
    so that the cases of sons and daughters processed after April 1, 1995,
    are adjudicated in the same manner as those cases processed prior to
    that date. The Act permits the INS to reconsider cases that were
    previously denied for failure of proof of family relationship, rather
    than just those cases that were denied based on the issue of co-
    habitation with the principal alien. Finally, the Act expands
    eligibility to adult, unmarried sons and daughters whose principal
    parent has died, but whose surviving parent is maintaining a residence
    in the United States or is awaiting departure formalities from Vietnam.
        Legislative History.--On May 15, 2001, Representative Tom
    Davis introduced H.R. 1840. On June 27, 2001, the Subcommittee
    on Immigration and Claims reported H.R. 1840 to the Judiciary
    Committee, as amended, by a vote of 6-3. On October 10, 2001,
    the Judiciary Committee ordered H.R. 1840 reported, as amended,
    by a voice vote. On October 29, 2001, the Judiciary Committee
    reported H.R. 1840 (H. Rept. 107-254). On October 30, 2001, the
    House passed H.R. 1840 under suspension of the rules by a voice
    vote. On May 10, 2002, the Senate passed H.R. 1840 by unanimous
    consent. On May 30, 2002, the President signed H.R. 1840 into
    law (Public Law 107-185).

    H.R. 3231, The Barbara Jordan Immigration Reform and Accountability Act

        Summary.--The INS has been a beleaguered bureaucracy for
    decades. Congress has increased the INS's budget, hoping that
    additional resources were what was needed to solve the agency's
    shortcomings. The INS's budget increased from $1.4 billion in
    fiscal year 1992 to $5.5 billion in fiscal year 2002.
    Notwithstanding this budgetary expansion, the INS's performance
    has not improved. Most Members of Congress have grown
    increasingly frustrated with the agency's poor performance in
    both immigration services and enforcement.
        The magnitude of the INS's problems is extraordinary--it
    had a backlog of 4.9 million applications and petitions at the
    end of fiscal year 2001, forcing aliens trying to play by the
    rules to wait in limbo for years. The Census Bureau estimates
    that at least eight million undocumented aliens reside in the
    U.S. Over 300,000 criminal and deportable aliens ordered
    removed by immigration judges have absconded. Much of the INS's
    failure stems from the conflict between its enforcement and
    service missions. The INS is unable to adequately perform
    either of its missions. Rather, the agency appears to move from
    one crisis to the next, with no coherent strategy of how to
    accomplish both missions successfully.
        The Immigration Act of 1990 established the U.S. Commission
    on Immigration Reform (CIR) to review and evaluate our
    immigration system. The CIR, chaired by the late Barbara
    Jordan, concluded that the INS suffered from mission overload.
    The Commission explained that the INS must give equal weight to
    more priorities than any one agency can handle. The Commission
    stated that ``[i]mmigration law enforcement requires staffing,
    training, resources, and a work culture that differs from what
    is required for effective adjudication of benefits or labor
    standards regulation of U.S. businesses.'' \1\ Such a system is
    set up for failure and, with such failure, further loss of
    public confidence in the immigration system.
    ---------------------------------------------------------------------------
        \1\ U.S. Commission on Immigration Reform, Becoming an American:
    Immigration and Immigrant Policy, 1997 Report to Congress 148.
    ---------------------------------------------------------------------------
        On the issue of structural and management reform, the CIR
    found that the current structure for the administration of the
    immigration law was problematic. In fact, the CIR found that
    ``no one agency is likely to have the capacity to accomplish
    all of the goals of immigration policy equally well.'' \2\
    Also, the CIR stated that the system compounded the problems of
    fragmentation, redundancy and delay. To resolve these problems,
    the CIR recommended the dismantling of the INS.
    ---------------------------------------------------------------------------
        \2\ Id.
    ---------------------------------------------------------------------------
        The INS has reorganized itself numerous times in just the
    last two decades. However, if one glances at the current
    organizational chart of the INS, it is clear how dysfunctional
    the agency's structure is, even after these numerous internal
    reorganizations over the years. In response to the CIR's
    recommendations, several INS restructuring proposals were
    offered by Members of Congress, think tanks, and policy
    experts. The Fiscal Year 1998 Commerce, Justice, State
    Appropriations Conference Report required the Clinton
    Administration to review the recommendations of the CIR on
    restructuring, reorganizing and managing the immigration
    responsibilities of the INS. The INS rejected the CIR's
    recommendations and presented its own restructuring plan in
    April 1998. The proposal called for splitting INS's enforcement
    components from its service components, but leaving both within
    the INS. The proposal would have eliminated the current INS
    structure of over 30 district and 3 regional offices and
    created new Service and Enforcement areas. The plan was to have
    approximately 6 to 12 Immigrant Service Areas and 6 to 12
    Enforcement Areas nation-wide, each with a separate chain of
    command reporting to an Executive Associate Commissioner at INS
    Headquarters. The Commissioner would maintain control over both
    branches. However, the INS under Commissioner Meissner never
    strongly pursued its own restructuring plan.
        A handful of INS restructuring bills were introduced and
    considered during the 105th and 106th Congresses. The plans
    ranged from duplicating the CIR's recommendation to legislating
    the Meissner restructuring plan, from creating totally separate
    enforcement and service agencies, to putting both agencies
    under the control of an Associate Attorney General. However, no
    bill moved beyond the Subcommittee level.
        H.R. 3231 would have dismantled the INS and restructured
    the agency into a better, more manageable structure (for a
    discussion of the enacted version of INS restructuring
    legislation, see the discussion of H.R. 5710). H.R. 3231 was
    intended to break the INS into smaller, more manageable pieces
    that concentrated on very different missions--administering
    immigration benefits and enforcing immigration laws. By
    separating immigration services from enforcement, managers
    would no longer have been pulled in two directions and both
    bureaus would have made significant improvements in fulfilling
    their respective statutory missions. The Bureau of Citizenship
    and Immigration Services (BCIS), led by an expert in government
    benefits, could have concentrated on improving immigration
    services and reducing adjudication backlogs for legal
    immigrants. Likewise,the Bureau of Immigration Enforcement
    (BIE), led by a law enforcement professional, would have been an agency
    with a true enforcement mission: denying admission to aliens who should
    be kept out of the U.S., and apprehending and removing aliens along the
    border and in the interior who were deportable. Each bureau would have
    had a distinct mission, would have been able to craft its own policies,
    and would have had its own budget and its own dedicated employees who
    could not have been shifted to the other agency. No longer would
    service have been sacrificed for the sake of enforcement, or
    enforcement for the sake of service, as has happened so often in the
    past. Both functions are equally important and were treated as such in
    this legislation.
        H.R. 3231's creation of an Associate Attorney General in
    the Department of Justice who would have handled only
    immigration affairs would have raised these issues to the level
    and attention that they deserve in the Department of Justice.
    This would also have created more accountability for the
    actions taken by the bureaus than currently exists in the INS.
    The Associate Attorney General would have been responsible for
    overseeing the work of, and supervising, the directors of the
    BCIS and the BIE, coordinating the administration of national
    immigration policy and the operations of the two bureaus and
    reconciling conflicting policies of the bureaus, and allocating
    and coordinating resources in the shared support functions for
    the two bureaus through the Office of Shared Services. The day-
    to-day immigration operations would have been run and managed
    independently within each immigration bureau.
        The following narrative will more fully describe the
    provisions of H.R. 3231--
        The Associate Attorney General would have had to have had
    at least five years of experience in managing a large and
    complex organization. There would have been established a
    position of Policy Advisor for the Associate Attorney General
    for Immigration Affairs to advise the Associate Attorney
    General on all immigration and naturalization policy matters.
    While policies specific to immigration services and enforcement
    would have generally been made in each respective bureau by the
    bureau's Chief of Policy and Strategy, the Policy Advisor in
    the Associate Attorney General's office would have coordinated
    and reconciled any inconsistent policies that arose between the
    two bureaus.
        The bill would have established a position of General
    Counsel for the Associate Attorney General for Immigration
    Affairs to act as the principal legal advisor to the Associate
    Attorney General. While the directors of the bureaus may have
    had legal advisors, such legal advisors would have remained
    accountable for implementing and complying with the specialized
    legal advice, opinions, determinations, and regulations given
    by the General Counsel regarding legal matters that affected
    the Office of the Associate Attorney General or the bureaus.
        H.R. 3231 would have established the position of Chief
    Financial Officer for the Associate Attorney General for
    Immigration Affairs, who would have been responsible for
    managing the finances of the Office of Associate Attorney
    General for Immigration Affairs and the two bureaus, collecting
    payments, fines, and debts for the two bureaus, and
    coordinating budget and financial management issues with the
    bureaus. While the budgets for immigration services and
    enforcement would have been formulated and executed in each
    respective bureau by the bureau's chief budget officer, the CFO
    in the Associate Attorney General's office would have
    coordinated budget and financial issues that affected both
    bureaus.
        The bill would have established a position of Director of
    the Office of Shared Services for the Associate Attorney
    General for Immigration Affairs to be responsible for the
    allocation and coordination of resources involved in shared
    support functions for the two bureaus, including facilities
    management, information resources management, such as computer
    databases and information technology, records and file
    management and forms management.
        The bill would have established an Office of the Ombudsman
    in the Office of the Associate Attorney General for Immigration
    Affairs who would have reported directly to the Associate
    Attorney General and must have had a background in customer
    service and immigration law. The functions of the Ombudsman
    would have been: (1) assisting individuals and employers in
    resolving problems with the BCIS; (2) identifying areas in
    which individuals and employers have problems in dealing with
    the BCIS; (3) proposing changes in the administrative practices
    of the BCIS to mitigate identified problems; and (4)
    identifying potential legislative changes appropriate to
    mitigate such problems.
        H.R. 3231 would have established the Office of Professional
    Responsibility and Quality Review in the Office of Associate
    Attorney General for Immigration Affairs. The Director of the
    Office of Professional Responsibility and Quality Review would
    have conducted investigations of non-criminal allegations of
    misconduct, corruption, and fraud involving any employee of the
    Office of the Associate Attorney General for Immigration
    Affairs or the two bureaus that were not subject to
    investigation by the Justice Department's Office of the
    Inspector General; inspected the operations of the Associate
    Attorney General's office and the two bureaus; provided
    assessments of the quality of the operations of the office and
    bureaus as a whole and each of their components; and provided
    an analysis of the management of the Associate Attorney
    General's office and the two bureaus.
        The bill would have established an Office of Children's
    Affairs within the Office of the Associate Attorney General for
    Immigration Affairs. The Office of Children's Affairs would
    have been headed by a Director, who would have reported to the
    Associate Attorney General for Immigration Affairs. The bill
    would have transferred the functions with respect to the care
    and placement of unaccompanied alien children that had been
    exercised by the INS Commissioner, to the Director of the new
    Office of Children's Affairs. The new Office would have been
    responsible for coordinating and implementing the law and
    policy for unaccompanied alien children who came into the
    custody of the Department of Justice; making placement
    determinations for all unaccompanied alien children apprehended
    by the Attorney General or who otherwise came into the custody
    of the Department of Justice; identifying and overseeing the
    infrastructure and personnel of facilities that housed
    unaccompanied alien children; annually publishing a state-by-
    state list of professionals or other entities qualified to
    provide guardian and attorney services; maintaining statistics
    on unaccompanied alien children; and reuniting unaccompanied
    alien children with a parent abroad, where appropriate. H.R.
    3231 would not have altered or affected substantive immigration
    law with regard to unaccompanied alien children in the United
    States.
        H.R. 3231 would have transferred all functions, personnel,
    infrastructure, and funding of the Office of Immigration
    Litigation from the AssistantAttorney General, Civil Division,
    to the Associate Attorney General for Immigration Affairs. The
    Associate Attorney General could have, in his discretion, charged his
    General Counsel with such functions, or transferred the functions
    elsewhere within the Office of the Associate Attorney General for
    Immigration Affairs.
        Regardless of any other provision of law, H.R. 3231 would
    have permitted the Associate Attorney General for Immigration
    Affairs to impose disciplinary action, including termination of
    employment, under the same policies and procedures applicable
    to FBI employees, upon any employee of the Office of the
    Associate Attorney General for Immigration Affairs or the
    bureaus who willfully deceived the Congress or agency
    leadership on any matter.
        H.R. 3231 would have established the Bureau of Citizenship
    and Immigration Service in the Justice Department. The bureau
    would have been headed by a Director, who would report directly
    to the Associate Attorney General for Immigration Affairs and
    must have had at least 10 years professional experience in
    adjudicating government benefits or services, at least five of
    which must have been years of service in a managerial capacity
    or in a position affording comparable management experience.
    The bureau director would have established citizenship and
    immigration services policies for the bureau, overseen the
    administration of such policies and advised the Associate
    Attorney General on any policy or operation of the BCIS that
    might have affected the BIE, including potentially conflicting
    policies or operations, met regularly with the Ombudsman to
    correct serious service problems identified by the Ombudsman,
    and established procedures for a formal response to any
    recommendations submitted in the Ombudsman's annual report to
    Congress. The bureau director would also have designated an
    official to administer student visa programs and the foreign
    student tracking system. The Director would have provided any
    information collected by the tracking system to the Director of
    the BIE necessary to enforce immigration laws.
        The bill would have transferred from the INS Commissioner
    to the Director of the BCIS the following functions, and all
    personnel, infrastructure, and funding given to the
    Commissioner in support of such functions prior to the
    abolishment of the INS: (1) adjudications of nonimmigrant and
    immigrant visa petitions; (2) naturalization petition
    adjudications; (3) asylum and refugee application
    adjudications; (4) service center adjudications; and (5) all
    other immigration benefit adjudications under the Immigration
    and Nationality Act.
        The bill would have established an Office of Citizenship in
    the BCIS, headed by the Chief. The Chief would have promoted
    instruction and training on citizenship responsibilities for
    aliens interested in becoming naturalized citizens of the
    United States, including the development of educational
    materials.
        H.R. 3231 would have created sectors of the BCIS, headed by
    sector directors and located in appropriate geographic
    locations. Sectors would have been responsible for directing
    all aspects of the BCIS' operations within their assigned
    geographic areas of activity. Sector directors would have
    provided general guidance and supervision to the field offices
    of the BCIS within their sectors.
        The bill also would have established field offices in the
    BCIS, headed by field directors, who may have been assisted by
    deputy field directors. Field offices would have been
    responsible for assisting the Director of the BCIS in carrying
    out the Director's functions. Field directors would have been
    subject to the supervision and direction of their respective
    sector director, while field directors outside of the United
    States would have been subject to the supervision and direction
    of the bureau director. All field directors would have been
    accountable to, and received their authority from, the Director
    of the BCIS to ensure consistent application and implementation
    of citizenship and immigration services policies and practices
    nationwide.
        The bill would have established service centers, headed by
    directors and responsible for assisting the bureau director in
    carrying out the director's functions that could have been
    effectively carried out at remote locations. Service center
    directors would have been subject to the general supervision
    and direction of their respective sector director, except that
    all service center directors would have been accountable to,
    and received their authority from, the bureau director, to
    ensure consistent application and implementation of citizenship
    and immigration services policies and practices nationwide.
        Regardless of any other law, the Director of the BCIS would
    have been authorized to transfer or remove any sector director,
    field director, or service center director, in the bureau
    director's discretion.
        H.R. 3231 would have established the BIE in the Justice
    Department, headed by a director who would have reported
    directly to the Associate Attorney General for Immigration
    Affairs and must have had a minimum of at least 10 years
    professional experience in law enforcement, at least five of
    which must have been years of service in a managerial capacity.
    The bureau director would have established immigration
    enforcement policies for the bureau; overseen the
    administration of such policies; and advised the Associate
    Attorney General on any policy or operation of the BIE that
    might have affected the BCIS, including potentially conflicting
    policies or operations.
        The bill would have transferred from the INS Commissioner
    to the Director of the BIE the following functions, and all
    personnel, infrastructure, and funding given to the
    Commissioner in support of such functions prior to the
    abolishment of the INS: (1) the Border Patrol program; (2) the
    detention and removal program; (3) the intelligence program;
    (4) the investigations program; and (5) the inspections
    program.
        The bill would have established sectors of the BIE, headed
    by sector directors and located in appropriate geographic
    locations. Sectors would have been responsible for directing
    all aspects of the BIE's operations within their assigned
    geographic areas of activity. Sector directors would have
    provided general guidance and supervision to the field offices
    of the BIE within their sectors.
        The bill also would have established field offices in the
    BIE, headed by field directors, who may have been assisted by
    deputy field directors. A BIE field office would have been
    required to be situated in at least every city where there
    would be situated a BCIS field office so that the two bureaus
    would have communicated with each other, could share files of
    aliens who might have faced action from both bureaus, and so
    that the BCIS could easily have brought any suspected
    application fraud to the BIE for investigation or other
    necessary immigration enforcement action. Field offices would
    have been responsible for assisting the Director of the BIE in
    carrying out the Director's functions. Field directors would
    have been subject to the supervision and direction of
    theirrespective sector director, while field directors outside of the
    United States would have been subject to the supervision and direction
    of the bureau director.
        The bill would have permitted the BIE to establish Border
    Patrol Sectors, headed by chief patrol agents, who may have
    been assisted by deputy chief patrol agents. Border Patrol
    sectors would have been responsible for the enforcement of the
    Immigration and Nationality Act within their assigned
    geographic areas of activity, unless a power and authority was
    required to be exercised by a higher authority or had been
    exclusively delegated to another immigration official or class
    of immigration officer.
        Regardless of any other law, the Director of the BIE would
    have been authorized to transfer or remove any sector director,
    field director, or chief patrol officer, in the bureau
    director's discretion. H.R. 3231 would have established an
    Office of Policy and Strategy in each bureau, headed by a
    Chief. Each Chief would have consulted with bureau personnel in
    the field and (1) established national immigration enforcement
    or services policies and priorities; (2) performed policy
    research and analysis on immigration enforcement or services
    issues; and (3) coordinated immigration enforcement or services
    policy issues with the Chief of Policy and Strategy in the
    other bureau and the Associate Attorney General for Immigration
    Affairs through the Policy Advisor for the Associate Attorney
    General's Office, as appropriate.
        The bill would have permitted the position of a Legal
    Advisor for each bureau to provide legal advice for the
    bureau's director and the bureau's employees. The bill would
    have established the position of a Chief Budget Officer for
    each bureau. The CBOs would have formulated and executed the
    budget of each bureau according to the needs of the bureau. The
    CBO would have reported to the bureau director and provided
    information to, and coordinated resolution of relevant issues
    with, the CFO for the Associate Attorney General for
    Immigration Affairs.
        H.R. 3231 would have established the Office of
    Congressional, Intergovernmental, and Public Affairs in each
    bureau headed by a Chief. The Chiefs would have provided
    enforcement or citizenship and immigration services information
    to the Congress, including information on specific constituent
    cases relating to their respective mission, served as liaisons
    with other Federal agencies on enforcement or citizenship and
    immigration services issues, and responded to inquiries from
    the media and general public on enforcement or citizenship and
    immigration services issues.
        The bill would have established within the Justice
    Department's Bureau of Justice Statistics an Office of
    Immigration Statistics, headed by a director who would have
    been appointed by the Attorney General and reported to the
    Director of Justice Statistics. The director would have been
    responsible for maintaining all immigration statistical
    information of the Office of the Associate Attorney General for
    Immigration Affairs, the BCIS, the BIE, and EOIR.
        The director would also have been responsible for
    establishing standards of reliability and validity for
    immigration statistics collected by the Office of the Associate
    Attorney General, the BCIS, the BIE, and EOIR. While this new
    Office of Immigration Statistics would have maintained all
    immigration statistics, the Office of the Associate Attorney
    General, the BCIS, BIE and EOIR, each would have given the
    Office of Immigration Statistics statistical information from
    the operational data systems controlled by each respective
    component.
        H.R. 3231 would have required the Associate Attorney
    General for Immigration Affairs to ensure that the databases of
    the Office of the Associate Attorney General and those of the
    bureaus were integrated with each other and with the databases
    of EOIR to permit the electronic docketing of each case by date
    of service upon an alien of the charging document, and the
    tracking of the status of any alien throughout the alien's
    contact(s) with the United States immigration authorities,
    regardless of whether the entity with jurisdiction of the alien
    was the BCIS, the BIE, or EOIR.
        The bill would have authorized such appropriated sums as
    were necessary to (1) abolish the INS; (2) establish the Office
    of the Associate Attorney General for Immigration Affairs, the
    BCIS, the BIE, and their components, and the transfers of
    functions required under H.R. 3231; and (3) carry out any other
    duty related to the reorganization of the immigration and
    naturalization functions that is necessary by H.R. 3231. The
    amounts appropriated would have had to remain available until
    expended. The Associate Attorney General for Immigration
    Affairs would have been designated as the principal person in
    the Department of Justice to appear before the House and Senate
    Appropriations Committees regarding appropriation requests,
    unless the Attorney General otherwise designated.
        The bill would also have established a separate account in
    the general fund of the United States Treasury known as the
    ``Immigration Reorganization Transition Account.'' All
    appropriated amounts mentioned above, in addition to amounts
    otherwise generated or reprogrammed, would have been deposited
    into this transition account.
        H.R. 3231 would have established separate accounts in the
    U.S. Treasury for appropriated funds and other deposits
    available for the BCIS and the BIE. It would also have required
    the Director of the Office of Management and Budget to separate
    the budget requests for the two bureaus to ensure that the two
    bureaus are funded to the extent necessary to fully carry out
    their respective functions. Fees imposed for a specific
    service, application, or benefit would have to have been
    deposited into the appropriate account for the bureau with
    jurisdiction over the function to which the fee related. No fee
    could have been transferred between the BCIS and the BIE.
        The bill would also have ended the policy of using a
    portion of fees paid by visa applicants to cover the costs of
    adjudication of asylum applications. In addition, H.R. 3231
    would have authorized such sums as were necessary to process
    refugee, asylum, and adjustment of status for refugees
    applications.
        H.R. 3231 would have required the Attorney General to
    report to the Committees on Appropriations and the Judiciary of
    both the House of Representatives and the Senate on the
    proposed division and transfer of funds, as well as the
    division of personnel among the Office of the Associate
    Attorney General for Immigration Affairs and the two bureaus.
    The bill would also have required the Attorney General to
    submit to the same Committees an implementation plan to carry
    out H.R. 3231.
        The bill would have required the Attorney General to report
    to the Appropriations and Judiciary Committees of both chambers
    on plans to improve immigration services and immigration
    enforcement. The Attorney General must also have submitted to
    Congress a report to ensure a prompt and timely response to
    emergent, unforeseen, or impending changes in applications for
    immigration benefits, including the amount of immediate funding
    that would be needed to respond to such unforeseen changes.
        The last report that would have been required of the
    Attorney General related to the cost effectiveness of interior
    checkpoints. H.R. 3231 would have required the Attorney General
    to establish an internet-based system that would permit
    individuals and employers with immigration applications filed
    with the Attorney General to have access to online information
    about the processing status of the application. The bill would
    also have required the Attorney General to conduct a
    feasibility study on giving applicants the ability to file
    applications on-line. The bill would have required the Attorney
    General to establish an advisory committee to assist the
    Attorney General in establishing the tracking system and
    conducting the study.
        H.R. 3231 would have authorized the Attorney General, after
    submitting a strategic restructuring plan to the appropriate
    congressional committees, to make voluntary separation
    incentive payments to certain employees to help carry out the
    strategic restructuring plan.
        Finally, the bill would have permitted the Attorney General
    to conduct a five-year demonstration project for the purpose of
    determining whether changes in the employee disciplining
    policies or procedures would have resulted in improved
    personnel management. The demonstration project would had to
    have encouraged the use of alternative means of dispute
    resolution, whenever appropriate, and the expeditious, fair,
    and independent review of any action would have been required.
    Non-managers or supervisors would not have been included within
    the project. However, an aggrieved employee within a labor
    organization could have elected to participate in the
    demonstration project's complaint procedure in lieu of any
    negotiated grievance procedure.
        Legislative History.--On November 6, 2001, Chairman F.
    James Sensenbrenner, Jr., introduced H.R. 3231. The Judiciary
    Committee held one day of hearings: ``Restructuring the INS-How
    the Agency's Dysfunctional Structure Impedes the Performance of
    its Dual Mission'' on April 9, 2002. Testimony was received
    from The Honorable James W. Ziglar, Commissioner of the INS;
    Richard J. Gallo, President of the Federal Law Enforcement
    Officers Association; Dr. Susan F. Martin, Director for the
    Institute for the Study of International Migration at
    Georgetown University; and Mr. Lawrence Gonzalez, Washington
    Director of the National Association of Latino Elected and
    Appointed Officials Educational Fund. On April 10, 2002, the
    Judiciary Committee ordered H.R. 3231 reported, as amended, by
    a vote of 32 to 2. On April 19, 2002, the Judiciary Committee
    reported H.R. 3231 (H. Rept. 107-413). On April 25, 2002, the
    House passed H.R. 3231, as amended, by a vote of 405-9. No
    further action was taken on H.R. 3231 in the 107th Congress.
    See H.R. 5005 and H.R. 5710.

    H.R. 3375, Embassy Employee Compensation Act

        Summary.--On August 7, 1998, agents of Osama bin Laden
    orchestrated near simultaneous vehicular bombings of the US
    Embassies in Nairobi, Kenya, and Dar Es Salaam, Tanzania. These
    terrorist incidents cost the lives of over 220 persons and
    wounded more than 4,000 others. Twelve American employees of
    the federal government and their family members were among
    those killed. H.R.3375 would have provided compensation for the
    United States citizens who were victims of these bombings on
    the same basis as compensation is provided to victims of the
    terrorist-related aircraft crashes on September 11, 2001.
        On September 22, 2001, the September 11th Victim
    Compensation Fund of 2001 was established as part of Public Law
    107-42. That fund created a compensation program, administered
    by the Attorney General through a Special Master for any
    individual who was injured or killed as a result of the
    terrorist-related aircraft crashes of September 11, 2001. The
    program makes payments for physical harm, economic losses and
    noneconomic losses, such as physical and emotional pain or loss
    of enjoyment of life. In the case of a deceased individual,
    relatives of that individual may be compensated. Punitive
    damages may not be awarded. Additionally, any award under the
    Fund will be reduced by any other amount of compensation the
    claimant has received or is entitled to receive as a result of
    their injury or death.
        H.R. 3375 would have directed the Attorney General to
    provide compensation for American citizen victims of the United
    States Embassy bombings through the Special Master appointed to
    administer the September 11th Victim Compensation Fund.
        Legislative History.--On November 29, 2001, Representative
    Roy Blunt introduced H.R. 3375. On April 24, 2002, the
    Judiciary Committee ordered H.R. 3375 reported by a voice vote.
    On May 20, 2002, the Judiciary Committee reported H.R. 3375 (H.
    Rept. 107-477). On May 21, 2002, the House passed H.R. 3375
    under suspension of the rules by a vote of 391-18. No further
    action was taken on H.R. 3375 in the 107th Congress.

    H.R. 4558, the Irish Peace Process Cultural and Training Program
            extension (Public Law 107-234)

        Summary.--H.R. 4558 amends the Irish Peace Process Cultural
    and Training Program Act (Public Law 105-319) to extend the
    program one year, until 2006. The program allows adults between
    the ages of 18 and 35 years old who live in disadvantaged areas
    in Northern Ireland and designated border counties of Ireland
    suffering from sectarian violence and high unemployment to
    enter the United States to develop job skills and conflict
    resolution abilities in a diverse, cooperative, peaceful, and
    prosperous environment, so that they can return to their homes
    better able to contribute toward economic regeneration and the
    Irish peace process.
        Legislative History.--On April 23, 2002, Representative
    James Walsh introduced H.R. 4558. On May 2, 2002, the
    Subcommittee on Immigration and Claims reported H.R. 4558 to
    the Judiciary Committee by a voice vote. On July 17, 2002, the
    Judiciary Committee ordered H.R. 4558 reported by a vote of 31-
    0. On July 22, 2002, the Judiciary Committee reported H.R. 4558
    (H. Rept. 107-596, Part I). On July 22, 2002, the House passed
    H.R. 4558 under suspension of the rules by a voice vote.On
    September 18, 2002, the Senate passed H.R. 4558 by unanimous consent.
    On October 4, 2002, the President signed H.R. 4558 into law (Public Law
    107-234).

    H.R. 4858, improving access to physicians in medically underserved
            areas

        Summary.--For description of language, see section 11018 of
    H.R. 2215, the 21st Century Department of Justice
    Appropriations Authorization Act (Public Law 107-273).
        Legislative History.--On June 4, 2002, Representative Jerry
    Moran introduced H.R. 4858. On June 19, 2002, the Judiciary
    Committee ordered H.R. 4858 reported by a voice vote. On June
    24, 2002, the Judiciary Committee reported H.R. 4858 (H. Rept.
    107-528). On June 25, 2002, the House passed H.R. 4858 under
    suspension of the rules by a recorded vote of 407-7. No further
    action was taken on H.R. 4858 in the 107th Congress. However,
    the language of the bill was included as section 11018 of the
    conference report for H.R. 2215, the ``21st Century Department
    of Justice Appropriations Authorization Act'' (Public Law 107-
    273).

    H.R. 4967, the Border Commuter Student Act (Public Law 107-274)

        Summary.--H.R. 4967 expands authorization for ``F'' student
    visa status to include aliens who are nationals of Canada or
    Mexico, who maintain actual residence and place of abode in
    their country of nationality, who are pursuing a full or part-
    time course of study in academic or language studies, and who
    commute to the U.S. institution or place of study from Canada
    or Mexico. The bill also expands authorization for ``M''
    student visa status to include aliens who are nationals of
    Canada or Mexico, who maintain actual residence and place of
    abode in their country of nationality, who are pursuing a full
    or part-time course of study in vocational or non-academic
    studies, and who commute to the U.S. institution or place of
    study from Canada or Mexico.
        Legislative History.--On June 19, 2002, Representative Jim
    Kolbe introduced H.R. 4967. On September 25, 2002, the
    Subcommittee on Immigration, Border Security, and Claims
    reported H.R. 4967 to the Judiciary Committee by a voice vote.
    On October 9, 2002, the Judiciary Committee ordered H.R. 4967
    reported by a voice vote. On October 15, 2002, the Judiciary
    Committee reported H.R. 4967 (H. Rept. 107-753). On October 15,
    2002, the House passed H.R. 4967 under suspension of the rules
    by a voice vote. On October 16, 2002, the Senate passed H.R.
    4967 by unanimous consent. On November 2, 2002, the President
    signed H.R. 4967 into law (Public Law 107-274).

    H. Res. 365, providing for the concurrence by the House with amendments
            in the amendment of the Senate to H.R. 1885

        Summary.--H. Res. 365 contained the language of H.R. 3525,
    the ``Enhanced Border Security and Visa Entry Reform Act of
    2002'' (later to become Public Law 107-173). It also contained
    a modified version of the language of H.R. 1885, the ``Section
    245(i) Extension Act of 2001.'' To utilize section 245(i),
    illegal aliens would have had to have immigrant visa petitions
    filed on their behalf within 120 days after the date that the
    Attorney General issues appropriate implementing regulations,
    but not later than November 30, 2002. Eligible aliens would
    have had to have entered into the family relationships
    qualifying them for permanent residence by August 14, 2001. In
    the case of employers seeking immigrant visas for aliens, the
    employers' applications for labor certification would have had
    to have been filed by August 14, 2001.
        Legislative History.--On March 12, 2002, Chairman F. James
    Sensenbrenner introduced H. Res. 365. On March 12, 2002, the
    House passed H. Res. 365 under suspension of the rules by a
    vote of 275-137. No further action was taken on H. Res. 365 in
    the 107th Congress.

    S. 1339, the Persian Gulf War POW/MIA Accountability Act of 2002
            (Public Law 107-258)

        Summary.--The Bring Them Home Alive Act of 2000 (Public Law
    106-484) requires the Attorney General to provide refugee
    status to any alien (and his or her parent, spouse, or child)
    who is a national of Vietnam, Cambodia, Laos, China, or any of
    the independent states of the former Soviet Union, and who
    personally delivers into the custody of the U.S. government a
    living American prisoner of war from the Vietnam War. The Act
    grants similar status to any alien (and his or her family
    members) who is a national of North Korea, China, or the
    independent states of the former Soviet Union, and who delivers
    a living American prisoner of war from the Korean War.
    Information regarding the Act is to be broadcast by the
    International Broadcasting Bureau over Voice of America and
    other services. S. 1339 amends the Act to encompass the 1990-91
    Persian Gulf War and any future American military operations
    against Iraq by providing refugee status to an alien (and his
    or her parent, spouse, or child) who is a national of Iraq or a
    nation of the greater Middle East, who personally delivers into
    the custody of the U.S. government a living American prisoner
    of war from the Persian Gulf War or subsequent actions against
    Iraq. To receive refugee status, the alien cannot be ineligible
    for asylum on the basis of the factors set out in section
    208(b)(2)(A)(i)-(v) of the Immigration and Nationality Act
    (such as being a criminal, a terrorist, or a danger to the
    security of the United States).
        Legislative History.--On August 2, 2001, Senator Ben
    Nighthorse Campbell introduced S. 1339. On June 27, 2002, the
    Senate Judiciary Committee ordered reported S. 1339, as
    amended, and reported S. 1339 without a written report. On July
    29, 2002, the Senate passed S. 1339, as amended, by unanimous
    consent. On October 9, 2002, the House Judiciary Committee
    ordered S. 1339 reported by a voice vote. On October 15, 2002,
    the Judiciary Committee reported S. 1339 (H. Rept. 107-749,
    Part I). On October 15, 2002, the House passed S. 1339 under
    suspension of the rules by a voice vote. On October 29, 2002,
    the President signed S. 1339 (Public Law 107-258).

    S. 1424, permanent authority for admission of ``S'' visa non-immigrants
            (Public Law 107-45)

        Summary.--S. 1424 provides permanent authorization for the
    granting of ``S'' nonimmigrant visa status for informants.
        Legislative History.--On September 13, 2001, Senator
    Kennedy introduced S. 1424 and the bill passed the Senate by
    unanimous consent. On September 15, 2001, the House passed S.
    1424 by unanimous consent. On October 1, 2001, the President
    signed S. 1424 into law (Public Law 107-45).

                                     CLAIMS

    S.J. Res. 13, a joint resolution conferring honorary citizenship of the
            United States posthumously on Marie Joseph Paul Yves Roche
            Gilbert du Motier, the Marquis de Lafayette (Public Law 107-
            209)

        Summary.--Before the 107th Congress, the United States has
    conferred honorary citizenship on only four occasions in the
    last two hundred years. Honorary citizenship is an
    extraordinary honor not lightly conferred. However, an
    exception is merited in the case of Paul Yves Roch Gilbert du
    Motier, also known as the Marquis de Lafayette. The Marquis de
    Lafayette made extraordinary contributions to, and sacrifices
    for, the cause of American independence and his support of the
    principles of representative government. The Marquis de
    Lafayette put forth his own money and risked his life for the
    freedom of Americans, was voted to the rank of Major General by
    the Congress, was wounded at the Battle of Brandywine during
    the Revolutionary War, secured the help of France to aid the
    United States' colonists against Great Britain. Upon his death,
    both the House of Representatives and the Senate draped their
    chambers in black as a demonstration of respect and gratitude
    for his contribution to the independence of the United States.
        The Marquis de Lafayette was granted citizenship by the
    States of Maryland and Virginia before the Constitution was
    adopted. In 1935, the State Department determined that the
    citizenship conferred by these states did not make him a United
    States citizen.
        Legislative History.--On April 24, 2001, Senator John
    Warner introduced S.J. Res. 13. On December 13, 2001, the
    Senate Judiciary Committee ordered S.J. Res. 13 reported to the
    Senate. On December 18, 2001, the Senate passed S.J. Res. 13 by
    unanimous consent. On April 17, 2002, the House Subcommittee on
    Immigration and Claims reported S.J. Res. 13 to the Judiciary
    Committee by a voice vote. On July 17, 2002, the House
    Judiciary Committee ordered S.J. Res. 13 reported by a voice
    vote. On July 19, 2002, the Judiciary Committee reported S.J.
    Res. 13 (H. Rept. 107-595). On July 22, 2002, the House passed
    S.J. Res. 13 under suspension of the rules, as amended, by a
    voice vote. On July 24, 2002, the Senate passed S.J. Res. 13 as
    amended by the House by unanimous consent. On August 8, 2002,
    the President signed S.J. Res. 13 into law (Public Law 107-
    209).

       ACTION ON OTHER PUBLIC LEGISLATION LEGISLATION PASSED BY THE HOUSE

    H.R. 2155, the Sober Borders Act

        Summary.--H.R. 2155 would have made driving at a land
    border port of entry with drugs or alcohol in the body a
    federal offense and would have deemed a driver to have given
    consent to submit to a drug or alcohol test by an INS officer.
    If the individual refused to submit to such a test, the bill
    would have required the Attorney General to notify the driver's
    state of jurisdiction of the driver's refusal to submit to a
    test. If a driver was convicted of driving at a land border
    port of entry under the influence of drugs or alcohol, the
    Attorney General would also have been required to notify the
    driver's state of jurisdiction of such conviction. H.R. 2155
    would have authorized INS employees inspecting drivers at land
    border ports of entry to require impaired drivers to submit to
    a drug or alcohol test if inspectors had reasonable grounds to
    believe a driver was impaired or if the officer arrested a
    driver for operating a vehicle while impaired. Finally, the
    bill would have required the Attorney General to issue
    regulations authorizing INS officers to impound vehicles
    operated at a land border port of entry if the drivers refused
    to submit to a drug or alcohol test and if the impoundment
    would not be inconsistent with the laws of the State in which
    the port of entry is located.
        Legislative History.--On June 13, 2001, Representative Jeff
    Flake introduced H.R. 2155. On September 25, 2002, the
    Subcommittee on Immigration, Border Security, and Claims
    reported H.R. 2155 to the Judiciary Committee by a voice vote.
    On October 9, 2002, the Judiciary Committee ordered H.R. 2155
    reported, as amended, by a voice vote. On October 15, 2002, the
    Judiciary Committee reported H.R. 2155 (H. Rept. 107-754). On
    October 16, 2002, the House passed H.R. 2155 under suspension
    of the rules by a recorded vote of 296-94. No further action
    was taken on H.R. 2155 in the 107th Congress.

    H.R. 2603, the ``United States-Jordan Free Trade Area Implementation
            Act''

        Summary.--While H.R. 2603 authorizes the President to
    proclaim such modifications or continuation of duty,
    continuation of duty-free or excise treatment, or additional
    duties as are deemed necessary or appropriate to carry out the
    Agreement between the United States of America and the
    Hashemite Kingdom of Jordan on the Establishment of the a Free
    Trade Area (Agreement), entered into on October 24, 2000,
    provisions dealing with competition policy and a Jordanian
    temporary immigration entry status were sequentially referred
    to the Committee on the Judiciary.
        Legislative History.--The Committee on the Judiciary
    discharged H.R. 2603 and did not conduct hearings or mark-ups
    on this legislation. H.R. 2603 was introduced by Chairman
    Thomas on July 24, 2001 and referred to the Committee on Ways
    and Means and the Committee on the Judiciary. On July 31, 2001,
    H.R. 2603 was reported by the Committee on Ways and Means and
    discharged by the Committee on the Judiciary. Also on July 31,
    2001, H.R. 2603 passed the House by voice vote, was received by
    the Senate and referred to the Senate Committee on Finance. On
    September 24, 2001, H.R. 2603 was discharged by the Senate
    Committee on Finance and passed the Senate by a voice vote. On
    September 28, 2001, H.R. 2603 was signed by President Bush and
    became Public Law No. 107-43.

                     LEGISLATION PASSED BY THE SUBCOMMITTEE

    H.R. 2623, the Posthumous Citizenship Restoration Act

        Summary.--In 1990, Congress passed the Posthumous
    Citizenship for Active Duty Service Act (Public Law 101-249)
    permitting the next-of-kin or another representative to file a
    posthumous citizenship claim on behalf of a United States non-
    citizen who died as a result of military service to our nation.
    The request for the posthumous citizenship must be filed no
    later than two years after the date of enactment (March 6,
    1990), or two years after the date of the person's death,
    whichever date is later. H.R. 2623 would have given families
    who have missed the opportunity to file posthumous citizenship
    claims on behalf of their deceased relatives an additional two
    year opportunity to file for citizenship.
        Legislative History.--On July 25, 2001, Representative
    Martin Meehan introduced H.R. 2623. On April 17, 2002, the
    Subcommittee on Immigration and Claims reported H.R. 2623 to
    the Judiciary Committee by a voice vote. While no further
    action on H.R. 2623 was taken in the 107th Congress, identical
    text was included in the section X of H.R. 2215, the ``21st
    Century Department of Justice Appropriations Authorization
    Act,'' signed into law by the President on November 2, 2002
    (Public Law 107-273).

    H.R. 4043, to bar federal agencies from accepting for any
            identification-related purposes any State-issued driver's
            license, or other comparable identification document, unless
            the State requires licenses or comparable documents issued to
            nonimmigrant aliens to expire upon the expiration of the
            aliens' nonimmigrant visas

        Summary.--H.R. 4043 would have provided that a federal
    agency may not accept for any identification-related purpose a
    driver's license (or similar identity document) unless the
    issuing State has in effect a policy requiring that when
    issuing such licenses to aliens on temporary visas, the
    licenses have expiration dates that (1) are not later than the
    last day of validity of the visas, or (2) are not later than 5
    years after the date the licenses were issued (if the visa's
    period of validity was subsequently modified or superseded).
    The bill would have applied to licenses first issued (or
    renewed) to nonimmigrants one year after the date of enactment.
    The Attorney General would have made grants to States to assist
    them in issuing licenses or other identity documents.
        Legislative History.--On March 20, 2002, Representative
    Jeff Flake introduced H.R. 4043. On May 2, 2002, the
    Subcommittee on Immigration and Claims ordered H.R. 4043
    reported to the Judiciary Committee by a voice vote. No further
    action was taken on H.R. 4043 in the 107th Congress.

    H.R. 4597, to prevent nonimmigrant aliens who are delinquent in child
            support payments from gaining entry into the United States

        Summary.--Section 212 of the Immigration and Nationality
    Act specifies the grounds upon which an alien is inadmissible
    to the United States. H.R. 4597 would have added a ground of
    inadmissibility for arriving aliens who are not permanent
    residents and who are in arrears on child support payments. Any
    (non-permanent resident) alien would have been inadmissible if
    the alien was more than $2,500 in arrears in child support
    obligations that were legally obligated under a judgment,
    decree, or order to pay child support. The ground of
    inadmissibility would have expired when the obligation was
    satisfied or the alien came in compliance with an approved
    payment agreement. However, the Attorney General would have
    been able to waive the ground of inadmissibility upon a request
    of the court or administrative agency having jurisdiction over
    the order or if he determined that there were prevailing
    humanitarian or public interest concerns.
        The bill also would have provided that, if consistent with
    State law, immigration officers would have been authorized to
    serve on any alien applicant for admission legal process with
    respect to any action to enforce or establish a child support
    obligation. Finally, the bill would have provided that if the
    Secretary of Health and Human Services received a certification
    from a State agency that an alien on a temporary visa was in
    arrears on child support obligations by more than $2,500, the
    Secretary could have provided the Secretary of State or the
    Attorney General information regarding the alien's
    inadmissibility.
        Legislative History.--On April 25, 2002, Representative
    Benjamin Cardin introduced H.R. 4597. On May 2, 2002, the
    Subcommittee on Immigration and Claims ordered H.R. 4597
    reported to the Judiciary Committee by a voice vote. No further
    action was taken on H.R. 4597 in the 107th Congress.

    H.R. 2276, to amend the Illegal Immigration Reform and Immigrant
            Responsibility Act of 1996 to extend the deadline for aliens to
            present a border crossing card that contains a biometric
            identifier matching the appropriate biometric characteristic of
            the alien

        Summary.--Border crossing cards have long allowed eligible
    Mexicans to travel up to 25 miles inside the border for up to
    72 hours. The Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996 mandated the issuance of new border
    crossing cards containing a machine readable biometric
    identifier. Under that Act, holders of old border crossing
    cards could still use them to cross the border until September
    30, 1999. Congress later agreed to extend the deadline to
    September 30, 2001. H.R. 2276 would have granted an additional
    one-year extension to September 30, 2002.
        Legislative History.--On June 21, 2001, Subcommittee on
    Immigration and Claims Subcommittee Chairman George Gekas
    introduced H.R. 2276. On June 27, 2001, the Subcommittee on
    Immigration and Claims ordered H.R. 2276 reported to the
    Judiciary Committee by a voice vote. No further action was
    taken on H.R. 2276 in the 107th Congress. However, H.R. 3325
    (Public Law 107-173) extended the deadline as proposed in H.R.
    2276.

    H.R. 1198, the ``Justice for United States Prisoners of War Act of
            2001''

        Summary.--On September 25, 2002, the Subcommittee on
    Immigration, Border Security, and Claims held a hearing on H.R.
    1198, which would have required that any Federal court in which
    an action is brought against a Japanese entity by a member of
    the U.S. armed forces seeking compensation for mistreatment or
    failure to pay wages in connection with labor performed in
    Japan for that entity as a prisoner of war during World War II
    apply the statute of limitations of the State in which the
    action is pending to that action. The bill would have required
    courts not to interpret a provision contained in the Treaty of
    Peace With Japan as waiving any such claims by the United
    States. The bill also stated that it was U.S. policy to ensure
    that any war claims settlement terms between Japan and any
    other country that are more beneficial than terms extended to
    the United States under the Treaty of Peace With Japan are
    extended to the United States with respect to any claim covered
    by this legislation. Finally, the bill would have authorized
    the Secretary of Veterans Affairs to secure information
    relating to chemical or biological tests conducted by Japan on
    members of the U.S. armed forces held as prisoners of war
    during World War II and required all heads of departments and
    agencies with that information to release it to the Secretary.
    Once information was received by the Secretary regarding any
    particular individual, the bill would have directed that the
    information be made available to that individual to the extent
    otherwise provided by law. Testimony was received from the
    Honorable Dana Rohrabacher; William H. Taft, IV, Legal Advisor,
    Department of State;Rob McCallum, Jr., Assistant Attorney
    General, Civil Division, Department of Justice; and Lester I. Tenney,
    PhD, Former Prisoner of War.

    H.R. 5017, a bill to amend the Temporary Emergency Wildfire Suppression
            Act to facilitate the ability of the Secretary of the Interior
            and the Secretary of Agriculture to enter into reciprocal
            agreements with foreign countries for the sharing of personnel
            to fight wildfires

        Summary.--H.R. 5017 would have amended the Temporary
    Emergency Wildfire Suppression Act by authorizing the Secretary
    of the Interior and the Secretary of Agriculture to enter into
    reciprocal agreements with foreign nations to provide federal
    employee status, for purposes of tort liability, to foreign
    personnel who are assisting in the presuppression or
    suppression of wildfires. Currently, the Secretaries are
    prohibited from entering into any such reciprocal agreement
    where the foreign nation does not assume any and all liability
    for the acts or omissions of American firefighters. Therefore,
    the only available civil remedies permitted in these agreements
    are limited to the laws of the host country. Finally, this
    section excludes firefighters, the sending country, or any
    associated organization from any action pertaining to, or
    arising out of, assistance pursuant to a reciprocal agreement
    authorized by this section.
        Legislative History.--On June 26, 2002, Representative
    Scott McInnis introduced H.R. 5017. On June 28, 2002, the
    Subcommittee on Immigration, Border Security, and Claims held a
    hearing on H.R. 5017. Testimony was received from Paul Harris,
    Esq., Deputy Associate Attorney General, U.S. Department of
    Justice and Mr. Tim Hartzell, Director for the Office of
    Wildland Fire Policy, U.S. Department of the Interior. On July
    9, 2002, the House passed H.R. 5017 under suspension of the
    rules by a voice vote. No further action was taken on H.R. 5017
    in the 107th Congress.

                                FEDERAL CHARTERS

    Subcommittee policy on new federal charters

        On March 14, 2001, the Subcommittee on Immigration and
    Claims adopted the following policy concerning the granting of
    new federal charters:
        The Subcommittee will not consider any legislation to grant
    new federal charters because such charters are unnecessary for
    the operations of any charitable, non-profit organization and
    falsely imply to the public that a chartered organization and
    its activities carry a congressional ``seal of approval,'' or
    that the Federal Government is in some way responsible for its
    operations. The Subcommittee believes that the significant
    resources required to properly investigate prospective
    chartered organizations and monitor them after their charters
    are granted could and should be spent instead on the
    Subcommittee's large range of legislative and other substantive
    policy matters. This policy is not based on any decision that
    the organizations seeking federal charters are not worthwhile,
    but rather on the fact that federal charters serve no valid
    purpose and therefore ought to be discontinued.
        This policy represented a continuation of the
    Subcommittee's informal policy, which was put in place at the
    start of the 101st Congress and has been continued every
    Congress since, against granting new federal charters to
    private, non-profit organizations.
        A federal charter is an Act of Congress passed for private,
    non-profit organizations. The primary reasons that
    organizations seek federal charters are to have the honor of
    federal recognition and to use this status in fundraising.
    These charters grant no new privileges or legal rights to
    organizations. At the conclusion of the 104th Congress,
    approximately 90 private, non-profit organizations had federal
    charters over which the Judiciary Committee has jurisdiction.
    About half of these had only a federal charter, and were not
    incorporated in any state and thus not subject to any state
    regulatory requirements.
        Those organizations chartered more recently are required by
    their charters to submit annual audit reports to Congress,
    which the Subcommittee sent to the General Accounting Office to
    determine if the reports comply with the audit requirements
    detailed in the charter. The GAO does not conduct an
    independent or more detailed audit of chartered organizations.

    H.R. 3214, to amend the charter of the AMVETS Organization (Public Law
            107-241)

        Summary.--In 1998, the delegates of the ``American Veterans
    of World War II, Korea, and Vietnam (AMVETS)'' voted to change
    the organization's name to ``American Veterans'' to more
    accurately reflect its membership. Additionally, delegates
    voted to change the structure of the governing body. Finally,
    the organization has changed the location of its headquarters
    to Lanham, Maryland. In order for these changes to be
    recognized by the Department of Veterans Affairs, the AMVETS
    federal charter had to be amended. H.R. 3214 appropriately
    amends the federal charter.
        Legislative History.--On November 1, 2001, Representative
    Michael Bilirakis introduced H.R. 3214. On April 17, 2002, the
    Subcommittee on Immigration and Claims reported H.R. 3214 to
    the Judiciary Committee by a voice vote. On July 10, 2002, the
    Judiciary Committee ordered H.R. 3214 reported by a voice vote.
    On July 12, 2002, the Judiciary Committee reported H.R. 3214
    (H. Rept. 107-569). On July 15, 2002, the House passed H.R.
    3214 under suspension of the rules a by voice vote. On
    September 5, 2002, the Senate Judiciary Committee ordered H.R.
    3214 reported to the Senate and reported the bill without a
    written report. On October 2, 2002, the Senate passed H.R. 3214
    by unanimous consent. On October 16, 2002, the President signed
    H.R. 3214 into law (Public Law 107-241).

    H.R. 3838, to amend the charter of the Veterans of Foreign Wars of the
            United States organization to make members of the armed forces
            who receive special pay for duty subject to hostile fire or
            imminent danger eligible for membership in the organization,
            and for other purposes

        Summary.--H.R. 3838 amends the federal charter of the
    Veterans of Foreign Wars. First, the Act allows any member of
    the armed forces who has received hostile fire or imminent
    danger pay to be a member of the VFW. Under the prior charter,
    members of the armed forces must have served honorably and
    received a campaign medal for service or have served honorably
    for a specific periodon the Korean peninsula. Many members of
    the armed forces who served under dangerous conditions in places such
    as Somalia or Kosovo were not eligible for VFW membership. Second, the
    Act includes the word ``charitable'' as one of the purposes of the VFW.
    Volunteerism has always been a large part of the mission of the VFW.
    However, in some states, VFW was being denied qualification as a
    charitable organization under section 501(c) of the Internal Revenue
    Code simply because the word ``charitable'' was not included in its
    charter. These amendments to the charter reflect the language of
    resolutions approved by the voting delegates of the VFW at their
    National Convention.
        Legislative History.--On March 4, 2002, Representative
    Christopher Smith introduced H.R. 3838. On April 17, 2002, the
    Subcommittee on Immigration and Claims reported H.R. 3838 to
    the Judiciary Committee by a voice vote. On July 10, 2002, the
    Judiciary Committee ordered H.R. 3838 reported by a voice vote.
    On July 12, 2002, the Judiciary Committee reported H.R. 3838
    (H. Rept. 107-570). On July 15, 2002, the House passed H.R.
    3838 under suspension of the rules by a voice vote. On
    September 5, 2002, the Senate Judiciary Committee ordered H.R.
    3838 reported to the Senate and reported the bill without a
    written report. On October 2, 2002, the Senate passed H.R. 3838
    by unanimous consent. On October 16, 2002, the President signed
    H.R. 3838 into law (Public Law 107-242).

    H.R. 3988, to amend title 36, United States Code, to clarify the
            requirements for eligibility in the American Legion (Public Law
            107-309)

        Summary.--H.R. 3988 makes a technical amendment to the
    membership qualifications language of the federal charter for
    the American Legion. Under the prior charter, veterans who left
    service were eligible to become members of the American Legion
    if they had served since ``August 2, 1990 through the date of
    cessation of hostilities, as decided by the United States
    Government'' and were ``honorably discharged or separated from
    that service or continues to serve honorably after that
    period.'' The United States Government has never issued a
    cessation of hostilities decision. For those who are no longer
    serving, they have discharge papers stating they served
    honorably during that period. However, servicemen who served
    since August 2, 1990, and are still on active duty have no
    discharge papers for the period, and are not serving after the
    cessation of hostilities, but during that period. The amendment
    would change the standard for qualification to read ``continues
    to serve during or after that period'' to make clear that
    membership is open to the thousands of active duty personnel
    who served during operations Desert Shield, Desert Storm, and
    all the operations that followed in Iraq, Bosnia, Kosovo, and
    Afghanistan.
        Legislative History.--On March 18, 2002, Subcommittee on
    Immigration and Claims Chairman George Gekas introduced H.R.
    3988. On April 17, 2002, the Subcommittee on Immigration and
    Claims reported H.R. 3988 to the Judiciary Committee by a voice
    vote. On July 10, 2002, the Judiciary Committee ordered H.R.
    3988 reported by a voice vote. On July 12, 2002, the Judiciary
    Committee reported H.R. 3988 (H. Rept. 107-571). On July 15,
    2002, the House passed H.R. 3988 under suspension of the rules
    by a voice vote. On November 14, 2002, the Senate Judiciary
    Committee ordered H.R. 3988 reported to the Senate, reported
    the bill without a written report and the Senate passed H.R.
    3988 by unanimous consent. On December 2, 2002, the President
    signed H.R. 3988 into law (Public Law 107-309).

               Private Claims and Private Immigration Legislation

        During the 107th Congress, the Subcommittee on Immigration
    and Claims received referral of 25 private claims bills and 56
    private immigration bills. The Subcommittee held no hearings on
    these bills. The Subcommittee recommended 6 private claims
    bills and 3 private immigration bills to the full Committee.
    The Committee ordered 6 private claims bills and 3 private
    immigration bills reported favorably to the House. The House
    passed 5 private claims bills and 3 private immigration bills
    reported by the Committee. Of the 5 private claims bill and 3
    private immigration bills, 3 private claims bill and 3 private
    immigration bills were passed by the Senate and signed into law
    by the President. One bill was still pending in the Senate at
    the close of the 107th Congress. One private bill ordered
    reported by the full Committee was not approved by the full
    House prior to the close of the 107th Congress.

                              Oversight Activities

    List of oversight hearings

    Immigration and Naturalization Service and the Executive Office
                for Immigration Review, May 15, 2001 (Serial No.
                21)
    Guestworker Visa Programs, June 19, 2001 (Serial No. 22)
    United States Population and Immigration, August 2, 2001
                (Serial No. 30)
    Using Information Technology to Secure America's Borders: INS
                Problems with Planning and Implementation, October
                11, 2001 (Serial No. 43)
    Immigration and Naturalization Service Performance: An
                Examination of INS Management Problems, October 17,
                2001 (Serial No. 44)
    A Review of Department of Justice Immigration Detention
                Policies, December 19, 2001 (Serial No. 55)
    The Operations of the Executive Office for Immigration Review,
                February 6, 2002 (Serial No. 57)
    Implications of Transnational Terrorism and the Argentine
                Economic Collapse for the Visa Waiver Program,
                February 28, 2002 (Serial No. 61)
    The INS's March 2002 Notification of the Approval of Pilot
                Training Status for Terrorist Hijackers Mohammed
                Atta and Marwan Al-Shehhi, March 19, 2001 (Serial
                No. 63)
    Immigration and Naturalization Service and Office of Special
                Counsel for Immigration Related Unfair Employment
                Practices, March 21, 2002 (Serial No. 68)
    The INS's Interior Enforcement Strategy, June 19, 2002 (Serial
                No. 85)
    Risk to Homeland Security from Identity Fraud and Identity
                Theft (Held jointly with the Subcommittee on Crime,
                Terrorism, and Homeland Security), June 25, 2002
                (Serial No. 86)
    Role of Immigration in the Proposed Department of Homeland
                Security pursuant to H.R. 5005, the Homeland
                Security Act of 2002, June 27, 2002 (Serial No. 91)
    The INS's Implementation of the Foreign Student Tracking
                Program, September 18, 2002 (Serial No. 105)
    Preserving the Integrity of Social Security Numbers and
                Preventing Their Misuse by Terrorists and Identity
                Thieves (Held jointly with the Subcommittee On
                Social Security of the Committee on Ways and
                Means), September 19, 2002 (Serial No. 102)
    The INS's Interactions with Hesham Mohamed Ali Hedayet, October
                9, 2002 (Serial No. 110)
    United States and Canada Safe Third Country Agreement, October
                16, 2002 (Serial No. 111)

    Examination of INS management of its dual missions

        The Subcommittee on Immigration, Border Security and Claims
    engaged in an ongoing examination of INS's mismanagement of its
    service and enforcement missions to assist the Committee in its
    legislative restructuring of the INS. For an analysis of INS's
    troubled management history, see the description of H.R. 3231.
        On May 15, 2001, the Subcommittee held an oversight hearing
    on ``the Immigration and Naturalization Service and the
    Executive Office for Immigration Review.'' Witnesses included
    Kevin Rooney, Director of EOIR and then-Acting INS
    Commissioner, Peggy Philbin, Acting Director of EOIR, Bishop
    Thomas Wenski, the Auxiliary Bishop of Miami who testified on
    behalf of the National Conference of Catholic Bishops'
    Committee on Migration, and Roy Beck, Executive Director,
    Numbers, USA.
        On October 17, 2001, the Subcommittee held an oversight
    hearing on ``Immigration and Naturalization Service
    Performance: An Examination of INS Management Problems''. The
    Subcommittee heard from Glenn Fine, Inspector General of the
    U.S. Department of Justice, Richard Stana, Associate Director
    for Administration of Justice Issues, General Accounting
    Office, Elizabeth Espin Stern, Shaw Pittman, LLP, and Larry
    Gonzalez, Director, National Association of Latino Elected and
    Appointed Officials.
        On June 6, 2002, the President released his plan to create
    the Department of Homeland Security and asked Congress for
    swift consideration. The President's plan transferred the
    functions of many agencies into the Department of Homeland
    Security, including both the immigration services and
    enforcement functions. Despite the submission of the
    Administration's bill, immigration questions remained relating
    to this new department. The plan did not describe how the INS
    would be structured within the department. Also, the authority
    over visa issuance in the plan was unusual. The authority was
    given to the new department, but consular affairs officers
    remained in the State Department under the plan. On June 27,
    2002, the Subcommittee held an oversight hearing on ``the Role
    of Immigration in the Proposed Department of Homeland
    Security'' to explore these issues and to help the Judiciary
    Committee draft appropriate legislation for an effective
    immigration system within the Department of Homeland Security.
    The witnesses were Grant Green, Under Secretary for Management
    and Resources, U.S. Department of State, John Ratigan, Baker &
    McKenzie, Mark Krikorian, Executive Director, Center for
    Immigration Studies, Kathleen Walker, the American Immigration
    Lawyers Association, and Kevin Appleby, Policy Director, U.S.
    Conference of Bishops Migration and Refugee Services.
        Under Secretary Green supported the President's hybrid
    proposal for visa issuance. He said it would ensure that the
    Secretary of State retains the authority to deny visas on
    foreign policy grounds because visa decisions abroad are
    important in carrying out foreign policy. In emphasizing the
    importance of information sharing, Green stated that the State
    Department believed that a new Department of Homeland Security
    empowered to provide to consular officers abroad all the
    information that the U.S. Government possesses from whatever
    source is the most essential element in assuring the denial of
    visas to those who would do us harm.
        He also noted the skills and training of consular officers,
    stating that these qualities peculiar to the Foreign Service
    would complement and strengthen those of the new Homeland
    Security Department to prevent potential terrorists from
    entering the country.
        Mr. Ratigan testified that the visa function should be
    transferred from the State Department to the Department of
    Homeland Security and then incorporated into the INS, or its
    successor, to form a single, unified Government entity
    responsible for the formulation and implementation of U.S.
    immigration policy. He explained that this action would
    finally, 50 years after the passage of the Immigration and
    Nationality Act, give the U.S. a single policymaking and
    implementing body in immigration. Unifying U.S. immigration
    policy formulation and implementation under one roof, like the
    model established in Australia and Canada, would end the
    awkward and inefficient structure of shared authority with the
    State Department and the INS. It would also improve internal
    communication and coordination, improve case handling for
    applicants, make the immigration agency more attractive as a
    profession with the added overseas positions, and elevate the
    importance of fighting fraud above the State Department's main
    priority of facilitating travel and the free movement of
    people.
        Mr. Ratigan noted the financial interest the State
    Department has in keeping visa issuance in its own department.
    If the function were transferred to the Homeland Security
    Department, the State Department would lose approximately $400
    million annually in non-appropriated funds.
        Mr. Krikorian testified that the service half of the INS
    must transfer to the Department of Homeland Security in
    addition to the enforcement half of the agency. He also argued
    that the visa function of the State Department should transfer
    to the new Homeland Security Department. Krikorian explained
    that terrorists have used all avenues of our immigration system
    to operate in the U.S. undetected, concluding that granting
    green cards or citizenship is a homeland security issue.
        Ms. Walker testified that AILA would prefer immigration to
    remain in the Justice Department rather than move it to the
    Department of Homeland Security. If immigration must move to
    the new department, she proposed a fifth prong in the
    department structure for immigration only. Walker advocated for
    transferring EOIR out of the Justice Department and making it
    an independent agency to improve public perception of the
    agency. Walker also testified that visa issuance should remain
    in the State Department rather than move to the Department of
    Homeland Security.
        Mr. Appleby stated that the Conference of Catholic Bishops
    opposes the transfer of the INS in its entirety to the Homeland
    Security Department. Instead, he recommended that specific
    enforcement components be transferred to the new department,
    while the remainder of the INS, including services and some
    non-terrorist related immigration enforcement functions, remain
    in the Justice Department. Appleby explained that immigration
    services already competing forlimited resources within the INS
    would receive even less priority and resources in a new department. He
    added that the overwhelming majority of immigrants who enter the U.S.
    and for whom the new agency would be responsible are not national
    security threats to our country.

    Review of the immigration detention policies and procedures of the
            Department of Justice

        In the 106th and 107th Congresses, the Subcommittee
    received information indicating that a large number of aliens
    released by the INS abscond rather than appearing for hearings
    or removal. In the first session, the Subcommittee undertook a
    review of the Justice Department's detention and release
    policies, to assess whether those policies contributed to the
    large number of alien absconders. That review is ongoing.
        According to statistics released by the Executive Office
    for Immigration Review, the rate of aliens who failed to appear
    for hearings overall fluctuated between 21 and 25 percent from
    FY 1996 to FY 1999. All tolled, between FY 1996 and FY 2000,
    more than 250,000 aliens failed to appear for hearings after
    being released from INS custody.
        Certain criminal aliens released from INS custody pose a
    danger to the public. In response to requests from the
    Subcommittee, the Department of Justice has disclosed that more
    than a third of aliens released from INS custody have gone on
    to commit criminal offenses, including violent crimes and drug
    crimes. The INS released 35,318 criminals between October 1994
    and May 1999. Of that number, 11,605 aliens committed further
    crimes. Among those crimes were 1,845 violent crimes, including
    98 homicides, 142 sexual assaults, 44 kidnapings, and 347
    robberies.
        In addition, aliens who were released from INS custody have
    gone on to commit terrorist acts in the United States. Of
    particular note is Ramzi Yousef, a Pakistani citizen and
    national who was the mastermind behind the first World Trade
    Center bombing in 1993. On September 1, 1992, Yousef traveled
    to John F. Kennedy International Airport in New York under an
    assumed name and using a falsified passport. Upon his arrival
    at JFK, Yousef was arrested by the INS because he did not have
    a visa to enter the United States. During inspection, he
    claimed to be an Iraqi dissident seeking asylum. Because of a
    lack of detention space, the INS paroled him into the United
    States. Once released by the INS, he carried out the first
    bombing of the World Trade Center in 1993, reportedly fleeing
    the United States the night of the attack. Yousef is currently
    serving a life sentence in the United States.
        Section 236(a) of the Immigration and Nationality Act gives
    the Attorney General discretionary power to arrest and detain
    an alien pending a decision on whether the alien is to be
    removed from the United States. Despite the fact that the Act
    gives the Attorney General the authority to release many
    aliens, the Attorney General has long been prohibited from
    releasing specified aliens. The Illegal Immigration Reform and
    Immigrant Responsibility Act of 1996 expanded this category of
    nonreleasable aliens. Currently, the INS must detain arriving
    aliens subject to mandatory detention, aliens with criminal
    convictions, aliens removable under the terrorism grounds of
    inadmissibility and deportability, and those under final orders
    of removal.
        Aliens not otherwise subject to mandatory detention are
    eligible for release under one of two procedures, depending on
    the alien's status. Arriving aliens seeking admission at a port
    of entry can only be released on parole. All other aliens not
    subject to mandatory detention may be released on bond.
        In order to be released on bond, an alien must demonstrate
    to the INS's satisfaction that the alien would not pose a
    danger to persons or property if released and is likely to
    appear for any future proceeding. The IJs have authority to
    review INS bond decisions, and an appeal from an IJ bond
    decision may be taken by either party to the BIA. The INS may
    appeal a BIA release determination to the Attorney General. The
    BIA has held that an alien who is eligible for bond should not
    generally be detained pending a determination of removability
    absent a finding of dangerousness or flight risk.
        The requirements for parole are more strict than the
    requirements for release on bond. Parole is now allowed only on
    a ``case-by-case basis for urgent humanitarian reasons or
    significant public benefit.'' The IJs and BIA lack review
    jurisdiction over parole denials, but review of such denials
    may be sought in federal District Court on habeas.
        The Subcommittee reviewed the factors that are considered
    in deciding whether an alien would pose a danger if released
    and is likely to appear for future proceedings, and why,
    despite consideration of those factors, so many aliens who are
    released commit criminal offenses, and/or fail to appear for
    proceedings or deportation.
        The Subcommittee focused, in particular, on the release of
    arriving aliens. As part of that investigation, Committee staff
    met with INS officials responsible for making detention
    decisions and visited two INS detention centers at which
    arriving aliens are held in October 2001.
        On October 23, 2001, staff toured the Wackenhut Detention
    Facility in Jamaica, New York (Jamaica facility). The Jamaica
    facility is one of the primary detention centers for aliens
    seeking admission at John F. Kennedy International Airport. On
    October 24, 2001, staff toured the Elizabeth Detention Center
    in Elizabeth, New Jersey, the primary detention center for
    aliens seeking admission at Newark International Airport. On
    October 24, 2001, staff also met with the INS New York District
    Director, Edward J. McElroy, and his staff. In 1997, the New
    York District increased detention space for housing
    inadmissible aliens when it opened the Jamaica facility.
    Reversing a policy of paroling inadmissible aliens for
    immigration proceedings, the New York District now detains
    almost all aliens who are inadmissible for fraud and document-
    related reasons. The District has concluded that this policy
    ensures the security of the United States and ensuring
    compliance with the immigration laws.
        In reviewing the failure of arriving aliens to appear after
    being paroled by the INS, staff also examined documents
    relating to detention and parole. In testimony submitted to the
    Senate on November 13, 2001, Richard Stana of the GAO discussed
    the release of arriving aliens subject to expedited removal who
    were deemed to have a ``credible fear of persecution or
    torture.''
        Stana noted that INS policy favors the release of aliens
    found to have a credible fear, provided that the alien will
    likely appear for future removal proceedings and does not pose
    a danger to the community. He stated that there are several
    different factors that are considered in determining whether to
    release an alien found to have a credible fear, but that those
    factors are applied unevenly from office to office.
        Aliens found to have a credible fear are placed in removal
    proceedings. This is primarily done to allow those aliens to
    request asylum from an IJ. Stana concluded, however, that a
    ``significant number'' of aliens released after being found to
    have a credible fear have not subsequently appeared for removal
    proceedings. Specifically, of 2,351 aliens found to have a
    credible fear between April 1, 1997, and September 30, 1999, in
    cases in which an IJ had issued a decision, 1,000 aliens, or 42
    percent of the total, failed to appear for their hearings and
    were ordered removed in absentia. Furthermore, of the 7,947
    aliens determined to have a credible fear of persecution from
    the inception of the program on April 1, 1997 through FY 1999,
    3,140 (or almost 40 percent) had not filed for asylum as of
    February 22, 2000, despite the fact that they were released
    primarily to pursue such relief.
        As part of its review of the Justice Department's detention
    policies, staff also reviewed a recent report from the
    Department of Justice Inspector General examining instances in
    which the INS released arriving aliens for deferred inspection.
    The Inspector General reviewed a sample of 725 inspections to
    determine the effectiveness of the deferred inspections
    process. ``Deferred inspection'' is a process by which an
    Inspector at a port of entry refers an alien seeking admission
    to the United States to an onward INS office to complete
    inspection in instances in which an immediate decision
    regarding admissibility cannot be made. In 79 of the 725 cases
    reviewed by the Inspector General (11 percent of the total),
    aliens paroled into the country failed to appear for their
    inspections. Of the 79 aliens in the sample who failed to
    appear, 42 were identified as having criminal records or
    immigration violations by Inspectors at the time of deferral.
        The Inspector General found that there were no adequate
    procedures to ensure that individuals who failed to appear for
    deferred inspections were brought in to complete their
    inspection or were appropriately penalized for failing to do
    so. Absent any clear procedural guidance, the Inspector General
    determined, inspectors were largely left to their own
    discretion to determine appropriate actions when individuals
    failed to appear. The Inspector General concluded that actions
    when taken failed to yield significant results, but that more
    often, no follow-up of any kind was initiated.
        On December 9, 2001, the Subcommittee held a hearing on the
    Department of Justice's immigration detention policies.
    Witnesses were Joseph R. Greene, then-Acting Deputy Executive
    Associate Commissioner for Field Operations, INS, INS District
    Director McElroy, Professor Margaret Taylor, Wake Forest
    University School of Law, and Paul H. Thomson, Commonwealth's
    Attorney, City of Winchester, Virginia. The witnesses discussed
    the application of the INS's detention policies, alternatives
    to detention, and the consequences of the INS's failure to
    detain dangerous aliens.
        At that hearing, INS disclosed that it was currently
    detaining approximately 20,000 aliens. Of the aliens being
    detained, sixty-five percent were criminal aliens. INS
    detainees are housed in a variety of facilities across the
    country.
        The INS also detailed its detention policy, which sets
    forth guidelines for determining priorities in which aliens
    should be detained, at that hearing. This policy sets forth
    four major categories of aliens and classifies these
    individuals as required detention, high priority, medium
    priority and lower priority. The four categories are: Category
    I--mandatory detention; Category II--which includes security
    and related crimes, other criminals not subject to mandatory
    detention, aliens deemed to be a danger to the community or a
    flight risk and alien smugglers; Category III--which includes
    inadmissible non-criminal aliens (not placed in expedited
    removal), aliens who committed fraud or were smuggled into the
    United States, and worksite apprehensions; and Category IV--
    which includes non-criminal border apprehensions, other aliens
    not subject to mandatory detention, and aliens placed in
    expedited removal referred to section 240 removal proceedings.
        The Subcommittee continues to examine whether the INS's
    detention policy adequately protects the American people, and
    whether additional detention space, or a modification of the
    INS's detention policies, are needed to achieve this goal.

    Oversight of the issuance of visas to and admission to the United
            States of the 19 September 11 hijackers

        On September 26, 2001, Subcommittee Chairman Gekas and
    Ranking Member Sheila Jackson Lee sent a request to the
    Commissioner of the INS for information on all 19 aliens known
    to have participated in the September 11 attacks. On October
    11, 2001, the INS sent its initial response to that letter.
        In that response, the INS stated that 10 of the 19 were in
    lawful status, while three appeared to have overstayed the
    authorized period of their stay and were in unlawful status on
    September 11. The INS was ``unable to confirm any relating
    records based on current information on six [of the]
    individuals.''
        On November 21, 2001, the INS updated its October 11, 2001
    response. The INS stated that its previous report that two of
    the hijackers, Ahmed Alghamdi and Waleed Alsheri, were in
    illegal status was in error, based on erroneous dates of birth.
    That updated response showed that 15 of these aliens entered as
    visitors for pleasure, two as visitors for business, and one as
    a student. It showed that one (Mohammed Atta) adjusted his
    status to M-1 vocational student. Three were overstays: Satam
    Al Suqami; Nawaf Alhazmi; and Hani Hanjour.
        In a March 14, 2002, Chairman Sensenbrenner asked the INS
    for a full immigration history of all 19 hijackers, including
    each of their entries and departures from the United States,
    and the status under which each entered on each of those
    occasions. The INS sent its response on April 4, 2002. That
    information arrived bearing the legend ``DOJ Limited Official
    Use.'' Anattachment to that information warned: ``Be aware that
    dissemination to any party not entitled to receive the attached
    information may result in the imposition of criminal and/or civil
    penalties.''
        A review of the information that was provided by the INS
    showed that all 19 of the hijackers entered the United States
    on visas issued by the State Department. Accordingly, on June
    27, 2002, Judiciary Committee Chairman Sensenbrenner asked the
    Secretary of State to provide to the Committee with copies of
    the Nonimmigrant Visa Applications (Forms OF-156) prepared by
    each of those hijackers. Given the high percentage of the
    hijackers who were Saudi Arabian nationals, Chairman
    Sensenbrenner also requested copies of the Consular Packages
    for the United States Embassy in Riyadh and the United States
    Consulate in Jeddah from 1996. On July 2, 2002, the State
    Department provided the Committee with information in response
    to that request. That submission was marked ``Sensitive But
    Unclassified.''
        The Subcommittee continues to review the information that
    has been provided by both the INS and the State Department. Its
    investigation into the issuance of visas to and the admission
    of the 19 September 11 hijackers remains ongoing.

    Review of the INS issuance of visa approval letters for Mohammed Atta
            and Marwan Al-Shehhi

        In addition to the Subcommittee's general oversight into
    the admission and immigration histories of each of the 19
    September 11 hijackers, the Subcommittee also launched a
    specific investigation into the issuance of visa approval
    letters for two of the hijackers, Mohammed Atta and Marwan Al-
    Shehhi. Atta and Al-Shehhi are believed to have each been
    piloting planes that crashed into the World Trade Center on
    September 11, 2001. Six months to the day after that incident,
    the flight school that the pair attended, Huffman Aviation,
    received notification that the INS had approved the application
    of each to change his status to M-1 student. Both the
    Subcommittee and the Department of Justice's Inspector General
    found several irregularities with respect to the issuance of
    those notifications.
        Both Atta and Al-Shehhi entered the United States
    repeatedly on visitor visas between early 2000 and the
    September 11 attacks. On January 18, 2000, Al-Shehhi was
    granted a nonimmigrant visitor visa by the State Department at
    the United States Consulate in Dubai. He was admitted to the
    United States on that visa at Newark International Airport on
    May 29, 2000. On May 18, 2000, Atta was issued a nonimmigrant
    visitor visa by the State Department at the United States
    Consulate in Berlin. On June 3, 2000, Atta was admitted to the
    United States at Newark International Airport as a visitor.
    Both filed applications for change of their nonimmigrant status
    to that of a vocational student to attend Huffman, a flight
    school in Venice, Florida.
        As noted, on March 11, 2002, six months to the day after
    the September 11 attacks, Huffman received notification from
    the INS that applications to change status filed by Atta and
    Al-Shehhi had been approved. The notification letters were sent
    to the flight school from the INS Student Processing Center,
    operated by INS contractor ``Affiliated Computer Systems
    Inc.,'' out of its offices in London, Kentucky. This incident
    raised almost immediate complaints from throughout the
    government, including the Congress, President, and Attorney
    General.
        Information that the Subcommittee received in the course of
    this investigation revealed the following about Atta and Al-
    Shehhi's immigration history:
        On July 3, 2000, Atta and Al-Shehhi signed up for flight
    training at Huffman. At the time that they signed up for
    training, Atta held a private pilot's license, and was seeking
    a commercial license. Al-Shehhi was seeking both a private and
    commercial license. The two started taking lessons on July 6,
    2000.
        On August 29, 2000, Huffman filed verifications of
    eligibility for vocational nonimmigrant student status (Forms
    I-20M) for Atta and Al-Shehhi with the INS. Subsequently, on
    September 19, 2000, Atta and Al-Shehhi each applied for a
    change in status from non-immigrant visitor to non-immigrant
    student.
        In December 2000, Atta and Al-Shehhi took their last flight
    tests at Huffman. Atta received his Instrument, Single/Multi-
    Commercial Certification. Al-Shehhi was granted the same
    certification along with his private pilot's license. Atta paid
    a total of $18,703.50 for his lessons, and Al-Shehhi paid
    $20,917.63 for his.
        On January 4, 2001, after completing his training, Atta
    left the United States, travelling from Miami to Madrid. Atta
    reentered the United States at Miami International Airport on
    January 10, 2001, and applied for admission as a visitor. He
    presented his Egyptian passport during inspection, and was in
    possession of a Form I-20. This was, presumably, the I-20 that
    was filed by Huffman. The Inspector's notes reflect that Atta
    had told the Inspector that he had been attending flight school
    for five or six months. Apparently because of the information
    Atta gave to the primary Inspector, and the fact that he was
    carrying an unexpired visitor's visa, Atta was referred to
    secondary inspection to determine his admissibility during this
    entry. The INS checked its benefits processing database,
    CLAIMS, confirming that Atta had previously submitted an
    application to change his status to M-1 student. Atta was
    admitted as a nonimmigrant visitor.
        On January 11, 2001, Al-Shehhi departed the United States
    at New York. He returned seven days later through New York, and
    was referred to secondary inspection. The primary Inspector
    noted: ``Subj. left one week ago after entry in May. Has
    extension and now returning for a few more months.'' The
    secondary inspection results show that Al-Shehhi was admitted
    by the secondary Inspector as a visitor for business. The notes
    in the secondary referral entry state: ``Was in the US gaining
    flight hours to become a pilot. Admitted for four months.''
        On April 18, 2001, Al-Shehhi again departed the United
    States from Miami, going to Amsterdam. On May 2, 2001, he
    reentered the United States at Miami, and was again admitted as
    a visitor. He was not referred to secondary inspection on that
    date.\3\
    ---------------------------------------------------------------------------
        \3\ The Washington Post reported on March 17, 2002, that Atta and
    Al-Shehhi took additional flight training in the United States in June
    2001. Dan Eggen and Cheryl Thompson, Hijackers Visa Fiasco Points Up
    INS Woes, Mar. 17, 2002, at A21.
    ---------------------------------------------------------------------------
        Atta departed the United States on July 8, 2001, flying
    from Miami to Madrid. While Atta was outside of the United
    States, on July 17, 2001, his change of status application to
    M-1 student was approved. Atta reentered the United States at
    Atlanta, and was admitted as a visitor, on July 19, 2001. There
    is no indication as to whether Atta was referred to secondary
    inspection during that entry.
        On August 9, 2001, Al-Shehhi's application for change of
    status to M-1 student was approved. As noted, on March 11,
    2002, six months to the day after the September 11 attacks,
    Huffman received notification from the INS that the
    applications for change of status filed by Atta and Al-Shehhi
    had been approved. On March 14, 2002, Chairman Sensenbrenner
    sent a letter to the INS requesting information relevant to the
    INS's delayed issuance of the visa approval letters to Huffman
    for Atta and Al-Shehhi.
        On March 19, 2002, the Subcommittee held a hearing on both
    the INS's delayed notification to Huffman and on the
    immigration statuses of Atta and Al-Shehhi. Rudi Dekkers, the
    President of Huffman appeared as a witness at that hearing, as
    did Thomas Blodgett, Managing Director of ACS, Commissioner
    James Ziglar of the INS, and Michael Cutler, a Special Agent
    with the INS.
        In his testimony, the INS Commissioner admitted that the
    INS's information technology systems were ``big on information
    and small on technology.'' While improvements had taken place,
    the Commissioner conceded that ``the pace of improvement [of
    those systems] has been well behind any reasonable definition
    of the Service's needs.''
        The Commissioner also presented the Subcommittee with a
    series of measures that INS was considering to rectify gaps in
    current processes and policies related to student and visitor
    visas. Those changes fall into two categories: regulatory and
    administrative.
        First, he stated that the INS was considering regulatory
    changes to tighten up temporary visa programs. For example, the
    agency was considering a regulatory change that would result in
    most holders of visitors' visas being admitted for a period of
    30 days.
        Second, the Commissioner testified that the agency was also
    considering changing its regulations to prevent a nonimmigrant
    alien with a pending request to change to student status who
    entered under some other status from beginning a course of
    study before the alien's request for a change of status request
    to student was approved, as happened in the cases of Atta and
    Al-Shehhi.
        Third, the Commissioner stated that the INS had reduced the
    processing time for student change of status applications to 30
    days at two Service Centers and would reduce the processing
    time to 30 days or less at the remaining two. To prevent the
    possibility of a long gap in sending a return copy of the I-20,
    the Commissioner testified, the INS would immediately revise
    the process through which the I-20s are sent to the schools, so
    that the I-20 is returned promptly after the alien is
    authorized to enter into student status. In addition, the
    Commissioner stated, all applications filed at Service Centers,
    including student status applications, would be checked against
    the Interagency Border Inspection System (IBIS), an inspections
    database.
        Thomas Blodgett, Managing Director of ACS, described the
    company's business relationship with the INS. ACS operates a
    microfilm, data entry, and storage facility in London, Kentucky
    for the INS that performs high-volume transaction processing
    for the microfilming, data entry, and storage of multiple INS
    forms, including I-94 and I-20 forms. ACS receives completed
    forms from INS Service Centers, schools, and ports of entry. It
    then scans and microfilms the forms, and enters certain data
    off of the forms. The data is returned to INS in microfilm and
    electronic form, and the original form is stored by ACS for a
    period specified by its contracts with the INS. After
    expiration of the contractual storage period, ACS mails the
    original form to the originating school.
        Under its prior subcontract, ACS believed it was required
    to store those forms for 180 days before returning them to the
    school. ACS is now providing these services pursuant to a
    Blanket Purchase Agreement, dated October 22, 2001. The
    agreement changes the mandatory storage period from 180 days to
    30 days for I-20 forms.
        The third witness was Rudi Dekkers, the President of
    Huffman Aviation. Dekkers described the flight training that
    Atta and Al-Shehhi undertook at Huffman, and the role that the
    school played in Atta's and Al-Shehhi's applications for change
    of status.
        Both Atta and Al-Shehhi came to Huffman claiming they were
    unhappy with a flight school that they were attending ``up
    [n]orth,'' and seeking flight lessons. After they signed up
    with the school, Huffman found the two accommodations, from
    which they were evicted due to ``excessive rudeness'' to their
    landlord. The two were also nearly expelled from the flight-
    training program in August 2000 because of their ``behavioral
    problems'' and their inability to follow instructions. After a
    meeting with the Chief Flight Instructor, however, their
    behavior changed and they completed the course without further
    problems.
        Huffman sent Forms I-20M for the two to the INS on August
    29, 2000, along with copies of their passports. They took their
    last flight tests in December 2000, passed their FAA exams
    ``with average grades,'' and were given temporary FAA licenses
    for 120 days. After paying their bills, the two were asked to
    leave the Huffman facility ``due to their bad attitudes and not
    being liked by staff and students alike.''
        Huffman was contacted the morning after the September 11
    attacks by the FBI, which was looking for the files for the
    two. Dekkers was thereafter asked whether he recognized any of
    the other terrorists, and he said that he did not. On March 11,
    2002, Dekkers received the original I-20M's for Atta and Al-
    Shehhi in the mail. Dekkers stated that he ``was relieved to
    see the paperwork, but not surprised. It usually takes a long
    time for visas to be returned from the INS.'' Dekkers claimed
    that an INS officer from Tampa came to him on March 14, 2002,
    requesting the original I-20M's, which Dekkers provided after
    the agent produced a subpoena.
        More than two months after that hearing, on May 20, 2002,
    the Inspector General of the Department of Justice issued a
    report on the INS's contacts with Atta and Al-Shehhi. That
    report contained three sets of findings with respect to the two
    aliens.
        First, the Inspector General concluded that the inspectors
    who admitted the two aliens did not violate INS policies and
    practices. The Inspector General was unable to reach any
    definitive conclusion whether Atta's admission in January 2001
    was improper, given the limited record relating to the
    admission and the inspector's inability to remember the
    specifics of what was said at the time. The Inspector General
    found, however, that before September 11, the INS did not
    closely scrutinize aliens who were entering the United States
    to become students or consistently require them to possess the
    required documentation before entering the United States.
        Second, the Inspector General found the INS's adjudication
    and notification process for change of status applications and
    the I-20 forms associated with those applications to be
    untimely and significantly flawed. Because the INS assigned a
    low priority to adjudicating these types of applications, a
    significant backlog existed. As a result, Atta's and Al-
    Shehhi's applications were adjudicated and approved more than
    10 months after the INS received them, well after both aliens
    had finished their flight training course. Even after
    adjudication, the Inspector General found, there was another
    significant delay before the I-20 forms were mailed to the
    flight school notifying it of the approved applications because
    ACS held onto them for 180 days before mailing them to the
    school. The Inspector General found that ACS handled these
    forms consistently with its handling of other I-20 forms and
    its interpretation of the requirements of its contract with the
    INS. He determined that the evidence suggested, however, that
    the contract was written so that the I-20 forms would be
    returned to the schools within 30 days, and the Inspector
    General criticized the INS for failing to monitor adequately
    the requirements and performance of the contract. The Inspector
    General also criticized INS personnel for failing to consider
    the I-20s during the initial stages of the September 11
    investigation, and thereby failing to make the FBI aware of the
    I-20s. No one in the INS took responsibility for locating the
    forms or notifying the FBI of their existence, an oversight the
    Inspector General found to be a failure on the part of many
    individuals in the INS.
        Third, the Inspector General concluded that the INS's
    current, paper-based system for monitoring and tracking foreign
    students in the United States was antiquated and inadequate.
    The Inspector General also noted several problems with the
    process pursuant to which the INS adjudicated Atta's and Al-
    Shehhi's applications for change of status. The Inspector
    General found that Atta and Al-Shehhi did not sign their I-20
    Forms, which technically should have resulted in the forms
    being returned to them. More importantly, the Inspector General
    found, the adjudicator did not have complete information about
    Atta and Al-Shehhi before adjudicating their applications. In
    particular, the Inspector General found that according to long-
    standing INS policy, an alien who files an application for
    change of status and travels abroad abandons that application.
    Both Atta and Al-Shehhi filed applications with the INS for
    change of status on September 19, 2000, and thereafter each
    departed the United States at least twice before those
    applications were approved, abandoning those applications.
    Although the INS captures departure information in its
    Nonimmigrant Information System (NIIS) database, adjudicators
    were not required to access NIIS in every case to ensure that
    an applicant had not departed the United States while the
    application was pending.
        After concluding its investigation, the Subcommittee
    concurs with the conclusions of the Inspector General.
        As the Commissioner discussed in his testimony at the March
    19, 2002 hearing, the INS has subsequently proposed changes to
    its regulations intended to address problems in the admission
    and change of status of nonimmigrant visitors and students
    uncovered by the Subcommittee's and the Inspector General's
    investigation of Atta and Al-Shehhi.
        Specifically, the INS has promulgated an interim rule
    prohibiting non-immigrant visitors from pursuing a course of
    study prior to obtaining INS approval of a change to student
    status. The INS has stated that this change will ensure that
    aliens seeking to remain in the United States in student status
    will have received the appropriate security checks before
    beginning a course of study.
        The INS has also issued a proposed rule that would
    eliminate the minimum period of admission for a nonimmigrant
    visitor for pleasure, which is currently six months. In place
    of the minimum period of admission for visitors, the agency is
    proposing that both visitors for business and visitors for
    pleasure be admitted for a period of time ``that is fair and
    reasonable for the completion of the purpose of the visit.''
    The INS is also proposing to reduce the maximum period of
    admission for visitors from one year to six months. The
    proposed rule will also prohibit a non-immigrant visitor from
    changing to student status unless the alien states an intention
    to study at the time of admission.

    Oversight of federal agency policies and law enforcement efforts to
            prevent identity theft

        The Subcommittee has recognized the necessity to better
    understand the serious threat to homeland security that
    emanates from identity fraud and identity theft. This need was
    illuminated by the fact that nearly all the 9/11 terrorists who
    perished on the hijacked planes employed one or more false
    identities. The hijackers obtained valid drivers' licenses and
    presented those cards as identification instead of their
    national passports that might have aroused some extra level of
    scrutiny.
        Following those events, federal agents arrested hundreds of
    people working in airports, who were subsequently convicted of
    identity fraud, illegal misrepresentations, and immigration
    violations. Many of those convicted held top security
    clearances at airports and had regular access to secure areas.
        The Subcommittee held two hearings to further its
    investigation regarding the federal government's role in
    preventing identity theft and determining the level of
    continued threat from terrorists exploiting the U.S.
    vulnerability from respective security weaknesses. The
    Subcommittee recognized that the Subcommittee on Crime,
    Terrorism and Homeland Security, as well as the Subcommittee on
    Social Security of the Committee on Ways and Means were
    appropriate partners with which to hold joint hearings on this
    subject.
        The first of these joint hearings was held by the
    Subcommittee and the Subcommittee on Crime, Terrorism, and
    Homeland Security on ``The Risk to Homeland Security From
    Identity Fraud and Identity Theft,'' on June 25, 2002.
    Witnesses were the U.S. Attorney for the Eastern District of
    Virginia, Paul McNulty, Social Security Administration
    Inspector General James G. Huse, Jr.,Richard M. Stana,
    Director, Justice Issues, U.S. General Accounting Office, and Edmund
    Mierzwinski, U.S. Public Interest Research Groups Consumer Program
    Director.
        The Members heard testimony from U.S. Attorney Paul
    McNulty, regarding the details of how the 9/11 terrorists were
    successful in obtaining valid Virginia drivers' licenses using
    false identities. He also testified to the need for stronger
    penalties, and mentioned that the Attorney General has endorsed
    legislation to increase the penalties for identity theft. James
    Huse, Inspector General of the Social Security Administration,
    described the critical security vulnerability caused by tens of
    thousands of foreigners each year illegally obtaining Social
    Security numbers by using fake documents. A report issued on
    May 10, 2002, by Mr. Huse's office, revealed that 1 in 12
    foreigners receiving new Social Security Cards used counterfeit
    documents or stolen identities to get them. The report cited
    preliminary figures showing 100,000 Social Security Cards were
    wrongly issued to non citizens in 2000.\4\
    ---------------------------------------------------------------------------
        \4\ ``Foreigners obtain Social Security ID with Fake Papers,'' by
    Robert Pear, New York Times, May 19, 2002.
    ---------------------------------------------------------------------------
        Richard Stana from the GAO presented findings of a GAO
    study of identity theft completed in March 2002. That study
    provided cost data that pertained primarily to consumer and
    business losses and provided insight into the costs of identity
    theft and the investigatory complications that impact law
    enforcement. The GAO study included a review of identity theft
    investigations by Federal law enforcement agencies that
    illustrated the growing demands on law enforcement resources
    devoted to investigating and prosecuting perpetrators of
    criminal identity theft. The Subcommittee has determined that:
         There is a continuing threat from terrorists
    operating under false identities. Terrorists exploited the
    relatively weak procedures of several States to obtain legal
    identity cards that allowed them to commit the atrocities of
    September 11, 2001.
         There are no federal laws that require minimum
    standards for confirming identity before issuing identity
    documents.
         There are tens of thousands of illegal aliens and
    U.S. citizens using assumed identities working in high security
    jobs with security clearances issued by federal, state, and
    municipal agencies.
         There has been an exponential rise in identity
    theft related crime, often involving substantial financial loss
    to businesses and individual citizens. Current federal and
    state penalties for identity theft crime are insufficient, and
    law enforcement methods will need to updated to apprehend more
    identity thieves.
         There continues to be lax scrutiny of source
    documents by federal agencies and State agencies that issue
    identity cards, social security cards and drivers licenses,
    which makes it relatively easy for identity thieves to operate.
         There is a large and growing legal and illegal
    information market through which illegal aliens, criminals and
    terrorists can obtain and use valid documents such as drivers
    licenses and social security numbers.
         The INS is responsible for assisting State and
    federal agencies in training their employees in the examination
    of identity documents such as visas and immigration status
    documents. The INS does not now effectively train federal
    agencies in how to identity counterfeit source documents.
         Only after September 11, 2001, did the Social
    Security Administration reverse its policy on checking INS
    records before issuing Social Security cards to noncitizens.
    The INS has still not completed any arrangement to provide the
    SSA with automated checking of its records, despite public
    statements that this is a ``top priority.''
         There is still no biometric used either to confirm
    identity when SSA issues a card, nor any biometric attached to
    the card to confirm that the bearer is the same person to whom
    the card was issued. The SSA does not use any of the
    sophisticated anticounterfeiting measures and tamper proof
    production methods employed by the State Department for
    passports or visas, nor by the INS for the Permanent Residence
    Card or the Biometric Border Crossing Card.
         The INS is the only federal agency that actively
    pursues criminal organizations that manufacture counterfeit
    Social Security cards, false birth certificates and other false
    source identity documents. The SSA has no criminal enforcement
    powers and has initiated few programs to combat the widespread
    use of counterfeit Social Security Cards and false or stolen
    Social Security numbers. The relative lack of law enforcement
    against counterfeiting organizations makes it very easy for
    terrorists to obtain counterfeit documents that can be
    ``upgraded'' to legally issued identification documents such as
    valid Social Security cards, U.S. passports and State issued
    drivers licenses.
        The SSA's Office of the Inspector General has proposed
    changes that would reduce fraudulent use of Social Security
    cards and Social Security Card numbers. According to the OIG,
    the SSA should:
               Obtain independent verification from the
            issuing agency (for example, INS and the State
            Department) for all evidentiary documents submitted by
            noncitizens before issuing an original Social Security
            number,
               Establish a reasonable threshold for the
            number of replacement Social Security cards an
            individual may obtain during a year and over a
            lifetime, and then implement controls requiring
            management personnel to approve any applications
            exceeding this limit,
               Provide further training to its field office
            employees and perform quality reviews of Social
            Security number processing,
               Seek legislative authority to require
            chronic problem employers to use the INS/SSA pilot
            program that checks the Social Security numbers and
            alien identification numbers of new hires against SSA
            and INS data bases, and
               Continue pursuing with the IRS penalties
            against chronic problem employers, (If the IRS does not
            enforce such penalties, SSA should seek its own
            sanctioning authority.)
        The OIG also recommended that Congress and the SSA consider
    the following steps:
               Increase the number of investigative and
            enforcement resources provided for SSN misuse cases,
               Authorize SSA and its OIG to disclose
            information from SSA files as requested by the DOJ and
            FBI in times of national emergency and in connection
            with terrorist investigations,
               Expand the agency's data matching activities
            with other federal, State, and local Government
            entities, and
               Explore the use of other innovative
            technologies, such as biometrics, in the enumeration
            process.
        The second hearing took place on September 19, 2002. It was
    a joint Hearing of the Ways and Means Subcommittee on Social
    Security and Judiciary Subcommittee on Immigration, Border
    Security, and Claims titled ``Ensuring the Integrity of Social
    Security Numbers and Preventing Their Misuse by Terrorists and
    Identity Thieves''. The hearing examined the role Social
    Security number fraud plays in crime and terrorist activities,
    methods by which criminal fraud is accomplished utilizing
    stolen Social Security numbers, the integrity of the Social
    Security Administration's enumeration and wage crediting
    process, federal agency coordination and cooperation, including
    data sharing, to verify identification documents, and to detect
    and prevent fraud. The hearing also addressed recommended
    legislative proposals aimed at combating Social Security number
    misuse and protecting privacy.
        The subcommittees heard testimony from Ms. Charisse M.
    Phillips, Director, Office of Fraud Prevention Programs, Bureau
    of Consular Affairs, U.S. Department of State, regarding the
    problems that lack of conforming standards among the States in
    issuing and controlling birth certificates, death certificates,
    and driver's licenses create for federal agencies when seeking
    to confirm identity. She testified that there needs to be a
    better method to confirm Social Security numbers easily and
    routinely. She pointed out that it is difficult to confirm the
    bonafides of U.S. birth certificates and driver's licenses,
    because the U.S. has more than 8,000 authorities issuing birth
    certificates. While the commonly accepted proof of identity is
    the driver's license, she explained that high-quality
    duplicates of state licenses are available on the Internet,
    with only a removable sticker warning ``novelty item'' to deter
    criminals. She explained that the State Department's passport
    workers have no way of verifying driver's licenses, either on-
    line or though routine access.
        Mr. Jim Huse, Inspector General of the Social Security
    Administration, testified about how the current lack of
    identity theft enforcement by federal agencies, particularly
    relating to Social Security card numbers, is a significant risk
    to domestic security. He stated that in calendar year 2000 the
    SSA issued approximately 1.2 million Social Security numbers to
    non-citizens, out of some 5.5 million numbers issued in all. A
    recently conducted Office of Inspector General study indicates
    that 8 percent--196,000--of those 1.2 million SSNs were based
    on invalid immigration documents. Mr. Huse stated with alarm
    that ``[w]e have no way of determining how many SSNs have been
    improperly assigned to non-citizens throughout history. The
    issuance of SSNs based on invalid documentation creates a
    homeland security risk.* * * Protecting the integrity of that
    identifier is as important to our homeland security as any
    border patrol or airport screening.''
        Mr. Huse provided an alarming example of the ease with
    which terrorists obtain social security cards from a case that
    is just completing the sentencing phase:

              The Antiterrorist Task Force arrested a naturalized
            American citizen who had trained with Palestinian
            guerrilla groups in Lebanon since he was 12 years old.
            He was carrying a loaded semi-automatic pistol and an
            assault rifle in the back seat of his car, along with
            four loaded 30- round magazines for the rifle and
            hundreds of rounds of additional ammunition. In his
            home were a calendar with September 11th circled in
            red, three different Social Security cards in his name,
            a false Alien Registration Card, evidence of credit
            card fraud and $20,000 in cash, as well as a wood
            carved plaque with the name of the terrorist group
            Hamas on it.
              We determined he had obtained the three different
            SSNs from SSA by falsifying two of his three SSN
            applications. He had used them to get jobs as a
            security guard and as an employee with the multi-
            billion-dollar Intel Corporation, when a criminal
            history check would have kept him from getting either
            job under his true identity.

        Mr. Huse also testified as to federal agency coordination
    and cooperation to verify identification documents and to
    detect and prevent fraud. He said ``it is critical that SSA
    independently verify the authenticity of the birth records with
    States, immigration records with the Immigration and
    Naturalization Service, as well as other identification
    documents presented by an applicant for an SSN.''
        The Committee heard testimony from Robert Bond, Deputy
    Special Agent in Charge, Financial Crimes Division, U.S. Secret
    Service, in which he described how, with the passage of federal
    laws in 1982 and 1984, the Secret Service was given primary
    authority for the investigation of access device fraud and
    parallel authority with other law enforcement agencies in
    identification fraud cases.
        He explained that the Internet and advanced technology
    coupled with fierce competition within the financial sector has
    created a target rich environment for today's sophisticated
    criminals, including organized crime and foreign criminals. He
    testified that identity theft is not typically a ``stand
    alone'' crime, but almost always a component of one or more
    other crimes, such as financial crimes, violent crimes, or
    possibly, the facilitation of terrorist activities. In many
    instances, an identity theft case encompasses multiple types of
    fraud. In 2001, 20% of the 86,168 victim complaints regarding
    identity theft involved more than one type of fraud.
        Mr. Bond explained that identity theft victims have to
    repair the damage done to their credit, their savings, and
    their reputation. Among the groups most at risk are senior
    citizens.
        Mr. Grant D. Ashley, Assistant Director, Criminal
    Investigative Division of the Federal Bureau of Investigation,
    testified regarding the FBI's role in prosecuting identity
    thieves. He described investigations of identity theft,
    including bank fraud, credit card fraud, wire fraud, mail
    fraud,money laundering, bankruptcy fraud, computer crimes,
    terrorism, organized crime, and fugitive cases.
        He described how a stolen identity is employed while the
    groundwork is laid to carry out the crime. This includes the
    rental of mail drops, post office boxes, apartments, office
    space, vehicles, and storage lockers as well as the activation
    of pagers, cellular telephones, and various utility services.
    He stated the need to strengthen existing federal identity
    theft criminal statutes and endorsed changes in federal law to
    impose a mandatory two-year enhanced penalty (over and above
    the sentence that would otherwise apply in a particular case)
    for a wide range of cases involving identification document
    fraud. He also supported increasing the maximum prison term for
    possession with intent to use unlawfully of valid or fake
    identity documents from three to five years.
        Mr. Ashley gave an example of large scale identity theft:

              One case under investigation by one of our offices in
            conjunction with the U.S. Postal Inspection Service
            involves an individual who obtained personal
            identifying information such as the names, and dates of
            birth of attorneys in the Boston area from the
            Martindale-Hubbell directory of attorneys. Using this
            information, his co-conspirator visited the
            Massachusetts Bureau of Vital Records which has an open
            records policy and was able to obtain copies of birth
            certificates of his victims.
              According to interviews with the defendants, using
            the combined information, they were able to contact the
            Social Security Administration and obtain the victims'
            Social Security Numbers. Once they obtained the Social
            Security Numbers, they were able to order credit
            reports and look at the credit scores for these victims
            to determine their creditworthiness and where accounts
            already existed.
              Using this information they were able to make pretext
            calls to at least one bank and obtain the account
            number. This enabled them to wire transfer $96,000 from
            one of the victim's bank accounts, half of which went
            to a casino and the remainder went to one of the
            subject's personal accounts.
              One of these suspects also added authorized users to
            the victims' credit card accounts and ordered emergency
            replacement cards which were sent to them by overnight
            delivery. At the time of arrest, this individual was
            found to be in possession of at least 12 different
            license or identification cards from three states and
            at least four or five credit cards, all in the names of
            the victims whose identity he had stolen.

        Mr. Ashley advised that ``[t]here needs to be some serious
    review of the availability of personal identifying information,
    including the Social Security Number, over the internet,
    especially through these types of information brokers who can
    provide this information for a fee.''
        The hearing led to the following conclusions:
         Combating identity theft is key to protecting
    homeland security; According to SSA IG testimony, after the
    September 11th attacks, 5 Social Security numbers associated
    with some of the terrorists appeared to be counterfeit (were
    never issued by SSA), 1 was assigned to a child, and 4 of the
    terrorists were associated with multiple SSNs. According to FBI
    testimony, ``terrorists have long utilized identity theft as
    well as Social Security number fraud to enable them to obtain
    such things as cover employment and access to secure locations.
    These and similar means can be utilized by terrorists to obtain
    driver's licenses, and bank and credit card accounts, through
    which terrorism is facilitated.''
         Federal agencies must cooperate, as the SSA has no
    legal authority to levy fines and penalties against employers
    or employees who submit incorrect information on wage reports--
    the Internal Revenue Service enforces penalties for inaccurate
    wage reporting, and the Immigration and Naturalization Service
    has oversight responsibility for unauthorized citizens.
    Enhanced coordination and cooperation among these agencies can
    help stem the growth of Social Security number misuse.

    INS systems oversight

        The Subcommittee has a historical interest in INS
    information systems, initiating important legislation over the
    past 10 years that has mandated improvements in INS' use of
    technology. Because of the significance of INS' enforcement
    systems in combating terrorism, and the increased threat to
    Border Security from terrorism, the Subcommittee focused on
    those systems.
        The Subcommittee took a broad approach to this oversight,
    including: (1) an oversight hearing on INS Information
    Technology; (2) a GAO study of four key INS enforcement
    systems; (3) on-site investigations of INS systems in use at
    airport Ports of Entry and land Ports of Entry; (4) on-site
    investigations of new systems planning, development and
    implementation; (5) an oversight hearing on the SEVIS system
    deployment.
        The Subcommittee's oversight work on INS systems had a
    considerable impact, leading to improvements in INS management
    communication with Congress, changes in INS project management,
    a public commitment by the Department of Justice's Chief
    Information Officer to improve oversight of INS information
    technology projects, and a commitment to the GAO by INS to
    improve its processes and documentation related to baseline
    cost and schedule data of these projects. The Subcommittee's
    hearings also generated a great deal of interest from the
    public and the press regarding the role of INS systems, which
    in turn will lead to a continuing emphasis on improving INS
    systems performance and delivery.

    Oversight hearing on INS information technology

        The Subcommittee conducted an oversight hearing on the
    INS's use of information technology in enforcement on October
    11, 2001. The hearing was held to examine how the INS was
    implementing the information technology systems that it uses
    for enforcement, particularly the $111 million for new
    investment that was proposed in the FY2002 INS appropriation.
    The hearing also examined INS's lack of progress in
    implementing the automated systems component of the biometric
    Border Crossing Card and whether it constituted a critical
    mission failure or a deliberate policy decision by the former
    administration.
        Similarly, the hearing addressed the delayed implementation
    of the Student and Exchange Visitor Information System (SEVIS),
    for which the INS failed to meet a congressionally set date for
    implementation. Both these systems were mandated by the Illegal
    Immigration Reform and Immigrant Responsibility Act of 1996.
    The Subcommittee was particularly concerned about these INS
    failures given that they occurred despite the agency receiving
    ample financial resources. GAO and DOJ OIG audits had revealed
    that the INS was deficient in Enterprise Architecture
    Management, Investment Management, and Information Security
    Management.
        Commissioner Ziglar attempted to explain why the two major
    systems efforts of most interest to the Subcommittee had not
    been completed in a timely manner: (1) implementation of a
    systems approach to automated scanning of the new Biometric
    Border Crossing Card and (2) completion of a system to collect
    foreign student data from all universities, colleges and trade
    schools across the U.S. Commissioner Ziglar pledged to the
    Subcommittee Members that he would direct his managers to
    complete these two projects no later than the Spring of 2002.
        Glenn A. Fine, Inspector General, U.S. Department of
    Justice, testified that his office's reviews of INS programs
    and their associated information technology systems found
    serious process and management deficiencies. He described how
    two OIG reviews of the INS's management of its automation
    initiatives found lengthy delays in completing many automation
    programs, unnecessary cost increases, and a significant risk
    that finished projects would fail to meet the agency's needs.
    The first of these audits concluded that the INS lacked
    comprehensive performance measures and insufficiently tracked
    the status of its projects. Consequently, the INS could not
    determine if progress towards the completion of the projects
    was acceptable. As a result, he stated that the INS faced risks
    that: (1) completed projects would not meet the overall goals
    of the automation programs, (2) completion of the automated
    projects would be significantly delayed and (3) unnecessary
    cost increases would occur. In the followup 1999 audit, it was
    reported that: (1) estimated completion dates for projects were
    delayed without explanation, (2) costs continued to spiral
    upward with no justification for how funds were spent and (3)
    projects neared completion with no assurance for meeting
    performance and functional requirements.

    Subcommittee investigations into the INS's failure to implement the
            Border Crossing Card as required by Congress

        Section 104 of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996 mandated the implementation of a
    biometric Border Crossing Card. The INS began issuing the cards
    in 1998, and more than five million have been issued to date.
    By October 1, 2001 (later extended to October 1, 2002), any
    Mexican or Canadian national who seeks admission with a BCC is
    required to present the new biometric card to an inspector
    before being admitted to the United States.
        The Subcommittee Members, especially the Chairman and
    Ranking Member, were deeply concerned that while the INS issued
    cards to meet one of the requirements of section 104, it failed
    to select or procure the card-verification equipment to read
    the encrypted optic back surface of those cards, and failed to
    begin work on the system to process the information on the
    aliens to whom the cards were issued. The biometric Border
    Crossing Card (also known as the laser visa), has a photo and
    basic ID information printed on the front and machine-readable
    information contained on a special laser read/write disk
    embedded in the back of the card. It was Congress's intent that
    effective October 1, 2001, any Mexican national who seeks
    admission with a BCC will be required to present the new
    biometric card to an Inspector before being admitted to the
    United States. Those purposes included: (1) having a machine
    read the card to confirm that is was not a counterfeit card and
    that the biometric information (fingerprint and photo) matched
    both the card holder and the centralized record and (2) that an
    automated record of entry and exit be created through a
    scanning device every time the person crossed the border. This
    issue was discussed at the October 2001 hearing. Largely as a
    result of the Subcommittee Chairman's expressed concern
    following the hearing, the Emergency Supplemental
    Appropriations bill appropriated $10 million and mandated that
    the INS purchase scanners and deploy them at sea, land, and air
    ports of entry. The Subcommittee staff met regularly with the
    INS to ensure that reasonable progress was made to establish
    minimum specifications for the optic readers, an implementation
    plan for the optic surface card readers, and the procurement
    plan for their acquisition. The staff has actively monitored
    the activity of the pilot phase of the implementation plan
    which is ongoing at interior locations in Southern California
    and at selected land port of entry locations on the Southwest
    border and at the Atlanta airport. Subcommittee staff has also
    investigated the security of the card-manufacturing process and
    of the data systems that capture and store the data obtained by
    the State Department Bureau of Consular Affairs.

    Oversight of the INS's implementation of a entry-exit tracking system
            at U.S. ports of entry

        Section 110 of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996 required INS to implement an
    automated entry-exit control system for land and sea ports of
    entry. The Subcommittee required the INS to meet with staff
    regarding acceleration of development of an effective entry-
    exit system, focusing on initial deployment at inspections
    stations in airports, beginning in October 2002. The
    Subcommittee staff relied on knowledge gained through these
    meetings when drafting the Enhanced Border Security and Visa
    Entry Reform Act of 2001 (H.R. 3525). In consultation with
    staff, the INS had earlier agreed to establish an interim
    system for tracking entry and exit of airline passengers using
    data from the Advanced Passenger Information System (APIS) and
    to add that information in a more efficient way to the IBIS
    system. To ensure that the INS receives that information, H.R.
    3525 required that commercial airlines flying to the United
    States from abroad submit passenger manifests, including
    arrival and departure manifests, in advance electronically by
    January 1, 2003. The Subcommittee staff met with Customs
    officers in 2002 to monitor progress in receiving the required
    data from commercial airlines, including receiving a restricted
    report that identified which internationalairlines had not yet
    complied with the requirement. The Subcommittee staff also met with INS
    to ensure that plans had been made to capture the departure information
    that will be provided through APIS, so that foreign visitors not
    complying with the constraints of their visa admittance issued by the
    INS will be identified, starting January 1, 2003. The Subcommittee
    staff also required briefings by the INS regarding the implementation
    of biometric identification and mandatory entry and exit confirmation
    of visitors from countries identified as state sponsors of terrorism.
    The resulting system was identified by the Attorney General as a pilot
    for the United States Entry Exit System. Now in place at selected air
    and land ports of entry is the National Security Entry Exit
    Registration System, or NSEERS. The INS is now required to register,
    photograph, and fingerprint certain non-immigrant aliens subject to
    special registration as a condition of entry into the United States.
    The Subcommittee anticipates on site oversight observation of NSEERS in
    the 108th Congress.

    Oversight of the operations of the Executive Office for Immigration
            Review

        Throughout the 107th Congress, critics expressed concerns
    about the actions and operations of the Immigration Court and
    the Board of Immigration Appeals, the trial and appellate
    courts, respectively, of removal actions brought by the INS.
    These two courts are components of the Executive Office for
    Immigration Review within the Justice Department.
        Observers have complained that cases before both the
    Immigration Judges and the BIA can take years to complete, and
    reports have stated that even cases involving detained aliens
    have gone unresolved at the BIA level for extended periods of
    time. Backlogs in cases have also been growing in recent years,
    although the number of BIA members has steadily increased over
    the past six years. In addition, certain BIA members and IJs
    have been criticized, both by the public at large and by the
    immigration-law community, for failing to follow the language
    of the Immigration and Nationality Act, or for granting or
    denying relief inappropriately. The BIA has also been
    criticized for failing to defer to IJ decisions, including
    decisions premised on IJs' observations of witnesses at
    hearings. In the fall of 2001, the Subcommittee opened an
    oversight investigation into those concerns. That investigation
    is ongoing.
        Backlogs in removal cases have been a problem for the BIA
    for several years, and that problem appears to have been
    largely unaffected by an increase in resources. For several
    decades up until February 1995, the BIA had five members,
    including a Chairman. Starting in 1995, the number of BIA
    members has steadily increased. Eight new members were
    appointed in 1995, one in 1997, two in 1998, two in 1999, four
    in 2000, and two in 2001. The BIA is now composed of 23
    Members, including the Chairman and two Vice Chairmen (there
    are currently five vacancies).
        Despite the fact that the number of BIA members have more
    than quadrupled since 1995, the backlog in issuing decisions on
    appeal grew. In FY 2000, the backlog increased even more, as
    the BIA completed 23,184 appeals against 35,361 receipts. An
    article from February 2001 stated that there was, at that time,
    a backlog of 60,000 cases at the BIA, and that non-detainee
    cases were taking ``a matter of years.''
        This backlog has had tragic effects, both for aliens with
    cases languishing on appeal and for the public at large.
    Several newspaper articles published in the recent past
    described situations where aliens have been detained for years
    while waiting for the IJs and the BIA to rule on their cases.
    The backlog at the BIA has also allowed criminal aliens to
    remain in the United States to prey on the American public.
        Observers also complained about decisional irregularities
    in decisions issued by the IJs and the BIA. In an October 2000
    series, The (San Jose) Mercury News examined the grant and
    denial rate for 219 IJs from 1995 to 1999, finding
    ``extraordinary disparities from one judge to the next.'' As it
    stated ``[A]t one end of the spectrum, some judges granted
    asylum in more than half the cases they heard. At the other
    end, judges granted asylum in less than 5 percent of the cases
    they heard, some less than 2 percent.'' The Mercury News noted
    that ``[a]sylum lawyers and advocates have long complained that
    the results are arbitrary.''
        Critics have also complained that a large number of aliens
    who are released by the INS and by the IJs and the BIA
    subsequently fail to appear at scheduled hearings. According to
    statistics released by EOIR, the rate of aliens who failed to
    appear for hearings overall fluctuated between 21 and 25
    percent between FY 1996 and FY 1999. A large number of criminal
    aliens have gone on to commit additional crimes in the United
    States after they were released from INS custody.
        After collecting information on the operations of EOIR, and
    discussing the issues raised with immigration practitioners, on
    February 6, 2002, the Subcommittee held an oversight hearing on
    the operations of the office. Kevin Rooney, Director of EOIR
    appeared as a witness, as did Stephen Yoel-Loehr of the
    American Immigration Lawyers Association and former BIA members
    Michael Heilman and Lauren Mathon.
        In his testimony, Director Rooney described recent
    initiatives implemented by the BIA and Immigration Court to
    improve efficiency, expedite cases, and reduce the removal case
    backlog. Of particular note was the ``streamlining''
    initiative. Under this initiative, noncontroversial cases that
    meet specified criteria may be reviewed and adjudicated by a
    single Board Member. The types of cases in which the
    ``streamlining'' procedures may be used include unopposed
    motions, withdrawals of appeals, summary remands, summary
    dismissals, other procedural and ministerial issues determined
    by the Chairman, and affirmances of IJ decisions without
    opinion. This latter category is limited to cases (1) where the
    result reached in the decision under review was correct and any
    errors in the decision were harmless or nonmaterial, (2) where
    the issue on appeal is squarely controlled by existing BIA or
    federal court precedent and does not involve the application of
    precedent to a novel fact situation or (3) where the factual
    and legal questions raised on appeal are so insubstantial that
    three-Member review is not warranted.
        Director Rooney explained that the streamlining initiative
    was then being implemented through a pilot project, with the
    results of the project used to implement streamlining on a
    permanent basis. For FY 2002, approximately 58% of all incoming
    cases were sent to the streamlining panel, and the streamlining
    panel issued 15,372 decisions, which helped the Board increase
    its productivity by 50% for the year. Rooney asserted that an
    independent audit concluded that streamlining did not result in
    an appreciable difference in the ultimate outcome of a case,
    nor didit affect the rate of legal representation of aliens in
    appeals before the Board. He also claimed that the independent auditor
    concluded that the Streamlining Project has been an ``unqualified
    success.''
        In his testimony, former Board Member Heilman detailed
    problems that have impaired the BIA's performance and
    efficiency. Heilman stated that, having reviewed over 100,000
    appeals at the BIA, ``the overwhelming percentage of [IJ]
    decisions * * * were legally and factually correct, and that
    the subsequent appeals were without any substantial basis on
    any ground.''
        Heilman claimed that there were a number of incentives for
    aliens to appeal, including the low filing fee (waived, he
    claimed, in many of the cases) and the fact that the alien did
    not have to pay for fees or transcripts. ``[T]he single
    greatest incentive for an alien to appeal'' though, he
    asserted, was the fact that the filing of an appeal stayed the
    IJ's order until the BIA issued a decision.
        Heilman also argued that the usefulness of the BIA's
    precedent decisions has decreased as the number of Board
    Members has increased. He asserted that as the size of the BIA
    increased, the BIA ``came to be marked by internal divisions
    based on personality conflicts.'' In particular, he noted, the
    IJs ``came to see their decisions being subjected to
    intemperate and even personal critiques by certain BIA
    Members.'' The BIA panels began to issue conflicting decisions,
    and to remand increasing numbers of cases to the IJs. ``Many
    Immigration Judges came to believe that their decisions were
    not being subjected to a reasonable review, but rather the
    whims of individual Members.''
        To correct these problems, Heilman argued that the BIA
    should limit the cases that it hears on appeal, considering
    precedential cases and cases where ``a clear case has been made
    that an Immigration Judge has made an incorrect application of
    the law below.'' He also suggested that aliens should be
    required to file a brief within 30 days of filing the appeal
    identifying legal errors committed by the IJ, that a time limit
    be set by regulation or statute within which the BIA would have
    to render a decision on the merits of the appeal, that the
    number of Board Members be reduced to no more than nine, and
    that an alien be charged the cost of the alien's appeal. Other
    changes proposed by Heilman would end the present practice by
    which an alien may have an asylum application heard by both an
    INS asylum officer and an IJ, and would require cases to be
    screened by INS attorneys before they are filed with an IJ.
        Former Board Member (and current Social Security
    Administrative Law Judge) Lauren Mathon offered her own
    perspective on the backlog problem and other problems facing
    the BIA. Judge Mathon gave five reasons for the BIA's
    staggering backlog: A backlog at the time that the number of
    Board Members expanded, ``radical changes'' in the immigration
    laws in 1996 that have resulted in extensive litigation, an
    increase in the number of IJs, management difficulties at the
    BIA between 1995 and 2000, and the fact that many recent Board
    Members lack immigration expertise.
        Judge Mathon lauded three BIA initiatives: the
    ``streamlining'' initiative, the jurisdiction panel, and the
    backlog panel. She stated that the streamlining initiative
    ``allows the Board to adjudicate noncontroversial cases by a
    single Board Member,'' and claimed that it has dramatically
    increased BIA production of the Board. She explained that
    streamlining is responsible for about a third of the BIA's
    overall production. The jurisdiction panel, Judge Mathon
    stated, ``effectively and efficiently adjudicates all cases
    with jurisdictional issues,'' without having to address the
    merits of the cases considered. Judge Mathon stated that the
    backlog panel ``has been successful in making a big dent in the
    backlog.''
        To address the BIA's caseload and make Board Members
    accountable, Judge Mathon proposed setting specific time limits
    for the BIA to render decisions and mandating a result for
    failure to meet these limits, requiring the BIA to enforce the
    regulatory numerical and temporal deadlines for filing appeals
    and motions, mandating the Board to consider only those issues
    raised on appeal, setting a short and specific time limit for a
    Board Member to write a separate opinion or dissent, reducing
    the number of Board Members to a total of 16, adding more
    categories of cases for adjudication by a single Board Member
    on the streamlining panel and promoting consistency of
    decisions among the panels.
        Yale-Loehr also addressed the effectiveness of the
    streamlining initiative in his testimony. He stated that an
    outside auditor who had examined the initiative concluded that
    the ``overwhelming weight of both `objective' and `subjective'
    evidence gathered and analyzed indicated that the Streamlining
    Pilot Project has been an unqualified success.'' Yale-Loehr
    also argued, in his testimony, for the creation of ``a
    separate, Executive Branch agency that would include the trial-
    level immigration courts and the BIA.''
        On the day of the EOIR oversight hearing, the Attorney
    General announced proposed regulatory amendments containing
    procedural changes in how the BIA adjudicates cases, which
    incorporated many of the streamlining procedures utilized by
    the BIA. The final rule implementing those amendments was
    issued on August 23, 2002. Under these new regulations:
         Carrying forward the streamlining pilot, decisions
    will be issued by a single Board member where there are no
    novel questions, disagreements or difficult matters of law.
    Three-member panels of the BIA will continue to consider
    ``complex cases.''
         The BIA will no longer review IJs' factual
    findings de novo, and will instead employ a ``clearly
    erroneous'' standard, the standard of review that most
    appellate courts use for factual issues.
         The rule includes a series of time limits for the
    adjudication of cases to provide a more timely decision to the
    parties:
             A single Board Member has 90 days either to
            decide the case or refer it for three-member panel
            review, and
             A three-member panel must render its decision
            within 180 days of referral. In limited circumstances,
            these time limits may be temporarily suspended.
        After a six-month transition period, the Board will be
    reduced to 11 members.
        At the February 6, 2002 hearing, Yale-Loehr discussed these
    regulations in their proposed form. He was critical of the
    Attorney General's proposals for eliminating the backlog at the
    BIA and reducing the appeal period for BIA appeals, arguing
    that the existing backlogs before the BIA arenot the result of
    inefficiency, but rather reflect a lack of resources, and that a
    reduction in the number of Board Members would not serve the interests
    of fairness or efficiency.

    Inquiry into the INS admission of four aliens from the Progresso and
            request for INS directives

        On March 22, 2002, Subcommittee staff received information
    about the Progresso, a ship sailing under a Maltese flag that
    landed at the Port of Chesapeake, Virginia on March 16, 2002.
    Specifically, staff was informed that Ahmad Salman, Thulan
    Qadar, Mohammad Nazir, and Adnan Ahmad, four Pakistani
    nationals who were crewmen aboard that ship, were waived into
    the United States for shore leave while that ship was in port.
    When the ship departed on March 18, 2002, the four were not on
    board. Initial reports suggested that after it was discovered
    that the four had failed to appear for the Progresso's
    departure, the names of the four were checked against a
    terrorist ``watch'' or ``lookout'' list, which had not,
    purportedly, been done before they were admitted. That check
    allegedly revealed that the name of one of the four appeared on
    the lookout list. Shore passes for the rest of the crew
    reportedly were subsequently revoked.
        Subcommittee staff was also informed that INS Field
    Operations issued field guidance in the Fall of 2001 stating
    that crewmen were not to be waived for shore leave without
    permission from the District Director, Deputy District
    Director, Assistant District Director for Investigations, or
    Assistant District Director for Examinations. Permission was
    not obtained from any of these four INS employees before the
    four named crewmen were waived for shore leave during the
    Progresso's March 2002 visit to Chesapeake, Virginia, staff was
    told.
        On March 22, 2002, Committee and Subcommittee staff held a
    conference call with employees of both the INS and Department
    of Justice about this incident. On that call, the INS and
    Justice Department officials revealed that the names of each of
    the crewmen was checked against the Interagency Border
    Inspection System (IBIS) prior to the Progresso's arrival,
    resulting in no matches. A mistake in the entry of information
    for one of the aliens, however, caused INS to miss information
    regarding that alien's prior immigration history. Specifically,
    the alien had applied for admission previously, but withdrew
    that application when the evidence that he presented to support
    his application could not be verified.
        Later that day, Chairman Sensenbrenner sent a request to
    the INS for additional information on that incident, to be
    forwarded to the Committee by March 27, 2002. On March 25,
    2002, the Commissioner sent his initial response to that
    request. On April 3, 2002, he forwarded a full description of
    this incident. That letter verified that one of the four aliens
    had a prior immigration history that was mistakenly overlooked
    when he was granted a landing permit. The response also
    indicated that the Inspector who waived the four failed to
    comply with the aforementioned field guidance because, she
    stated, she was unaware of the policy. The Supervisor
    responsible was removed, the INS said, and the agency initiated
    an investigation to determine whether any other personnel were
    responsible for the guidance not being followed or
    disseminated.
        Following public disclosures about this incident, the
    Commissioner ``implement[ed] a zero tolerance policy with
    regard to INS employees who fail to abide by headquarters-
    issued policy and field instructions.'' This ``zero tolerance
    policy'' raised the issue of how many ``headquarters-issued
    policy and field instructions'' were then currently in effect,
    and whether any of those instructions were in conflict with one
    another or reflected policies that might have needed review in
    light of the terrorist attacks of September 11, 2001. For these
    reasons, on April 2, 2002, Chairman Sensenbrenner requested
    that the Attorney General provide the Committee, no later than
    April 5, 2002, with copies of all current INS ``headquarters-
    issued policy and field instructions,'' along with copies of
    any documentation indexing those instructions. The Chairman
    stated that he was particularly interested in ``any indices
    that have been issued to assist INS headquarters, regional, and
    field personnel in applying those instructions.''
        On April 5, 2002, the Justice Department notified
    Subcommittee staff that the INS had identified approximately
    six boxes of materials and ``several volumes of electronic
    materials'' which ``may be responsive to the Chairman's
    request.'' No indices existed, raising the question of how INS
    staff could possibly comply with the zero tolerance policy.

    Review and assessment of the Immigration and Naturalization Service's
            foreign Student Tracking Program

        In the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996, Congress directed the Attorney
    General to develop and conduct a program to collect specified
    information on nonimmigrant students and exchange visitors from
    approved institutions of higher education and designated
    exchange programs. In the USA PATRIOT Act, Congress mandated
    that the Attorney General fully implement that program,
    authorizing $36,800,000 (later appropriated) for this purpose.
        The tracking of alien students in the United States again
    became a priority for the INS after the first World Trade
    Center bombing. The investigation of that incident revealed
    that Eyad Ismoil, a 21-year-old Jordanian citizen, had driven
    the truckload of explosives into the World Trade Center that
    were detonated on February 26, 1993. Ismoil entered the United
    States in 1989 on a student visa, attending Wichita State
    University in Kansas for three semesters before dropping out to
    live and work illegally in Texas for the next two years.
        Congress imposed a requirement for an electronic monitoring
    system for foreign students in IIRIRA, mandating that a program
    to collect information on students and exchange visitors from a
    minimum of five countries, designated by the Attorney General,
    be established by January 1, 1998. Not later than four years
    after the commencement of that program, the Attorney General,
    Secretary of State, and Secretary of Education were to file a
    joint report with the House and Senate Judiciary Committees on
    the feasibility of expanding the program to cover all foreign
    nationals. Not later than one year after the filing of that
    report (or by January 1, 2003), the Attorney General was to
    expand that program to cover all foreign students. The program
    was required to be self-funding, through a fee paid by
    students.
        As mandated by this provision, in June 1997 the INS
    developed a computer program, the Coordinated Interagency
    Partnership for Reporting on International Students (CIPRIS),
    to test the concept of an electronic reporting system. The most
    significant difference between the formerstudent tracking
    process and CIPRIS was that under CIPRIS, schools provided information
    about themselves and their students directly into INS computer systems,
    instead of the INS relying on information from forms being entered
    after the fact by contractors. As the Inspector General has noted,
    CIPRIS ``was intended to involve the issuance of student registration
    cards that would contain additional identifying information about the
    student such as fingerprints and photographs that were collected by the
    schools.''
        Following the CIPRIS pilot, the Student and Exchange
    Visitor Program (SEVP) was established. SEVP is the
    reengineered process under which nonimmigrants and exchange
    visitors are to be admitted into the United States. The CIPRIS
    computer system was reconfigured into SEVIS, the internet-based
    computer system on which SEVP operates.
        The attacks of September 11, and the fact that three of the
    19 hijackers were present in the United States on student
    visas, refocused attention on the student tracking system. In
    section 416 of the USA PATRIOT Act, Congress mandated that
    SEVIS be fully implemented by January 1, 2003, providing
    funding for this purpose.
        There are two ways in which a school can submit SEVIS
    information to the INS: (1) a ``real-time'' interactive method
    that allows authorized users to input individual student
    information and transmit the information to the INS and (2) a
    ``batch'' reporting system that will allow an institution's
    servers to upload and download large amounts of information
    directly into the INS system. The web-based ``real-time''
    interactive method is intended for smaller institutions with
    few foreign students, while the batch system is contemplated
    for institutions with large populations of foreign students.
        The INS introduced SEVIS on a limited, preliminary basis in
    July 2002. On September 18, 2002, the Subcommittee held an
    oversight hearing on the INS's implementation of the SEVIS
    system, to review and assess the status of that program. The
    witnesses at that hearing were: Janis Sposato, Assistant Deputy
    Executive Associate Commissioner for the Immigration Services
    Division, INS, Glenn Fine, Inspector General, U.S. Department
    of Justice, Catheryn D. Cotten, Director of the International
    Office, Duke University, and Dr. Terry W. Hartle, Senior Vice
    President for Government and Public Affairs, American Council
    on Education.
        At hearing. Sposato described the efforts that the INS has
    made to implement SEVIS. She stated that the INS was
    ``confident'' that SEVIS would ``meet the January 1, 2003, date
    established by the USA PATRIOT Act for making SEVIS available''
    to schools, noting that INS has ``deployed the initial
    operational version of SEVIS six months prior to the USA
    PATRIOT Act deadline.''
        Fine, Cotten, and Hartle, however, each questioned whether
    SEVIS would be fully operational by the January 30, 2003
    deadline set by the INS for schools to be using SEVIS to issue
    Forms I-20.
        Fine asserted that while SEVIS would be technically
    operational by that date, he had concerns about whether the INS
    would be able to complete all the steps necessary to ensure
    full and proper implementation by January 30, 2003. His
    concerns included whether the INS would assign and train
    sufficient numbers of dedicated staff to review and approve the
    schools' applications to access SEVIS, whether it would conduct
    sufficient and thorough site visits of schools applying to
    accept foreign students, whether it would adequately train
    school officials to use SEVIS, and whether it would train INS
    inspectors and investigators adequately to use SEVIS to detect
    fraud.
        While Cotten also believed that INS could have an
    electronic mechanism in place to bring all schools online and
    connect them to SEVIS by January 30, 2003, thus meeting the
    mandatory schools compliance date, she doubted whether the
    schools could have all of their data entered into the system by
    that date. She argued that the INS should give schools a full
    calendar year, or until January 30, 2004, to enter all of their
    information. She also noted that the INS had not then published
    a final rule containing the SEVIS requirements for students,
    and had not even published a proposed rule for exchange
    visitors, arguing that schools should know what was expected of
    them. She questioned whether the exchange visitor program would
    be ``completely usable or accurate when it comes online.''
        Cotten also argued that schools would not be able to
    manually enter their information by the January 30, 2003,
    deadline, noting that the INS would not have the batch
    submission system available until October 2002 at the earliest.
    She asserted that ``[h]asty and forced mandatory record entry
    on'' all of the foreign student files in the United States
    would ``result in a data base that is so full of errors as to
    be unreliable and unusable.''
        To improve the system, Cotten recommended that the INS
    establish a SEVIS Help Desk providing assistance in all U.S.
    time zones for at least 12 hours per day. She advised that the
    help desk staff be trained and knowledgeable both in the
    student and exchange visitor regulations and in how to
    represent students and scholar in SEVIS under those
    regulations.
        Hartle asserted that while the higher education and
    exchange visitor communities support the prompt implementation
    of SEVIS, there is much that remains to be done before SEVIS
    will be operational. He stated that these groups were, at that
    point, deeply concerned that they would face enormous
    difficulties when compliance was required because they had
    ``very little information'' to enable them to implement the new
    system. Specifically, like Cotten, Hartle noted that the SEVIS
    regulations for students had not been published in final form,
    that the regulations for exchange visitors had not been
    published in draft form, and that batch processing of
    information was not then available. He further complained that
    the amount of the fee that students would have to pay to be
    registered in the SEVIS system and the procedure for collecting
    the fee was unsettled, and that the INS had ``no meaningful
    plans for training and has ignored our repeated requests that
    they hold regional briefing sessions for campus officials that
    we would organize and pay for.''
        Sposato responded at the hearing to Cotten's concerns about
    schools entering all of their foreign student data by January
    30, 2003. Sposato explained that the January 30 date was for
    new students, while schools would have up to the start of the
    next ``full academic term'' to enter continuing students. She
    further explained that additional training and compliance
    monitoring would occur in the Spring of 2003.

    Review of the INS interior enforcement strategy

        ``Interior enforcement'' is the INS's scheme for enforcing
    the immigration laws within the United States. The INS's
    interior enforcement strategy is meant to complement the
    agency's ``border enforcement strategy,'' which aims to prevent
    unauthorized aliens from entering the United States.
        In January 1999, the INS announced a new interior
    enforcement strategy. The plan's stated primary strategic goal
    was to reduce the size and annual growth of the illegal
    resident population. To achieve this goal, the INS established
    the following strategic priorities:
              (1) Identify and remove alien criminals (subsequently
            modified to include terrorists),
              (2) Deter and diminish smuggling and trafficking of
            aliens,
              (3) Respond to community reports and complaints about
            illegal immigration and build partnerships to solve
            local problems,
              (4) Minimize immigration benefit fraud and other
            document abuse, and
              (5) Deter and limit employment opportunities for
            aliens not authorized to work.
        Criticisms of that policy were voiced shortly after it was
    announced. Those criticisms largely focused on the fact that
    the interior enforcement strategy did not prioritize, or even
    address, the general removal of illegal aliens from the United
    States.
        Despite the fact that this goal was absent from the
    interior enforcement strategy, the removal of illegal aliens
    from the United States has been described as a crucial factor
    in any immigration enforcement plan. In prepared remarks to the
    Subcommittee in February 1995, Barbara Jordan, former Chair of
    the United States Commission on Immigration Reform (CIR),
    stated that:
        Credibility in immigration policy can be summed up in one
    sentence: Those who should get in, get in; those who should be
    kept out, are kept out; and those who should not be here will
    be required to leave. * * * [F]or the system to be credible,
    people actually have to be deported at the end of the process.
        Critics of the interior enforcement plan concluded that the
    plan's failure to address the removal of non-criminal aliens to
    be a crucial flaw. At a hearing on that strategy held by the
    Subcommittee in June 1999, Congressman Lamar Smith, then-
    Chairman of the Subcommittee, stated:

              The interior enforcement strategy recently unveiled
            by the Immigration and Naturalization Service
            effectively gives up removing illegal aliens from the
            United States. Except for a small fraction of convicted
            criminal aliens, illegal aliens have little or no fear
            that they will ever be deported. If it widely known
            that once they get past the border, illegal aliens are
            almost never removed from the United States. This in
            turn, of course, encourages ever greater waves of
            illegal immigration.

        In addition to this point, some observers have been
    critical of the INS's performance even in the narrow priority
    areas that the agency has identified. Major errors have been
    found in the INS's ability to identify and remove alien
    criminals and terrorists. The September 11 attacks were carried
    out by 19 aliens who had previously been admitted as
    nonimmigrants. In response, INS asserted that ``terrorists''
    were the ``first priority'' of its interior enforcement
    efforts. The INS's ability to identify alien terrorists was
    called into question, however, in March 2002, when it was
    revealed that six months after those attacks, the flight school
    in Florida that two of the hijackers attended received
    confirmation letters that applications for change of status had
    been approved for the two.
        INS's record in removing criminal aliens from the United
    States has also been uneven, at best. GAO has identified
    criminal alien removal as ``one of INS's long-standing
    challenges.'' The INS's experience with its Institutional
    Hearing Program is indicative of its inconsistent performance
    in identifying and removing criminal aliens. The IHP, now known
    as the Institutional Removal Program, is the agency's main
    vehicle for placing aliens who are incarcerated in state and
    federal prisons into deportation proceedings so that they can
    be expeditiously deported upon release.
        In September 2002, the Justice Department Inspector General
    issued a report finding that the INS has not effectively
    managed the IRP. In particular, the Inspector General
    determined, the INS has yet to determine the nationwide
    population of foreign-born inmates, particularly at the county
    level, and therefore cannot properly quantify the resources the
    IRP needs to fully identify and process all deportable inmates.
        That report also found that the INS did not always timely
    process IRP cases, and as a result has been forced to detain
    criminal aliens released from incarceration into INS custody to
    complete deportation proceedings. After reviewing a judgmental
    sample of 151 alien files of criminal aliens in INS custody,
    which included criminal aliens released from federal, state,
    and local correctional facilities throughout the country, the
    Inspector General identified a total of $2.3 million in IRP-
    related detention costs, of which $1.1 million was attributable
    to failures in the IRP process within the INS's control.
        A review of the INS's anti-smuggling efforts also shows
    major flaws. In a May 2000 report, GAO stated that the INS's
    ability to implement and evaluate the effectiveness of the
    domestic component of its anti-smuggling strategy is impeded by
    several factors, including a lack of program coordination, the
    absence of an automated case tracking and management system,
    and limited performance measures.
        The INS's ability to minimize fraud and document abuse has
    also been criticized over the past two years. In particular, in
    a January 2002 report, the GAO concluded that while the INS
    does not know the extent of the immigration benefit fraud
    problem, reports and INS officials themselves indicate that the
    problem is ``pervasive'' and ``significant,'' and that
    immigration benefit fraud is ``rampant.'' GAO cited an INS
    Service Center official who estimated that fraud is ``probably
    involved'' in 20 to 30% of all applications filed.
        Despite these problems, the GAO found that benefit fraud is
    a comparatively low priority within the INS. GAO determined
    that the agency's efforts to contain immigration benefit fraud
    are fragmented and unfocused.
        In its 1997 Executive Summary, the CIR underscored the
    importance of worksite enforcement, the fifth priority in the
    agency's interior enforcement strategy, to controlling illegal
    immigration. The CIR found that ``[r]educing the employment
    magnet is the lynchpin of a comprehensive strategy to deter
    unlawful migration.''
        In contrast to the strong emphasis on employer sanctions
    that CIR advocated, the INS's efforts in this area have been
    weak for several years. In testimony before this Subcommittee
    in 1999, Commissioner Hill of the CIR, deemed the demotion of
    employer sanctions to last among the stated priorities in its
    interior enforcement plan ``unacceptable.''
        INS claimed that worksite enforcement's diminished status
    amongst its priorities reflected its perceptions that it had
    failed to effectively deter illegal immigration through its
    worksite enforcement efforts and that achievement of its other
    goals, such as removal of criminal aliens, would reverse that
    trend.
        As part of its review of the INS's interior enforcement
    strategy, on June 19, 2002, the Subcommittee held an oversight
    hearing on that strategy. Appearing at that hearing were Joseph
    Greene, Assistant Commissioner for Investigations, INS, Richard
    Stana, Associate Director for Administration of Justice Issues,
    GAO, Steven Camarota, Director of Research, Center for
    Immigration Studies, and Marissa Demeo, Regional Counsel for
    the Mexican American Legal Defense Fund.
        At hearing, Greene described the interior enforcement
    operations that the INS has been conducting since the September
    11 attacks. He asserted that as a result of a new emphasis on
    worksite enforcement targeting national interest industries,
    there has been more than a 20 percent increase in employer
    sanction case completions. It appears that this emphasis has
    been focused primarily in a series of investigations into the
    hiring practices of airport employers known as ``Operation
    Tarmac.'' The purpose of these investigations is to ensure that
    individuals who work at airports and who have direct access to
    commercial aircraft and other secure areas are authorized to
    work, and that employers are complying with the employment
    eligibility verification requirements in employing these
    individuals.
        Greene also discussed the agency's efforts to target alien
    smuggling organizations from countries that are of national
    security interest to the United States. This program, known as
    ``Operation Southern Focus,'' was initiated in January 2002. He
    asserted that since the inception of this operation, ``five
    significant alien smugglers have been arrested and charged with
    alien smuggling violations, and significant alien smuggling
    pipelines have been severely crippled.''
        Another aspect of the INS's post-September 11 enforcement
    efforts is the Alien Absconder Initiative, which is designed to
    identify and apprehend unauthorized aliens who have unexecuted
    final orders of removal. Green described the AAI as the INS's
    ``first national program to address alien absconders.'' There
    are currently 314,000 aliens in the United States under final
    orders. Greene testified that approximately 700 of those aliens
    had been apprehended in the first phase of that initiative.
        Stana testified that the INS could do a better job of using
    its limited interior enforcement resources. Specifically, he
    testified that the INS needs better data to determine staff
    needs, reliable information technology, clear and consistent
    guidelines and procedures for line staff, effective
    collaboration and coordination, both internally and with other
    agencies, and performance measures to assess its results.
        Camarota argued that interior enforcement is a critically
    important part of effective immigration control, but that
    efforts to enforce immigration laws within the United States
    have been very limited for a long time. The INS's lax
    enforcement of the immigration laws has resulted in an illegal-
    alien population of eight million in the United States, he
    asserted, and has had other serious adverse ramifications for
    our country, some of which have been economic and some of which
    have been security-related.
        Camarota further asserted that lax enforcement of the
    immigration laws has increased America's vulnerability to
    foreign-based terrorists, noting that 22 of 48 al Qaeda-linked
    terrorists in the United States between 1993 and 2001 committed
    significant violations of immigration laws prior to taking part
    in terrorism. He asserted that allowing a large illegal
    population to reside in the United States facilitates terrorism
    for two reasons: first, it has crated a large underground
    industry that furnishes illegal aliens with fraudulent
    identities and documents that terrorists can (and have) tapped
    into; and second, the existence of a huge illegal population
    creates a general contempt or disregard for immigration law.
        Camarota made several proposals to improve interior
    enforcement. Specifically, he suggested that the INS implement
    several systems for monitoring the flow of aliens through the
    United States, including a tracking system for temporary visa
    holders, an effective entry/exit system for aliens on temporary
    visas, and the placing of the names of visa overstayers in a
    criminal database. He also argued for improvements in the area
    of worksite enforcement, integration of INS databases, and
    increasing the number of INS investigators.
        Demeo commented on several recent Justice Department
    interior enforcement initiatives and proposed initiatives. She
    asserted that Operation Tarmac adversely impacts the Latino
    community without forwarding the goal of fighting terrorism.
    She argued that allowing local law-enforcement to enforce the
    immigration laws actually decreases public safety and increases
    mistrust between Latinos and law-enforcement.

    Inquiry into the State Department shredding of completed diversity visa
            applications

        According to The Associated Press on August 21, 2002,
    ``State Department officials say they have been using high-
    speed shredders * * * to destroy the records of immigrants who
    fail to win entry to the United States after applying through''
    the diversity visa lottery system, despite the post-September
    11 emphasis on sharing such information among law enforcement
    andintelligence agencies. The Associated Press the next day
    reported that law enforcement and counter-terrorism officials who it
    told about the shredding said that they ``could see an investigative
    use for the information,'' quoting an unnamed top Bush administration
    counter-terrorism official who said that the destruction of the
    applications was ``very shocking.''
        On August 23, 2002, Subcommittee Chairman Gekas asked the
    State Department to provide this Subcommittee with an
    assessment of the intelligence value of applications from
    unsuccessful diversity visa applicants. He also asked the State
    Department to retain those applications until after it
    submitted the requested information to the Subcommittee, and
    until after the Subcommittee had an opportunity to take action
    on the information.
        On September 6, 2002, the State Department responded to
    that letter, announcing that it was revising its procedure for
    processing diversity lottery entries. The Department stated
    that it was suspending the shredding of all current entries
    while other agencies assessed the intelligence value of those
    documents.

    Investigation into INS interactions with Hesham Mohamed Ali Hedayet

        On July 4, 2002, Hesham Mohamed Ali Hedayet, an Egyptian
    national, entered Los Angeles International Airport and shot
    and killed two people at the El Al ticket counter before being
    shot once--and mortally wounded--by an El Al security guard.
    Four days later, as information on that attack was released,
    the Subcommittee opened an investigation into the incident and
    into Hedayet's presence in the United States.
        Press reports shortly after the July 4 shooting stated that
    Hedayet was a lawful permanent resident, having gained that
    status through his wife, who won the diversity lottery in 1996.
    Those reports indicated that Hedayet had adjusted his status
    under section 245(i) of the Immigration and Nationality Act,
    but that he had previously filed an application for permanent
    residency, which was denied in 1996.
        It was unclear from those press reports on what basis
    Hedayet filed his original applications, or why that
    application was denied. Given the facts reported, however, it
    appeared most likely that Hedayet had applied for asylum. The
    possibility that Hedayet had filed an asylum application raised
    the possibility that the INS might have had information
    suggesting that Hedayet had engaged, may have engaged, or
    intended to engage in terrorist activity prior to the July 4,
    2002 shooting and yet still granted him permanent residence.
        To assess whether the INS had information in its possession
    suggesting that Hedayet should have been denied adjustment of
    status and deported, on July 8, 2002, Subcommittee Chairman
    Gekas sent a letter to the Commissioner of the INS requesting a
    copy of Hedayet's alien file (A-file).
        The Committee received the A-file on July 29, 2002. After
    the documents were received and reviewed, it was apparent that
    Hedayet had applied for, and was denied, asylum, but no asylum
    application was included with that packet, and no reference was
    made to asylum in the cover letter that accompanied that file.
    In fact, all references to asylum were redacted from the
    documents received, including on Hedayet's Employment
    Authorization Document and a fingerprint card.
        The Committee continued to press the Department of Justice
    for the remaining documents in Hedayet's A-file. On September
    24, 2002, the INS provided additional documents responsive to
    the July 8, 2002, request, including the missing asylum
    application and Asylum Officer's decision, to staff. Notably,
    in his cover letter accompanying those documents, the
    Commissioner stated that Hedayet's asylum information was being
    released to the Subcommittee because the Attorney General had
    waived the confidentiality of that document.
        The A-file revealed that Hedayet entered the United States
    on July 31, 1992, at Los Angeles as a B-2 visitor for pleasure,
    with permission to remain in the United States until January
    25, 1993. That visa was issued by the U.S. Consulate in Cairo,
    Egypt, on July 13, 1992.
        On December 29, 1992, less than a month before his
    authorized stay was due to expire, Hedayet filed his asylum
    application. He alleged that the police in Egypt arrested him
    without reason over a period of 14 years, and that he had been
    followed, jailed, ``threatened by phone [and] letter for no
    reason, just because I am a religious individual who has a
    strong belief in my religion and God.'' He stated in his asylum
    application that he was arrested several times and ``was forced
    to sign papers * * * admitting crimes I did not commit and did
    not know about.'' He claimed to have been physically and
    psychologically tortured.
        The only group in which he claimed membership in his asylum
    application was a ``Mosque Association,'' the purpose of which
    is ``to understand truly and apply Islamic law in the 20th
    Century under any circumstances. * * * In houses and government
    to extend all the effor[t]s to support establishing Islamic
    government.''
        He was interviewed in conjunction with that application on
    March 30, 1993. Almost two years later, on March 7, 1995, the
    INS Asylum Office in Anaheim, California sent Hedayet a notice
    of intent to deny his asylum application.
        In that notice, the INS stated that Hedayet had told the
    asylum officer that the police forced him to sign papers
    falsely stating that he was a member of ``Gamatt El Islamaia''
    and that he was trying to overthrow the government. This is an
    apparent reference to al-Gama'a al-Islamiyya, also known as the
    ``Islamic Group'' or ``IG.'' \5\
    ---------------------------------------------------------------------------
        \5\ The State Department describes al-Gama'a as ``Egypt's largest
    terrorist group,'' stating that it ``specialized in armed attacks
    against Egyptian security and other government officials, Coptic
    Christians, and Egyptian opponents of Islamic extremism'' before it
    announced a cease-fire in March 1999.
        From 1993 until the cease-fire, al-Gama'a launched attacks on
    tourists in Egypt, most notably an attack in November 1997 at Luxor
    that killed 58 foreign tourists. It also claimed responsibility for the
    attempt in June 1995 to assassinate Egyptian President Hosni Mubarak in
    Addis Ababa, Ethiopia.
    ---------------------------------------------------------------------------
        Hedayet claimed that he was afraid for his wife, ``Hala El
    Awadly,'' and young son, who were, he claimed, ``still in
    Egypt.''
        The Asylum Officer had concerns about Hedayet's
    credibility, but not the common concern that Hedayet had
    manufactured his claim, per se. In fact, the Asylum Officer
    concluded that Hedayet had experienced past harm at the hands
    of the Egyptian government. Specifically, Hedayet had claimed
    that he had been arrested twice for no reason shortly before
    coming to the United States, that the Egyptian government put a
    guard on his apartment whenever a foreign head of government
    would visit Egypt, and that the Egyptian government sent a
    letter to the bank where he worked, essentially asking that he
    be fired.
        What the asylum officer did not believe was Hedayet's
    assertion that he only wanted the nonviolent overthrow of the
    Egyptian government. As the asylum officer stated:

              You said that your father and his friends gave you
            advice as to how to avoid trouble with the authorities,
            but you declined to take the advice, preferring to flee
            the country instead. When asked about the Copts, you
            maintained that the Copts are not treated badly in
            Egypt, despite the fact that treatment of Copts is a
            matter of comment among human rights groups the world
            over. You lived in Cairo, are well-educated and
            articulate, but claim to have read nothing about anti-
            Coptic activities in the city. No one who knows
            anything about Egyptian politics, as you obviously do,
            could be as unaware of Coptic problems as you claim to
            be. Each of these inconsistencies is suggestive of
            concealment, and call into question your assertion that
            all you wish for the government of Egypt is that it be
            overthrown by peaceful means.

    (emphasis added). This finding, coupled with Hedayet's
    assertions that he had been mistreated by the Egyptian
    government (which the INS believed) and that he had been
    accused of membership in the IG would suggest that Hedayet may
    have been a terrorist, or may have been connected to terrorism.
        It did not appear, however, that the INS investigated
    Hedayet's claims that he was suspected of being a terrorist by
    the Egyptian government, or the possibility that he may, in
    fact, have been a terrorist. Rather, it does not appear that
    any extrinsic information, beyond Hedayet's own statements, was
    considered by the INS in denying that application.
        Notably, the INS Asylum Officer apparently did not deny
    that application because of Hedayet's perceived lack of
    credibility. Rather, the asylum officer stated the application
    was denied on the ground that Hedayet had ``not proven that
    [the harm that he had experienced in the past] was on account
    of one of the five enumerated grounds (race, religion,
    nationality, membership in a particular social group, or
    political opinion).''
        Hedayet did not respond to the notice of intent to deny his
    asylum application. For this reason, on October 19, 2002, the
    INS sent him a final decision denying his asylum, along with
    charging him with overstaying his visa, at the last home
    address he provided to the Asylum Office, in Mission Viejo,
    California. Those documents were returned to the INS by the
    Postal Service, marked: ``Return to Sender/No Forward Order on
    File/Unable to Forward.''
        The deportation hearing was set for March 26, 1996. When
    Hedayet failed to appear, the Immigration Judge ordered those
    proceedings administratively closed, rather than issuing a
    final order of deportation for Hedayet, because there was no
    proof that Hedayet had been served with the order to show
    cause. The trial attorney sent the case to the service clerk to
    locate the postal return receipt in order to prove that the
    documents had been served. The record of action in the file
    states in a subsequent March 29, 1996 entry: ``unable to locate
    ret. rec.''
        The INS did not thereafter attempt to locate Hedayet, but
    rather sent his A-file to its records branch for filing. A memo
    in the file from INS's Detention and Deportation branch, dated
    June 11, 1996, states:

              [I]nasmuch as the charging document was not served on
            the alien and the file does not contain a current
            address to which the OSC could be mailed, this case is
            considered not properly under Docket Control. The file
            will be forwarded to records. * * * If at any time
            after the date of this memorandum, the alien is
            encountered, a superceding OSC is to be issued, if
            applicable, and properly served on the alien and EOIR.

        It appears from the file documents that Hedayet was
    ``encountered'' by the INS on June 11, 1996, the date this
    memorandum was issued, because on that day the INS renewed
    Hedayet's employment authorization. Despite this interaction
    with the alien, the INS did not place Hedayet in proceedings on
    that date.
        Hedayet himself next contacted the INS after his wife,
    under the name ``Awadly Abslamhala,'' was notified by the State
    Department that she had won the diversity visa lottery on July
    18, 1996. Hedayet applied for adjustment of status, premised on
    his eligibility for derivative immigration status as the
    husband of a diversity visa lottery winner, on November 22,
    1997.
        As noted, information in Hedayet's asylum application
    suggested that he had been accused of having terrorist
    connections by the Egyptian government. If Hedayet had engaged
    in terrorist activity, or if the INS had reasonable ground to
    believe that Hedayet was engaged or was likely to engage in
    terrorist activity, he would have been barred from adjustment
    of status. It does not appear, however, that the INS
    investigated those claims or even reviewed those claims in
    connection with his adjustment application.
        Further, documents relating to Hedayet's son, which are
    also in Hedayet's A-file, suggest other possible evidence of
    fraud in Hedayet's asylum application. The son's visa
    application states that he has lived in the United States since
    July 1992. According to the INS, both Hedayet's son and his
    wife actually arrived in the United States on March 12, 1993.
    It appears, however, from the asylum officer's decision that
    Hedayet claimed at his March 30, 1993, asylum interview that
    his wife and son were still in Egypt. Specifically, the asylum
    officer stated: ``You said you are afraid for your family, your
    wife and young son. They are still in Egypt.'' There are two
    ossible reasons Hedayet may have claimed falsely that his
    family was still in Egypt when they were actually in the United
    States: First, he may have thought that he would have a better
    chance of being granted asylum if it appeared that his wife and
    son were in danger, and that he neededasylum status to protect
    them from harm. Second, he may have thought that he would be less
    likely to receive asylum if the government knew that he had brought his
    wife and son to America. Either of these would have been a material
    misrepresentation, barring Hedayet from adjustment of status. It is
    unclear whether the adjudicator who granted Hedayet adjustment of
    status to lawful permanent resident reviewed the asylum application, or
    questioned Hedayet about this discrepancy, however.
        Notwithstanding these and other questions, Hedayet's
    adjustment application was approved by the INS, and he was
    granted lawful permanent resident status on August 29, 1997.
        The same day that Subcommittee staff received Hedayet's A-
    file, the Justice Department forwarded the Subcommittee a copy
    of a memorandum, dated September 18, 2002, from the Attorney
    General to the Commissioner of the INS concerning the Hedayet
    case. In that memorandum, the Attorney General stated that he
    ``was made aware of certain serious irregularities in the INS'
    treatment of'' Hedayet on September 13, 2002. The Attorney
    General noted that based on a review of the file by the INS, it
    appeared that:
         Hedayet claimed that he had been accused of being
    a terrorist, but the INS did not conduct any further
    investigation to assess whether this accusation was true.
         INS was unable to serve Hedayet with the OSC
    because he had moved.
         The INS continued to grant Hedayet employment
    authorization after denying his asylum application while he was
    in illegal status, but did not recalendar his deportation
    proceedings.
         It was unclear whether Hedayet was interviewed in
    connection with his adjustment application, or whether the
    officer who adjudicated that application reviewed his asylum
    application, ``which presumably would have triggered a further
    inquiry into his possible terrorist connections.''
        Because these facts ``have implications for our immigration
    system and our national security,'' the Attorney General
    directed the Commissioner to ``undertake a prompt
    investigation'' into the Hedayet case and to report back to the
    Deputy Attorney General ``with [his] findings, including any
    remedial or disciplinary action taken.'' The Attorney General
    also told the Commissioner to review pending asylum
    applications ``to ascertain whether other individuals may be
    present in the United States who have admitted that they have
    been accused of terrorist activity or terrorist associations.''
        On October 9, 2002, the Subcommittee held an oversight
    hearing into the INS's interactions with Hedayet. Appearing as
    witnesses at that hearing were: William Yates, Deputy Executive
    Associate Commissioner, Immigration Services Division, INS, Dr.
    Steven Camarota, Director of Research, Center for Immigration
    Studies, Daniel Pipes, Director, Middle East Forum, and Paul
    Virtue, Hogan & Hartson (former General Counsel of the INS).
        Yates started his testimony by asserting that no
    enforcement or intelligence information indicated that Hedayet
    was ever associated with a terrorist organization, or had
    engaged in any criminal activity prior to July 4, 2002, and
    that INS's decisions in connection with Hedayet's asylum and
    adjustment of status applications ``were appropriate under the
    laws, regulations, policies and procedures in existence at the
    time.'' He stated, however, that the INS has improved its
    processing procedures and strengthened its security measures
    since adjudicating those applications.
        Yates also stated that applications for asylum are now
    forwarded to the FBI and CIA for background checks, and the INS
    would have scheduled Hedayet to have his fingerprints taken at
    an Application Support Center under the improved procedures.
    Finally, Yates asserted, Hedayet's allegation that he had been
    accused of membership in a terrorist organization would have
    triggered referral of his case to INS Asylum Headquarters for
    further scrutiny.
        It does not appear that the INS's forwarding of Hedayet's
    applications to the FBI and CIA for background checks would
    have made a difference in this case, because Yates asserted
    that there was no domestic intelligence indicating that Hedayet
    was ever associated with a terrorist organization. Rather, it
    appears that the Egyptian government would have been the best
    source for information to assess Hedayet's assertions that he
    had been falsely accused of being a member of a terrorist
    organization by that government. As Camarota testified,
    however, the primary reason that the INS failed to do so was
    because of the asylum confidentiality provisions. Camarota
    noted that there is a fear that a foreign government may move
    to penalize members of an asylum applicant's family who are
    still in their home country if the foreign government became
    aware that the applicant was seeking asylum in the United
    States. He argued, however, that ``the national security of the
    United States must supercede such concerns.''
        In addition to his comments about the asylum
    confidentiality provision, Camarota testified about the abuses
    of asylum and adjustment of status by alien terrorists in the
    United States, and about problems with those forms of relief
    generally.
        Camarota described the asylum system as ``lax,'' and argued
    that asylum ``has been one of the favorite means for terrorists
    to live in the United States.'' He claimed that this system has
    allowed terrorists ``not only to enter the United States but
    has also allowed them to remain in the country moving about
    freely while they plan their attacks.'' He stated that several
    aliens who participated in terrorist attacks in the United
    States used political asylum to enter and/or remain in the
    country, including: Sheik Omar Abdel Rahman, who inspired
    several terrorist plots, most notably the 1993 attack on the
    World Trade Center, Mir Aimal Kansi, who murdered two CIA
    employees, and Ramzi Yousef, who masterminded the first attack
    on the World Trade Center.
        Camarota also described the diversity visa lottery, which
    was used by Hedayet and his wife to remain in the United
    States, as ``very problematic from a national security point of
    view.'' He criticized the lottery for allowing 50,000 aliens a
    year with no strong ties to the United States to become
    permanent residents, arguing that aliens with few ties to the
    United States are more likely to be willing to attack our
    country. Camarota further asserted that Hedayet is not the only
    terrorist to use the lottery.
        He also contended that section 245(i) of the Immigration
    and Nationality Act is a significant threat to American
    national security in that it allows illegal aliens to use this
    procedure to adjust status without returning home to be
    processed. This procedure increases the chancethat a problem
    with the application will be missed by eliminating consular officers in
    the home country (who, Camarota alleged, are in a much better position
    than an INS adjudicator to judge the validity of the application and
    whether someone poses a security threat) from the visa-issuance
    process.
        Pipes, in turn, criticized the INS's ``cavalier attitude''
    toward Hedayet's possible membership in the IG. He suggested
    that Hedayet may have mentioned the Egyptian government's
    accusations because, anticipating ``that the INS would do a
    thorough investigation of his life and want[ing] to spin his
    record in advance he decided the best tactic would be pre-
    emption.'' Although Pipes admitted that the Egyptian government
    might have compelled an innocent person to sign a false
    document, he argued that ``there was also a very real
    possibility that Hedayet actually did belong to'' the IG. Given
    what Pipes described as the IG's ``long and notorious history
    of terrorism,'' he found the INS's ``complete lack of curiosity
    on this issue * * * astonishing.''
        Virtue argued, on the other hand, that while Hedayet's case
    serves as the basis for legitimate inquiry into INS processes
    and procedures, ``it is both unfair and inaccurate to use the
    case to raise allegations against sound immigration policies
    that underlie programs involving the protection of refugees,
    the diversity lottery, or former [s]ection 245(i).'' He argued
    that immigration reform needs to enhance ``our intelligence
    capacity while respecting our commitment to due process and
    civil liberties and facilitating the free flow of people and
    goods.
        A review of the information provided by the Justice
    Department and the testimony of the witnesses leads to the
    conclusion that the INS did not investigate concerns regarding
    Hedayet. There is no evidence that the INS requested background
    checks from any U.S. government components, nor does it appear
    that the INS verified Hedayet's story with the Egyptian
    government. The INS apparently did not verify Hedayet's story
    with the Egyptian government because of its reading of the
    confidentiality regulation. While there are serious
    humanitarian concerns underpinning the INS's interpretation of
    this regulation, the agency must assess whether its
    interpretation adequately protects the national security and,
    if not, must review its position on asylum confidentiality.

    Review of the immigration history of suspected criminals in high-
            profile cases

        Throughout 2002, the media reported that a number of
    individuals suspected of engaging in criminal activity in high-
    profile cases were aliens present in the United States. In
    order to assess whether those individuals were lawfully
    admitted to the United States, and if so, to determine whether
    the INS or the State Department may have had information
    relevant to the aliens' criminal activity at the time that the
    aliens were issued visas or admitted to the United States, the
    Subcommittee requested that the INS provide it with the
    immigration records for a number of these aliens.
        On August 31, 2002, Maximiliano Cilerio Esparza, a Mexican
    national, allegedly attacked and raped two Catholic nuns in
    Klamath Falls, Oregon. One of those nuns died from her
    injuries. Esparza is being currently held without bail by local
    officials on aggravated murder and other charges.
        According to an article in the September 6, 2002 edition of
    The Oregonian, Esparza has an extensive immigration history.
    Although the paper provided a lengthy description of Esparza's
    that history, there were portions of Esparza's relationship
    with the INS that were unclear even from that article. In order
    to assess whether the INS had properly handled Esparza's case,
    on September 10, 2002, Subcommittee Chairman Gekas requested
    the alien's file from the INS.
        Subsequently, on October 9, 2002. The Oregonian reported
    that the Department of Justice's Inspector General was
    investigating why Border Patrol agents who twice arrested and
    released Esparza in 2002 didn't perform more extensive
    background checks on the alien that might have uncovered a
    previous conviction that the alien had in California, and might
    have revealed that he had been deported before, subjecting him
    to federal prosecution.
        On November 6, 2002, the INS provided a copy of Esparza's
    alien file to the Subcommittee. In the cover letter attached to
    that file, the Commissioner stated that the Inspector General
    ``is reviewing the entire case to see whether established
    procedures were followed.'' The Subcommittee is continuing its
    investigation of this matter, and has followed up with the INS
    seeking additional information.
        The Subcommittee is also investigating the interactions
    that the INS and State Department may have had with two
    individuals who have been charged in a series of shootings in
    the Washington, D.C. and Richmond areas, John Allen Muhammad
    (also known as John Williams, Wayne Weeks, and Wayne Weekley)
    and John Lee Malvo (also known as Lee Malvo and Lee Boyd
    Malvo).
        Shortly after Muhammad and Malvo were arrested on October
    24, 2002, the press reported that Malvo was a Jamaican
    national. Subcommittee staff requested information on Malvo,
    and on October 25, 2002, Chairman Sensenbrenner sent a request
    to the Attorney General seeking a complete briefing on Malvo's
    immigration history. Three weeks later, press reports indicated
    that Muhammad was known to the United States Embassy in Antigua
    while he was living in that country. On November 15, 2002,
    Chairman Sensenbrenner sent a request to the Secretary of State
    for any information that the State Department might have
    regarding Muhammad's repeated entries and possible criminal
    activities. The Subcommittee is awaiting responses to those
    requests.

    Review of information on alleged Mexican incursions into the United
            States

        In early 2002, the Subcommittee received a number of
    reports concerning alleged incursions along the Southwest
    Border by the Mexican police and military. One report indicated
    that there had been a total of 23 incursions by Mexican
    military and police into the United States along theSouthwest
    border that were documented in 2001, and that the actual number of
    incursions may be three times that number.
        On September 24, 2002, Subcommittee Chairman Gekas
    requested copies of all documents that the INS has addressing
    incursions into the United States between January 2001 and the
    present. The INS is currently compiling those documents to
    present to the Subcommittee for review.

    INS maintenance of alien address records

        At the request of Subcommittee Chairman Gekas, the General
    Accounting Office issued a November 2002 report titled:
    ``Homeland Security: INS Cannot Locate Many Aliens Because It
    Lacks Reliable Address Information,'' GAO-03-188. The report
    addressed (1) the INS's failure to effectively track aliens
    under the current address processing system; (2) the
    insufficiency of current INS forms with respect to address
    reporting; (3) the need for the INS to adequately inform aliens
    of the need to both provide complete address information and
    update address information when necessary; and (4) additional
    options which the Executive branch might adopt without
    congressional action to enhance the INS's information gathering
    capabilities.

    Examination of immigration and United States population

        After the 2000 Census was taken, the Census Bureau released
    many reports, including several numbers involving the
    immigrants population in the U.S. On August 2, 2001, the
    Subcommittee held a hearing to examine immigrant population
    numbers released by the Census Bureau. On August 2, 2001, the
    Subcommittee heard from Dr. John Long, the Chief of the
    Population Division of the U.S. Census Bureau; Dr. Jeffrey
    Passel, Principal Research Associate in the Population Studies
    Center of the Urban Institute; Dr. Steven Camarota, Director of
    Research at the Center for Immigration Studies; and Mr. William
    Elder, Chairman for the Sierrans for U.S. Population
    Stabilization.
        Dr. Long testified that 281 million people were counted in
    Census 2000, an increase of 33 million from 1990. This was a
    13.2 percent increase and the largest numeric increase between
    any two censuses in U.S. history. At the time of the hearing,
    the Census Bureau estimated a foreign-born population of about
    30 million in the U.S., almost 11 percent of the U.S.
    population. The foreign-born population measured by the 1990
    census was around 20 million, which was about 8 percent of the
    population, according to Long.
        Dr. Passel testified that although the 2000 numbers of
    immigrants are large relative to the total population, the
    percentage of foreign-born is lower than historical highs. He
    noted that from about 1870 through 1920, the percentage of
    foreign-born in the U.S. population ranged from 13 to 15
    percent. He also noted that the illegal population has reached
    unprecedented levels and, by his own estimation, number from 8
    to 9 million.
        Dr. Camarota testified that immigration policy accounted
    for the extraordinary population increase during the 1990s.
    This translates into 1.3 million legal and illegal immigrants
    settling in the U.S. each year, he stated. During the 1990s, it
    is likely that immigrant women gave birth to an estimated 6.9
    million children. If the number of births and the number of new
    arrivals are added together, the total impact on population
    growth is around 20 to 21 million of the total 33 million, or
    roughly two thirds of the population growth in the U.S. is new
    immigrants and births to immigrant women. The Census Bureau
    indicates that immigration will add about 76 million people to
    the U.S. population between now and 2050, according to
    Camarota.
        Camarota testified that this large growth has significant
    consequences for some quality-of-life issues such as sprawl and
    congestion. It has an enormous impact on the size of school-
    aged population. Roughly 90 percent of the increase in the
    number of children in public schools in the U.S. over the last
    20 years is a direct result of post-1970 immigration, said
    Camarota.
        Mr. Elder stated that the growth of 33 million during the
    1990s is equivalent to adding a State the size of California,
    including all of its houses, apartments, factories, office
    buildings, shopping centers, schools, streets, freeways and
    automobiles; its consumption of power, water, food, and
    consumer goods; and its environmental waste stream of refuse,
    air and water pollution, to an already crowded and stressed
    U.S. environment. Intentionally or not, Elder stated that
    Congress created the current population boom through
    immigration policy. This has undone the progress of the
    American people toward a stable and sustainable population in
    voluntarily adopting replacement level reproduction, an average
    of two births per woman, Elder stated.

    Review of the Immigration and Naturalization Service and Office of
            Special Counsel for Immigration-related unfair employment
            practices

        Representative Bob Barr requested an oversight hearing to
    examine the consequences of the Immigration Reform and Control
    Act of 1986 with regard to employer sanctions and employment
    discrimination. The law places American employers in a
    difficult situation. They are required to verify the employment
    eligibility of their workers or face fines and possibly be
    penalized criminally by the INS for knowingly hiring illegal
    aliens. On the other hand, employers cannot ask for more
    documents than are required by law without the Office of
    Special Counsel for Immigration-Related Unfair Employment
    Practices (OSC) possibly initiating an investigation and/or
    prosecution of the employer for violating an alien's civil
    rights. To further complicate the process for employers,
    fraudulent employment authorization documents are abundant and
    ubiquitous.
        On March 21, 2002, the Subcommittee held an oversight
    hearing on this matter. Witnesses included Juan Carlos Benitez,
    Special Counsel for Immigration Related Unfair Employment
    Practices, U.S. Department of Justice, Joseph Greene, Acting
    Deputy Executive Associate Commissioner for Field Operations,
    INS, Otto Kuczynski, President of Fairfield Textiles
    Corporation, and Wade Henderson, Executive Director of the
    Leadership Conference on Civil Rights.
        Mr. Benitez noted that the OSC is the only office in the
    Federal Government specifically designed and empowered to
    protect the civil rights of alien workers. Benitez testified
    that even 16 years after IRCA was passed, U.S. citizens and
    lawful aliens are discriminated against based upon whether they
    appear or sound foreign. He explained that one of OSC's major
    priorities is to educate the general public, both employers and
    employees, about their rights and obligations. Benitez stated
    that OSChas established an early intervention program which is
    unique among Government anti-discrimination enforcement agencies and is
    based upon the idea that prevention of discrimination and early
    intervention are more important than obtaining a remedy after the fact.
        Mr. Greene testified that the INS concentrated its
    personnel and its resources on employment cases involving
    criminal violations or widespread egregious industry-wide civil
    violations, particularly those cases where a nexus with human
    smuggling or human trafficking had been established or where
    there was evidence that worker exploitation has occurred. He
    stated that the INS believes that criminal convictions and
    their accompanying sentences have proven to be a far greater
    deterrent to illegally hiring aliens than the employer
    sanctions law.
        Mr. Kuczynski is the owner of a company that knits, dyes,
    and finishes fabric. The large majority of his workforce has
    always consisted of immigrants. He is an immigrant himself and
    explained that he always makes clear to his employees that his
    company does not and would not discriminate against immigrants.
    He testified that in 1991, the INS raided his facilities and
    took into custody employees who appeared to be immigrants. A
    number of employees were determined to be illegal aliens even
    though the company had the necessary documentation of the
    employees. The INS issued no notices of violation on the
    company, but had disrupted production by taking the employees
    into custody. Kuczynski could not afford another major
    disruption to his business so he vowed to ensure no illegal
    alien would be hired, even unwittingly.
        In 1998, his company received a letter from OSC at the
    Justice Department regarding a charge of discrimination from
    someone who had sought a job with his company. OSC looked
    through hundreds of the company's documents, took depositions,
    and threatened suit against Fairfield Textiles, alleging the
    company violated the law in not hiring the individual who filed
    the charge. Kuczynski reported that OSC threatened that if he
    did not want to be sued, the company would have to agree to
    including a civil penalty of $2,000 and back pay of $7,451.
    Kuczynski declined and OSC instituted suit against Fairfield
    Textiles. The case settled two and a half years later.
    Fairfield Textiles paid a fine of $1,100 to the U.S. Treasury
    and paid the charging party $12,470. The legal fees and related
    costs to defend the charge exceeded $93,000.
        Kuczynski's company was sued because of ``document abuse.''
    He explained that the law permits an applicant to choose which
    document the applicant presents to an employer from a list of
    acceptable documents to prove the applicant's identity and work
    eligibility. The employer cannot request the applicant to
    present more or different documents than are required. In
    addition, the employer must accept a document which, on its
    face, appears to be genuine and relates to the person who
    presents it. Failure to comply with this regulatory requirement
    can lead to a fine of up to $2,000 per violation.
        Mr. Henderson testified that the OSC is woefully
    underfunded, operating on a budget of only about $6 million a
    year and with a staff of approximately 30 employees. He stated
    that the employer sanctions have not worked to decrease illegal
    immigration and should be re-examined.

    Examination of the U.S. and Canada Safe Third Country Agreement

        On August 30, 2002, Safe Third Country Agreement final
    draft text was initialed by our Administration as one point of
    the 30 point Ridge-Manley Smart Border Action Plan between the
    U.S. and Canada. Under the agreement, if an alien seeks to
    travel from the United States to Canada through a land border
    port of entry to apply for asylum in Canada, the alien will
    generally be sent back to the U.S. to apply for asylum. If an
    alien travels from Canada to the U.S. for the same purposes,
    the alien must seek asylum in Canada, the first of the two
    countries in which the alien traveled. The intent is to prevent
    asylum shopping in both the U.S. and Canada. The policy behind
    the agreement is that an alien is safe in either country and
    should seek asylum in the first country in which the alien
    lands.
        Because this draft agreement was creating significant
    controversy, the Subcommittee held a hearing to examine its
    pros and cons on October 16, 2002. The witnesses were Kelly
    Ryan, Deputy Assistant Secretary, Bureau of Population,
    Refugees, and Migration, U.S. State Department, Joe Langlois,
    Director of the Asylum Division, INS, Mark Krikorian, Executive
    Director, Center for Immigration Studies, and Bill Frelick,
    Director, Amnesty International.
        Ms. Ryan testified that negotiations on this matter were
    undertaken at the request of the Canadian government. She
    stated that approximately one-third of asylum applicants in
    Canada pass through the U.S. first. Thus, such an agreement
    would be more beneficial to Canada than it would be to the U.S.
    The greatest challenge is determining an asylum seeker's travel
    itinerary before making a claim and hence determining which
    country is responsible for adjudicating that claim, Ryan
    stated. To avoid debates with Canada over whether an applicant
    did or did not transit the U.S. en route to Canada, the
    proposal would be limited to land border ports of entry. Only
    at ports of entry will there be incontrovertible evidence that
    an alien was physically present in one of our two countries
    before applying for asylum in the other.
        Ryan testified that in contrast to the EU approach, this
    proposal would not attempt to substantively harmonize the U.S.
    and Canadian asylum systems. She explained several reasons why
    asylum seekers prefer to apply in Canada rather than in the
    U.S. Some are attracted by Canadian social welfare benefits.
    Others may seek to file a second application after having a
    claim rejected in the U.S. Others have strong family,
    community, or language ties to Canada. Family ties caused the
    U.S. to propose several family member exceptions in the
    agreement. Finally, Ryan stated that the U.S. has no intention
    to expand this bilateral agreement to include third countries.
        Mr. Langlois explained that the proposed agreement is
    founded on the premise that there can appropriately be limits
    on the ability of an asylum seeker to choose a country of
    refuge so long as that asylum seeker has a full and fair
    opportunity to present a claim for protection and to receive
    asylum if the applicant is a true refugee.
        The proposed agreement contains an exemption for family
    members so that asylum seekers with spouses, sons, daughters,
    parents, legal guardians, siblings, grandparents,
    grandchildren, aunts, uncles, nieces, and nephews in the U.S.
    or Canada will be allowed to reunite with their family members
    in either country, as long as the relative has lawful status
    (other than as a visitor) or him or herself has a pending
    asylum claim in that country. Langlois also explained that the
    agreement contains exceptions for unaccompanied minors.
        Mr. Krikorian testified that this agreement is a logically
    and morally necessary part of any asylum system. He analogized
    asylum to giving a drowning man a berth in a lifeboat. A
    genuinely desperate man grabs at the first lifeboat that comes
    his way. A person who seeks to pick and choose among lifeboats
    is, by definition, not seeking immediate protection, but
    instead seeking immigration.
        Krikorian acknowledged that, in the short run, the U.S.
    will face an increase of asylum applicants as a result of the
    agreement because more people will be returned to the U.S. than
    returned to Canada, mostly due to air travel patterns. However,
    he stated that this is not an argument against the agreement
    because it should be considered a first step in reaching
    similar agreements with other safe countries transited by
    asylum seekers, particularly EU countries and perhaps Mexico.
        Mr. Frelick opposed the agreement. He referenced the INS's
    estimates that about 200 people a year come from Canada to the
    U.S. to seek asylum while about 15,000 people went to Canada
    from the U.S. to apply for asylum. With a backlog of over
    250,000 asylum cases, Frelick argued that it made no sense to
    knowingly increase our asylum application backlog.
        He disputed that asylum shopping was in fact a problem,
    stating that most asylum applicants want to apply in Canada but
    are stopped upon arrival at a U.S. airport and simply lodge an
    asylum application as a way of avoiding deportation and
    detention before later proceeding to their desired location of
    Canada. Frelick also stated that because the agreement only
    applies to land border port of entry crossing, illegal border
    crossings and smuggling will rise.
        Mr. Felick questioned how the exceptions would be
    adjudicated. How would the governments determine whether an
    applicant really is a family member of someone in the second
    country? He concluded that this agreement has nothing to do
    with national security and solves no visible problem.

    Request for GAO on the INS Forensic Document Lab

        In April 2001, the Chairmen of the Judiciary Committee and
    the Subcommittee requested that the General Accounting Office
    review and issue a report on the INS Forensic Document Lab. The
    INS has one forensic document lab to handle all requests for
    forensic examinations for deportation/removal hearings, asylum,
    and inspection cases for the U.S. Located in McLean, Virginia,
    this lab also handles requests from federal, state, and local
    agencies, including the State Department, FBI, and ATF, because
    it has the largest known collection of document exemplars.
        With the INS's increased case load, the FDL has been unable
    to investigate many of the cases sent to it by INS trial
    attorneys, inspectors, and asylum officers in a timely manner.
    Thousands of case documents are sent to the lab because
    document fraud is such a prevalent problem. However, due to the
    lab's backlog, many documents are not examined in time for
    scheduled immigration removal hearings months later. As a
    result, cases go forward in which INS trial attorneys suspect
    fraud and aliens often receive relief from deportation.
        Because of the Committee's concern regarding document
    fraud, the Committee asked the GAO to ascertain the
    capabilities of the FDL, the number of cases the lab receives
    each year, the types of requests the lab receives, whether the
    lab is capable of detecting the most sophisticated document
    counterfeiting and alteration methods, the priorities of the
    lab, the percentage of cases the lab is able to complete by the
    requested deadline, the lab's budget, and the lab's staff
    level.
        The GAO issued its report, ``INS Forensic Document
    Laboratory--Several Factors Impeded Timeliness of Case
    Processing'' (GAO-02-410), in March 2002. The GAO determined
    that the INS established a forensic case priority system in FY
    99 to ensure that certain categories of cases received priority
    attention by FDL examiners. Despite the new system, the FDL's
    overdue caseload and case completion time for its highest-
    priority cases--custody and criminal cases--were higher in FY
    01 than in FY 00. In addition, case completion time increased
    on average from 12 to 19 days for custody cases and from 11 to
    34 days for criminal cases.
        With a January 2002 supplemental appropriation by Congress,
    the FDL planned to nearly double its lab staff size and budget.
    However, because the lab would need time to recruit, hire, and
    train the new staff, the impact of these increases on case
    completion time and reduction in pending caseloads would not be
    immediate and was unknown as of the report printing.
        The GAO made the following recommendations to the Attorney
    General in its report: collect and analyze data on requesters'
    deadlines for obtaining forensic case results so that the lab
    can better ensure that cases are processed in an order that is
    optimally responsive to both the requesters' needs and INS's
    case priority system, and collect and analyze data on the total
    amount of time spent processing forensic cases to help the lab
    better manage its workload, project staff and budgetary needs,
    and establish benchmarks for case deadlines that are based on
    requesters' needs. The INS concurred with the GAO's
    recommendations, stating that the agency is evaluating
    requirements for an enhanced automated case management system
    that will enable the lab to effectively implement the report
    recommendations.

    Request for GAO report on immigration benefit fraud

        In April 2001, the Chairmen of the Judiciary Committee and
    the Subcommittee requested that the GAO study and report on
    immigration benefit fraud. The GAO issued its report
    ``Immigration Benefit Fraud--Focused Approach is Needed to
    Address Problems'' (GAO-02-66), in January 2002. The GAO
    reported that the INS does not empirically know the extent of
    the immigration benefit fraud problem. However, reports and INS
    officials indicate that the problem is pervasive, rampant and
    significant and will increase as smugglers and other criminal
    enterprises use fraud as another means of bringing illegal
    aliens, including criminal aliens, into the country.
        GAO concluded that several problems have hampered INS's
    immigration benefit fraud investigations. First, the interior
    enforcement strategy does not lay out a comprehensive plan to
    identify how components within and among the service centers
    and district offices are to coordinate their immigration
    benefit fraud investigations. Second, INS has not established
    guidance for opening immigration benefit fraud investigations
    or for prioritizing investigative leads. Third, the INS does
    not have an effective and efficient capability for tracking and
    managing agency-wide investigations. Finally, information
    sharing among offices is remarkably inadequate.
        The GAO recommended that the Attorney General direct the
    INS Commissioner to revise INS's interior enforcement strategy
    to better integrate its many units, including the service
    centers' operations units involved in benefit fraud
    enforcement, to effectively coordinate limited resources and to
    address crosscutting policy and procedural or logistical
    problems, revise INS's strategy to determine how INS should
    balance its dual responsibilities of processing applications in
    a timely manner and detecting fraudulent applications, develop
    guidance for INS's investigative units at the district office
    and service centers to use in deciding which benefit
    application fraud cases to pursue, use the criminal
    investigative reporting system, or develop another method, to
    track and manage benefit fraud investigations, so that INS can
    maintain data on individuals and organizations that are or have
    been the target of investigations, determine the actions and
    related costs that would be associated with providing
    adjudicators access to INS databases for reviewing applications
    for alien benefits, and if appropriate, provide adjudicators
    such access, and establish outcome-based performance measures
    for benefit fraud investigations against which to gauge the
    success of these efforts.
        In its response to the report, the INS agreed with GAO's
    recommendations with one exception. While the INS agreed that
    it should more effectively detect fraudulent applications and
    process applications in a more timely manner, it did not
    believe that both issues should be addressed by the interior
    enforcement strategy. INS cited the pending restructuring plan
    that divides INS's enforcement and service missions into two
    distinct bureaus.
        This Committee's repeated requests of the INS for fraud
    percentages in various benefit application forms and this GAO
    report prompted the INS to initiate a benefit fraud assessment
    of its application forms in January 2003. The Committee will
    monitor the agency's assessment, the results, and future
    strategies to detect fraud, deny fraudulent applications, and
    punish the applicants.

    Oversight of the State Department's Visa Condor Program

        Following the September 11, 2001, attacks, attention was
    focused on the State Department's issuance of visas to citizens
    of countries from which the hijackers came. In the week after
    the attacks, Committee and Subcommittee staff began meeting
    with State Department officials to urge corrective changes in
    the visa review and issuance process. Thereafter, the State
    Department implemented procedures under which aliens from
    specific countries would be subjected to heightened scrutiny
    before being issued visas.
        Following the September 11 attacks, the process by which
    the State Department issues visas received strong criticism. In
    apparent response to public and internal concerns about its
    visa-issuance procedures, the State Department, in conjunction
    with other Executive branch components, began an extensive
    review of those procedures as they relate to the national
    security. In November 2001, staff received a briefing on a
    State Department plan to perform additional background checks
    on certain visa applicants. The ``20-day'' name check went into
    effect on November 14, 2001, and applied to all male visa
    applicants between the ages of 16 and 45 from specified
    countries (the exact list of which is classified). The State
    Department's Consular Lookout Automated Support System (CLASS)
    \6\ automatically placed a hold on these applications, so that
    a visa could not be issued in less than 20 days. While this
    hold was pending, the visa application information was
    electronically transmitted to the FBI for the name check. On
    the 21st day, CLASS released the hold and prompted the consular
    officer to make a visa decision. If the consular officer had
    not received a negative response on an applicant, the visa
    could be issued.
    ---------------------------------------------------------------------------
        \6\ CLASS is a database that includes name-check information from
    overseas and domestic State Department offices, INS, Customs, FBI and
    CIA.
    ---------------------------------------------------------------------------
        In January 2001, the State Department instituted a 30-day
    name check, called ``Visas Condor,'' for visa applicants who
    fall within the 20-day name check and fit certain additional,
    classified, criteria. Aliens meeting the Condor criteria were
    required to complete a supplemental visa application form,
    information from which was sent to the United States in a cable
    for review. Name checks were originally performed by the CIA
    and FBI as a part of this process. The Visas Condor security
    check applied only to visas adjudicated after January 2002, and
    did not apply to previously issued visas.
        On September 20, 2002, representatives of the State
    Department, CIA, and Justice Department (representing the FBI)
    updated Committee and Subcommittee staff on the implementation
    of Visas Condor. Up until July 2002, consulates were told to
    hold applications for aliens to whom Visas Condor applied for
    30 days, and then process any applications for which the
    consulate had not received a response. In July, consulates were
    told to wait for a response before issuing a visa in a Visas
    Condor case, creating a massive backlog. In September, the
    process was changed, with FBI assuming responsibility for
    performing the name checks. Under the new procedures, FBI will
    refer an application to the State Department for forwarding to
    CIA only if checks result in a possible match. The State
    Department hopes to reduce the processing time for applications
    in which there are no hits to 10 days.
        Prior to the implementation of these procedures, between
    April and July 2002, the Foreign Terrorist Tracking Task Force
    (FTTTF), an interagency group operating under the auspices of
    the Justice Department, assumed primary responsibility for
    Visas Condor name checks for the FBI.\7\ According to a GAO
    report released in October 2002, of 38,000 cables processed as
    of August 1, 2002, the FTTTF identified 280 visa applicants
    ``who should not receive a visa under the'' terrorism
    provisions of the Immigration and Nationality Act. The
    Department of State received the refusal recommendations for
    approximately 200 of these applicants after the 30-day hold had
    expired and the visas had been issued. This number was lowered
    to 105 in subsequent published reports. According to
    information recently received by the Subcommittee, as of
    December 3, 2002, FTTTF has withdrawn its objection to the
    issuance of 59 of those 105 cases, and the remaining 46 are
    pending with the FTTTF.
    ---------------------------------------------------------------------------
        \7\ In July 2002, the FBI streamlined its internal procedures for
    providing Visas Condor responses to the State Department and moved the
    primary responsibility for Condor name checks from the FTTTF to the
    FBI's National Name Check Program.
    ---------------------------------------------------------------------------
        On November 11, 2002, staff received a briefing from the
    State Department on a change in visa procedures for three
    ``low-risk'' categories of visa applicants: scientists,
    immigrants, and refugees.Each of these categories is subject to
    special clearance procedures, and were previously subject to a hold on
    issuance pending a positive response. Under the revised procedures,
    visas may be issued to aliens subject to the procedures if no response
    is received in 15 days, 30 days, and 45 days, respectively. Consulates
    must still receive a positive response on Visa Condor cases before
    issuing visas.
        Committee and Subcommittee staff were briefed on the
    problems that the State and Justice Departments have had in
    implementing Visas Condor on December 12, 2002. As the State
    Department, and to a lesser degree, the FBI and Justice
    Department further refine the Visas Condor name-check system,
    the Committee and Subcommittee will continue to oversee the
    implementation of those checks.

    Oversight of foreign guestworker programs

        On February 16, 2001, President Bush and Mexican President
    Fox issued a joint statement that ``we agree there should be an
    orderly framework for migration which ensures humane treatment,
    legal security, and dignified labor conditions. For this
    purpose, we are instructing our Governments to engage, at the
    earliest opportunity, in formal high-level negotiations aimed
    at achieving short and long-term agreements that will allow us
    to constructively address migration and labor issues between
    our two countries.'' The Committee conducted a careful review
    of guestworker issues in the expectation that President Bush
    would propose a new guestworker program as an outgrowth of
    these negotiations with Mexico.
        The review first focused on the Bracero program. In 1942,
    in response to the U.S. manpower shortage arising from World
    War II, the United States and Mexico negotiated a treaty
    permitting the entry of Mexican farm workers, known as
    ``braceros''. This emergency wartime measure was the beginning
    of the Bracero program, which continued under various legal
    authorizations for 22 years and involved approximately 5
    million Mexican workers.
        In ``Guestworker Programs: Evidence from Europe and the
    United States and some Implications for U.S. Policy'',\8\
    Joshua Reichert & Douglass Massey write that:

        \8\ 1 Population Research and Policy Review 1 (1982).
    ---------------------------------------------------------------------------
        An increasing body of research indicates that the Bracero
    Program was pivotal in building a tradition of migration to the
    United States. * * *
        [B]raceros were able to build up a network of interpersonal
    relations and social ties upon which future migration could
    and, indeed, did eventually become self-sustaining in the
    absence of active recruitment by the United States government.

               *       *       *       *       *       *       *

        [I]n the long run the Bracero Program was far from
    temporary. When the program was phased-out in 1964, former
    braceros did not cease migrating to the United States as had
    been anticipated. Rather, they continued to enter the country,
    legally if possible, but if not, then as undocumented migrants.
    In a very real sense, therefore, the phenomenal growth in
    illegal immigration to the United States over the past 15 years
    represents an unintended result of the Bracero Program.

        The Committee then looked at the experience of Germany with
    guestworkers. Well funded under the Marshall Plan, the German
    economy developed at an astonishing rate in the post-war
    period. With the growing economy came a tremendous increase in
    the amount of jobs in the country. In contrast, World War II
    decimated the German workforce. The war left a substantial void
    in the demographic of working age men in the German population.
    Initially, the void of laborers was filled by defectors from
    the newly formed communist East Germany; however, the need for
    laborers quickly surpassed the number of defectors. In
    response, the German government opted to create a program to
    recruit temporary foreign workers. It was expected that these
    jobs (mostly factory, agricultural and mining jobs), when
    automated, would eliminate the need of temporary workers
    causing the workers to return to their home countries. The
    number of workers increased steadily throughout the years; in
    1956, there were 95,000 foreign workers in Germany, by 1966,
    there were 1.3 million, climbing to 2.6 million in 1973.
        Although German officials and foreign workers alike
    maintained that their residency in Germany was temporary, all
    signs pointed to the opposite. Many German employers persuaded
    their workers to stay, thus saving the costs of retraining new
    workers. The German government abetted this practice by not
    strictly enforcing rotation, mandated as part of the
    guestworker program. The government also increased the rights
    of the workers with each renewal of a work permit; for example,
    after one year of satisfactory work and suitable
    accommodations, the worker could send for his family. Immigrant
    populations swelled rapidly. With workers bringing their wives
    and children to live with them, it became apparent that the
    guests were planning on staying permanently. Children of
    immigrants were attending German schools and speaking German.
    Second generation workers who were born in Germany were
    unfamiliar with the country from which their parents emigrated,
    thus, they had no intention of returning.
        This caused a backlash in Germany. The German government
    made repeated attempts to prevent the number of foreign workers
    from rising. However, as guestworkers already present brought
    more and more family members to Germany, the overall population
    of foreigners in Germany has been ever increasing since the
    early 1970's despite the lack of new guestworkers.
        In their book ``Administering Foreign-Worker Programs'',
    Mark Miller and Philip Martin found that:

              [E]uropean governments did not expect foreign-worker
            employment to result in large-scale permanent
            immigration. Foreign workers were expected to be a
            temporary or complementary work force, which eventually
            returned home. To the contrary, a large number of
            foreign workers have become long-term residents of
            Europe, and foreign-worker policies have become de
            facto but still not fully acknowledged immigration
            policies. * * * [R]epatriation of foreign workers and
            their dependents who do not voluntarily return has
            proven to be a difficult, if not impossible, goal to
            attain.
              In retrospect, one fundamental miscalculation of
            European alien-labor policies was underestimation of
            the human dimensions of alien-worker employment. As
            foreign-worker policies were progressively improved
            over the years, facilitating family entry and other
            measures to improve the lot of foreign workers,
            European governments undercut theirown policy goal of
    short-term foreign-worker employment.* * * By the time unfavorable
    economic conditions moved governments to implement the expectation of
    return, many foreign workers had such long continuous residency due to
    permit renewal that they could not be forced to return home.
        On April 12, 2001, Chairman Sensenbrenner and Subcommittee
    Chairman Gekas sent a letter to President Bush stating in part
    that:
              The most significant item on the Mexican agenda is
            the creation of a new guestworker program in the United
            States for Mexican workers and the consequent
            ``regularization'' of Mexicans illegally present in the
            United States. Such a request must be viewed through
            the prism of past large-scale guestworker programs both
            in the United States and Europe.
              In the United States, the Bracero program from 1942
            to 1964 brought in millions of Mexican workers to do
            agricultural labor. The program attempted to safeguard
            guestworkers and domestic workers alike, but
            guestworkers were still, unfortunately, exploited.
            Millions of dollars from laborers' earnings, sent to
            Mexican banks for the workers' retirement, disappeared.
            Significant illegal immigration coexisted with the
            Bracero program and the program's end stimulated this
            illegal flow, as formerly legal workers continued to
            return to the U.S. and work illegally.
              Europe's experience with guestworker programs since
            the end of World War II, such as with Turkish workers
            in Germany, has been that ``temporary'' workers often
            ended up staying permanently (despite the best efforts
            of the host government). This created a permanent
            underclass of ``temporary'' workers and their families.
              In light of this history, several questions about any
            proposed new guestworker program, especially one that
            is expanded beyond the agricultural sector, must be
            answered.
              First, would a guestworker program constitute an
            amnesty for illegal aliens now here in the United
            States, especially if it offers permanent residence
            after a term as a guestworker?
              Second, would a program contain any real method to
            guarantee that guestworkers return home? As long as the
            wage differential between Mexican and U.S. jobs remains
            as great as it is, such a method might be difficult to
            find.
              Third, would a guest-worker program contain any
            protections for American workers? If the only
            requirement would be that guestworkers be paid the
            minimum wage, guestworkers might be used to flood the
            labor market and drive down wages in various
            industries.* * * Would businesses be required to
            recruit American workers, be prohibited from replacing
            American workers with Mexicans, and be required to
            focus on long-term solutions to labor needs?

        On June 19, 2001, the Subcommittee on Immigration and
    Claims held an oversight hearing on Guestworker Visa Programs.
    Witnesses were Susan Martin, Institute for the Study of
    International Migration, Georgetown University, Randel Johnson,
    Vice President, Labor and Employee Benefits at the U.S. Chamber
    of Commerce, Mark Krikorian, Executive Director of the Center
    for Immigration Studies, and Cecilia Munoz, Vice President of
    the Office of Research Advocacy and Legislation, National
    Council of La Raza.

    Oversight of the Visa Waiver Program

        The Visa Waiver Program allows aliens traveling from
    certain designated ``low-risk'' countries to come to the United
    States as temporary visitors for business or pleasure without
    having to obtain the nonimmigrant visa normally required to
    enter the United States. There are currently 28 countries,
    mostly European, participating in the VWP. In fiscal year 2001,
    17.1 million aliens entered the U.S. under the VWP. The program
    is of great importance to the U.S. travel and tourism industry.
        The Department of Justice's Office of Inspector General
    issued a report in 1999 on the ``Potential for Fraud and INS's
    Efforts to Reduce the Risks of Visa Waiver Pilot Program''. The
    report concluded that ``[a]buse of the [VWP] poses threats to
    U.S. national security * * *.'' It stated that ``it is believed
    that thousands of * * * mala fide [VWP] applicants--those
    individuals using fraudulent VWP passports or individuals with
    fraudulent intent using valid [VWP] passports--successfully
    entered the United States without being intercepted'' and that
    ``the [VWP] provides an avenue for terrorists, criminals, and
    other inadmissible applicants to enter the United States''.
        The VWP is based on the premise that nationals of
    participating countries pose little risk of being security
    threats or overstaying the period of their admittance.
    Therefore, there is no need for prescreening by State
    Department consular officers abroad who would normally review
    documents provided by a visa applicant and interview the
    applicant to determine whether he or she posed a danger or was
    likely to overstay.
        While this premise might have been true in years past
    regarding nationals of wealthy and democratic European
    countries that make up the bulk of VWP participants, it is
    questionable whether it is true today. The New York Times
    reported on December 28, 2001, that a ``world of Muslim
    militancy * * * took root in Europe in the 1990's'' and that
    ``Europe became the forward operating base for Islamic terror
    over the last decade.''
        There seems to be a high risk that Western intelligence
    services have no idea as to the identity of many terrorists who
    are nationals of VWP countries. If they tried to enter the U.S.
    under the VWP, their names would not come up on any lookout
    system. All they would need to enter would be a passport. In
    fact, a number of terrorists have already gained access to the
    U.S. or U.S.-bound aircraft through the use of passports of VWP
    countries that were issued to them in a legitimate fashion.
    Zacarias Moussaoui, the putative ``20th hijacker'' on September
    11, came to the U.S. as a French national under the VWP.
    Richard Reid, the ``shoe-bomber'', had gotten aboard a U.S.-
    bound flight from Paris using a British passport that the
    French government believes to be legitimately his.
        The Department of Justice Inspector General's 1999 report
    on the VWP stated that the ``INS estimates that over 100,000
    blank [VWP] passports have been stolen in the past several
    years.'' The report went on to state that ``passports of [VWP]
    countries are in demand on the black market.
        The VWP is vulnerable in a number of ways to aliens seeking
    entry to the U.S. possessing European passports that have been
    stolen while blank and then modified to identify the aliens.
    First, while the federal government does maintain a database of
    lost or stolen VWP country passports thatis used by INS
    inspectors at ports of entry, the IG found that VWP countries do not
    always report lost or stolen passports to the U.S. government. INS
    inspectors told IG investigators that ``some countries are reluctant to
    provide data on stolen passports.''
        The next vulnerability is that the numbers of passports
    reported stolen or lost by VWP countries are not always entered
    into the lookout database, or not entered in a timely manner.
    The IG found that the ``INS did not systematically collect
    information on all stolen passports and did not create lookout
    records based on the information that it did receive.'' This
    was because ``[t]here is no single entity within INS
    responsible for the collection of information on stolen
    passports'' and ``no single office within INS * * * responsible
    for systematically entering stolen passport numbers into the
    lookout system.
        The IG recommended that the INS ``[d]esignate a unit to
    systematically collect information on stolen blank [VWP]
    passports and ensure timely * * * entry of stolen passport
    numbers into the lookout system.'' The IG's 2001 follow-up
    report stated that the INS did issue a memorandum to district
    directors in October 1999 consolidating functions in the INS
    ``Lookout Unit.'' However, the IG found that ``these policies
    are not being followed.''
        The next vulnerability is that the passport numbers that
    are entered into the database or are queried against the
    lookout system are often incorrect. The IG found in 1999 that
    in the cases of 112 of the 1,067 passports studied, there were
    discrepancies between the passport numbers as they were
    reported stolen and the passport numbers as they were entered
    into the lookout system. The major problem was that some
    passports contain multiple numbers, including serial or issuing
    numbers. Obviously, ``[i]f the INS inspector queries a number
    other than the passport number that was used to create the
    lookout record, or if the lookout record was created using a
    number other than the passport number, a match will not be
    found.'' The IG recommended that the INS ``[d]evelop clear
    guidelines for the entry of passport numbers when creating
    lookout records.'' The IG in 2001 found that while the October
    1999 memo to district directors contained guidelines on which
    number on a passport to enter into the lookout system,
    ``[i]nterviews with INS officials at the four [ports of entry]
    indicate a lack of uniformity among ports as to which passport
    number they enter for lookout records.''
        The last major vulnerability is that the passport numbers
    of aliens arriving under the VWP are not always checked against
    the lookout system by INS inspectors. The IG found that the
    reason for this was primarily that INS inspectors had, on
    average, less than one minute to check and decide on each
    foreigner arriving at an airport and that INS inspectors thus
    usually manually entered passport numbers only if they had
    suspicions about particular individuals. The IG recommended
    that the INS ``[m]odify primary inspection policy to ensure
    that the passport number of each [VWP] applicant is checked
    against the lookout system.''
        Unfortunately, the IG found in 2001 that while the INS's
    October 1999 memorandum to district directors did direct that
    inspecting officers at air and sea ports of entry query the
    passport number of all applicants for admission, including VWP
    applicants, it was likely that this was still not being done
    consistently at all ports of entry.
        For all these reasons, the IG concluded that ``[i]t is
    difficult for the INS to ensure that inadmissible aliens with
    fraudulent VWP passports are reliably refused entry into the
    United States. * * *'' The threat of terrorists using stolen
    passports to gain entry to the U.S. under the visa waiver
    program is not entirely theoretical. The AP reported that a
    search of abandoned Al Qaeda caves in Afghanistan found ``blank
    U.S. and European passports.''
        On February 28, 2002, the Subcommittee in Immigration and
    Claims held an oversight hearing on Implications of
    Transnational Terrorism and the Argentine Economic Collapse for
    the Visa Waiver Program. Witnesses included Glen Fine,
    Inspector General, U.S. Department of Justice, Peter Becraft,
    Deputy Commissioner, INS, Yonah Alexander, Professor, Potomac
    Institute for Policy Studies, and William Norman, President,
    Travel Industry Association of America. A short time after this
    hearing took place, Argentina was suspended from participation
    in the VWP.
                      SUBCOMMITTEE ON THE CONSTITUTION \1\

       STEVE CHABOT, Ohio, Chairman

    JERROLD NADLER, New York             WILLIAM L. JENKINS, Tennessee
    BARNEY FRANK, Massachusetts          LINDSEY O. GRAHAM, South Carolina
    JOHN CONYERS, Jr., Michigan          SPENCER BACHUS, Alabama
    ROBERT C. SCOTT, Virginia            JOHN N. HOSTETTLER, Indiana
    MELVIN L. WATT, North Carolina       MELISSA A. HART, Pennsylvania,
                                         Vice Chair
                                         LAMAR S. SMITH, Texas
                                         ASA HUTCHINSON, Arkansas \2\
                                         J. RANDY FORBES, Virginia \3\

    ----------
    \1\ Subcommittee chairmanship and assignments approved January 31,
    2001.
    \2\ Asa Hutchinson, Arkansas, resigned from the House effective
    midnight August 6, 2001.
    \3\ J. Randy Forbes, Virginia, assignment to the subcommittee approved
    June 13, 2002.

    Tabulation of subcommittee legislation and activity

    Legislation referred to the Subcommittee..........................   122
    Legislation on which hearings were held...........................     6
    Legislation reported favorably to the full Committee..............     5
    Legislation reported adversely to the full Committee..............     0
    Legislation reported without recommendation to the full Committee.     0
    Legislation reported as original measure to the full Committee....     0
    Legislation discharged from the Subcommittee......................     3
    Legislation pending before the full Committee.....................     0
    Legislation reported to the House.................................     8
    Legislation discharged from the Committee.........................     4
    Legislation pending in the House..................................     1
    Legislation failed passage by the House...........................     1
    Legislation passed by the House...................................    10
    Legislation pending in the Senate.................................     4
    Legislation vetoed by the President (not overridden)..............     0
    Legislation enacted into Public Law...............................     4
    Days of legislative hearings......................................     6
    Days of oversight hearings........................................    10

                        Jurisdiction of the Subcommittee

        The Subcommittee on the Constitution has legislative and
    oversight responsibility for the Civil Rights Division and the
    Community Relations Service of the Department of Justice, as
    well as the U.S. Commission on Civil Rights and the Office of
    Government Ethics. General legislative and oversight
    jurisdiction of the Subcommittee includes civil and
    constitutional rights, civil liberties and personal privacy,
    federal regulation of lobbying, private property rights,
    federal ethics laws, and proposed constitutional amendments.

                             Legislative Activities

    H.R. 2175, Born-Alive Infants Protection Act of 2002 (Pub. L. No. 107-
            207)

        Summary.--It has long been an accepted legal principle that
    infants who are born alive, at any stage of development, are
    persons who are entitled to the protections of the law. But
    recent changes in the legal and cultural landscape have brought
    this well-settled principle into question. These changes have
    allowed our culture and legal community to accept the notion
    that once a child is marked for abortion, it is wholly
    irrelevant whether that child survives an abortion and emerges
    from the womb as a live baby. That child may still be treated
    as though he or she did not exist, and would not have any
    rights under the law--no right to receive medical care, to be
    sustained in life, or to receive any care at all. Credible
    public testimony received by the Subcommittee on the
    Constitution indicates that this is, in fact, already
    occurring. According to eyewitness accounts, ``induced-labor''
    or ``live-birth'' abortions are indeed being performed,
    resulting in live-born premature infants who are simply allowed
    to die, sometimes without the provision of even basic comfort
    care such as warmth and nutrition.
        H.R. 2175, the ``Born-Alive Infants Protection Act of
    2001,'' provides that, for purposes of federal law, ``the words
    `person,' `human being,' `child,' and `individual,' shall
    include every infant member of the species homo sapiens who is
    born alive at any stage of development.'' The term ``born
    alive'' is defined as ``the complete expulsion or extraction
    from its mother of that member, at any stage of development,
    who after such expulsion or extraction breathes or has a
    beating heart, pulsation of the umbilical cord, or definite
    movement of the voluntary muscles, regardless of whether the
    umbilical cord has been cut, and regardless of whether the
    expulsion or extraction occurs as a result of natural or
    induced labor, cesarean section, or induced abortion.'' This
    definition of ``born alive'' was derived from a model
    definition of ``live birth'' that has been adopted, with minor
    variations, in thirty states and the District of Columbia.
        Legislative History.--H.R. 2175, the ``Born-Alive Infants
    Protection Act of 2001,'' was introduced by Constitution
    Subcommittee Chairman Steve Chabot on June 14, 2001. On July
    12, 2001, the Subcommittee on the Constitution held a hearing
    on H.R. 2175 at which testimony was received from the following
    witnesses: Hadley Arkes, Ney Professor of Jurisprudence and
    American Institutions, Amherst College; Jill L. Stanek, R.N.,
    formerly of Christ Hospital, Oak Lawn, Illinois; Watson A.
    Bowes, Jr., M.D., professor emeritus of Obstetrics and
    Gynecology, School of Medicine, University of North Carolina at
    Chapel Hill. Additional material was submitted by Matthew G.
    Hile, Ph.D.; F. Sessions Cole, M.D.; Gordon B. Avery, M.D.,
    Ph.D.; Advocate Christ Medical Center; and Jill. L. Stanek,
    R.N. On July 12, 2001, the Subcommittee on the Constitution met
    in open session and ordered favorably reported the bill H.R.
    2175, without amendment, by a voice vote, a quorum being
    present. On July 24, 2001, the Committee met in open session
    and ordered favorably reported the bill H.R. 2175 without
    amendment by a recorded vote of 25 to 2, a quorum being
    present. (H. Rept. 107-186). On March 12, 2002, H.R. 2175 was
    passed by the House after a motion to suspend the rules and
    pass the bill was agreed to by voice vote. On July 18, 2002,
    H.R. 2175 passed the Senate after a motion to suspend the rules
    and pass the bill was agreed to by voice vote. On July 26,
    2002, H.R. 2175 was presented to the President and on August 5,
    2002, it was signed into law by President Bush, becoming Pub.
    L. No. 107-207.

    H.R. 476, Child Custody Protection Act

        Summary.--H.R. 476, the ``Child Custody Protection Act,''
    has two primary purposes. The first is to protect the health
    and safety of young girls by preventing valid and
    constitutional state parental involvement laws from being
    circumvented. The second is to protect the rights of parents to
    be involved in the medical decisions of their minor daughters.
    To achieve these purposes, H.R. 476 makes it a federal offense
    to knowingly transport a minor across a state line, with the
    intent that she obtain an abortion, in circumvention of a
    state's parental consent or parental notification law. A
    violation of the Act is a Class One misdemeanor, carrying a
    fine of up to $100,000 and incarceration of up to one year.
    H.R. 476 does not supercede, override, or in any way alter
    existing state parental involvement laws. Nor does the Act
    impose any parental notice or consent requirement on any state.
    H.R. 476 would prevent the interstate transportation of minors
    in order to circumvent valid, existing state laws by using
    Congress's authority to regulate interstate activity to protect
    those laws from evasion.
        Legislative History.--H.R. 476, the ``Child Custody
    Protection Act,'' was introduced by Rep. Ileana Ros-Lehtinen on
    Feb. 6, 2001. The Subcommittee on the Constitution held a
    hearing on H.R. 476 on September 6, 2001, at which testimony
    was received from the following witnesses: Ms. Eileen Roberts,
    Mothers Against Minors' Abortions, Inc.; Professor John C.
    Harrison, Professor of Law, University of Virginia School of
    Law; Rev. Katherine Ragsdale, Vicar, St. David's Episcopal
    Church; and Ms. Teresa S. Collett, Professor of Law, South
    Texas College of Law. Additional material was submitted by the
    Honorable Ileana Ros-Lehtinen; Mr. Laurence H. Tribe, Tyler
    Professor of Constitutional Law, Harvard University and Mr.
    Peter J. Rubin, Associate Professor of Law, Georgetown
    University; Bill and Karen Bell; and the Center for
    Reproductive Law and Policy. On February 7, 2002, the
    Subcommittee on the Constitution met in open session and
    ordered favorably reported the bill H.R. 476, without
    amendment, by a voice vote, a quorum being present. On March
    20, 2002, the Committee met in open session and ordered
    favorably reported the bill H.R. 476, without amendment, by a
    recorded vote of 19 to 6, a quorum being present. (H. Rept.
    107-387). On April 17, 2002, the House passed H.R. 476 by a
    vote of 260 to 161. On April 17, 2002, H.R. 476 was received in
    the Senate, read twice, and referred to the Committee on the
    Judiciary. No further Senate action was taken on the measure.

    H.R. 1022, Community Recognition Act of 2001

        Summary.--The purpose of H.R. 1022 was to ensure that the
    rules of etiquette for flying the flag of the United States do
    not preclude the flying of flags at half mast when ordered by
    city and local officials. The legislation would have authorized
    the chief elected leader of a city or other locality, in the
    event of the death of a present or former official of that
    particular locality, to proclaim that the national flag be
    flown at half staff.
        4 U.S.C. Sec. 7(m) grants authority to the President of the
    United States or the Governor of any State, territory, or
    possession to order that the national flag be flown at half
    staff in recognition of the death of a current or former
    official of the government under which they preside. Local
    officials may order the national flag flown at half mast only
    with the direct permission of the President or their Governor.
    Permission sought is not always timely, which results in the
    missed opportunity to properly honor the individual in
    question. H.R. 1022 would have permitted the chief elected
    official of local government entities, such as cities, towns,
    counties, or other like traditional political subdivisions, to
    honor those leaders or public servants who either died in the
    line of duty or passed away following a distinguished career in
    public service by ordering the national flag flown at half
    staff.
        While the Code does not expressly outlaw the common
    practice of lowering the flag in honor of local heroes it,
    neither does it expressly permit such activity. This ambiguous
    wording has upset local officials across the country who
    believe that communities should have the right to honor their
    fellow citizens without the express and time consuming
    permission of either the President or their corresponding
    Governor.
        Legislative History.--On March 14, 2001, H.R. 1022 was
    introduced by Representative Doolittle of California, and
    subsequently referred to the Committee on the Judiciary. On
    November 15, 2001 the Committee ordered reported the bill
    favorably to the House, with amendment, by a voice vote. On
    November 29, 2002 the Committee filed the report, H. Rept. 107-
    305. On November 15, 2002, the House passed the bill by the
    Yeas and Nays, 420--0, and subsequently was referred to the
    Senate Judiciary Committee, which took no further action.

    H. Res. 459, expressing the sense of the House of Representatives that
            Newdow v. U.S. Congress was erroneously decided, and for other
            purposes

        Summary.--On June 26, 2002, the United States Court of
    Appeals for the Ninth Circuit, in Newdow v. U.S. Congress, 292
    F.3d 597 (9th Cir. 2002), held that the Pledge of Allegiance is
    an unconstitutional endorsement of religion, stating that it
    ``impermissibly takes a position with respect to the purely
    religious question of the existence and identity of God,'' and
    places children in the ``untenable position of choosing between
    participating in an exercise with religious content or
    protesting.'' Id. at 609. The purpose of H. Res. 459 was to
    express the sense of the House that Newdow v. U.S. Congress was
    erroneously decided.
        Legislative History.--On June 26, 2002, H. Res. 459,
    expressing the sense of the House of Representatives that
    Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), was
    erroneously decided, and for other purposes was introduced by
    Judiciary Committee Chairman F. James Sensenbrenner and
    referred to the Judiciary Committee's Subcommittee on the
    Constitution. On June 27, 2002, Chairman Sensenbrenner moved to
    suspend the rules and agree to the resolution. A motion to
    suspend the rules and agree to the resolution was agreed to by
    a 416 to 3 vote, 11 members voting ``present''. On June 26,
    2002, a similar resolution, S. Res. 292, was introduced in the
    Senate by Sen. Tom Daschle and was agreed to by a 99-0 vote.

    H. Con. Res. 62, expressing the sense of Congress that the George
            Washington letter to Touro Synagogue in Newport, Rhode Island,
            which is on display at the B'nai B'rith Klutznick National
            Jewish Museum in Washington, D.C., is one of the most
            significant early statements buttressing the nascent American
            constitutional guarantee of religious freedom

        Summary.--The purpose of H. Con. Res. 62 was to express the
    sense of Congress that George Washington's letter to Touro
    Synagogue in Newport, Rhode Island, which is on display at the
    B'nai B'rith Klutznick National Jewish Museum in Washington,
    D.C., is one of the most significant early statements
    buttressing the nascent American constitutional guarantee of
    religious freedom. H. Con. Res. 62 also calls for the text of
    the letter to be widely circulated, serving as an important
    tool for teaching tolerance to children and adults alike.
        Legislative History.--H. Con. Res. 62 was introduced by
    Rep. Patrick J. Kennedy on March 14, 2001. No hearings were
    held on H. Con. Res. 62. On June 28, 2001, the Committee met in
    open session and ordered favorably reported the bill H. Con.
    Res. 62 with amendment--inserting theactual text of the
    letter--by voice vote, a quorum being present. (H. Rept. 107-143). No
    further action was taken on the measure in the House. On February 15,
    2001, S. Con. Res. 16, expressing the sense of Congress that the George
    Washington letter to Touro Synagogue in Newport, Rhode Island, which is
    on display at the B'nai B'rith Klutznick National Jewish Museum in
    Washington, D.C., is one of the most significant early statements
    buttressing the nascent American constitutional guarantee of religious
    freedom, was introduced by Sen. Lincoln D. Chafee. On February 15,
    2001, S. Con. Res. 16 was referred to the Committee on the Judiciary
    which ordered the measure to be reported favorably without amendment.
    On July 23, 2001, S. Con. Res. 16 was agreed to in the Senate by
    unanimous consent.

    H.R. 4965, Partial-Birth Abortion Ban Act of 2002

        Summary.--H.R. 4965, the ``Partial-Birth Abortion Ban Act
    of 2002,'' bans the partial-birth abortion procedure in which
    an intact living fetus is partially delivered until some
    portion of the fetus is outside the body of the mother before
    the fetus is killed and the delivery completed. A partial-birth
    abortion is defined by H.R. 4965 as an abortion in which a
    physician ``deliberately and intentionally vaginally delivers a
    living fetus until, in the case of a head-first presentation,
    the entire fetal head is outside the body of the mother, or, in
    the case of breech presentation, any part of the fetal trunk
    past the navel is outside the body of the mother for the
    purpose of performing an overt act that the person knows will
    kill the partially delivered living fetus.'' An abortionist who
    violates the ban would be subject to fines or a maximum of two
    years imprisonment, or both. H.R. 4965 also establishes a civil
    cause of action for damages against an abortionist who violates
    the ban and includes an exception for those situations in which
    a partial-birth abortion is necessary to save the life of the
    mother. H.R. 4965 differs from legislation to ban partial-birth
    abortions approved by previous Congresses in that it contained
    a revised definition of the banned procedure and includes
    Congress's factual findings that, based upon extensive medical
    evidence compiled during congressional hearings, a partial-
    birth abortion is never necessary to preserve the health of a
    woman.
        Legislative History.--H.R. 4965, the ``Partial-Birth
    Abortion Ban Act of 2002,'' was introduced by Constitution
    Subcommittee Chairman Steve Chabot on June 19, 2002. The
    Committee's Subcommittee on the Constitution held a hearing on
    H.R. 4965 on July 9, 2002. Testimony was received from four
    witnesses: Dr. Kathi Aultman, M.D.; Dr. Curtis Cook, M.D.;
    Professor Robert A. Destro, Professor of Law, Columbus School
    of Law at the Catholic University of America; and Simon Heller,
    Consulting Attorney with the Center for Reproductive Law and
    Policy. Additional materials were submitted by Dr. Kathi
    Aultman M.D.; Dr. Curtis Cook, M.D.; the Center for
    Reproductive Law and Policy; Rep. Steve Chabot; and Rep. Randy
    Forbes. On July 11, 2002, the Subcommittee on the Constitution
    met in open session and ordered favorably reported the bill
    H.R. 4965, without amendment, by a vote of 8 to 3, a quorum
    being present. On July 17, 2002, the Committee met in open
    session and ordered favorably reported the bill H.R. 4965
    without amendment by a recorded vote of 20 to 8, a quorum being
    present. (H. Rept. 107-604). On July 24, 2002, the House
    approved H.R. 4965 by a vote of 274-151, with one member voting
    ``present''. On July 25, 2002, H.R. 4965 was received in the
    Senate. No further Senate action was taken on the measure.

    H.J. Res. 36, proposing an amendment to the Constitution of the United
            States authorizing the Congress to prohibit the physical
            desecration of the flag of the United States

        Summary.--H.J. Res. 36 proposes to amend the United States
    Constitution to allow Congress to prohibit the physical
    desecration of the flag of the United States. The proposed
    amendment reads: ``The Congress shall have the power to
    prohibit the physical desecration of the flag of the United
    States.'' The amendment itself does not prohibit flag
    desecration. It merely empowers Congress to enact legislation
    to prohibit the physical desecration of the flag and
    establishes boundaries within which it may legislate. Prior to
    the United States Supreme Court decision in Texas v. Johnson,
    491 U.S. 397 (1989), forty-eight states and the Federal
    Government had laws prohibiting desecration of the flag. The
    purpose of the proposed amendment is to restore to the Congress
    the power to protect the flag.
        Legislative History.--On March 13, 2001, H.J. Res. 36,
    proposing an amendment to the Constitution of the United States
    authorizing the Congress to prohibit the physical desecration
    of the flag of the United States, was introduced by Rep. Randy
    (Duke) Cunningham. No hearings were held on H.J. Res. 36. On
    Thursday, May 24, 2001, the Subcommittee on the Constitution
    met in open session and ordered favorably reported the bill,
    H.J. Res. 36, without amendment, by a vote of 5 to 3, a quorum
    being present. On Wednesday, June 20, 2001, the Committee met
    in open session and ordered favorably reported the bill, H.J.
    Res. 36 without amendment by a recorded vote of 15 to 11, a
    quorum being present. (H. Rept. 107-115). On July 17, 2001, the
    House passed H.J. Res. 36 by a vote of 298-125. On March 13,
    2001, S.J. Res. 7, proposing an amendment to the Constitution
    of the United States authorizing the Congress to prohibit the
    physical desecration of the flag of the United States, was
    introduced by Sen. Orrin G. Hatch. On March 13, 2001, S.J. Res.
    7 was referred to the Committee on the Judiciary and on July
    15, 2001, the Committee on the Judiciary referred S.J. Res. 7
    to its Subcommittee on the Constitution. No further action was
    taken on the measure.

    H.J. Res 42, memorializing fallen firefighters by lowering the American
            flag to half-staff in honor of the National Fallen Firefighters
            Memorial Service in Emmitsburg, Maryland

        Summary.--H.J. Res. 42 recognizes the thousands of
    Americans that have fallen while serving as a fire or emergency
    personnel. This joint resolution acknowledges the lowering of
    the American flag at the National Fallen Firefighters Memorial
    Service held in Emmitsburg, Maryland. H.J. Res. 42 joins the
    Federal Government in praise and prayers for our fallen heroes
    by lowering the American flag to half-staff on the day of this
    memorial service.
        Legislative History.--H.J. Res. 42 was introduced on March
    29, 2001 by Congressman Castle. On October 2, 2001 the joint
    resolution passed the House by a 420-0 vote. On October 4, 2001
    the Senate passed the joint resolution by unanimous consent. On
    October 16, 2001 the joint resolution was signed by the
    President and became Public Law 107-51.

    H.J. Res. 67, a proposed amendment to the Constitution that would
            authorize governors to appoint persons temporarily to take the
            place of Representatives who had died or become incapacitated
            in emergency situations

        Summary.--H.J. Res. 67 would authorize governors to appoint
    persons temporarily to take the place of Representatives who
    had died or become incapacitated when 25% or more of all
    Representatives were unable to perform their duties. Generally,
    under the proposed amendment, each appointee would serve until
    a Member was elected to fill the vacancy and each special
    election would be held at any time during the 90-day period
    beginning on the date of the individual's appointment.
        Such a proposal is not the first of its kind to have been
    introduced. From the 1940's through 1962, the issue of filling
    House vacancies in the event of a national emergency generated
    considerable interest among some Members of Congress during the
    ``cold war'' with the former Soviet Union. More than 30
    proposed constitutional amendments which provided for
    temporarily filling House vacancies or selecting successors in
    case of the disability of a significant number of
    Representatives were introduced from the 79th through the 87th
    Congress. The House has never voted on any of these proposals.
        Many of the current issues raised and policy arguments
    offered in support of or in opposition to the temporary
    appointment of Representatives are the same as those that were
    made 50 years ago, but the events of September 11, 2001, have
    raised additional issues. Suicidal terrorists may act
    independently from sovereign nations and may not be deterred
    from using weapons of mass destruction because of the possible
    consequences for their own people. Opponents argue that
    allowing governors to appoint Representatives temporarily would
    depart from a foundational principle under which the House has
    kept close to the people and each Member has taken his seat
    only as a result of direct election by the voters in the
    Member's district. Also, the states, rather than Congress, may
    be in the best position to provide for expedited election
    procedures in emergencies.
        Legislative History.--Representative Brian Baird introduced
    H.J. Res. 67 on November 10, 2001. H.J. Res. 67 was referred to
    the House Judiciary Committee and then to the Subcommittee on
    the Constitution on November 27, 2001. The Subcommittee on the
    Constitution held a hearing on H.J. Res. 67 on February 28,
    2002. No further action was taken on H.J. Res. 67.

    H.J. Res. 96, tax limitation amendment

        Summary.--H.J. Res. 96 was a proposed constitutional
    amendment that would require any legislative measure changing
    the internal revenue laws that increases revenue by more than a
    de minimis amount to receive the concurrence of two-thirds of
    the Members of each House voting and present. Excluded from
    this requirement would be any increase resulting from the
    lowering of an effective rate of any tax. The supermajority
    requirement could be waived when a declaration of war is in
    effect or when the United States is engaged in military
    conflict which causes an imminent and serious threat to
    national security and is so declared by a joint resolution,
    adopted by a majority of the whole number of each House, which
    becomes law. Pursuant to the Necessary and Proper Clause of
    Article I, section 8 of the Constitution, the Congress would
    have authority to enact implementing legislation.
        Legislative History.--Proposals to limit the level or rate
    of growth of revenues were considered on the House Floor in
    conjunction with consideration of proposed balanced budget
    amendments in the 101st, 102nd, and 103rd Congresses. At the
    beginning of the 104th Congress, the House adopted a new
    provision in its rules requiring that an income tax rate
    increase be approved by three-fifths of the Members voting. \1\
    The House also began an annual practice of considering a
    constitutional amendment requiring a two-thirds vote on certain
    tax legislation. On April 15, 1996, H.J. Res. 159 failed to
    receive the required two-thirds vote for constitutional
    amendments by a vote of 241-157. It would have required any
    bill to levy a new tax or to increase the rate or base of any
    tax to receive a two-thirds majority of the whole number of
    each House of Congress.
    ---------------------------------------------------------------------------
        \1\ See House Rule XXI, cl. 5(c), 104th Cong.
    ---------------------------------------------------------------------------
        At the beginning of the 105th Congress, the House rule was
    changed to require a three-fifths vote for any bill that
    ``amends subsection (a), (b), (c), (d), or (e) of section 1, or
    to section 11(b) or 55(b) of the Internal Revenue Code of 1986,
    that imposes a new percentage as a rate of tax and thereby
    increases the amount of tax imposed by any such section.'' \2\
    In addition, the Committee on the Judiciary conducted a markup
    of H.J. Res. 62 following a hearing conducted by the
    Subcommittee on the Constitution, during which eight witnesses,
    including two Members of Congress, testified. On April 8, 1997,
    the Committee ordered H.J. Res. 62 to be reported, as amended,
    by a vote of 18-10. \3\ H.J. Res. 62, as amended, would have
    required, inter alia, any legislative measure changing the
    internal revenue laws to receive the concurrence of two-thirds
    of the Members of each House voting and present, unless the
    bill is determined at the time of adoption not to increase the
    internal revenue by more than a de minimis amount. But on April
    15, 1997, the bill failed by a vote of 233-190.
    ---------------------------------------------------------------------------
        \2\ See House Rule XXI, cl. 5(b), 106th Cong.
        \3\ See H. Rept. 105-50, 105th Cong., 1st Sess. (1997).
    ---------------------------------------------------------------------------
        In 1998, H.J. Res. 111 was introduced but subsequently
    modified and deliberated pursuant to H. Res. 407, a rule for
    its consideration. Pursuant to H.AMDT. 553, section 1 of H.J.
    Res. 111 was amended to additionally state that ``[f]or the
    purposes of determining any increase in the internal revenue
    under this section, there shall be excluded any increase
    resulting from the lowering of an effective rate of any tax.''
    On April 22, 1998, H.J. Res. 111, as amended, failed by a vote
    of 238-186.
        During the 106th Congress, H.J. Res. 37 failed on April 15,
    1999 by a vote of 229-199, and H.J. Res. 94 failed on April 12,
    2000 by a vote of 234-192. The bills were identical to each
    other and identical to H.J. Res. 111, 105th Cong., as amended,
    except that the bills introduced during the 106th Congress did
    not contain a section providing that Congress can enact
    enabling legislation.
        On March 22, 2001, Representative Pete Sessions introduced
    H.J. Res. 41, during the 107th Congress. H.J. Res. 41 failed on
    April 25, 2001 by a vote of 232-189. On June 6, 2002,
    Representative Sessions introduced H.J. Res. 96. On June 12,
    2002, H.J. Res. 96 failed by a vote of 227-178.

    S. 1202, the Office of Government Ethics Authorization Act of 2001

        Summary.--S. 1202 would reauthorize the Office of
    Government Ethics through 2006. The small agency established in
    1978 fosters high ethical standards for government employees.
    The agency oversees compliance by federal departments and
    agencies with a variety of ethics laws. It issues rules and
    regulations for federal employees to follow on such matters as
    conflict of interest, post-employment restrictions, standards
    of conduct, and financial disclosure.
        Legislative History.--S. 1202 was introduced by Senator
    Lieberman on July 19, 2001. OnNovember 15, 2001, the Senate
    passed the bill by Unanimous Consent. On November 16, 2001 the bill was
    referred to the Judiciary Committee. On December 20, 2001 the House
    agreed to suspend the rules and pass the bill by a voice vote. S. 1202
    was signed by the president on January 15, 2002 and became Public Law
    107-119.

    S. 2690, to reaffirm the reference to one Nation under God in the
            Pledge of Allegiance (Pub. L. No. 107-293)

        Summary.--The purpose of S. 2690, is to reaffirm Congress's
    commitment to the Pledge of Allegiance and our national motto,
    ``In God we trust,'' in the wake of the Ninth Circuit Court of
    Appeals' June 26, 2002, holding in Newdow v. U.S. Congress, 292
    F.3d 597 (9th Cir. 2002), that the Pledge of Allegiance is an
    unconstitutional endorsement of religion, because it
    ``impermissibly takes a position with respect to the purely
    religious question of the existence and identity of God,'' and
    places children in the ``untenable position of choosing between
    participating in an exercise with religious content or
    protesting.'' Id. at 609. America has a rich history of
    referring to God in its political and civic discourse and
    acknowledging the important role faith and religion have played
    throughout our Nation's history. Thus the Ninth Circuit's
    analysis in the Newdow ruling cannot be supported by any
    reasonable interpretation of the Establishment Clause and is
    inconsistent with the meaning given the Establishment Clause
    since America's founding.
        Both the House and the Senate approved S. 2690, which
    contained extensive findings regarding the numerous ways in
    which the government has recognized the religious heritage of
    America, in order to reaffirm that the Nation's motto and
    pledge as currently written are consistent with the First
    Amendment of the United States Constitution. It is important to
    note that under Pierce v. Underwood, 487 U.S. 552 (1988),
    Congress, by approving S. 2690 which calls for the re-
    codification of section 4 of title 4 of the United States Code,
    could be presumed to have adopted previous interpretations of
    this provision, including the Ninth Circuit Court of Appeals'
    interpretation of section 4 of title 4 of the United States
    Code in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002).
    The Committee wishes to make clear that it is not the intent of
    Congress to adopt any previous judicial interpretations of this
    provision, particularly that given to it by the Ninth Circuit
    in the Newdow ruling.
        Legislative History.--S. 2690, which would reaffirm the
    reference to one Nation under God in the Pledge of Allegiance
    (Pub. L. No. 107-293), was introduced by Sen. Tim Hutchinson on
    June 27, 2002, at which time it passed the Senate by a 99 to 0
    vote. On June 27, 2002, S. 2690 was received in the House and
    referred to the Committee on the Judiciary. On July 18, 2002,
    S. 2690 was referred to the Committee's Subcommittee on the
    Constitution. No hearings were held on S. 2690 and on August
    29, 2002, S. 2690 was discharged from the Subcommittee. On
    September, 10, 2002, the Committee met in open session at which
    point S. 2690 was amended to clarify that section 4 of title
    4's requirement that men, who are not in uniform, ``remove
    their headdress with their right hand and hold it at the left
    shoulder, the hand being over the heart'' prior to reciting the
    pledge, only applies to a ``non-religious'' headdress. S. 2690
    was then ordered reported favorably with amendment, by voice
    vote, a quorum being present. (H. Rept. 107-659). On October 7,
    2002, Judiciary Committee Chairman F. James Sensenbrenner moved
    to suspend the rules and pass S. 2690 as amended and on October
    8, 2002, the motion was agreed to by a 401 to 5 vote, with 4
    members voting ``present''. On October 17, 2002, the Senate
    agreed to the House amended version of S. 2690 by unanimous
    consent. On November 4, 2002, S. 2690 was presented to the
    President and on November 13, 2002, it was signed by the
    President, becoming Pub. L. No. 107-293.

    H.R. 503, Unborn Victims of Violence Act of 2001

        Summary.--Under current Federal law, an individual who
    commits a Federal crime of violence against a pregnant woman
    receives no additional punishment for killing or injuring the
    woman's unborn child during the commission of the crime.
    Therefore, except in those States that recognize unborn
    children as victims of such crimes, injuring or killing an
    unborn child during the commission of a violent crime has no
    legal consequence whatsoever. H.R. 503, the ``Unborn Victims of
    Violence Act of 2001,'' fills this gap in Federal law by
    providing that an individual who injures or kills an unborn
    child during the commission of one of over sixty Federal crimes
    will be guilty of a separate offense. The punishment for that
    separate offense is the same as the punishment provided under
    Federal law for that conduct had the same injury or death
    resulted to the unborn child's mother.
        An offense under H.R. 503 does not require proof that the
    defendant knew or should have known that the victim was
    pregnant, or that the defendant intended to cause the death or
    injury of the unborn child. If, however, the defendant
    committed the predicate offense with the intent to kill the
    unborn child, the punishment for the separate offense shall be
    the same as that provided under Federal law for intentionally
    killing or attempting to kill a human being. By its own terms,
    H.R. 503 does not apply to ``conduct relating to an abortion
    for which the consent of the pregnant woman has been obtained
    or for which such consent is implied by law.'' The bill also
    does not permit prosecution ``of any person for any medical
    treatment of the pregnant woman or her unborn child,'' or ``of
    any woman with respect to her unborn child.''
        Legislative History.--On February 7, 2001, Rep. Lindsey
    Graham introduced H.R. 503, the ``Unborn Victims of Violence
    Act of 2001.'' The Committee's Subcommittee on the Constitution
    held a hearing on H.R. 503 on March 15, 2001. Testimony was
    received from the following witnesses: William Croston III,
    Charlotte, North Carolina; Professor Richard S. Myers,
    Professor of Law, Ave Maria School of Law; Juley Fulcher,
    Director of Public Policy, National Coalition Against Domestic
    Violence; Robert J. Cynkar, Attorney at Law, Cooper, Carvin &
    Rosenthal. On March 21, 2001, the Subcommittee on the
    Constitution met in open session and ordered favorably reported
    the bill, H.R. 503, without amendment, by a voice vote, a
    quorum being present. On March 28, 2001, the Committee met in
    open session and ordered favorably reported the bill, H.R. 503,
    without amendment, by a recorded vote of 15 to 9, a quorum
    being present. (H. Rept. 107-42). On April 26, 2001, the House
    passed H.R. 503 by a vote of 252 to 172 with one member voting
    ``present''. On April 26, 2001, H.R. 503 was received in the
    Senate and on June 8, 2001, it was read a second time and
    placed on the Senate Legislative Calendar. No further action
    was taken on the measure.

                              Oversight Activities

    List of oversight hearings

    Presidential Pardon Power, February 28, 2001 (Serial No. 2)
    State and Local Implementation of Existing Charitable Choice
                Programs, April 24, 2001 (Serial No. 13)
    Constitutional Role of Faith-Based Organizations in
                Competitions for Federal Social Service Funds, June
                7, 2001 (Serial No. 17)
    Constitutional Issues Raised by Recent Campaign Finance
                Legislation Restricting Freedom of Speech, June 12,
                2001 (Serial No. 20)
    HUD's ``Legislative Guidebook'' and Its Potential Impact on
                Property Rights and Small Business, Including
                Minority-Owned Businesses, March 7, 2002 (Serial
                No. 67)
    United States Commission on Civil Rights, April 11, 2002
                (Serial No. 73)
    Civil Rights Division of the United States Department of
                Justice, June 25, 2002 (Serial No. 81)
    Privacy Concerns Raised by the Collection and Use of Genetic
                Information by Employers and Insurers, September
                12, 2002 (Serial No. 100)
    Supreme Court's School Choice Decision and Congress' Authority
                to Enact Choice Programs, September 17, 2002
                (Serial No. 101)
    A Judiciary Diminished is Justice Denied: the Constitution, the
                Senate, and the Vacancy Crisis in the Federal
                Judiciary, October 10, 2002 (Serial No. 108)

    Presidential Pardon Power

        On February 28, 2001, the Subcommittee on the Constitution
    held an oversight hearing on the Presidential Pardon Power.
    Witnesses included: Daniel T. Kobil, Professor of Law, Capital
    University Law School; Allan J. Lichtman, Professsor of
    History, American University; Margaret Colgate Love, Former
    Pardon Attorney, U.S. Department of Justice; Alan Charles Raul,
    Former Associate Counsel to the President. \4\
    ---------------------------------------------------------------------------
        \4\ See Oversight Hearing on the Presidential Pardon Power, 107th
    Cong., Sess. 1 (Feb. 28, 2001).
    ---------------------------------------------------------------------------
        Daniel Kobil testified that the Framers rejected every
    proposal to limit the clemency power and the Supreme Court has
    ``consistently refused to allow inroads into the President's
    authority.'' \5\ Kobil mentioned important exercises of the
    clemency power in our nation's history which served to ``bind
    the country together'' and ``heal wounds'' following the Civil
    War and the Vietnam War. Kobil concluded that the current
    decline in exercise of the clemency power may result in the
    power not being used by future Presidents in ``deserving
    cases.'' \6\
    ---------------------------------------------------------------------------
        \5\ Id. (Testimony of Daniel Kobil).
        \6\ See id.
    ---------------------------------------------------------------------------
        Alan Lichtman testified that use of the pardon power has
    been ``politically charged throughout American history and not
    always exercised with what Alexander Hamilton called
    ``scrupulousness and caution.'' \7\ Lichtman noted the
    controversies surrounding President John Adams' pardon of anti-
    tax rebels, Andrew Johnson's pardon of ex-Confederates and Bush
    and Reagan's pardons of Watergate scandal figures. \8\ Lichtman
    concluded, ``[T]he lesson of history is that appropriate use of
    the pardoning power requires a delicate balance, not just of
    caution, but also of courage, something that has not been
    emphasized in the recent controversy [with Clinton's
    pardons].'' \9\
    ---------------------------------------------------------------------------
        \7\ Id. (Testimony of Alan J. Lichtman).
        \8\ See id.
        \9\ Id.
    ---------------------------------------------------------------------------
        Margaret Colgate Love testified that the Justice
    Department's ``reluctance to recommend cases favorably for
    clemency was, at least in part, responsible for the
    extraordinary breakdown of the pardon process at the end of the
    Clinton administration.'' \10\ Ms. Love noted that she was
    ``grateful'' for the final Clinton pardons, two-thirds of which
    went to ``ordinary people'' who had waited for relief for
    years. \11\ Ms. Love concluded that the controversy surrounding
    the Clinton pardons will offer President Bush and his Attorney
    General the opportunity to review the use and administration of
    the pardon power. \12\
    ---------------------------------------------------------------------------
        \10\ Id. (Testimony of Margaret Colgate Love).
        \11\ See id.
        \12\ See id.
    ---------------------------------------------------------------------------
        Alan Charles Raul testified that during his tenure as an
    associate counsel to President Ronald Reagan, the pardon
    process was ``orderly and deliberate.'' \13\ Mr. Raul noted
    that a President's approach to granting pardons reflects on the
    President's character and his ``respect for the rule of law. *
    * * A president who disrespects the rule of law and views the
    pardon power as essentially a personal prerogative rather than
    a public trust will be in a position to exploit [and] abuse the
    process.'' \14\ He concluded that Americans can best restrain
    the pardon power by electing Presidents of good character. \15\
    ---------------------------------------------------------------------------
        \13\ See id. (Testimony of Alan Charles Raul).
        \14\ Id.
        \15\ See id.
    ---------------------------------------------------------------------------

    Oversight of the United States Commission on Civil Rights

        The House Committee on the Judiciary through its
    Subcommittee on the Constitution has continued its oversight of
    the United States Commission on Civil Rights. On June 22, 2001,
    the Subcommittee Chairman Steve Chabot wrote to Commission
    Chair Mary Frances Berry concerning the June 5, 6, and 9, 2001
    reports in the New York Times that the Commission failed to
    involve all commissioners in the preparation of its draft
    report entitled ``Voting Irregularities in Florida During the
    2000 Presidential Election,'' prematurely leaked the Report to
    the public and failed to provide affected parties with full
    access to the contents of the Report. Chairman Chabot
    questioned the Commission's adherence to its own review and
    public disclosure policies. \16\
    ---------------------------------------------------------------------------
        \16\ See Letter from Chairman Steve Chabot, Subcommittee on the
    Constitution, to Commission Chair Mary Frances Berry (June 22, 2001).
    ---------------------------------------------------------------------------
        On June 27, 2001, the Senate Rules and Administration
    Committee held a hearing concerning the Commission's Report on
    the Florida Election. The Subcommittee issued a letter to the
    Commission on July 10, 2001, seeking to resolve a disagreement
    over the availability and the substance of data used by
    Professor Allan Lichtman in formulating the Report's
    conclusions. The Committee requested production of all
    documents relating to the data and methodology used by
    Professor Lichtman in his analysis.\17\ Commission Staff
    Director Les Jin's responses on July 9, 2001 and July 16, 2001
    were inadequate and unresponsive. The Commission never produced
    Professor Lichtman's data.\18\
    ---------------------------------------------------------------------------
        \17\ See Letter from Chairman Chabot, to Chair Berry (June 27,
    2001).
        \18\ See Letters from Les Jin, to Chairman Chabot and accompanying
    documents (July 9, 2001 and July 16, 2001).
    ---------------------------------------------------------------------------
        On July 20, 2001, the Subcommittee sent a letter to the
    Commission to renew its request for information and documents
    that the Commission failed to provide and to follow-up on Jin's
    responses.\19\ The Commission's July 30, 2001 reply was
    evasive, and the Commission again refused to produce the
    requested documents.\20\ On August 21, 2001, the Subcommittee
    sent a letter to the Commission expressing concern that the
    Commission had apparently deliberately withheld documents
    relating to its contractual relationship with McKinney &
    Associates, an outside public affairs firm the Commission hired
    when it also maintained its own public affairs office with
    three employees.\21\ The Commission responded with an
    incomplete production of McKinney contracts.
    ---------------------------------------------------------------------------
        \19\ See Letter from Chairman Chabot, to Chair Berry (July 20,
    2001).
        \20\ See Letter from Les Jin, to Chairman Chabot and accompanying
    documents (July 30, 2001).
        \21\ See Letter from Chairman Chabot, to Chair Berry (Aug. 21,
    2001).
    ---------------------------------------------------------------------------
        On November 30, 2001, the Subcommittee wrote to Chair Berry
    concerning the Commission's position that Commissioner Victoria
    Wilson, who was appointed to complete the term of the late
    Judge Leon Higginbotham, which expired on November 29, 2001,
    was entitled to maintain her seat and serve a full six-year
    term.\22\ Following that letter, on December 4, 2001, the
    Subcommittee requested and received the position of the U.S.
    Department of Justice which stated that a Commission ``member
    serves only the remainder of the predecessor's term.'' \23\ On
    December 5, 2001, White House Counsel Alberto R. Gonzales
    issued a letter to the Commission confirming that Ms. Wilson's
    term expired on November 29, 2001 and the President's
    appointee, Peter N. Kirsanow, was entitled to assume Wilson's
    seat as a full member of the Commission.\24\
    ---------------------------------------------------------------------------
        \22\ See Letter from Chairman Chabot, to Chair Berry (Nov. 30,
    2001).
        \23\ See Letter from Assistant Attorney General Dan Bryant, to
    Chairman Chabot (Dec. 4, 2001).
        \24\ See Letter from Alberto R. Gonzales, Counsel to the President,
    to Chair Berry (Dec. 5, 2001).
    ---------------------------------------------------------------------------
        Chair Berry disregarded both the Subcommittee's and the
    White House Counsel's letters, and at the December 8, 2001
    Commission meeting, refused to recognize and seat Peter
    Kirsanow as a Commissioner. On December 14, 2001, the
    Subcommittee received an opinion from the Congressional
    Research Service which concluded that the 1994 Commission
    statute did not repeal the uniform staggered Commission term
    requirement in the 1983 legislation and that Mr. Kirsanow was
    entitled to the vacant position on the Commission: ``[I]t is
    consonant with the congressional intent for the [C]ommission to
    maintain the staggered three year appointment cycle by
    calculating a successor's term from the date of expiration of
    her predecessor's term, a practice followed by many other
    similar agencies.'' \25\
    ---------------------------------------------------------------------------
        \25\ Memorandum from Morton Rosenberg, Specialist in American
    Public Law, American Law Division, Congressional Research Service, to
    Chairman Chabot (Dec. 14, 2001).
    ---------------------------------------------------------------------------
        In January 2002, the Subcommittee wrote to Chair Berry
    concerning her unlawful refusal to seat Commissioner Kirsanow
    and commenced an investigation into the unlawful use of
    Commission resources to fund litigation against the United
    States.\26\ On February 27, 2002, the Subcommittee obtained an
    opinion from GAO General Counsel Anthony Gamboa which held that
    ``the Commission does not have statutory authority to use its
    appropriated funds to hire outside counsel'' in the Wilson
    case.\27\ This opinion served as the basis for the
    Subcommittee's February 27, 2002 letter to Solicitor General
    Olson urging him to maintain the government's appeal of a
    ruling permitting the Commission to intervene in U.S. v.
    Wilson.\28\
    ---------------------------------------------------------------------------
        \26\ See Letter from Chairman Chabot, to Commission Chair Berry
    (Jan. 9, 2002).
        \27\ See Letter from GAO General Counsel Anthony H. Gamboa, to
    Chairman Chabot (Feb. 27, 2002).
        \28\ See Letter from Chairman Chabot, to Solicitor General Ted
    Olson (Feb. 27, 2002).
    ---------------------------------------------------------------------------
        Also in February of 2002, the Subcommittee commenced a
    review of the Commission's overall management. On February 14,
    2002, the Subcommittee sent a letter to Berry questioning the
    Commission's compliance with GAO's 1997 recommendations issued
    in a Report entitled, ``U.S. Commission on Civil Rights: Agency
    Lacks Basic Management Controls.'' \29\ In a follow-up letter,
    on March 7, 2002, the Subcommittee probed the Commission's
    relationship with McKinney & Associates.\30\ Staff Director Les
    Jin's responses revealed the Commission's failure to implement
    many of the reforms recommended by GAO five years ago.\31\
    Documents produced showed Commission expenditures of over
    $170,000 on McKinney & Associates, despite the fact that the
    Commission continued to receive bad press and could not explain
    what McKinney does for the Commission.\32\
    ---------------------------------------------------------------------------
        \29\ See Letter from Chairman Chabot, to Chair Berry (Feb. 14,
    2002). See also U.S. Commission on Civil Rights: Agency Lacks Basic
    Management Controls GAO/HEHS-97-125 (July 1997).
        \30\ See Letter from Chairman Chabot, to Chair Berry (Mar. 7,
    2002).
        \31\ See Letters from Commission Staff Director Les Jin, to
    Chairman Chabot (February 22, 2002 and March 13, 2002).
        \32\ See id. and accompanying documents produced to the
    Subcommittee.
    ---------------------------------------------------------------------------
        On April 11, 2002, the Subcommittee on the Constitution
    held an oversight hearing to inquire into Commission
    mismanagement which continues to undermine public confidence in
    the Commission's work. Witnesses included: Abigail Thernstrom,
    Commissioner; Les Jin, Commission Staff Director; Hillary O.
    Shelton, Director, NAACP Washington Bureau; and Thomas Schatz,
    President, Citizens Against Government Waste.\33\
    ---------------------------------------------------------------------------
        \33\ See Oversight Hearing on the US Commission on Civil Rights,
    107th Cong., Sess. 2 (Apr. 11, 2002).
    ---------------------------------------------------------------------------
        Commissioner Thernstrom testified that Commission meetings
    are marked by ``procedural chaos'' and ``[r]ules are changed
    arbitrarily. I'm never sure what will be on the agenda until I
    get there.'' \34\ Thernstrom raised concerns about
    Commissioners' lack of access to the staff and its work:
    ``Direct conversations with anybody outside the Staff Director,
    Les Jin, are explicitly prohibited. Moreover, memos to Mr. Jin
    containing vital questions are regularly unanswered or only
    very partially answered.'' \35\ She noted that reports take
    years to complete and often the information gathered is
    ``obsolete.'' Commissioner Thernstrom emphasized that
    ``secrecy'' and ``fear of dissenting voices'' pervades the
    Commission's report process.\36\ Commissioner Thernstrom
    concluded with this overall assessment: ``The Commission should
    be a source of hard facts on current civil rights issues and a
    place of robust debate. It is neither. It is a national
    embarrassment.'' \37\
    ---------------------------------------------------------------------------
        \34\ Id. (Testimony of Commissioner Abigail Thernstrom).
        \35\ Id.
        \36\ See id.
        \37\ Id.
    ---------------------------------------------------------------------------
        Staff Director Les Jin defended the Commission's work:
    ``The Commission has produced quality work in a timely manner,
    covering a broad range of civil rights topics.'' \38\ Jin noted
    two reports generated by Commission staff--one concerning
    alleged ``minority voter disenfranchisement'' in the 2000
    Florida election and another alleging racial profiling by the
    New York City Police Department. Jin did not respond to
    Commissioner Thernstrom's contention that these reports rested
    on dubious statistical data. Moreover, Jin did not dispute the
    Subcommittee's conclusion that the Commission failed to
    implement fully GAO's 1997 management recommendations. Jin
    reiterated his policy that staff are not permitted to speak
    with or respond to Commissioner's written questions or
    memorandum.\39\
    ---------------------------------------------------------------------------
        \38\ Id. (Testimony of Commission Staff Director Les Jin).
        \39\ See id.
    ---------------------------------------------------------------------------
        Hillary Shelton testified that the ``NAACP appreciates and
    often relies on the Commission'swork.'' \40\ He noted the
    Commission's reports on issues affecting native Hawaiians, age
    discrimination, concerns of native Alaskans, and ethnic tensions in
    American communities. Shelton did not comment on the efficiency of the
    Commission's report process or its overall management.\41\
    ---------------------------------------------------------------------------
        \40\ Id. (Testimony of Hillary O. Shelton).
        \41\ See id.
    ---------------------------------------------------------------------------
        Thomas Schatz testified to the Commission's failure to
    implement GAO's 1997 reforms. He raised concern over the
    relationship between the Commission and McKinney & Associates
    noting, ``[I]t is highly unusual for any Federal agency to hire
    a private firm to handle public relations * * *.'' \42\ He
    recommended that GAO conduct another study on the
    Commission.\43\ Following the hearing, the Subcommittee asked
    GAO to reassess the Commission's overall management and its
    compliance with GAO's 1997 recommendations.\44\
    ---------------------------------------------------------------------------
        \42\ Id. (Testimony of Thomas Schatz).
        \43\ See id.
        \44\ See Letter from Chairman Chabot, to GAO Comptroller David M.
    Walker (Nov. 13, 2002).
    ---------------------------------------------------------------------------
        When the Senate, at the recommendation of Republican Leader
    Trent Lott, appointed Russell Redenbaugh on July 18, 2002,
    Constitution Subcommittee Chairman Chabot issued a press
    release in which he praised the newly balanced Commission and
    criticized the press and leaders of some Arab American and
    civil rights groups for seeking to disrupt the new balance of
    the Commission by the immediate unwarranted calls for the
    removal of Commissioner Peter N. Kirsanow for his comments at a
    July 19, 2002 Commission meeting in Detroit, Michigan.\45\
    ---------------------------------------------------------------------------
        \45\ See Chairman Praises Newly Balanced Civil Rights Commission,
    Press Release, House Committee on the Judiciary (July 23, 2002).
    ---------------------------------------------------------------------------
        In September 2002, the Subcommittee wrote two letters to
    the Commission regarding its refusal to pay Tim Keefer,
    Commissioner Kirsanow's newly appointed Special Assistant, the
    appropriate salary of GS-13, Level 10.\46\ The Commission's
    claim that all other special assistants start at GS-13, Level 1
    was contradicted by documents the Commission produced,
    revealing that one special assistant started at GS-13, Level 9.
    The Subcommittee requested that the Commission reconsider the
    designation of Mr. Keefer in light of his record of achievement
    and superior qualifications.\47\ Les Jin refused to review the
    personnel decision of the Commission human resources office.
    ---------------------------------------------------------------------------
        \46\ See Letters from Chairman Chabot, to Staff Director Jin (Sept.
    10, 2002 and Sept. 20, 2002).
        \47\ See Letter from Chairman Chabot, to Staff Director Jin (Sept.
    20, 2002).
    ---------------------------------------------------------------------------
        In October 2002, the Subcommittee wrote a letter to the
    Commission when it refused to authorize the travel of
    Commissioners to Washington, D.C. for purposes of participating
    in the out-of-town meeting in Jackson, Mississippi.\48\
    Chairman Chabot warned, ``If the Commission continues to
    operate in this manner, I will not hesitate to seek a reduction
    in the Commission's FY-2003 budget.'' \49\
    ---------------------------------------------------------------------------
        \48\ See Letter from Chairman Chabot, to Staff Director Jin (Oct.
    9, 2002).
        \49\ Id.
    ---------------------------------------------------------------------------

    Oversight of the Department of Justice Civil Rights Division

        The House Committee on the Judiciary through the
    Subcommittee on the Constitution continued its oversight of the
    Department of Justice Civil Rights Division under the direction
    of Assistant Attorney General Ralph Boyd. In May 2002, Chairman
    Chabot and oversight staff met with Assistant Attorney General
    Boyd to discuss the Division's enforcement record. In a follow-
    up meeting, oversight staff met with Division deputies to
    discuss the more than 400 school desegregation cases still
    pending, political subdivisions subject to Section 5 of the
    Voting Rights Act, pending Florida voting rights litigation,
    and agreements with cities and municipalities in use of force
    cases.
        On June 25, 2002, the Subcommittee on the Constitution held
    an oversight hearing to review the Division's progress.
    Assistant Attorney General Boyd was the sole witness.\50\ Boyd
    testified that during his tenure the Division has acted
    ``carefully, but aggressively'' in prosecuting civil rights
    violations. He noted that following September 11, the Division
    investigated over 350 incidents of alleged discrimination
    against individuals of Middle Eastern descent, from which
    federal and state authorities initiated 80 prosecutions. Boyd
    testified that the Division has taken the lead in prosecution
    of human trafficking. The Division has also reached landmark
    settlement agreements with 21 communities across the country to
    improve the accessibility of public buildings and venues. Boyd
    also discussed the Division's efforts to conclude two decades
    old desegregation cases--one in the State of Mississippi and
    the other in Yonkers, New York. The Chairman encouraged the
    Assistant Attorney General to continue to lift consent decrees
    in school desegregation cases as school districts satisfy the
    terms of the decrees.\51\
    ---------------------------------------------------------------------------
        \50\ See Oversight Hearing on the Civil Rights Division of the U.S.
    Department of Justice, 107th Cong., Sess. 2 (June 25, 2002).
        \51\ See id. (Testimony of Assistant Attorney General Ralph Boyd).
    ---------------------------------------------------------------------------
        Throughout 2002, the Committee monitored the Division's
    filings, paying close attention to the roughly 380 school
    desegregation cases still pending. On October 30, 2002,
    Committee oversight staff met with Division deputies to review
    the Division's recent activities. The Division has reached
    agreements for unitary status in approximately 20 cases this
    year.

    Judicial vacancy crisis oversight

        On October 10, 2002, the Subcommittee on the Constitution
    held a hearing to explore the causes and effects of the current
    federal judiciary vacancy crisis and the Senate's
    constitutionalrole in confirming judges. Witnesses were: John
    Eastman, Professor, Chapman University School of Law; Todd Gaziano,
    Senior Fellow in Legal Studies, Heritage Foundation; Ralph Neas,
    President, People for the American Way; and Kay Daly, Spokesperson,
    Coalition for a Fair Judiciary.\52\
    ---------------------------------------------------------------------------
        \52\ See Oversight Hearing on a Judiciary Diminished is Justice
    Denied: The Constitution, the Senate and the Vacancy Crisis in the
    Federal Judiciary, 107th Cong., Sess. 2 (Oct. 10, 2002).
    ---------------------------------------------------------------------------
        Professor John Eastman testified to the limited nature of
    the Senate's advise and consent role. He noted that the Framers
    refused to grant the Senate the power of appointment ``because
    they wanted the accountability that came with placing the
    appointment power in a single individual'' and ``they knew the
    tendency of public bodies to feel no personal responsibility
    and to give full play to intrigue and cabal.'' \53\ Professor
    Eastman contended that the ideological litmus test proposed by
    some Senators would threaten the independent judiciary and its
    ability to check congressional power. He suggested that the
    Committee consider legislation that would give the sole
    appointment power to the President.\54\
    ---------------------------------------------------------------------------
        \53\ Id. (Testimony of Professor John Eastman).
        \54\ See id.
    ---------------------------------------------------------------------------
        Todd Gaziano testified to the Senate's ``intentional
    refusal'' to act on many of the President's nominees. He noted
    that the average wait for confirmation of the first 11 court of
    appeals nominees was 500 days. Gaziano raised concerns about
    the judicial emergencies created in courts where the vacancy
    rates have increased substantially. He testified that the large
    vacancy rate on the Sixth Circuit, with only nine out of 16
    seats filled, has resulted in serious allegations by a
    dissenting judge that the Chief Judge improperly influenced the
    outcome of a case by using nonrandom procedures to appoint
    himself to the panel in Grutter v. Bollinger, a case involving
    the use of race in admission to the University of Michigan Law
    School.\55\
    ---------------------------------------------------------------------------
        \55\ See id. (Testimony of Todd Gaziano).
    ---------------------------------------------------------------------------
        Ralph Neas contended that the Senate has made significant
    progress in reducing vacancies. He argued that Eastman and
    Gaziano's charges of delay are ``totally inaccurate'' producing
    his own statistics that purported to show that ``confirmations
    are nearly four times the number confirmed during the entire
    first year of the first Bush administration and more than twice
    the number confirmed during the first year of the Clinton
    administration.'' \56\ He concluded that no Presidential
    nominee should be entitled to a lifetime seat on the Federal
    bench.\57\
    ---------------------------------------------------------------------------
        \56\ Id. (Testimony of Ralph Neas).
        \57\ See id.
    ---------------------------------------------------------------------------
        Kay Daly testified to the efforts of coalition groups to
    encourage Senate confirmation of nominees. She contended that
    the judicial confirmation process has been ``hijacked'' by
    left-of-center interest groups that attack the President's
    nominees for ``anything at all, even including membership in a
    men's only fly-fishing club that they can use to charge a
    nominee with being racist, sexist, bigoted, homophobic * * *.''
    \58\ She noted that the nominees are unable to defend
    themselves because confirmation hearings are delayed for months
    and sometimes years which ``permit[s] the drumbeat of ethics
    criticism to continue in the media unobstructed.'' \59\ Daly
    urged the Senate to take swift action to confirm nominees.\60\
    ---------------------------------------------------------------------------
        \58\ Id. (Testimony of Kay Daly).
        \59\ Id.
        \60\ See id.
    ---------------------------------------------------------------------------
        Chairman Chabot noted for the record that following an
    inquiry from the Committee regarding the case assignment
    irregularities in the Sixth Circuit, Chief Judge Martin has
    instituted more random assignment procedures and agreed to
    conduct an extensive review of the Sixth Circuit's internal
    operating procedures. In response to the Committee's inquiry
    regarding the procedures used in Grutter, Chief Judge Martin
    wrote: ``Operating within a circuit as ours with eight
    vacancies out of sixteen positions, we, of course, have found
    great difficulty in completing enough panels * * *.'' \61\
    ---------------------------------------------------------------------------
        \61\ Letter from Chief Judge Boyce Martin, Sixth Circuit Court of
    Appeals, to Chairman James Sensenbrenner, House Committtee on the
    Judiciary (Aug. 22, 2002).
    ---------------------------------------------------------------------------
        The Subcommittee solicited and received letters from the
    Chief Judges of four other circuit courts and the Chair of the
    Judicial Conference Committee on Judicial Resources discussing
    the challenges created by vacancies in the Federal courts.
    Chief Judge Ginsburg of the D.C. Circuit wrote, ``[I]f the
    court does not have additional judges soon, our ability to
    manage our workload in a timely fashion will be seriously
    compromised.'' \62\ Chief Judge Becker of the Third Circuit
    described the court's struggle to handle pro se cases, which
    compromise 50% of the court's docket: ``In this area, we are
    sorely pressed, for the burden on the judges of the Court is
    crushing and we are stretched beyond the limit.'' \63\ Chief
    Judge J.L. Edmondson of the Eleventh Circuit noted that if
    either or both of the two judges now eligible elect to take
    senior status, the court will be in ``serious trouble.'' \64\
    ---------------------------------------------------------------------------
        \62\ Letter from Chief Judge Ginsburg, D.C. Court of Appeals, to
    Chairman Chabot (Oct. 16, 2002).
        \63\ Letter from Chief Judge Becker, Third Circuit Court of
    Appeals, to Chairman Chabot (Oct. 15, 2002).
        \64\ Letter from Chief Judge J.L. Edmondson, Eleventh Circuit Court
    of Appeals, to Chairman Chabot (Oct. 8, 2002).
    ---------------------------------------------------------------------------

    Genetic privacy oversight hearing

        On September 12, 2002, the Subcommittee on the Constitution
    held an oversight hearing on the concerns raised by the
    collection and use of genetic information by employers and
    insurers. Witnesses included: Tom Miller, Director of Health
    Studies, Cato Institute; Dr. John Rowe, President and CEO,
    Aetna; Joanne Hustead, Senior Counsel, Health Privacy Project,
    AssistantProfessor, Georgetown University; and Dr. Deborah
    Peel, President, the American Psychoanalytic Foundation.\65\
    ---------------------------------------------------------------------------
        \65\ See Oversight Hearing on the Privacy Concerns Raised by the
    Collection and Use of Genetic Information by Employers and Insurers,
    107th Cong., Sess. 2 (Sept. 12, 2002).
    ---------------------------------------------------------------------------
        Tom Miller testified that there is little evidence that
    health insurers use genetic information in medical underwriting
    and evidence of genetic discrimination by employers is limited
    to ``isolated anecdotes.'' \66\ Miller noted the complications
    in crafting legal protection for personally identifiable
    genetic information. He argued that a broad prohibition on any
    disclosure of genetic information ``would prevent good health
    risks from obtaining positive genetic information on their
    behalf and then voluntarily disclosing it to potential health
    insurers.'' \67\ He concluded that market-based, private-sector
    mechanisms for protecting genetic information should be
    considered as alternatives to expanded regulation.\68\
    ---------------------------------------------------------------------------
        \66\ See id. (Testimony of Tom Miller).
        \67\ Id.
        \68\ See id.
    ---------------------------------------------------------------------------
        Dr. John Rowe testified that discrimination based on
    genetic information is highly speculative because the
    technology is new and still developing. Dr. Rowe illustrated
    how an absolute ban on genetic information would impair
    insurers' capacity to provide appropriate service to members:

              For individuals known to have the gene for a familial
            form of colorectal cancer, their best interest, in
            terms of early detection and prevention, is to have
            frequent screenings via colonoscopy, every six months
            instead of every three to five years. We can only
            approve payment for those six-monthly tests if we know
            that the individual has the colorectal cancer gene. If
            we don't have access to that information, the person
            doesn't have access to the treatment.\69\
    ---------------------------------------------------------------------------
        \69\ Id. (Testimony of Dr. John Rowe).

    He concluded by discussing some of the privacy guidelines Aetna
    has suggested for the industry including coverage of genetic
    testing and consultation with physicians to facilitate
    appropriate interpretation of tests.\70\
    ---------------------------------------------------------------------------
        \70\ See id.
    ---------------------------------------------------------------------------
        Joanne Hustead testified that federal law is inadequate in
    protecting genetic information: ``The HIPAA privacy regulation
    does not prevent health plans from collecting genetic
    information or from requiring that people undergo genetic tests
    or provide genetic information.'' \71\ Hustead noted further
    that the HIPAA nondiscrimination provisions protect the genetic
    information of only a very narrow subset of policy-seekers.\72\
    Hustead also raised concern that the Americans with
    Disabilities Act ``permits employers to collect much more
    medical and genetic information than they need to assess
    whether a person can actually perform the essential job
    functions.'' \73\ Hustead urged Congress to pass genetic
    privacy legislation that would ``fill the gaps'' in current
    federal law.\74\
    ---------------------------------------------------------------------------
        \71\ Id. (Testimony of Joanne Hustead).
        \72\ See id.
        \73\ Id.
        \74\ See id.
    ---------------------------------------------------------------------------
        Dr. Deborah Peel testified that as a physician she has seen
    frequent discrimination based on patients' medical and genetic
    conditions. She raised concern that the new amendments to HIPAA
    will not adequately protect genetic information. Dr. Peel
    contended that the amendments will take away a patient's right
    to consent to the release of medical information and grant
    health plans retroactive access to a patient's past health
    records. She urged Congress to review the HIPAA amendments and
    deny these rule changes.\75\
    ---------------------------------------------------------------------------
        \75\ See id. (Testimony of Dr. Deborah Peel).
    ---------------------------------------------------------------------------