[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\
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    \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\
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    \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).
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            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.
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    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.
---------------------------------------------------------------------------
    \39\ H.R. Rep. No. 107-379, pt. 1, at 6.
---------------------------------------------------------------------------
    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\
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    \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.
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    \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
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    \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).
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    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.
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    \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
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    \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.
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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.
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    \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).
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    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
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    \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.
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    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).
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          (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
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    \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.
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          (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
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    \56\ Legal Services Corp. Act, Pub. L. No. 93-355 Sec. 1005(f) and 
(g) (1974).
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    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
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    \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.
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    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
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    \60\ These include:
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          (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.
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    \65\ Inspector General Act of 1978, 5 U.S.C. app. 3 Sec. 8G(a)(2).
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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.
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    \67\ 45 C.F.R. Sec. 1634 (2001).
    \68\ Omnibus Consolidated Rescissions and Appropriations Act, Pub. 
L. No. 104-134, Stat. 1321-50 (1996).
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    (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).
---------------------------------------------------------------------------

                                
