[House Report 108-805]
[From the U.S. Government Publishing Office]



                                     

                                                 Union Calendar No. 490

108th Congress, 2d Session - - - - - - - - - - - - House Report 108-805

                        REPORT ON THE ACTIVITIES

                                 of the

                       COMMITTEE ON THE JUDICIARY

                                 of the

                        HOUSE OF REPRESENTATIVES

                               during the

                      ONE HUNDRED EIGHTH CONGRESS

                              pursuant to

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

                        House of Representatives




January 3, 2005.--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 EIGHTH CONGRESS

                                 ------                                
            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
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
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
                                 ------                                
             Philp 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

                 HOWARD COBLE, North Carolina, Chairman
TOM FEENEY, Florida                  ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia              ADAM B. SCHIFF, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
MARK GREEN, Wisconsin                MAXINE WATERS, California
RIC KELLER, Florida                  MARTIN T. MEEHAN, Massachusetts
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
                                 ------                                

                   Commercial and Administrative Law

                      CHRIS CANNON, Utah, Chairman
HOWARD COBLE, North Carolina         MELVIN L. WATT, North Carolina
JEFF FLAKE, Arizona                  JERROLD NADLER, New York
JOHN R. CARTER, Texas                TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee          WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio                   ANTHONY D. WEINER, New York
TOM FEENEY, Florida
                                 ------                                

            Courts, the Internet, and Intellectual Property

                      LAMAR SMITH, Texas, 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
SPENCER BACHUS, Alabama              MAXINE WATERS, California
MARK GREEN, Wisconsin                MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
MELISSA A. HART, Pennsylvania        ROBERT WEXLER, Florida
MIKE PENCE, Indiana                  TAMMY BALDWIN, Wisconsin
J. RANDY FORBES, Virginia            ANTHONY D. WEINER, New York
JOHN R. CARTER, Texas
                                 ------                                

                Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman
JEFF FLAKE, Arizona                  SHEILA JACKSON LEE, Texas
MARSHA BLACKBURN, Tennessee          LINDA T. SANCHEZ, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           HOWARD L. BERMAN, California
CHRIS CANNON, Utah                   JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania

                            The Constitution

                      STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa                     JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania        ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
                         LETTER OF TRANSMITTAL

                              ----------                              

                          House of Representatives,
                                Committee on the Judiciary,
                                   Washington, DC, January 3, 2005.
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 108th 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....................................    19
    Legislative Activities:
        Antitrust:
            H.R. 1073, To repeal section 801 of the Revenue Act 
              of 1916............................................    20
        Establishment of the Task Force on Antitrust:
            H.R. 1086, the ``Standards Development Organization 
              Advancement Act of 2003''..........................    22
        Oversight hearing activity:
            Antitrust Enforcement Agencies: The Antitrust 
              Division of the Department of Justice and Bureau of 
              competition of the federal Trade Commission........    24
        Liability:
            H.R. 5, To improve medical care by reducing the 
              burden the liability system places on health care..    27
            H.R. 1036, the `` Protection of Lawful Commerce in 
              Arms Act of 2003''.................................    28
            H.R. 1084, To provide liability protection for 
              nonprofit volunteer pilot organizations............    29
            H.R. 1787, To remove liability barriers to donating 
              fire equipment to volunteer fire companies.........    29
            H.R. 3369, the Non-profit Athletic Organization 
              Protection Act''...................................    30
            H.R. 4280, To improve medical care by reducing the 
              burden the liability system places on health care..    30
        Matters held at Full Committee:
            H. Res. 287, Directing the Attorney General to 
              transmit records related to the use of Federal 
              agency resources in tasks relating to Members of 
              the Texas Legislature..............................    31
            H. Res. 499, Requesting the President and directing 
              the Secretary of State to transmit records relating 
              to disclosures regarding Valerie Plame.............    31
            H. Res. 662, Recognizing that Flag Day originated in 
              Ozaukee County, Wisconsin..........................    31
            H. Res. 700, Directing the Attorney General to 
              transmit to the House of Representatives documents 
              in the possession of the Attorney General relating 
              to prisoners, and detainees in Iraq, Afghanistan, 
              and Guatanamo Bay..................................    32
            H.R. 10 and S. 2845, 9/11 Recommendations 
              Implementation Act.................................    32
            H.R. 16, To authorize salary adjustments for Justices 
              and judges of the United States....................    40
            H.R. 534, Human Cloning Prohibition Act of 2003......    40
            H.R. 1115, Class Action Fairness Act of 2003.........    41
            H.R. 1437, To improve the United States Code.........    42
            H.R. 1904, Healthy Forests Restoration Act of 2003...    42
            H.R. 2738, United States-Chile Free Trade Agreement 
              Implementation Act.................................    44
            H.R. 2739, United States-Singapore Free Trade 
              Agreement Implementation Act.......................    54
            H.R. 3036, Department of Justice Appropriations 
              Authorization Act, Fiscal Years 2004 through 2006..    64
            H.R. 3247, To provide consistent enforcement 
              authority to the Bureau of Land Management, the 
              National Park Service, the United States Fish and 
              Wildlife Service, and the Forest Service...........    66
            H.R. 3313, the ``Marriage Protection Act of 2004.''..    67
            H.R. 4319, Title 46 Codification Act of 2004.........    68
            H.R. 4661, Internet Spyware (I-SPY) Prevention Act of 
              2004...............................................    68
            H.R. 5107, Justice for All Act of 2004...............    68
            H.R. 5363, To authorize salary adjustments for 
              Justices and judges of the United States for fiscal 
              year 2005..........................................    69
            H.J. Res. 106, Proposing an Amendment to the 
              Constitution of the United States relating to 
              marriage...........................................    70
            H. Con. Res 414, To recognize the 50th anniversary of 
              the Brown v. Board of Education decision...........    70
            H.J. Res. 63, the ``Compact of Free Association 
              Amendments of 2003.''..............................    70
            S. 1233, National Great Black Americans Commemoration 
              Act of 2003........................................    72
            S. 2363, to revise and extend the Boys and Girls 
              clubs of America...................................    73
        Other Matters of the Committee:
            H.R. 6, Energy legislation...........................    73
            H.R. 1588, National Defense Authorization Act........    75
            H.R. 2115, the Flight 100--Century of Aviation 
              Reauthorization Act................................    76
            H.R. 2731, the ``Occupational Safety and Health Small 
              Employer Access to Justice Act of 2003.............    76
            H.R. 4200, National Defense Authorization Act For 
              Fiscal Year 2005...................................    77
            H.R. 4341, the ``Postal Accountability and 
              Enhancement Act''..................................    78
            H.R. 4818, Omnibus Consolidated Appropriations Act of 
              FY 2005............................................    80
        Oversight Activities:
            List of oversight hearings...........................    80
            Direct Satellite Broadcast Competition in the 
              Multichannel Video Programming Distribution........    81
            Competition in College Athletic Conferences and 
              Antitrust Aspects of the Bowl Championship Series..    83
            Saving the Savings Clause: Congressional Intent, the 
              Trinko Case, and the Role of the Antitrust Laws in 
              Promoting Competition in the Telecom Sector........    85
            Antitrust Law and Competition in the 
              Telecommunications Marketplace.....................    85
            Department of Justice and the Conduct of the ``War 
              Against Terrorism'' and Implementation of the USA 
              PATRIOT Act........................................    88
            Safeguarding Americans from a Legal Culture of Fear: 
              Approaches to Limiting Lawsuit Abuse...............    95
            Compliance with the Enhanced Border Act..............    96
            Consular Identification Cards........................    97
            Implementation of Title III of the USA PATRIOT ACT...    99
            Department of Homeland Security Budget Shortfalls....   100
            Letter to Commissioner of the Social Security 
              Administration.....................................   103
            GAO Report on Totalization...........................   105
            Relationships between FBI Agents and Confidential 
              Informants.........................................   106
            Allegations of Misconduct in the Sixth Circuit.......   108
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...........................................   109
        Jurisdiction of the subcommittee.........................   109
        Legislative Activities:
            Courts:
                H.R. 29, A bill to convert a temporary judgeship 
                  for the district of Nebraska to a permanent 
                  judgeship, and for other purposes..............   110
                H.R. 112, To amend title 28, United States Code, 
                  to provide for an additional place of holding 
                  court in the district of Colorado..............   110
                H.R. 1302, the ``Federal Courts Improvement Act 
                  of 2003''......................................   110
                H.R. 1303, A bill to amend the E-Government Act 
                  of 1972 with respect to rulemaking authority of 
                  the Judicial Conference........................   111
                H.R. 1768, the ``Multidistrict Litigation 
                  Restoration Act of 2003''......................   111
                H.R. 1839, the ``Youth Smoking Prevention and 
                  State Revenue Enforcement Act''................   112
                H.R. 2714, the ``State Justice Institute 
                  Reauthorization Act of 2003''..................   112
                H.R. 2723, the ``Ninth Circuit Court of Appeals 
                  Judgeship and Reorganization Act of 2003''.....   112
                H.R. 2824, the ``Internet Tobacco Sales 
                  Enforcement Act''..............................   113
                H.R. 3486, A bill to create 4 new permanent 
                  judgeships for the eastern district of 
                  California.....................................   113
                H.R. 3799, the ``Constitution Restoration Act of 
                  2004''.........................................   113
                H.R. 3851, A bill to authorize an additional 
                  permanent judgeship for the district of Hawaii.   114
                S. 878, A bill to authorize an additional 
                  permanent judgeships in the district of Idaho, 
                  and for other purposes.........................   114
                H.R. 4247, the ``Ninth Circuit judgeship and 
                  Reorganization Act of 2004''...................   114
                H.R. 4301, A bill to authorize an additional 
                  district judgeship for the district of Nebraska   115
                H.R. 4571, the ``Lawsuit Abuse Reduction Act of 
                  2004''.........................................   115
                H.R. 4646, A bill to amend title 28, United 
                  States Code, to provide for the holding of 
                  federal district court in Plattsburgh, New 
                  York, and for other purposes...................   115
                H.R. 5273, A bill to convert certain temporary 
                  judgeships to permanent judgeships, to create 
                  an additional judgeship for the district of 
                  Nebraska and for the eastern district of 
                  California, and for other purposes.............   116
                H.R. 5274, A bill to create an additional 
                  judgeship for the eastern district of 
                  California, and for other purposes.............   116
                S. 1720, A bill to provide for Federal Court 
                  proceedings in Plano, Texas....................   116
                S. 2742, A bill to extend certain authority to 
                  the Supreme Court Police, modify the venue of 
                  prosecutions relating to Supreme Court building 
                  and grounds, and authorize the acceptance of 
                  gifts to the United States Supreme Court.......   117
            Intellectual Property:
                H.R. 1417, the ``Copyright Royalty and 
                  Distribution Reform Act of 2004''..............   117
                H.R. 2344, the ``Intellectual Property Protection 
                  Restoration Act of 2003''......................   118
                H.R. 2517, the ``Piracy Deterrence and Education 
                  Act of 2003''..................................   118
                H.R. 2752, the ``Author, Consumer, and Computer 
                  Owner Protection and Security (ACCOPS) Act of 
                  2003''.........................................   119
                H.R. 3261, the ``Database and Collections of 
                  Information Misappropriation Act''.............   119
                H.R. 3569, the ``National Film Preservation Act 
                  of 2003''......................................   120
                H.R. 3632, the ``Anti-counterfeiting Amendments 
                  Act of 2004''..................................   120
                H.R. 3754, the ``Fraudulent Online Identity 
                  Sanctions Act''................................   120
                H.R. 4077, the ``Piracy Deterrence and Education 
                  Act of 2004''..................................   121
                H.R. 4518, the Satellite Home Viewer Extension 
                  and Reauthorization Act of 2004''..............   121
                H.R. 4586, the ``Family Movie Act''..............   122
                H.R. 5136, the ``Preservation of Orphan Works 
                  Act''..........................................   122
                S. 1932, the ``Artists'' Rights and Theft 
                  Prevention Act of 2004''.......................   123
            Patents and Trademarks:
                H.R. 1561, the ``United States Patent and 
                  Trademark Fee Modernization Act of 2003''......   123
                H.R. 2391, the ``Cooperative Research and 
                  Technology Enhancement (CREATE) Act of 2003''..   124
        Oversight Activities:
            Summary of the committee's oversight plan and the 
              Subcommittee's response thereto....................   124
            The Federal Judicial System..........................   124
            The U.S. copyright system............................   125
            The U.S. patent and trademark systems................   126
            List of oversight hearings...........................   127
            Peer-to-peer Piracy on University Campuses...........   127
            Copyright Piracy Prevention and the Broadcast Flag...   127
            International Copyright Piracy: Links to Organized 
              Crime and Terrorism................................   128
            The Federal Judiciary: Is There a Need for Additional 
              Federal Judges?....................................   128
            Patent Quality Improvement...........................   128
            Reauthorization of the Satellite home viewer 
              Improvement Act....................................   129
            Section 115 of the Copyright Act: In Need of an 
              Update?............................................   129
            Committee Print to Amend the Federal Trademark 
              Dilution Act.......................................   129
            Derivative Rights, Moral Rights, and movie Filtering 
              Technology.........................................   130
            Operation of the U.S. Copyright Office...............   130
            Patent Quality Improvement: Post-Grant Opposition....   130
            Internet Streaming of Radio Broadcasts: Balancing the 
              Interests of Sound Recording Copyright Owners With 
              Those of Broadcasters..............................   131
            Peer-to-Peer (P2P) Piracy on University Campuses: An 
              Update.............................................   131
Summary of activities of the subcommittees of the Committee on 
  the Judiciary:
    Subcommittee on the Constitution:
        Tabulation and disposition of bills referred to the 
          subcommittee...........................................   133
        Jurisdiction of the subcommittee.........................   133
        Legislative Activities:
            H. Res. 132, Newdow v. United States Congress........   133
            H. Res. 568, Appropriate use of Foreign Judgements in 
              American Court Decisions...........................   134
            H. Res. 676, Recognizing and honoring the 40th 
              Anniversary of the Civil Rights Act of 1964........   134
            H. Res. 853, Recognizing the Boy Scouts of America 
              for the public service the organization performs 
              for neighborhoods and communities across the United 
              States.............................................   135
            H.R. 760, the ``Partial Birth Abortion Ban Act of 
              2003''.............................................   135
            H.R. 1755, the ``Child Custody Protection Act''......   136
            H.R. 1775, To designate the oak tree as the national 
              tree of the United States..........................   136
            H.R. 1997, the ``Unborn Victims of Violence Act of 
              2004''.............................................   137
            H.R. 2028, the ``Pledge Protection Act of 2004''.....   137
            H.R. 2844, the ``Continuity in Representation Act of 
              2004''.............................................   138
            H.R. 3095, the ``Community Recognition Act of 2004''.   138
            H.J. Res. 4, Proposing an amendment to the 
              constitution of the United States authorizing 
              Congress to prohibit the physical desecration of 
              the flag of the United States......................   139
            H.J. Res. 22, the ``Balanced Budget Amendment''......   140
            H.J. Res. 48, the ``Victims'' Rights Amendment''.....   140
            H.J. Res. 56, the ``Federal Marriage Amendment''.....   141
            H.J. Res. 83, the ``Continuity in Representation 
              Amendment''........................................   141
        Oversight Activities:
            Summary of Oversight Plan............................   141
            List of oversight hearings...........................   142
            Oversight of the United States Commission on Civil 
              Rights.............................................   142
            Reauthorization of the Civil Rights Division of the 
              United States Department of Justice................   143
            Anti-Terrorism Investigations and the Fourth 
              Amendment After September 11: Where and When Can 
              the Government Go to Prevent Terrorist Attacks?....   143
            Potential Congressional Response to the Supreme 
              Court's Decision in State Farm Mutual Automobile 
              Insurance Co. v. Campbell: Checking and Balancing 
              Punitive Damages...................................   144
            GAO's Report on the Implementation of Executive Order 
              12630 and the State of Federal Agency Protections 
              of Private Property Rights.........................   144
            Civil Rights Division of the U.S. Department of 
              Justice............................................   145
            The Defense of Marriage Act..........................   145
            Legal Threats to Traditional Marriage: Implications 
              for Public Policy..................................   146
            Limiting Federal Court Jurisdiction to Protect 
              Marriage for the States............................   147
            The 9/11 Report and Implications for Privacy and 
              Civil Liberties....................................   147
            Due Process and the NCAA.............................   148
            Status of the Implementation of the Pigford v. 
              Glickman Settlement................................   148
            Presidential Succession Act..........................   149
            ``Notice'' Provision in the Pigford v. Glickman 
              Consent Decree.....................................   150

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...........................................   151
        Jurisdiction of the subcommittee.........................   151
        Legislative Activities:
            H.R. 1161, the ``Child Obscenity and Pornography 
              Prevention Act''...................................   151
            H.R. 1104, the ``Child Abduction Prevention Act''....   153
            S. 151, the ``PROTECT Act''..........................   153
            H.R. 21, the ``Unlawful Internet Gambling Funding 
              Prohibition Act''..................................   155
            H.R. 1223, the ``Internet Gambling Licensing and 
              Regulation Commission Act''........................   156
            H.R. 1707, the ``Prison Rape Reduction Act of 2003...   156
            H.R. 919, the ``Hometown Heroes Survivors Benefits 
              Act of 2003''......................................   157
            H.R. 2214 the ``Reduction in Distribution of Spam Act 
              of 2003''..........................................   158
            H.R. 3214, the ``Advancing Justice Through DNA 
              Technology Act of 2003''...........................   159
            H.R. 3266, the ``Faster and Smarter Funding for First 
              Responders Act''...................................   159
            H.R. 3158, the ``Prepare America to Respond 
              Effectively Act of 2003''..........................   161
            H.R. 2512, the ``First Responders Funding Reform Act 
              of 2003''..........................................   161
            H.R. 3866, the ``Anabolic Steroid Control Act of 
              2004''.............................................   162
            H.R. 1731, the ``Identity Theft Penalty Enhancement 
              Act''..............................................   163
            H.R. 3693, the ``Identity Theft Investigation and 
              Prosecution Act of 2003''..........................   164
            S. 1743, the ``Private Security Employment 
              Authorization Act of 2003''........................   164
            S. 1301, the ``Video Voyeurism Prevention Act of 
              2004''.............................................   164
            H.R. 1678, the ``Anti-Hoax Terrorism Act of 2004''...   165
            H.R. 2934, the ``Terrorist Penalties Enhancement Act 
              of 2004''..........................................   165
            H.R. 3179, the ``Anti-Terrorism Intelligence Tools 
              Improvement Act of 2003''..........................   166
            H.R. 218, the ``Law Enforcement Officers Safety Act 
              of 2004''..........................................   167
            S. 1194, the ``Mentally Ill Offender Treatment and 
              Crime Reduction Act of 2004''......................   167
            H.R. 4547, the ``Defending America's Most Vulnerable: 
              Safe Access to Drug treatment and Child Protection 
              Act of 2004''......................................   168
        Oversight Activities:
            List of oversight hearings...........................   168
            Law Enforcement Issues Generally.....................   169
            Implementation of the USA PATRIOT Act................   170
            Metropolitan Detention Center........................   172
            Detainees at Guantanamo Bay..........................   173
            Review of National Criminal History Improvement 
              Program............................................   174
            DoJ and Falun Gong...................................   174
            COPS Program.........................................   175
            ``Interoperability'' Among First Responders..........   175
            Misleading Testimony Before the Subcommittee/Judge 
              Rosenbaum..........................................   177
            FBI Employee Turnover................................   177
            Terrorist Explosive Device Analytical Center.........   177
            FBI's Misidentification of Suspected Terrorist.......   178
            Child Protection.....................................   178
            Identification and Employment Authorization..........   179
            Supreme Court in Department of Interior v. Klamath...   179
            ATF Facilities.......................................   179
            Federal Sentencing Guidelines/Blakely v. Washington..   180
            U.S. Marshals Service................................   181
            DEA Auditor and Laptop...............................   181
            Information Sharing with State and Local Law 
              Enforcement........................................   182
            National Security Entry-Exit Registration System.....   182
            9/11 Commission Report, Recommendations, and 
              Legislation........................................   182
            Violence Against Women...............................   183
            Federal Air Marshals Service.........................   183
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...........................................   185
        Jurisdiction of the subcommittee.........................   186
        Legislative Activities:
            Immigration:
                H.R. 2152, Extending the Special Immigrant 
                  Religious Worker Program.......................   186
                Naturalization Through Service in the Armed 
                  Forces.........................................   186
                H.R. 2620, the trafficking Victims Protection 
                  Reauthorization Act of 2003''..................   188
                S. 1685, Extending and Expanding the Basic Pilot 
                  Program for Employment Eligibility Verification   189
                H.R. 4417, Modifying Certain Deadlines Pertaining 
                  to Machine-Readable, Tamper-Resistant Entry and 
                  Exit Documents.................................   190
                H.R. 4011, the ``North Korean Human Rights Act of 
                  2004''.........................................   191
                H.R. 4306, Amending the Immigration and 
                  Nationality Act to Improve the Process for 
                  Verifying an Individual's Eligibility for 
                  Employment.....................................   191
                S. 2302, Improving Access to Physicians in 
                  Medically Underserved Areas....................   192
                L-1 Visa and H-1B Visa Reform Act................   193
                H.R. 2655, Amending the Irish Peace Process 
                  Cultural and Training Program Act of 1998......   197
            Legislation Passed By the Judicairy Committee:
                H.R. 775, the ``Security and Fairness Enhancement 
                  for America Act of 2003''......................   198
            Federal Charters.....................................   199
            Private Bills........................................   199
        Oversight Activities:
            List of oversight hearings...........................   200
            Public Safety and Immigration Consequences of local 
              Immigration ``Sanctuary'' Policies.................   200
            Nonimmigrant Student Tracking: Implement and Proposed 
              Modifications......................................   200
            John Allen Muhammad, Passport Fraud, and the Western 
              Hemisphere.........................................   205
            Lateral Repatriation and the Release of Non-Mexican 
              Nationals Along the Southwest Border...............   208
            Alien Gang Activity..................................   209
            Immigration Backlog..................................   209
            Alien Sexual Predators...............................   211
            US VISIT Entry Exit System...........................   213
            Alien Smuggling......................................   214
            Diversity Visas......................................   216
            Citizenship..........................................   216
            Redesign of the Naturalization Exam..................   217
            Adoption.............................................   218
            Application Fraud....................................   218
            Consular Malfeasance.................................   218
            Visa Security Issues.................................   218
            Legal Interpretations................................   219
            Southern Border Security.............................   220
            Gang Violence........................................   221
            Illegal Hiring of undocumented workers...............   221
            Refugees.............................................   221
            Asylum...............................................   222
            Funding Immigration..................................   222
            Pre-clearance for Aviation Security..................   223
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...........................................   225
        Jurisdiction of the subcommittee.........................   225
        Legislative activities:
            Privacy:
                H.R. 338, the ``Defense of Privacy Act''.........   225
                H.R. 361, the ``Sports Agent Responsibility and 
                  Trust Act''....................................   226
            Bankruptcy:
                H.R. 975, the ``Bankruptcy Abuse Prevention and 
                  Consumer Protection Act of 2003''..............   227
                S. 1920, the ``Bankruptcy Abuse Prevention and 
                  Consumer Protection Act of 2004''..............   229
                H.R. 1375, the ``Financial Services Regulatory 
                  Relief Act of 2003''...........................   229
                H.R. 1428, the ``Bankruptcy Judgeship Act of 
                  2003''.........................................   230
                H.R. 1529, the ``Involuntary Bankruptcy 
                  Improvement Act of 2003''......................   230
                H.R. 2645, the ``Family Farmer Bankruptcy Relief 
                  Act of 2003''..................................   231
            State Taxation Affecting Interstate Commerce:
                H.R. 49, the ``Internet Tax Nondiscrimination 
                  Act''..........................................   233
                H.R. 3220, the ``Business Activity Tax 
                  Simplification Act of 2003''...................   235
            Tort Reform:
                H.R. 339, the ``Personal Responsibility in Food 
                  Consumption Act of 2004'' Administrative Law...   235
                H.R. 4917, the ``Federal Regulatory Improvement 
                  Act of 2004''..................................   236
        Oversight activities:
            List of oversight hearings...........................   237
            Privacy in the Hands of the Government: The Privacy 
              Officer for the Department of Homeland Security....   238
            Reauthorization of the Administrative Conference of 
              the United States..................................   241
            Administration of Large Business Bankruptcy 
              Reorganizations....................................   242
            Privacy and Civil Liberties in the Hands of the 
              Government Post-September 11, 2001: Recommendations 
              of the 9/11 Commission and the U.S. Department of 
              Defense Technology and Privacy Advisory Committee..   243
            Regulatory Aspects of Voice Over the Internet 
              Protocol...........................................   246
            Streamlined Sales Tax Agreement: States' Efforts to 
              Facilitate Sales Tax Collection from Remote Vendors   259
            Reauthorization of the United States Department of 
              Justice Executive Office for United States 
              Attorneys, Office of the Solicitor General, 
              Executive Office for United States Trustees, Civil 
              Division, Environment and Natural Resources 
              Division...........................................   260
            Legal Services Corporation: Inquiry into the 
              Activities of the California Rural Legal Assistance 
              Program and Testimony Relating to the Merits of 
              Client Co-Pay......................................   263


                                                 Union Calendar No. 490
108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-805

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



 
       REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY

                                _______
                                

January 3, 2005.--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 108th 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...................................................   733
    House joint resolutions.......................................    67
    House concurrent resolutions..................................    27
    House resolutions.............................................    48
                                                                  ______
                                                                     875
                        =================================================================
                        ________________________________________________
    Senate bills..................................................    42
    Senate joint resolutions......................................     1
    Senate concurrent resolutions.................................     4
                                                                  ______
                                                                      47
                        =================================================================
                        ________________________________________________
      Subtotal....................................................   922
                        =================================================================
                        ________________________________________________
Private Legislation:
    House bills (claims)..........................................    12
    House bills (copyrights)......................................     0
    House bills (immigration).....................................    73
    House resolutions (claims)....................................     1
                                                                  ______
                                                                      86
                        =================================================================
                        ________________________________________________
    Senate bills (claims).........................................     0
    Senate bills (immigration)....................................     7
                                                                  ______
                                                                       7
                        =================================================================
                        ________________________________________________
      Subtotal....................................................    93
                        =================================================================
                        ________________________________________________
      Total.......................................................  1015

              ACTION ON LEGISLATION NOT REFERRED TO COMMITTEE

Held at desk for House action:
    Senate bills..................................................    10
                                                                  ______
                                                                      10
Conference appointments:
    House bills...................................................     6
    Senate bills..................................................     0
                                                                  ______
                                                                       6
                        =================================================================
                        ________________________________________________
      Total.......................................................    16

                               FINAL ACTION

House concurrent resolutions approved (public)....................     1
House resolutions approved (public)...............................    11
Public legislation vetoed by the President........................     0
Public Laws.......................................................    59
Private Laws......................................................     4
                                                                        

                            Printed Hearings

                          Serial No. and Title

                               __________
    1. Balanced Budget Amendment. Subcommittee on the Constitution. 
March 6, 2003. (H.J. Res. 22).
    2. Peer-to-Peer Piracy on University Campuses. Subcommittee on 
Courts, the Internet, and Intellectual Property. February 26, 2003.
    3. Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) 
Act of 2003. Committee on the Judiciary. March 4, 2003. (H.R. 5).
    4. New York City's ``Sanctuary'' Policy and the Effect of Such 
Policies on Public Safety, Law Enforcement, and Immigration. 
Subcommittee on Immigration, Border Security, and Claims. February 27, 
2003.
    5. Piracy Prevention and the Broadcast Flag. Subcommittee on 
Courts, the Internet, and Intellectual Property. March 6, 2003.
    6. Standards Development Organization Advancement Act of 2003. Task 
Force on Antitrust. April 9, 2003. (H.R. 1086).
    7. Copyright Royalty and Distribution Reform Act of 2003. 
Subcommittee on Courts, the Internet, and Intellectual Property. April 
1, 2003. (H.R. 1417).
    8. Nonimmigrant Student Tracking: Implementation and Proposed 
Modifications. Subcommittee on Immigration, Border Security, and 
Claims. April 2, 2003.
    9. International Copyright Piracy: A Growing Problem with Links to 
Organized Crime and Terrorism. Subcommittee on Courts, the Internet, 
and Intellectual Property. March 13, 2003.
    10. Child Abduction Prevention Act and the Child Obscenity and 
Pornography Prevention Act of 2003. Subcommittee on Crime, Terrorism, 
and Homeland Security. March 11, 2003. (H.R. 1104 and H.R. 1161).
    11. Department of Homeland Security Transition: Bureau of 
Immigration and Customs Enforcement. Subcommittee on Immigration, 
Border Security, and Claims. April 10, 2003.
    12. United States Patent and Trademark Fee Modernization Act of 
2003. Subcommittee on Courts, the Internet, and Intellectual Property. 
April 3, 2003. (H.R. 1561).
    13. Internet Tax Nondiscrimination Act. Subcommittee on Commercial 
and Administrative Law. April 1, 2003. (H.R. 49).
    14. Partial-Birth Abortion Ban Act of 2003. Subcommittee on the 
Constitution. March 25, 2003. (H.R. 760).
    15. House Military Naturalization Bills. Subcommittee on 
Immigration, Border Security, and Claims. May 6, 2003. (H.R. 1685, H.R. 
1714, H.R. 1799, H.R. 1275, H.R. 1814, and H.R. 1850).
    16. Protection of Lawful Commerce in Arms Act. Subcommittee on 
Commercial and Administrative Law. April 2, 2003. (H.R. 1036).
    17. Sports Agent Responsibility and Trust Act. Subcommittee on 
Commercial and Administrative Law. May 15, 2003. (H.R. 361).
    18. John Allen Muhammad, Document Fraud, and the Western Hemisphere 
Passport Exception. Subcommittee on Immigration, Border Security, and 
Claims. May 13, 2003.
    19. Youth Smoking Prevention and State Revenue Enforcement Act. 
Subcommittee on Courts, the Internet, and Intellectual Property. May 1, 
2003. (H.R. 1839).
    20. Flag Protection Amendment. Subcommittee on the Constitution. 
May 7, 2003. (H.J. Res. 4).
    21. War on Terrorism: Immigration Enforcement Since September 11, 
2001. Subcommittee on Immigration, Border Security and Claims. May 8, 
2003.
    22. Direct Broadcast Satellite Service in the Multichannel Video 
Distribution Market. Committee on the Judiciary. May 8, 2003.
    23. Class Action Fairness Act of 2003. Committee on the Judiciary. 
May 15, 2003. (H.R. 1115).
    24. Bankruptcy Abuse Prevention and Consumer Protection Act of 
2003, and the Need for Bankruptcy Reform. Subcommittee on Commercial 
and Administrative Law. March 4, 2003. (H.R. 975).
    25. Unlawful Internet Gambling Funding Prohibition Act and the 
Internet Gambling Licensing and Regulation Commission Act. Subcommittee 
on Crime, Terrorism, and Homeland Security. April 29, 2003. (H.R. 21 
and H.R. 1223).
    26. Reauthorization of the Civil Rights Division of the United 
States Department of Justice. Subcommittee on the Constitution. May 15, 
2003.
    27. Bankruptcy Judgeship Act of 2003. Subcommittee on Commercial 
and Administrative Law. May 22, 2003. (H.R. 1428).
    28. 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. April 8, 2003.
    29. Deadly Consequences on Illegal Alien Smuggling. Subcommittee on 
Immigration, Border Security, and Claims. June 24, 2003.
    30. Federal Judiciary: Is There a Need for Additional Federal 
Judges? Subcommittee on Courts, the Internet, and Intellectual 
Property. June 24, 2003.
    31. Consular Identification Cards. Subcommittee on Immigration, 
Border Security, and Claims. June 19, 26, 2003.
    32. Intellectual Property Protection Restoration Act of 2003. 
Subcommittee on Courts, the Internet, and Intellectual Property. June 
17, 2003. (H.R. 2344).
    33. Cooperative Research and Technology Enhancement (CREATE) Act of 
2003. Subcommittee on Courts, the Internet, and Intellectual Property. 
June, 10 2003. (H.R. 2391).
    34. Immigration Relief Under the Convention Against Torture for 
Serious Criminals and Human Rights Violators. Subcommittee on 
Immigration, Border Security, and Claims. July 11, 2003.
    35. Anti-Terrorism Investigations and the Fourth Amendment After 
September 11, 2001. Subcommittee on the Constitution. May 20, 2003.
    36. Prison Rape Reduction Act of 2003. Subcommittee on Crime, 
Terrorism, and Homeland Security. April 29, 2003. (H.R. 1707).
    37. Piracy Deterrence and Education Act of 2003. Subcommittee on 
Courts, the Internet, and Intellectual Property. July 17, 2003. (H.R. 
2517).
    38. Patent Quality Improvement. Subcommittee on Courts, the 
Internet, and Intellectual Property. July 24, 2003.
    39. Unborn Victims of Violence Act of 2003 or Laci and Conner's 
Law. Subcommittee on the Constitution. July 8, 2003. (H.R. 1997).
    40. Personal Responsibility in Food Consumption Act. Subcommittee 
on Commercial and Administrative Law. June 19, 2003. (H.R. 339).
    41. Hometown Heroes Survivors Benefits Act. Subcommittee on Crime, 
Terrorism, and Homeland Security. June 26, 2003. (H.R. 919).
    42. Reduction in Distribution of SPAM Act of 2003. Subcommittee on 
Crime, Terrorism, and Homeland Security. July 8, 2003. (H.R. 2214).
    43. Reauthorization of the United States Department of Justice: 
Criminal Law Enforcement. Subcommittee on Crime, Terrorism, and 
Homeland Security. May 6, 14, 2003.
    44. Anti-Hoax Terrorism Act of 2003. Subcommittee on Crime, 
Terrorism, and Homeland Security. July 10, 2003. (H.R. 1678).
    45. Defense of Privacy Act and Privacy in the Hands of the 
Government. Subcommittee on Commercial and Administrative Law jointly 
with the Subcommittee on the Constitution. July 22, 2003. (H.R. 338).
    46. Advancing Justice Through Forensic DNA Technology. Subcommittee 
on Crime, Terrorism, and Homeland Security. July 17, 2003.
    47. Should There be a Social Security Totalization Agreement with 
Mexico? Subcommittee on Immigration, Border Security, and Claims. 
September 11, 2003.
    48. Potential Congressional Responses to the Supreme Court's 
Decision in State Farm Mutual Automobile Ins. Co. v. Campbell: Checking 
and Balancing Punitive Damages. Subcommittee on the Constitution. 
September 23, 2003.
    49. Crime Victims Constitutional Amendment. Subcommittee on the 
Constitution. September 30, 2003. (H.J. Res. 48).
    50. Internet Domain Name Fraud--The U.S. Governments Role in 
Ensuring Public Access to Accurate Whois Data. Subcommittee on Courts, 
the Internet, and Intellectual Property. September 4, 2003.
    51. Database and Collections of Information Misappropriations. 
Subcommittee on Courts, the Internet, and Intellectual Property of the 
Committee on the Judiciary jointly with the Subcommittee on Commerce, 
Trade, and Consumer Protection of the Committee on Energy and Commerce. 
September 23, 2003. (Committee on Energy and Commerce Serial No. 108-
46).
    52. Visa Overstays: A Growing Problem for Law Enforcement. 
Subcommittee on Immigration, Border Security, and Claims. October 16, 
2003.
    53. GAO's Recent Report on the Implementation of Exectutive Order 
12630 and the State of Federal Agency Protections of Private Property 
Rights. Subcommittee on the Constitution. October 16, 2003.
    54. Ninth Circuit Court of Appeals Judgeship and Reorganization Act 
of 2003. Subcommittee on Courts, the Internet, and Intellectual 
Property. October 21, 2003. (H.R. 2723).
    55. Antitrust Enforcement Agencies: The Antitrust Division of the 
Department of Justice and the Bureau of Competition of the Federal 
Trade Commission. Task Force on Antitrust. July 24, 2003.
    56. Clear Law Enforcement for Criminal Alien Removal Act of 2003 
(CLEAR ACT). Subcommittee on Immigration, Border Security and Claims. 
October 1, 2003. (H.R. 2671).
    57. Streamlined Sales and Use Tax Agreement: States' Efforts to 
Facilitate Sales Tax Collection from Remote Vendors. Subcommittee on 
Commercial and Administrative Law. October 1, 2003.
    58. Competition in College Athletic Conferences and Antitrust 
Aspects of the Bowl Championship Series. Committee on the Judiciary. 
September 4, 2003.
    59. United States Department of Justice. Committee on the 
Judiciary. June 5, 2003.
    60. Prospects for American Workers: Immigration's Impacts. 
Subcommittee on Immigration, Border Security, and Claims. October 30, 
2003.
    61. Anti-Counterfeiting Amendments of 2003. Subcommittee on Courts, 
the Internet, and Intellectual Property. February 12, 2004. (H.R. 
3632).
    62. Saving the Savings Clause: Congressional Intent, the Trinko 
Case, and the Role of Antitrust Laws in Promoting Competition in the 
Telecom Sector. Committee on the Judiciary. November 19, 2003.
    63. Fraudulent Online Identity Sanctions Act. Subcommittee on 
Courts, the Internet, and Intellectual Property. February 4, 2004.
    64. Terrorist Threat Integration Center (TTIC) and Its Relationship 
with the Departments of Justice and Homeland Security. Committee on the 
Judiciary jointly with the Select Committee on Homeland Security, July 
22, 2003.
    65. Homeland Security: The Balance Between Crisis and Consequence 
Management through Training and Assistance. Subcommittee on Crime, 
Terrorism, and Homeland Security. November 20, 2003. (H.R. 2512, H.R. 
3266, H.R. 3158).
    66. Civil Rights Division of the U.S. Department of Justice. 
Subcommittee on the Constitution. March 2, 2004.
    67. Appropriate Role of Foreign Judgements in the Interpretation of 
American Law. Subcommittee on the Constitution. March 25, 2004. (H. 
Res. 568).
    68. Funding for Immigration in the President's 2005 Budget. 
Subcommittee on Immigration, Border Security, and Claims. February 25, 
and March 11, 2004.
    69. Reauthorization of the Satellite Home Viewer Improvement Act. 
Subcommittee on the Courts, the Internet, and Intellectual Property. 
February 24, 2004.
    70. Defense of Marriage Act. Subcommittee on the Constitution. 
March 30, 2004.
    71. Anabolic Steroid Control Act of 2004. Subcommittee on Crime, 
Terrorism, and Homeland Security. March 16, 2004. (H.R. 3866).
    72. Committee Print to Amend the Federal Trademark Dilution Act. 
Subcommittee on Courts, the Internet, and Intellectual Property. April 
22, 2004.
    73. Alien Removals Under Operation Predator. Subcommittee on 
Immigration, Border Security, and Claims. March 4, 2004.
    74. Identity Theft Penalty Enhancement Act, and the Identity Theft 
Investigation and Prosecution Act of 2003. Subcommittee on Crime, 
Terrorism, and Homeland Security. March 23, 2004. (H.R. 1731, H.R. 
3693).
    75. Section 115 of the Compliance Act: In Need of an Update? 
Subcommittee on Courts, the Internet, and Intellectual Property. March 
11, 2004.
    76. Legal Threats to Traditional Marriage: Implications for Public 
Policy. Subcommittee on the Constitution. April 22, 2004.
    77. U.S.-VISIT--A Down Payment on Homeland Security. Subcommittee 
on Immigration, Border Security, and Claims. March 18, 2004.
    78. How Would Millions of Guest Workers Impact Working Americans 
and Americans Seeking Employment? Subcommittee on Immigration, Border 
Security, and Claims. March 24, 2004.
    79. 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. March 9, 2004.
    80. Operations of the U.S. Copyright Office. Subcommittee on 
Courts, the Internet, and Intellectual Property. June 3, 2004.
    81. To Prescribe the Oath of Reunification and Allegiance for 
Purposes of the Immigration and Nationality Act. Subcommittee on 
Immigration, Border Security, and Claims. April 1, 2004. (H.R. 3191).
    82. Diversity Visa Program and Its Susceptibility to Fraud and 
Abuse. Subcommittee on Immigration, Border Security, and Claims. April 
29, 2004.
    83. Law Enforcement Efforts Within the Department of Homeland 
Security. Subcommittee on Crime, Terrorism, and Homeland Security. 
February 3, 2004.
    84. Business Activity Tax Simplification Act of 2003. Subcommittee 
on Commercial and Administrative Law. May 13, 2004. (H.R. 3220).
    85. Privacy in the Hands of the Government: The Privacy Officer for 
the Department of Homeland Security. Subcommittee on Commercial and 
Administrative Law. February 10, 2004.
    86. Progress in Consolidating Terrorist Watchlists--The Terrorist 
Screening Center (TSC). Subcommittee on Crime, Terrorism, and Homeland 
Security of the Committee on the Judiciary jointly with the 
Subcommittee on Intelligence and Counterterrorism of the Select 
Committee on Homeland Security. March 25, 2004.
    87. Terrorist Penalties Enhancement Act of 2003. Subcommittee on 
Crime, Terrorism, and Homeland Security. April 21, 2004. (H.R. 2934).
    88. Pushing the Border Out on Alien Smuggling: New Tools and 
Intelligence Initiatives. Subcommittee on Immigration, Border Security, 
and Claims. May 18, 2004.
    89. Private Security Officer Employment Authorization Act of 2003. 
Subcommittee on Crime, Terrorism, and Homeland Security. March 30, 
2004. (S. 1743).
    90. Federal Marriage Amendment (The Musgrave Amendment). 
Subcommittee on the Constitution. May 13, 2004. (H.J. Res. 56).
    91. Patent Quality Improvement: Post Grant Opposition. Subcommittee 
on Courts, the Internet, and Intellectual Property. June 24, 2004.
    92. Limiting Federal Court Jurisdiction to Protect Marriage for the 
States. Subcommittee on the Constitution. June 24, 2004.
    93. Derivative Rights, Moral Rights, and Movie Filtering 
Technology. Subcommittee on Courts, the Internet, and Intellectual 
Property. May 20, 2004.
    94. Family Movie Act of 2004. Subcommittee on Courts, the Internet, 
and Intellectual Property. June 17, 2004. (H.R. 4586).
    95. Safeguarding Americans From a Legal Culture of Fear: Approaches 
to Limiting Lawsuit Abuse. Committee on the Judiciary. June 22, 2004.
    96. Families and Businesses in Limbo: The Detrimental Impact of the 
Immigration Backlog. Subcommittee on Immigration, Border Security, and 
Claims. June 17, 23, 2004.
    97. Law Enforcement Officers Safety Act of 2003. Subcommittee on 
Crime, Terrorism, and Homeland Security. June 15, 2004. (H.R. 218).
    98. Mentally Ill Offender Treatment and Crime Reduction Act of 
2003. Subcommittee on Crime, Terrorism, and Homeland Security. June 22, 
2004. (S. 1194).
    99. Internet Streaming of Radio Broadcasts: Balancing the Interests 
of Sound Recording Copyright Owners With Those of Broadcasters. 
Subcommittee on Courts, the Internet, and Intellectual Property. July 
15, 2004.
    100. Legal Services Corporation: Inquiry into the Activities of the 
California Rural Legal Assistance Program and Testimony Relating to the 
Merits of Client Co-pay. Subcommittee on Commercial and Administrative 
Law. March 31, 2004.
    101. Child Custody Protection Act. Subcommittee on the 
Constitution. July 20, 2004. (H.R. 1755).
    102. Regulatory Aspects of Voice Over Internet Protocol (VoIP). 
Subcommittee on Commercial and Administrative Law. July 23, 2004.
    103. Defending America's Most Vulnerable: Safe Access to Drug 
Treatment and Child Protection Act of 2004. Subcommittee on Crime, 
Terrorism, and Homeland Security. July 6, 2004. (H.R. 4547).
    104. Anti-Terrorism Intelligence Tools Improvement Act of 2003. 
Subcommittee on Crime, Terrorism, and Homeland Security. May 18, 2004. 
(H.R. 3179).
    105. Constitution Restoration Act of 2004. Subcommittee on Courts, 
the Internet, and Intellectual Property. September 13, 2004. (H.R. 
3799).
    106. Due Process and the NCAA. Subcommittee on the Constitution. 
September 14, 2004.
    107. Good Samaritan Volunteer Firefighter Assistance Act of 2003, 
the Nonprofit Athletic Organization Protection Act of 2003, and the 
Volunteer Pilot Organization Protection Act. Committee on the 
Judiciary. July 20, 2004. (H.R. 1787, H.R. 3369, and H.R. 1084).
    108. Status of the Implementation of the Pigford v. Glickman 
Settlement. Subcommittee on the Constitution. September 28, 2004.
    109. Reauthorization of the Administrative Conference of the United 
States. Subcommittee on Commercial and Administrative Law. May 20, 2004 
and June 24, 2004.
    110. Presidential Secession Act. Subcommittee on the Constitution. 
October 6, 2004.
    111. Should Congress Extend the October 2004 Statutory Deadline for 
Requiring Foreign Visitors to Present Biometric Passports? Committee on 
the Judiciary. April 21, 2004.
    112. Peer-to-Peer Piracy on University Campuses: An Update. 
Subcommittee on Courts, the Internet, and Intellectual Property. 
October 5, 2004.
    113. Privacy and Civil Liberties in the Hands of the Government 
Post-September 11, 2001: Recommendations of the 9/11 Commission and the 
U.S. Department of Defense Technology and Privacy Advisory Committee. 
Subcommittee on Commercial and Administrative Law jointly with the 
Subcommittee on the Constitution. August 20, 2004.
    114. Administration of Large Business Bankruptcy Reorganizations: 
Has Competition for Big Cases Corrupted the Bankruptcy System? 
Subcommittee on Commercial and Administrative Law. July 21, 2004.
    115. Recommendations of the 9/11 Commission. Subcommittee on Crime, 
Terrorism, and Homeland Security. August 23, 2004.
    116. Federal Offender Reentry and Protecting Children from Criminal 
Recidivists. Subcommittee on Crime, Terrorism, and Homeland Security. 
October 7, 2004.
    117. ``Notice'' Provision in the Pigford v. Glickman Consent 
Decree. Subcommittee on the Constitution. November 18, 2004.

                            Committee Prints

                          Serial No. and Title

                               __________
    1. Federal Rules of Appellate Procedure. December 1, 2003.
    2. Federal Rules of Civil Procedure. December 1, 2003.
    3. Federal Rules of Criminal Procedure. December 1, 2003.
    4. Federal Rules of Evidence. December 1, 2003.

                            House Documents

                         H. Doc. No. and Title

                               __________
    108-37. Legislative Proposal for the Millennium Challenge Act of 
2003. Communication from the President of the United States 
transmitting a legislative proposal to establish the Millenium 
Challenge Account and the Millennium Challenge Corporation. Referred 
jointly to the Committees on International Relations, Ways and Means, 
the Judiciary, Resources, and Government Reform. February 11, 2003. 
(Executive Communication No. 644).
    108-56. 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. March 
27, 2003. (Executive Communication No. 1493).
    108-57. Amendments to the Federal Rules of Evidence. Communication 
from the Chief Justice, the Supreme Court of the United States, 
transmitting amendments to the Federal Rules of Evidence that have been 
adopted by the Court, pursuant to 28 U.S.C. 2072. March 27, 2003. 
(Executive Communication No. 1494).
    108-58. 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. March 27, 2003. (Executive Communication No. 1495).
    108-59. 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. March 27, 2003. (Executive Communication No. 1496).
    108-89. Notification of the Required Changes to the United States-
Singapore Free Trade Agreement. Communication from the President of the 
United States transmitting notification of changes to existing law 
required to bring the United States into compliance with obligations 
under the United States-Singapore Free Trade Agreement, pursuant to 
Pub. L. 107-210, Sec. 2105(a)(1)(B). Referred jointly to the Committees 
on Ways and Means and the Committee on the Judiciary. July 7, 2003. 
(Executive Communication No. 3007).
    108-90 Notification of the Required Changes to the United States-
Chile Free Trade Agreement. Communication from the President of the 
United States transmitting notification of changes to existing law 
required to bring the United States into compliance with obligations 
under the United States-Chile Free Trade Agreement, pursuant to Pub. L. 
107-210, Sec. 2105(a)(1)(B). Referred jointly to the Committee on Ways 
and Means and the Committee on the Judiciary. July 7, 2003. (Executive 
Communication No. 3006).
    108-100. The United States-Singapore Free Trade Agreement. Message 
from the President of the United States transmitting a draft proposed 
legislation and supporting documents to implement the United States-
Singapore Free Trade Agreement (FTA), pursuant to 19 U.S.C. 
3805(a)(1)(A) and (B). Referred jointly to the Committee on Ways and 
Means and the Committee on the Judiciary. July 16, 2003. (Presidential 
Message No. 40).
    108-101. The United States-Chile Free Trade Agreement. Message from 
the President of the United States transmitting a draft proposed 
legislation and supporting documents to implement the United States-
Chile Free Trade Agreement (FTA), pursuant to 19 U.S.C. 3805(a)(1)(A) 
and (B). Referred jointly to the Committee on Ways and Means and the 
Committee on the Judiciary. July 16, 2003. (Presidential Message No. 
41).
    108-131. Memorandum of Understanding Between the Secretaries of 
State and Homeland Security Concerning Implementation of Section 428 of 
the Homeland Security Act of 2002, pursuant to Pub. L. 107-296, Sec. 
428(e)(8)(A). Referred jointly to the Committee on the Judiciary and 
the Select Committee on Homeland Security. October 1, 2003. 
(Presidential Message No. 46).
    108-181. 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 28, 2004. (Executive Communication No. 7864).
    108-182. Amendments to the Federal Rules of Criminal Procedure. 
Communication from the Chief Justice, the Supreme Court of the United 
States, transmitting the Federal Rules of Criminal Procedure that have 
been adopted by the Court, pursuant to 28 U.S.C. 2072. April 28, 2004. 
(Executive Communication No. 7865).

        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 108th 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 108-6--To authorize salary adjustments for 
Justices and judges of the United States for fiscal year 2003. 
(H.R. 16) (Approved February 13, 2003).
    Public Law 108-20--To provide benefits and other 
compensation for certain individuals with injuries resulting 
from administration of smallpox countermeasures, and for other 
purposes. ``Smallpox Emergency Personnel Protection Act of 
2003''. (H.R. 1770) (Approved April 30, 2003; effective date 
November 25, 2002, for tort liability provisions).
    Public Law 108-21--To prevent child abduction and the 
sexual exploitation of children, and for other purposes. 
``Prosecutorial Remedies and Other Tools to end the 
Exploitation of Children Today Act of 2003'', or ``PROTECT 
Act'', ``Code Adam Act of 2003'', ``Secure Authentication 
Feature and Enhanced Identification Defense Act of 2003'' or 
``SAFE ID Act'', ``Illicit Drug Anti-Proliferation Act of 
2003''. (S. 151) (Approved April 30, 2003; effective dates 
vary).
    Public Law 108-29--To further the protection and 
recognition of veterans' memorials, and forother purposes. 
``Veterans' Memorial Preservation and Recognition Act of 2003''. (S. 
330) (Approved May 29, 2003).
    Public Law 108-38--Expressing the sense of Congress with 
respect to raising awareness and encouraging prevention of 
sexual assault in the United States and supporting the goals 
and ideals of National Sexual Assault Awareness and Prevention 
Month. (S.J. Res. 8) (Approved June 26, 2003).
    Public Law 108-61--To sanction the ruling Burmese military 
junta, to strengthen Burma's democratic forces and support and 
recognize the National League of Democracy as the legitimate 
representative of the Burmese people, and for other purposes. 
``Burmese Freedom and Democracy Act of 2003''. (H.R. 2330) 
(Approved July 28, 2003; effective date thirty days after 
enactment for ban against trade provision).
    Public Law 108-68--To amend the PROTECT Act to clarify 
certain volunteer liability. (S. 1280) (Approved August 1, 
2003).
    Public Law 108-73--To extend for six months the period for 
which chapter 12 of title 11 of the United States Code is 
reenacted. ``Family Farmer Bankruptcy Relief Act of 2003''. 
(H.R. 2465) (Approved August 15, 2003; effective date July 1, 
2003).
    Public Law 108-77--To implement the United States-Chile 
Free Trade Agreement. (H.R. 2738) (Approved September 3, 2003).
    Public Law 108-78--To implement the United States-Singapore 
Trade Agreement. ``United States-Singapore Free Trade Agreement 
Implementation Act''. (H.R. 2739) (Approved September 3, 2003; 
effective dates vary).
    Public Law 108-79--To provide for the analysis of the 
incidence and effects of prison rape in Federal, State, and 
local institutions and to provide information, resources, 
recommendations, and funding to protect individuals from prison 
rape. ``Prison Rape Elimination Act of 2003''. (S. 1435) 
(Approved September 4, 2003).
    Public Law 108-99--To amend the Immigration and Nationality 
Act to extend for an additional 5 years the special immigrant 
religious worker program. (H.R. 2152) (Approved October 15, 
2003; effective date October 1, 2003).
    Public Law 108-105--To prohibit the procedure commonly 
known as partial-birth abortion. ``Partial-Birth Abortion Ban 
Act of 2003''. (S. 3) (Approved November 5, 2003; effective 
date November 6, 2003).
    Public Law 108-136--To authorize appropriations for fiscal 
year 2004 for military activities of the Department of Defense, 
for military construction, and for defense activities of the 
Department of Energy, to prescribe strengths for such fiscal 
year for the Armed Forces, and for other purposes. ``National 
Defense Authorization Act for Fiscal Year 2004''. ``Randolph-
Sheppard Act'', ``Services Acquisition Reform Act of 2003'', 
``Military Construction Authorization Act for Fiscal Year 
2004'', ``Maritime Security Act of 2003'', ``Nuclear Security 
Initiative Act of 2003''. (H.R. 1588) (Approved November 24, 
2003; effective dates vary).
    Public Law 108-148--To improve the capacity of the 
Secretary of Agriculture and the Secretary of the Interior to 
plan and conduct hazardous fuels reduction projects on National 
Forest System lands and Bureau of Land Management lands aimed 
at protecting communities, watersheds, and certain other at-
risk lands from catastrophic wildfire, to enhance efforts to 
protect watersheds and address threats to forest and rangeland 
health, including catastrophic wildfire, across the landscape, 
and for other purposes. ``Healthy Forests Restoration Act of 
2003''. (H.R. 1904) (Approved December 3, 2003).
    Public Law 108-156--To extend and expand the basic pilot 
program for employment eligibility verification, and for other 
purposes. ``Basic Pilot Program Extension and Expansion Act of 
2003''. (S. 1685) (Approved December 3, 2003).
    Public Law 108-157--To provide for Federal court 
proceedings in Plano, Texas. (S. 1720) (Approved December 3, 
2003).
    Public Law 108-167--To authorize salary adjustments for 
Justices and judges of the United States for fiscal year 2004. 
(H.R. 3349) (Approved December 6, 2003).
    Public Law 108-174--To reauthorize the ban on undetectable 
firearms. (H.R. 3348) (Approved December 9, 2003).
    Public Law 108-176--To amend title 49, United States Code, 
to reauthorize programs for the Federal Aviation 
Administration, and for other purposes. (H.R. 2115) (Approved 
December 12, 2003).
    Public Law 108-178--To improve the United States Code. 
(H.R. 1437) (Approved December 15, 2003; effective date August 
21, 2002).
    Public Law 108-182--To ensure that a public safety officer 
who suffers a fatal heart attack or stroke while on duty shall 
be presumed to have died in the line of duty for purposes of 
public safety officer survivor benefits. ``Hometown Heroes 
Survivors Benefits Act of 2003''. (S. 459) (Approved December 
15, 2003).
    Public Law 108-187--To regulate interstate commerce by 
imposing limitations and penalties on the transmission of 
unsolicited commercial electronic mail via the Internet. 
``Controlling the Assault of Non-Solicited Pornography and 
Marketing Act of 2003'' or the ``CAN-SPAM Act of 2003''. (S. 
877) (Approved December 16, 2003; effective date January 1, 
2004, except for section 9).
    Public Law 108-188--To approve the Compact of Free 
Association, as amended, between the Government of the United 
States of America and the Government of the Federated States of 
Micronesia, and the Compact of Free Association, as amended, 
between the Government of the United States of America and the 
Government of the Republic of the Marshall Islands, and to 
appropriate funds to carry out the amended Compacts. ``Compact 
of Free Association Amendments Act of 2003''. (H.J. Res. 63) 
(Approved December 17, 2003; effective dates vary).
    Public Law 108-193--To authorize appropriations for fiscal 
years 2004 and 2005 for the Trafficking Victims Protection Act 
of 2000, and for other purposes. ``Trafficking Victims 
Protection Reauthorization Act of 2003''. (H.R. 2620) (Approved 
December 19, 2003).
    Public Law 108-198--To prohibit the offer of credit by a 
financial institution to a financial institution examiner, and 
for other purposes. ``Preserving Independence of Financial 
Institution Examinations Act of 2003''. (S. 1947) (Approved 
December 19, 2003).
    Public Law 108-212--To amend title 18, United States Code, 
and the Uniform Code of Military Justice to protect unborn 
children from assault and murder, and for other purposes. 
``Unborn Victims of Violence Act of 2004'' or ``Laci and 
Conner's Law''. (H.R. 1997) (Approved April 1, 2004).
    Public Law 108-237--To encourage the development and 
promulgation of voluntary consensus standards by providing 
relief under the antitrust laws to standards development 
organizations with respect to conduct engaged in for the 
purpose of developing voluntary consensus standards, and for 
other purposes. ``Standards Development Organization 
Advancement Act of 2004''. (H.R. 1086) (Approved June 22, 
2004).
    Public Law 108-238--To authorize assistance for the 
National Great Blacks in Wax Museum and Justice Learning 
Center. ``National Great Black Americans Commemoration Act of 
2004''. (S. 1233) (Approved June 22, 2004).
    Public Law 108-275--To amend title 18, United States Code, 
to establish penalties for aggravated identity theft, and for 
other purposes. ``Identity Theft Penalty Enhancement Act''. 
(H.R. 1731) (Approved July 15, 2004).
    Public Law 108-277--To amend title 18, United States Code, 
to exempt qualified current and former law enforcement officers 
from State laws prohibiting the carrying of concealed handguns. 
``Law Enforcement Officers Safety Act of 2004''. (H.R. 218) 
(Approved July 22, 2004).
    Public Law 108-281--To amend the E-Government Act of 2002 
with respect to rulemakingauthority of the Judicial Conference. 
(H.R. 1303) (Approved August 2, 2004).
    Public Law 108-299--To modify certain deadlines pertaining 
to machine-readable, tamper-resistant entry and exit documents. 
(H.R. 4417) (Approved August 9, 2004).
    Public Law 108-304--To designate certain conduct by sports 
agents relating to the signing of contracts with student 
athletes as unfair and deceptive acts or practices to be 
regulated by the Federal Trade Commission. ``Sports Agent 
Responsibility and Trust Act''. (H.R. 361) (Approved September 
24, 2004).
    Public Law 108-326--To clarify the tax treatment of bonds 
and other obligations issued by the Government of American 
Samoa. (H.R. 982) (Approved October 16, 2004).
    Public Law 108-333--To promote human rights and freedom in 
the Democratic People's Republic of Korea, and for other 
purposes. ``North Korean Human Rights Act of 2004''. (H.R. 
4011) (Approved October 18, 2004).
    Public Law 108-344--To revise and extend the Boys and Girls 
Clubs of America. (S. 2363) (Approved October 18, 2004).
    Public Law 108-347--To provide for the promotion of 
democracy, human rights, and rule of law in the Republic of 
Belarus and for the consolidation and strengthening of Belarus 
sovereignty and independence. ``Belarus Democracy Act of 
2004''. (H.R. 854) (Approved October 20, 2004).
    Public Law 108-356--To extend certain authority of the 
Supreme Court Police, modify the venue of prosecutions relating 
to the Supreme Court building and grounds, and authorize the 
acceptance of gifts to the United States Supreme Court. (S. 
2742) (Approved October 21, 2004).
    Public Law 108-357--To amend the Internal Revenue Code of 
1986 to remove impediments in such Code and make our 
manufacturing, service, and high-technology businesses and 
workers more competitive and productive both at home and 
abroad. ``American Jobs Creation Act of 2004''. (H.R. 4520) 
(Approved October 22, 2004; effective dates vary).
    Public Law 108-358--To amend the Controlled Substances Act 
to clarify the definition of anabolic steroids and to provide 
for research and education activities relating to steroids and 
steroid precursors. ``Anabolic Steroids Control Act of 2004''. 
(S. 2195) (Approved October 22, 2004; effective dates vary).
    Public Law 108-369--To extend for eighteen months the 
period for which chapter 12 of title 11, United States Code, is 
reenacted. ``Family Farmer Bankruptcy Relief Act of 2004''. (S. 
2864) (Approved October 25, 2004; effective date January 1, 
2004).
    Public Law 108-370--To amend the International Child 
Abduction Remedies Act to limit the tort liability of private 
entities or organizations that carry out responsibilities of 
the United States Central Authority under that Act. 
``Prevention of Child Abduction Partnership Act''. (S. 2883) 
(Approved October 25, 2004).
    Public Law 108-371--To modify and extend certain 
privatization requirements of the Communications Satellite Act 
of 1962. (S. 2896) (Approved October 25, 2004).
    Public Law 108-372--To reauthorize the State Justice 
Institute. ``State Justice Institute Reauthorization Act of 
2004''. (H.R. 2714) (Approved October 25, 2004).
    Public Law 108-375--To authorize appropriations for fiscal 
year 2005 for military activities of the Department of Defense, 
to prescribe military personnel strengths for fiscal year 2005, 
and for other purposes. ``Ronald W. Reagan National Defense 
Authorization Act for Fiscal Year 2005''. (H.R. 4200) (Approved 
October 28, 2004; effective dates vary).
    Public Law 108-390--To amend section 274A of the 
Immigration and Nationality Act to improve the process for 
verifying an individual's eligibility for employment. (H.R. 
4306) (Approved October 30, 2004; effective dates vary).
    Public Law 108-401--To amend title 5, United States Code, 
to authorize appropriations for the Administrative Conference 
of the United States for fiscal years 2005, 2006, and 2007, and 
for other purposes. ``Federal Regulatory Improvement Act of 
2004''. (H.R. 4917) (Approved October 30, 2004).
    Public Law 108-405--To protect crime victims' rights, to 
eliminate the substantial backlog of DNA samples collected from 
crime scenes and convicted offenders, to improve and expand the 
DNA testing capacity of Federal, State, and local crime 
laboratories, to increase research and development of new DNA 
testing technologies, to develop new training programs 
regarding the collection and use of DNA evidence, to provide 
post-conviction testing of DNA evidence to exonerate the 
innocent, to improve the performance of counsel in State 
capital cases, and for other purposes. ``Justice for All Act''. 
(H.R. 5107) (Approved October 30, 2004).
    Public Law 108-414--To foster local collaborations which 
will ensure that resources are effectively and efficiently used 
within the criminal and juvenile justice systems. ``Mentally 
Ill Offender Treatment and Crime Reduction Act of 2004''. (S. 
1194) (Approved October 30, 2004).
    Public Law 108-419--To amend title 17, United States Code, 
to replace copyright arbitration royalty panels with Copyright 
Royalty Judges, and for other purposes. ``Copyright Royalty and 
Distribution Reform Act of 2004''. (H.R. 1417) (Approved 
November 30, 2004).
    Public Law 108-441--To improve access to physicians in 
medically underserved areas. (S. 2302) (Approved December 3, 
2004).
    Public Law 108-446--To reauthorize the Individuals with 
Disabilities Act, and for other purposes. ``Individuals with 
Disabilities Education Improvement Act of 2004''. (H.R. 1350) 
(Approved December 3, 2004).
    Public Law 108-449--To amend and extend the Irish Peace 
Process Cultural and Training Program Act of 1998. (H.R. 2655) 
(Approved December 10, 2004).
    Public Law 108-453--To amend title 35, United States Code, 
to promote cooperative research involving universities, the 
public sector, and private enterprises. ``Cooperative Research 
and Technology Enhancement (CREATE) Act of 2004''. (S. 2192) 
(Approved December 10, 2004).
    Public Law 108-455--To extend the authority of the United 
States District Court for the Southern District of Iowa to hold 
court in Rock Island, Illinois. (S. 2873) (Approved December 
10, 2004).
    Public Law 108-458--To reform the intelligence community 
and the intelligence and intelligence-related activities of the 
United States Government, and for other purposes. (S. 2845) 
(Approved December 17, 2004).
    Public Law 108-482--To prevent and punish counterfeiting of 
copyrighted copies and phonorecords, and for other purposes. 
``Intellectual Property Protection and Courts Amendments Act of 
2004''. (H.R. 3632) (Approved December 23, 2004).
    Public Law 108-491--To authorize salary adjustments for 
Justices and judges of the United States for fiscal year 2005. 
(H.R. 5363) (Approved December 23, 2004).

                              PRIVATE LAWS

    Private Law 108-1--For the relief of Lindita Idrizi Heath. 
(S. 103) (Approved July 22, 2004).
    Private Law 108-3--For the relief of Richi James Lesley. 
(H.R. 712) (Approved October 30, 2004).
    Private Law 108-4--For the relief of Durreshahwar 
Durreshahwar, Nida Hasan, Asna Hasan, Anum Hasan, and Iqra 
Hasan. (H.R. 867) (Approved October 30, 2004).
    Private Law 108-5--For the relief of Tanya Andrea Goudeau. 
(H.R. 530) (Approved December 23, 2004).

               CONCURRENT AND SIMPLE RESOLUTIONS APPROVED

    H. Con. Res. 414.--Expressing the sense of the Congress 
that, as Congress recognizes the 50th anniversary of the Brown 
v. Board of Education decision, all Americans are encouraged to 
observe this anniversary with a commitment to continuing and 
building on the legacy of Brown. Agreed to by the House May 13, 
2004; agreed to by the Senate May 19, 2004.
    H. Res. 56.--Supporting the goals of the Japanese American, 
German American, and Italian American communities in 
recognizing a National Day of Remembrance to increase public 
awareness of the events surrounding the restriction, exclusion, 
and internment of individuals and families during World War II. 
Agreed to by the House March 4, 2004.
    H. Res. 132.--Expressing the sense of the House of 
Representatives that the Ninth Circuit Court of Appeals ruling 
in Newdow v. United States Congress is inconsistent with the 
Supreme Court's interpretation of the first amendment and 
should be overturned, and for other purposes. Agreed to by the 
House March 20, 2003.
    H. Res. 180.--Supporting the goals and ideals of ``National 
Correctional Officers and Employees Week'' and honoring the 
service of correctional officers and employees. Agreed to by 
the House May 20, 2003.
    H. Res. 234.--Condemning bigotry and violence against Arab-
Americans, Muslim-Americans, South Asian-Americans, and Sikh-
Americans. Agreed to by the House October 7, 2003.
    H. Res. 389.--Honoring the young victims of the Sixteenth 
Street Baptist Church bombing, recognizing the historical 
significance of the tragic event, and commending the efforts of 
law enforcement personnel to bring the perpetrators of this 
crime to justice on the occasion of its 40th anniversary. 
Agreed to by the House October 6, 2004.
    H. Res. 412.--Honoring the men and women of the Drug 
Enforcement Administration on the occasion of its 30th 
Anniversary. Agreed to by the House March 4, 2004.
    H. Res. 423.--Recognizing the 5th anniversary of the 
signing of the International Religious Freedom Act of 1998 and 
urging a renewed commitment to eliminating violations of the 
internationally recognized right to freedom of religion and 
protecting fundamental human rights. Agreed to by the House 
November 19, 2003.
    H. Res. 662.--Recognizing that Flag Day originated in 
Ozaukee County, Wisconsin. Agreed to by the House June 14, 
2004.
    H. Res. 676.--Recognizing and honoring the 40th anniversary 
of congressional passage of the Civil Rights Act of 1964. 
Agreed to by the House June 24, 2004.
    H. Res. 757.--Expressing the sense of the House of 
Representatives on the anniversary of the terrorist attacks 
launched against the United States on September 11, 2001. 
Agreed to by the House September 9, 2004.
    H. Res. 853.--Recognizing the Boy Scouts of America for the 
public service the organization performs for neighborhoods and 
communities across the United States. Agreed to by the House 
November 20, 2004.

                        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. 6 (S. 14)--To enhance energy conservation and research 
and development, to provide for security and diversity in the 
energy supply for the American people, and for other purposes. 
``Energy Policy Act of 2003''. Passed the House April 11, 2003 
(247 ayes; 175 noes). Passed the Senate, amended, July 31, 2003 
(84 yeas; 14 nays). The Senate requested a conference July 31, 
2003. The Senate appointed conferees September 4, 2003. The 
House agreed to a conference September 4, 2003. The House 
appointed conferees September 5, 2003 (including from the 
Committee on the Judiciary). Conference report filed in the 
House November 18 (leg. day 17), 2003 (H. Rept. 108-375). The 
House agreed to the conference report November 18, 2003 (246 
yeas; 180 nays).
    H.R. 1350 (S. 1248)--To reauthorize the Individuals with 
Disabilities Education Act, and for other purposes. ``Improving 
Education Results for Children With Disabilities Act of 2003''. 
Passed the House, amended, April 30, 2003 (251 ayes; 171 noes). 
Passed the Senate, amended, May 13, 2004 (95 yeas; 3 nays). The 
House requested a conference October 8, 2004. The House 
appointed conferees October 8, 2004 (including from the 
Committee on the Judiciary). The Senate agreed to a conference 
October 11, 2004. The Senate appointed conferees October 11, 
2004. Conference report filed in the House November 17, 2004 
(H. Rept. 108-779). The House agreed to the conference report 
November 19, 2004 (397 yeas; 3 nays). The Senate agreed to the 
conference report November 19, 2004 (unanimous consent). 
Approved by the President December 3, 2004--Public Law 108-446.
    H.R. 1588 (S. 1050)--To authorize appropriations for fiscal 
year 2004 for military activities of the Department of Defense, 
to prescribe military personnel strengths for fiscal year 2004, 
and for other purposes. ``National Defense Authorization Act 
for Fiscal Year 2004''. Passed the House, amended, May 22, 2003 
(361 ayes; 68 noes). Passed the Senate, amended, June 4, 2003. 
The Senate requested a conference June 4, 2003, and appointed 
conferees. The House agreed to a conference July 16, 2003, and 
appointed conferees (including from the Committee on the 
Judiciary). Conference report filed in the House November 7 
(leg. day November 6), 2003 (H. Rept. 108-354). The House 
agreed to the conference report November 7, 2003 (362 yeas; 40 
nays, 2 ``present''). The Senate agreed to the conference 
report November 12, 2003 (95 yeas; 3 nays). Approved by the 
President November 24, 2003--Public Law 108-136.
    H.R. 2115 (S. 824)--To amend title 49, United States Code, 
to reauthorize programs for the Federal Aviation 
Administration, and for other purposes. ``Flight 100--Century 
of Aviation Reauthorization Act''. Passed the House, amended, 
June 11, 2003 (418 yeas; 8 nays). Passed the Senate, amended, 
June 12, 2003. The Senate requested a conference June 12, 2003, 
and appointed conferees. The House agreed to a conference July 
15, 2003, and appointed conferees (including from the Committee 
on the Judiciary). Conference report filed in the House July 
25, 2003 (H. Rept. 108-240). Further conference report filed in 
the House October 29, 2003 (H. Rept. 108-334). The House agreed 
to the further conference report (H. Rept. 108-334) October 30, 
2003. (211 ayes; 207 noes). The Senate agreed to the further 
conference report (H. Rept. 108-334) November 21, 2003. 
Approved by the President December 12, 2003--Public Law 108-
176.
    H.R. 4200 (S. 2400)--To authorize appropriations for fiscal 
year 2005 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 2005''. 
Passed the House, amended, May 20, 2004 (391 yeas; 34 nays). 
Passed the Senate, amended, June 23, 2004. The Senate requested 
a conference and appointed conferees June 24, 2003. The House 
agreed to a conference and appointed conferees September 28, 
2004 (including from the Committee on the Judiciary). 
Conference held September 29, 2004. Conference report filed in 
the House October 8, 2004 (H. Rept. 108-676). The House agreed 
to the conference report October 9, 2004 (359 yeas; 14 nays). 
The Senate agreed to the conference report October 9, 2004 
(unanimous consent). Approved by the President October 28, 
2004--Public Law 108-375.
    H.R. 4520 (S. 1637)--To amend the Internal Revenue Code of 
1986 to remove impediments in such Code and make our 
manufacturing, service, and high-technology businesses and 
workers more competitive and productive both at home and 
abroad. ``American Jobs Creation Act of 2004''. Passed the 
House, amended, June 17, 2004 (251 yeas; 178 nays). Passed the 
Senate, amended, July 15, 2004 by voice vote. The Senate 
requested a conference and appointed conferees July 15, 2004. 
The House agreed to a conference and appointed conferees 
September 29, 2004 (including from the Committee on the 
Judiciary). Conference held September 29, October 4, 5, 6, 
2004. Conference report filed in the House October 7, 2004 (H. 
Rept. 108-755). The House agreed to the conference report 
October 7, 2004 (280 yeas; 141 nays). The Senate agreed to the 
conference report October 11, 2004 (69 yeas; 17 nays). Approved 
by the President October 22, 2004--Public Law 108-357.
                       COMMITTEE ON THE JUDICIARY

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

JOHN CONYERS, Jr., Michigan          HENRY J. HYDE, Illinois
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       STEVE CHABOT, Ohio
ZOE LOFGREN, California              WILLIAM L. JENKINS, Tennessee
SHEILA JACKSON LEE, Texas            CHRIS CANNON, Utah
MAXINE WATERS, California            SPENCER BACHUS, Alabama
MARTIN T. MEEHAN, Massachusetts      JOHN N. HOSTETTLER, Indiana
WILLIAM DELAHUNT, Massachusetts      MARK GREEN, Wisconsin
ROBERT WEXLER, Florida               RIC KELLER, Florida
TAMMY BALDWIN, Wisconsin             MELISSA A. HART, Pennsylvania
ANTHONY D. WEINER, New York          JEFF FLAKE, Arizona
ADAM B. SCHIFF, California           MIKE PENCE, Indiana
LINDA T. SANCHEZ, California         J. RANDY FORBES, Virginia
                                     STEVE KING, Iowa
                                     JOHN R. CARTER, Texas
                                     TOM FEENEY, Florida
                                     MARSHA BLACKBURN, Tennessee

----------
\1\ F. James Sensenbrenner, Jr., Wisconsin, elected to the Committee as 
Chairman pursuant to House Resolution 24, approved by the House January 
8, 2003.
Republican Members elected to the Committee pursuant to House 
Resolution 33, approved by the House January 28, 2003.
\2\ John Conyers, Jr., elected to the Committee as ranking minority 
Member pursuant to House Resolution 22, approved by the House January 
8, 2003.
Democratic Members elected to the Committee pursuant to House 
Resolution 35, approved by the House January 28, 2003.

Tabulation of activity on legislation held at the full Committee

Legislation held at the full Committee............................    77
Legislation failed to be ordered reported to the House............     1
Legislation reported favorably to the House.......................    25
Legislation reported adversely to the House.......................     2
Legislation discharged from the Committee.........................     8
Legislation pending in the House..................................     9
Legislation failed passage by the House...........................     2
Legislation passed by the House...................................    25
Legislation pending in the Senate.................................    17
Legislation enacted into public law as part of another measure....    17
Legislation enacted into public law...............................     8
House concurrent resolutions approved.............................     1
House resolutions approved........................................     1
Legislation on which hearings were held...........................     5
Days of legislative hearings......................................     3
Days of oversight hearings........................................     7

                       Full Committee Activities

    During the 108th Congress the full Committee on the 
Judiciary Committee maintained its original jurisdiction with 
respect to a number of legislative and oversight matters. This 
included exclusive jurisdiction over antitrust and liability 
issues, including medical malpractice and product liability, 
legal reform generally, and such other matters as determined by 
the Chairman.

                         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. During the 108th 
Congress, the full Judiciary Committee retained original 
jurisdiction over antitrust legislative and oversight matters.

H.R. 1073, To repeal section 801 of the Revenue Act of 1916

    Summary.--H.R. 1073 repeals the Antidumping Act of 1916 as 
enacted in Section 801 of the Revenue Act of 1916.\2\ The 1916 
Act has never formed the basis of a final ruling on the merits 
in any federal case. Nonetheless, on September 26, 2000, the 
Dispute Settlement Body (DSB) of the World Trade Organization 
(WTO) held that the 1916 Act violated United States obligations 
under the General Agreement on Tariffs and Trade (GATT), the 
Antidumping Agreement, and the WTO
---------------------------------------------------------------------------
    \2\ Revenue Act of 1916, ch. 463, Sec. 801, 39 Stat. 756, 798-99 
(1916) (codified at 15 U.S.C. Sec. 72 (2004)).
    Agreement.
---------------------------------------------------------------------------
    Decisions by the WTO are not self-executing. As a result, 
on March 4, 2003, Chairman Sensenbrenner and Committee on Ways 
and Means Chairman Thomas introduced H.R. 1073 in order to 
bring the United States into conformity with the WTO ruling by 
repealing the 1916 Act. H.R. 1073 does not affect legal claims 
filed after the WTO decision or pending before enactment of the 
legislation. In addition, H.R. 1073 does not disturb existing 
antidumping remedies contained in U.S. trade law that survived 
the WTO ruling. As a result, U.S. industry may continue to 
avail itself of the comprehensive and internationally-compliant 
antidumping remedies enacted by the United States.
    Under the 1916 Act, the importation of an article from a 
foreign country into the United States constitutes unlawful 
dumping if three elements are met. First, the price in the 
United States must be ``substantially less'' than the ``actual 
market price or wholesale price of such articles * * * in the 
principal markets of the country of their production.'' \3\ 
Second, the international price discrimination must be ``common 
and systematic.'' \4\ Third, the price discrimination must 
occur ``with the intent of destroying or injuring an industry 
in the United States, or preventing the establishment of an 
industry in the United States, or of restraining or 
monopolizing any part of trade and commerce in such articles in 
the United States.'' \5\ If any person is held to have violated 
all three elements, the 1916 Act allows for the implementation 
of both criminal and civil penalties, including imprisonment of 
up to one year and treble damages.
---------------------------------------------------------------------------
    \3\ 15 U.S.C. Sec. 72 (2002).
    \4\ Id.
    \5\ Id.
---------------------------------------------------------------------------
    The significance of the 1916 Act was largely eclipsed by 
subsequent antidumping legislation. Five years after passing 
the 1916 Act, Congress enacted more comprehensive Antidumping 
Act of 1921 which was repealed by the Trade Agreements Act of 
1979 which provided a new set of remedies.\6\ These antidumping 
remedies remain unaffected by the September 26, 2000 WTO 
decision. As a result, U.S. industry may continue to avail 
itself of the more comprehensive and internationally- compliant 
antidumping remedies contained in the 1979 Act and other United 
States trade legislation.
---------------------------------------------------------------------------
    \6\ Id.
---------------------------------------------------------------------------
    Legislative History.--H.R. 1073 was introduced by Chairman 
Sensenbrenner on March 4, 2003. Committee on Ways and Means 
Chairman Thomas co-sponsored the legislation. On January 28, 
2003, the Judiciary Committee reported H.R. 1073 by voice vote 
(H. Rept. No. 108-415). H.R. 1073 was subsequently incorporated 
into H.R. 1047, the ``Miscellaneous Trade and Technical 
Corrections Act of 2004,'' which was signed into law by the 
President on December 3, 2004 and became Public Law No. 108-
429.

              Establishment of the Task Force on Antitrust

    The Committee on the Judiciary Task Force on Antitrust was 
created by a Judiciary Committee Resolution adopted on March 
26, 2003. The resolution establishing the Task Force on 
Antitrust read as follows: ``The Task Force will conduct 
hearings and investigations relating to the Committee's 
jurisdiction under clause 1(k)(15) of House Rule X--Protection 
of trade and commerce against unlawful restraints and 
monopolies--and other related matters as directed by the 
Chairman. Its purpose is to facilitate the consideration of 
antitrust matters before the Committee.
    All House and Committee rules concerning hearing procedures 
will apply. Chairman Sensenbrenner and Ranking Member Conyers 
are the Chairman and Ranking Member of the Task Force and may 
designate a Member of the Committee to preside over its 
hearings. All Members of the Judiciary Committee are also 
members of the Task Force. This Task Force will be effective 
for six (6) months or until September 26, 2003.''
    The Task Force on Antitrust conducted a legislative hearing 
on H.R. 1086, the ``Standards Development Organization 
Advancement Act of 2004'' on April 9, 2003, and an oversight 
hearing titled ``The Antitrust Enforcement Agencies: The 
Antitrust Division of the Department of Justice and the Bureau 
of Competition of the Federal Trade Commission'' on July 24, 
2003.

H.R. 1086, the ``Standards Development Organization Advancement Act of 
        2004''

    Summary.--Standard development organizations play a pivotal 
role in promoting free market competition. Technical standards 
form the basis of product competition by ensuring a common 
interface between technically-substitutable products. 
``Voluntary consensus standards'' are technical standards 
written by hundreds of non-profit standard developing 
organizations such as the American Society of Mechanical 
Engineers, the American Society for Testing and Materials, and 
the National Fire Protection Association. While in most 
countries standards are promulgated by government agencies, the 
United States has shifted toward a model whereby standard 
development organizations (SDOs) develop voluntary consensus 
standards for use by industry and various levels of government. 
These standards are then codified in industry and government 
codes.
    While standards are widely viewed to enhance competition, 
standard-setting activities might give rise to legitimate 
antitrust concerns if anticompetitive conduct such as output 
restrictions upon horizontal competition, market divisions, 
vertical restraints, or exclusionary conduct occur.\7\ As the 
Supreme Court has recognized: ``[An] agreement on a product 
standard is, after all, implicitly an agreement not to 
manufacture, distribute or purchase certain types of products * 
* * Accordingly, private standard-setting organizations have 
traditionally been objects of antitrust scrutiny.\8\
---------------------------------------------------------------------------
    \7\ Samuel Miller, Antitrust and Standard-Setting, Prac. L. Inst., 
July 21, 2001.
    \8\ Allied Tube and Conduit Corp. v. Indian Head, Inc. 486 U.S. 
492, 500 (1988).
---------------------------------------------------------------------------
    Antitrust challenges to standard-setting activities are 
currently evaluated under the ``rule of reason''--a judicially-
created doctrine that seeks to balance the pro-competitive and 
anticompetitive market effects of a challenged practice before 
determining whether a violation of the antitrust laws has 
occurred.\9\ The rationale for the application of this 
relatively lenient antitrust standard is that SDOs, as non-
profits that serve a cross-section of an industry, are unlikely 
to engage in anticompetitive conduct to create market 
dominance. Potential anticompetitive conduct is also mitigated 
by the manner in which voluntary consensus standards are 
developed and implemented. In order to be utilized by Federal 
agencies, the process of developing voluntary standards must 
adhere to principles of openness, voluntariness, balance, 
cooperation, transparency, consensus, and due process. These 
requirements were most recently articulated in OMB Circular A-
119 (February 19, 1998).\10\
---------------------------------------------------------------------------
    \9\ See Northwest Wholesale Stationers, Inc. v. Pacific Stationery 
and Printing Company, 472 U.S. 284 (1985).
    \10\Federal Participation in the Development and Use of Voluntary 
Consensus Standards and in Conformity Assessment Activities, 63 Fed. 
Reg. 8545 (February 19, 1998); available at http://www.whitehouse.gov/
omb/circulars/a119/a119.html.
---------------------------------------------------------------------------
    Notwithstanding these safeguards, treble damages may still 
be awarded against SDOs if their conduct is determined to be 
anticompetitive under the rule of reason. Until recently, 
standard-setting activities were largely directed and managed 
by government entities that were completely immune from 
antitrust scrutiny. Beginning in the 1990s, Congress concluded 
that government could no longer keep pace with rapid 
technological and market change, and that government-directed, 
standard-setting activity was often cumbersome, duplicative, 
and inefficient. To address this concern, Congress passed the 
National Technology Transfer and Advancement Act of 1995 \11\ 
(NTTAA). NTTAA's express goal was to encourage government 
agencies to assist in the development of voluntary consensus 
standards and to adopt such standards in favor of often 
outmoded government standards whenever possible.\12\ While the 
NTTAA has been successful by almost every measure, SDOs 
continue to be vulnerable to litigation even after its passage.
---------------------------------------------------------------------------
    \11\ Pub. L. No. 104-113, 110 Stat. 775 (1995).
    \12\ H.R. Rept. No. 104-390 (1995).
---------------------------------------------------------------------------
    H.R. 1086, the ``National Cooperative Standards Development 
Act of 2004,'' amends the National Cooperative Research Act 
(NCRA) to extend that Act's limited antitrust protections to 
specified activities of standard development organizations 
relating to the development of voluntary consensus standards. 
These amendments preserve and promote the ability of SDOs to 
issue standards by: (1) codifying the ``rule of reason'' for 
antitrust scrutiny of their activities; (2) eliminating the 
threat of treble damages for specified standards development 
activity if SDOs disclose the scope and nature of this activity 
to the Department of Justice and Federal Trade Commission; and 
(3) providing for the recovery of attorney fees to 
substantially prevailing parties.
    As enacted, H.R. 1086 also contains important, bipartisan 
amendments that deter antitrust violations while strengthening 
antitrust enforcement efforts. Title II harmonizes the 
treatment of criminal antitrust offenders and white collar 
criminals by increasing maximum prison terms for criminal 
antitrust violations from three to ten years while increasing 
maximum individual fines for antitrust violations from $350,000 
to $1 million. These enhancements serve to deter 
anticompetitive misconduct.
    Title II also increases maximum corporate fines for 
antitrust violations from $10 million to $100 million. This 
considerable increase sends a clear signal to corporate 
officers and board rooms that a decision to violate the 
antitrust laws can rarely if ever be considered a profitable 
one. Title II of the legislation also contains important 
modifications to the antitrust leniency program utilized by the 
Department of Justice to facilitate the detection and 
prosecution of antitrust violations. Under existing law, 
parties that cooperate with federal antitrust authorities to 
uncover antitrust violations may not be subject to government 
prosecution, but remain liable for civil claims brought by 
private parties. H.R. 1086 creates an additional incentive for 
corporations to disclose antitrust violations by limiting their 
antitrust liability in related civil claims to actual damages. 
Furthermore, while a cooperating party would be liable only for 
damages attributable to that party's conduct, non-cooperating 
conspirators will remain jointly and severally liable for 
actual and treble damages for their misconduct. As a result, 
the full scope of antitrust remedies against non-participating 
parties will remain available to the government and private 
antitrust plaintiffs.
    Finally, H.R. 1086 clarifies the Tunney Act. The Tunney Act 
gives federal district courts some authority to review the 
merits of civil antitrust settlements with the United States 
before entering final consent decrees. Specifically, district 
courts in which the antitrust suit was brought must assess 
whether these decrees are ``in the public interest.'' H.R. 1086 
provides legislative guidance to district courts by listing 
specific factors to be considered during this analysis. In 
addition, this legislation facilitates the transmission of 
comments received during Tunney Act proceedings by allowing 
federal judges to order their publication by electronic or 
other means.
    On Wednesday, April 9, 2003, the Committee's Task Force on 
Antitrust held a legislative hearing on H.R. 1086. The 
following witnesses testified: the Honorable James M. Shannon, 
President, National Fire Protection Association; David Karmol, 
Vice President, Public Affairs, American National Standards 
Institute; Earl Everett, Director, Department of Labor, 
Division of Safety Engineering, State of Georgia.
    Legislative History.--H.R. 1086 was introduced by Chairman 
Sensenbrenner on March 5, 2003. Original cosponsors included: 
Ranking Member Conyers, Science Committee Chairman Boehlert, 
and Science Committee Ranking Member Hall. On May 22, 2003, 
H.R. 1086 was reported from the Committee on the Judiciary by 
voice vote (H.R. Rept. No.108-125). On June 4, 2003, the 
Judiciary Committee filed a supplemental report (H.R. Rept. 
No.108-125 Part II). On June 10, 2003, the House passed, as 
amended, H.R. 1086 by voice vote. On November 6, 2003, the 
Senate Judiciary Committee reported H.R. 1086 with an amendment 
in the nature of a substitute (without report). On April 2, 
2004, the Senate passed H.R. 1086 as amended by unanimous 
consent. H.R. 1086 was signed by the President on June 22, 
2004, and became Public Law No. 108-237.

       OVERSIGHT HEARING ACTIVITY BY THE TASK FORCE ON ANTITRUST

Antitrust Enforcement Agencies: The Antitrust Division of the 
        Department of Justice and Bureau of Competition of the Federal 
        Trade Commission, July 24, 2003 (Serial No. 55)

    On Thursday, July 24, 2003, the Committee's Task Force on 
Antitrust held an oversight hearing titled ``The Antitrust 
Enforcement Agencies: The Antitrust Division of the Department 
of Justice and the Bureau of Competition of the Federal Trade 
Commission.'' The hearing focused on antitrust enforcement 
activities, priorities, and recent developments at both 
agencies. The following witnesses testified: the Honorable R. 
Hewitt Pate, Assistant Attorney General, Antitrust Division; 
and the Honorable Timothy J. Muris, Chairman, Federal Trade 
Commission.
            Federal antitrust enforcement agencies
    The antitrust laws are enforced by both the FTC's Bureau of 
Competition and the Antitrust Division of the Department of 
Justice. In order to prevent duplication of effort, the two 
agencies seek to coordinate their activities before opening any 
case.
            Antitrust Division--Department of Justice
    Although the Department of Justice was the primary 
antitrust enforcement agency following passage of the Sherman 
Act, the Antitrust Division was not formally established until 
1933. The DOJ Antitrust Division prosecutes serious and willful 
violations of the antitrust laws by filing criminal suits that 
can lead to large fines and jail sentences. When criminal 
prosecution is not appropriate, the Division institutes a civil 
action seeking a court order forbidding future violations of 
the law and requiring steps to remedy the anticompetitive 
effects of past violations. The Division provides guidance to 
the business community, much of it jointly with the Federal 
Trade Commission. This guidance takes the form of new and 
subsequently revised and expanded joint statements of policy 
that relate to the health care industry, guidelines for the 
licensing of intellectual property, and guidelines on 
international operations, and other matters.
    Last year, the Antitrust Division had an annual budget of 
$133.13 million, and over 700 full time employees. For Fiscal 
Year 2004, the President has requested $141,898,000 for the 
Division. In Fiscal Year 2002, the Division conducted 107 
Sherman Act investigations, 129 Clayton Act merger 
investigations, received nearly 1,200 Hart-Scott-Rodino 
premerger notifications, initiated 178 criminal, civil, non-
merger, and merger inquiries, issued 573 civil investigation 
demands (CIDs), and filed 7 civil and 33 criminal antitrust 
cases.
            Federal Trade Commission
    Established in 1914, the Federal Trade Commission (FTC) 
enforces a variety of federal antitrust and consumer protection 
laws. The Commission seeks to ensure that the nation's markets 
function competitively and free of undue restrictions. The 
Commission also works to enhance the smooth operation of the 
marketplace by attempting to eliminate acts or practices that 
are unfair or deceptive. In general, the Commission's efforts 
are directed toward stopping actions that threaten consumers' 
opportunities to exercise informed choice. The FTC's antitrust 
arm, the Bureau of Competition, seeks to prevent business 
practices that restrain competition.
    The Bureau carries out this mission by investigating 
alleged law violations and, when appropriate, recommending 
formal enforcement action. If the Commission does decide to 
take action, the Bureau will help to implement that decision 
through litigation in federal court or before administrative 
law judges. The Bureau also serves as a research and policy 
resource on competition issues. Unlike the DOJ Antitrust 
Division, the FTC has no power to convene grand juries or 
initiate criminal investigations, but it can and does refer 
possible criminal violations to the Antitrust Division.
    The Bureau of Competition seeks to prevent anticompetitive 
mergers and other anticompetitive business practices in the 
marketplace. The Bureau reviews proposed mergers and other 
business practices for possible anticompetitive effects, and, 
when appropriate, recommends formal law enforcement action. The 
Bureau also serves as a research and policy resource on 
competition topics and provides guidance to business on 
complying with the antitrust laws. Over the last several years, 
the FTC has focused on segments of the economy that have the 
greatest impact on behalf of consumers, such as: prescription 
drugs and health care, energy, food, and utilities.
    The Commission's merger enforcement activity focuses 
primarily on mergers between direct competitors (``horizontal'' 
mergers), because these are most likely to harm consumers. The 
Commission also examines mergers involving firms at different 
levels of the same industry (``vertical'' mergers) and those 
involving firms that exert a procompetitive influence because 
of the possibility of their entering a market (``potential 
competition'' mergers). The Bureau also investigates antitrust 
complaints that do not involve mergers. These arrangements 
involve direct competitors (``horizontal'' restraints, e.g. 
price fixing, non-competition arrangements), as well as 
suppliers and customers (``vertical'' arrangements, e.g. tie-
ins), and attempts at monopolization.
    The FTC also organizes public workshops to examine emerging 
issues, such as competition and pricing on the Internet, the 
pricing of gasoline and other refined petroleum products, 
intellectual property and antitrust, health care and antitrust, 
and other current issues. For example, the FTC issued a 
comprehensive generic drug report in 2002, \13\ and conducted a 
series of 24 public meetings with the Antitrust Division 
concerning examining antitrust implications of intellectual 
property law.\14\
---------------------------------------------------------------------------
    \13\ See Generic Drug Entry Prior to Patent Expiration, an FTC 
Study, July, 2002, available at http://www.ftc.gov/os/2002/07/
genericdrugstudy.pdf.
    \14\ See Competition and Intellectual Property Law and Policy in 
the Knowledge-Based Economy, available at http://www.ftc.gov/opp/
intellect/.
---------------------------------------------------------------------------
    The FTC's Bureau of Competition employs over 500 employees. 
The President has requested $81,433,000 for FY 2004, a $3 
million increase over last year's request. Last year, the 
Commission received $173,000,000 in HSR filing fees. In Fiscal 
Year 2002, the FTC opened 59 nonmerger investigations. In 
Fiscal Year 2001, more than 4,900 merger notifications were 
filed during the year, the largest number ever. This continued 
a ten-year trend in which the number of filings more than 
tripled since 1991. The total value of reported transactions in 
FY 2000 exceeded $3 trillion--more than a tenfold increase over 
the past decade.
    Over the last several years, the agency successfully 
challenged the proposed acquisition of the loose leaf chewing 
tobacco business of National Tobacco Company, L.P., by Swedish 
Match North America Inc. This acquisition would have combined 
the nation's largest and third-largest makers and sellers of 
loose leaf chewing tobacco, giving Swedish Match approximately 
60 percent of sales and creating a market in which two firms 
would control 90 percent of sales. The parties dropped the 
transaction after the district court issued a preliminary 
injunction. The FTC also challenged Heinz's proposed 
acquisition of Beech-Nut, a merger of the second and third 
largest manufacturers of baby food, and the proposed 
acquisition of Winn Dixie supermarkets by Kroger Foods.
            Antitrust issues raised at the hearing
            Telecommunications and the triennial review
    On February 2, 2003, the Federal Communications Commission 
(FCC) adopted new rules for telecommunications network 
unbundling obligations for incumbent local phone carriers. 
Among other things, the FCC established a new impairment 
standard to help determine when competitive local exchange 
carriers (CLECs) are deprived access to an incumbent local 
exchange carrier (ILEC) platform and market-specific 
variations, including considerations of customer class, 
geography, and service. The Commission eliminated earlier 
obligations which permitted broadband line sharing via fiber 
loops. While the FCC's Triennial Review proceedings radically 
changed the competitive landscape of the telecommunications 
market, the Antitrust Division and FTC did not submit formal 
antitrust analyses to the FCC during its proceedings.
            Section 271
    Section 271 of the Telecommunications Act of 1996 requires 
the Antitrust Division to review competitive conditions in 
regional telephone markets before granting authority to 
Regional Bell Operating Companies (RBOCs) to compete in the 
long distance telephone market. These market- opening 
provisions have served to advance competition and are designed 
to ensure that RBOCs do not abuse their former monopoly status 
in an anticompetitive manner.
            Biennial Review (Media Ownership)
    On June 2, 2003, the FCC voted to substantially relax media 
ownership rules pursuant to its Biennial Review authority under 
the Telecommunications Act of 1996. These new rules represent 
the most comprehensive reform of media ownership limitations in 
the last several decades. The proposed media ownership rules 
would raise the present 35 percent national audience cap to 
allow the nation's four national television networks and other 
station owners to buy enough television stations to reach 45 
percent of the national audience. These rules also permit 
greater cross-ownership of television stations and newspaper 
outlets, but preserve existing limitations on consolidation of 
existing networks. Notwithstanding the antitrust implications 
of media ownership proceedings, the Telecommunications Act 
contains no formal statutory role for the Antitrust Division to 
examine the competitive aspects of Biennial Review proceedings.

                               Liability


H.R. 5--the ``Help Efficient, Accessible, Low-Cost, Timely Healthcare 
        (HEALTH) Act of 2003''

    Summary.--Medical professional liability insurance rates 
have soared, causing major insurers to either drop coverage or 
raise premiums to unaffordable levels. Doctors and other health 
care providers are being forced to abandon patients and 
practices, particularly in high-risk specialties such as 
emergency medicine, brain surgery, and obstetrics and 
gynecology. H.R. 5 is modeled after California's quarter-
century old health care litigation reforms. The reforms of 
California's Medical Injury Compensation Reform Act 
(``MICRA''), which are included in the HEALTH Act, include a 
$250,000 cap on noneconomic damages; limits on the contingency 
fees lawyers can charge; and authorization for defendants to 
introduce evidence showing the plaintiff received compensation 
for losses from outside sources (to prevent double recoveries). 
The HEALTH Act also includes provisions creating 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 safe harbor from punitive 
damages for products that meet applicable FDA safety 
requirements.
    Legislative History.--H.R. 5, the ``Help Efficient, 
Accessible, Low-cost Healthcare (HEALTH) Act of 2003,'' was 
introduced by Rep. James C. Greenwood on February 5, 2003. On 
March 4, 2003, the Committee held a hearing on H.R. 5 at which 
testimony was received from the following witnesses: Sherry 
Keller, Conyers, Georgia; Leanne Dyess, Member, Coalition for 
Affordable and Reliable Health Care; Donald J. Palmisano, MD, 
JD, President-elect, American Medical Association; and Lawrence 
E. Smarr, President, Physician Insurers Association of America. 
On March 5, 2003, the Committee met in open session and ordered 
favorably reported the bill H.R. 5 with an amendment by a 
recorded vote of 15 to 13, a quorum being present. (H. Rept. 
No. 108-32, Part I). On March 13, 2003, H.R. 5 passed the House 
by a vote of 229 to 196, and 1 voting present. No further 
action was taken on the bill.

H.R. 1036--the ``Protection of Lawful Commerce in Arms Act of 2003''

    Summary.--H.R. 1036, 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 criminally or unlawfully misuse their 
products. In the last several years, lawsuits have been filed 
against the firearms industry on theories of liability that 
would hold them liable for the actions of others who use their 
products in a criminal or unlawful manner.
    H.R. 1036 provides that a ``qualified civil liability 
action'' cannot be brought in any State or Federal court. 
``Qualified civil liability action'' is defined as a civil 
action brought by any person against a manufacturer or seller 
of firearms or ammunition for damages or injunctive relief 
resulting from the criminal or unlawful misuse of such 
products. However, a ``qualified civil liability act'' does not 
include: an action against a person who transfers a firearm or 
ammunition knowing that it will be used to commit a crime of 
violence or a drug trafficking crime, or a comparable or 
identical State felony law; an action brought against a seller 
for negligent entrustment or negligence per se; actions in 
which a manufacturer or seller of a qualified product violates 
a State or Federal statute applicable to sales or marketing 
when such violation was a proximate cause of the harm for which 
relief is sought; actions for breach of contract or warranty in 
connection with the purchase of a firearm or ammunition; and 
actions for damages resulting directly from a defect in design 
or manufacture of a firearm or ammunition.
    Legislative History.--H.R. 1036, the ``Protection of Lawful 
Commerce in Arms Act of 2003,'' was introduced by Rep. Cliff 
Stearns on February 27, 2003. On April 2, 2003, the 
Subcommittee on Commercial and Administrative Law held a 
hearing on H.R. 1036 at which testimony was received from the 
following witnesses: Carlton Chen, General Counsel, Colt 
Manufacturing Company, Inc.; Walter Olson, Senior Fellow, the 
Manhattan Institute; David Lemongello, Nutley, New Jersey; and 
Lawrence G. Keane, Vice President and General Counsel of the 
National Shooting Sport Foundation. On April 3, 2003, the 
Committee met in open session and ordered favorably reported 
the bill H.R. 1036 with amendment by a recorded vote of 21 to 
11, a quorum being present. (H. Rept. No. 108-59). On April 9, 
2003, H.R. 1036 passed the House by a vote of 285 to 140. No 
further action was taken on the bill.

H.R. 1084, the ``Volunteer Pilot Organization Protection Act''

    Summary.--H.R. 1084 amends the Volunteer Protection Act of 
1997 to include volunteer pilots and volunteer pilot 
organizations within the scope of its protections. Under 
present law, nonprofit volunteer pilot organizations and their 
pilots that provide life-saving medical flights without 
compensation, and institutions that refer patients to volunteer 
pilot organizations are presently subject to legal jeopardy.
    H.R. 1084 amends Sec. 4 of the VPA to ensure that volunteer 
pilot organizations and their employees, officers, and 
volunteer pilots acting within the scope of the mission of such 
organizations are explicitly covered by the VPA.
    Legislative History.--H.R. 1084 was introduced by Rep. Ed 
Schrock, Rep. Randy Forbes, and four other co-sponsors on March 
5, 2003 and referred to the Committee on the Judiciary. The 
fullCommittee on the Judiciary held one day of hearings on H.R. 
1084 and two related bills, on July 20, 2004. On September 8, 2004, the 
full Committee on the Judiciary met in open session and ordered 
favorably reported the bill H.R. 1084, with an amendment, by a voice 
vote. The Committee's report on H.R. 1084 was filed on September 13, 
2004 as H. Rept. No. 108-679 and the bill was placed on the Union 
Calendar. On September 14, 2004, Chairman Sensenbrenner moved that the 
House consider and pass H.R. 1084, as amended, under suspension of the 
rules. H.R. 1084 then passed the House under suspension of the rules on 
a roll call vote of 385-12. The bill was received in the Senate and 
placed on the legislative calendar, but H.R. 1084 had no further 
consideration by the Senate before the end of the 108th Congress.

H.R. 1787, the ``Good Samaritan Volunteer Firefighter Assistance Act of 
        2004''

    Summary.--H.R 1787 exempts a person who donates fire 
control or fire rescue equipment to a volunteer fire company 
(defined as at least 30% of members receiving little or no 
compensation) from liability for civil damages for injuries, 
damages, or losses proximately caused by the donated equipment. 
The bill creates two exceptions from the general protection if 
the donor is either the manufacturer of the equipment or 
engages in gross negligence or intentional misconduct.
    Legislative History.--H.R. 1787 was introduced by Rep. Mike 
Castle, and 25 other co-sponsors on April 11, 2003 and referred 
to the Committee on the Judiciary. The full Committee on the 
Judiciary held one day of hearings on H.R. 1787 and two related 
bills, on July 20, 2004. On September 8, 2004, the full 
Committee on the Judiciary met in open session and ordered 
favorably reported the bill H.R. 1787, with an amendment, by a 
voice vote. The Committee's report on H.R. 1787 as amended was 
filed on September 13, 2004 as H. Rept. No. 108-680 and the 
bill was placed on the Union Calendar. On September 14, 2004, 
Chairman Sensenbrenner moved that the House consider and pass 
H.R. 1787, as amended, under suspension of the rules. H.R. 1787 
then passed the House under suspension of the rules on a roll 
call vote of 397-3. The bill was received in the Senate and 
placed on the legislative calendar, but H.R. 1787 enjoyed no 
further consideration by the Senate before the end of the 108th 
Congress. The text of H.R. 1787 was also later added as a floor 
amendment to H.R. 10, the ``9/11 Recommendations Implementation 
Act'' by Rep. Castle. This provision was not included in the 
final House-Senate conferenced version of intelligence reform 
legislation, S. 2845.

H.R. 3369, the ``Non-profit Athletic Organization Protection Act''

    Summary.--H.R. 3369 Exemps non-profit athletic 
organizations and their officers and employees acting in their 
official capacity from liability for harm caused by an act or 
omission of such organization in the adoption of rules for 
sanctioned or approved athletic competitions or practices. The 
general protection preempts inconsistent State laws but makes 
exceptions for certain State laws requiring adherence to risk 
management and training procedures, State general respondeat 
superior laws, or State laws waiving liability limits in cases 
brought by an officer of the State or local government. The 
language mirrors provisions of the ``Volunteer Protection Act'' 
(``VPA'').\15\
---------------------------------------------------------------------------
    \15\ 42 U.S.C. Sec. 14501 et. seq. (2003)
---------------------------------------------------------------------------
    Legislative History.--H.R. 3369 was introduced by Rep. Mark 
Souder, and 4 other co-sponsors on October 21, 2003 and 
referred to the Committee on the Judiciary. The full Committee 
on the Judiciary held one day of hearings on H.R. 3369 and two 
related bills, on July 20, 2004. On September 8, 2004, the full 
Committee on the Judiciary met in open session and ordered 
favorably reported the bill H.R. 3369 without amendment, by a 
roll call vote of 14 to 7. The Committee's report on H.R. 3369 
was filed on September 13, 2004 as H. Rept. No. 108-681 and the 
bill was placed on the Union Calendar. On September 14, 2004 
Chairman Sensenbrenner moved that the House consider and pass 
H.R. 3369, as amended, under suspension of the rules. On the 
subsequent roll call vote H.R. 3369 received a majority of 
votes but failed to garner the necessary 2/3 vote required 
under a motion to suspend the rules by a roll call vote of 217-
176. The House took no further action on H.R. 3369 and the 
Senate failed to act on any companion legislation during the 
108th Congress.

H.R. 4280, the ``Help Efficient, Accessible, Low-cost, Timely 
        Healthcare (HEALTH) Act of 2004''

    Summary.--H.R. 4280 is almost identical to H.R. 5. See H.R. 
5 for further details.
    Legislative History.--On May 5, 2004, H.R. 4280 was 
introduced by Rep. James C. Greenwood. On May 5, 2004, H.R. 
4280 was referred to the Committee but no action was taken 
there. On May 12, 2004, H.R. 4280 passed the House by a vote of 
229 to 197.

                     Matters Held at Full Committee


H. Res. 287, Directing the Attorney General to transmit records related 
        to the use of Federal agency resources in tasks relating to 
        Members of the Texas Legislature.

    Summary.--Congressman Gene Green introduced H. Res. 287 on 
June 19, 2003. This resolution directed the Attorney General to 
transmit to the House of Representatives within 30 days after 
the adoption of this resolution all physical and electronic 
records and documents in his possession related to any use of 
agency resources, the theft of any records, and the use of U.S. 
congressional staff in any task or action involving or relating 
to Members of the Texas Legislature between May 11, 2003 and 
May 16, 2003, with the exception of any information that, upon 
disclosure, would harm U.S. national security interests.
    Legislative History.--On June 19, 2003, H. Res. 287 was 
referred to the House Judiciary Committee. The Committee held a 
markup on July 9, 2003 and ordered the resolution reported 
adversely as amended by a vote of 19 yeas to 15 nays. (H. Rept. 
No. 108-215)

H. Res. 499, Requesting the President and directing the Secretary of 
        State to transmit records relating to disclosures regarding 
        Valerie Plame

    Summary.--Congressman Rush D. Holt introduced H. Res. 499 
on January 21, 2004. This resolution requested the President 
and directed the Secretary of State, the Secretary of Defense, 
and the Attorney General to transmit to the House of 
Representatives no later than 14 days after the date of the 
adoption of this resolution documents in the possession of the 
President and those officials relating to the disclosure of the 
identity and employment of Ms. Valerie Plame.
    Legislative History.--H. Res. 499 was referred to the House 
Judiciary Committee on January 21,2004. On February 25, 2004, 
the Judiciary Committee held a markup and ordered the bill reported 
adversely by a vote of 17 yeas to 8 nays (H. Rept. No. 108-413). H. Res 
499 was also referred to the committees on Intelligence, International 
Relations, and Armed Services. Each committee filed a report in 
conjunction with the resolution.

H. Res. 662, Recognizing that Flag Day originated in Ozaukee County, 
        Wisconsin

    Summary.--H. Res. 662 declares that the House of 
Representatives: (1) urges the people of the United States to 
study, reflect on, and celebrate the importance of the flag of 
the United States; (2) encourages them to display the U.S. 
flag; and (3) recognizes that Flag Day originated in Ozaukee 
County, Wisconsin.
    Legislative History.--H. Res. 662 was introduced on June 3, 
2204 by Representative F. James Sensenbrenner, Jr. and had 4 
cosponsors. On June 14, 2004 the resolution was passed under 
the suspension of the rules by voice vote.

H. Res. 700, Directing the Attorney General to transmit to the House of 
        Representatives documents in the possession of the Attorney 
        General relating to prisoners, and detainees in Iraq, 
        Afghanistan, and Guatanamo Bay

    Summary.--Congressman John Conyers, Jr. introduced H. Res. 
700 on June 25, 2004. This resolution directed the Attorney 
General to transmit to the House of Representatives, not later 
than 14 days after the date of adoption of this resolution, all 
physical and electronic records and documents in his possession 
relating to the treatment of prisoners and detainees in Iraq, 
Afghanistan, and Guantanamo Bay.
    Legislative History.--H. Res. 700 was referred to the House 
Judiciary Committee on June 25, 2004. On July 21, 2004, the 
Judiciary Committee held a markup and ordered H. Res. 700 
reported adversely, as amended, by a vote of 15-12. (H. Rept. 
108-658).

H.R.10/S. 2845, the ``9/11 Commission Implementation Act of 2004''

    Summary.--House Speaker J. Dennis Hastert introduced H.R. 
10 on September 24, 2004. The terrorist attacks of September 
11, 2001 took the lives of more than 3,000 Americans and 
represented the most catastrophic terrorist attack on the 
United States in its history. The terrorists exploited 
deficiencies in America's law enforcement, immigration, and 
intelligence agencies, which limited the dissemination of 
information that might have protected the nation against the 
attack. In the wake of the attacks, the Committee has conducted 
39 hearings and markups to examine proposals to remedy 
legislative, procedural, and structural vulnerabilities to 
terrorism in our nation's immigration system. The Committee has 
also conducted 46 hearings and markups to strengthen federal 
law enforcement and antiterrorism efforts, and it has taken 
firm steps to ensure that security efforts do not transgress 
cherished civil liberties. Furthermore, the Committee has 
conducted rigorous oversight of antiterrorism reform efforts at 
the Departments of Justice and Homeland Security, and enacted 
antiterrorism legislation including the USA PATRIOT Act and the 
Homeland Security Act.
    On November 27, 2002, President Bush signed legislation 
creating the National Commission on Terrorist Attacks Upon the 
United States (``9/11 Commission'' or ``Commission''). The 
Commission's principal responsibility was to examine and report 
on the facts and causes relating to the terrorist attacks of 
September 11, 2001, and to suggest measures to better secure 
the nation. On July 22, 2004, the Commission delivered its 
unanimous recommendations to Congress. During August and 
September, 2004, a variety of congressional committees held 
hearings on the recommendations. On September 29, 2004, Speaker 
Hastert introduced H.R. 10, the ``9/11 Recommendations 
Implementation Act.'' The legislation consisted of five titles 
entitled: Reform of the Intelligence Community; Terrorism 
Prevention and Prosecution; Border Security and Terrorist 
Travel; International Cooperation and Coordination; and 
Government Restructuring. Several provisions within the 
legislation fall within the jurisdiction of the Committee on 
the Judiciary. The Subcommittee on Crime, Terrorism, and 
Homeland Security dealt primarily with the law enforcement 
provisions contained in Title II of H.R. 10. (This became Title 
VI in the conference report of S. 2845). H.R. 10 contained 
provisions that would have enhanced penalties for terrorism 
hoaxes, increased penalties for supporting, financing, or 
cooperating with terrorist organizations, and expanded the 
scope of laws that prohibit the shipment or use of weapons of 
mass destruction. Additional sections would have provided 
additional funding to combat terrorist financing and would have 
enhanced the use of biometric technology to reduce terrorist 
threats against air travel. At the Committee's markup of H.R. 
10, amendments were adopted requiring that threat be the 
primary determining factor in distributing homeland security 
grants (Rep. Weiner), reauthorizing COPS and allowing COPS 
funds to be used to hire ``terrorism cops'' (Rep. Weiner), and 
authorizing funding for non-profits threatened by terrorism 
(Rep. Nadler and Rep. Weiner).)
    During the conference on H.R. 10 and the Senate companion 
bill, S. 2845, certain law enforcement and immigration 
provisions were removed. The final conference report contains, 
among other things, the following sections that were considered 
by the Subcommittee: the improvement of the FBI's intelligence 
capabilities; individual terrorists as agents of foreign 
powers; money laundering and terrorist financing; criminal 
history background checks; grand jury information sharing; 
providing material support to terrorism; the ``Stop Terrorist 
and Military Hoaxes Act of 2004;'' the ``Weapons of Mass 
Destruction Prohibition Improvement Act of 2004;'' the 
``Prevention of Terrorist Access to Destructive Weapons Act of 
2004;'' and the pretrial detention of terrorists.
    H.R. 10 also included nationally applicable ``mutual aid 
provisions'' that would enable party states to enter into 
mutual aid agreements to allow their first responders to carry 
with them into other states the liability regime of their home 
states. Other provisions in H.R. 10 allow states nationwide to 
enter into ``litigation management agreements'' in which they 
could agree that, in the event first responders from several 
states respond to a terrorist attack in another state, they 
could decide on the liability regime that would apply in that 
circumstance to claims brought against their first responders, 
including putting any such claims in federal court, a ban on 
punitive damages, and a collateral source offset rule.

Summary of immigration provisions of bill as passed the house.

    H.R. 10 as passed by the House contained the following 
immigration provisions:
    1. Section 3001. Verification of Returning Citizens. 
Regulations implementing the Immigration and Nationality Act 
allow U.S. citizens to reenter the United States from countries 
in the Western Hemisphere (other than Cuba) without passports. 
The bill would have required that by October 2006 all U.S. 
citizens returning from the Western Hemisphere other than 
Canada and Mexico must present U.S. passports. In the interim, 
U.S. citizens would have to present a document designated by 
the Secretary of Homeland Security. For U.S. citizens returning 
from Canada and Mexico, the Secretary of Homeland Security 
would have to designate documents that are sufficiently secure.
    2. Section 3002. Documents Required by Aliens from 
Contiguous Countries. Foreign visitors usually need passports 
or U.S. visas or border crossing cards to enter the United 
States. However, the Immigration and Nationality Act allows the 
Administration to waive this requirement for nationals of 
contiguous countries--which it has done for Canadians. 
Therefore, U.S. inspectors at northern ports-of-entry can allow 
persons identifying themselves as Canadians to enter the U.S. 
without having to show any documents whatsoever. The bill would 
require that by the beginning of 2007, aliens claiming to be 
Canadian who seek to enter the U.S. must present a passport or 
other secure identification.
    3. Section 3003. Strengthening the Border Patrol. The bill 
would have authorized an increase in the Border Patrol of 2,000 
agents a year for each of the next five years.
    4. Section 3004. Increase in Immigration Enforcement 
Investigators. The Bureau of Immigration and Customs 
Enforcement only has about 2,000 investigators nationwide. The 
bill would increase the number of ICE investigators enforcing 
our immigration laws by 800 a year for each of the next five 
years. One half of the new investigators would have been 
dedicated to enforcing employer sanctions and removing illegal 
aliens from the workplace.
    5. Section 3005. Increase in Detention Bed Space. The bill 
would have increased detention bed space for immigration 
detention and removal operations by not less than 2,500 beds in 
2006 and 2007.
    6. Section 3006. Prevention of Improper Use of Foreign 
Identification Documents. The bill would have barred all 
federal employees from accepting identification cards presented 
by aliens other than a document issued by the Attorney General 
or the Secretary of Homeland Security under the authority of 
the immigration laws, a domestically-issued document that the 
Secretary of Homeland Security designates as reliable and that 
cannot be issued to an alien unlawfully present in the U.S., or 
an unexpired foreign passport.
    7. Section 3007. Expedited Removal for Illegal Aliens. 
Under expedited removal, a DHS officer at a port-of-entry can 
immediately return an alien lacking proper documents to his or 
her country of origin unless the alien asks for asylum and can 
establish a ``credible fear'' of persecution. The 
Administration has the authority to utilize expedited removal 
in the case of any alien who had entered the U.S. illegally and 
had not been present here for two years. Until recently, the 
INS and DHS never made use of this power.
    The bill would have required DHS to utilize expedited 
removal in the case of all aliens who have entered the U.S. 
illegally and have not been present here for five years.
    8. Section 3008. Limit Asylum Abuse by Terrorists. The bill 
would have overturned certain precedents of the Ninth Circuit. 
The bill would have provided a nonexhaustive list of factors 
that an immigration judge could consider in assessing 
credibility, such as the demeanor, candor, or responsiveness of 
the applicant or witness, the consistency between the 
applicant's or witness's written and oral statements, the 
internal consistency of each such statement, and any 
inaccuracies or falsehoods in such statements. Also, aliens who 
allege they would be persecuted because of terrorist ties would 
no longer have been presumed to fear persecution on account of 
political opinion. Rather, such applicants would have had to 
establish that race, religion, nationality, membership in a 
particular social group, or political opinion was or will be a 
central reason for their claimed persecution. Finally, the bill 
would have reasserted that the burden of proof in an asylum 
case is on the applicant and that the testimony of the 
applicant may be sufficient to sustain such burden without 
corroboration, but only if it is credible, is persuasive, and 
refers to specific facts that demonstrate that the applicant is 
a refugee.
    Where it is reasonable that an applicant would present 
corroborating evidence (without having to leave the U.S.), such 
evidence would have had to be provided unless a reasonable 
explanation is given as to why such information is not 
provided.
    9. Section 3009. Revocation of Visas. The State Department 
may revoke visas after they have been issued. Revocation is 
problematic, however, when the alien has entered the U.S. by 
the time the visa has been revoked because there is no 
provision that allows DHS to remove an alien whose visa has 
been revoked. This policy is a particular problem in terrorism 
cases because information linking an alien to terrorism is 
often classified, and classified information cannot be used to 
prove deportability. The bill would have allowed the government 
to deport a nonimmigrant alien whose visa has been revoked. The 
section will prevent an alien whose visa has been revoked to 
challenge the underlying revocation in court, where the 
government might again be placed in a position of either 
exposing its sources or permitting a potentially dangerous 
alien to remain in the United States.
    10. Section 3010. Streamlined Removal Process. For criminal 
aliens and aliens who are not permanent residents, review of 
immigration orders would have been in the circuit court and the 
scope of review would have been limited to: (1) whether the 
individual was an alien; (2) whether he was deportable under 
the INA; (3) whether he was ordered removed under the INA; and 
(4) whether he met the criteria for withholding of removal or 
Torture Convention protection.
    11. Sections 3031-32. Detention of Terrorists and Criminal 
Aliens. The Convention Against Torture prohibits the return of 
an alien to a country where there are substantial grounds for 
believing that he would be in danger of being tortured. The 
bill would have provided that aliens who were barred from 
receiving asylum and who were ordered removed could be detained 
pending removal, in the Secretary of Homeland Security's 
nonreviewable discretion. In making this determination, the 
Secretary should have considered the length of sentence and 
severity of the offense, the loss and injury to the victim and 
the future risk the alien poses to the community. To the extent 
that a federal judge found this provision unconstitutional and 
ordered the release of any such detained alien, the Secretary 
of State was required to seek assurances from the home 
government that the alien will not be tortured upon 
deportation.
    12. Section 3033. Removal of Aliens. The bill would have 
allowed DHS to remove an alien to a country of which the alien 
was a citizen or national unless the country prevented the 
alien from entering.
    13. Sections 3034-35. Inadmissibility and Deportability of 
Aliens Due to Terrorist-Related Activities. Not all terrorism-
related grounds of inadmissibility are also grounds of 
deportability. This means that some terrorists and their 
supporters can be kept out of the United States, but as soon as 
they set foot in the U.S. on tourist visas, we cannot deport 
them for the very same offenses. The bill would have made 
aliens deportable for these offenses to the same extent that 
they would be inadmissible to the United States. Under current 
law, if an alien provides funding or other material support to 
a terrorist organization that has not yet been designated by 
the Secretary of State, the alien can escape deportation if he 
can show that he did not know that the funds or support would 
further the organization's terrorist activity, i.e., his 
donation did not immediately go to buying explosives. The bill 
would have stated that an alien who provided funds or other 
material support to a terrorist organization would be 
deportable unless he did not know, and should not reasonably 
have known, that the organization was a terrorist organization.
    14. Section 3041. Bringing in and Harboring Certain Aliens. 
The bill would have increased criminal penalties for alien 
smuggling.
    15. Section 3082. Expanded Pre-Inspection at Foreign 
Airports. Currently, DHS inspects passengers who are traveling 
to the U.S. at 14 foreign airports. The bill would have 
expanded this program to include up to an additional 25 
airports. Section 3082 stated that the selection criteria for 
airports should also have included the objective of preventing 
the entry of potential terrorists.
    16. Section 3083. Immigration Security Initiative. The 
Immigration Security Initiative is a DHS-operated program that 
assists airline personnel at foreign airports in identifying 
fraudulent travel documents. The program's objective is to 
identify passengers, including potential terrorists, who seek 
to enter the U.S. using fraudulent documents, prior to these 
passengers being allowed to board flights for the United 
States. Currently, the program is in place in only two foreign 
airports. This section would have expanded the program to at 
least 50 foreign airports.
    17. Section 3084. Responsibilities and Functions of 
Consular Officers. The bill would have improved the operation 
of U.S. consular offices in preventing the entry of terrorists. 
First, it would have increased the number of consular officers 
by 150 per year for fiscal years 2006 to 2009. Second, it would 
have placed limitations on the use of foreign nationals to 
screen nonimmigrant visa applicants. Third, it would have 
required that the training program for consular officers 
include training in detecting fraudulent documents. Lastly, 
this section would have required the Secretary of State to 
place antifraud specialists in the one hundred posts that have 
the greatest frequency of presentation of fraudulent documents.
    18. Section 3090. Biometric Entry and Exit Data System. 
This section called on the Secretary of Homeland Security to 
develop a plan to accelerate the full implementation of the 
requirement of an automated entry and exit data system at U.S. 
ports of entry. The section also called for the Secretary of 
DHS to implement a plan to expedite the processing of 
registered travelers at ports of entry.
    19. Sections 3121-26. Treatment of Aliens Who Commit Acts 
of Torture, Extrajudicial Killings, or Other Atrocities Abroad. 
The bill would have made aliens who have participated in 
genocide or who have committed torture or extrajudicial 
killings inadmissible and deportable.
    20. Section 3131. Security Barriers. In 1996, Congress 
required the building of a 14 mile border fence in San Diego. 
The bill would have required DHS to waive certain federal laws, 
including environmental and Native American sovereignty laws, 
necessary to ensure construction of the fence.
    21. Section 4051. Designation of Foreign Terrorist 
Organizations. The Secretary of State is authorized in 
consultation with the Treasury Secretary and the Attorney 
General to designate an entity as a ``foreign terrorist 
organization''. Designations last for two years, and may be 
renewed by the Secretary. An organization placed on the FTO 
list is subject to financial and immigration sanctions, 
including the blocking of assets, the prosecution of supporters 
who provide funds, refusal of visas, and deportation of 
members. An FTO may seek judicial review of the designation. 
Designations require a detailed administrative record, often 
based on classified information. Each redesignation requires 
interagency review and preparation of a voluminous 
administrative record that can take months. Further, certain 
FTOs reconstitute themselves and change their names often, and 
that current law requires a burdensome redesignation to reflect 
these changes. It would have permitted a designation to remain 
in effect until revoked by Congress or the Secretary, or set 
aside by the D.C. Circuit. It would have provided a specified 
procedure by which groups could petition the Secretary for 
review every two years, as well as with a simplified procedural 
requirement by which the Secretary would review each group 
every five years.

Summary of immigration provisions of bill as enacted in the conference 
        report (H. Conf. Rept. 108-796)

    The following immigration provisions were included in the 
final conference report that became law:
    1. Sections 5101-05. Advanced Technology Northern Border 
Security Pilot Program. The Secretary of Homeland Security may 
carry out a pilot program to test various advanced technologies 
that would improve border security between ports of entry along 
the northern border of the U.S.
    2. Section 5201. Border Surveillance. The Secretary of 
Homeland Security shall submit a comprehensive plan for the 
systematic surveillance of the southwest border by remotely 
piloted aircraft.
    3. Section 5202. Increase in Border Patrol Agents. The 
conference report provides a numerical increase equal to that 
contained in the bill as passed the House, with an additional 
provision that an additional number of agents shall be assigned 
to the northern border equal to not less than 20% of the net 
increase in agents in each fiscal year.
    4. Section 5203. Increase in ICE Investigators. The 
conference report provides a numerical increase equal to that 
contained in the bill as passed the House, but no number of 
agents is required to enforce employer sanctions.
    5. Section 5204. Increase in Detention Beds. The conference 
report increases the number of DHS immigration detention beds 
by not less than 8,000 in each of fiscal years 2006 through 
2010 above the number for which funds were allotted for the 
preceding fiscal years.
    6. Sections 5301-03. In Person Interviews of Visa 
Applicants. The conference report requires every alien who is 
seeking a nonimmigrant visa to be interviewed by a consular 
officer (with certain exceptions and available waivers).
    7. Section 5304. Revocation of Visas. The conference report 
allows aliens to seek judicial review of a revocation in the 
context of a removal proceeding where such revocation provides 
the sole ground of removal.
    8. Section 5401. Criminal Penalties for Alien Smuggling. 
This provision is similar to the House-passed version.
    9. Section 5402. Deportation of Aliens Who Have Received 
Military Type Training from Terrorist Organizations. This 
provision, creating a ground of deportability for aliens who 
have received military-type training from or on behalf of 
terrorist organizations designated as such by the federal 
government, is a more limited version of section 3034 of the 
House-passed bill.
    Section 5403. Study and Report on Terrorists in the Asylum 
System. The GAO shall conduct a study to evaluate the extent to 
which weaknesses in the U.S. asylum system have been or could 
be exploited by terrorists.
    10. Sections 5501-06. Treatment of Aliens who Commit Acts 
of Torture, Extrajudicial Killings, or Other Atrocities Abroad. 
These provisions are identical to those in the House-passed 
bill.
    Section 7118. Designation of Foreign Terrorist 
Organizations. These provisions are similar to those in the 
House-passed bill.
    11. Section 7203. Responsibilities and Functions of 
Consular Officers. The provision of the conference report is 
similar to the provision of the House-passed bill. It also 
provides that all immigrant visa applications shall be reviewed 
and adjudicated by a consular officer and that anti-fraud 
specialists be placed at those diplomatic and consular posts at 
which visas are issued that experience the greatest frequency 
of presentation of fraudulent documents by visa applicants (as 
opposed to a set number of posts).
    12. Section 7206. Immigration Security Initiative. The 
provision is identical to that of the House-passed bill.
    13. Section 7207. Certification Regarding Technology for 
Visa Waiver Participants. No later than October 26, 2006, the 
Secretary of State shall certify which visa waiver program 
countries are developing a program to issue to persons seeking 
to enter such countries pursuant to a visa, a machine readable 
visa that is tamper-resistant and contains biometric features 
verifiable at its ports of entry.
    14. Section 7208. Biometric Entry and Exit Data System. 
This provision is similar to the provision in the House-passed 
bill.
    15. Section 7209. Travel Documents. This provision is 
similar to Sec. Sec. 3001 and 3002 of the House-passed bill. 
The Secretary of State shall develop and implement a plan to 
require biometic passports or other identification at least as 
secure, for all travel into the U.S. by U.S. citizens, to be 
implemented no later than January 2008, and to develop and 
implement a plan to require biometic passports or other 
identification at least as secure, for all travel into the U.S. 
by Canadians, to be implemented no later than January 2008. In 
addition, the provision bars a resumption of the transit 
without visa program until the Secretary of State completely 
implements a security plan to fully ensure secure transit 
passage areas to prevent aliens proceeding in immediate and 
continuous transit through the U.S. from illegally entering the 
U.S.
    16. Section 7210. Exchange of Terrorist Information and 
Increased Preinspection at Foreign Airports. As to 
preinspection, the provision is similar to that of the House-
passed bill. It requires the establishment of preinspection 
stations in at least 25 additional foreign airports.
    17. Section 7220. Identification Standards. The provision 
provides that within six months of enactment, the Secretary of 
Homeland Security shall propose minimum standards for 
identification documents required of domestic commercial 
airline passengers for boarding purposes, and may propose 
modifications in the future. Any proposed standards must be 
approved by both the House and the Senate under specified 
expedited procedures before they can go into effect. If the 
proposed standards are not approved by Congress, then within 
one year after rejection by a vote of either House of Congress, 
adult domestic airline passengers seeking to board an aircraft 
shall present (1) a valid, unexpired passport, (2) a 
domestically issued document that the Secretary of Homeland 
Security designates as reliable for identification purposes, 
(3) any immigration document issued by the Attorney General or 
the Secretary of Homeland Security, or (4) a document issued by 
the country of nationality of any alien not required to possess 
a passport for admission to the U.S. that the Secretary of 
Homeland Security designates as reliable for identification 
purposes.

Privacy Provisions

    The 9/11 Commission recognized that enhanced law 
enforcement and antiterrorism efforts should be balanced. In 
its final report, the Commission cautioned that while 
protecting our homeland, ``Americans should be mindful of 
threats to vital personal and civil liberties.'' \16\ It 
continued: ``This balancing is no easy task, but we must 
constantly strive to keep it right. This shift of power and 
authority to the government calls for an enhanced system of 
checks and balances to protect the precious liberties that are 
vital to our way of life.'' \17\
---------------------------------------------------------------------------
    \16\ The 9/11 Commission Report--Final Report of the National 
Commission on Terrorist Attacks Upon the United States, at 394 (2004).
    \17\ Id.
---------------------------------------------------------------------------
    To this end, the Commission made the following three 
recommendations intended to protect our citizens' privacy:
    As the President determines the guidelines for information 
sharing among government agencies and by those agencies with 
the private sector, he should safeguard the privacy of 
individuals about whom information is shared.\18\
---------------------------------------------------------------------------
    \18\ Id.
---------------------------------------------------------------------------
    The burden of proof for retaining a particular governmental 
power should be on the executive, to explain (a) that the power 
actually materially enhances security and (b) that there is 
adequate supervision of the executive's use of the powers to 
ensure protection of civil liberties. If the power is granted, 
there must be adequate guidelines and oversight to properly 
confine its use.\19\
---------------------------------------------------------------------------
    \19\ Id. at 394-395.
---------------------------------------------------------------------------
    At this time of increased and consolidated government 
authority, there should be a board within the executive branch 
to oversee adherence to the guidelines we recommend and the 
commitment the government makes to defend our civil 
liberties.\20\
---------------------------------------------------------------------------
    \20\ Id. at 395.
---------------------------------------------------------------------------
    S. 2845 contains two privacy-related provisions. Section 
1061 of the bill requires the appointment of a Privacy and 
Civil Liberties Oversight Board within the Executive Office of 
the President. In addition, Sec. 1062 sets forth a sense of the 
Congress that an executive department or agency with law 
enforcement or antiterrorism functions should designate a 
privacy and civil liberties officer.
    Legislative History.--H.R. 10 was favorably reported out of 
the House Judiciary Committee on September 29, 2004, and 
subsequently passed the House by a vote of 282-134. The Senate 
passed similar legislation, S. 2845, the ``National 
Intelligence Reform Act of 2004,'' by a vote of 96-2 on October 
6, 2004. Conferees were appointed, and the conference report 
was filed on December 7, 2004. That same day, the House agreed 
to the conference report by a vote of 336-75. On December 8, 
2004, the Senate agreed to the report by a vote of 89-2. The 
bill was signed by the President on December 17, 2004, and 
became Public Law No. 108-458.

H.R. 16, A bill to authorize salary adjustments for Justices and judges 
        of the United States for fiscal year 2004

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 16 addresses the statutory mandate of 
Sec. 140 of Pub. L. No. 97-92 by specifically authorizing a 
cost-of-living adjustment (COLA) for federal judges in advance 
of, or concurrent with, an appropriation.
    Legislative History.--On January 7, 2003, H.R. 16 was 
referred to the House Committee on the Judiciary. The following 
day the House passed H.R. 16, without amendment, by voice vote. 
On January 30, 2003, the Senate passed H.R. 16, without 
amendment, by unanimous consent. On February 13, 2003, the 
President signed the bill into law. (Public Law No. 108-6)

H.R. 534, the ``Human Cloning Prohibition Act of 2003''

    Summary.--Congressman Dave Weldon introduced H.R. 534 on 
February 5, 2003. H.R. 534, the ``Human Cloning Prohibition Act 
of 2003,'' amended 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 convicted of 
violating this prohibition on human cloning would be subject to 
a fine or imprisonment of not more than 10 years, or both. In 
addition, H.R. 534 provided civil penalties of not less than 
$1,000,000 for any person who received a pecuniary gain from 
cloning humans. H.R. 534 did not prohibit the use of cloning 
technology to produce molecules, DNA, cells, tissues, organs, 
plants, or animals other than humans.
    Legislative History.--H.R. 534 was referred to the House 
Judiciary Committee on February 5, 2003. On February 12, 2003, 
the Committee marked up H.R. 534, ordering the bill reported to 
the House, without amendment, by a vote of 19 yeas to 12 nays. 
(H. Rept. No. 108-18) On February 27, 2003, the House passed 
H.R. 534, as amended, by a vote of 241 to 155. There was no 
further action taken during the 108th Congress.

H.R. 1115, the ``Class Action Fairness Act of 2003''

    Summary.--H.R. 1115: (1) allows Federal courts to hear 
large interstate class actions; and (2) establishes new rules 
for consumers against abusive class action settlements.
    The class action device is one of the most important 
procedural mechanisms within our civil justice system. It can 
promote efficiency by allowing plaintiffs with similar claims 
to adjudicate their cases in one proceeding. The device also 
enables the adjudication of claims when a large number of 
people suffer small harms, claims that might otherwise go 
unredressed because the expense of individual litigation would 
far exceed any possible benefit.
    H.R. 1115 has three core components: First, it 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 (i.e., matters in which all plaintiffs are 
citizens of jurisdictions different from all defendants, and 
each claimant has an amount in controversy in excess of 
$75,000). H.R. 1115 would change the diversity jurisdiction 
requirement for class actions, generally permitting access to 
Federal courts in class actions wherethere 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.
    Second, H.R. 1115 implements a ``Consumer Class Action Bill 
of Rights.'' The bill of rights would: (1) enhance judicial 
scrutiny of coupon settlements; (2) provide judicial scrutiny 
over settlements that would result in a net monetary loss to 
plaintiffs; (3) prohibit unjustified payments, also known as 
bounties, to class representatives; and (4) protect out-of-
State class members against settlements that favor class 
members based upon geographic proximity to the courthouse.
    Third, H.R. 1115, as amended, immediately puts into effect 
upon enactment of the bill several critical amendments to Rule 
23 of the Federal Rules of Civil Procedure proposed by the 
Supreme Court that are intended to ensure the clarity of class 
notice and prevent abuse of the class action device.
    Legislative History.--H.R. 1115 was introduced by Rep. Bob 
Goodlatte, Chairman F. James Sensenbrenner, Jr. and 10 other 
co-sponsors on March 6, 2003 and referred to the House 
Judiciary Committee. The full Committee held a hearing on H.R. 
1115 on May 15, 2003. On May 21, 2003, the Committee favorably 
reported the bill H.R. 1115, as amended, by a vote of 20 to14. 
and the Committee report on the legislation was filed on June 
9, 2004 as H. Rept. No. 108-144. On June 12, 2004, the full 
House considered H.R. 1115 as reported by the Committee under a 
Rule (H. Res. 269) along with amendments. Chairman 
Sensenbrenner, the manager of the legislation, and Rep. Boucher 
offered one amendment on the floor that was accepted, other 
floor amendments were rejected. The House then passed H.R. 1115 
by a roll call vote of 253-170. H.R. 1115 was received in the 
Senate but was not acted upon by the Senate. Several successive 
versions of companion legislation were introduced in the Senate 
by Senator Grassley (S. 274, S. 1751 and S. 2062) and the first 
version was reported out of the Senate Judiciary Committee. The 
Senate attempted to invoke cloture to proceed to S. 1751 on 
October 22, 2003 which failed by a vote of 59-39. The Senate 
attempted to invoke cloture to proceed to S. 2062 on July 8, 
2004 which failed by a vote of 44-43. The Senate took no 
further action on any version of class action reform 
legislation in the 108th Congress.

H.R. 1437, To improve the United States Code

    Summary.--The purpose of H.R. 1437 is to improve the United 
States Code by making necessary technical changes without 
making any substantive change in existing law. Public Law No. 
107-217, which was enacted on August 21, 2002, revised, 
codified, and enacted 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.'' This bill makes technical 
changes to Public Law No. 107-217 and related provisions.
    Legislative History.--On March 25, 2003 Chairman F. James 
Sensenbrenner, Jr, introduced H.R. 1437. On May 7, 2003 the 
Committee reported H.R. 1437 by voice vote and, on May 15, 
2003, it filed H.R. Rept. No. 108-103. On July 21, 2003, the 
bill was passed the House under the suspension of the rules and 
referred to the Senate Committee on the Judiciary. On November 
21, 2003 the Senate passed H.R. 1437 by unanimous consent. The 
President signed the bill into law on December 15, 2003. 
(Public Law No. 108-178)

H.R. 1904, the ``Healthy Forests Restoration Act of 2003''

    Summary.--The purpose of H.R. 1904, the ``Healthy Forests 
Restoration Act of 2003,'' is to: (1) allow the Secretary of 
Agriculture and the Secretary of the Interior to implement 
hazardous fuel reduction projects on National Forest System 
lands designated protect communities and watersheds from 
catastrophic wildfire; and (2) promote other efforts regarding 
watersheds and address threats to forest and range land health, 
such as wildfire and insect infestation. The following sections 
of the legislation were among those within the jurisdiction of 
the Committee on the Judiciary.
    Sec. 104. Environmental Analysis: Pursuant to Sec. 104(a) 
and (b), the Secretary concerned must plan and conduct 
authorized hazardous fuels reduction projects in accordance 
with the National Environmental Policy Act of 1969, but she is 
not required to develop any alternative to the proposed agency 
action in the environmental assessment or impact statement 
which is otherwise required by the Act. Subsections (c) through 
(e) enumerate public notice and meeting requirements imposed on 
the concerned Secretary that are designed to encourage public 
participation and to facilitate collaboration among governments 
and interested parties in the development of authorized 
hazardous fuels reduction projects. Subsection (f) requires the 
Secretary concerned to sign a decision document for each 
authorized hazardous fuels reduction project while subsection 
(g) states that the Secretary monitor implementation of each 
project.
    Sec. 105. Special Forest Service Administrative Review 
Process: Subsection (a) states that the Secretary of 
Agriculture, 90 days after the date of enactment, must issue 
final regulations to establish an administrative process that 
will serve as the sole means by which a person can seek 
administrative redress regarding an authorized hazardous fuels 
reduction project. Subsection (b) creates standing for a person 
seeking such redress by requiring that she must have submitted 
substantive and specific written comments during the 
preparation stage of the project. Subsection (c) makes clear 
that the Appeals Reform Act of 1993 pertaining to Forest 
Service administrative appeals does not apply for those 
projects contemplated by H.R. 1904.
    Sec. 106. Special Requirements Regarding Judicial Review of 
Authorized Hazardous Fuels Reduction Projects: Subsection (a) 
mandates that any legal challenge to an authorized hazardous 
fuels reduction project must be filed before the end of the 15-
day period beginning on the date on which the Secretary 
concerned publishes in the local paper of record notice of the 
final agency action on the matter.
    This time limit supersedes any other filing deadline under 
law and may not be waived by a district court. Subsection (b) 
states that any preliminary injunction granted regarding an 
authorized hazardous fuels reduction project shall be limited 
to 45 days. Pursuant to subsection (c), a court may renew a 
preliminary injunction, taking into account congressional 
intent that the court expedite, to the maximum extent 
practicable, the ongoing legal proceedings with the goal of 
rendering a final determination on jurisdiction, and if 
jurisdiction exists, a final determination on the merits, 
within 100 days from the date the proceeding is filed.
    Finally, parties are required to submit relevant updates on 
any changes that may have occurred during the period of 
injunction to a court that is considering a request to renew 
the injunction. If the injunction is renewed, the Secretary 
concerned must notify the House Committee on Resourcesand the 
House Committee on Agriculture as well as the Senate Committee on 
Energy and Natural Resources and the Senate Committee on Agriculture, 
Nutrition, and Forestry.
    Sec. 107. Standard for Injunctive Relief for Agency Action 
to Restore Fire-Adapted Forest or Rangeland Ecosystems: Section 
107 states that when an aggrieved person seeks a prohibitory or 
mandatory injunction against agency action governing 
restoration of a fire-adapted forest or rangeland ecosystem, 
including an authorized fuels reduction project, the court 
reviewing the request must: (1) consider the public interest in 
avoiding long-term harm to the ecosystem; and (2) give 
deference to any agency finding that the balance of harm and 
the public interest in avoiding the short-term effects of the 
agency action is outweighed by the public interest in avoiding 
long-term harm to the ecosystem.
    Sec. 108. Rules of Construction: Unless otherwise indicated 
in Title I, and per Sec. 104 of the bill, the planning and 
conducting of authorized hazardous fuels reduction projects 
must be done in accordance with the National Environmental 
Policy Act of 1969. Subsection (a) states that nothing in Title 
I shall be construed to affect or bias a Secretary's use of 
other statutory or administrative authorities to plan or 
conduct a hazardous fuels reduction project on federal land. 
There is ongoing litigation within the 9th Circuit regarding 
the ``Roadless Area Conservation Rule'' and the potential 
prohibition of road construction in approximately one-third of 
the National Forest System. Subsection (b) states that nothing 
in Title I of the bill shall prejudice or otherwise affect the 
consideration or disposition of this action.
    Legislative History.--H.R. 1904 was introduced by 
Representative Scott McInnis on May 1, 2003. After being 
reported by the House Committee on Resources on May 9, 2003, 
H.R. 1904 was referred to the Committee on the Judiciary for 
consideration of provisions within its jurisdiction. On May 16, 
2003, the Committee on the Judiciary reported H.R. 1904 by a 
vote of 18-13 (H.R. Rept. No. 108-96, Part II). On May 20, 
2003, H.R. 1904 passed the House with an amendment by a vote of 
256-170. On October 30, 2003, the legislation passed the Senate 
with an amendment by a vote of 80-14. On November 21, 2003, the 
House passed the conference report and the Senate did the same 
by unanimous consent on the same day. President Bush signed the 
legislation on December 3, 2003, and it became Public Law 
No.108-148.

H.R. 2738, the ``United States-Chile Free Trade Agreement''

    Summary.--On June 6, 2003, the United States and Chile 
entered into a Free Trade Agreement (FTA). H.R. 2738 approves 
the U.S.-Chile FTA submitted to Congress on July 15, 2003 and 
makes changes to United States law necessary to ensure 
compliance with the agreement. The legislation contains four 
titles: Title I, ``Approval of and General Provisions Relating 
to the Agreement;'' Title II, ``Customs Provisions;'' Title 
III, ``Relief from Imports;'' and Title IV, ``Temporary Entry 
of Business Persons.'' The Committee's consideration of H.R. 
2738 was limited to Title IV of the legislation. Title IV 
establishes 1,400 annual professional worker visas for Chilean 
citizens to enter the United States on a temporary basis.
    H.R. 2738 was considered pursuant to the ``Bipartisan Trade 
Promotion Authority Act of 2002'' \21\ and the Trade Act of 
1974.\22\ As a result, the legislation was considered on an 
expedited basis which did not permit committees of jurisdiction 
to amend the legislation after its formal introduction. 
However, the Committee made several changes to draft 
implementing legislation transmitted to the Committee for a 
pre-introduction ``mock markup'' on July 10, 2003. These 
changes were substantially reflected in H.R. 2738.
---------------------------------------------------------------------------
    \21\ 19 U.S.C. Sec. 3805 et. seq. (2002).
    \22\ 19 U.S.C. Sec. 2191 et. seq. (2002).
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    Summary of U.S.-Chile FTA Provisions Pertaining to the 
Jurisdiction of the Committee on the Judiciary. Although the 
Committee's formal legislative consideration of H.R. 2738 was 
limited to Title IV of the legislation, which implemented 
changes to United States immigration law, the U.S.-Chile FTA 
contained intellectual property and competition chapters that 
also fall within the jurisdiction of the Committee.
            Intellectual property rights (IPR)
    Chile is a signatory to the Trade Related Intellectual 
Property Rights (TRIPS), but has not yet ratified its 
implementing provisions. In addition, Chile has signed two 
World Intellectual Property Organization (WIPO) treaties, but 
has also not fully complied with these obligations. The U.S.-
Chile FTA reaffirms obligations under TRIPS and adds another 
layer of protection which would potentially increase revenues 
to a number of industries including: motion picture, sound 
recording, business software, book publishing, pharmaceuticals, 
and agricultural chemicals.
    Chapter 17 of the Agreement requires Chile to ratify or 
accede to several international IPR agreements, including the 
International Convention for the Protection of New Varieties of 
Plants (UPOV 1991), the Trademark Law Treaty, the Brussels 
Convention relating to the Distribution of Program-Carrying 
Satellite Signals, and the Patent Cooperation Treaty. The FTA 
also enhances enforcement of intellectual property rights. Non-
discrimination obligations apply to all types of intellectual 
property. The FTA ensures government involvement in resolving 
disputes between trademarks and Internet domain names 
(important to prevent ``cyber-squatting'' of trademarked domain 
names). It also applies the principle of ``first-in-time, 
first-in-right'' to trademarks and geographical indicators 
(place-names) applied to products.
    The Agreement streamlines the trademark filing process by 
allowing applicants to use their own national patent and 
trademark offices for filing trademark applications. The FTA 
ensures that only authors, composers, and other copyright 
owners have the right to make their works available online. 
Copyright owners maintain rights to temporary copies of their 
works on computers. Copyrighted works and phonograms are 
protected for extended terms, consistent with U.S. standards 
and international trends. The FTA also contains anti-
circumvention provisions aimed at preventing tampering with 
technologies (such as embedded codes on discs) that are 
designed to prevent piracy and unauthorized distribution over 
the Internet. It also ensures that governments use only 
legitimate computer software (in order to set a positive 
example for private users). Chile is to prohibit the production 
of optical discs (CDs, DVDs or software) without a source 
identification code unless authorized by the copyright holder 
in writing.
    Under the FTA, protection for encrypted program-carrying 
satellite signals extends to the signals themselves as well as 
the programming. This is designed to prevent piracy of 
satellite television programming. Both sides agreed to 
criminalize unauthorized reception and redistribution of 
satellite signals. The Agreement also contains limited 
liability for Internet Service Providers (ISPs)--reflecting the 
balance struck in the U.S. Digital Millennium Copyright Act 
between legitimate ISP activity and the infringement of 
copyrights. In essence, both sides are to provide immunity to 
Internet service providers for complying with notification and 
take-down procedures when material suspected to be infringing 
on copyright is hosted on their servers. The FTA provides for a 
patent term to be extended to compensate for up-front 
administrative or regulatory delays in granting the original 
patent, consistent with U.S. practice. The grounds for revoking 
a patent are limited to the same grounds required to originally 
refuse a patent.
    The Agreement provides further protections for patents 
covering biotech plants and animals. Chile is to accede to the 
International Convention for the Protection of New Varieties of 
Plants. It also provides for protection against imports of 
pharmaceutical products without a patent-holder's consent by 
allowing lawsuits when contracts are breached. Under the FTA, 
test data and trade secrets submitted to a government for the 
purpose of product approval are to be protected against 
disclosure for a period of 5 years for pharmaceuticals and 10 
years for agricultural chemicals. The FTA also closes potential 
loopholes to these provisions and is designed to ensure that 
government marketing-approval agencies will not grant approval 
to patent-violating products.
    In addition, the Agreement provides for criminal penalties 
for companies that make pirated copies from legitimate 
products. The Chilean government guarantees that it has 
authority to seize, forfeit, and destroy counterfeit and 
pirated goods and the equipment used to produce them. IPR laws 
are to be enforced against traded goods, including trans-
shipments, to deter violators from using U.S. or Chilean ports 
or free-trade zones to traffic in pirated products. The FTA 
mandates both statutory and actual damages under Chilean law 
for IPR violations (as a deterrent against piracy) and provides 
that monetary damages be awarded even if actual economic harm 
(retail value, profits made by violators) cannot be determined. 
Chile is to cooperate in preventing pirated and counterfeit 
goods from being imported into the United States. Finally, the 
FTA sharply restricts Chile from using compulsory licenses to 
copy patented drugs and sets up new barriers to the import of 
patented drugs sold at lower prices in third countries.
            Competition policy and antitrust
    H.R. 2738 contains no changes to United States antitrust 
law. However, a summary of provisions related to competition 
and antitrust contained in the U.S.-Chile FTA is set forth 
below. Chapter 16 of the Agreement helps ensure that the 
opportunities created by trade liberalization are supported by 
healthy competitive domestic markets, allowing the firms of 
each country to compete unhampered by anticompetitive business 
conduct in either country's territory. Firms that are subject 
to antitrust enforcement action will be guaranteed some basic 
procedural safeguards. Since these protections already exist in 
the United States, no changes to United States law are 
necessary. While state monopolies and state enterprises do not 
account for a significant portion of either country's economy, 
the provisions governing these entities will help eliminate the 
potential for either party to favor domestic firms in the sale 
or purchase of goods and services.
    Specifically, Chapter 16 ensures that both countries:
    1. Enforce domestic antitrust law that prohibits 
anticompetitive business conduct.
    2. Cooperate in the enforcement of antitrust law.
    3. Ensure that any private or public monopolies designated 
by either country, and any state enterprises, be subject to 
disciplinary action for abusing their status or otherwise 
discriminating in a manner that harms the interests of the 
other country.
    4. Explicitly recognize that anticompetitive conduct 
threatens the free flow of bilateral trade and investment, and 
seek to secure the benefits of the FTA by prohibiting such 
conduct, encouraging economically sound competition policies, 
and furthering transparency and cooperation.
    5. Expand NAFTA's competition provisions by affirming that 
antitrust laws be enforced in a neutral manner that do not 
discriminate on the basis of nationality.
    6. Ensure basic procedural rights for firms that are 
subject to antitrust enforcement actions: each country will 
provide a right to be heard and to present evidence before 
imposing a sanction or remedy.
    7. Provide for consultations and further transparency by 
allowing either country to request from the other specific 
public information regarding antitrust enforcement activity, 
official monopolies and state enterprises, and any exemptions 
from their antitrust laws.
    8. Finally, it is important to note that the provisions 
regarding antitrust law and enforcement are not subject to 
dispute settlement.
            Temporary entry
    Title IV of the pre-introduction draft implementing 
legislation for the U.S.-Chile FTA that the Administration 
forwarded to the Committee for its ``mock markup'' on July 10, 
2003, effectuated U.S. commitments under Chapter 14 of the 
U.S.-Chile FTA pertaining to the temporary entry of business 
persons. However, this draft legislation was considerably 
amended during the Committee's ``mock markup'' on July 10, 
2003. These Committee recommendations were then incorporated 
into the introduced version of H.R. 2738. These changes are 
highlighted in the ``Pre-Introduction `Mock Markup' of U.S.-
Chile FTA Implementing Legislation and Committee Amendments 
Incorporated Into H.R. 2738'' section of this report.
    In general, Chapter 14 of the U.S.-Chile FTA is consistent 
with existing provisions of the Immigration and Nationality Act 
(INA). The four categories of persons eligible for admission 
under the Agreement's expedited procedures correspond to 
existing INA nonimmigrant and related classifications. In order 
to provide for the admission of business visitors and intra-
company transferees, no changes in U.S. statutes are required. 
Limited technical changes are needed to provide for the 
admission of traders and investors and professionals. 
Legislation is also required to implement Article 14.3(2) of 
the Agreement regarding labor disputes.
            Traders and investors
    Under Section B of Annex 14.3 of the Agreement, citizens of 
Chile are eligible for temporary entry as traders and 
investors. This category provides for admission under 
requirements identical to those governing admission under INA 
Sec. 101(a)(15)(E) (8 U.S.C. Sec. 1101(a)(15)(E)), which 
permits entry for persons to carry on substantial trade in 
goods or services or to develop and direct investment 
operations.
    Section 101(a)(15)(E) of the INA currently conditions 
admission into the United States upon authorization pursuant to 
a treaty of commerce and navigation. Since the Agreement is not 
a treatyof commerce and navigation, and no such treaty exists 
between the United States and Chile, legislation is necessary to accord 
treaty trader and investor status to Chilean citizens qualifying for 
entry under Section B.
    Section 401 of the draft legislation does not amend section 
101(a)(15)(E). Instead, it used a mechanism similar to that 
provided in Sec. 341(a) of the North American Free Trade 
Agreement Implementation Act, which in turn was based upon the 
Act of June 18, 1954 (68 Stat. 264, 8 U.S.C. Sec. 1184(a)). The 
Act of June 18, 1954 conferred treaty trader and investor 
status upon nationals of the Philippines on a reciprocal basis 
secured by an agreement entered into by the President of the 
United States and the President of the Philippines.
            Professionals
    Section 402(a) of the draft bill amended Sec. 101(a)(15) of 
the INA (8 U.S.C. Sec. 1101(a)(15)), which defines categories 
of persons entitled to enter the United States as 
nonimmigrants. Section 402(a) of the bill inserted a new 
subparagraph (W) at the end of INA Sec. 101(a)(15). 
Subparagraph (W) would have established a new category of 
aliens entitled to enter the United States temporarily as 
nonimmigrants. These aliens would have been citizens of 
countries with which the United States had entered into free 
trade agreements and who sought to come to the United States 
temporarily to engage in business activities at the 
professional level. Entry into the United States under 
subparagraph (W) would have been subject to regulations issued 
by the Secretary of Homeland Security implementing numerical 
limitations provided for in the applicable agreement, as set 
forth in new paragraph (8) of INA Sec. 214(g), as added by the 
bill. The Department of Labor would have issued regulations 
governing temporary entry of professionals under this proposed 
provision of law. This amendment to the INA would have 
implemented Section D of Annex 14.3 of the Agreement.
    New INA Sec. 101(a)(15)(W) also provided for the entry of 
spouses and children accompanying or following to join business 
persons entering under this category. The purpose of this 
provision was to grant express authorization for current 
Immigration and Naturalization Service practice, which is to 
admit such persons, but not allow them to be employed in the 
United States unless they independently met all applicable INA 
requirements.
    Persons seeking temporary entry into the United States 
under Sec. 101(a)(15)(W) would have been:
    1. Considered to be seeking nonimmigrant status.
    2. Subject to general requirements relating to admission of 
nonimmigrants, including those pertaining to the issuance of 
entry documents and the presumption set out in INA Sec. 214(b) 
(8 U.S.C. Sec. 1184(b)), and accorded nonimmigrant status on 
admission.
    It should be noted that while there are many similarities 
in the way professionals would have been treated under 
Sec. 101(a)(15)(W) of the INA, as proposed by the bill, and the 
way H-1B professionals are treated, a determination of 
admissibility under subparagraph (W) would have neither 
foreclosed nor established eligibility for entry as an H-1B 
professional. Further, Sec. 101(a)(15)(W) would not have 
authorized a professional to establish a business or practice 
in the United States in which the professional will be self-
employed.
            Numerical limitations
    Paragraph six of Section D of Annex 14.3 of the Agreement 
permits the United States to establish an annual numerical 
limit on temporary entries under the Agreement of Chilean 
professionals. Under the proposed paragraph (8) of INA 
Sec. 214(g) that would have been added by Sec. 402(a) of the 
draft bill, the Secretary of Homeland Security would have 
issued regulations establishing an annual limit of up to 1,400 
new temporary entry applications from Chilean professionals, as 
provided in Appendix 14.3(D)(6) of the Agreement.
            Labor attestations
    Under Sec. (D)(5) of Annex 14.3 of the Agreement, the 
United States may require that an attestation of compliance 
with labor and immigration laws be made a condition for the 
temporary entry of Chilean professionals. This provision allows 
U.S. labor and immigration officials to ensure that U.S. 
employers are not hiring Chilean professionals as a way to put 
pressure on U.S. employees to accept lower wages or less 
favorable terms and conditions of employment.
    Section 402(b) of the draft legislation would have 
implemented the attestation requirement under the Agreement. 
Section 402(b) of the draft bill would have amended Sec. 212 of 
the INA (8 U.S.C. Sec. 1182) by adding a new subsection (s) to 
the end of that section. INA Sec. 212(s)(1), which would have 
been added by Sec. 402(b) of the bill, required a U.S. employer 
seeking a temporary entry visa for a Chilean professional to 
file an attestation with the Secretary of Labor. The 
attestation would have consisted of four core elements similar 
to those required for attestations under the ``H-1B'' visa 
program. See 8 U.S.C. Sec. 1182(n)(1)(A)-(C). Thus, an employer 
would have been required to attest that:
    1. It would pay the employee the higher of (a) the actual 
wage paid to all other individuals with similar experience and 
qualifications for the specific employment in question, or (b) 
the prevailing wage level for the occupational classification 
in the area of employment.
    2. It will provide working conditions for the employee that 
will not adversely affect the working conditions of workers 
similarly employed.
    3. There is no strike or lockout in the course of a labor 
dispute in the occupational classification at the place of 
employment.
    4. The employer has provided notice of its attestation to 
its employees' bargaining representative in the occupational 
classification in the area for which the employee is sought or, 
absent such a representative, has otherwise notified its 
employees.
    The remainder of new INA Sec. 212(s) contains provisions 
for enforcing the labor attestation requirement. Like the 
contents of the attestation itself, the enforcement 
requirements are based on requirements under the ``H-1B'' visa 
program. INA Sec. 212(s)(2)(A) requires an employer to make 
copies of labor attestations (and such accompanying documents 
as are necessary) available for public examination at the 
employer's principal place of business or worksite. INA 
Sec. 212(s)(2)(B) requires the Secretary of Labor to compile a 
list of all labor attestations filed including, with respect to 
each attestation, the wage rate, number of alien professionals 
sought for employment, period of intended employment, and date 
of need. INA Sec. 212(s)(2)(C) provides that the Secretary of 
Labor shall accept a labor attestation within seven days of 
filing and issue the certificationnecessary for an alien to 
enter the United States as a nonimmigrant under INA Sec. 101(a)(15)(W), 
unless the attestation is incomplete or obviously inaccurate.
    INA Sec. 212(s)(3)(A) requires the Secretary of Labor to 
establish a process for the receipt, investigation, and 
disposition of complaints respecting an employer's failure to 
meet a condition specified in a labor attestation or an 
employer's misrepresentation of material facts in such an 
attestation. Section 212(s)(3) also sets forth penalties that 
may be imposed for violation of the labor attestation 
requirements, including monetary fines and denial of 
applications for visas under INA section 101(a)(15)(W) for 
specified periods. INA Sec. 212(s)(4) defines certain terms 
used in INA Sec. 212(s).
            Labor disputes
    Article 14.3(2) of the Agreement establishes an important 
safeguard for the domestic labor force in the United States and 
Chile, respectively. It permits either government to refuse to 
issue an immigration document authorizing employment where the 
temporary entry of a business person might affect adversely the 
settlement of a labor dispute or the employment of a person 
involved in such dispute. Article 14.3(2) thus allows the 
United States to deny temporary entry to a Chilean business 
person whose activities in the United States require employment 
authorization if admission might interfere with an ongoing 
labor dispute. If the United States invokes Article 14.3(2), it 
must inform the business person in writing of the reasons for 
its action and notify Chile.
    Section 403 of the draft bill implements Article 14.3(2) of 
the Agreement by amending INA Sec. 214(j) (8 U.S.C. 
Sec. 1184(j)), designating current subsection (j) as paragraph 
(1) and inserting a new paragraph (2). New paragraph (2) of INA 
Sec. 214(j) provides authority to refuse nonimmigrant 
classification under specified circumstances to a Chilean 
business person seeking to enter the United States under and 
pursuant to the Agreement. In particular, nonimmigrant 
classification must be refused if there is a strike or lockout 
affecting the relevant occupational classification at the 
Chilean business person's place of employment or intended place 
of employment in the United States, unless that person 
establishes, pursuant to regulations issued by the Secretary of 
Homeland Security after consultations with the Secretary of 
Labor, that the business person's entry will not adversely 
affect the settlement of the strike or lockout or the 
employment of any person involved in the strike or lockout.
    New paragraph (2) also requires the provision of notice to 
the affected Chilean business persons and to Chile of a 
determination to deny nonimmigrant classification, as required 
under Article 14.3(3) of the Agreement. INA Sec. 214(j)(2) as 
inserted by the bill applies only to requests for temporary 
entry by traders and investors, intra-company transferees, and 
professionals---i.e., the categories of nonimmigrants that 
require employment authorization under U.S. law (corresponding 
to Sections B, C, and D of Annex 14.3 of the Agreement). 
Employment in the U.S. labor market is not permitted for 
business visitors, as defined in INA Sec. 101(a)(15)(B) (8 
U.S.C. Sec. 1101(a)(15)(B)) (corresponding to Section A of 
Annex 14.3 of the Agreement); violations of status under that 
provision that involve labor disputes are fully redressable 
under existing law.
    Section 214(j)(2) is similar to existing INA provisions 
that prohibit admission in certain circumstances where 
interference with a labor dispute may result. For example, 
under INA Sec. 212(n)(1)(B) (8 U.S.C. Sec. 1182(n)(1)(B)), the 
U.S. employer sponsoring an alien for admission must certify 
that there is no strike or lockout in the occupational 
classification at the place of employment. Additionally, 
Sec. 214(j)(2) will supplement INA Sec. 237(a)(1)(C) (8 U.S.C. 
Sec. 1227(a)(1)(C)) and related INA provisions that now 
authorize deportation of an alien admitted under a particular 
nonimmigrant category if the alien ceases to perform the type 
of work permitted under that category or misrepresented the 
nature of the work at the time of admission. The Department of 
Labor will provide strike certifications to the Department of 
Homeland Security, as it has provided to the Immigration and 
Naturalization Service under existing provisions, pursuant to 8 
C.F.R. 214.2(h)(17).
            Administrative action
    Chile will be added to the list of countries, maintained by 
the Department of State, whose citizens are eligible for treaty 
trader and treaty investor status under INA Sec.  
101(a)(15)(E). With respect to professionals provided for under 
Section D of Annex 14.3 of the Agreement, in all cases where a 
state license is required to engage in a particular activity in 
the United States, such professionals will be required to 
obtain the appropriate state license. Pursuant to INA 
Sec. 101(a)(15)(W) as added by Sec. 402(a) of the bill, the 
Secretary of Homeland Security will issue regulations 
implementing the numerical limits set forth in Appendix 
14.3(D)(6) of the Agreement. The Secretary of Labor will issue 
regulations implementing the labor attestation provisions in 
new subsection (s) of INA Sec. 212. The administrative agencies 
responsible for administering the other amendments to the INA 
described above will promulgate regulations to implement those 
amendments.
            Summary of immigration provisions
    Under Section B of Annex 14.3 of the Free Trade Agreement, 
citizens of Chile are eligible for temporary entry as traders 
and investors. The Immigration and Nationality Act currently 
conditions admission into the United States upon authorization 
pursuant to a treaty of commerce and navigation. Since the 
Agreement is not a treaty of commerce and navigation, and no 
such treaty exists between the United States and Chile, 
legislation is necessary to accord treaty trader and investor 
status to Chilean citizens qualifying for entry under Section 
B. Section 401 of H.R. 2738 accomplishes this by relying on a 
mechanism similar to that provided in Sec. 341(a) of the North 
American Free Trade Agreement Implementation Act, which in turn 
was based upon the Act of June 18, 1954 (68 Stat. 264, 8 U.S.C. 
Sec. 1184(a)). The Act of June 18, 1954 conferred treaty trader 
and investor status upon nationals of the Philippines on a 
reciprocal basis secured by an agreement entered into by the 
President of the United States and the President of the 
Philippines.
    Section 402(a) of H.R. 2738 implements Section D of Annex 
14.3 of the Free Trade Agreement by creating a new ``H-1B1'' 
nonimmigrant visa category for aliens who are citizens of 
countries with which the United States has entered into free 
trade agreements and who seek to come to the United States 
temporarily to engage in business activities at the 
professional level. Section 402(a) of the bill establishes an 
annual limit of up to 1,400 new temporary entry applications 
from Chilean professionals, as provided in Appendix 14.3(D)(6) 
of the Agreement.
    Under Sec. (D)(5) of Annex 14.3 of the Agreement, the 
United States may require that an attestation of compliance 
with labor and immigration laws be made a condition for the 
temporary entry of Chilean professionals. Section 402(b) of 
H.R. 2738 implemented the attestation requirement under the 
Agreement, requiring a U.S. employer seeking a temporary entry 
visa for a Chilean professional to file an attestation with the 
Secretary of Labor consisting of four core elements similar to 
those required for attestations under the H-1B visa program.
    Like the contents of the attestation itself, the 
enforcement requirements are based on requirements under the H-
1B visa program. Unlike the H-1B program, the period of 
authorized admission for H-1B1 aliens is one year, and may be 
extended in one year increments.
    Article 14.3(2) of the Agreement establishes an important 
safeguard for the domestic labor forces of the United States 
and Chile, respectively. It permits either government to refuse 
to issue an immigration document authorizing employment where 
the temporary entry of a business person might affect adversely 
the settlement of a labor dispute or the employment of a person 
involved in such dispute. Article 14.3(2) thus allows the 
United States to deny temporary entry to a Chilean business 
person whose activities in the United States require employment 
authorization if admission might interfere with an ongoing 
labor dispute. If the United States invokes article 14.3(2), it 
must inform the business person in writing of the reasons for 
its action and notify Chile. Section 403 implemented article 
14.3(2) of the Agreement by providing that nonimmigrants can be 
refused entry if there is a labor dispute affecting the 
relevant occupational classification at the Chilean business 
person's place of employment or intended place of employment in 
the United States, unless that person establishes, pursuant to 
regulations issued by the Secretary of Homeland Security after 
consultations with the Secretary of Labor, that the business 
person's entry would not adversely affect the settlement of the 
labor dispute or the employment of any person involved in the 
labor dispute.
            Pre-Introduction ``mock markup'' of U.S.-Chile FTA 
                    implementing legislation and committee amendments 
                    incorporated into H.R. 2738
    On July 10, 2003, the Committee held a pre-introduction 
``mock markup'' of draft implementing legislation submitted by 
the Administration to the Committee. The Committee's 
consideration of this draft legislation was limited to Title IV 
of the draft implementing legislation.
            Judiciary Committee amendments to draft implementing 
                    legislation
    The Committee reported several amendments to the 
immigration provisions by voice vote. The amendments were 
reflected in the final version of H.R. 2738 enacted into law.
    First, the Committee reported an amendment by 
Representative King to transfer the new ``W'' professional 
worker visa category for citizens of Chile to 
Sec. 101(a)(15)(H)(i)(b)(1) of the Immigration and Nationality 
Act, rather than Sec. 101(a)(15)(W) as provided for in the 
draft implementing legislation. Representative King's amendment 
also ensured that in future years, the national H-1B visa cap 
will be reduced in two situations. First, the number of H-1B 
visas available in a fiscal year will be reduced by the number 
of Chilean citizens granted extensions of H-1B1 status in that 
fiscal year after having previously been granted five or more 
consecutive prior extensions. Second, the number of H-1B visas 
available in a fiscal year will be reduced by the number of H-
1B1 visas allocated (1,400 for citizens of Chile). However, if 
at the end of a fiscal year, the 6,800 slots reserved for 
citizens of Chile and Singapore have not been exhausted, the 
number of H-1B visas available for that fiscal year will be 
adjusted upwards by the number of unused Chile and Singapore 
visas. These newly available H-1B visas may be issued within 
the first 45 days of the next fiscal year to aliens who had 
applied for such visas during the fiscal year for which the 
adjustment was made.
    The Committee also reported an amendment offered by 
Representatives Berman and Conyers requiring that an 
application for every second extension for an H-1B1 visa be 
accompanied by a new employer attestation. This will have the 
effect of requiring the employer to update the prevailing wage 
determination at such time. The amendment also requires that an 
employer pay a fee when H-1B1 status is initially granted and 
after every second extension of that status. The fee shall be 
the same as the fee an employer must pay when petitioning for 
an H-1B visa. However, if no fee is being assessed under the H-
1B program, no fee shall be imposed under the H-1B1 program. 
Finally, the implementing legislation now clarifies that an 
employer generally cannot sponsor an alien for an E, L, or H-
1B1 visa if there is any labor dispute occurring in the 
occupational classification at the place of employment, 
regardless of whether the labor dispute is classified as a 
strike or lockout. In this regard, worker protections in H.R. 
2738 are broader than those contained in the H-1B visa 
category.
    Following the Committee's markup consideration of H.R. 
2738, Chairman Sensenbrenner and Ranking Member Conyers sent a 
bipartisan letter co-signed by several Members of the Committee 
expressing strong Committee opposition to the inclusion of 
immigration-related provisions requiring changes to existing 
U.S. law in any subsequent free trade agreements submitted to 
Congress for its consideration. The Committee continues to 
closely monitor the negotiation of international trade 
agreements to ensure that no immigration provisions requiring 
changes to United States immigration law are presented.
    Legislative History.--H.R. 2738 was introduced on July 15, 
2003, by House Majority Leader Delay. On July 16, 2003, the 
Judiciary Committee ordered H.R. 2738 reported (H.R. Rept. No. 
108-224, Part II). On July 24, 2003 the House passed H.R. 2738 
by a vote of 270 yeas to 156 nays. On July 31, 2003, the Senate 
passed H.R. 2738 without amendment by a vote of 65 yeas to 32 
nays. H.R. 2738 was signed by the President on September 3, 
2003, and became Public Law No. 108-77.

H.R. 2739, the ``United States-Singapore Free Trade Agreement''

    Summary.--On May 26, 2003, United States and Singapore 
entered into a bilateral Free Trade Agreement (FTA), concluding 
a negotiation process that began in December of 2000. H.R. 2739 
approves the U.S.-Singapore FTA submitted to Congress on July 
15, 2003 and makes changes to United States law necessary to 
ensure compliance with the agreement. The legislation contains 
four titles: Title I, ``Approval of and General Provisions 
Relating the Agreement;'' Title II, ``Customs Provisions;'' 
Title III, ``Relief from Imports;'' and Title IV, ``Temporary 
Entry of Business Persons.'' The Committee's consideration of 
H.R. 2739 was limited to Title IV of the legislation. Title IV 
establishes 5,400 annual professional worker visas for 
Singaporean citizens to enter the United States on a temporary 
basis.
    H.R. 2739 was considered pursuant to the ``Bipartisan Trade 
Promotion Authority Act of 2002''\23\ and the Trade Act of 
1974.\24\ As a result, the legislation was considered on an 
expedited basis which did not permit committees of jurisdiction 
to amend the legislation after its formal introduction. 
However, the Committee made several changes to draft 
implementing legislation transmitted to the Committee for a 
pre-introduction ``mock markup'' on July 10, 2003. These 
changes were substantially reflected in the final version of 
H.R. 2739 enacted into law.
---------------------------------------------------------------------------
    \23\ 19 U.S.C. Sec. 3805 et. seq. (2002).
    \24\ 19 U.S.C. Sec. 2191 et. seq. (2003).
---------------------------------------------------------------------------
            Summary of U.S.-Singapore FTA provisions pertaining to the 
                    jurisdiction of the Committee on the Judiciary
    Although the Committee's formal legislative consideration 
of H.R. 2739 was limited to Title IV of the legislation, which 
implemented changes to United States immigration law, the U.S.-
Singapore FTA also contained intellectual property and 
competition chapters that fall within the jurisdiction of the 
Committee.
            Intellectual property rights (IPR)
    Chapter 16 of the U.S.-Singapore FTA contains several 
provisions which enhance protections for IPR. The FTA requires 
Singapore to more aggressively enforce laws prohibiting piracy 
of intellectual property and establishes that non-
discrimination obligations apply for all types of intellectual 
property. The FTA ensures government involvement in resolving 
disputes between trademarks and Internet domain names 
(important to prevent ``cyber-squatting'' of trademarked domain 
names). It also applies the principle of ``first-in-time, 
first-in-right'' to trademarks and geographical indicators 
(place-names) applied to products.
    The Agreement streamlines the trademark filing process by 
allowing applicants to use their own national patent and 
trademark offices for filing trademark applications. The FTA 
ensures that only authors, composers, and other copyright 
owners have the right to make their works available online. 
Copyright owners maintain rights to temporary copies of their 
works on computers. (This was aimed at protecting music, 
videos, software, or text from widespread unauthorized sharing 
via the Internet). Copyrighted works and phonograms are 
protected for extended terms, consistent with U.S. standards 
and international trends. The FTA also contains anti-
circumvention provisions aimed at preventing the tampering with 
technologies (such as embedded codes on discs) that are 
designed to prevent piracy and unauthorized distribution over 
the Internet. It also ensures that governments use only 
legitimate computer software (in order to set a positive 
example for private users). Singapore is to prohibit the 
production of optical discs (CDs, DVDs or software) without a 
source identification code unless authorized by the copyright 
holder in writing.
    Under the FTA, protection for encrypted program-carrying 
satellite signals extends to the signals themselves as well as 
the programming. This is designed to prevent piracy of 
satellite television programming. Both sides agreed to 
criminalize unauthorized reception and re-distribution of 
satellite signals. The Agreement also contains limited 
liability for Internet Service Providers (ISPs)--reflecting the 
balance struck in the U.S. Digital Millennium Copyright Act 
between legitimate ISP activity and the infringement of 
copyrights. In essence, both sides are to provide immunity to 
Internet service providers for complying with notification and 
take-down procedures when material suspected to be infringing 
on copyright is hosted on their servers. The FTA provides for a 
patent term to be extended to compensate for up-front 
administrative or regulatory delays in granting the original 
patent, consistent with U.S. practice. The grounds for revoking 
a patent are limited to the same grounds required to originally 
refuse a patent.
    In addition, the Agreement requires the government of 
Singapore to establish criminal penalties for pirated copies 
from legitimate products. The Singaporean government guarantees 
that it has authority to seize, forfeit, and destroy 
counterfeit and pirated goods and the equipment used to produce 
them. IPR laws are to be enforced against traded goods, 
including trans-shipments, to deter violators from using U.S. 
or Singaporean ports or free-trade zones to traffic in pirated 
products. The FTA mandates both statutory and actual damages 
under Singaporean law for IPR violations (as a deterrent to 
piracy) and provides that monetary damages be awarded even if 
actual economic harm (retail value, profits made by violators) 
cannot be determined. Singapore is to cooperate in preventing 
pirated and counterfeit goods from being imported into the 
United States. The FTA sharply restricts Singapore from using 
compulsory licenses to copy patented drugs and establishes 
barriers to the import of patented drugs sold at lower prices 
in third countries.
            Competition policy and antitrust
    Chapter 12 of the U.S.-Singapore FTA commits Singapore to 
enact a law regulating anti-competitive business conduct and to 
create a competition commission by January 2005. Specific 
conduct guarantees are imposed to ensure that commercial 
enterprises in which the Singapore government has effective 
influence will operate on the basis of commercial 
considerations and that such enterprises will not discriminate 
in their treatment of U.S. firms. Singapore thus commits to 
maintain its existing policy of not interfering with the 
commercial decisions of Government Linked Companies (GLCs) and 
to provide annual information on GLCs with substantial revenues 
or assets. This requirement is particularly important because 
GLCs comprise a relatively large part (nearly 40 percent) of 
Singapore's economy. A summary of provisions related to 
competition and antitrust contained in the U.S.-Singapore FTA 
is set forth below.
    Chapter 12 of the Agreement helps ensure that the 
opportunities created by trade liberalization are supported by 
healthy competitive domestic markets, allowing the firms of 
each country to compete freely and unhampered by 
anticompetitive business conduct in either country's territory. 
Firms that are subject to antitrust enforcement action will be 
guaranteed basic procedural safeguards. Since these protections 
already exist in the United States, no changes to United States 
law are necessary. While state monopolies and state enterprises 
do not account for a significant portion of either country's 
economy, the provisions governing these entities will help 
eliminate the potential for either party to favor domestic 
firms in the sale or purchase of goods and services.
    Specifically, Chapter 12 ensures that both countries:
    1. Enforce domestic antitrust law that prohibits 
anticompetitive business conduct.
    2. Cooperate in the enforcement of antitrust law.
    3. Ensure that any private or public monopolies designated 
by either country, and any state enterprises, be subject to 
disciplinary action for abusing their status or otherwise 
discriminating in a manner that harms the interests of the 
other country.
    4. Explicitly recognize that anticompetitive conduct 
threatens the free flow of bilateral trade and investment, and 
seeks to secure the benefits of the FTA by prohibiting such 
conduct, encouraging economically sound competition policies, 
and furthering transparency and cooperation.
    5. Expand NAFTA's competition provisions by affirming that 
antitrust laws be enforced in a neutral manner that does 
discriminate on the basis of nationality.
    6. Ensure basic procedural rights for firms that are 
subject to antitrust enforcement actions: each country will 
provide a right to be heard and to present evidence before 
imposing a sanction or remedy.
    7. Provide for consultations and furthers transparency by 
allowing either country to request from the other specific 
public information regarding antitrust enforcement activity, 
official monopolies and state enterprises, and any exemptions 
from their antitrust laws.
    8. It is important to note that the provisions regarding 
antitrust law and enforcement are not subject to dispute 
settlement under the Agreement.
            Temporary entry
    Title IV of the U.S.-Singapore Free Trade Agreement draft 
implementing legislation forwarded to the Committee by the 
Administration for its July 10, 2003 ``mock markup'' reflected 
U.S. commitments under Chapter 14 of the U.S.-Singapore FTA 
pertaining to the temporary entry of business persons. However, 
this draft legislation was considerably amended during the 
Committee's ``mock markup'' on July 10, 2003. These Committee 
recommendations were subsequently incorporated into the 
introduced version of H.R. 2739. These changes are highlighted 
in the ``Pre-Introduction ``Mock Markup'' of U.S.-Singapore FTA 
Implementing Legislation and Committee Amendments Incorporated 
Into H.R. 2739'' section of this report.
    In general, Chapter 14 is consistent with existing 
provisions of the Immigration and Nationality Act (``INA''). 
The four categories of persons eligible for admission under the 
Agreement's expedited procedures correspond to existing INA 
nonimmigrant and related classifications. To provide for the 
admission of the first two categories, business visitors and 
intra-company transferees, no changes in U.S. statutes are 
required. Limited technical changes are needed to provide for 
the admission of traders and investors and professionals. 
Legislation is also required to implement Article 14.3(2) of 
the Agreement regarding labor disputes.
            Traders and investors
    Under Section B of Annex 14.3 of the Agreement, citizens of 
Singapore are eligible for temporary entry as traders and 
investors. This category provides for admission under 
requirements identical to those governing admission under INA 
Sec. 101(a)(15)(E) (8 U.S.C. Sec. 1101(a)(15)(E)), which 
permits entry for persons to carry on substantial trade in 
goods or services or to develop and direct investment 
operations.
    Section 101(a)(15)(E) currently conditions admission into 
the United States upon authorization pursuant to a treaty of 
commerce and navigation. Since the Agreement is not a treaty of 
commerce and navigation, and no such treaty exists between the 
United States and Singapore, legislation is necessary to accord 
treaty trader and investor status to Singaporean citizens 
qualifying for entry under Section B.
    Section 401 of the draft legislation would not have amended 
Sec. 101(a)(15)(E). Instead, it relied on a mechanism similar 
to that provided in Sec. 341(a) of the North American Free 
Trade Agreement Implementation Act, which in turn was based 
upon the Act of June 18, 1954 (68 Stat. 264, 8 U.S.C. 
Sec. 1184(a)). The Act of June 18, 1954 conferred treaty trader 
and investor status upon nationals of the Philippines on a 
reciprocal basis secured by an agreement entered into by the 
President of the United States and the President of the 
Philippines.
            Professionals
    Section 402(a) of the draft bill would have amended 
Sec. 101(a)(15) of the INA (8 U.S.C. Sec. 1101(a)(15)), which 
defines categories of persons entitled to enter the United 
States as nonimmigrants. Section 402(a) of the draft bill would 
have inserted a new subparagraph (W) at the end of INA 
Sec. 101(a)(15). Subparagraph (W) would have established a new 
category of aliens entitled to enter the United States 
temporarily as nonimmigrants. These aliens would have been 
citizens of countries with which the United States has entered 
into free trade agreements and who sought to come to the United 
States temporarily to engage in business activities at the 
professional level. Entry into the United States under 
subparagraph (W) would have been subject to regulations issued 
by the Secretary of Homeland Security implementing numerical 
limitations provided for in the applicable agreement, as set 
forth in new paragraph (8) of INA Sec. 214(g), as added by the 
bill. The Department of Labor would have issued regulations 
governing temporary entry of professionals under this proposed 
provision of law. This amendment to the INA would have 
implemented Section D of Annex 14.3 of the Agreement.
    New INA Sec. 101(a)(15)(W) also would have provided for the 
entry of spouses and children accompanying or following to join 
business persons entering under this category. The purpose of 
this provision was to grant express authorization for current 
Immigration and Naturalization Service practice, which is to 
admit such persons, but not allow them to be employed in the 
United States unless they independently met all applicable INA 
requirements.
    Persons seeking temporary entry into the United States 
under Sec. 101(a)(15)(W) would have been:
    1. Considered to be seeking nonimmigrant status.
    2. Subject to general requirements relating to admission of 
nonimmigrants, including those pertaining to the issuance of 
entry documents and the presumption set out in INA Sec. 214(b) 
(8 U.S.C. Sec. 1184(b)).
    3. Accorded nonimmigrant status on admission.
    It should be noted that while there are many similarities 
in the way professionals would have been treated under 
Sec. 101(a)(15)(W) of the INA, as proposed by the draft bill 
and the way H-IB professionals are treated, a determination of 
admissibility under subparagraph (W) would have neither 
foreclosed nor established eligibility for entry as an H-1B 
professional. Further, Sec. 101(a)(15)(W) would not have 
authorized a professional to establish a business or practice 
in the United States in which the professional will be self-
employed.
            Numerical limitations
    Paragraph six of Section D of Annex 14.3 of the Agreement 
permits the United States to establish an annual numerical 
limit on temporary entries under the Agreement of Singaporean 
professionals.
    Under the proposed new paragraph (8) of INA Sec. 214(g), 
that would have been added by Sec. 402(a) of the bill, the 
Secretary of Homeland Security will issue regulations 
establishing an annual limit of up to 5,400 new temporary entry 
applications from Singaporean professionals, as provided in 
Appendix 14.3(D)(6) of the Agreement.
            Labor attestations
    Under Sec. (D)(5) of Annex 14.3 of the Agreement, the 
United States may require that an attestation of compliance 
with labor and immigration laws be made a condition for the 
temporary entry of Singaporean professionals. This provision 
allows U.S. labor and immigration officials to ensure that U.S. 
employers are not hiring Singaporean professionals as a way to 
put pressure on U.S. employees to accept lower wages or less 
favorable terms and conditions of employment.
    Section 402(b) of the draft legislation would have 
implemented the attestation requirement under the Agreement. 
Section 402(b) of the draft bill would have amended Sec. 212 of 
the INA (8 U.S.C. Sec. 1182) by adding a new subsection (s) to 
the end of that section. INA Sec. 212(s)(1), which would have 
been added by Sec. 402(b) of the bill, required a U.S. employer 
seeking a temporary entry visa for a Singaporean professional 
to file an attestation with the Secretary of Labor. The 
attestation would have consisted of four core elements similar 
to those required for attestations under the ``H-1B'' visa 
program. See 8 U.S.C. Sec. 1182(n)(1)(A)-(C). Thus, an employer 
would have attested that:
    1. It would pay the employee the higher of (a) the actual 
wage paid to all other individuals with similar experience and 
qualifications for the specific employment in question, or (b) 
the prevailing wage level for the occupational classification 
in the area of employment.
    2. It would provide working conditions for the employee 
that would not adversely affect the working conditions of 
workers similarly employed.
    3. There was no strike or lockout in the course of a labor 
dispute in the occupational classification at the place of 
employment.
    4. The employer had provided notice of its attestation to 
its employees' bargaining representative in the occupational 
classification in the area for which the employee was sought 
or, absent such a representative, has otherwise notified its 
employees.
    The remainder of the proposed new INA Sec. 212(s) contained 
provisions for enforcing the labor attestation requirement. 
Like the contents of the attestation itself, the enforcement 
requirements were based on requirements under the ``H-1B'' visa 
program. INA Sec. 212(s)(2)(A) required an employer to make 
copies of labor attestations (and such accompanying documents 
as are necessary) available for public examination at the 
employer's principal place of business or worksite. INA 
Sec. 212(s)(2)(B) required the Secretary of Labor to compile a 
list of all labor attestations filed including, with respect to 
each attestation, the wage rate, number of alien professionals 
sought for employment, period of intended employment, and date 
of need. INA Sec. 212(s)(2)(C) provided that the Secretary of 
Labor would accept a labor attestation within seven days of 
filing and issue the certification necessary for an alien to 
enter the United States as a nonimmigrant under INA 
Sec. 101(a)(15)(W), unless the attestation was incomplete or 
obviously inaccurate.
    INA Sec. 212(s)(3)(A) required the Secretary of Labor to 
establish a process for the receipt, investigation, and 
disposition of complaints respecting an employer's failure to 
meet a condition specified in a labor attestation or an 
employer's misrepresentation of material facts in such an 
attestation. Section 212(s)(3) also set forth penalties that 
may be imposed for violation of the labor attestation 
requirements, including monetary fines and denial of 
applications for visas under INA section 101(a)(15)(W) for 
specified periods. INA Sec. 212(s)(4) defined certain terms 
used in INA Sec. 212(s).
            Labor disputes
    Article 14.3(2) of the Agreement establishes an important 
safeguard for the domestic labor forces of the United States 
and Singapore, respectively. It permits either government to 
refuse to issue an immigration document authorizing employment 
where the temporary entry of a business person might affect 
adversely the settlement of a labor dispute or the employment 
of a person involved in such dispute. Article 14.3(2) thus 
allows the United States to deny temporary entry to a 
Singaporean business person whose activities in the United 
States require employment authorization if admission might 
interfere with an ongoing labor dispute. If the United States 
invokes Article 14.3(2), it must inform the business person in 
writing of the reasons for its action and notify Singapore.
    Section 403 of the draft bill implemented Article 14.3(2) 
of the Agreement by amending INA Sec. 214(j) (8 U.S.C. 
Sec. 1184(j)), designating current subsection (j) as paragraph 
(1) and inserting a new paragraph (2). New paragraph (2) of INA 
Sec. 214(j) provided authority to refuse nonimmigrant 
classification under specified circumstances to a Singaporean 
business person seeking to enter the United States pursuant to 
the Agreement. In particular, nonimmigrant would have been 
refused if there was a strike or lockout affecting the relevant 
occupational classification at the Singaporean business 
person's place of employment or intended place of employment in 
the United States, unless that person established, pursuant to 
regulations issued by the Secretary of Homeland Security after 
consultations with the Secretary of Labor, that the business 
person's entry would not have adversely affected the settlement 
of the strike or lockout or the employment of any person 
involved in the strike or lockout.
    New paragraph (2) also required the provision of notice to 
the affected Singaporean business persons and to Singapore of a 
determination to deny nonimmigrant classification, as required 
under Article 14.3(3) of the Agreement. INA Sec. 214(j)(2) as 
inserted by the draft legislation applies only to requests for 
temporary entry by traders and investors, intra-company 
transferees, and professionals--i.e., the categories of 
nonimmigrants that require employment authorization under U.S. 
law (corresponding to Sections B, C, and D of Annex 14.3 of the 
Agreement). Employment in the U.S. labor market would not have 
been permitted for business visitors, as defined in INA 
Sec. 101(a)(15)(B) (8 U.S.C. Sec. 1101(a)(15)(B)) 
(corresponding to Section A of Annex 14.3 of the Agreement); 
violations of status under that provision that involve labor 
disputes are fully redressable under existing law.
    Section 214(j)(2) would have been similar to existing INA 
provisions that prohibit admission in certain circumstances 
where interference with a labor dispute may result. For 
example, under INA Sec. 212(n)(1)(B) (8 U.S.C. 
Sec. 1182(n)(1)(B)), the U.S. employer sponsoring an alien for 
admission must certify that there is no strike or lockout in 
the occupational classification at the place of employment. 
Additionally, Sec. 214(j)(2) would have supplemented INA 
Sec. 237(a)(1)(C) (8 U.S.C. Sec. 1227(a)(1)(C)) and related INA 
provisions that now authorize deportation of an alien admitted 
under a particular nonimmigrant category if the alien ceased to 
perform the type of work permittedunder that category or 
misrepresented the nature of the work at the time of admission. The 
Department of Labor would have provided strike certifications to the 
Department of Homeland Security, as it has provided them to the 
Immigration and Naturalization Service under existing provisions, 
pursuant to 8 C.F.R. Sec. 214.2(h)(17).
            Administrative action
    Singapore would have been added to the list of countries, 
maintained by the Department of State, whose citizens are 
eligible for treaty trader and treaty investor status under INA 
Sec. 101(a)(15)(E). With respect to professionals provided for 
under Section D of Annex 14.3 of the Agreement, in all cases 
where a state license is required to engage in a particular 
activity in the United States, such professionals would have 
been required to obtain the appropriate state license. Pursuant 
to INA Sec. 101(a)(15)(W) as proposed by section 402(a) of the 
draft bill, the Secretary of Homeland Security would have 
issued regulations implementing the numerical limits set forth 
in Appendix 14.3(D)(6) of the Agreement. The Secretary of Labor 
would have issued regulations implementing the labor 
attestation provisions in new subsection (s) of INA Sec. 212. 
The administrative agencies responsible for administering the 
other amendments to the INA described above would have 
promulgated regulations to implement those amendments.
            Summary of immigration provisions
    Under Section B of Annex 14.3 of the Free Trade Agreement, 
citizens of Singapore are eligible for temporary entry as 
traders and investors. This category provides for admission 
under requirements identical to those governing admission as E 
visa nonimmigrants, which permits entry for persons to carry on 
substantial trade in goods or services or to develop and direct 
investment operations. The Immigration and Nationality Act 
currently conditions admission into the United States upon 
authorization pursuant to a treaty of commerce and navigation. 
Since the Agreement is not a treaty of commerce and navigation, 
and no such treaty exists between the United States and 
Singapore, legislation is necessary to accord treaty trader and 
investor status to Singaporean citizens qualifying for entry 
under Section B. Section 401 of H.R. 2739 accomplishes this by 
relying on a mechanism similar to that provided in section 
341(a) of the North American Free Trade Agreement 
Implementation Act, which in turn was based upon the Act of 
June 18, 1954 (68 Stat. 264, 8 U.S.C. 1184(a)). The Act of June 
18, 1954 conferred treaty trader and investor status upon 
nationals of the Philippines on a reciprocal basis secured by 
an agreement entered into by the President of the United States 
and the President of the Philippines.
    Section 402(a) of H.R. 2739 implements Section D of Annex 
14.3 of the Free Trade Agreement by creating a new ``H-1B1'' 
nonimmigrant visa category for aliens who are citizens of 
countries with which the United States has entered into free 
trade agreements and who seek to come to the United States 
temporarily to engage in business activities at the 
professional level. Section 402(a) of the bill establishes an 
annual limit of up to 5,400 new temporary entry applications 
from Singaporean professionals, as provided in Appendix 
14.3(D)(6) of the Agreement.
    Under Sec. (D)(5) of Annex 14.3 of the Agreement, the 
United States may require that an attestation of compliance 
with labor and immigration laws be made a condition for the 
temporary entry of Singaporean professionals. Section 402(b) of 
H.R. 2739 implements the attestation requirement under the 
Agreement, requiring a U.S. employer seeking a temporary entry 
visa for a Singaporean professional to file an attestation with 
the Secretary of Labor consisting of four core elements similar 
to those required for attestations under the H-1B visa program. 
Thus, an employer would have to attest that:
    It would pay the employee the higher of: (a) the actual 
wage paid to all other individuals with similar experience and 
qualifications for the specific employment in question, or (b) 
the prevailing wage level for the occupational classification 
in the area of employment.
    It would provide working conditions for the employee that 
would not adversely affect the working conditions of workers 
similarly employed. There is no strike or lockout in the course 
of a labor dispute in the occupational classification at the 
place of employment. The employer has provided notice of its 
attestation to its employees' bargaining representative in the 
occupational classification in the area for which the employee 
is sought or, absent such a representative, has otherwise 
notified its employees. Like the contents of the attestation 
itself, the enforcement requirements are based on requirements 
under the H-1B visa program. Unlike the H-1B program, the 
period of authorized admission for H-1B1 aliens is one year, 
and may be extended in one year increments.
            Pre-Introduction ``mock markup'' of U.S.-Singapore FTA 
                    implementing legislation and committee amendments 
                    incorporated into H.R. 2739
    On July 10, 2003, the Committee held a pre-introduction 
``mock markup'' of draft implementing legislation submitted by 
the Administration to the Committee. The Committee's 
consideration of this draft legislation was limited to Title IV 
of the draft implementing legislation. During this meeting, 
Chairman Sensenbrenner, Ranking Member Conyers, and several 
Members of the Committee made it clear that they opposed the 
inclusion of immigration provisions in H.R. 2739 and that they 
would not support any future FTA that included substantive 
changes to United States immigration law.
            Judiciary Committee amendments to draft implementing 
                    legislation
    The Committee reported several amendments to the 
immigration provisions by voice vote. The amendments were 
reflected in H.R. 2739.
    First, the Committee reported an amendment by 
Representative King to transfer the new ``W'' professional 
worker visa category for citizens of Singapore to 
Sec. 101(a)(15)(H)(i)(b)(1) of the Immigration and Nationality 
Act, rather than Sec. 101(a)(15)(W) as provided for in the 
draft implementing legislation. Representative King's amendment 
also ensured that in future years, the national H-1B visa cap 
will be reduced in two situations. First, the number of H-1B 
visas available in a fiscal year will be reduced by the number 
of Singaporean citizens granted extensions of H-1B1 status in 
that fiscal year after having previously been granted five or 
more consecutive prior extensions. Second, the number of H-1B 
visas available in a fiscal year will be reduced by the number 
of H-1B1 visas allocated (5,400 for citizens of Singapore). 
However, if at the end of a fiscal year, the 6,800 slots 
reserved for citizens of Chile and Singapore have not been 
exhausted, the number of H-1B visas available for that fiscal 
year will be adjusted upwards by the number of unused Chile and 
Singapore visas. These newly available H-1B visas may be issued 
within the first 45 days of the next fiscal year to aliens who 
had applied for such visas during the fiscal year for which the 
adjustment was made.
    The Committee also reported an amendment offered by 
Representatives Berman and Conyers requiring that an 
application for every second extension for an H-1B1 visa be 
accompanied by a new employer attestation. This will have the 
effect of requiring the employer to update the prevailing wage 
determination at such time. The amendment also requires that an 
employer pay a fee when H-1B1 status is initially granted and 
after every second extension of that status. The fee shall be 
the same as the fee an employer must pay when petitioning for 
an H-1B visa. However, if no fee is being assessed under the H-
1B program, no fee shall be imposed under the H-1B1 program. 
Finally, the implementing legislation now clarifies that an 
employer generally cannot sponsor an alien for an E, L, or H-
1B1 visa if there is any labor dispute occurring in the 
occupational classification at the place of employment, 
regardless of whether the labor dispute is classified as a 
strike or lockout. In this regard, worker protections in H.R. 
2739 are broader than those contained in the H-1B visa 
category.
    Following the Committee's markup consideration of H.R. 
2739, Chairman Sensenbrenner and Ranking Member Conyers sent a 
bipartisan letter co-signed by several Members of the Committee 
expressing strong Committee opposition to the inclusion of 
immigration-related provisions requiring changes to existing 
U.S. law in any subsequent free trade agreements submitted to 
Congress for its consideration. The Committee continues to 
closely monitor the negotiation of international trade 
agreements to ensure that no immigration provisions requiring 
changes to United States immigration law are presented.
    Legislative History.--H.R. 2739 was introduced on July 21, 
2003 by Tom DeLay, the House Majority Leader and referred to 
the committee. On July 16, 2003, the Judiciary Committee 
ordered H.R. 2738 reported. On July 22, 2003, the Judiciary 
Committee reported H.R. 2738 (H. Rept. No. 108-225, Part II). 
On July 24, the House passed H.R. 2738 with a vote of 272 yeas 
to 155 nays. On July 31, 2003, the Senate passed H.R. 2738 
without amendment by a vote of 66 Yeas to 32 Nays. H.R. 2738 
was signed by the President on September 3, 2003, and became 
Public Law No. 108-78.

H.R. 3036, the ``Department of Justice Appropriations Authorization 
        Act, FY 2004 to 2006''

    Summary.--Chairman F. James Sensenbrenner, Jr. introduced 
H.R. 3036 on September 9, 2003. H.R. 3036 would authorize 
appropriations for the Department of Justice for Fiscal Years 
2004 through 2006. The bill as introduced contained three 
titles. Title I would provide the authorizations for 
appropriations for the various activities of the Department. 
Title II would make various reforms to the Department's grant 
programs to assure accountability and evaluation of these 
programs. Title III would make miscellaneous changes to various 
Department authorizing statutes. At the Committee's markup, 
Title IV, relating to DNA database enhancement, and Title V, 
relating to the Koby Mandell Act, were added.
    Congressional authorization of appropriations for the 
Justice Department is required by law. (Public Law No. 94-503, 
Title II, Sec. 204, 90 Stat. 2427 (1976)) Title I contained 
authorizations of appropriations for the Department's various 
programs for Fiscal Years 2004 through 2006. These 
authorizations followed the President's budget request for the 
Department for Fiscal Year 2004. For Fiscal Year 2005, the 
authorizations represented the President's budget request plus 
a 2% increase. For Fiscal Year 2006, the authorizations 
represented the Fiscal Year 2005 authorization plus a 2% 
increase. The Committee went beyond the Administration's 
request in one respect. The Committee provided for additional 
funds for the Office of the Inspector General. The Committee 
expects the OIG to use these additional funds in fulfilling its 
duties under Sec. 1001 of the ``U.S.A. PATRIOT Act,'' Public 
Law 107-56. In addition, the authorization for the Federal 
Bureau of Investigation in all three years included language 
limiting the FBI's participation in the Terrorist Threat 
Integration Center (``TTIC'') to the analysis of intelligence 
information.
    Title II would generally reform the Department's grant 
programs, most of which are run through the Office of Justice 
Programs (``OJP'') or the Community Oriented Policing Services 
(``COPS'') Office. The Committee believes that many of the 
programs that these two offices administer are worthwhile and 
should be continued. The Committee also believes that the 
Department has made many administrative reforms in the last 
several years that have greatly increased the efficiency of 
these programs. The reforms in H.R. 3036 were intended to build 
on that progress and should not be interpreted to indicate any 
lack of support for that work. In fact, most of the measures 
included in Title II originated from a proposal formally 
submitted to the Congress by the Administration on June 4, 
2003.
    Title III would make a number of miscellaneous technical 
changes to statutes involving the Department. It would also 
make several more substantive changes. Section 304 was intended 
to ensure that the Justice Department uses the most cost-
effective training and meeting facilities for its employees. 
Section 305 would establish a statutory privacy officer within 
the Department to ensure that the Department safeguards 
personally identifiable information and complies with fair 
information practices pursuant to 5 U.S.C. Sec. 552a. Section 
306 was intended to ensure the United States Trustee Program (a 
component of the Justice Department) actively identifies 
matters warranting criminal referrals and undertakes efforts to 
prevent bankruptcy fraud and abuse. Section 307 would require 
the Attorney General to submit an annual report to Congress 
specifying the number of United States persons or residents 
detained on suspicion of terrorism and specifying the standards 
developed by the Department of Justice for recommending or 
determining that a person should be tried as a criminal 
defendant or should be designated as an enemy combatant.
    Title IV was added by an amendment offered by 
Representative Schiff and adopted by the Committee. It contains 
several provisions relating to enhancing DNA databases. First, 
it would amend the ``DNA Analysis Backlog Elimination Act of 
2000'' to require any state that receives grants under that Act 
to include every person convicted of a violent felony under its 
state law within its DNA database. Second, it would amend the 
provisions of the ``Violent Crime Control and Law Enforcement 
Act of 1994'' so that the DNA of persons arrested for crimes 
and the DNA of persons from whom DNA samples have been lawfully 
taken under state law may be included in the DNA database 
authorized under that Act. Third, it would amend the ``DNA 
Analysis Backlog Elimination Act of 2000'' to require any state 
that receives grants under that Act not to prohibit or limit 
its law enforcement officers from comparing lawfully obtained 
DNA samples with the information in the Combined DNA Index 
System. Finally, it would permanently reauthorize such sums as 
may be necessary to fund the DNA Backlog Grant Programs first 
authorized under the ``DNA Analysis Backlog Elimination Act of 
2000.''
    Title V was added by an amendment offered by Representative 
Weiner and adopted by the Committee. It would establish an 
office within the Department of Justice to undertake specific 
steps to facilitate the capture of terrorists who have harmed 
American citizens overseas and to ensure that all American 
victims of overseas terrorism are treated equally. It would 
require the President to establish within the Department of 
Justice an office to carry out the following activities: (1) 
create a Bringing Terrorists to Justice program that will offer 
rewards to captureterrorists involved in harming American 
citizens overseas; (2) establish a program to provide notification for 
American victims of overseas terrorism or their immediate family to 
update them on the status of efforts to capture the terrorists who 
harmed them; (3) work with other agencies to expand legal restrictions 
on terrorists to reap profits from books or movies concerning their 
crimes; (4) determine if terrorists who have harmed American citizens 
overseas are serving in police or security forces and request other 
agencies involved in providing assistance to those forces to halt 
assistance until such terrorists are removed from their positions; (5) 
undertake an assessment of the pattern of indictments of terrorists who 
have harmed American citizens overseas to determine the reasons for the 
absence of indictments in some regions; (6) monitor public actions by 
governments and regimes overseas to honor terrorists who have harmed 
American citizens overseas and encourage other agencies to halt their 
assistance to such governments and regimes; and (7) coordinate with 
other agencies to seek the transfer to United States custody of 
terrorists who have harmed American citizens overseas if they are 
released from the custody of other governments. It also authorizes such 
sums as may be necessary to carry out the purposes of Title V for 
Fiscal Year 2003 and subsequent Fiscal Year and makes amounts 
appropriated under the section available until expended.
    At the markup, Members of the Committee, including Chairman 
Sensenbrenner and Rep. Weiner, agreed in principle to 
consolidate a variety of programs within the COPS office into 
one single grant program encompassing all of the grant purposes 
that these programs currently encompass. As with the Byrne-
LLEBG merger, this consolidation would allow state and local 
governments more flexibility to spend the money for programs 
that work in their locality while easing the administrative 
burden of applying to a different program for each different 
purpose. This language was later negotiated and included in the 
bill as part of the manager's amendment adopted during house 
floor consideration.
    Legislative History.--H.R. 3036 was referred to the House 
Judiciary Committee on September 9, 2003. The Committee held a 
markup and reported the bill to the House, as amended, by a 
voice vote on September 10, 2003 (H. Rpt. No. 108-426). On 
March 30, 2004, Chairman Sensenbrenner moved to suspend the 
rules and pass the bill as amended, and the motion was agreed 
to by a voice vote. The bill was received in the Senate on 
March 31, 2004 and no further action was taken on the bill.

H.R. 3247, the ``Trail Responsibility and Accountability for the 
        Improvement of Lands (TRAIL) Act''

    Summary.--Congressman Thomas Tancredo introduced H.R. 3247 
on October 2, 2003. H.R. 3247 attempted to provide consistent 
enforcement authority to each of the four major land management 
agencies that respond to violations of regulations regarding 
the management, use, and protection of public lands under the 
jurisdiction of these agencies. Additionally, the bill would 
clarify the purposes for which collected fines may be used and 
would also incorporate the amended text of H.R 1038, the 
``Public Lands Fire Regulations Enforcement Act of 2003,'' as 
it relates to increasing the criminal penalties that may be 
imposed for a violation of fire regulations applicable to the 
public lands. (The Judiciary Committee favorably reported H.R. 
1038, with an amendment, by voice vote on September 15, 2003).
    Currently, each of the four major federal land management 
agencies (the Bureau of Land Management, the U.S. Forest 
Service, the National Park Service, and the U.S. Fish and 
Wildlife Service) have different penalties for similar 
violations of laws that protect public lands. This legislation 
would provide consistent penalties for violations under each of 
their organic acts or any regulation issued under those acts.
    H.R. 3247 would apply two general classes of fines and 
penalties, under 18 U.S.C. Sec. Sec. 3571 and 3581, for those 
who are guilty of certain crimes on federal lands. H.R. 3247 
would also designate the use of all collected fines to cover 
the cost of any improvement, protection, or rehabilitation work 
needed because of the action leading to the fine. Collected 
fines could also be used to increase public awareness of 
regulations or to cover administrative or legal expenses 
rendered necessary by the actions which lead to the fine. Any 
excess funds would be returned to the U.S. Treasury.
    H.R. 3247 would establish a minimum fine of $500 for a 
violation of fire rules and regulations on lands under the 
jurisdiction of the Bureau of Land Management, National Park 
System Lands, and National Forest System Lands, if the 
violation of the rule or regulation was the result of reckless 
conduct, occurred in an area subject to a complete ban on open 
fires, and resulted in damage to public or private property.
    Legislative History.--On May 20, 2004, H.R. 3247 was 
sequentially referred to the House Judiciary Committee for a 
period ending not later than June 30, 2004. On June 23, 2004, 
the Committee held a markup and ordered the bill reported as 
amended by a voice vote.\25\ On September 28, 2004, the bill 
was considered under suspension and passed the House by a voice 
vote. The bill was received in the Senate on September 29, 
2004. The Resources Committee reported H.R. 3247 with an 
amendment and filed H. Rept No. 108-511, Part I on May 20, 
2004.
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    \25\ H. Rep. No. 108-511 (2004).
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H.R. 3313--the ``Marriage Protection Act of 2004''

    Summary.--H.R. 3313 would prevent federal courts from 
striking down the provision of the Defense of Marriage Act (28 
U.S.C. Sec. 1738C) (``DOMA'') that provides that no state shall 
be required to accept same-sex marriage licenses granted in 
other states. At least 38 states specifically reject by statute 
the recognition of same-sex marriage licenses granted out-of-
state. Congress passed in DOMA by a vote of 342-67 in the House 
and 85-14 in the Senate.
    Legislative History.--H.R. 3313, the ``Marriage Protection 
Act of 2004,'' was introduced by Rep. John Hostettler on 
October 16, 2003. On June 24, 2004, the Constitution 
Subcommittee held a hearing on H.R. 3313 and the subject of 
``Limiting Federal Court Jurisdiction to Protect Marriage for 
the States'' at which testimony was received from the following 
witnesses: Phyllis Schlafly, Founder and President, Eagle 
Forum; Michael Gerhardt, Arthur B. Hanson Professor of Law, 
William & Mary Law School; Martin H. Redish, Louis and Harriet 
Ancel Professor of Law and Public Policy, Northwestern Law 
School; and William E. Dannemeyer, Former U.S. Representative. 
On July 14, 2004, the Committee met in open session and ordered 
favorably reported the bill H.R. 3313 with an amendment by a 
recorded vote of 21 to 13, a quorum being present. (H. Rept. 
No. 108-614). On July 22, 2004, H.R. 3313 was passed by the 
House by a vote of 233 to 194.

H.R. 4319, Title 46 Codification Act of 2004

    Summary.--H.R. 4319 is a joint product of the Department of 
Transportation and the Office of the Law Revision Counsel of 
the House of Representatives. On November 10, 2002, the 
Secretary of Transportation transmitted to Congress proposed 
legislation to complete the codification of title 46, United 
States Code. The Secretary's transmittal was referred to the 
Committee on the Judiciary of the House of Representatives. The 
Committee in turn requested the Office of the Law Revision 
Counsel, which has responsibility for preparing codification 
legislation pursuant to Sec. 285b of Title 2, United States 
Code, to review the Secretary's proposed legislation and to 
work with the Department of Transportation in preparing a bill 
for introduction. This bill is the product of that cooperative 
effort.
    Legislative History.--On May 12, 2004, H.R. 4319 was 
introduced by Chairman F. James Sensenbrenner, Jr. and Ranking 
Member John Conyers, Jr. On September 8, 2004 the committee 
reported the bill with an amendment by voice vote and filed H. 
Rept. No. 108-690. On September 28, 2004, H.R. 4319 passed the 
House under the suspension of the rules as amended, by a voice 
vote. H.R. 4319 was received in the Senate on September 29, 
2004. No further action was taken on the bill.

H.R. 4661, the ``Internet Spyware Prevention (I-SPY) Act of 2004''

    Summary.--H.R. 4661 enhances existing fraud and computer 
crime law with strong criminal penalties targeting the most 
egregious abuses perpetrated upon Internet users by persons who 
maliciously employ various covert software applications, 
programs, applets, or code commonly known as ``spyware.'' H.R. 
4661, as amended, also provides resources and guidance to the 
Department of Justice for the dedicated prosecution of these 
offenses as well as fraudulent online identity theft 
(``phishing'') offenses, and similar computer crimes.
    Legislative History.--H.R. 4661 was introduced by Rep. Bob 
Goodlatte, Rep. Zoe Lofgren, and Rep. Lamar S. Smith on June 
23, 2003 and referred to the Committee on the Judiciary. On 
September 9, 2004 the full Committee on the Judiciary met in 
open session and ordered favorably reported the bill H.R. 4661, 
with an amendment, by a voice vote. The Committee's report on 
H.R. 4661, as amended, was filed on September 23, 2004 as H. 
Rept. No. 108-698 and the bill was placed on the Union 
Calendar. On October 6, 2004 Rep. Goodlatte on behalf of 
Chairman Sensenbrenner moved that the House consider and pass 
H.R. 4661 as amended under suspension of the rules. H.R. 4661 
then passed the House under suspension of the rules on a roll 
call vote of 415-0. The bill was received in the Senate and 
placed on the legislative calendar, but H.R. 4661 had no 
further consideration by the Senate before the end of the 108th 
Congress.

H.R. 5107, the ``Justice for All Act of 2004''

    Summary.--Chairman Sensenbrenner introduced H.R. 5107 on 
September 21, 2004. This legislation incorporated the text of 
H.R. 3214 as passed by the House and legislation similar to the 
Senate-passed Victims'rights bill, S. 2329.
    H.R. 5107 enhanced the rights and protections for all 
persons involved in the criminal justice system through two 
different, but complementary mechanisms: (1) a new set of 
rights for victims of crime, which are both enforceable in a 
court of law and supported by fully-funded victims' assistance 
programs; and (2) a comprehensive DNA bill that seeks to ensure 
that the true offender is caught and convicted for the crime. 
Title I enumerated eight rights for crime victims and provided 
an enforcement mechanism for those rights. It also authorized 
$155 million in funding over the next 5 years for victims' 
assistance programs at the Federal and state level.
    Titles II, III, and IV addressed three interrelated DNA 
problems. Title II provided for the elimination of the large 
backlog of DNA evidence that has not been analyzed. It also 
provided resources to remedy the lack of training, equipment, 
technology, and standards for handling DNA and other forensic 
evidence. Title II addressed the backlog by reauthorizing and 
expanding the DNA Analysis Backlog Elimination Act of 2000. It 
increased the authorized funding levels for the DNA Analysis 
Backlog Elimination program to $151 million annually for the 
next 5 years. Title III authorized funding for training for law 
enforcement, correctional, court, and medical personnel on the 
use of DNA evidence. Title III also authorized grant programs 
to reduce other forensic science backlogs, research new DNA 
technology, and promote the use of DNA technology to identify 
missing persons. Lastly, Title III provided funds to the 
Federal Bureau Investigation (``FBI'') for the administration 
of its DNA programs.
    Title IV established rules for post-conviction DNA testing 
of Federal prison inmates and required the preservation of 
biological evidence in Federal criminal cases while the 
defendant remains incarcerated. It provided incentive grants to 
States that adopt adequate procedures for providing post-
conviction DNA testing and preserving biological evidence. 
Additionally, it authorized funding to help States provide 
competent legal services for both the prosecution and the 
defense in death penalty cases and provided funds for post-
conviction DNA testing.
    Legislative History.--The House Judiciary Committee held a 
markup of H.R. 5107 on September 22, 2004 and ordered the bill 
reported to the House by a voice vote (H. Rpt. No. 108-711). On 
October 6, 2004, Chairman Sensenbrenner introduced an amendment 
to the bill, and the bill passed as amended, by a vote of 393-
14. On October 9, 2004, the bill passed the Senate by unanimous 
consent and became Public Law No. 108-405 on October 30, 2004.

H.R. 5363, A bill to authorize salary adjustments for Justices and 
        judges of the United States for fiscal year 2005

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 5363 addresses the statutory mandate 
of Sec. 140 of Pub. L. No. 97-92 by specifically authorizing a 
cost-of-living adjustment (COLA) for federal judges in advance 
of or concurrent with an appropriation.
    Legislative History.--On November 16, 2004, H.R. 5363 was 
referred to the House Committee on the Judiciary. The following 
day the House passed the bill, without amendment, by voice 
vote. On December 8, 2004, the Senate passed H.R. 5363, without 
amendment, by unanimous consent. The President signed H.R. 5363 
on December 23, 2004, which became Public Law No. 108-491. The 
text of H.R. 5363 was also included in H.R. 4818, the 
``Consolidated Appropriations Act of 2005'' (both houses of 
Congress agreed to the accompanying conference report to H.R. 
4818, H. Rept. 108-792, on November 20, 2004). On December 8, 
2004 the President signed the bill into law. (Public Law No. 
108-447)

H.J. Res. 106--Federal Marriage Amendment

    Summary.--H.J. Res. 106 is a slightly modified form of H.J. 
Res. 56 that amends the Constitution to state that marriage is 
the union of one man and one woman.
    Legislative History.--H.J. Res. 106 was introduced by Rep. 
Marilyn Musgrave on September 23, 2003. It was referred to the 
Committee on September 23, 2004. No action was taken on H.J. 
Res. 106 in Committee. On September 30, 2004, H.J. Res. 106 
failed to pass the House by a vote of 227-186, a two-thirds 
vote being necessary to pass an amendment to the Constitution.

H. Con. Res. 414--Expressing the sense of the Congress, that as 
        Congress recognizes the 50th anniversary of the Brown v. Board 
        of Education decision, all Americans are encouraged to observe 
        this anniversary with a commitment to continuing and building 
        on the legacy of Brown

    Summary.--The purpose of this concurrent resolution was to 
commemorate the 50th anniversary of the United States Supreme 
Court's decision in Brown v. Board of Education, which held 
that ``separate but equal'' educational institutions were 
unconstitutional. The resolution recognized the bravery of the 
four plaintiffs who brought the cases that were consolidated 
into Brown, as well as the pioneering role that Mexican-
American plaintiffs played in developing the case law to 
overturn Plessy v. Ferguson. The resolution also recognizes the 
importance of the Brown decision in the fight against 
discrimination in the United States.
    Legislative History.--Congressman Conyers of Michigan 
introduced H. Con. Res. 414 on May 4, 2004, and it was 
subsequently referred to the Committee on the Judiciary. On May 
12, 2004, the Committee met in open session and ordered the 
concurrent resolution reported, without amendment, by a vote of 
27 to 0. The Committee filed the report, H. Rept. No. 108-485, 
on May 12, 2004. On May 13, 2004, the House of Representatives 
considered H. Con. Res. 414 and passed it by 406 to 1. The 
resolution subsequently was referred to the Senate Committee on 
the Judiciary. On May 19, 2004, the Senate Judiciary Committee 
discharged the resolution by unanimous consent, and the full 
Senate agreed to it without amendment by unanimous consent.

H.J. Res. 63--the ``Compact of Free Association Amendments of 2003''

    Summary.--In 1982, the U.S. government and the government 
of the Federated States of Micronesia concluded a Compact of 
Free Association, which would make the Federated States an 
independent nation in free association with the U.S. In 1983, 
this compact was approved by the people of Micronesia in a 
plebiscite. In 1983, the U.S. government and the government of 
the Marshall Islands concluded a Compact of Free Association, 
which would make the Marshall Islands an independent nation in 
free association with the U.S. Later that year, this compact 
was approved by the people of the Marshall Islands in a 
plebiscite. The Compacts provided that the U.S. would support 
the new nations economically with the goal of making them self-
sufficient. As to defense matters, the Compacts provided that 
the U.S. would defend the nations against attack. The U.S. 
would also be able to establish by agreement military bases in 
their territory, foreclose access to, or use of, the nations by 
military personnel or for the military purposes of third 
countries (military denial), and bar the nations from taking 
actions that were incompatible with U.S. defense interests 
(defense veto). As to the Marshall Islands, a major subsidiary 
agreement allowed the U.S. continued use of the Kwajalein 
missile test range.
    The current Compacts provide that most citizens of the 
Federated States of Micronesia and the Marshall Islands ``may 
enter into, lawfully engage in occupations, and establish 
residence as a nonimmigrant in the United States.'' In recent 
years, the U.S. government has expressed a number of concerns 
regarding the immigration provisions of the current Compacts. 
First, the ability of aliens claiming to be citizens of the 
nations to enter the U.S. without having to have passports is 
an open invitation for abuse by terrorists. Second, the 
government of the Marshall Islands has in the past sold 
citizenship and passports to non-native ``investors''. Third, 
Americans have taken advantage of the ability of citizens of 
the nations to enter the U.S. without visas to bring in adopted 
children without having to meet the requirements of the 
Immigration and Nationality Act regarding foreign adoptions 
that are designed to safeguard the interests of the child and 
his or her biological parents. Fourth, labor recruiters who 
arrange jobs in the United States for citizens of the nations 
have been abusing these workers, such as by not revealing the 
real nature of the jobs they will perform, charging prohibitive 
liquidated damages if the workers leave employment before the 
end of their employment contracts, and by leaving workers with 
no ability to return home at the conclusion of their jobs.
    H.J. Res. 63 amends the Compacts pursuant to these 
negotiated agreements:
    1. Passports will be required to enter the U.S.
    2. No person who has been granted citizenship in the 
Federated States of Micronesia or the Marshall Islands, or has 
been issued a Federated States of Micronesia or Marshall 
Islands passport pursuant to any investment, passport sale, or 
similar program, shall be eligible for admission as a 
nonimmigrant under the Compacts.
    3. A naturalized citizen of the Federated States of 
Micronesia or the Marshall Islands is only eligible for the 
benefits of nonimmigrant entry into the U.S. under the Compacts 
if he is (1) the spouse or unmarried minor child of a citizen 
of the Federated States of Micronesia or the Marshall Islands 
(who was a citizen of the Trust Territory of the Pacific 
Islands before the effective date of the relevant Compact or 
who was born in the islands after the effective date of the 
relevant Compact) and has been an actual resident of the 
Federated States of Micronesia or the Marshall Islands for not 
less than five years after being naturalized and who holds a 
certificate of actual residence, and, if a spouse, has been 
married to the citizen for at least five years, or (2) an 
actual resident for not less than five years after being 
naturalized (as of April 30, 2003), who continues to be an 
actual resident and who holds a certificate of actual residence 
and whose name is included on a list furnished by the 
government of the Federated States of Micronesia or the 
Marshall Islands not later than the effective date of the 
relevant amended Compact. In addition, no naturalized citizen 
is eligible for the rights under the Compacts if the 
circumstances associated with the naturalization are such as to 
allow a reasonable inference on the part of appropriate 
officials of the United States that the naturalization was 
acquired primarily in order to obtain entry rights into the 
United States.
    4. Any child who is coming to the U.S. pursuant to an 
adoption outside the country or for the purpose of adoption in 
the U.S., is ineligible for admission as a nonimmigrant under 
the Compacts. The child would have to be brought to the U.S. 
pursuant to the applicable provisions of the Immigration and 
Nationality Act.
    5. In order to address the U.S. government's concerns 
regarding labor recruitment practices, separate agreements, 
which shall come into effect simultaneously with the Compacts, 
shall govern requirements relating to labor recruitment 
practices.
    Legislative History.--On July 8, 2003, Representative James 
A. Leach introduced H.J. Res. 63 (by request). H.J. Res. 63 was 
referred to the Committees on International Relations, 
Resources, and the Judiciary. The Committee on International 
relations filed a legislative report H. Rept. No. 108-262, Part 
I. The Committee on Resources filed a legislative report H. 
Rept. 108-262, Part II. On September 15, 2003, reported out 
with an amendment H.J. Res. 63 by voice vote. The resolution 
was passed by the House on October 28, 2003 by a voice vote. On 
November 6, 2003 the Senate passed the resolution by unanimous 
consent, with amendments to the title and text. On November 20, 
2003 the House passed the amendments from the Senate by a 417-2 
vote. The President signed the resolution on December 17, 2003 
and it became Public Law No. 108-188.

S. 1233, the ``National Great Black Americans Commemoration Act of 
        2004''

    Summary.--Senator Barbara Mikulski introduced S. 1233, the 
``National Great Black Americans Commemoration Act'' on June 
11, 2003. The purpose of S. 1233 was to authorize assistance 
for the National Great Blacks in Wax Museum and Justice 
Learning Center. The Great Blacks in Wax Museum, Inc. in 
Baltimore, Maryland, a nonprofit organization, was founded in 
1983 by Drs. Elmer and Joanne Martin, two Baltimore educators 
who used their personal savings to purchase wax figures, which 
they displayed in schools, churches, shopping malls, and 
festivals in the mid-Atlantic region. It is the nation's first 
wax museum presenting the history of great Black Americans, 
including those who have served in Congress, in senior 
executive branch positions, in the law, the judiciary and other 
fields, as well as others who have made significant 
contributions to benefit the Nation.
    The museum plans to expand its existing facilities to 
establish a 120,000 square foot National Great Blacks in Wax 
Museum and Justice Learning Center, which is intended to serve 
as a national museum and center for presentation of wax figures 
and related interactive educational exhibits portraying the 
history of great Black Americans. The committee agreed to amend 
the legislation to provide for $5 million and to limit the use 
of funds to education on civil rights and juvenile justice.
    Legislative History.--The Senate passed S. 1233 by 
unanimous consent on July 14, 2003. S. 1233 was discharged from 
the House Judiciary Committee on April 2, 2004. On June 1, 
2004, the bill was amended by the House and passed under 
suspension of the rules. On June 3, 2004, the Senate agreed to 
the House amendment by unanimous consent, and the bill became 
Public Law No. 108-238 on June 22, 2004.

S. 2363, To Revise and Extend the Boys and Girls Clubs of America

    Summary.--Senator Orrin G. Hatch introduced S. 2363, to 
revise and extend the Boys and Girls Clubs of America on April 
29, 2004. The Economic Espionage Act of 1996 (42 U.S.C. 
Sec. 13751 note) established a program to provide Department of 
Justice grant support for starting new Boys and Girls Clubs in 
distressed areas. When the bill was introduced, the law called 
for the establishment of 1,200 new clubs by the end of 2005. S. 
2363 increased this number by 300 for a total of 1,500. 
Previous law also called for a goal of 4,000 total clubs by 
January 1, 2007. S. 2363 increased that goal to at least 5,000 
such facilities in operation by January 1, 2010. Additionally, 
the bill extended through FY 2010 the authority of the Director 
of the Bureau of Justice Assistance of the Department of 
Justice to make grants to the organization to establish such 
facilities. It authorized appropriations for FY 2006 through FY 
2010, beginning with $80 million in FY 2006 and increasing each 
year by increments of $5 million, reaching $100 million in FY 
2010.
    Legislative History.--S. 2363 was introduced by Senator 
Hatch and Senator Leahy on April 29, 2004. On June 3, 2004, the 
Senate Committee on the Judiciary reported S. 2363 favorably, 
and the same day, the Senate passed the bill without amendment 
by unanimous consent. The bill was referred to the House 
Committee on the Judiciary on June 4, 2004. On June 3, 2004, 
the Senate passed S. 2363 by unanimous consent. On June 4, 
2004, the bill was referred to the House Judiciary Committee. 
On July 7, 2004, the Committee held a markup and ordered the 
bill reported to the House by a voice vote (H. Rept. No. 108-
601). On September 28, 2004, Chairman Sensenbrenner moved to 
suspend the rules and pass the bill. This motion was agreed to 
by a vote of 374-19. The bill became Public Law No. 108-344 on 
October 18, 2004.

                OTHER MATTERS HELD OF THE FULL COMMITTEE

H.R. 6, the ``Energy Policy Act of 2003''

    Summary.--H.R. 6 represents comprehensive energy reform 
legislation. The legislation consists of ten broad titles, many 
of which were similar to H.R. 4, which passed the House during 
the 107th Congress. These titles are: Title I, Energy 
Conservation; Title II, Oil and Gas; Title III, Hydroelectric 
Relicensing; Title IV, Nuclear Matters; Title V, Vehicles and 
Fuels; Title VI, DOE Programs; Title VII, Electricity; Title 
VIII, Coal; Title IX, Renewable Fuels Standards; and Title X, 
Automobile Efficiency.
    There were several provisions in Senate-passed H.R. 6 for 
which members of the Committee were appointed as conferees. 
Section 206 would provide a more clearly defined standard of 
antitrust review for electric utilities to develop, implement, 
and enforce reliability standards. Section 253 would have 
established a Department of Consumer Advocacy within the 
Department of Justice to represent the interests of energy 
customers on matters concerning the rates or services of public 
utilities and natural gas companies.
    Section 532 of the Senate Amendment consists of three 
components. The first component amends the Bankruptcy Code to 
exempt from any creditor claims (with certain exceptions) funds 
or other assets held by a Nuclear Regulatory Commission (NRC) 
licensee or any other person intended to be used to comply with 
an NRC regulation or order regarding the decontamination and 
decommissioning of a nuclear power reactor licensed under 
certain provisions of the Atomic Energy Act, until the 
decontamination and decommissioning of the nuclear power 
reactor is completed to NRC's satisfaction. The second 
component of Sec. 532 provides that an obligation of a 
licensee, former licensee, or other person to use funds or 
other assets to satisfy a responsibility (as described in the 
preceding paragraph) may not be rejected, avoided, or 
discharged in bankruptcy or in any liquidation, reorganization, 
receivership, or other insolvency proceeding under Federal or 
State law. The third component prohibits private insurance 
premiums and standard deferred premiums maintained pursuant to 
Sec. 170b of the Atomic Energy Act of 1954 from being used to 
satisfy the claim of a creditor in a bankruptcy case until the 
indemnification agreement executed in accordance with 
Sec. 170(c) of such Act is terminated. At the Committee's 
request, these provisions were deleted from the legislation in 
conference.
    Section 708 of Senate-passed H.R. 6 contains language 
intended to expedite the ``approval, construction, and initial 
operation of an Alaska natural gas transportation project.'' 
Section 708 would create expedited judicial review of claims 
related to construction of the pipeline and make the D.C. 
Circuit Court of Appeals the court of original jurisdiction for 
legal challenges to construction of this pipeline. Section 767 
enhances fines for willful destruction of oil or gas pipelines, 
while Sec. 783 enhanced criminal penalties for destroying 
pipeline facilities. Section 105(c)(1) requires participating 
entities to establish a baseline for greenhouse emissions and 
to annually report to appropriate agencies their direct and 
indirect greenhouse gas emissions beginning on April 1 of the 
third calendar year after enactment. Finally, Sec. 1109 of the 
Senate amendment would permit the Attorney General, at the 
request of designated agencies such as the Environmental 
Protection Agency and the Department of Transportation, to 
bring a civil action against a party for failing to comply with 
the greenhouse gas emission limitations contained in the bill. 
Finally, the Committee worked closely on provisions pertaining 
to liability standards for the design, manufacture, and 
distribution of MTBE.
    Legislative History.--H.R. 6 was introduced by Committee on 
Energy and Commerce Chairman Billy Tauzin on April 7, 2003. On 
April 11, 2003, the House passed H.R. 6 by a recorded vote of 
247 yeas to 175 nays. On July 31, 2003, the Senate passed H.R. 
6 by a vote of 84 yeas to 14 nays. On November 18, 2003, the 
Conference Report was agreed to by the House by a vote of 246 
yeas to 180 nays. However, the Senate could not overcome a 
filibuster of the legislation, and it was not enacted into law.

H.R. 1588, the ``National Defense Authorization Act for Fiscal Year 
        2004''

    Summary.--Congressman Duncan Hunter introduced H.R. 1588 on 
April 3, 2003. This bill authorized appropriations for Fiscal 
Year 2004 for, among other things, the Department of Defense's 
military activities; for the Department of Energy's defense 
activities; and for military construction.
    Section 852 of the bill provided Federal support through 
the establishment of a program for State and local governments 
to purchase anti-terrorism technology or services and a program 
to make ``SAFER'' grants to hire firefighters for local 
communities. Subsection 852(a) through section 852(e) addressed 
the procurement procedures for state and local governments that 
wish to participate. Section 852(f) established a program 
almost identical to the COPS program for firefighters called 
the ``SAFER'' grant program to be administered by the 
Department of Homeland Security to provide grants to local 
communities to increase the number of permanent positions for 
firefighters. In the original legislation, the grants would 
have provided for four equal annual installments with the 
eligible entity matching 25% of the grant in the second year, 
50% in the third year, and 75% in the fourth year. To take 
advantage of the grants, an eligible entity should provide a 
plan regarding how it will continue to fund the positions after 
the four years. Entities smaller than 50,000 would not be 
subject to the plan requirements. Preferential treatment could 
be given to an entity that agreed to provide more funds than 
the federal match requires.
    Representative Weldon offered an amendment to replace 
Sec. 852(f). The Weldon amendment required the grant program to 
be administered by FEMA and the grants to be made directly to 
the fire departments. The Weldon amendment required the entity 
receiving the grant to provide less of a match than in the 
original bill-10% in the first year; 20% in the second year; 
50% in the third year; and 70% in the fourth year. The Weldon 
amendment authorized appropriations from FY 2004 through FY 
2010 beginning with $1 billion and increasing each year. It 
capped the funding for any one firefighter at $100,000 over 
four years indexed annually for inflation. The Weldon amendment 
was agreed to in the conference report.
    Legislative History.--On July 16, 2003, the Speaker 
appointed conferees from the Committee on the Judiciary for 
consideration of Sec. 661-665 and 851-853 of the Senate 
amendment and modifications committed to conference. On 
November 7, 2003, the House agreed to the conference report by 
a vote of 362-40, and on November 12, 2003, the Senate agreed 
to the conference report by a vote of 95-3. The bill became 
Public Law No. 108-136 on November 24, 2003.

H.R. 2115, the ``Flight 100--Century of Aviation Reauthorization Act''

    Summary.--H.R. 2115 would authorize appropriations for 
programs administered by the Federal Aviation Administration. 
Most of the bill's authorizations would extend for four years: 
the 2004-2007 period. Members of the Committee were appointed 
as conferees on several provisions within its jurisdiction, 
including those pertaining to antitrust, law enforcement, and 
administrative law. Specifically, Sec. 301, Delay Reduction 
Meetings, permits the Secretary of the Department of 
Transportation to request that air carriers meet with 
Administrator of the Federal Aviation Administration to discuss 
flight reductions at severely congested airports. This section 
also authorizes the Secretary of the Department of 
Transportation to establish a pilot program to authorize 
discussions and agreements between two or more air carriers for 
the purpose of reducing flight delays during periods of 
inclement weather. During the conference, at the Committee's 
request, the criteria under which these discussions may take 
place were limited, as was the duration of the program. In 
addition, the Secretary of Transportation is required to review 
this temporary program to ensure against any collusive activity 
or anticompetitive misconduct. These provisions became Sec. 423 
of the conference report. Finally, Sec. 405 of the Senate-
passed version of H.R. 2115 provides authority for pilots of 
cargo aircraft to carry firearms: This language was included in 
Sec. 609 of the conference report.
    Legislative History.--H.R. 2215 was introduced on May 15, 
2003 by Transportation and Infrastructure Committee Chairman 
Young. It was reported by the Transportation Committee on June 
6, 2003 (H.R. Rept. No. 108-143). On June 11, 2003, it passed 
the House by a vote of 418-8. It passed the Senate on June 12, 
2003 by a vote of 94-0. The House passed the Conference Report 
for H.R. 2215 on October 30, 2003 by a vote of 211-207. The 
Senate passed the Conference Report by unanimous consent on 
November 21, 2003. The legislation was signed into law by the 
President on December 12, 2003 and became Public Law No. 108-
176.

H.R. 2731, the ``Occupational Safety and Health Small Employer Access 
        to Justice Act of 2003''

    Summary.--Introduced by Representative Charlie Norwood, 
H.R. 2731 amends the Occupational Safety and Health Act of 1970 
to provide for the award of attorney's fees and costs to very 
small employers when they prevail in litigation prompted by the 
issuance of citations by the Occupational Safety and Health 
Administration.
    Legislative History.--On May 5, 2004, the House Committee 
on Education and the Workforce ordered favorably reported H.R. 
2731, with an amendment, by a roll call vote of 24-20 (H. Rept. 
108-489, Part I). On May 13, 2004, the bill was referred 
sequentially to the House Committee on the Judiciary for a 
period ending not later than May 17, 2004. On May 17, 2004, the 
Committee on the Judiciary discharged itself from consideration 
of H.R. 2731. On May 18, 2004, the House passed H.R. 2731, with 
an amendment, by a roll call vote of 233-194. That same day the 
bill was laid on the table and its text appended to H.R. 2728, 
the ``Occupational Safety and Health Small Business in Court 
Day Act of 2004,'' pursuant to H. Res. 645, the rule by which 
H.R. 2731 was considered. The House passed H.R. 2728, with an 
amendment, by a roll call vote of 251-177 on May 18, 2004. The 
Senate received the measure and placed the bill on the Senate 
Legislative Calendar. The Senate took no further action on this 
bill.

H.R. 3550, the ``Transportation Equity Act''

    Summary.--H.R. 3550 would authorize funds for Federal-aid 
highways, highway safety, truck safety, public transportation, 
transportation research, transportation planning and project 
delivery, hazardous materials transportation, and other surface 
transportation programs carried out by the United States 
Department of Transportation, to be financed primarily through 
the Federal Highway Trust Fund.
    There were several provisions of this legislation for which 
members of the Committee were appointed as conferees. Chairman 
Sensenbrenner and Representative Lamar S. Smith were appointed 
conferees for the following sections: Sections 105, 1207, 1602, 
1812, 2011, 3023, 4105, 4108, 4201, 4202, 4204, 5209, 5501, 
6001, 6002, 7012, 7019-7022, and 7024 of the House bill, and 
sections 1512, 1513, 1802, 3006, 3022, 3030, 4104, 4110, 4174, 
4226, 4231, 4234, 4265, 4307, 4308, 4315, 4424, 4432, 4440-
4442, 4445, 4447, 4462, 4463, 4633, and 4661 of the Senate 
amendment.
    Legislative History.--H.R. 3550 was introduced by 
Transportation and Infrastructure Committee Chairman Young on 
November 20, 2003. On March 29, 2004, H.R. 3550 was referred 
sequentially to, and discharged by, the Judiciary Committee. On 
April 2, 2004, the House passed H.R. 3550 by a vote of 357-65. 
On May 19, 2004, the Senate passed H.R. 3550 with an amendment 
by unanimous consent. However, the House-Senate conference 
could not resolve outstanding differences between the House and 
Senate-passed versions of the legislation, and it was not 
enacted into law.

H.R. 4200, the ``National Defense Authorization Act for Fiscal Year 
        2005''

    Summary.--H.R. 4200 was introduced by Representative Duncan 
Hunter on April 22, 2004. The Senate counterpart, S. 2400, 
included Sec. 3401-10, which added a new hate crime provisions 
to Title 18 and provided for DoJ grants and other means to 
address hate crimes. These provisions were stripped out during 
the House and Senate conference of these bills.
    Additionally, the FY 2005 Defense Authorization bill 
contained significant amendments to the Energy Employees 
Occupational Illness Compensation Program Act (EEOICPA). The 
language as passed by the House only contained minor 
improvements to the portion of the program that addressed 
Department of Energy assistance to workers in obtaining state 
workers' compensation. The Senate language was much more 
expansive and included removing administration of the workers 
compensation section from DOE and placing in under the 
Department of Labor as well as restructuring that section to 
change it from an assistance program to assistance and 
potential federal payment program should compensation through 
other means be unavailable.
    In conference, the whole program was revamped in several 
major ways. First, it created a new Part E of EEOICPA, 
administered by DOL, which will make federal payments to 
eligible individuals instead of state workers' compensation 
assistance. That benefit was also extended to uranium workers 
covered by the Radiation Exposure Compensation Act. All monies 
for the payments necessary to satisfy the claims of RECA 
workers were also transferred to the funding mechanism under 
EEOICPA, and therefore, no longer subject to appropriations. 
Workers who worked at private facilities formally used by DOE 
are now able to pursue a claim under EEOICPA if the facility 
was listed as contaminated in a 2003 report by NIOSH or if 
listed in a new follow up report this legislation requires of 
NIOSH.
    Employees covered under this amended program will receive 
$2,500 for each one percent permanent impairment caused by 
covered conditions, based on AMA Impairment Guides. They may 
also be compensated for wage-loss based upon a lump- sum amount 
for each year (prior to reaching the Social Security retirement 
age) where their earnings fell below the average of their last 
three years' earnings before they suffered a wage loss as a 
result of a covered illness. If they made less than 50% of the 
average 3 year earnings as a result of a covered illness, they 
receive $15,000. If they made more than 50% but less than 75% 
of their calculated average as a result of a covered illness, 
they receive 10,000 for each of those years. Survivors (spouses 
and children who meet the dependency criteria) are entitled to 
$125,000 if a covered condition caused or contributed to the 
employee's death. Substantial periods of wage-loss before 
retirement age (an aggregate ten or twenty years) suffered by 
the employee can qualify a survivor for an extra $25,000 or 
$50,000. If a claim has been filed, but an employee dies from a 
cause other than a covered condition before getting benefits, 
the survivors can get either the benefits the employee would 
have received or survivor benefits.
    Legislative History.--On May 20, 2004, the House passed 
H.R. 4200 by a vote of 391-34. On June 6, 2004, the Senate 
struck all after the enacting clause and substituted the text 
of S. 2400, which passed by unanimous consent. Conferees were 
appointed, and the conference report was filed on October 8, 
2004.\26\ On October 9, 2004, the House agreed to the 
conference report by a vote of 359-14, and the Senate agreed to 
the report by unanimous consent. On October 28, 2004, the act 
became Public Law No. 108-375.
---------------------------------------------------------------------------
    \26\ H. Rep. No. 108-767 (2004).
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H.R. 4341, the ``Postal Accountability and Enhancement Act''

    Summary.--The ``Postal Accountability and Enhancement Act'' 
reflects the Bush Administration's principles for postal 
reform, and incorporates nearly all of the seventeen 
legislative recommendations made by the President's Commission 
on the U.S. Postal Service. The legislation mandates 
transparency in the Service's finances, costs, and operations. 
The legislation creates a modern system of rate regulation, 
establishes fair competition rules and a powerful new 
regulator, addresses the Postal Service's universal service 
obligation and the scope of the mail monopoly, and improves the 
collective bargaining process. However, unlike the unlimited 
and unfettered pricing flexibility recommended for the Postal 
Service by the President's Commission for competitive product 
offerings, the bill imposes important controls to protect the 
public interest from unfair competition.
    H.R. 4341 was reported by unanimous consent by the 
Committee on Government Reform and Oversight on May 12, 2004 
(H.R. Rep. No. 108-672). The Committee on the Judiciary 
received a sequential referral to consider provisions within 
the Committee's subject matter jurisdiction. A summary of these 
provisions follows:
    1. Section 205 revises the complaint and appellate review 
of the Postal Regulatory Commission--which is charged with 
setting postage rates and helping define activities in which 
the Postal Service may compete with private industry. Section 
301 establishes an off-budget fund within the Treasury 
Department for revenues and expenditures associated with 
services offered by the Postal Service on a competitive basis. 
Section 303 prohibits the Postal Service from issuing 
regulations that preclude competition or compel the disclosure 
of protected intellectual property.
    2. Section 304 ensures that laws regulating the conduct of 
private commercial activities also apply to competitive 
activities undertaken by the Postal Service, including the 
antitrust laws, bankruptcy laws, the Federal Trade Commission 
Act, and laws pertaining to sovereign immunity. During markup 
consideration of H.R. 4341, the Committee reported an amendment 
offered by Chairman Sensenbrenner and Ranking Member Conyers to 
strike language that would have defined the Postal Service, to 
the extent it engages in competitive activity, as a ``person'' 
for purposes of the bankruptcy laws.
    3. Section 502 provides authority for the Postal Regulatory 
Commission to issue subpoenas to compel disclosure of evidence 
in its proceedings, and to refer failures to adhere to 
Commission directives to federal district court. Section 703 
requires the Federal Trade Commission to prepare a report 
detailing how federal and state laws apply differently to 
competitive activities of the Postal Service and private 
companies. Section 801 provides permanent authority for the 
Postal Service to employ postal police to protect property and 
persons on Postal Service property, and gives the Attorney 
General authority to collect penalties and clean up costs 
associated with the unlawful mailing of hazardous materials. 
Finally, section 809 prohibits the mailing of hazardous 
materials and clarifies penalties for their shipment. Finally, 
the Committee reported an amendment offered by Crime, 
Terrorism, and Homeland Security Subcommittee Chairman Coble to 
place these changes to existing law in Title 18 of the United 
States Code.
    Legislative History.--H.R. 4341 was introduced on May 12, 
2004 by Representative McHugh, and sequentially referred to the 
Judiciary Committee. On September 23, 2004, the Committee 
reported H.R. 4341 as amended by voice vote (H.R. Rept. No. 
108-672, Part II). The legislation did not receive a floor 
vote.

H.R. 4818, the ``Omnibus Consolidated Appropriations Act of FY 2005''

    Summary.--H.R. 4818, the ``Omnibus Consolidated 
Appropriations Act of FY 2005'' sets forth certain limits and 
prohibitions on the use of appropriations for specified 
activities of the Federal Government. H.R. 4818 set forth the 
appropriations for many agencies under the oversight of the 
Judiciary Committee, including but not limited to the 
Department of Justice. Among the other matters contained in the 
bill that are a part of the Judiciary's Committee jurisdiction 
are, but are not limited to: the Satellite Home Viewer 
Extension Act, the Patent and Trademark Modernization Act, H-1B 
and L Visa reform, and naming the Oak tree as the national 
tree. Also language was included to add to each agency to 
designate a chief privacy officer to assume primary 
responsibility for privacy and data protection policy.
    Legislative History.--H.R. 4818 was introduced and referred 
to the Committee on Appropriations on July 13, 2004. On 
November 11, 2004, a conference report was filed H. Conf. 
Report No. 108-792. The conference report contained 8 of the 
spending bills approved by Congress annually. The President 
signed the bill on December 8, 2004. (Pub. L. No. 108-447)

                          OVERSIGHT ACTIVITIES

    Pursuant to Rule X, Clause 2(d), the Committee adopted an 
oversight plan for the 108th Congress. The oversight plan 
incorporated the matters which the Committee deemed, at the 
beginning of the Congress, to be worthy of its attention. Some 
of the matters contained in the oversight plan were addressed 
in the context of legislative hearings. The following is a list 
of the oversight hearings held by the full committee. The 
oversight activities of the subcommittee will be discussed 
separately in their respective sections.

List of oversight hearings

Direct Broadcast Satellite in the Multichannel Video 
            Distribution Market, May 8, 2003 (Serial No. 22)
United States Department of Justice, June 5, 2003 (Serial No. 
            59)
The Terrorist Threat Intergration Center (TTIC) and its 
            Relationship with the Departments of Justice and 
            Homeland Security, July 22, 2003 (Serial No. 64)
Competition in College Athletic Conferences and Antitrust 
            Aspects of the Bowl Championship Series, September 
            4, 2003 (Serial No. 58)
Savings the Savings Clause: Congressional Intent, the Trinko 
            Case, and the Role of the Antitrust Laws in 
            Promoting Competition in the Telecom Sector, 
            November 19, 2003 (Serial No. 62)
Should the Congress extend the October, 2004 Statutory Deadline 
            for requiring Foreign visitors to Present Biometric 
            Passports?, April 21, 2004 (Serial No. 111)
Safeguarding Americans from a Legal Culture of Fear: Approaches 
            to Limiting Lawsuit Abuse, June 22, 2004 (Serial 
            No. 95)

              Full Committee Antitrust Oversight Hearings


Direct satellite broadcast competition in the mulitchannel video 
        programming distribution market

    On Thursday, May 8, 2003, the Committee held a hearing on 
``Direct Broadcast Satellite Service Competition in the 
Multichannel Video Programming Distribution Marketplace.'' The 
following witnesses testified: K. Rupert Murdoch, Chairman and 
Chief Executive Officer, News Corporation; Kevin Arquit, 
Partner, Simpson, Thacher & Bartlett, Former Director, Bureau 
of Competition, Federal Trade Commission; Neal Schong, 
President Uvision, Vice Chairman, American Cable Association; 
Gene Kimmelman, Director, Consumers Union.
    Multichannel video programming distribution (MVPD) refers 
to the transmission of video services through cable television 
outlets, multichannel multipoint distribution services (such as 
line-of-sight microwave stations), and space-based satellites. 
DBS (Direct Broadcast Service) is a satellite service that 
allows operators to transmit entertainment content over the 
high power, high frequency (Ku Band) portion of the radio 
spectrum. DBS offers subscribers high density programming 
options, small receiving dishes, and CD-quality digital audio 
and video. DBS providers are also capable of delivering 
satellite-based broadband service. Other DTH satellite 
providers operate at a lower portion of the radio spectrum (C-
band). As a result, they transmit less data, and require much 
larger receiving dishes. With the commercial emergence of DBS 
in 1994, the number of C-Band DTH subscribers has rapidly 
declined. The largest C-band operator, PrimeStar, was absorbed 
by DBS provider DirecTV in 1999.
            Market features of the multichannel video programming 
                    distribution market
    Approximately 85 percent of all U.S. television households 
have cable, DBS, or another multi-channel video programming 
service. There are over 70 million U.S. cable subscribers. The 
number of digital cable subscribers reached 19.2 million during 
the last quarter of 2002. The last several years have seen 
tremendous consolidation in the cable industry. Presently, more 
than 50 percent of the U.S. cable market is dominated by two 
companies. Over the last few years cable rates have increased 
well above the rate of inflation. There are currently over 20 
million DBS subscribers in the U.S. The FCC has issued nine 
licenses to DBS providers since 1994. These companies include 
Advanced Communications, Continental, Satellite Corp., Direct 
Broadcast Satellite Corp. (DSBC), DirectSat, DirecTV, Dominion 
Video Satellite, EchoStar, Tempo Satellite Inc. (TSI), and 
United States Satellite Broadcasting (USSB). Since 1994, the 
number of licensed DBS providers has fallen steadily. Presently 
there are only two ``facilities-based'' DBS providers: DirecTV, 
a subsidiary of the General Motors Hughes Corporation; and 
Littleton, Colorado-based, EchoStar Communications, which 
initiated its DISH Network service in 1996. As a result, over 
90 percent of the DBS market is controlled by two providers. 
The remaining DBS providers, which include the National Rural 
Telecommunications Cooperative (NRTC) and Pegasus 
Communications, retransmit DirecTV signals to some rural areas. 
In 2003, DirecTV had about 11.1 million subscribers, while 
EchoStar had approximately 6.5 million subscribers.
            The battle for DirecTV
    In early 1999, General Motors announced plans to sell its 
Hughes DirecTV subsidiary. News Corp. was viewed as the leading 
contender for the asset. Because it possessed no American DTH 
holdings, few regulatory hurdles were expected. Over the next 
eighteen months, News Corp. arranged financing and finalized 
plans for a merger. EchoStar entered the contest for DirecTV 
with an unsolicited bid in September of 2000. In late October, 
after nearly eighteen months of negotiation, News Corp. made a 
final offer to acquire DirecTV for $26-29 billion. After 
General Motor's board declined to accept the offer, News Corp. 
withdrew from negotiations. On October 29, 2001, EchoStar's bid 
for DirecTV, valued at approximately $25 billion, was accepted 
by General Motors. The DirecTV/EchoStar merger would have 
created a U.S. satellite distribution monopoly, but EchoStar 
contended that a merger would strengthen competition in the 
broader multichannel video distribution market by creating a 
stronger competitor to cable. The Judiciary Committee held a 
hearing on competition in the multichannel video distribution 
market on December 1, 2001, at which EchoStar's CEO, consumer 
groups, and antitrust authorities testified.\27\ On October 10, 
2002, the FCC unanimously rejected the merger; on October 31, 
2002, the Antitrust Division filed suit to block the merger. 
After a final effort to tailor the merger to satisfy antitrust 
scrutiny, EchoStar relinquished its efforts to acquire DirecTV.
---------------------------------------------------------------------------
    \27\ Direct Broadcast Satellite Service and Competition in the 
Multichannel Video Distribution Market: Hearing Before the House 
Committee on the Judiciary, 107th Cong. (2001).
---------------------------------------------------------------------------
    Following EchoStar's failure to acquire DirecTV, a new 
bidding war for the DBS provider emerged. News Corp. quickly 
emerged as the leading bidder.
            Potential competitive issues presented by News Corp.'s 
                    acquisition of DirecTV
    News Corp.'s acquisition of DirecTV raises vertical 
integration questions. News Corp. is one of the world's largest 
media organizations. In addition to the Fox television network 
and regional sports channels, News Corp. owns the 20th Century 
Fox movie studio, Fox News Channel, the FX cable channel, Sky 
News, Fox Sports, and other assets. News Corp. presently lacks 
any U.S.-based DBS assets. Unlike the proposed merger between 
EchoStar and DirecTV, which would have created a horizontally-
integrated monopoly in the DBS market and reduced the number of 
competitors in the multichannel video distribution market, the 
News Corp./DirecTV merger creates a vertically-integrated firm 
in which News Corp. has a controlling interest in programming 
and distribution assets. Present media companies are 
vertically-integrated. For example, AOL Time Warner owns 
significant programming (Warner Brothers Studios, CNN, New Line 
Cinema, etc.) and distribution (Time Warner Cable, TBS, TNT, 
TCM, etc.) assets.
    At the Committee's May 8, 2003 hearing, News Corp. 
President and CEO K. Rupert Murdoch made a number of 
commitments to address concerns about its potential to withhold 
programming from competing multichannel video programming 
distributors. News Corp. agreed to adhere to current FCC 
program access requirements, and committed to providing its 
programming to competitors on a nondiscriminatory basis. 
Specifically, News Corp. agreed to abide by FCC program access 
rules, which apply to companies that control and distribute 
programming. News Corp. further agreed to aggressively expand 
local-into-local services to DirecTV subscribers and committed 
to programming on a nondiscriminatory basis. News Corp. 
committed to reinvigorating digital and broadband interactive 
services offered by DirecTV.
    On December 19, 2003, the Department of Justice announced 
that it would not challenge News Corp.'s acquisition of a 
controlling interest in DirecTV. On the same day, the FCC 
approved the acquisition. However, the FCC imposed several 
unique conditions designed to curb News Corp.'s ability to 
discriminate against broadcast and cable competitors by either 
raising fees for access to certain programs, or favoring its 
Fox broadcasting network and its cable channels. The Committee 
continues to monitor the state of competition in the MVPD 
marketplace.

``Competition in College Athletic Conferences and Antitrust Aspects of 
        the Bowl Championship Series''

    On September 4, 2003, the Committee on the Judiciary held 
an oversight hearing on: ``Competition in College Athletic 
Conferences and Antitrust Aspects of the Bowl Championship 
Series.'' The following witnesses testified: Myles Brand, 
President, National Collegiate Athletic Association; James E. 
Delany, Commissioner, Big Ten; Dr. Scott Cowen, President, 
Tulane University and Chairman, Presidential Coalition for 
Athletics Reform; and Steve Young, NFL Super Bowl championship 
quarterback, former Division I-A college football player, and 
ABC Sports commentator. Donna Shalala, the President of the 
University of Miami, was invited to the hearing but declined to 
testify.
    The NCAA is not immune from antitrust scrutiny. The 
National Collegiate Athletic Association (NCAA) has a role in 
establishing eligibility requirements for member participation 
in athletic programs and for preserving the integrity and 
fairness of intercollegiate athletic competition. However, the 
NCAA does not determine which teams compete for Division I-A 
national college football championship or post-season major 
bowls. Division I-A college football is the only sport that 
does not have a playoff system to determine national 
championships. Rather, eligibility to compete for the national 
football championship and other high profile national match-ups 
are determined by variables including membership in certain 
athletic conferences, a team's number of wins and losses, the 
strength of its schedule, private arrangements between athletic 
conferences and independent bowls, coaches' and media polls, 
and economic considerations.
    Last year, the college conference system for Division I-A 
football was thrown into disarray after the defection of the 
University of Miami from the Big East to the Atlantic Coast 
Conference (ACC.) Several observers contended that the 
rationale for this defection was financially motivated, and a 
lawsuit has been filed against the defecting schools and the 
ACC. This defection has heightened concern that Division I-A 
college football has become a financially-driven enterprise 
rather than a forum for amateur athletes to compete in the best 
tradition of college athletics. Some have contended that the 
Bowl Championship Series (BCS) exemplifies the financially-
driven, anticompetitive nature of intercollegiate athletics. 
The BCS was established in 1997 with the intent to create a 
more objective basis for selecting national champions and other 
bowl participants. Notwithstanding this development, the 
Division I-A bowl selection process for college football has 
led some to question the legitimacy and fairness of this 
process. Post-season college football generates hundreds of 
millions for participating conferences and institutions, much 
of it derived from exclusive television broadcast licensing 
agreements. Over 90 percent of revenue derived from BCS bowl 
games is distributed to BCS-affiliated institutions. The 
current bowl selection process has anti-competitive, 
exclusionary features that raise substantial antitrust 
questions. The antitrust aspects of the current bowl system 
were the focus of the Committee's hearing.
            Bowl Championship Series (BCS)
    The BCS was created in 1997 and became effective at the 
commencement of the 1998 athletic season. It was established to 
address several concerns that had been raised about the 
fairness of the College Bowl Alliance and was designed to 
produce a true Division I-A college football championship. The 
BCS shares many features of the Bowl Alliance. The principal 
difference is the inclusion of the Rose Bowl, and the 
termination of the Rose Bowl's exclusive tie-in with the Big 
Ten and Pacific Ten. Under the terms of the BCS, the two teams 
that finish as the two top-ranked teams in the BCS's official 
rankings meet in either the Rose, Fiesta, Sugar, or Orange 
Bowls, with the championship game rotated among each of the 
bowls. BCS rankings are derived from: poll rankings (an average 
of the Associated Press media poll and the USA Today/ESPN 
coaches poll; computer rankings (consisting of weighting of the 
Jeff Sagarin poll, as well as the Seattle Times and New York 
Times rankings); a team's won/lost record; strength of schedule 
(comprised of the won/lost records of a team's opponents as 
well as won/lost records of a team's opponent's opponents); and 
additional computer analysis.\28\
---------------------------------------------------------------------------
    \28\ http://anccfb.go.com/road/rules/asp See BCS Rules--About the 
BSC.
---------------------------------------------------------------------------
    Four months after the Committee's hearing, representatives 
from the NCAA, and BCS and non-BCS-affiliated institutions 
agreed on a revised framework for Division I-A postseason 
football. This new framework, announced on February, 29, 2004, 
permits increased opportunities for Division IA colleges to 
participate in BCS bowl games, adjusts revenue distribution 
formulas to recognize the participation of those institutions 
not presently in the BCS conferences, and broadens the 
involvement of all Division I-A conferences in the design and 
administration of the BCS. Finally, an agreement was reached to 
establish a fifth BCS bowl game, provided sufficient market 
interest exists. The Committee will continue to monitor market 
conditions in this field.

``Saving the Savings Clause: Congressional Intent, the Trinko Case, and 
        the Role of the Antitrust Laws in Promoting Competition in the 
        Telecom Sector''

    On November 19, 2003, the Committee held a hearing titled 
``Saving the Savings Clause: Congressional Intent, the Trinko 
Case, and the Role of the Antitrust Laws in Promoting 
Competition in the Telecom Sector.'' The following witnesses 
testified at the hearing; the Honorable R. Hewitt Pate, 
Assistant Antitrust General, Antitrust Division, United States 
Department of Justice; Alfred C. Pfeiffer, Jr., Partner, 
Bingham McCutchen, on Behalf of the Association for Local 
Telecommunications Services and the Competitive 
Telecommunications Association; John Thorne, Executive Vice 
President & Deputy General Counsel, Verizon; Christopher 
Wright, Partner, Harris, Wiltshire & Grannis LLP, Former 
General Counsel, Federal Communications Commission.

Antitrust Law and Competition in the Telecommunications Marketplace

    The House Committee on the Judiciary and the antitrust laws 
have played a critical role in fostering competition in the 
telecommunications industry. Antitrust law formed the legal 
basis for the historic divestiture of AT&T in 1982. However, 
even after the break up of AT&T, local service was still 
largely the province of Regional Bell Operating Companies 
(RBOCS). The Telecommunications Act of 1996 represented the 
most decisive expression of congressional resolve to bring 
local competition to the telecom sector.\29\ The Act contained 
several market-opening provisions designed to provide 
competitive opportunities for nonincumbent carriers that lacked 
access to the physical infrastructure built by decades of 
government-created monopoly control of the local exchange.
---------------------------------------------------------------------------
    \29\ Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 
56 (1996) (codified as amended in scattered sections of 47 U.S.C.) 
(hereinafter ``1996 Act'' or ``Act'').
---------------------------------------------------------------------------
    When considering the 1996 Act, Congress recognized the 
continued vitality of the antitrust laws in preserving 
competition in this marketplace. As a result, the 1996 Act 
contained an explicit savings clause that preserved the 
application of the antitrust laws in this field. The savings 
clause states: ``* * * 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.'' 
\30\
---------------------------------------------------------------------------
    \30\ Id. at Sec. 601(c)(1).
---------------------------------------------------------------------------
    To reaffirm the centrality of the antitrust laws in the 
liberalized regulatory regime established by the 1996 Act, the 
Judiciary Committee and Congress preserved an explicit 
antitrust savings clause in the legislation. In legislative 
language that provides clear congressional guidance to both 
regulators and judges, the antitrust savings clause contained 
in Sec. 601(c)(1) of the 1996 Act provided that: ``* * * 
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.'' In order to further ensure that 
the plain language of the Act could not be ignored or 
misinterpreted, the 1996 Act also contained a general savings 
clause that stated: ``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.'' \31\ The legislative record 
surrounding consideration of the 1996 Act left no doubt that 
Congress intended to preserve the application of the antitrust 
laws in the telecommunications sector.
---------------------------------------------------------------------------
    \31\ See supra, note. 12.
---------------------------------------------------------------------------
    For example, the Senate Report accompanying the 1996 Act 
states: [T]he provisions of this bill shall not be construed to 
grant immunity from any future antitrust action against any 
entity referred to in the bill.'' \32\ In addition, Congress 
concluded that the savings clause ``prevents affected parties 
from asserting that the bill impliedly preempts other laws.'' 
\33\ Several Members also affirmed the continued application of 
the antitrust laws. Senator Thurmond stated: ``[The Act 
contains an] unequivocal antitrust savings clause that 
explicitly maintains the full force of the antitrust laws in 
this vital industry. Application of the antitrust laws is the 
most reliable, time-tested means of ensuring that competition, 
and the innovation that it fosters, can flourish to benefit 
consumers and the economy.\34\ Ranking Member Conyers observed: 
``[T]he bill contains an all-important antitrust savings clause 
which ensures that any and all telecommunications merger and 
anticompetitive activities * * * by maintaining the role of the 
antitrust laws, the bill helps to ensure that the Bells cannot 
use their market power to impede competition and harm 
consumers.'' \35\ Senator Leahy stated: ``Relying on antitrust 
principles is vital to ensure that the free market will work to 
spur competition and reduce government involvement in the 
industry.'' \36\
---------------------------------------------------------------------------
    \32\ S. Rep. No. 104-23, at 17 (1995).
    \33\ Joint Explanatory Statement of the Committee of Conference, S. 
652, H. Rep. No. 104-458, S. Rep. No. 104-230, at 201 (1996) 
(``Conference Report'').
    \34\ 142 Cong. Rec. S687-01 (daily ed. February 1, 1996) (statement 
of Sen. Thurmond).
    \35\ 142 Cong. Rec. H1145-06 (daily ed. February 1, 1996) 
(statement of Rep. Conyers).
    \36\ 141 Cong. Rec. S18586-06 (daily ed. December 14, 1995) 
(statement of Sen. Leahy).
---------------------------------------------------------------------------
    When signing the legislation, President Clinton stated 
that: ``The Act's emphasis on competition is also reflected in 
its antitrust savings clause. This clause ensures that even for 
activities allowed under or required by the legislation, or 
activities resulting from FCC rulemaking or orders, the 
antitrust laws continue to apply fully.'' \37\ In addition, the 
FCC formally acknowledged that its regulations did not provide 
the ``exclusive remedy'' for anticompetitive conduct.\38\ The 
FCC expressly concluded that: ``parties have several options 
for seeking relief if they believe that a carrier has violated 
the standards under section 251 or 252 * * * ``[W]e clarify * * 
* that nothing in sections 251 and 252 or our implementing 
regulations is intended to limit the ability of persons to seek 
relief under the antitrust laws.'' \39\ As late as 2001, FCC 
Chairman Powell concluded that ``[g]iven the vast resources of 
many of the nation's ILECs,'' the FCC's current fining 
authority of $1.2 million per offense ``is insufficient to 
punish and deter violations in many instances.'' \40\
---------------------------------------------------------------------------
    \37\ Statement of President William J. Clinton upon signing S. 652, 
32 Weekly Comp. Pres. Doc. 218 (February 8, 1996).
    \38\ First Report and Order, In re Implementation of the Local 
Competition Provisions in the Telecommunications Act of 1996, 11 
F.C.C.R. 15499, para. 124 (Aug. 8, 1996) (R2-7-A174).
    \39\ Id. at para. 129 (R2-7-A175).
    \40\ Letter from Chairman Powell to House and Senate Appropriations 
Committees of May 4, 2001.
---------------------------------------------------------------------------
    Notwithstanding the clarity of this congressional directive 
and its considerable legislative history, some courts have 
concluded that the pervasiveness of the regulatory scheme 
created by the 1996 Act displaced the application of the 
antitrust laws. For example, in Goldwasser v. Ameritech Corp., 
the Seventh Circuit held that an RBOC's failure to comply with 
the provisions of the 1996 Act was not subject to a remedy 
under the antitrust laws.\41\ In Law Offices of Curtis Trinko 
v. Verizon, the Second Circuit overturned a lower court 
decision that held that a complaint alleging sustained 
anticompetitive conduct partly predicated on violations of the 
1996 Act could not be categorized as a violation of the 
antitrust laws. The Supreme Court granted certiorari on March 
3, 2003, and oral arguments took place on October 14, 2003.\42\
---------------------------------------------------------------------------
    \41\ 222 F.3d 390 (7th Cir. 2000).
    \42\ 305 F.3d 89 (2d Cir. 2002), cert. granted, 123 S. Ct. 1480 
(2003).
---------------------------------------------------------------------------
    The Committee's November 19, 2003 hearing on this subject 
examined the role of the antitrust laws in preserving 
competition in the telecom sector, the intent of Congress when 
it included an antitrust savings clause in the 1996 Act, the 
relationship between the antitrust laws and the 1996 Act in 
promoting competition in the telecommunications marketplace, 
and possible legislative remedies to judicial circumvention of 
the antitrust savings clause contained in the 1996 Act. On 
January 13, 2004, in Supreme Court held that Trinko's alleged 
breach of Verizon's Telecommunication Act duties to share its 
network with competitors did not state a claim under the 
Sherman Act.\43\ The Court reasoned that the 1996 Act did not 
alter antitrust law nor add new claims and that Verizon did not 
violate preexisting antitrust standards. The Court held that 
``we do not believe that traditional antitrust principles 
justify adding the present case to the few existing exceptions 
from the proposition that there is no duty to aid 
competitors.''
---------------------------------------------------------------------------
    \43\ 540 U.S. 398 (2004).
---------------------------------------------------------------------------
    While the Court upheld the antitrust savings clause on its 
face, the decision made it nearly impossible to state an 
antitrust claim for anticompetitive conduct within the 
regulatory ambit of the 1996 Act. In reaching its conclusion, 
the Court looked to the perceived institutional capacity of 
regulators to remedy anticompetitive misconduct. Specifically, 
the majority decision stated: ``One factor of particular 
importance is the existence of a regulatory structure designed 
to deter and remedy anticompetitive harm. Where such a 
structure exists, the additional benefit to competition 
provided by antitrust enforcement will tend to be small, and it 
will be less plausible that the antitrust laws contemplate such 
additional scrutiny. * * *'' The Court also stated that the 
``regulatory framework that exists in this case demonstrates 
how, in certain circumstances,  `regulations significantly 
diminished the likelihood of major antitrust harm.' '' The 
Court concluded that ``against the slight benefits of antitrust 
intervention here, we must weigh a realistic assessment of its 
costs.'' This judicial analysis constitutes precisely what the 
antitrust savings clause in the Telecom Act precluded.
    On May 20, 2004, Chairman Sensenbrenner introduced H.R. 
4412, the ``Clarification of Antitrust Remedies in 
Telecommunications Act of 2004.'' The legislation merely 
provides that unlawful monopolistic behavior that may also 
violate the regulatory obligations of the Telecom Act may 
constitute an antitrust violation. The legislation provides an 
antitrust remedy for these violations irrespective of the 
existence of regulations that apply to this industry. In so 
doing, the legislation merely reiterates the plain meaning of 
the antitrust savings clause and the broad bipartisan intent of 
Congress to preserve the application of the antitrust laws in 
the telecommunications field irrespective of the existence of 
the Telecom Act.
    Over the last five decades, the Committee on the Judiciary 
has played a central role promoting competition in the 
telecommunications market. It will continue to closely monitor 
competition in the telecommunications marketplace, and will be 
an active player in legislative consideration of amendments to 
the Telecom Act during the 109th Congress.

Oversight of the Department of Justice and the conduct of the ``War 
        Against Terrorism'' and implementation of the USA PATRIOT Act

    On Thursday, June 5, 2003, the Committee on the Judiciary 
held an oversight hearing on the Department of Justice. The 
sole witness at the hearing was Attorney General John D. 
Ashcroft. The hearing focused on the Department of Justice's 
conduct of the ``War Against Terrorism'' and its implementation 
of the USA PATRIOT Act. The hearing reflected the Committee's 
continuing commitment to monitor the implementation of 
antiterrorism legislation, to conduct active oversight of the 
Department of Justice, and to ensure that Federal law 
enforcement authorities are provided with the resources to 
effectively assess, prevent, and respond to terrorist threats 
while preserving fundamental liberties. Following the hearing, 
Chairman Sensenbrenner submitted 83 multi-tiered follow up 
questions to Attorney General Ashcroft on behalf of Committee 
Members. Attorney General Ashcroft provided a 35-page list of 
responses and an 84 page attachment in response to the 
Committee request.
    The USA PATRIOT Act and Federal Antiterrorism Initiatives 
in the War Against Terrorism. To better equip Federal law 
enforcement with the resources necessary to confront these 
modern threats, Chairman Sensenbrenner introduced H.R. 2975 
(107th), to ``Provide Appropriate Tools Required to Intercept 
and Obstruct Terrorism Act of 2001,'' (PATRIOT Act) on October 
2, 2001. H.R. 2975 was unanimously reported by the Judiciary 
Committee. After informal negotiations, the House and Senate 
incorporated two versions of the PATRIOT Act into H.R. 3162 
(107th), the ``Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism 
Act of 2001,'' (USA PATRIOT Act). This legislation incorporated 
provisions of H.R. 3004 (107th), the ``Financial Anti-Terrorism 
Act,'' which increased penalties for money laundering and 
financing terrorist organizations; and H.R. 3160 (107th), the 
``Bioterrorism Prevention Act of 2001,'' which provided law 
enforcement personnel greater resources to assess and prevent 
biological attacks on American soil. The USA PATRIOT Act was 
signed into law by President Bush on October 26, 2001. \44\
---------------------------------------------------------------------------
    \44\ Pub. L. No. 107-56, 115 Stat 272 (codified as amended in 
scattered sections of 18 U.S.C (2003)).
---------------------------------------------------------------------------
    In addition to the USA PATRIOT Act, Congress passed the 
``Homeland Security Act of 2002'' to better safeguard Americans 
against terrorist attacks. This legislation incorporated 
several bills which have assisted the Federal government's war 
against terrorism. These include: H.R. 3482 (107th), the 
``Cyber Security Enhancement Act of 2002,'' which increased 
penalties for cybercrimes and cyberterrorism; H.R. 4864 
(107th), the ``Anti-Terrorism Explosives Act,'' which 
strengthened penalties for the unlawful possession of explosive 
materials and required all persons who wish to obtain 
explosives, even for limited use, to obtain a permit. The 
``Homeland Security Act of 2002,'' was signed into law by 
President Bush on November 25, 2002.\45\ Finally, the events of 
September 11 lent impetus to the passage of legislation to 
tighten security at America's airports,\46\ fundamentally 
reform the Immigration and Naturalization Service,\47\ and to 
enhance border security.\48\
---------------------------------------------------------------------------
    \45\ Pub. L. No. 107-296, 116 Stat 2135 (codified as amended in 
scattered sections of 18 U.S.C. (2003)).
    \46\ Air Transportation Safety and System Stabilization Act, Pub. 
L. No. 107-42, 115 Stat. 230 (2001).
    \47\ Barbara Jordan Immigration Reform and Accountability Act, 
107th Cong. (2002)(enacted as part of the Homeland Security Act).
    \48\ Enhanced Border Security and Visa Entry Reform Act of 2002, 
Pub. L. No. 107-173, 116 Stat. 543 (2002).
---------------------------------------------------------------------------
            Summary of criminal provisions contained in the USA PATRIOT 
                    Act \49\
---------------------------------------------------------------------------
    \49\ This section derived from: Charles Doyle, The USA PATRIOT Act: 
A Legal Analysis, American Law Division, Congressional Research 
Service, April 15, 2002, available at: http://www.congress.gov/erp/rl/
pdf/RL31377.pdf.
---------------------------------------------------------------------------
    The PATRIOT Act provides enhanced investigative tools to 
Federal law enforcement authorities and improves information 
sharing between law enforcement and intelligence communities. 
In addition, the legislation amended several outdated Federal 
criminal statutes which had undermined the effective 
prevention, investigation, and prosecution of increasingly 
sophisticated criminal and terrorist threats. The legislation 
increases penalties for Federal terrorism offenses, eliminates 
the statute of limitations for terrorism-related crimes, and 
extends post-incarceration supervised release for persons 
convicted of these offenses. The legislation also amends 
Federal money laundering laws to deprive potential terrorists 
of financial support, establishes additional terrorism 
offenses, updates bioterrorism laws, and establishes revised 
criminal procedures for the prosecution of terrorism.
            Criminal investigations
    Federal communications privacy law features a three tiered 
system, erected for the dual purpose of protecting the 
confidentiality of private telephone, face-to-face, and 
computer communications while enabling authorities to identify 
and intercept criminal communications. Title III of the Omnibus 
Crime Control and Safe Streets Act of 1968 supplies the first 
level. It prohibits electronic eavesdropping on telephone 
conversations, face-to-face conversations, or computer and 
other forms of electronic communications in most instances. 
Title III gives authorities a narrowly defined process for 
electronic surveillance to be used in serious criminal cases. 
When approved by senior Justice Department officials, law 
enforcement officers may seek a court order authorizing them to 
monitor conversations concerning any of a statutory list of 
offenses (predicate offenses). Title III court orders contain 
instructions describing the permissible duration and scope of 
the monitoring, a description of the conversations which may be 
monitored, and a discussion of efforts taken to minimize the 
potential for monitoring noncriminal conversations. The court 
notifies the parties to any conversations seized under the 
order after the order expires.
    The USA PATRIOT Act modifies these procedures in the 
following ways:
    1. Updates the criminal code to reflect new technology by 
providing statutory authority for pen register and trap and 
trace (non-content information) orders for electronic 
communications (e.g., e-mail).
    2. Sanctions court ordered access to any ``tangible item'' 
rather than only business records held by lodging, car rental, 
and locker rental businesses.
    3. Authorizes nationwide execution of court orders for pen 
registers, trap and trace devices, and access to stored e-mail 
or communication records.
    4. Treats stored voice mail like stored e-mail (rather than 
like telephone conversations).
    5. Permits authorities to intercept communications to and 
from a trespasser within a computer system (with the permission 
of the system's owner).
    6. Adds terrorist and computer crimes to the present 
predicate offense list for wiretap authority.
    7. Encourages cooperation between law enforcement and 
foreign intelligence investigators.
    8. Establishes a claim against the U.S. for certain 
communications privacy violations by government personnel.
    9. Terminates the authority found in many of these 
provisions and several of the foreign intelligence amendments 
with a sunset provision of December 31, 2005.
            Foreign intelligence investigations
    The USA PATRIOT Act affords the U.S. intelligence community 
greater access to information obtained during a criminal 
investigation, and establishes and expands safeguards against 
official abuse. In addition, the legislation:
    1. Increases the number of judges on the Foreign 
Intelligence Surveillance Act (FISA) court from 7 to 11.
    2. Allows application for a FISA surveillance or search 
order when gathering foreign intelligence is a significant 
reason for the application rather than the reason.
    3. Expands the prohibition against FISA orders based solely 
on the exercise of a citizen's First Amendment rights.
            Money laundering
    Federal authorities utilize regulations, criminal 
sanctions, and forfeiture to stem money laundering. The USA 
PATRIOT Act bolsters Federal efforts in each of these areas.
            Treasury regulations
    The legislation expands the authority of the Secretary of 
the Treasury to regulate the activities of U.S. financial 
institutions, particularly their relations with foreign 
individuals and entities. The Act requires the Treasury 
Secretary to promulgate regulations which:
    1. Require securities brokers and dealers as well as 
commodity merchants, advisors and pool operators to file 
suspicious activity reports (SARs).
    2. Require businesses, which were only to report cash 
transactions involving more than $10,000 to the IRS, to file 
SARs as well.
    3. Impose additional ``special measures'' and ``due 
diligence'' requirements to combat foreign money laundering.
    4. Prohibit U.S. financial institutions from maintaining 
correspondent accounts for foreign shell banks.
    5. Prevent financial institutions from allowing their 
customers to conceal their financial activities by taking 
advantage of the institutions' concentration account practices.
    6. Establish minimum new customer identification standards 
and recommending an effective means to verify the identity of 
foreign customers.
    7. Encourage financial institutions and law enforcement 
agencies to share information concerning suspected money 
laundering and terrorist activities.
    8. Require financial institutions to maintain anti-money 
laundering programs which must include at least a compliance 
officer; an employee training program; the development of 
internal policies, procedures and controls; and an independent 
audit feature.
            Enhanced penalties
    The USA PATRIOT Act also contains a number of new money 
laundering crimes, as well as amendments and increased 
penalties for earlier crimes. Specifically, the legislation:
    1. Outlaws laundering (in the U.S.) any of the proceeds 
from foreign crimes of violence or political corruption.
    2. Prohibits laundering the proceeds from cybercrime or 
supporting a terrorist organization.
    3. Increases the penalties for counterfeiting.
    4. Provides explicit authority to prosecute overseas fraud 
involving American credit cards.
    5. Permits prosecution of money laundering in the place 
where the predicate offense occurs.
            Forfeiture
    The Act creates two types of forfeitures and modifies 
several confiscation-related procedures. It allows confiscation 
of the property of any individual or entity that participates 
in or plans an act of domestic or international terrorism; it 
also permits confiscation of property derived from or used to 
facilitate domestic or international terrorism. Specifically, 
the legislation:
    1. Establishes a mechanism to acquire long arm 
jurisdiction, for purposes of forfeiture proceedings, over 
individuals and entities.
    2. Allows confiscation of property located in this country 
for a wider range of crimes committed in violation of foreign 
law.
    3. Permits U.S. enforcement of foreign forfeiture orders.
    4. Calls for the seizure of correspondent accounts held in 
U.S. financial institutions for foreign banks who are in turn 
holding forfeitable assets overseas.
    5. Denies corporate entities the right to contest a 
confiscation if their principal shareholder is a fugitive.
            Summary of immigration provisions in the USA PATRIOT Act 
                    \50\
---------------------------------------------------------------------------
    \50\ See Charles Doyle, The USA PATRIOT Act: A Legal Analysis, 
American Law Division, Congressional Research Service, April 15, 2002, 
available at: .
---------------------------------------------------------------------------
    The USA PATRIOT Act contains several immigration-related 
provisions. The legislation contains a number of provisions 
designed to: prevent alien terrorists from entering the United 
States; enable authorities to detain and deport alien 
terrorists and those who support them; and to preserve 
immigration relief for lawfully present alien victims of the 
attacks of September 11, 2001.
            Border Protection
    Border Protection provisions in the USA PATRIOT Act:
    1. Authorize appropriations necessary to triple the number 
of Border Patrol, Customs Service, and Immigration and 
Naturalization Service (INS) personnel stationed along the 
Northern Border.
    2. Authorize appropriations necessary to provide the State 
Department and INS with criminal record identification 
information relating to visa applicants and other applicants 
for admission to the United States.
    3. Instruct the Attorney General to report on the 
feasibility of the use of a biometric identifier scanning 
system for overseas consular posts and points of entry into the 
United States.
    4. Direct the Secretary of State to determine whether 
consular shopping is a problem, to take any necessary 
corrective action, and to report the action taken.
    5. Express the sense of the Congress that the 
Administration should fully implement the integrated entry and 
exit data system created by the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 as expeditiously as 
possible.
    6. Require the Attorney General to fully implement and 
expand the foreign student visa monitoring program.
            Detention and removal
    The USA PATRIOT Act enhances the authority of the Federal 
Government to detain and remove aliens:
    1. Expands the terrorist activity ground of inadmissibility 
to bar aliens who: support terrorist activities; are immediate 
family members of inadmissible terrorists; and associate with 
terrorist organizations.
    2. Requires the Attorney General to place an alien 
terrorist in removal proceedings and detain alien terrorist 
suspects for up to seven days after certifying that he has 
reasonable grounds to believe that the suspects either are 
engaged in conduct which threatens the national security of the 
United States or are inadmissible or deportable on grounds of 
terrorism, espionage, sabotage, or sedition.
    3. The Attorney General's determinations are subject to 
review only under writs of habeas corpus issued by a Federal 
district court but appealable only to the United States Court 
of Appeals for the District Columbia. These provisions are 
contained in Sec. 412 of the USA PATRIOT Act.
            Immigration enforcement initiatives since September 11, 
                    2001
            NSEERS (National Security Entry Exit Registration System)
    NSEERS was formally initiated on September 11, 2002. It 
involves registration for two different groups of aliens--
certain aliens arriving at U.S. ports of entry, and certain 
aliens already present in the United States. At ports of entry, 
inspectors are required to register aliens from specified 
terrorist-sponsoring countries along with aliens who meet 
certain security criteria. During the registration process, the 
alien's photograph and fingerprints are taken and the alien's 
personal data are entered into IDENT, the immigration database.
    With respect to aliens already present in the United 
States, the Attorney General has required aliens from certain 
countries, based on information provided by U.S. intelligence 
agencies, to report to their immigration field office to verify 
their address and their basis for visiting the United States.
            Absconder Apprehension Initiative
    In January 2002, the investigation, detention and removal 
components of the former INS launched the Absconder 
Apprehension Initiative. This program is designed to apprehend 
and remove aliens who have been found in violation of U.S. 
immigration laws, been ordered deported, and subsequently 
absconded before the court order could be carried out. The 
first phase of the initiative targeted some 5,900 aliens. The 
second phase focuses on the apprehension and removal of more 
than 300,000 aliens with un-executed final orders of removal. 
To facilitate locating these aliens, the Bureau of Immigration 
and Customs Enforcement (BICE, now at DHS) enters their names 
into the FBI's National Crime Information Center (NCIC) so that 
other Federal, state, and local law enforcement officers can 
hold an alien whose name comes up in the database during other 
types of law enforcement activity such as traffic stops.
            Anti-Smuggling
    Available information indicates terrorist organizations 
often use smuggling rings to move around the globe. For 
domestic security, the Administration has focused anti-
smuggling resources in ``Operation Southern Focus,'' which was 
launched in January 2002. It targets large-scale smuggling 
organizations specializing in the movement of U.S.-bound aliens 
from countries of concern. Since the beginning of the 
operation, eight significant alien smugglers have been arrested 
and charged with alien smuggling violations.
            Privacy issues and the USA PATRIOT Act
            Library records
    Several of the September 11 terrorists frequently used 
computers at public libraries to access the Internet.\51\ 
Easier access to library records for appropriate law 
enforcement purposes may be necessary because when a suspect 
uses a public computer in a library, it becomes more difficult 
to isolate and trace evidence of criminal activity to that 
individual. It becomes even more difficult if the library does 
not require its clients to sign in with their name, date, and 
time before they are allowed to use a computer. Thus, a person 
who uses a library's public computer in support of criminal 
activity may be afforded greater anonymity than someone who 
uses his or her own computer. The USA PATRIOT Act was tailored 
to update Federal surveillance laws to make it more difficult 
for terrorists to use public places, including public 
libraries, to plot and carry out terrorist attacks. However, 
even before passage of this legislation, Federal prosecutors 
were permitted to subpoena library records under the Federal 
Rules of Criminal Procedure or obtain Title III search 
warrants.
---------------------------------------------------------------------------
    \51\ See David Fallis and Ariana Eunjung Cha, ``Agents Following 
Suspects' Lengthy Electronic Trail; Web of Connections Used to Plan 
Attack,'' The Washington Post (October 4, 2001), at A24 (``The 
[September 11 terrorist] suspects used public computer terminals at 
libraries in Florida. In Del Ray Beach, two of the suspected hijackers 
glared at a librarian as she watched them surf the Web for an hour.'').
---------------------------------------------------------------------------
    Following enactment of the USA PATRIOT Act, ``any tangible 
items'' (which presumably could include library loan records 
and library computer use records) can be obtained by the 
government ``for an investigation to obtain foreign 
intelligence information not concerning a United States person 
or to protect against international terrorism or clandestine 
intelligence activities, provided that such investigation of a 
United States person is not conducted solely upon the basis of 
activities protected by the first amendment to the 
Constitution.'' \52\ The amendments expanding FISA authority to 
include the collection of ``any tangible things'' expire on 
December 31, 2005.\53\
---------------------------------------------------------------------------
    \52\ 50 U.S.C. Sec. 1861(a)(1).
    \53\ See Pub. L. No. 107-56, Title II, Sec. 224 (October 26, 2001), 
115 Stat. 295.
---------------------------------------------------------------------------
            The Justice Department's revised investigative guidelines
    Prior to the issuance of the revised Guidelines by Attorney 
General Ashcroft on March 30, 2002, FBI investigations were 
covered by Guidelines approved by Attorney General Thornburgh 
on March 21, 1989.\54\ The 1989 Guidelines provided that 
``[u]ndisclosed participation in the activities of an 
organization by an undercover employee or cooperating private 
individual in a manner that may influence the exercise of 
rights protected by the First Amendment must be approved by FBI 
[Headquarters], with notification to Department of Justice.'' 
\55\
---------------------------------------------------------------------------
    \54\ The Attorney General's Guidelines on General Crimes, 
Racketeering Enterprise and Domestic Security/Terrorism 
Investigations'' (March 21, 1989) (``1989 Guidelines'').
    \55\ Id. at 17.
---------------------------------------------------------------------------
    According to Attorney General Ashcroft:

          FBI men and women in the field [were] frustrated 
        because many of our own internal restrictions have 
        hampered our ability to fight terrorism * * * Under the 
        [old] guidelines, FBI investigators cannot surf the web 
        the way you or I can. Nor can they simply walk into a 
        public event or a public place to observe ongoing 
        activities. They have no clear authority to use 
        commercial data services that any business in America 
        can use. These restrictions are a competitive advantage 
        for terrorists who skillfully utilize sophisticated 
        techniques and modern computer systems to compile 
        information for targeting and attacking innocent 
        Americans.\56\
---------------------------------------------------------------------------
    \56\ Remarks of Attorney General John Ashcroft on Attorney General 
Guidelines (May 30, 2002).

    The revised Guidelines now provide the following:
    FBI access to public events: ``For the purpose of detecting 
or preventing terrorist activities, the FBI is authorized to 
visit any place and attend any event that is open to the 
public, on the same terms and conditions as members of the 
public generally. No information obtained from such visits 
shall be retained unless it relates to potential criminal or 
terrorist activity.'' \57\
---------------------------------------------------------------------------
    \57\ Supra, note 19 at 22.
---------------------------------------------------------------------------
    Utilization and Analysis of Publicly Available Information: 
``The FBI is authorized to operate and participate in 
identification, tracking, and information systems for the 
purpose of identifying and locating terrorists, excluding or 
removing from the United States alien terrorists and alien 
supporters of terrorist activity as authorized by law, 
assessing and responding to terrorist risks and threats, or 
otherwise detecting, prosecuting, or preventing terrorist 
activities. Systems within the scope of this paragraph may draw 
on and retain pertinent information from any source permitted 
by law, including information derived from past or ongoing 
investigative activities; other information collected or 
provided by governmental entities, such as foreign intelligence 
information and lookout list information; publicly available 
information, whether obtained directly or through services or 
resources (available nonprofit or commercial) that compile or 
analyze such information; and information voluntarily provided 
by private entities. Any such system operated by the FBI shall 
be reviewed periodically for compliance with all applicable 
statutory provisions, Department regulations and policies, and 
Attorney General Guidelines.'' \58\
---------------------------------------------------------------------------
    \58\ Id. at 21-22.
---------------------------------------------------------------------------
    Research conducted on the Internet: ``For the purpose of 
detecting or preventing terrorism or other criminal activities, 
the FBI is authorized to conduct online search activity and to 
access online sites and forums on the same terms and conditions 
as members of the public generally.'' \59\
---------------------------------------------------------------------------
    \59\ Id. at 22.
---------------------------------------------------------------------------

Safeguarding Americans from a legal culture of fear: Approaches to 
        limiting lawsuit abuse

    On June 22, 2004, the full Committee held an oversight 
hearing on ``Safeguarding Americans from a Legal Culture of 
Fear: Approaches to Limiting Lawsuit Abuse.'' Witnesses 
included: Karen R. Harned, Executive Director, National 
Federation of Independent Business; Philip Howard, Chair, 
Common Good; Victor Schwartz, General Counsel, American Tort 
Reform Association; and Theodore Eisenberg, Professor of Law, 
Cornell Law School.
    Karen Harned testified, among other things, that hundreds 
of thousands of small businesses across the country do not have 
human resource specialists, compliance officers, or attorneys 
on staff. These businesses cannot pass on to consumers the 
costs from taxes, regulations, and liability insurance without 
suffering losses. For small-business owners, even the threat of 
a lawsuit can mean significant time away from their business, 
time that could be better spent growing their enterprise and 
employing more people.
    Philip Howard testified, among other things, that according 
to a Harris Poll, five out of six doctors do not trust the 
system of justice. As a result, doctors are ordering billions 
of dollars worth of unnecessary tests and procedures--not to 
address the health of their patients but to protect themselves 
from potential lawsuits. In schools, teachers are unable to 
maintain discipline in their classrooms, fearful that they may 
be sued by students or parents. A recent Public Agenda poll, 
sponsored by Common Good, found that 78% of teachers have been 
threatened with legal proceedings by their students.
    Victor Schwartz testified, among other things, that 
slightly more than ten years ago, the Federal Rules Advisory 
Committee, an extension of the federal judiciary which has the 
primary responsibility to formulate the Federal Rules of Civil 
Procedure, announced an amended and weakened Rule 11. The 
Advisory Committee recommended weakening the rule despite the 
result of a survey it conducted of federal court judges, those 
who deal with the problem of lawsuit abuse on a day-to-day 
basis. That survey found that 95% of judges believed that the 
now abandoned version of Rule 11 had not impeded development of 
the law. Eighty percent found that the prior rule had an 
overall positive effect and should not be changed. Three-
quarters of those judges surveyed felt that the former Rule 
11's benefits in deterring frivolous lawsuits and compensating 
those victimized by such claims justified the use of judicial 
time.
    Theodore Eisenberg testified, among other things, that tort 
reform proposals are based on questionable views of the 
operation of the tort system; that the United States is not the 
most litigious country; that estimates of tort system costs 
supplied to Congress and the media are deeply flawed; and that 
Rule 11's experiment with fee-shifting revealed the tort system 
to have a low rate of abuse compared to other areas of law and 
fell particularly hard on civil rights claimants.

Oversight hearing on compliance with the Enhanced Border Act

    On April 21, 2004, the Committee on the Judiciary held an 
oversight hearing entitled ``Should the Congress Extend the 
October, 2004 Statutory Deadline for Requiring Foreign Visitors 
to Present Biometric Passports?'' The Honorable Colin Powell, 
Secretary of State, and the Honorable Tom Ridge, Secretary of 
Homeland Security, testified at the hearing.
    The hearing examined whether the deadlines set by the 
Enhanced Border Security and Visa Reform Act of 2002, also 
known as the Border Security Act, and the USA PATRIOT Act could 
be met by the United States Government and by key foreign 
trading partners. The Secretary of State testified about 
diplomatic initiatives to educate foreign countries about the 
pending deadlines and the possible need to extend those 
deadlines to prevent an interruption of international travel to 
the United States. The Secretary of Homeland Security testified 
with regard to the level of technical preparation required to 
electronically validate biometric passports as well as the 
schedule for installing chip readers at international airports 
and ports of entry.

Oversight on the problem of visa overstays

    On June 3, 2004, Chairman F. James Sensenbrenner, Jr. 
released a report from the General Accounting Office (GAO) 
which found that the number of foreign visitors who overstay 
their visas exceeds 2.3 million and that the Department of 
Homeland Security's (DHS) estimates of visa overstays is 
probably low. The GAO study also documents that DHS interior 
enforcement to identify and deport people overstaying their 
visas is virtually non-existent.

Oversight of consular identification cards

    Committee oversight of the use of consular cards began in 
April 2002, when staff approached the INS to determine what 
steps the agency planned to take in response to foreign-
government efforts to seek local acceptance of consular 
identification cards, which at least one foreign government was 
publicly promoting for identification purposes. At that time, 
INS stated that it lacked jurisdiction over foreign missions in 
the United States, asserting that such authority was probably 
vested in the State Department.
    After determining that the Office of Foreign Missions was 
the most likely component of the State Department to oversee 
these activities, staff contacted State to determine what steps 
the department was planning to take in response to foreign-
government efforts to seek domestic acceptance of consular 
cards.
    In June 2002, State informed staff that it would establish 
an interagency group to promulgate a policy on the domestic 
acceptance of consular identification cards. This group did not 
actually meet for the first time, however, until January 7, 
2003. Staff met with State Department on January 8, 2003, to 
discuss issues raised at the meeting the day before.
    On January 21, 2003, a press report appeared indicating 
that the General Services Adminstration (GSA) had commenced a 
project to accept the Mexican consular identification card, the 
matricula consular, on a pilot basis for admission to the 
Philip Burton Federal Building in San Francisco. On January 22, 
2003, GSA stated that it was suspending the pilot, explaining:

          The matter of foreign consular identification cards 
        is under discussion both within the State Department 
        and among federal government agencies, including the 
        General Services Administration. * * * While this 
        matter is under deliberation, GSA has suspended the 
        trial acceptance of consular identification cards for 
        admittance to certain federal facilities. * * * GSA 
        will no longer accept consular-issued identification 
        cards as a means of identification, pending further 
        study.

    Staff continued to meet regularly with State Department and 
other executive branch representatives to discuss consular card 
issues and the status of the deliberations of the interagency 
working group.
    In response to an article in the April 17, 2003 edition of 
the San Bernadino County Sun, the Subcommittee on Immigration, 
Border Security, and Claims began to undertake its own 
collection of information on the issuance and domestic 
acceptance of consular identification cards in the United 
States.
    To assess (1) whether Customs and Border Protection (CBP) 
and Immigration and Customs Enforcement (ICE) had additional 
information on aliens who were arrested with multiple valid 
matriculas and (2) whether DHS had presented that information 
to the interagency working group on consular cards, on April 
28, 2003, Chairman Sensenbrenner sent a letter to the DHS. In 
that letter, Chairman Sensenbrenner requested that CBP and ICE 
provide the Committee ``no later than May 12, 2003, with a list 
of all incidents in which aliens, both legal and illegal, were 
encountered by those respective bureaus in possession of more 
than one facially valid matricula, including the date of the 
encounter and the number of documents each alien possessed.'' 
CBP and ICE were also directed to ``provide the Committee with 
copies of all written, and descriptions of all oral, guidance 
that the Department has provided to States and localities that 
are considering recognizing the matricula as a valid 
identification document, and if no such guidance has been 
issued, why it has not issued such guidance.''
    In response to a subsequent Committee request, in August 
2004 the GAO issued a report on the issuance and acceptance of 
consular identification cards. The report found that from 2002 
through 2003, Mexico issued 2.2 million consular identification 
cards, while Guatemala issued about 89,000. In addition, 
Argentina now issues cards to its citizens in the United States 
and other nations are considering similar programs.
    The GAO report pointed to weaknesses in U.S. government 
policy regarding foreign governments' issuance of consular 
identification cards to aliens illegally present in the United 
States. GAO recommended that the Homeland Security Council 
``direct its task force to develop and implement consistent 
guidance that would reconcile potential conflicts among federal 
agencies and complete their efforts to develop policy to enable 
state and local governments, financial institutions, and others 
to assess the authenticity of [consular identification] cards 
issued by foreign governments.''
    Committee oversight of this matter has continued, leading 
to the Committee's contribution of Sec. 3006 to H.R. 10, the 9/
11 Recommendations Implementation Act. This provision limited 
the documents that an alien could present for purposes of 
establishing identity to a federal employee to domestically 
issued documents and foreign passports. In the conference 
report for that bill, this requirement was pared down to a 
direction to the Secretary of Homeland Security to propose 
standards for documents that could be presented to board an 
airliner in the United States, a designation that is to be 
submitted to the Congress for an approval resolution. If not 
approved, only domestically issued documents and foreign 
passports can be presented for such purpose.

Oversight of the implementation of Title III of the USA PATRIOT Act

    The Committee and Subcommittee on Immigration, Border 
Security, and Claims have rigorously monitored the 
implementation of sections of the USA PATRIOT Act dealing with 
money laundering and terrorist financing.
    In a February 28, 2003, letter to the Attorney General, 
Chairman Sensenbrenner and Ranking Member Conyers pointed out 
that there were serious problems with Treasury Department 
regulations to implement Title III of the USA PATRIOT Act, 
which is captioned ``International Money Laundering Abatement 
and Antiterrorist Financing Act of 2001.'' Section 326 of the 
USA PATRIOT Act added a new subsection (l) to 31 U.S.C. 
Sec. 5318 of the Bank Secrecy Act that requires the Secretary 
of the Treasury to prescribe regulations ``setting forth the 
minimum standards for financial institutions and their 
customers regarding the identity of the customer that shall 
apply in connection with the opening of an account at a 
financial institution.'' Section 326 of that Act provides that 
the regulations must require, at a minimum, financial 
institutions to implement reasonable procedures for: (1) 
verifying the identity of any person seeking to open an 
account, to the extent reasonable and practicable; (2) 
maintaining records of the information used to verify the 
person's identity, including name, address, and other 
identifying information; and (3) determining whether the person 
appears on any lists of known or suspected terrorists or 
terrorist organizations provided to the financial institution 
by any government agency. The provisions in Title III of the 
USA PATRIOT Act are intended to facilitate the prevention, 
detection, and prosecution of international money laundering 
and the financing of terrorism.
    The letter explained that the interim regulations published 
by the Treasury Department, through the Financial Crimes 
Enforcement Network (FinCEN), actually reduced existing 
safeguards with regard to money laundering by illegal aliens, 
including both illegal entrants and alien visa overstays (such 
as three of the 9/11 terrorists). Under prior Treasury 
regulations, aliens were required to obtain Social Security 
numbers or Taxpayer Identification Numbers (TINS) before 
opening an account at a federally insured bank. This meant that 
aliens had to obtain identifying numbers through government 
agencies that would also apply tests to confirm that they had a 
legitimate reason to be in the United States.
    Upon inquiry, the Committee was informed in a meeting with 
officials of the Treasury Department that neither the Justice 
Department nor the State Department had provided any written 
objection to this broad enfranchisement of foreign government 
identification documents. If the Justice Department officials 
responsible for liaison with the Department of Treasury 
concurred with this understanding of the effect of these 
regulations, the Committee suggested that the Department's 
views be provided in writing to the Treasury Department, as 
soon as possible.
    On May 23, 2003, Chairman Sensenbrenner sent a letter to 
Dr. Richard Falkenrath, Assistant Director of the Homeland 
Security Council in the Executive Office of the President. In 
that letter, the Chairman explained the concerns with the May 
9, 2003, Treasury Department regulation implementing Sec. 326 
of the USA PATRIOT Act, which was to take effect on June 9, 
2003. He requested that the Executive Office of the President 
direct that the final date of that regulation be postponed for 
six months until scrutiny by law enforcement officials can be 
more intensively applied to modify it.
    In brief, the Chairman stated that the intent of the 
Congress in directing the Treasury to write new regulations was 
to raise the bar on the difficulty with which terrorists can 
move money through the U.S. banking system. This regulation 
instead appeared to lower the bar. That letter identified two 
specific regulatory conditions of greatest concern. The new 
Treasury regulation would eliminate the requirement that a bank 
retain copies of the documents used to verify the identity of 
the customer. This would eliminate evidence essential to 
successful investigation of the ``money trail'' to 
organizations supporting terrorism. In Sec. 326 of the USA 
PATRIOT Act, Congress directed the Secretary of the Treasury to 
issue regulations prescribing minimum standards for financial 
institutions regarding customer identity in connection with the 
opening of accounts. Pursuant to the final regulation, however, 
a bank could open an account for an alien who presented only an 
alien identification card number, or ``number and country of 
issuance'' of any other government-issued document evidencing 
nationality or residence and bearing a photograph or similar 
safeguard.
    On July 1, 2003, the Treasury Department issued a notice of 
inquiry seeking additional comments ``on two discrete issues 
relating to final regulations issued recently pursuant to 
section 326,'' specifically (1) ``whether and under what 
circumstances financial institutions should be required to 
retain photocopies of identification documents relied on to 
verify customer identity,'' and, (2) ``whether there are 
situations when the regulations should preclude reliance on 
certain forms of foreign government-issued identification to 
verify customer identity.''
    In response, Chairman Sensenbrenner sent a comment letter 
responding to each of these questions to the Treasury on July 
24, 2003. Those letters addressed in detail the shortcomings of 
the regulations. The Treasury Department terminated the inquiry 
on September 25, 2003, having ``determined that no changes to 
the final rules are warranted.''
    On November 20, 2003, Chairman Sensenbrenner and 
Subcommittee Chairman Hostettler sent a request to the GAO to 
evaluate compliance with the changes to federal anti-money 
laundering regulatory regimes in Title III of the USA PATRIOT 
Act. The letter requested that GAO review how the Treasury and 
associated regulators would implement and enforce the 
regulations implementing Sec. 326 of that Act. The Committee's 
oversight of implementation of Title III of the USA PATRIOT Act 
continues.

Oversight of DHS budget shortfalls

    On March 26, 2004, Chairman Sensenbrenner requested 
information about budget shortfalls that were reportedly facing 
the three bureaus within DHS charged with enforcing the 
immigrations laws, CBP, ICE, and Citizenship and Immigration 
Services (CIS). Those shortfalls had apparently led to a hiring 
freeze within CBP and ICE.
    On May 5, 2004, the Committee received a formal response 
from DHS Undersecretary Asa Hutchinson, which described a 
budget reconciliation effort among the three bureaus that was 
organized to address the perceived shortfall. As Hutchinson 
explained, that reconciliation effort resulted ``in an 
immediate internal realignment of $212 million with possible 
subsequent internal realignment of approximately $270 million 
pending final documentation and billing.''
    In August 2004, the Committee received further reports 
about shortfalls in funding for critical programs in ICE, 
prompting the Chairman to request additional information on 
ICE's budget difficulties. Staff has subsequently been briefed 
on the agency's preliminary efforts to address its shortfalls. 
The Committee's oversight of this matter will continue until 
ICE's shortfalls have been eliminated.

Oversight of Social Security benefits fraud

    On September 11, 2003, the Immigration, Border Security, 
and Claims Subcommittee, Rep. John Hostettler, (R-Ind.), 
Chairman, held an oversight hearing entitled, ``Should There Be 
a Social Security Totalization Agreement with Mexico?''
    A Social Security totalization agreement coordinates the 
payment of Social Security taxes and benefits for workers who 
divide their careers between two countries. ``Totalization'' 
refers to combining the SSA taxes paid into Social Security in 
the U.S. with the equivalent taxes paid into the system of a 
foreign country so that people who have earned retirement 
credits under both systems receive benefits due from each.
    Totalization agreements entered into the realm of 
international treaties in the 1970s, as countries began to 
organize geographical and cultural trade alliances. Section 233 
of the Social Security Act authorizes the President to enter 
into bilateral agreements with other nations that have social 
security programs that are actuarially based and of general 
application. Unlike bi-lateral trade agreements, the Congress 
need not act on totalization agreements for them to come into 
effect. Rather, the agreements are submitted to Congress for 
``60 session days when at least one house is in session'' 
during which one House of Congress must either require changes 
to the agreement or oppose the agreement by resolution. The 
United States has concluded 20 such agreements, the most recent 
of which were with Australia, Chile, and South Korea.
    Noncitizens who work in Social Security-covered employment 
must pay Social Security payroll taxes, including those who are 
in the U.S. working temporarily and those who may be illegally 
working in the U.S. The Social Security Act does not explicitly 
prohibit illegal aliens from receiving Social Security 
benefits. However, the 1996 immigration reform legislation 
prohibits the payment of Social Security benefits to illegal 
aliens in the U.S., unless nonpayment would be contrary to a 
totalization agreement or the alien nonpayment provision of the 
Social Security Act.
    Because Social Security is an earned entitlement, some 
argue that workers who pay into the system should receive 
benefits regardless of employment authorization or immigration 
status. Others contend that paying benefits based on 
unauthorized work in the U.S. ``rewards'' individuals who 
violate immigration law. Media articles earlier this year 
estimated a potential totalization agreement with Mexico to 
cost the Social Security Trust Fund at least $345 billion, as 
benefits will be paid to illegal workers as well as legal 
workers from Mexico.
    The hearing examined whether the Social Security 
Administration (SSA) has completed the necessary financial 
projections and ordinary due diligence regarding the legal and 
administrative prerequisites appropriate to a treaty agreement 
of such financial magnitude. It also considered whether the 
benefits to be provided by the proposed agreement will become a 
beacon of inducement so that the rate of illegal immigration 
will actually increase over already historically high levels. 
The Subcommittee sought to determine the specific merits in 
concluding a totalization agreement and whether the U.S. 
benefits will be equivalent to those received by the other 
country.
    Jo Anne B. Barnhart, the Commissioner of the Social 
Security Administration, testified on the direct definition of 
totalization agreements and provided an overview on 
totalization including the process for their approval. She also 
outlined the ongoing negotiations regarding the totalization 
agreement with Japan and provided a status report on U.S. 
discussions with Mexico on a possible agreement. Barbara 
Bovjberg, Director of Education, Workforce and Income Security 
at the General Accounting Office, testified next with regard to 
shortcomings of the SSA in negotiating the totalization 
agreement with Mexico. Director Bovjberg testified that the 
proposed agreement will likely increase the number of 
unauthorized Mexican workers and family members eligible for 
social security benefits. Mexican workers who ordinarily could 
not receive social security retirement benefits because they 
lack the required 40 coverage credits for U.S. earnings could 
qualify for partial Social Security benefits with as few as 6 
coverage credits. In addition, under the proposed agreement, 
more family members of covered Mexican workers would become 
newly entitled because the agreements usually waive rules that 
prevent payments to noncitizens' dependents and survivors 
living outside the United States. Joel Mowbray, a syndicated 
columnist and investigative reporter, testified that his 
original analysis was that the cost of totalization appeared to 
be as high as $345 billion over the next two decades. He also 
testified that taxpayers could actually be on the hook for even 
more money if fraud becomes rampant and is not reined in.
    The final witness, Ken Apfel, SSA Commissioner under 
President Clinton, testified on how the Social Security Act 
authorizes the President to enter into totalization agreements 
with other countries. The process is often a very complex and 
lengthy one. As examples, agreements signed by the Bush 
administration in 2001 with South Korea and Chile were both 
negotiated in part during the Clinton administration, and 
agreements signed in 1993 by the Clinton administration with 
Ireland and Greece were both negotiated in part during the 
first Bush administration. He explained that the agreements 
eliminate dual Social Security taxation, which saves workers 
and their employers from having to pay duplicative taxes. And 
second, the agreements help to fill gaps in benefit protection 
for individuals who have worked parts of their careers in the 
U.S. and part in another country, but who have not worked 
enough in either or in both to qualify for benefits. Workers 
may combine earnings credits to qualify for benefits under 
either or both systems, with benefits prorated to reflect the 
number of years that workers paid into each system. Mr. Apfel 
concluded that a totalization agreement between the U.S. and 
Mexico would move the countries ``one step closer to 
strengthening worker protections, eliminating duplicative taxes 
and fostering economic interdependence.''
    On March 2, 2004, the Social Security Protection Act of 
2004, H.R. 743, was signed into law by President George W. Bush 
and became Public Law No. 108-203. The Subcommittee hearing on 
this issue, and the public debate that followed, led directly 
to provisions in Sec. 211 of the Social Security Protection Act 
which prohibit providing Social Security benefits to illegal 
alien workers. House Judiciary Chairman F. James Sensenbrenner, 
Jr. and Subcommittee Chairman John N. Hostettler also followed 
up on this issue with a letter to SSA Commissioner Jo Anne 
Barnhart. Subsequently, the SSA sent a short letter advising 
foreign governments of the Act, but without providing any 
guidance or specific details of Sec. 211 or the effects on 
existing totalization agreements. Notwithstanding assurances to 
Chairman Sensenbrenner and Chairman Hostettler in a letter from 
Commissioner Barnhart on August 16, 2004, the actual procedures 
addressing the changes in benefits awards have yet to be 
implemented within the SSA.

Oversight letter to Jo Anne Barnhart, Commissioner of the Social 
        Security Administration

    Congressman F. James Sensenbrenner, Jr., Chairman of the 
House Judiciary Committee, and Congressman John N. Hostettler, 
Chairman of the Subcommittee on Immigration, Border Security, 
and Claims wrote a letter to Social Security Administration 
Commissioner Jo Anne Barnhart on July 20, 2004 discussing 
Sec. 211 of the Social Security Protection Act of 2004.
    The letter described Congress's intent to prevent--in most 
cases--individuals from receiving Social Security retirement or 
disability benefits on the basis of work illegally performed by 
aliens in the United States. The letter stated:

          The Social Security program should not reward those 
        who violate our immigration laws. The Social Security 
        Trust Fund will face enough challenges to its solvency 
        in future decades without its being dissipated by 
        payments based on work performed illegally in the 
        United States. Additionally, there is no greater magnet 
        for illegal immigration to the U.S. than the 
        availability of jobs, and allowing illegal work to 
        qualify for Social Security retirement and disability 
        benefits only adds to the allure of such work and our 
        difficulty in controlling the Nation's borders. * * *
          Given section 211's importance in the context of 
        Congressional hearings (at which you have testified) 
        where Members have expressed strong criticism of 
        existing SSA practices that do not differentiate 
        between illegal earnings and legal earnings, we find it 
        surprising that revised instructions in the policy 
        operation manual or new regulations have not already 
        been published. Section 211 should help to reduce the 
        problem of unmatched earnings, and contribute to a 
        reduction in the fraudulent use of Social Security 
        numbers by illegal aliens. In this regard, we want to 
        reiterate the importance of section 211 and stress the 
        proper interpretation of this section consistent with 
        clear congressional intent. It is extremely important 
        that SSA revise procedures to implement section 211 and 
        issue public notice that SSA will begin scrutiny and 
        enforcement actions to implement section 211.
          However, most aliens working illegally in the U.S. 
        meet the documentation requirement of section 274A of 
        the Immigration and Nationality Act by presenting their 
        employers with bogus Social Security numbers or steal 
        the identities (and Social Security numbers) of work-
        authorized individuals. Such an alien (or his or her 
        spouse or children) may approach SSA and seek to 
        receive benefits based on work in the U.S. performed on 
        the bogus or stolen numbers. As you know, if the 
        applicant qualifies for benefits, the SSA will then 
        issue a valid Social Security number. In any case where 
        SSA issued or issues a number after January 1, 2004, to 
        an alien in such a circumstance, the prohibition of 
        section 211 will apply, even if the illegally-performed 
        work took place before 2004. We must emphasize that the 
        Congressional intent was that SSA apply the effective 
        date contained in the legislation in this manner. We 
        expect that SSA's revised policy operation manual or 
        new regulations implementing section 211 will adhere to 
        this reading.
          On June 29, 2004, you and Mexican Social Security 
        Institute Director Santiago Levy signed a Totalization 
        Agreement in Guadalajara, Mexico. We have seen an 
        earlier draft of this agreement that omits any mention 
        or discussion of segregating earnings from Mexican or 
        American wage earners working legally versus those 
        working illegally. It is extremely important that the 
        Totalization Agreement with Mexico be amended to 
        incorporate language that addresses section 211's 
        prohibition, so that there will be no misunderstanding 
        with this important neighbor, and so that social 
        security benefits, even on a pro-rata basis, are not 
        provided in violation of federal law.
          Finally, we expect SSA to notify the countries with 
        whom we have in the past entered into Totalization 
        Agreements (Australia, Austria, Belgium, Canada, Chile, 
        Finland, France, Germany, Greece, Ireland, Italy, South 
        Korea, Luxembourg, the Netherlands, Norway, Portugal, 
        Spain, Sweden, Switzerland and the United Kingdom) 
        regarding the impact that section 211 will have on 
        their nationals who might have worked illegally in the 
        United States.

    The letter requested that GAO respond with specific 
information regarding the steps SSA is taking to implement 
Sec. 211, address Sec. 211 in the totalization agreement with 
Mexico, and notify countries with which Totalization Agreements 
are in force of the effect of Sec. 211. As previously 
mentioned, SSA Commissioner Barnhart wrote a letter on August 
16, 2004 outlining the actions the SSA has taken to implement 
the Social Security Protection Act of 2004. She stated: ``In 
April, we alerted our field offices to the new provisions and 
asked them to hold any affected cases pending release of new 
instructions. * * * On May 18, 2004, we wrote to the 
governments of each of the 20 countries with which the United 
States currently has a Totalization Agreement in force to 
advise them of the requirements of the SSPA (copy enclosed). 
This notification included a discussion of the Section 211 
provision.'' `` The U.S.-Mexican Social Security Totalization 
Agreement, which I signed on June 29, 2004, is substantively 
identical to all other Totalization Agreements with respect to 
U.S. benefit eligibility, computations and payments. Prior to 
my signing the agreement, our negotiators made it very clear to 
their Mexican counterparts that this agreement would be fully 
subject to the requirements of Section 211. We have asked the 
State Department to deliver a formal diplomatic communication 
to the Mexican Government to document this understanding.''

GAO report on totalization

    In response to a request from Congressman F. James 
Sensenbrenner, Jr., Chairman of the House Judiciary Committee, 
and Congressman E. Clay Shaw, Jr., Chairman of the House Ways 
and Means Subcommittee on Social Security, GAO completed a 
report in September of 2003 titled, ``SOCIAL SECURITY Proposed 
Totalization Agreement with Mexico Presents Unique 
Challenges.''
    GAO states: ``Totalization agreements foster international 
commerce and protect benefits for persons who have worked in 
foreign countries in two ways. First, the agreements eliminate 
dual social security taxes that multinational employers and 
their employees must pay when they operate and reside in 
countries with parallel social security programs. Second, the 
agreements help to fill gaps in benefit protection for persons 
who have worked in different countries for portions of their 
careers.''
    The Results in Brief report that:

          SSA has no written policies or procedures outlining 
        the specific steps it follows when entering into 
        Totalization Agreements, and the actions it took to 
        assess the integrity and compatibility of Mexico's 
        social security system were limited and neither 
        transparent nor well-documented. SSA said the process 
        it used to develop the proposed Totalization Agreement 
        with Mexico was the same as for prior Totalization 
        Agreements. SSA officials told us that they briefly 
        toured Mexican facilities, observed how their automated 
        systems functioned, and identified the type of data 
        maintained on Mexican workers. However, SSA provided no 
        information showing that it assessed the reliability of 
        Mexican earnings data and the internal controls Mexico 
        uses to ensure the integrity of information that SSA 
        will rely on to pay social security benefits. This 
        report recommends that SSA establish formal processes 
        for entering into Totalization Agreements that include 
        mechanisms to assess the risks associated with such 
        agreements and to document the range of analyses SSA 
        conducts. The report also recommends that reports of 
        proposed agreements be enhanced to make them more 
        consistent and informative and that SSA establish a 
        regular process to reassess the accuracy of its 
        actuarial estimates. SSA and the OCACT commented on 
        this report. SSA said that the report did not 
        sufficiently discuss the benefits of Totalization 
        Agreements and that its current process for evaluating 
        whether to enter into negotiations for Totalization 
        Agreements was sufficient to identify and assess risks. 
        Our report specifically notes that such agreements 
        foster international commerce, protect benefits for 
        persons who have worked in foreign countries, eliminate 
        dual social security taxes, and foster enhanced 
        diplomatic relations. With regard to SSA's current 
        processes, we could find no specific references to SSA 
        examining data reliability and program integrity. We 
        are hopeful that SSA will conduct such examinations of 
        the Mexican social security system before submitting a 
        proposed agreement to the Congress for its review. 
        OCACT [Office of the Chief Actuary] generally agreed 
        with our recommendations and noted that they are 
        consistent with current practices. OCACT, however, took 
        exception to the implication of our statement that its 
        estimated cost was more likely to be understated than 
        overstated. Our intent was not to imply that the OCACT 
        estimate was biased. Accordingly, we have revised our 
        report to state the very large difference between 
        estimated and potential beneficiaries underscores the 
        uncertainty of the estimate, and the potential costs of 
        an agreement could be higher than OCACT projects. The 
        full text of SSA's and OCACT's comments appears in 
        appendix II. The State Department was also provided a 
        copy of the draft report for review and advised us that 
        it had no comments.

Oversight of relationships between FBI agents and confidential 
        informants

    Certain activities within the Boston field office of the 
Federal Bureau of Investigation (FBI) from the 1970s through 
the 1990s have been shown to be highly suspect. As a result of 
investigative reporting, judicial action, and research by the 
Committee on Government Reform of the United States House of 
Representatives, this period has been demonstrated to be full 
of malfeasance and corruption. The handling of two ``Top 
Echelon'' informants, James ``Whitey'' Bulger and Stephen 
Flemmi, by the FBI, most notably Agent John Connolly and 
Supervisor John Morris, proved to be arguably one of the most 
embarrassing and darkest chapters in the history of law 
enforcement in the United States. The Judiciary Committee 
conducted oversight of the FBI's handling of confidential 
informants with the goal of determining whether internal 
changes in policy have sufficiently and effectively addressed 
reported problems. The Committee's oversight into this activity 
is on-going and anticipated to continue into the 109th 
Congress. On August 4, 2003, Chairman F. James Sensenbrenner, 
Jr., traveled on an investigatory trip to Boston. During this 
trip, the Chairman met with Martin G. Weinberg, a criminal 
defense attorney who represented confidential informant John 
Martorano; Gerald O'Neill, former editor of the Boston Globe 
and author of the book Black Mass: The Irish Mob, the FBI, and 
a Devil's Deal; Robert Long, former Detective Lieutenant of the 
Massachusetts State Police; and John Kivlan, former First 
Assistant District Attorney for Norfolk County. Based upon this 
visit, Chairman Sensenbrenner directed further Committee 
investigation.
    On May 6, 2004, Chairman F. James Sensenbrenner, Jr., 
Ranking Member John Conyers Jr., Congressman Chris Cannon, and 
Congressman William D. Delahunt sent a joint letter to Attorney 
General John Ashcroft, posing nine questions regarding requests 
for additional information regarding various guidelines and 
procedures in effect between the Department of Justice (DOJ) 
and the FBI in their respective relationships with confidential 
informants. The Committee's letter requested a response by May 
20, 2004.
    On July 6, 2004, Chairman F. James Sensenbrenner, Jr., 
Ranking Member John Conyers, Jr., Congressman Chris Cannon, and 
Congressman William D. Delahunt sent a joint letter to Dan 
Rosenblatt, Executive Director of the International Association 
of Chiefs of Police, requesting feedback about the level of 
cooperation between state and local law enforcement and the FBI 
in regards to confidential informants or potential criminal 
activity by those informants. Despite several efforts by the 
Committee, Mr. Rosenblatt did not respond to the Committee's 
invitation to provide information.
    On July 7, 2004, Chairman F. James Sensenbrenner, Jr., 
Ranking Member John Conyers, Jr., Congressman Chris Cannon, and 
Congressman William D. Delahunt sent a joint letter to FBI 
Director Robert S. Mueller, III, asking for information 
relating to complaints filed with the FBI's Office of 
Professional Responsibility regarding relationships between 
confidential informants and agents. The Committee's letter 
requested a response by July 28, 2004.
    On July 8, 2004, DOJ submitted a response to the May 6th 
letter from the Committee. Accompanying this letter were: three 
versions of the Attorney General's Guidelines Regarding the Use 
of Confidential Informants; Resolution 18, regarding the 
utilization of cooperating individuals and confidential 
informants; and several versions of the FBI's Manual of 
Investigative Operations Guidelines regarding the Bureau's 
Confidential Informant Program.
    On September 15, 2004, Chairman F. James Sensenbrenner, 
Jr., Ranking Member John Conyers, Jr., Congressman Chris 
Cannon, and Congressman William D. Delahunt sent a joint letter 
to all 50 State attorneys general individually, asking for 
input regarding the level of cooperation demonstrated between 
state and local law enforcement and the FBI concerning 
information about confidential informants and their potential 
criminal activity. The Committee's letter requested a response 
by November 9, 2004.
    On December 6, 2004, Chairman F. James Sensenbrenner, Jr., 
Ranking Member John Conyers, Jr., Congressman Chris Cannon, and 
Congressman William D. Delahunt sent a joint letter to Ralph 
Grunewald, Executive Director of the National Association of 
Criminal Defense Lawyers, seeking information relating to any 
problems which may have arisen dealing with misconduct or 
unethical behavior by FBI agents relating to confidential 
informants. The Committee's letter requested a response by 
January 17, 2005.
    On December 8, 2004, Chairman F. James Sensenbrenner, Jr., 
Ranking Member John Conyers, Jr., Congressman Chris Cannon, and 
Congressman William D. Delahunt sent a joint letter to Paul 
Walsh, President of the National District Attorneys 
Association, seeking input as to communication effectiveness 
between member offices and the FBI and overall effectiveness of 
FBI guidelines and procedures.

Oversight of allegations of misconduct in the Sixth Circuit

    This inquiry began in the summer of 2002, after the 
Committee became aware of the allegations of misconduct by 
then-Chief Judge Martin set forth in Judge Boggs's procedural 
appendix in the affirmative action case, Grutter v. Bollinger, 
288 F.3d 732 (6th Cir. 2002). In his procedural appendix, Judge 
Boggs suggests that: (1) the membership of the panel was 
deliberately and inappropriately assembled and (2) then-Chief 
Judge Martin inappropriately ordered a petition for initial 
hearing en banc withheld from circulation to the full court for 
the purpose of influencing the make up of the panel that heard 
the case. The Committee began conducting oversight on the 
process by which the panel came to sit on the case in the 107th 
Congress. The Committee continued the investigation into the 
108th Congress. The work conducted during the 108th Congress 
includes:
    On June 11, 2003, the Committee, by letter, notified Judge 
Martin of the oversight being initiated by the Committee. Staff 
traveled to cities in Ohio and Michigan in July, September, and 
October of 2003 and interviewed witnesses, including judges and 
court staff.
    In October 2003, Committee staff invited Judges Moore and 
Daughtrey to discuss the matters subject to the investigation. 
Both declined to be interviewed. In December 2003, the 
oversight became a bipartisan investigation. Minority staff 
conducted interviews of witnesses previously interviewed by 
majority staff. In June 2004, bipartisan staff conducted 
interviews in Cincinnati, Ohio. On July 12, 2004, Chairman 
Sensenbrenner sent a letter to the Chief Judge of the Circuit 
asking for non-deliberative documents. The court has partially 
responded to this request. On July 12, 2004, Chairman 
Sensenbrenner sent a letter to each judge who is a subject of 
the Committee's inquiry, inviting each to speak with Committee 
staff about the subject of the investigation, but each judge 
has declined the request. The Committee plans to continue its 
oversight of the Sixth Circuit into the 109th Congress.
  SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY \1\

  LAMAR S. SMITH, Texas, 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
MAXINE WATERS, California            WILLIAM L. JENKINS, Tennessee
MARTIN T. MEEHAN, Massachusetts      SPENCER BACHUS, Alabama
WILLIAM D. DELAHUNT, Massachusetts   MARK GREEN, Wisconsin
ROBERT WEXLER, Florida               RIC KELLER, Florida
TAMMY BALDWIN, Wisconsin             MELISSA A. HART, Pennsylvania
ANTHONY D. WEINER, New York          MIKE PENCE, Indiana
                                     J. RANDY FORBES, Virginia
                                     JOHN R. CARTER, Texas

----------
\1\ Subcommittee chairmanship and assignments approved February 12, 
2003.

Tabulation of subcommittee legislation and activity

Public:
    Legislation referred to the Subcommittee......................    91
    Legislation on which hearings were held.......................    11
    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..................     4
    Legislation pending before the full Committee.................     1
    Legislation reported to the House.............................    15
    Legislation discharged from the Committee.....................     2
    Legislation pending in the House..............................     5
    Legislation passed by the House...............................    14
    Legislation pending in the Senate.............................     8
    Legislation vetoed by the President (not overridden)..........     0
    Legislation enacted into Public Law...........................     6
    Legislation enacted into Public Law as part of other 
      legislation.................................................     2
    Days of legislative hearings..................................    11
    Days of oversight hearings....................................    15
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 on Courts, the Internet, and Intellectual 
Property shall have jurisdiction over the following subject 
matters: copyright, patent and trademark law, information 
technology, administration of U.S. courts, Federal Rules of 
Evidence and Appellate Procedure, judicial ethics, other 
appropriate matters as referred by the Chairman, and relevant 
oversight.

                         Legislative Activities


                                 COURTS

H.R. 29, A bill to convert a temporary judgeship for the district of 
        Nebraska to a permanent judgeship, and for other purposes

    Summary.--Introduced by Representative Doug Bereuter, H.R. 
29 converts a temporary U.S. district judgeship for the 
district of Nebraska to a permanent judgeship.
    Legislative History.--Subsequent to the bill's 
introduction, the temporary judgeship expired, but an 
authorization to create a new district judgeship in its place 
was included in S. 878, a bill to authorize an additional 
permanent judgeships in the district of Idaho, which was later 
amended to include numerous temporary and permanent district 
judgeships as well as new circuit judgeships. See S. 878 for 
further action.

H.R. 112, To amend title 28, United States Code, to provide for an 
        additional place of holding court in the district of Colorado

    Summary.--Introduced by Representative Joel Hefley, H.R. 
112 designates Colorado Springs, Colorado, as a place of 
holding federal court in the district of Colorado.
    Legislative History.--On June 24, 2004, the Subcommittee 
met in open session and ordered favorably reported H.R. 112, 
without amendment, by voice vote. On July 21, 2004, the full 
Committee met in open session and ordered favorably reported 
H.R. 112, without amendment, by voice vote (H. Rept. No. 108-
625). The text of H.R. 112 was later incorporated in H.R. 3632, 
the ``Anti-counterfeiting Amendments Act of 2004,'' as part of 
a manager's floor amendment. The House passed H.R. 3632, as 
amended, on November 21, 2004, by voice vote. The Senate passed 
H.R. 3632 by unanimous consent on December 8, 2004. H.R. 3632 
was signed by the President on December XX, 2004 and became 
Public Law No. 108-XXX. The text of H.R. 112 was also included 
in section 5 of S. 2873, which the Senate passed by unanimous 
consent on November 19, 2004, and the House passed by unanimous 
consent the following day. S. 2873 was signed by the President 
on and became Public Law No. 108-455.

H.R. 1302, the ``Federal Courts Improvement Act of 2003''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
1302 contains several provisions to improve the Federal court 
system. The bill addresses judicial financial administration, 
judicial process improvements, judiciary personnel 
administration, and benefits and protections.
    Legislative History.--On March 20, 2003, the Subcommittee 
met in open session and ordered favorably reported H.R. 1302, 
without amendment, by voice vote. Section 111 of the bill, 
which designates Plattsburgh, New York, as a place of holding 
federal court, was later introduced as a freestanding measure 
(H.R. 4646) by Representative McHugh and incorporated in H.R. 
3632, the ``Anti-counterfeiting Amendments Act of 2004,'' as 
part of a manager's floor amendment. The House passed H.R. 
3632, as amended, on November 21, 2004, by voice vote. The 
Senate passed H.R. 3632 by unanimous consent on December 8, 
2004. H.R. 3632 was signed by the President on December 23, 
2004 and became Public law No. 108-482. In addition, the text 
of H.R. 4646 was included in section 4 of S. 2873, which the 
Senate passed by unanimous consent on November 19, 2004, and 
the House passed by unanimous consent. Finally, Sec. 102 of 
H.R. 1302, which clarifies that court for the Eastern District 
of Texas and the Western District of Arkansas may be held 
anywhere in the Federal Courthouse which sits astride the 
Texas-Arkansas state line.

H.R. 1303, A bill to amend the E-Government Act of 2002 with respect to 
        rulemaking authority of the Judicial Conference

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
1303 authorizes the Supreme Court to prescribe rules to address 
privacy and security concerns regarding the electronic filing 
of and public access to documents under the E-Government Act.
    Legislative History.--On March 20, 2003, the Subcommittee 
met in open session and ordered favorably reported H.R. 1303, 
without amendment, by voice vote. On July 16, 2003, the full 
Committee met in open session and ordered favorably reported 
H.R. 1303, with an amendment, by voice vote (H. Rept. No. 108-
239). On October 7, 2003, the House passed H.R. 1303, as 
amended, by voice vote. The bill was received in the Senate, 
read twice, and referred to the Committee on Governmental 
Affairs on October 14, 2003. On July 7, 2004, Senator Collins 
of the Committee on Governmental Affairs reported H.R. 1303, 
without amendment. On July 9, 2004, the Senate passed H.R. 
1303, without amendment, by unanimous consent. On July 13, 
2004, the Senate requested the return of papers with respect to 
H.R. 1303 by unanimous consent. The following day the House 
returned the papers and the Senate vitiated its previous 
passage and reporting of the bill. On July 15, 2004, the Senate 
Committee on Governmental Affairs discharged H.R. 1303 by 
unanimous consent and the Senate passed the bill, without 
amendment, by unanimous consent, the same day. On August 2, 
2004, the President signed H.R. 1303. (Public Law No. 108-281).

H.R. 1768, the ``Multidistrict Litigation Restoration Act of 2003''

    Summary.--Introduced by Representative F. James 
Sensenbrenner, Jr., H.R. 1768 permits a specially-designated 
``transferee court'' under the federal multidistrict litigation 
statute to retain jurisdiction over referred cases for trial, 
for the purposes of determining liability and punitive damages, 
or to refer them to other districts, as it sees fit.
    Legislative History.--On July 22, 2003, the Subcommittee 
met in open session and ordered favorably reported H.R. 1768, 
without amendment, by voice vote. On January 28, 2004, the full 
Committee met in open session and ordered favorably reported 
H.R. 1768, with an amendment, by voice vote (H. Rept. No. 108-
416). On March 24, 2004, the House passed H.R. 1768 as amended 
by a roll call vote of 418-0. The Senate took no further action 
on the bill.

H.R. 1839, the ``Youth Smoking Prevention and State Revenue Enforcement 
        Act''

    Summary.--Introduced by Representative Mark Green, H.R. 
1839 amends the Jenkins Act by prescribing record-keeping and 
other reporting requirements on persons engaged in the 
interstate sale and distribution of cigarettes. The bill also 
authorizes the U.S. Attorney General to bring criminal and 
civil actions against transgressors to enforce its terms.
    Legislative History.--On May 1, 2003, the Subcommittee held 
a legislative hearing on H.R. 1839. The following witnesses 
appeared and submitted statements for the record: Paul L. 
Jones, Director, Homeland Security and Justice, General 
Accounting Office; Henry ``Hank'' O. Armour, Chairman of the 
Board, National Association of Convenience Stores; Matthew 
Myers, President, National Center for Tobacco-Free Kids; and 
Patrick Fleenor, Chief Economist, Fiscal Economics. No further 
action was taken on H.R. 1839, but the subject of interstate 
tobacco sales was later addressed in H.R. 2824, also introduced 
by Representative Mark Green.

H.R. 2714, the ``State Justice Institute Reauthorization Act of 2003''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
2714 authorizes the operations of the State Justice Institute 
for four fiscal years at $7 million annually. The Institute 
endeavors to improve judicial administration in State courts. 
It accomplishes this goal by providing funds to State courts 
and other national organizations or non-profits that support 
State courts.
    Legislative History.--On July 22, 2003, the Subcommittee 
met in open session and ordered favorably reported H.R. 2714, 
without amendment, by voice vote. On September 10, 2003, the 
full Committee met in open session and ordered favorably 
reported H.R. 2714, with an amendment, by voice vote (H. Rept. 
No. 108-285). On March 10, 2004, the House passed H.R. 2714 as 
amended by voice vote. The following day the bill was read 
twice and referred to the Senate Committee on the Judiciary. On 
September 30, 2004, the Senate Committee on the Judiciary 
discharged the bill by unanimous consent. That same day the 
Senate passed H.R. 2714, with an amendment regarding the 
extension of a bulletproof vest grant program, by unanimous 
consent. On October 8, 2004, Representative Chris Cannon moved 
that the House agree to the Senate amendment to H.R. 2714. The 
motion was agreed to the same day without objection. On October 
25, 2004, the President signed H.R. 2714. (Public Law No. 108-
372)

H.R. 2723, the ``Ninth Circuit Court of Appeals Judgeship and 
        Reorganization Act of 2003''

    Summary.--Introduced by Representative Michael K. Simpson, 
H.R. 2723 reconfigures the present Ninth Circuit Court of 
Appeals by creating a new Ninth comprised of Arizona, 
California and Nevada; and a Twelfth Circuit comprised of 
Alaska, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, 
Oregon, and Washington.
    Legislative History.--On October 21, 2003, the Subcommittee 
held a legislative hearing on H.R. 2723. The following 
witnesses appeared and submitted written statements for the 
record: the Honorable Mary M. Schroeder, Chief Judge, U.S. 
Court of Appeals for the Ninth Circuit; the Honorable Diarmuid 
E. O'Scannlain, Judge, U.S. Court of Appeals for the Ninth 
Circuit; the Honorable Alex Kozinski, Judge, U.S. Court of 
Appeals for the Ninth Circuit; and Arthur D. Hellman, Professor 
of Law, Pittsburgh University School of Law. No further action 
was taken on H.R. 2723; however, the House later approved an 
amendment to another bill (S. 878) that reconfigures the Ninth 
Circuit based on the text of S. 2278. This amendment to S. 878 
was offered by Representative Michael K. Simpson. As 
introduced, S. 878 authorizes an additional permanent judgeship 
in the district of Idaho. It was also amended to include 
numerous temporary and permanent district judgeships as well as 
new circuit judgeships. See S. 878 for further action.

H.R. 2824, the ``Internet Tobacco Sales Enforcement Act''

    Summary.--Introduced by Representative Mark Green, H.R. 
2824 amends the Jenkins Act by prescribing record-keeping and 
other reporting requirements on persons engaged in the 
interstate sale and distribution of cigarettes. The bill also 
authorizes the U.S. Attorney General to bring criminal and 
civil actions against transgressors to enforce its terms.
    Legislative History.--On October 2, 2003, the Subcommittee 
met in open session and ordered favorably reported H.R. 2824, 
with an amendment, by voice vote. On January 28, 2004, the full 
Committee met in open session and ordered favorably reported 
H.R. 2824, as amended, by voice vote. No House Report was 
filed, and no further action was taken on the bill.

H.R. 3486, A bill to create 4 new permanent judgeships for the eastern 
        district of California

    Summary.--Introduced by Representative William M. Thomas, 
H.R. 3486 creates four new permanent U.S. judgeships for the 
eastern district of California.
    Legislative History.--No action was taken on the bill, 
although its contents were included in S. 878, a bill to 
authorize an additional permanent judgeship in the district of 
Idaho, which was later amended to include numerous temporary 
and permanent district judgeships as well as new circuit 
judgeships. See S. 878 for further action.

H.R. 3799, the ``Constitution Restoration Act of 2004''

    Summary.--Introduced by Representative Robert B. Aderholt, 
H.R. 3799 prohibits the U.S. Supreme Court or any federal court 
from reviewing subject matter regarding ``relief * * * sought 
against * * * an element * * * or an officer of * * * 
government * * *, by reason of that element's or officer's 
acknowledgment of God as the sovereign source of law, liberty, 
or government.'' Judges who violate this prohibition are 
subject to impeachment. The bill also prohibits a court from 
invoking ``foreign'' sources of guidance when ``interpreting 
and applying the Constitution.''
    Legislative History.--On September 13, 2004, the 
Subcommittee conducted a legislative hearing on H.R. 3799. The 
following witnesses appeared and submitted written statements 
for the record: the Honorable Roy S. Moore, Chairman, 
Foundation for Moral Law, Inc.; the Honorable William E. 
Dannemeyer, Member of Congress, 1979-1992; Arthur D. Hellman, 
Professor of Law, Pittsburgh University School of Law; and 
Michael J. Gerhardt, Professor of Law, William & Mary School of 
Law. No further action was taken on the bill.

H.R. 3851, A bill to authorize an additional permanent judgeship for 
        the district of Hawaii

    Summary.--Introduced by Representative Neil Abercrombie, 
H.R. 3851 creates an additional permanent district judgship for 
the district of Hawaii.
    Legislative History.--No action was taken on the bill, but 
its contents were included in S. 878, a bill to authorize an 
additional permanent judgeship in the district of Idaho, which 
was later amended to include numerous temporary and permanent 
district judgeships as well as new circuit judgeships. See S. 
878 for further action.

S. 878, A bill to authorize an additional permanent judgeship in the 
        district of Idaho, and for other purposes

    Summary.--Introduced by Senator Larry E. Craig, S. 878 
authorizes an additional permanent judgeship in the District of 
Idaho. The bill was later amended to include numerous temporary 
and permanent district judgeships as well and new circuit 
judgeships for the Federal judiciary and to include a plan to 
reorganize and split the Ninth Circuit Court of Appeals.
    Legislative History.--On May 20, 2003, Senator Orrin Hatch 
of the Senate Committee on the Judiciary ordered reported S. 
878 with an amendment in the nature of a substitute. On May 22, 
2003, the Senate passed S. 878, with an amendment, by unanimous 
consent. On June 2, 2003, the bill was referred to the House 
Committee on the Judiciary. On June 25, 2003, Representative F. 
James Sensenbrenner, Jr., referred S. 878 to the Subcommittee. 
On September 3, 2004, the Subcommittee was discharged from 
consideration of the bill. On September 9, 2004, the full 
Committee ordered favorably reported S. 878, with an amendment, 
by voice vote (H. Rept. No. 108-708). On October 5, 2004, the 
House passed S. 878, with an amendment, by voice vote. No 
further action was taken on the bill.

H.R. 4247, the ``Ninth Circuit Judgeship and Reorganization Act of 
        2004''

    Summary.--Introduced by Representative Rick Renzi, H.R. 
4247 reconfigures the present Ninth Circuit Court of Appeals by 
creating a new Ninth comprised of California, Guam, Hawaii, and 
Northern Mariana Islands; a Twelfth Circuit comprised of 
Arizona, Nevada, Idaho, and Montana; and a Thirteenth Circuit 
comprised of Alaska, Oregon, and Washington.
    Legislative History.--No action was taken on the bill, but 
its contents, identical to that of S. 2278, were incorporated 
in an amendment offered by Representative Michael K. Simpson to 
S. 878, a bill to authorize an additional permanent judgeship 
in the district of Idaho. In addition to the Simpson amendment, 
the bill was later amended to include numerous temporary and 
permanent district judgeships as well as new circuit 
judgeships. See S. 878 for further action.

H.R. 4301, A bill to authorize an additional district judgeship for the 
        district of Nebraska

    Summary.--Introduced by Representative Lee Terry, H.R. 4301 
authorizes an additional district judgeship for the district of 
Nebraska.
    Legislative History.--No action was taken on H.R. 4301, but 
its contents were included in S. 878, a bill to authorize an 
additional permanent judgeship in the district of Idaho. S. 878 
was also amended to include numerous temporary and other 
permanent district judgeships as well as new circuit 
judgeships. See S. 878 for further action.

H.R. 4571, the ``Lawsuit Abuse Reduction Act of 2004''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
4571 amends Rule 11 of the Federal Rules of Civil Procedure by 
requiring judges to impose attorney sanctions for violations of 
its terms. The bill also applies Rule 11 to State actions 
pertaining to interstate commerce.
    Legislative History.--On September 3, 2004, the 
Subcommittee was discharged from consideration of H.R. 4571. On 
September 8, 2004, the full Committee met in open session and 
ordered favorably reported H.R. 4571, with an amendment, by a 
roll call vote of 18-10 (H. Rept. No. 108-682). On September 
14, 2004, the House passed H.R. 4571 as amended by a roll call 
vote of 229-174. H.R. 4571 was referred to the Senate Committee 
on the Judiciary on September 15, 2004 and no further action 
was taken on the bill.

H.R. 4646, A bill to amend title 28, United States Code, to provide for 
        the holding of Federal district court in Plattsburgh, New York, 
        and for other purposes

    Summary.--Introduced by Representative John M. McHugh, H.R. 
4646 designates Plattsburgh, New York, as a place of holding 
federal court in the Northern District of New York.
    Legislative History.--The text of H.R. 4646 was included as 
Sec. 111 of H.R. 1302, the ``Federal Court Improvements Act of 
2003,'' which the Subcommittee ordered favorably reported on 
March 20, 2003. On July 19, 2004, the Subcommittee was 
discharged from consideration of H.R. 4646. On July 21, 2004, 
the full Committee met in open session and ordered favorably 
reported H.R. 4646, with an amendment, by voice vote (H. Rept. 
No. 108-626). The text of H.R. 4646 was later incorporated in 
H.R. 3632, the ``Anti-counterfeiting Amendments Act of 2004,'' 
as part of a manager's floor amendment. The House passed H.R. 
3632, as amended, on November 21, 2004, by voice vote. The 
Senate passed H.R. 3632 by unanimous consent on December 8, 
2004. H.R. 3632 was signed by the President on December 23, 
2004 and became Public Law No. 108-482. The text of H.R. 4646 
was also included in Sec. 4 of S. 2873, which the Senate passed 
by unanimous consent on November 19, 2004, and the House passed 
by unanimous consent the following day. S. 2873 was signed by 
the President on December 10, 2004 and became Public Law 108-
455.

H.R. 5273, A bill to convert certain temporary judgeships to permanent 
        judgeships, to create an additional judgeship for the district 
        of Nebraska and for the eastern district of California, and for 
        other purposes

    Summary.--Introduced by Representative William M. Thomas, 
H.R. 5273 creates an additional U.S. district judgeship each 
for the Eastern District of California and the District of 
Nebraska, and converts temporary judgeships to permanent status 
in the Districts of Hawaii, Kansas, and the Eastern District of 
Missouri.
    Legislative History.--No action was taken on the bill, but 
its contents were included in S. 878, a bill to authorize an 
additional permanent judgeship in the District of Idaho, which 
was later amended to include numerous temporary and permanent 
district judgeships as well as new circuit judgeships. See S. 
878 for further action.

H.R. 5274, A bill to create an additional judgeship for the Eastern 
        District of California, and for other purposes

    Summary.--Introduced by Representative William M. Thomas, 
H.R. 5274 creates an additional U.S. district judgeship for the 
Eastern District of California.
    Legislative History.--No action was taken on the bill, but 
its contents were included in S. 878, a bill to authorize an 
additional permanent judgeship in the District of Idaho, which 
was later amended to include numerous temporary and permanent 
district judgeships as well as new circuit judgeships. See S. 
878 for further action.

S. 1720, A bill to provide for Federal Court proceedings in Plano, 
        Texas

    Summary.--Introduced by Senator John Cornyn, S. 1720 
implements the March 1991 Judicial Conference proposal to 
designate Plano, Texas, as a place of holding court in the 
Eastern District of Texas. It also realigns the divisions of 
the U.S. District Court for the Eastern District of Texas to 
reflect the closing of the courthouse in Denton County. The 
Paris division is eliminated and its counties redistributed 
among the other divisions of the court. Plano is the largest 
city in the Eastern District of Texas. Of the 93 judicial 
districts in the United States, the Eastern District of Texas 
is the only one in which its largest city cannot hold federal 
court.
    Legislative History.--On October 30, 2003, Senator Orrin 
Hatch of the Senate Committee on the Judiciary ordered reported 
S. 1720 with an amendment in the nature of a substitute (there 
was no accompanying report). On November 4, 2003, the Senate 
passed S. 1720 with an amendment by unanimous consent. The bill 
was referred to the House Committee on the Judiciary the 
following day. On November 19, 2003, the House passed S. 1720, 
as amended, by voice vote. The President signed the bill on 
December 3, 2003. (Public Law No. 108-157)

S. 2742, A bill to extend certain authority of the Supreme Court 
        Police, modify the venue of prosecutions relating to Supreme 
        Court building and grounds, and authorize the acceptance of 
        gifts to the United States Supreme Court

    Summary.--Introduced by Senator Orrin Hatch, S. 2742 allows 
the Supreme Court police to escort the Justices to functions in 
the Washington, D.C., area for security purposes; permits the 
U.S. District Court for the District of Columbia (in addition 
to D.C. Superior Court) to prosecute criminal offenses 
occurring on Court grounds or in the Court building; and 
permits the Chief Justice to accept gifts pertaining to the 
history of the Court.
    Legislative History.--On September 21, 2004, Senator Orrin 
Hatch reported S. 2742 without amendment (there was no 
accompanying Report). On September 28, 2004, the Senate passed 
S. 2742 with an amendment by unanimous consent. The following 
day the bill was referred to the House Committee on the 
Judiciary. On October 6, 2004, the House passed S. 2742, as 
amended by voice vote. The President signed the bill on October 
21, 2004. (Public Law No. 108-356)

                         INTELLECTUAL PROPERTY

Copyrights

H.R. 1417, the ``Copyright Royalty and Distribution Reform Act of 
        2004''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
1417 replaces the existing administrative construct within the 
U.S. Copyright Office that determines copyright royalty rates 
and the distribution of related royalties under various 
compulsory licenses.
    Legislative History.--On April 1, 2003, the Subcommittee 
conducted a legislative hearing on H.R. 1417. The following 
witnesses appeared and submitted a written statement for the 
record: the Honorable Marybeth Peters, Register of Copyrights 
and Associate Librarian for Copyright Services, Copyright 
Office of the United States, the Library of Congress; Robert A. 
Garrett, Attorney-at-Law and Partner, Arnold & Porter; R. Bruce 
Rich, Attorney-at-Law, Weil, Gotschal & Manges, LLP; and 
Michael J. Remington, Attorney-at-Law and partner, Drinker 
Biddle & Reath, LLP. On May 20, 2003, the Subcommittee met in 
open session and ordered favorably reported H.R. 1417, with an 
amendment, by voice vote. On September 24, 2003, the full 
Committee met in open session and ordered favorably reported 
H.R. 1417, with an amendment, by voice vote (H. Rept. 108-408). 
On March 3, 2004, the House passed H.R. 1417, as amended, by a 
roll call vote of 406-0. The following day the bill was read 
twice and referred to the Senate Committee on the Judiciary. On 
September 29, 2004, Senator Hatch ordered favorably reported 
H.R. 1417 with an amendment in the nature of a substitute 
(without a written report). On October 6, 2004, the Senate 
passed H.R. 1417 with an amendment by unanimous consent. On 
November 16, 2004, the Senate passed S. Con. Res. 145, without 
an amendment and by unanimous consent (this was an enrolling 
resolution to correct technical errors in H.R. 1417). On 
November 17, 2004, the House passed S. Con. Res. 145, without 
amendment, by voice vote. Later that same day the House agreed 
to the Senate amendment to H.R. 1417 by a roll call vote of 
407-0. The President signed the bill on November 30, 2004. 
(Public Law No. 108-419)

H.R. 2344, the ``Intellectual Property Protection Restoration Act of 
        2003''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
2344 prevents the award of damages for infringement of 
intellectual property owned by a State if that State has not 
waived its immunity under the Eleventh Amendment. The bill 
addresses the inequity of States that defend their intellectual 
property rights in federal court while asserting the Eleventh 
Amendment as a defense when they are sued for infringement by 
third-party copyright, patent, and trademark holders.
    Legislative History.--On June 17, 2003, the Subcommittee 
conducted a legislative hearing on H.R. 2344. The following 
witnesses appeared and submitted a written statement for the 
record: the Honorable Marybeth Peters, Register of Copyrights, 
Copyright Office of the United States, the Library of Congress; 
Leslie Winner, General Counsel and Vice President, University 
of North Carolina at Chapel Hill; Mark Bohannon, General 
Counsel and Senior Vice President for Public Policy, on behalf 
of The Software and Information Industry Association; and Paul 
Bender, Professor of Law, Arizona State University School of 
Law. No further action was taken on the bill.

H.R. 2517, the ``Piracy Deterrence and Education Act of 2003''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
2517 requires the Federal Bureau of Investigation to create a 
deterrence program that prevents online piracy and facilitates 
the sharing of information concerning piracy among law 
enforcement, Internet service providers, and copyright owners; 
requires the Attorney General to ensure that any unit within 
the Department of Justice responsible for investigating 
computer hacking or piracy has at least one agent dedicated to 
investigating such crimes; establishes within the Office of the 
Associate Attorney General an ``Internet Use Program'' to 
educate the public about copyright law, privacy, and security 
with respect to Internet use; and clarifies that the U.S. 
Customs Service has the authority to seize infringed 
copyrighted works regardless of whether the work has been 
registered with the Copyright Office or recorded with the 
Customs Service.
    Legislative History.--On July 17, 2003, the Subcommittee 
conducted a legislative hearing on H.R. 2517. The following 
witnesses appeared and submitted a written statement for the 
record: Jana D. Monroe, Assistant Director of Cyber Division, 
Federal Bureau of Investigation; David P. Trust, Chief 
Executive Officer, Professional Photographers of America; Linn 
Skinner, Proprietor, Skinner Sisters; and Maren Christensen, 
Senior Vice President, Intellectual Property Counsel, Universal 
Studios. No further action was taken on the bill, but portions 
of it were included in H.R. 4077, the ``Piracy Deterrence and 
Education Act of 2004.'' See H.R. 4077 for further action.

H.R. 2752, the ``Author, Consumer, and Computer Owner Protection and 
        Security (ACCOPS) Act of 2003''

    Summary.--Introduced by Representative John Conyers, Jr., 
H.R. 2752 prescribes new criminal copyright reporting 
requirements for the Department of Justice, requires the 
sharing of evidence regarding copyright infringement between 
the Attorney General and foreign nations, and proscribes the 
acts of submitting false domain name registration information 
and surreptitious ``camcording'' in public theaters.
    Legislative History.--No formal action was taken on the 
bill, but portions of it were included in H.R. 4077, the 
``Piracy Deterrence and Education Act of 2004'' and H.R. 3754, 
the ``Fraudulent Online Identity Sanctions Act'' (H.R. 3754 was 
included in H.R. 3632, the ``Anti-counterfeiting Amendments Act 
of 2004,'' which the House passed on September 21, 2004, and 
the Senate passed on December 8, 2004 and the President signed 
on December 23, 2004. (Public Law No. 108-482). See H.R. 4077, 
H.R. 3754, and H.R. 3632 for further action.

H.R. 3261, the ``Database and Collections of Information 
        Misappropriation Act''

    Summary.--Introduced by Representative Howard Coble, H.R. 
3261 prohibits the making available to others of a 
quantitatively substantial part of the information in a 
database, with knowledge that the making available is without 
the database producer's authorization, if: the database was 
generated, gathered or maintained through a substantial 
expenditure of financial resources or time; the making 
available occurs in a time sensitive manner; the making 
available inflicts injury on the database by serving as a 
functional equivalent in the same market as the database in a 
manner that causes displacement of sources of revenue; and the 
ability of parties to free ride on others threatens the 
existence or quality of the database.
    Legislative History.--On September 23, 2003, the 
Subcommittee conducted a legislative hearing on H.R. 3261. The 
following witnesses appeared and submitted a written statement 
for the record: David Carson, General Counsel, Copyright Office 
of the United States, the Library of Congress; Thomas J. 
Donohue, President and Chief Executive Officer, Chamber of 
Commerce; Keith Kupferschmid, Vice President, Intellectual 
Property Policy & Enforcement, Software & Information Industry 
Association on behalf of the Coalition Against Database Piracy; 
and William Wulf, President, National Academy of Engineering 
and Vice Chairman, National Research Council. On October 16, 
2003, the Subcommittee met in open session and ordered 
favorably reported H.R. 3261, with an amendment, by a roll call 
vote of 10-3. On January 21, 2004, the full Committee met in 
open session and ordered reported H.R. 3261, with an amendment, 
by a vote of 16-7 (H. Rept. No. 108-421, Part I). On February 
11, 2004, H.R. 3261 was referred sequentially to the House 
Committee on Energy and Commerce. On March 3, 2004, the 
Committee on Energy and Commerce ordered reported unfavorably 
H.R. 3261 by voice vote (H. Rept. No. 108-421, Part II). No 
further action was taken on the bill.

H.R. 3569, the ``National Film Preservation Act of 2003''

    Summary.--Introduced by Representative John Conyers, Jr., 
H.R. 3569 reauthorizes the National Film Preservation Board and 
the National Film Preservation Foundation for seven years at $7 
million annually. The Board and Foundation preserve older films 
and develop film access activities for the public.
    Legislative History.--No action was taken on H.R. 3569, but 
its text was included in S. 3021, a bill to provide for the 
protection of intellectual property rights, and for other 
purposes, which the Senate passed, with an amendment, by 
unanimous consent on November 20, 2004. No further action was 
taken on S. 3021.

H.R. 3632, the ``Anti-counterfeiting Amendments Act of 2004''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
3632 creates criminal and civil sanctions against persons who 
knowingly traffic in genuine ``authentication components,'' and 
in the case of computer software, components that have been 
knowingly altered to falsify the number or type of authorized 
users or the version or edition of the relevant software 
program. H.R. 3632 amends 18 U.S.C. Sec. 2318 to expand its 
existing scope to include physical authentication components 
such as holograms and labels. Existing law does not penalize 
those who traffic in such authentication components without 
actually making counterfeit copies or selling counterfeit 
goods.
    Legislative History.--On February 12, 2004, the 
Subcommittee conducted a legislative hearing on H.R. 3632. The 
following witnesses appeared and submitted a written statement 
for the record: Richard LaMagna, Senior Manager-Worldwide 
Investigations, Microsoft; Emery Simon, Counselor, Business 
Software Alliance (BSA); Brad Buckles, Executive Vice 
President, Anti-Piracy, Recording Industry Association of 
America, Inc. (RIAA); and David Green, Vice President and 
Counsel, Technology and New Media, Motion Picture Association 
of America (MPAA). On March 31, 2004, the Subcommittee met in 
open session and ordered favorably reported H.R. 3632, with an 
amendment, by voice vote. On June 23, 2004, the full Committee 
met in open session and ordered favorably reported H.R. 3632, 
with an amendment, by voice vote (H. Rept. No. 108-600). On 
September 21, 2004, the House passed H.R. 3632, as amended, by 
voice vote. The Senate passed H.R. 3632 by unanimous consent on 
December 8, 2004. The President signed H.R. 3632 into law on 
December 23, 2004. (Public law No. 108- 482) The text of H.R. 
3632 was also included in S. 3021, a bill to provide for the 
protection of intellectual property rights, and for other 
purposes, which the Senate passed, with an amendment, by 
unanimous consent on November 20, 2004. No further action was 
taken on S. 3021.

H.R. 3754, the ``Fraudulent Online Identity Sanctions Act''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
3754 creates penalties for those who submit materially false 
contact information in connection with a domain name used to 
commit a crime or engage in online infringement.
    Legislative History.--On February 4, 2004, the Subcommittee 
conducted a legislative hearing on H.R. 3754. The following 
witnesses appeared and submitted a written statement for the 
record: Timothy P. Trainer, President, International 
AntiCounterfeiting Coalition, Inc. (IACC); J. Scott Evans, 
President, Intellectual Property Constituency; Rick Wesson, 
Chief Executive Officer, Alice's Registry; and Mark Bohannon, 
General Counsel and Senior Vice President for Public Policy on 
behalf of Copyright Coalition on Domain Names (CCDN). On March 
31, 2004, the Subcommittee met in open session and ordered 
favorably reported H.R. 3754, with an amendment, by voice vote. 
On May 12, 2004, the full Committee ordered favorably reported 
H.R. 3754, with an amendment, by voice vote (H. Rept. No. 108-
536). Pursuant to a manager's floor amendment, the text of H.R. 
3754 was included in H.R. 3632, the ``Anti-counterfeiting 
Amendments Act of 2004,'' which the House passed on September 
21, 2004. The Senate passed H.R. 3632 by unanimous consent on 
December 8, 2004. The President signed H.R. 3632 on December 
23, 2004 and it became Public Law No. 108-482. The text of H.R. 
3754 was also included in S. 3021, a bill to provide for the 
protection of intellectual property rights, and for other 
purposes, which the Senate passed, with an amendment, by 
unanimous consent on November 20, 2004. No further action was 
taken on S. 3021.

H.R. 4077, the ``Piracy Deterrence and Education Act of 2004''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
4077 contains funding to educate the public about intellectual 
property law, increases cooperation among federal agencies and 
intellectual property owners concerning piracy, and assists the 
Department of Justice in its efforts to prosecute online 
intellectual property theft by creating a new criminal cause of 
action in Section 506 of Title 17.
    Legislative History.--On March 31, 2004, the Subcommittee 
met in open session and ordered favorably reported H.R. 4077, 
with an amendment, by voice vote. On September 8, 2004, the 
full Committee met in open session and ordered favorably 
reported H.R. 4077, with an amendment, by voice vote (H. Rept. 
No. 108-700). On September 28, 2004, the House passed H.R. 
4077, as amended, by voice vote. Portions of H.R. 4077 (the 
text of H.R. 4586, the ``Family Movie Act of 2004'') were 
included in S. 3021, a bill to provide for the protection of 
intellectual property rights, and for other purposes, which the 
Senate passed, with an amendment, by unanimous consent on 
November 20, 2004. No further action was taken on S. 3021.

H.R. 4518, the ``Satellite Home Viewer Extension and Reauthorization 
        Act of 2004''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
4518 extends the ``distant-signal'' compulsory license that 
allows satellite systems to operate for an additional five 
years, provides a process that will enable copyright holders to 
receive fair compensation for the use of their creative works, 
ensures that satellite subscribers are able to continue to 
receive distant and local network and super-station signals to 
which they are entitled, and makes other necessary improvements 
to the satellite compulsory license.
    Legislative History.--On May 6, 2004, the Subcommittee met 
in open session and ordered favorably reported the Committee 
Print on the ``Satellite Home Viewer Extension and 
Reauthorization Act of 2004.'' The Committee print became the 
basis for H.R. 4518 which Representative Lamar S. Smith 
introduced on June 4, 2004. On July 1, 2004, the Subcommittee 
was discharged from consideration of H.R. 4518. On July 7, 
2004, the full Committee met in open session and ordered 
favorably reported H.R. 4518, with an amendment, by voice vote 
(H. Rept. No. 108-660). On October 6, 2004, the House passed 
H.R. 4518 as amended, by voice vote. Most of the contents of 
H.R. 4518 were included in H.R. 4818, the ``Consolidated 
Appropriations Act of 2005'' (both houses of Congress agreed to 
the accompanying conference report to H.R. 4818, H. Rept. No. 
108-792, on November 20, 2004). The President signed H.R. 4818 
into law on December 8, 2004. (Public Law No. 108-447)

H.R. 4586, the ``Family Movie Act of 2004''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
4586 provides that it is not copyright or trademark 
infringement for allows companies to offer technologies and 
services to filter out content from movies, usually on DVDs. 
Several companies are offering various technologies and 
services to enable consumers to watch edited versions of major 
motion pictures that have content removed by muting dialogue or 
lyrics and skipping over visual content.
    Legislative History.--The Subcommittee conducted a 
legislative hearing on H.R. 4586 on June 17, 2004. The 
following witnesses appeared and submitted a written statement 
for the record: the Honorable Marybeth Peters, Register of 
Copyrights, Copyright Office of the United States, the Library 
of Congress; Dr. Amitai Etzioni, Founder and Director, The 
Institute for Communitarian Policy Studies, The George 
Washington University; Jack Valenti, President and Chief 
Executive Officer, Motion Picture Association of America; and 
Penny Nance, President, Kids First Coalition. On July 8, 2004, 
the Subcommittee met in open session and ordered favorably 
reported H.R. 4586, with an amendment, by a roll call vote of 
11-5. On July 21, 2004, the full Committee met in open session 
and ordered favorably reported H.R. 4518, as amended, by a roll 
call vote of 18-9 (H. Rept. No. 108-670). Pursuant to a 
manager's floor amendment, the text of H.R. 4586 was included 
in H.R. 4077, the ``Piracy Deterrence and Education Act of 
2004,'' which the House passed on September 28, 2004, by voice 
vote. Portions of H.R. 4077 (specifically, the text of H.R. 
4586) were included in S. 3021, a bill to provide for the 
protection of intellectual property rights, and for other 
purposes, which the Senate passed, with an amendment, by 
unanimous consent on November 20, 2004. No further action was 
taken on S. 3021.

H.R. 5136, the Preservation of Orphan Works Act''

    Summary.--Introduced by Representative Howard L. Berman, 
H.R. 5136 broadens the Copyright Act to permit libraries and 
archives to reproduce, distribute, perform, and display all 
orphan copyrighted works in the course of their preservation, 
scholarly, research activities.
    Legislative History.--No action was taken on the bill, but 
the text of H.R. 5136 was included in S. 3021 which no action 
was taken in the House on S. 3021.

S. 1932, the ``Artists' Rights and Theft Prevention Act of 2004''

    Summary.--Introduced by Senator John Cornyn, S. 1932 
proscribes the act of ``camcording'' movies in public theaters 
and creates new civil and criminal penalties for copyright 
infringement of works that are being prepared for commercial 
distribution, such as ``new release'' feature films.
    Legislative History.--On April 29, 2004, Senator Orrin 
Hatch of the Senate Committee on the Judiciary reported S. 1932 
with an amendment in the nature of a substitute. On June 25, 
2004, the Senate passed S. 1932, with an amendment, by 
unanimous consent. Portions of S. 1932 (the ``camcording'' 
text) were also a component of H.R. 4077, the ``Piracy 
Deterrence and Education Act of 2004,'' which the House passed 
on September 28, 2004. The ``camcording'' text of H.R. 4077 was 
also included in S. 3021, a bill to provide for the protection 
of intellectual property rights, and for other purposes, which 
the Senate passed, with an amendment, by unanimous consent on 
November 20, 2004. No further action was taken on S. 3021.

Patents and Trademarks

H.R. 1561, the ``United States Patent and Trademark Fee Modernization 
        Act of 2003''

    Summary.--Introduced by Representative Lamar S. Smith, H.R. 
1561 creates a new patent and trademark fee schedule to 
generate greater revenue for the U.S. Patent and Trademark 
Office. The bill as amended on the House floor prevents 
appropriations ``diversion'' by creating a refund mechanism 
that returns money to individuals and companies when user-fee 
revenue exceeds estimated collections at PTO in a given fiscal 
year.
    Legislative History.--On April 3, 2003, the Subcommittee 
conducted a legislative hearing on H.R. 1561. The following 
witnesses appeared and submitted a written statement for the 
record: 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; John K. Williamson, 
President, Intellectual Property Owners; and Ronald J. Stern, 
President, Patent Office Professional Association. On May 22, 
2003, the Subcommittee met in open session and ordered 
favorably reported H.R. 1561, with amendment, by voice vote. On 
July 9, 2003, the full Committee ordered reported favorably 
H.R. 1561, as amended, by voice vote (H. Rept. No. 108-241). On 
March 3, 2003, the House passed H.R. 1561, with an amendment, 
by a roll call vote of 379-28. The bill was referred the 
following day to the Senate Committee on the Judiciary. On 
April 29, 2004, Senator Orrin Hatch reported H.R. 1561, without 
an amendment and without a written Report. No further action 
was taken on H.R. 1561, but the new fee schedule set forth in 
the bill was included in H.R. 4818, the ``Consolidated 
Appropriations Act of 2005'' (both houses of Congress agreed to 
the accompanying conference report to H.R. 4818, H. Rept. No. 
108-792, on November 20, 2004). The President signed H.R. 4818 
into law on December 8, 2004. (Public Law No. 108-447) Language 
regarding fee diversion (the refund mechanism) and other text 
from H.R. 1561 were omitted.

H.R. 2391, the ``Cooperative Research and Technology Enhancement 
        (CREATE) Act of 2003''

    Summary.--Introduced by Representative Lamar S. Smith, the 
CREATE Act gives the same statutory protection to inventive 
collaborators who are members of multiple organizations that is 
currently available to inventive collaborators employed by a 
single entity. The CREATE Act extends to collaborative 
researchers who work in multiple organizations the ``safe 
harbor'' that patent law currently provides to inventive 
collaborators who are employed in a single organization by 
prohibiting the use of ``secret prior art'' to defeat an 
otherwise valid patent or patent application.
    Legislative History.--On June 10, 2003, the Subcommittee 
conducted a legislative hearing on H.R. 2391. The following 
witnesses appeared and submitted a written statement for the 
record: Jon Soderstrom, Ph.D., Director of Technology Transfer, 
Yale University; Eric Steffe, Sterne Kessler Goldstein & Fox; 
Jeffrey P. Kushan, Esq., Sidley Austin Brown & Wood on behalf 
of Genentech; and John R. Thomas, Professor, Georgetown 
University Law Center. On July 22, 2003, the Subcommittee 
ordered favorably reported H.R. 2391, with an amendment, by 
voice vote. On January 21, 2004, the full Committee ordered 
favorably reported H.R. 2391, with an amendment, by voice vote 
(H. Rept. No. 108-425). On March 10, 2004, the House passed 
H.R. 2391, with an amendment, by voice vote. The following day 
the bill was referred to the Senate Committee on the Judiciary. 
On October 7, 2004, Senator Hatch reported H.R. 2391 with an 
amendment in the nature of a substitute, without written 
report. The text of H.R. 2391 as passed by the House was also 
included in S. 2192, which Senator Orrin Hatch introduced and 
the Senate passed by unanimous consent on June 25, 2004. On 
November 20, 2004, the House passed S. 2192 by unanimous 
consent. The President signed S. 2192 into law on December 10, 
2004. (Public law No. 108-453)

                          Oversight Activities


Summary of the Committee's oversight plan and the Subcommittee's 
        response thereto

    Pursuant to its obligation under Rule X of the House Rules, 
the Committee submitted the following subject matter as part of 
its oversight plan for the 108th Congress:

The Federal judicial system

    The Subcommittee has jurisdiction over the Federal judicial 
system, including the operations of all district and circuit 
courts, the Judicial Conference of the United States, the 
Administrative Office of the U.S. Courts, and the Federal 
Judicial Center. The oversight plan noted the Committee's 
interest in ascertaining federal judgeship needs as well as 
monitoring the operations of the Federal judicial misconduct 
statute (28 U.S.C. Sec. 351 et seq.).
    On June 24, 2003, the Subcommittee conducted an oversight 
hearing on Federal judgeship needs. Testimony received at this 
time from the Federal bar and entreaties from other Members and 
judges compelled the Committee to favorably report S. 878, an 
omnibus judgeship bill that incorporated every U.S. district 
and circuit judgeship recommendation made by the U.S. Judicial 
Conference, but did not include bankruptcy judgeships which 
were included in the omnibus bankruptcy legislation. On October 
5, 2004, the bill was further revised when Representative 
Michael K. Simpson offered a floor amendment (adopted by the 
House) to reconfigure the existing Ninth Circuit Court of 
Appeals into three new circuits.
    In addition, the Subcommittee and full Committee have had a 
longstanding interest in ensuring that the Federal judiciary 
maintain the highest standard of ethical behavior. The 
Subcommittee rewrote portions of the judicial misconduct 
statute in the 107th Congress. As a result of continuing 
conversations between the Committee and the federal judiciary 
on May 25, 2004, the Chief Justice announced the creation of a 
judicial commission, headed by Justice Stephen Breyer, to 
examine the operations of the statute.
            The U.S. copyright system
    The Subcommittee has jurisdiction over the Copyright Act 
(Title 17 of the U.S. Code) and the operations of the Copyright 
Office, which registers copyrighted works, collects and 
distributes certain royalties, and offers policy advice to the 
Congress on copyright issues.
    During the 108th Congress, the Subcommittee conducted a 
number of copyright oversight hearings in response to issues 
identified in the Committee oversight plan as well as concerns 
expressed by the Copyright Office, copyright holders, and 
Members of Congress. For example, the oversight plan detailed 
the necessity to maintain adequate funding for the Copyright 
Office. The Subcommittee conducted an oversight hearing on the 
operations of the Office on June 3, 2004. The Register of 
Copyrights ably defended the Office's budget request for FY 
2005, and the Subcommittee noted its continued interest in 
monitoring the development of a Deposit Facility in Fort Meade, 
Maryland, that will house certain registered works, as well as 
the Office's ongoing feasibility plan to convert its analog 
records to digital form.
    Copyright law often evolves in response to technological 
innovation, such as the piano roll, photocopying machine, and 
videocassette recorder. The Subcommittee's oversight and 
legislative work on copyright issues is currently dominated by 
the theme of piracy, which largely reflects the latest 
technological development to affect the interests of copyright 
holders and users--the Internet, or the digital environment by 
which copyrighted works are transmitted and duplicated. The 
oversight plan specifically noted the Subcommittee's interest 
in the ``broadcast flag'' as one method to inhibit digital 
piracy, as well as hardware piracy, mostly of music and movies, 
that flourishes world-wide.
    The Subcommittee conducted a number of oversight hearings 
in response to this concern over piracy. Its hearing agenda for 
the 108th Congress began and ended with an exploration of peer-
to-peer piracy (P2P) on university campuses. Representative 
Lamar S. Smith, Chairman of the Subcommittee, worked closely 
with university officials over the past two years to develop 
strategies designed to curtail P2P infringement among college 
students.
    In addition, the Subcommittee conducted oversight hearings 
on the link between piracy and organized crime and terrorism; 
the development of the broadcast flag; and the proliferation of 
domain-name fraud on the Internet. Coupled with the general 
concern over the prevalence of digital piracy, these hearings 
led to the drafting of H.R. 3754 (domain-name fraud) as well as 
H.R. 2517 and H.R. 4077 (piracy deterrence and education). The 
Subcommittee's oversight hearing and related negotiations over 
copyright compensation under the Satellite Home Viewer 
Improvement Act led to a major rewrite of the law (H.R. 4518, 
the bulk of which was included in H.R. 4818, the ``Consolidated 
Appropriations Act of 2005'').

The U.S. patent and trademark systems

    The Subcommittee has jurisdiction over the U.S. Patent and 
Trademark Office, which is responsible for granting patents and 
trademarks and administratively reviewing their validity and 
scope when appropriate. The Subcommittee also oversees the 
development of American patent and trademark policy.
    Given the increasing importance of intellectual property to 
the United States as a source of jobs, exports, and wealth, the 
oversight plan emphasizes the imperative of modernizing the 
PTO. Former PTO Director James Rogan produced a five-year 
``21st Century Business Plan'' in furtherance of this goal, 
which is predicated, in part, on securing greater revenue for 
the agency. For the better part of a decade, the Subcommittee 
and full Committee have protested the diversion of user fees 
from the PTO to non-agency endeavors by congressional 
appropriators. The oversight plan also cites specific patent 
policy issues--global harmonization and the issuance of 
business method patents--that PTO can more effectively address 
with greater resources, including improved computer systems and 
more and better trained examiners.
    The Subcommittee followed up with hearings and legislation 
to address the needs of the PTO. Most conspicuously, this work 
resulted in passage of H.R. 1561, which creates a new PTO user 
fee schedule that should generate more than $190 million in 
additional revenue for the agency. Importantly, the House 
adopted an amendment to the bill that creates a refund 
mechanism to return excessive collections to inventors and 
trademark holders, thereby eliminating the incentive to divert 
fees for non-PTO purposes. Other policy issues that were the 
subject of oversight hearings, such as patent post-grant 
opposition and other ``quality'' reform ideas, are based on the 
goal of making the patent and trademark application and 
issuance process fairer and less expensive, while enhancing the 
overall integrity of the patents and trademarks granted.
    Finally, the oversight plan specifically noted a Supreme 
Court decision (Victor's Little Secret v. V Secret Catalogue) 
that affects future application of the trademark dilution 
statute, enacted in 1995. The Subcommittee conducted a hearing 
on the matter and developed a Committee Print that responds to 
the decision.

List of oversight hearings

Peer-to-Peer Piracy on University Campuses, February 26, 2003 
            (Serial No. 2)
Copyright Piracy Prevention and the Broadcast Flag, March 6, 
            2003 (Serial No. 5)
International Copyright Piracy: Links to Organized Crime and 
            Terrorism, March 13, 2003 (Serial No. 9)
The Federal Judiciary: Is there a Need for Additional Federal 
            Judges?, June 24, 2003 (Serial No. 30)
Patent Quality Improvement, July 24, 2003 (Serial No. 38)
Reauthorization of the Satellite Home Viewer Improvement Act, 
            February 24, 2004 (Serial No. 69)
Section 115 of the Copyright Act: In Need of an Update?, March 
            11, 2004 (Serial No. 75) Committee Print to Amend 
            the Federal Trademark Dilution Act, April 22, 2004 
            (Serial No. 72) Derivative Rights, Moral Rights, 
            and Movie Filtering Technology, May 20, 2004 
            (Serial No. 93) Oversight of the Operations of the 
            U.S. Copyright Office, June 3, 2004 (Serial No. 80) 
            Patent Quality Improvement: Post-Grant Opposition, 
            June 24, 2004 (Serial No. 91)
Internet Streaming of Radio Broadcasts: Balancing the Interests 
            of Sound Recording Copyright Owners With Those of 
            Broadcasters, July 15, 2004 (Serial No. 105)
Peer-to-Peer (P2P) Piracy on University Campuses: an Update, 
            October 5, 2004 (Serial No. 112)

Peer-to-Peer Piracy on University Campuses, February 26, 2003 (Serial 
        No. 2)

    The hearing focused on the extent to which university-based 
piracy contributes to digital copyright infringement generally. 
The Subcommittee also explored whether the affected schools 
have implemented policies to educate students about online 
piracy of digital works and developed programs to thwart the 
practice.
    The following witnesses appeared and submitted a written 
statement for the record: Hilary Rosen, Chairman and Chief 
Executive Officer, Recording Industry Association of America; 
Graham Spanier, President, The Pennsylvania State University; 
Robyn Render, Vice President for Information Resources and 
Chief Information Officer, University of North Carolina; and 
Dr. John Hale, Center for Computer Security, University of 
Tulsa.

Copyright Piracy Prevention and the Broadcast Flag, March 6, 2003 
        (Serial No. 5).

    The hearing explored the arguments for and against 
implementation of the broadcast flag solution, broadcast flag 
technology itself, and how copyright law affects the debate. 
Digital television broadcasts, if not encrypted or otherwise 
protected, are extremely susceptible to unauthorized 
redistribution over the Internet. ``Broadcast flag'' refers to 
a technology embedded in a digital broadcast transmission which 
can be read by consumer electronics products to prevent its 
unauthorized redistribution.
    The following witnesses appeared and submitted a written 
statement for the record: the Honorable Marybeth Peters, 
Register of Copyrights, Copyright Office of the United States, 
the Library of Congress; W. Kenneth Ferree, Bureau Chief, Media 
Bureau, Federal Communications Commission; Fritz Attaway, 
Executive Vice President Government Relations and Washington 
General Counsel, Motion Picture Association of America; and 
Edward J. Black, President and CEO, Computer & Communications 
Industry Association.

International Copyright Piracy: Links to Organized Crime and Terrorism, 
        March 13, 2003 (Serial No. 9)

    The purpose of the hearing was to highlight the exponential 
growth of international copyright piracy; review the extreme 
degree of organization by which institutional and individual 
pirates operate; and investigate the extent to which copyright 
piracy helps to subsidize organized crime and terrorist 
activity.
    The following witnesses appeared and submitted a written 
statement for the record: John G.
    Malcolm, Deputy Assistant Attorney General, Criminal 
Division, United States Department of Justice; Rich LaMagna, 
Senior Manager-Worldwide Investigations, Microsoft; Jack 
Valenti, President and Chief Executive Officer, Motion Picture 
Association of America; and Joan Borsten Vidov, President, Film 
by Jove, Inc.

The Federal Judiciary: Is there a Need for Additional Federal Judges?, 
        June 24, 2003 (Serial No. 30)

    The hearing reviewed the proposal of the Judicial 
Conference of the United States for the creation of new federal 
judgeships and the methodology upon which the proposal is 
based. The Conference's latest proposal recommends that 
Congress establish 11 new judgeships in four courts of appeals 
and 46 new judgeships in 24 district courts. The Conference 
also recommends that five temporary district court judgeships 
created in 1990 be established as permanent positions. For many 
of these courts, the recommendations represent needs developed 
since 1990.
    The following witnesses appeared and submitted a written 
statement for the record: the Honorable Dennis Jacobs, Judge, 
United States Court of Appeals for the Second Circuit; William 
O. Jenkins, Jr., Director, Homeland Security and Justice 
Issues, General Accounting Office; and Professor Arthur D. 
Hellman, Professor of Law, University of Pittsburgh.

Patent Quality Improvement, July 24, 2003 (Serial No. 38)

    The purpose of the hearing was to explore the merits of six 
legislative policy ideas to improve patent quality. While the 
Subcommittee has documented the steady increase in application 
pendency and backlogs at the U.S. Patent and Trademark Office, 
the consensus view among PTO officials and the inventor 
community is that efforts to address these problems should not 
take precedence over improving patent quality. Patents of 
questionable scope or validity waste valuable resources by 
inviting third-party challenges and ultimately discourage 
private-sector investment.
    The following witnesses appeared and submitted a written 
statement for the record: Charles E. Van Horn, Partner, 
Finnegan, Henderson, Farabow, Garrett & Dunner, on behalf of 
the American Intellectual Property Law Association; Mark 
Kesslen, Managing Director and Associate General Counsel, J.P. 
Morgan Chase & Company, on behalf of the Financial Services 
Roundtable and BITS; David M. Simon, Chief Patent Counsel, 
Intel Corporation; and John R. Thomas, Professor of Law, 
Georgetown University.

Reauthorization of the Satellite Home Viewer Improvement Act, February 
        24, 2004 (Serial No. 69)

    Enacted in 1999, the Satellite Home Viewer Improvement Act 
created a copyright compulsory license (Sec. 122) authorizing 
satellite carriers to deliver local television broadcast 
signals to subscribers who reside in the local markets of those 
stations. This license to permit distant signal retransmission, 
codified in Sec. 119 of the Copyright Act, is comparable to the 
license that governs cable operations (Sec. 111). The distant 
network and copyright compulsory provisions of SHVIA will 
expire on December 31, 2004. The hearing explored the merits of 
reauthorizing the compulsory license and other related issues.
    The following witnesses appeared and submitted a written 
statement for the record: the Honorable Marybeth Peters, 
Register of Copyrights, Copyright Office of the United States, 
the Library of Congress; Fritz Attaway, Executive Vice 
President for Government Relations and Washington General 
Counsel, Motion Picture Association of America; David K. 
Moskowitz, Board Chairman, Senior Vice President and General 
Counsel, EchoStar Communications Corporation, on behalf of 
Satellite Broadcasting & Communications Association; and Robert 
G. Lee, President and General Manager, WDBJ Television, Inc., 
on behalf of the National Association of Broadcasters.

Section 115 of the Copyright Act: In Need of an Update?, March 11, 2004 
        (Serial No. 75)

    The purpose of the hearing was to review the operation of 
Sec. 115 and related sections of the Copyright Act that affect 
the online music business. In 1995, the Subcommittee expanded 
Sec. 115 to cover compulsory licenses for digital phonorecord 
deliveries. Royalty fees for Sec. 115 licenses are established 
by Copyright Arbitration Royalty Panels (CARP) overseen by the 
Copyright Office if private parties are unable to agree among 
themselves on the rates.
    The following witnesses appeared and submitted a written 
statement for the record: the Honorable Marybeth Peters, 
Register of Copyrights, Copyright Office of the United States, 
the Library of Congress; Jonathan Potter, Executive Director, 
Digital Media Association; Carey R. Ramos, Counsel, Paul, 
Weiss, Rifkind, Wharton & Garrison, on behalf of the National 
Music Publishers Association; and Cary Sherman, President and 
General Counsel, Recording Industry Association of America.

Committee Print to Amend the Federal Trademark Dilution Act, April 22, 
        2004 (Serial No. 72)

    The purpose of the hearing was to explore the merits of a 
Committee Print to determine whether the Federal Trademark 
Dilution Act should be amended in the wake of a recent Supreme 
Court decision and conflicting circuit case law on the matter. 
The Committee Print is based on a submission by the 
International Trademark Association.
    The following witnesses appeared and submitted a written 
statement for the record: Jacqueline A. Leimer, President, 
International Trademark Association; Robert W. Sacoff, Chair, 
Intellectual Property Law Section, American Bar Association; 
Marvin J. Johnson, Legislative Counsel, American Civil 
Liberties Union; and David C. Stimson, Chief Trademark Counsel, 
Eastman Kodak Company.

Derivative Rights, Moral Rights, and Movie Filtering Technology, May 
        20, 2004 (Serial No. 93)

    The purpose of the hearing was to review the legal status 
of technologies and services designed to filter out content 
from movies, usually on DVDs. Several companies are offering 
various technologies and services to enable consumers to watch 
modified versions of major motion pictures that have content 
removed.
    The following witnesses appeared and submitted a written 
statement for the record: Joanne Cantor, Professor Emerita, 
University of Wisconsin Madison; Jeff McIntyre, Senior 
Legislative and Federal Affairs Officer, American Psychological 
Association; Bill Aho, Chief Executive Officer, ClearPlay, 
Inc.; and Marjorie Heins, Fellow, Brennan Center for Justice at 
New York University Law School and Founding Director of the 
Free Expression Policy Project.

Oversight of the Operations of the U.S. Copyright Office, June 3, 2004 
        (Serial No. 80)

    The hearing allowed the Register of Copyrights to review 
and defend the Office's FY 2005 budget request. More 
importantly, the forum allowed members to acquire a status 
report on planned and ongoing efforts to modernize the Office's 
operations, especially those that will lessen its reliance upon 
paper files and documents.
    The following witness appeared and submitted a written 
statement for the record: the Honorable Marybeth Peters, 
Register of Copyrights, Copyright Office of the United States, 
the Library of Congress.

Patent Quality Improvement: Post-Grant Opposition, June 24, 2004 
        (Serial No. 91)

    The primary administrative procedure for a challenge to the 
validity of a U.S. patent is ``reexamination,'' which may be 
initiated by any party during the life of the patent. A more 
elaborate and adversarial procedure for challenging the 
validity of patents in the immediate aftermath of their 
issuance is the European ``opposition'' proceeding. The purpose 
of the hearing was to explore whether the adoption of such a 
system in the United States would improve patent quality. As a 
result of this hearing, Representative Berman introduced H.R. 
5299, the ``Patent Quality Assistance Act of 2004''.
    The following witnesses appeared and submitted a written 
statement for the record: James A. Toupin, General Counsel, 
U.S. Patent and Trademark Office; Jeffrey P. Kushan, Esq., 
Sidley Austin Brown & Wood, on behalf of Genentech; Michael K. 
Kirk, Executive Director, American Intellectual Property Law 
Association; and Karl Sun, Senior Patent Counsel, Google Inc.

Internet Streaming of Radio Broadcasts: Balancing the Interests of 
        Sound Recording Copyright Owners With Those of Broadcasters, 
        July 15, 2004 (Serial No. 105)

    The purpose of the hearing was to explore the concerns of 
broadcasters, webcasters, sound recording copyright owners, and 
others as they relate to the application of provisions of the 
Digital Performance Right in Sound Recordings Act of 1995 as 
amended by the Digital Millennium Copyright Act, which govern 
the ``streaming'' of digital transmissions of sound recordings 
over the Internet. The Subcommittee reviewed the underlying 
statutes, the Copyright Office's March 11, 2004, interim 
record-keeping regulations, and the Third Circuit Court of 
Appeals recent Bonneville decision as part of an inquiry into 
whether changes to 17 U.S.C. Sec. 114 are warranted to promote 
the ``streaming'' of radio broadcasts over the Internet.
    The following witnesses appeared and submitted a written 
statement for the record: David Carson, General Counsel, 
Copyright Office of the United States, the Library of Congress; 
Dan Halyburton, Senior Vice President/General Manager, Group 
Operations for Susquehanna Radio Corporation, on behalf of the 
National Association of Broadcasters; Steven Marks, General 
Counsel, Recording Industry Association of America, Inc.; and 
Jonathan Potter, Executive Director, Digital Media Association.

Peer-to-Peer (P2P) Piracy on University Campuses: an Update, October 5, 
        2004 (Serial No. 112)

    The hearing was an update to one held in February 2003 that 
focused on the extent to which university-based piracy 
contributes to digital copyright infringement generally. The 
Subcommittee explored how schools have implemented policies and 
programs to educate students about online piracy of digital 
works and developed programs to thwart the practice.
    The following witnesses appeared and submitted a written 
statement for the record: Graham Spanier, President, The 
Pennsylvania State University, and Co-Chair, Joint Committee of 
the Higher Education and Entertainment Communities; Cary 
Sherman, President, Recording Industry Association of America, 
and Co-Chair, Joint Committee of the Higher Education and 
Entertainment Communities; Dr. Jim Davis, Associate Vice 
Chancellor, Information Technology, Professor of Chemical 
Engineering, University of California, Los Angeles; and Alan 
McGlade, President and Chief Executive Officer, MusicNet, Inc.
                  SUBCOMMITTEE ON THE CONSTITUTION \1\

   STEVE CHABOT, Ohio, Chairman

JERROLD NADLER, New York             STEVE KING, Iowa
JOHN CONYERS, Jr., Michigan          WILLIAM L. JENKINS, Tennessee
ROBERT C. SCOTT, Virginia            SPENCER BACHUS, Alabama
MELVIN L. WATT, North Carolina       JOHN N. HOSTETTLER, Indiana
ADAM B. SCHIFF, California           MELISSA A. HART, Pennsylvania
                                     TOM FEENEY, Florida
                                     J. RANDY FORBES, Virginia

----------
\1\ Subcommittee chairmanship and assignments approved February 12, 
2003.

Tabulation of subcommittee legislation and activity

Legislation referred to the Subcommittee..........................   151
Legislation on which hearings were held...........................     9
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......................     8
Legislation pending before the full Committee.....................     2
Legislation reported to the House.................................    12
Legislation discharged from the Committee.........................     1
Legislation pending in the House..................................     1
Legislation failed passage by the House...........................     1
Legislation passed by the House...................................    11
Legislation pending in the Senate.................................     4
Legislation vetoed by the President (not overridden)..............     0
Legislation enacted into Public Law...............................     2
Days of legislative hearings......................................     9
Days of oversight hearings........................................    13

                    Jurisdiction of the Subcommittee

    The Subcommittee on the Constitution shall have 
jurisdiction over the following subject matters: constitutional 
amendments, constitutional rights, federal civil rights laws, 
ethics in government, other appropriate matters as referred by 
the Chairman, and relevant oversight.

                         Legislative Activities


H. Res. 132--Expressing the sense of the House of Representatives that 
        the Ninth Circuit Court of Appeals ruling in Newdow v. United 
        States Congress is inconsistent with the Supreme Court's 
        interpretation of the first amendment and should be overturned, 
        and for other purposes

    Summary.--H. Res. 132 expresses the sense of the House of 
Representatives that the phrase, ``one Nation, under God,'' 
should remain in the Pledge of Allegiance; that the Ninth 
Circuit Court of Appeals ruling in Newdow v. U.S. Congress, 
which struck down the phrase ``under God'' in the Pledge, is 
inconsistent with the Supreme Court's interpretation of the 
First Amendment; that the Attorney General of the United States 
should appeal the Ninth Circuit's ruling; and that the 
President should nominate, and the Senate should confirm, 
Federal circuit court judges who will interpret the 
Constitution consistent with the Constitution's text. It also 
praises the Elk Grove School District for its defense of the 
Pledge of Allegiance against this constitutional challenge.
    Legislative History.--H. Res. 132 was introduced by Rep. 
Doug Ose on March 6, 2003. No hearings were held on H. Res. 
132. On March 12, 2003, the Committee met in open session and 
ordered favorably reported H. Res. 132 without amendment by a 
recorded vote of 22 to 2, a quorum being present. (H. Rept. No. 
108-41). On March 20, 2003, H. Res. 132 was passed by the House 
by a vote of 400 to 7.

H. Res. 568--Appropriate Use of Foreign Judgments in American Court 
        Decisions

    Summary.--H. Res. 568 provides that ``it is the sense of 
the House of Representatives that judicial determinations 
regarding the meaning of the laws of the United States should 
not be based in whole or in part on judgments, laws, or 
pronouncements of foreign institutions unless such foreign 
judgments, laws, or pronouncements are incorporated into the 
legislative history of laws passed by the elected legislative 
branches of the United States or otherwise inform an 
understanding of the original meaning of the laws of the United 
States.'' In several recent cases, the U.S. Supreme Court has 
cited decisions by foreign courts and treaties not ratified by 
this country to support interpretations of the United States 
Constitution.
    Legislative History.--H. Res. 568 was introduced by Rep. 
Tom Feeney March 17, 2004. On March 25, 2004, the Constitution 
Subcommittee held a hearing on H. Res. 568 at which testimony 
was received from the following witnesses: Jeremy Rabkin, 
Professor of Government, Cornell University, Ithaca, New York; 
Vicki Jackson, Professor of Law, Georgetown Law Center, 
Washington, D.C.; Michael D. Ramsey, Professor of Law, 
University of San Diego Law School, San Diego, California; and 
John Oldham McGinnis, Professor, Northwestern University School 
of Law, Chicago, Illinois. On May 13, 2004, the Constitution 
Subcommittee met in open session and ordered favorably reported 
H. Res. 568, with an amendment, by a vote of 7 to 3, a quorum 
being present. No further action was taken on H. Res. 568.

H. Res. 676--Recognizing and honoring the 40th anniversary of 
        congressional passage of the Civil Rights Act of 1964

    Summary.--The purpose of this resolution was to recognize 
the 40th anniversary of the passage of the Civil Rights Act of 
1964. The resolution recognized the contributions of civil 
rights groups in the passage of that historic act. The 
resolution also recognized the importance the Civil Rights Act 
played in helping to fight discrimination in the United States.
    Legislative History.--Delegate Eleanor Holmes Norton 
introduced H. Res. 676 on June 15, 2004, and it was 
subsequently referred to the Committee on the Judiciary and the 
Subcommittee on the Constitution as well as the Committee on 
Education and the Workforce. The committees took no further 
action on the resolution. The House of Representatives 
considered H. Res. 676 under suspension of the rules on June 
23, 2004, and on June 24, 2004 the resolution was agreed to by 
a vote of 414 to 1.

H. Res. 853--Recognizing the Boy Scouts of America for the public 
        service the organization performs for neighborhoods and 
        communities across the United States

    Summary.--The purpose of H. Res. 853 was to express that 
the House of Representatives recognizes the Boy Scouts of 
America (``BSA'') for the public service the organization 
performs and to commend the BSA for the Good Turn for America 
program and the work the BSA has accomplished while partnering 
with other community and civic organizations across the United 
States to address critical issues facing communities in the 
United States.
    Legislative History.--H. Res. 853, ``Recognizing the Boy 
Scouts of America for the public service the organization 
performs for neighborhoods and communities across the United 
States,'' was introduced by Rep. Darrell Issa on November 16, 
2004. On November 20, 2004, H. Res. 853 was passed by the House 
by a vote of 391 to 3.

H.R. 760--the ``Partial Birth Abortion Ban Act of 2003''

    Summary.--H.R. 760 bans the procedure known as ``partial 
birth abortion'' and subjects those who violate the ban to 
fines or a maximum of two years imprisonment, or both. The bill 
also establishes a civil cause of action for damages against a 
doctor who violates the ban.
    Legislative History.--H.R. 760, the ``Partial Birth 
Abortion Ban Act of 2003,'' was introduced by Constitution 
Subcommittee Chairman Steve Chabot on February 13, 2003. On 
March 25, 2003, the Constitution Subcommittee held a hearing on 
H.R. 760 at which testimony was received from the following 
witnesses: Dr. Mark G. Neerhof, D.O.; Professor Gerard V. 
Bradley, Professor of Law, University of Notre Dame; and Mr. 
Simon Heller, Of Counsel, Center for Reproductive Rights. On 
March 25, 2003, the Subcommittee on the Constitution met in 
open session and ordered favorably reported the bill H.R. 760, 
without an amendment, by a vote of 8 to 4, a quorum being 
present. On March 26, 2003, the Committee met in open session 
and ordered favorably reported the bill H.R. 760 without 
amendment by a recorded vote of 19 to 11, a quorum being 
present. (H. Rept. No. 108-58). On June 4, 2003, H.R. 760 was 
passed by the House by a vote of 282 to 139. On March 3, 2003, 
a companion bill in the Senate, S. 3, passed the Senate with an 
amendment by a vote of 64 to 33. On June 4, 2003, the Speaker 
appointed the following conferees from the Committee on the 
Judiciary for consideration of the Senate bill and the House 
amendment, and modifications committed to conference: Reps. 
Sensenbrenner, Hyde, and Nadler. On September 22, 2003, the 
Senate appointed as conferees Sens. Hatch, DeWine, Santorum, 
Feinstein, and Boxer. On September 25, 2003, the Speaker 
appointed additional conferees: Reps. Chabot and Lofgren. On 
September 30, 2003, the conference report, H. Rept. No. 108-288 
was filed. On October 2, 2003, conference report was brought up 
for consideration in the House and the House agreed to the 
conference report by a vote of 281 to 142. On October 21, 2003, 
the conference report was considered in the Senate and the 
Senate agreed to the conference report by a vote of 64 to 34. 
On October 28, 2003, the conference report was presented to the 
President, and signed into law on November 5, 2003, which 
became Pub. L. No. 108-105.

H.R. 1755--the ``Child Custody Protection Act''

    Summary.--H.R. 1755, the ``Child Custody Protection Act,'' 
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. 1755 would prevent the 
interstate transportation of minors in order to circumvent 
valid, existing state laws.
    Legislative History.--H.R. 1755, the ``Child Custody 
Protection Act,'' was introduced by Rep. Ileana Ros-Lehtinen on 
April 10, 2003. The Subcommittee on the Constitution held a 
hearing on H.R. 1755 on July 20, 2004, at which testimony was 
received from the following witnesses: Ms. Joyce Farley, 
Victim, Dushore, Pennsylvania; Professor Mark Rosen, Associate 
Professor of Law (with Tenure), Chicago-Kent College of Law; 
Reverend Lois M. Powell, United Church of Christ; and Ms. 
Teresa S. Collett, Professor of Law, University of St. Thomas 
School of Law. Additional material was submitted by Rep. Ileana 
Ros-Lehtinen; the American Academy of Pediatrics; Rep. Steve 
Chabot, including a statement by Professor John Harrison, 
Professor of Law, University of Virginia School of Law; and 
Rep. Jerrold Nadler, including statements from Diana Philip, 
Jane's Due Process, Inc., and the Reverend Doctor Katherine 
Hancock Ragsdale, Episcopal Priest. No further action was taken 
on the measure.

H.R. 1775--To amend title 36, United States Code, to designate the oak 
        tree as the national tree of the United States

    Summary.--The purpose of H.R. 1775 was to designate the oak 
tree as the national tree of the United States. The resolution 
affirms the choice of the American people, who selected the oak 
as the national tree in an online poll in 2001.
    Legislative History.--Congressman Bob Goodlatte introduced 
H.R. 1775 on April 11, 2003, and it was subsequently referred 
to the Committee on the Judiciary and the Subcommittee on the 
Constitution. The Subcommittee on the Constitution conducted a 
markup of H.R. 1775 on May 13, 2004, and the bill was forwarded 
to full Committee by voice vote. The Judiciary Committee held a 
markup of the bill on September 8, 2004, and ordered it 
reported by voice vote. The bill was reported by the Committee 
on September 17, 2004. (H. Rept. No. 108-689). No further 
consideration of H.R. 1775 took place.
    The provisions of H.R. 1775 were included as Title II of 
H.R. 4077, which passed the House of Representatives on 
September 28, 2004 by voice vote. The provisions of H.R. 1775 
were included in Division J, Title I, Section 109 of the 
conference report on H.R. 4818, the Consolidated Appropriations 
Act, 2005. The conference report was approved by the House of 
Representatives by a vote of 344 to 51, with 1 Present on 
November 20, 2004. The Senate approved the Conference Report on 
the same day by a vote of 65 to 30. The President signed the 
Conference Report on December 8, 2004 and it became Public Law 
No. 108-447.

H.R. 1997--the ``Unborn Victims of Violence Act of 2004'' or ``Laci and 
        Conner's Law''

    Summary.--H.R. 1997, the Unborn Victims of Violence Act, 
provides that if a fetus is injured or killed during the 
commission of crimes of violence already defined under federal 
law, prosecutors can bring two charges: one on behalf of the 
mother, the other on behalf of the fetus.
    Legislative History.--H.R. 1997, the ``Unborn Victims of 
Violence Act of 2003,'' was introduced by Rep. Melissa Hart on 
May 7, 2003. On July 8, 2003, the Constitution Subcommittee 
held a hearing on H.R. 1997 at which testimony was received 
from the following witnesses: Tracy Marciniak, Mosinee, 
Wisconsin; Juley Fulcher, Public Policy Director, National 
Coalition Against Domestic Violence; Serrin M. Foster, 
President, Feminists for Life of America; and Professor Gerard 
V. Bradley, University of Notre Dame School of Law. On July 15, 
2003, the Subcommittee on the Constitution met in open session 
and ordered favorably reported the bill H.R. 1997, without 
amendment, by a vote of 6 to 3, a quorum being present. On 
January 21, 2004, the Committee met in open session and ordered 
favorably reported the bill H.R. 1997 with an amendment by a 
recorded vote of 20 to 13, a quorum being present. (H. Rept. 
No. 108-420, Part I). On February 26, 2004, H.R. 1997 was 
passed by the House by a vote of 254 to 163. On March 25, 2003, 
H.R. 1997 passed the Senate without an amendment by a vote of 
61 to 38. On March 31, 2004, H.R. 1997 was presented to the 
President and on April 1, 2004, it was signed into law by the 
President, becoming Pub. L. No. 108-212.

H.R. 2028--the ``Pledge Protection Act of 2004''

    Summary.--The Pledge of Allegiance reads: ``I pledge 
allegiance to the Flag of the United States of America, and to 
the Republic for which it stands, one Nation under God, 
indivisible, with liberty and justice for all.'' Although the 
United States Supreme Court recently reversed and remanded the 
Ninth Circuit's latest holding striking down the Pledge as 
unconstitutional, the Supreme Court did so on the grounds that 
the plaintiff lacked the legal standing to bring the case. The 
dissenting Justices concluded that the Court in its decision 
``erect[ed] a novel prudential standing principle in order to 
avoid reaching the merits of the constitutional claim.'' H.R. 
2028 would reserve to the state courts the authority to decide 
whether the Pledge is valid within each state's boundaries and 
place final authority over Pledge policy in the hands of the 
states.
    Legislative History.--H.R. 2028, the ``Pledge Protection 
Act of 2003,'' was introduced by Rep. Todd Akin on May 8, 2003. 
No hearings were held on H.R. 2028. On September 15, 2004, the 
Committee met in open session and ordered favorably reported 
the bill H.R. 2028 with an amendment by a recorded vote of 17 
to 10, a quorum being present. (H. Rept. No. 108-691). On 
September 23, 2004, H.R. 2028 was passed by the House by a vote 
of 247 to 173.

H.R. 2844--the ``Continuity in Representation Act of 2004''

    Summary.--H.R. 2844, the ``Continuity in Representation Act 
of 2004,'' would provide for the expedited special election of 
new Members to fill seats left vacant in ``extraordinary 
circumstances.'' ``Extraordinary circumstances'' occur when the 
Speaker of the House announces that vacancies in the 
representation from the States in the House exceed 100. When 
such ``extraordinary circumstances'' occur, a special election 
must be called within 45 days, unless a regularly scheduled 
general election for the office involved is to be held within 
75 days. Within 10 days of such an announcement by the Speaker, 
the political parties of the state that are authorized to 
nominate candidates by state law may each nominate one 
candidate to run in the election. Additional provisions provide 
that each State shall ensure to the greatest extent practicable 
(including through the use of electronic means) that absentee 
ballots for the election are transmitted to absent uniformed 
services voters and overseas voters (as such terms are defined 
in the Uniformed and Overseas Citizens Absentee Voting Act) not 
later than 15 days after the Speaker of the House of 
Representatives announces that the vacancy exists. In the case 
of an individual who is an absent uniformed services voter or 
an overseas voter (as such terms are defined in the Uniformed 
and Overseas Citizens Absentee Voting Act), H.R. 2844 provides 
that a State shall accept and process any otherwise valid 
ballot or other election material from the voter so long as the 
ballot or other material is received by the appropriate State 
election official not later than 45 days after the State 
transmits the ballot or other material to the voter.
    Legislative History.--H.R. 2844, the ``Continuity in 
Representation Act of 2004,'' was introduced by Judiciary 
Committee Chairman F. James Sensenbrenner, Jr. on July 24, 
2003. No Judiciary Committee hearings were held on H.R. 2844. 
On July 24, 2003, H.R. 2844 was referred to the House 
Administration Committee which had primary jurisdiction over 
the bill. On September 24, 2003 the Committee on House 
Administration had a hearing. On November 19, 2003 the bill was 
reported with an amendment by a 4 to 3 vote. The House 
Administration Committee filed H. Rept. No. 108-404, Part 1 on 
December 8, 2003. On January 28, 2004, the Committee met in 
open session and ordered favorably reported the bill H.R. 2844 
with an amendment by a vote of 18 to 10, a quorum being 
present. (H. Rept. No. 108-404, Part II). On April 22, 2004, 
H.R. 2844 was passed by the House by a vote of 306 to 97.

H.R. 3095--the ``Community Recognition Act of 2004''

    Summary.--The purpose of H.R. 3095 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.
    Currently, 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. 3095 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.
    Legislative History.--Representative John T. Doolittle 
introduced H.R. 3095 on September 16, 2003, and it was 
subsequently referred to the Committee on the Judiciary and the 
Subcommittee on the Constitution. The Subcommittee on the 
Constitution discharged H.R. 3095 on January 15, 2004. The 
Committee on the Judiciary conducted a markup of H.R. 3095 on 
January 28, 2004 and ordered it reported by a voice vote. On 
February 3, 2004, the Committee filed the report, H. Rept. No. 
108-411. On March 24, 2004, the House considered the bill under 
suspension of the rules and passed it by a vote of 374-2, on 
March 25, 2004. The bill subsequently was referred to the 
Senate Judiciary Committee, which took no further action.

H.J. Res. 4--Proposing an amendment to the Constitution of the United 
        States authorizing Congress to prohibit the physical 
        desecration of the flag of the United States

    Summary.--H.J. Res. 4 states: ``The Congress shall have 
power to prohibit the physical desecration of the flag of the 
United States.'' The purpose of the proposed amendment is to 
give Congress the constitutional authority to prohibit the 
physical desecration of the flag. In Texas v. Johnson, the U.S. 
Supreme Court held that the burning of an American flag as part 
of a political demonstration was expressive conduct protected 
by the First Amendment to the United States Constitution. 
Congress responded by passing a federal statute to outlaw flag 
desecration, but the Supreme Court ultimately ruled this 
statute unconstitutional on the same grounds in a 5-4 decision 
in United States v. Eichman in 1990.
    Legislative History.--H.J. Res. 4 was introduced by Rep. 
Randy (Duke) Cunningham on January 7, 2003. On May 7, 2003, the 
Constitution Subcommittee held a hearing on H.J. Res. 4 at 
which testimony was received from the following witnesses: 
Major General Patrick H. Brady, USA (Ret.); Citizens Flag 
Alliance; Lieutenant Antonio J. Scannella, Port Authority 
Police Department; Mr. Gary May, Veterans Defending the Bill of 
Rights; and Dr. Richard Parker, Professor of Law, Harvard Law 
School. On May 7, 2003, the Constitution Subcommittee met in 
open session and ordered favorably reported H.J. Res. 4 to the 
Full Committee by voice vote. On May 21, 2003, the Committee 
met in open session and ordered favorably reported H.J. Res. 4 
without amendment by a vote of 18 to 13, a quorum being 
present. (H. Rept. No. 108-131). On June 3, 2003, H.J. Res. 4 
passed the House by a vote of 300 to 125, a two-thirds majority 
being required to pass an amendment to the Constitution.

H.J. Res. 22--Proposing a balanced budget amendment to the Constitution 
        of the United States

    Summary.--The Balanced Budget Amendment, H.J. Res. 22, 
requires that Congress pass a budget in which total outlays do 
not exceed total receipts for any fiscal year unless approved 
by a three- fifths majority of each House. The proposed 
amendment would allow the President to submit, and Congress to 
pass, an unbalanced budget for a fiscal year if there was a 
declaration of war in effect for that year or if Congress 
passes a joint resolution declaring that the United States is 
engaged in a military conflict.
    Legislative History.--Representative Ernest Istook of 
Oklahoma introduced H.J. Res. 22 on February 13, 2003, and it 
was subsequently referred to the Committee on the Judiciary and 
the Subcommittee on the Constitution. On March 6, 2003, the 
Subcommittee on the Constitution held a hearing on H.J. Res. 22 
at which testimony was received from Dr. John Berthoud, 
President, National Taxpayers Union; Dr. Kent Smetters, 
Assistant Professor, the Wharton School; Richard Kogan, Senior 
Fellow, Center on Budget and Policy Priorities; and William W. 
Beach, Director, Center for Data Analysis. The Constitution 
Subcommittee met in open session on May 1, 2003, and reported 
H.J. Res. 22 favorably, without an amendment, by a vote of 5 to 
3, a quorum being present. On September 22, 2004, the Committee 
met in open session to consider H.J. Res. 22. The resolution 
was not reported and no further action was taken on the 
resolution.

H.J. Res. 48--An amendment to the Constitution of the United States to 
        define rights for victims of crime

    Summary.--The Victims Rights Amendment, H.J. Res. 48, 
grants victims the right to reasonable and timely notice of any 
public proceeding involving the crime committed against them 
and of any release or escape of the accused. The victim has the 
right to attend public proceedings against the accused and a 
right to make a statement at public release, plea, sentencing, 
reprieve and pardon proceedings. A court must give 
consideration to the victim's safety interest, interest in 
avoiding unreasonable delay, and just and timely claims to 
restitution from the offender. The amendment includes 
exceptions where there is a substantial interest in public 
safety, or the administration of criminal justice or by 
compelling necessity. The amendment does not grant victims 
grounds for a new trial or authorize any claims for damages.
    Legislative History.--H.J. Res. 48 was introduced by 
Constitution Subcommittee Chairman Steve Chabot on April 10, 
2003. On September 30, 2003, the Constitution Subcommittee held 
a hearing on H.J. Res. 48 at which testimony was received from 
the following witnesses: Mr. Steven Twist, General Counsel, 
National Victims Constitutional Amendment Project; Mr. Douglas 
E. Beloof, Director, National Crime Victim Law Institute; Lewis 
& Clark Law School; Mrs. Sharon Nolan, Milford, Ohio; and Mr. 
James Orenstein, New York, New York. No further action was 
taken on H.J. Res. 48.

H.J. Res. 56--the ``Federal Marriage Amendment''

    Summary.--H.J. Res. 56, the Federal Marriage Amendment, 
ensures that no governmental entity--whether in the 
legislative, executive or judicial branch, at any level of 
government--shall have the legal authority to alter the 
definition of marriage such that it is anything other than a 
union of one man and one woman. H.J. Res. 56 also prevents any 
court from construing the federal Constitution, or a state 
constitution, to require any legislative body or executive 
agency to enact--or to recognize under the Full Faith and 
Credit Clause--so-called ``civil union'' or domestic 
partnership laws.
    Legislative History.--H.J. Res. 56 was introduced by Rep. 
Marilyn Musgrave on May 21, 2003. On May 13, 2004, the 
Constitution Subcommittee held a hearing on H.J. Res. 56 at 
which testimony was received from the following witnesses: 
Honorable Marilyn Musgrave, Congresswoman, 4th District, 
Colorado; Judge Robert Bork, McLean, Virginia; Honorable Barney 
Frank, Congressman, 4th District, Massachusetts; and Jay 
Sekulow, The American Center for Law and Justice, Inc. No 
further action on H.J. Res. 56 was taken by the Judiciary 
Committee.

H.J. Res. 83--Proposing an amendment to the Constitution of the United 
        States regarding the appointment of individuals to fill 
        vacancies in the House of Representatives

    Summary.--This amendment requires House Members, prior to 
taking the oath of office, to submit a list of names to the 
Governor that the Governor can draw from in appointing that 
Member's replacement.
    Legislative History.--H.J. Res. 83 was introduced by Rep. 
Brian Baird on December 8, 2003. No hearings were held on H.J. 
Res. 83. On May 5, 2004, the Committee met in open session and 
ordered adversely reported H.J. Res. 83 by a recorded vote of 
17 to 12, a quorum being present. (H. Rept. No. 108-503). On 
June 2, 2004, H.J. Res. 83 failed to pass the House by a vote 
of 63 to 353, a two-thirds majority being required to pass an 
amendment to the Constitution.

                          Oversight Activities


                       SUMMARY OF OVERSIGHT PLAN

    The Oversight Plan for the Constitution Subcommittee for 
the 108th Congress includes the following issues: the death 
penalty; the United States Commission on Civil Rights; the 
Civil Rights Division, U.S. Department of Justice; the 
Community Relations Service; Congressional authority under the 
Commerce Clause; the Office of Government Ethics; athletic 
opportunities under Title IX; school admissions policies under 
affirmative action plans; property rights; religious liberty; 
abortion; civil liberties in the war on terrorism; DNA 
technologies; environmental justice under Title VI of the Civil 
Rights Act of 1964 by the U.S. Environmental Protection Agency, 
Office of Civil Rights; the Freedom of Access to Clinic 
Entrances (FACE) Act; and the enforcement of the Violence 
Against Women Act in light of the U.S. Supreme Court 
precedents.

Oversight list of hearings

Reauthorization of the Civil Rights Division of the United 
            States Department of Justice. May 15, 2003. (Serial 
            No. 26).
Anti-Terrorism Investigations and the Fourth Amendment After 
            September 11: Where and When Can the Government Go 
            to Prevent Terrorist Attacks? May 20, 2003. (Serial 
            No. 35).
Potential Congressional Response to the Supreme Court's 
            Decision in State Farm Mutual Automobile Insurance 
            Co. v. Campbell: Checking and Balancing Punitive 
            Damages. September 23, 2003. (Serial No. 48).
GAO's Report on the Implementation of Executive Order 12630 and 
            the State of Federal Agency Protections of Private 
            Property Rights. October 16, 2003. (Serial No. 53).
Civil Rights Division of the U.S. Department of Justice. March 
            2, 2004. (Serial No. 66).
Defense of Marriage Act. March 30, 2004. (Serial No. 70).
Legal Threats to Traditional Marriage: Implications for Public 
            Policy. April 22, 2004. (Serial No. 76).
Limiting Federal Court Jurisdiction to Protect Marriage for the 
            States. June 24, 2004. (Serial No. 92).
Privacy and Civil Liberties in the Hands of the Government 
            Post-September 11, 2001: Recommendations of the 9/
            11 Commission and the U.S. Department of Defense 
            Technology and Privacy Advisory Committee. August 
            20, 2004. (Serial No. 113).
Due Process and the NCAA. September 14, 2004. (Serial No. 106).
Status of the Implementation of the Pigford v. Glickman 
            Settlement. September 28, 2004. (Serial No. 108).
Presidential Succession Act. October 6, 2004. (Serial No. 110).
``Notice'' Provision in the Pigford v. Glickman Consent Decree. 
            October 18, 2004. (Serial No. 117).

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 March 31, 
2003, the Government Accountability Office confirmed its 
commitment to conduct a review of the Commission that would 
address the adequacy of the Commission's procedures for 
identifying and carrying out projects, and the sufficiency of 
the Commission's controls over contracting services and 
managing contracts.
    On September 17, 2003, Chairman Chabot wrote Commissioner 
Christopher Edley, Jr. to express disappointment in Edley's 
decision to oppose a request by another Commissioner that an 
investigation of a mishandling of a confidential communication 
within the Commission be undertaken. On November 6, 2003, GAO 
released a report that was requested by Chairman Sensenbrenner 
during the 107th Congress. This report is entitled ``More 
Operational and Financial Oversight Needed.''
    On March 16, 2004, Chairman Sensenbrenner and Chairman 
Hatch sent a letter to GAO requesting a study of the 
effectiveness of the Commission structure under the current 
statutory framework and of whether the Government Performance 
and Results Act has been successful in assisting the USCCR to 
improve program performance. On October 27, 2004, part I of 
this report, entitled ``Management Could Benefit from Improved 
Strategic Planning and Increased Oversight,'' was released by 
GAO. On April 22, 2004, Chairman Sensenbrenner and Chairman 
Hatch sent a letter to GAO requesting a financial audit for the 
year ending September 30, 2003.

Reauthorization of the Civil Rights Division of the United States 
        Department of Justice

    On Thursday, May 15, 2003, the Subcommittee on the 
Constitution held an oversight hearing on the reauthorization 
of the Civil Rights Division of the Department of Justice. The 
purpose of the hearing was to conduct the Subcommittee's annual 
oversight over the activities of the Division for the purpose 
of reauthorizing the United States Department of Justice.
    The witness testifying at the Subcommittee hearing was 
Ralph F. Boyd, Jr., the Assistant Attorney General for the 
Civil Rights Division. He testified that since the beginning of 
his tenure, the attorneys have opened investigations of 37 
nursing homes, mental health facilities, and jails for 
violating the constitutional rights of their patients or 
inmates and that that number is an almost 200 percent increase 
over the prior 2 years. In fiscal 2002 alone, he explained, the 
Division pursued 173 cases from 33 different States and they 
have charged, convicted, and secured sentences for 92 human 
traffickers in 21 cases for trafficking victims into the United 
States, which is a 300 percent increase over the prior 2-year 
period. He explained that they have twice as many current 
pending investigations than were pending in January 2001.
    He testified that they have targeted employment 
discrimination by opening 65 new investigations in 2002, 14 
more than in 2001 and 48 more than in 2000 and that they are 
targeting disability discrimination by more than doubling the 
number of formal settlement agreements reached under the 
Americans with Disabilities Act compared with 1999 and 2000. He 
explained that since January of 2001, they have received more 
submissions under section 5 of the Voting Rights Act than ever 
before and that they never missed a deadline.

``Anti-Terrorism Investigations and the Fourth Amendment After 
        September 11: Where and When Can the Government Go To Prevent 
        Terrorist Attacks?''

    On May 20, 2003, the Constitution Subcommittee held an 
oversight hearing on ``Anti-Terrorism Investigations and the 
Fourth Amendment After September 11: Where andWhen Can the 
Government Go to Prevent Terrorist Attacks?'' Witnesses included: Viet 
D. Dinh, Assistant Attorney General for the Office of Legal Policy, 
Department of Justice; James Dempsey, Executive Director, The Center 
For Democracy and Technology; Orin Kerr, associate law professor, 
George Washington University Law School; and Paul Rosenzweig, Senior 
Research Fellow, the Heritage Foundation.
    Assistant Attorney General Dinh testified, among other 
things, that the successful effort in preventing another 
catastrophic attack on the American homeland in the past 20 
months would have been much more difficult, if not impossible, 
without the tools that Congress has authorized in the USA 
PATRIOT Act. These authorities have substantially enhanced 
DOJ's ability to investigate, prosecute, and most important, to 
prevent terrorist attacks.
    Mr. Dempsey testified, among other things, that the PATRIOT 
Act eliminated the standards that required some reason to 
believe that there was some connection with terrorism and some 
minimal factual showing, before library information about an 
individual could be gathered. Mr. Dempsey further testified 
that we were now going to be seeing more information acquired 
under the Foreign Intelligence Surveillance Act (``FISA'') used 
in criminal cases.
    Mr. Kerr testified, among other things, that a positive 
change brought about by the PATRIOT Act is section 216 of the 
PATRIOT Act, which clarifies that the pen register law applies 
as well to the Internet.
    Mr. Rosenzweig testified, among other things, that the 
Constitution has very little to say about the recent changes to 
the FBI's investigative guidelines relating to the FBI's 
ability to enter into public places and access public 
information on the Internet.

Potential congressional responses to the Supreme Court's decision in 
        State Farm Mutual Automobile Ins. Co. v. Campbell: Checking and 
        balancing punitive damages

    On September 23, 2003, the Constitution Subcommittee held 
an oversight hearing on ``Potential Congressional Responses to 
the Supreme Court's Decision in State Farm Mutual Automobile 
Ins. Co. v. Campbell: Checking and Balancing Punitive 
Damages.'' Witnesses included: David Owen, Carolina 
Distinguished Professor of Law and Director of the Office of 
Tort Law Studies at the University of South Carolina; Robert 
Peck, President, the Center for Constitutional Litigation; and 
Victor Schwartz, Shook, Hardy & Bacon.
    Mr. Owen testified, among other things, that punitive 
damages are a very powerful instrument of the law, and can be 
substantially abused. In a Nation such as ours, where 
manufacturers market to the 50 States, it would be helpful to 
have guiding principles that were more predictable in the way 
that the Supreme Court suggests is desirable.
    Mr. Schwartz testified, among other things, that punitive 
damages for years presented no problem. But that changed in the 
1970s, when punitive damages started to be awarded for things 
that were not intentional. And then, because it was not 
intentional, they were awarded against product manufacturers 
and awarded again and again for the same conduct.

The GAO's report on the implementation of Executive Order 12630 and the 
        state of Federal agency protections of private property rights

    On October 16, 2003, the Constitution Subcommittee held an 
oversight hearing on ``The GAO's Recent Report on the 
Implementation of Executive Order 12630 and the State of 
Federal Agency Protections of Private Property Rights.'' 
Witnesses included: Anu Mittal, Director, Natural Resources and 
Environment Division, U.S. General Accounting Office; Roger 
Marzulla, founder and general counsel of Defenders of Property 
Rights; John Echeverria, Professor, Georgetown Law Center 
Environmental Law and Policy Institute; and Steven Eagle, 
Professor, George Mason University School of Law.
    Ms. Mittal summarized the General Accounting Office's 
report, which was requested by Constitution Subcommittee 
Chairman Steve Chabot, entitled ``Regulatory Taking: Agency 
Compliance with Executive Order on Government Actions Affecting 
Private Property Use.''
    Mr. Marzulla testified, among other things, that the 
Defenders of Property Rights issued a report which in some ways 
parallels the findings of the Government Accounting Office. 
That report confirms there is noncompliance with the executive 
order throughout the Executive branch.
    Mr. Echeverria testified, among other things, that 
Executive Order 12,630 should be rescinded because it ``appears 
to impose a significant bureaucratic burden on Federal agencies 
to address a relatively modest fiscal issue.''

Civil Rights Division of the U.S. Department of Justice

    On Tuesday, March 2, 2004, the Subcommittee on the 
Constitution held an oversight hearing on the activities of the 
U.S. Department of Justice's Civil Rights Division 
(``Division''), for the purposes of conducting the 
Subcommittee's annual oversight over the activities of the 
Division and the reauthorization of the United States 
Department of Justice. Alexander Acosta, the Assistant Attorney 
General for the Civil Rights Division of the U.S. Department of 
Justice, appeared as the witness and submitted a written 
statement for the record.
    Alexander Acosta testified that cross burning has too long 
been a tool of intimidation against racial and religious 
minorities and, to put an end to it, since 2001, the Civil 
Rights Division has prosecuted nearly 40 of these cases, almost 
1 a month. In addition, he explained some of the work the 
Division has been undertaking to address religious 
discrimination and human trafficking. He testified that the 
Division has been vigorously enforcing the Americans with 
Disabilities Act by litigation, but at the same time doing 
everything in its power to promote voluntary and cooperative 
compliance. The Committee submitted follow up questions to Mr. 
Acosta on March 11, 2004, and received responses on October 8, 
2004.

The Defense of Marriage Act

    On March 30, 2004, the Constitution Subcommittee held an 
oversight hearing on ``The Defense of Marriage Act.'' Witnesses 
included: the Honorable Bob Barr, Former Member of Congress, 
Atlanta, Georgia; Vincent P. McCarthy, The American Center for 
Law and Justice, Inc., New Milford, Connecticut; John Hanes, 
Chairman of the Wyoming Senate Judiciary Committee, Cheyenne, 
Wyoming; and Bruce Fein, Fein & Fein, Washington, D.C.
    Mr. Barr testified, among other things, that the federal 
Defense of Marriage Act, passed in 1996, allowed legislatures 
the latitude to decide how to deal with marriage rights 
themselves, but ensured that no one state could force another 
to recognize marriages of same-sex couples. He also stated that 
he believes a constitutional amendment is ill advised.
    Mr. McCarthy testified, among other things, that in 1996, 
the Congress passed, and President Clinton signed into law, the 
Defense of Marriage Act (``DOMA''). DOMA does two important 
things. First, DOMA permits States to choose what effect, if 
any, to give to any ``public act, record, or judicial 
proceeding * * * respecting a relationship between persons of 
the same sex that is treated as a marriage under the law of 
such other State. * * *'' Second, DOMA amends the Dictionary 
Act to provide express federal definitions of the terms 
``marriage'' and ``spouse.''
    Mr. Hanes testified, among other things, that ``there is a 
lot of activity in this area'' in the states, ``both in terms 
of constitutional amendments at the various States, in terms of 
dealing with the civil unions and the domestic partnerships, 
and the discussions run all the way from being in favor of 
these things to not being in favor of these things.'' He stated 
that marriage policy should be left to state law.
    Mr. Fein testified, among other things, that the Defense of 
Marriage Act clearly satisfies the Full Faith and Credit Clause 
and Equal Protection Clause and the Due Process Clause of the 
Constitution and that any attacks on its legitimacy would fail.

Legal threats to traditional marriage

    On April 22, 2004, the Constitution Subcommittee held an 
oversight hearing on ``Legal Threats to Traditional Marriage: 
Implications for Public Policy.'' Witnesses included: Dwight 
Duncan, Southern New England School of Law; Stanley Kurtz, 
Hoover Institution; Dr. Jill Joseph, George Washington 
University School of Medicine; and Lincoln Oliphant, Marriage 
Law Project.
    Mr. Duncan testified, among other things, that there are 
several cases, decided over the past year, that threaten to 
undermine the age-old consensus of civilization that marriage 
is uniquely between a man and a woman. Mr. Duncan also 
testified that it is ``increasingly clear'' that the Maginot 
Line the federal Defense of Marriage Act created will not hold, 
arguing that the Defense of Marriage Act is inadequate to 
protect the definition of marriage.
    Mr. Kurtz testified, among other things, that the 
experience of Scandinavia and the Netherlands make it clear 
that same-sex marriage could widen the separation between 
marriage and parenthood here in the United States. America is 
already the world leader in divorce. Our high divorce rates 
have significantly weakened the institution of marriage in this 
country.
    Dr. Joseph testified, among other things, that prohibiting 
the marriage of gay parents would hurt the ``hundreds of 
thousands'' of children whose parents are gay or lesbian. She 
referred to 23 studies conducted between 1978 and 2003 that 
concluded that children raised by lesbian mothers or gay 
fathers did not systematically differ from other children on 
any of the outcomes.
    Mr. Oliphant testified, among other things, that Congress 
and all of the Nation's legislatures must understand that the 
foremost implication of the current strategy of some against 
marriage is to divest elected officials of their long-standing 
powers to define and protect marriage.

Limiting Federal court jurisdiction to protect marriage for the States

    On June 24, 2004, the Constitution Subcommittee held an 
oversight hearing on ``Limiting Federal Court Jurisdiction to 
Protect Marriage for the States.'' Witnesses included: Phyllis 
Schlafly, Founder and President, Eagle Forum; Honorable William 
E. Dannemeyer, Former United States Representative; Mr. Martin 
H. Redish, Louis and Harriet Ancel Professor of Law and Public 
Policy, Northwestern Law School; and Mr. Michael Gerhardt, 
Arthur B. Hanson, Professor of Law, William & Mary Law School.
    Ms. Schlafly testified, among other things, that the legal 
assault on the Defense of Marriage Act (``DOMA'') has already 
begun, with several lawsuits being filed against it. She argued 
that the very idea that unelected, unaccountable judges could 
nullify both other branches of government and the will of the 
American people is an offense against our right of self-
government that must not be tolerated.
    Mr. Dannemeyer testified, among other things, that Congress 
should use its powers under Article III, section 2, of the 
Constitution to prevent federal courts from striking down 
various federal laws, including the Pledge of Allegiance.
    Professor Redish testified, among other things, that as a 
matter of constitutional text, structure and history, the power 
of Congress to limit the jurisdiction of the Federal courts is 
clear. He believes that Article III of the Constitution 
explicitly vests in Congress the power not to have created 
lower Federal courts in the first place, but he believes that 
Congress should be very reluctant to exercise that power. He 
also testified that Congress's power to strip the jurisdiction 
of the Federal courts may be limited by other doctrines like 
due process, equal protection, or separation of powers.
    Professor Gerhardt testified, among other things, that 
Congress may not use its power under Article III to limit the 
``essential functions'' of the Federal judiciary.

The 9/11 Commission Report and implications for privacy and civil 
        liberties

    On Friday, August 20, 2004, the Subcommittee on Commercial 
and Administrative Law and the Subcommittee on the Constitution 
held an oversight hearing on the 9/11 Commission Report and the 
implications for privacy and civil liberties. The following 
witnesses appeared and submitted a written statement for the 
record: The Honorable Lee H. Hamilton, Vice Chair, National 
Commission on Terrorist Attacks Upon the United States; The 
Honorable Slade Gorton, Commission Member, National Commission 
on Terrorist Attacks Upon the United States; The Honorable John 
O. Marsh, Jr., on behalf of the U.S. Department of Defense 
Technology and Privacy Advisory Committee; Ms. Nuala O'Connor 
Kelly, Chief Privacy Officer, U.S. Department of Homeland 
Security.
    Lee Hamilton and Slade Gorton testified, among other 
things, that concern about the civil liberties of American 
citizens was one of a number of reasons why the Commission 
rejected the idea of moving the domestic intelligence and 
counterterrorism responsibilities of the FBI out of that agency 
and placing them in a new agency.
    Nuala O'Connor Kelly testified, among other things, that, 
in light of her professional experience during the past year, 
that protecting both privacy and security is well within the 
grasp of the collective imagination of Congress and executive 
agencies. She testified that her office has crafted privacy 
training and privacy policies for many of its programs, ensured 
that statutorily-required Privacy Impact Assessments and System 
of Records Notices are written and reviewed, and counseled DHS 
officials regarding the effective and responsible use of 
technology.
    John O. Marsh testified, among other things, that the 
Committee unanimously agreed that the United States should use 
data mining to enhance national security and made 
recommendations on its use with appropriate safeguards.

Due process and the NCAA

    On September 14, 2004, the Subcommittee on the Constitution 
held an oversight hearing on ``Due Process and the NCAA.'' 
Witnesses included, Jeremy Bloom, U.S. Olympic Skier and former 
University of Colorado Football Player; Jo Potuto, Vice Chair, 
NCAA Committee on Infractions; and Dr. B. David Ridpath, 
Assistant Professor, Sport Administration, Mississippi State 
University. In addition, the Subcommittee received the prepared 
testimony of Gary R. Roberts, Deputy Dean and Director of the 
Sports Law Program at Tulane Law School, who was scheduled to 
testify before the Subcommittee but was unable to attend. The 
Subcommittee also received a prepared statement from 
Congressman Tom Osborne of Nebraska, who is the former head 
football coach at the University of Nebraska.
    Jeremy Bloom testified, among other things, that the NCAA's 
policies and procedures made it very difficult for student 
athletes to obtain a fair hearing regarding alleged NCAA 
infractions.
    Jo Potuto testified, among other things, that the NCAA 
system for investigating schools, coaches, and student-athletes 
``ain't broke.'' According to Potuto, the NCAA provides 
procedures that are fair to the participants but at the same 
time ensure a level playing field for college athletics.
    Dr. David Ridpath testified, among other things, that the 
NCAA's enforcement system encourages member institutions to 
scapegoat coaches, players, and athletics department personnel 
so as to receive a lighter sentence from the NCAA.

Status of the implementation of the Pigford v. Glickman settlement

    On Tuesday, September 28, 2004, the Subcommittee on the 
Constitution held an oversight hearing on the ``Status of the 
Implementation of the Pigford v. Glickman Settlement.''
    The following witnesses appeared and submitted a written 
statement for the record:Phillip J. Haynie, II, Haynie Farms, 
LLC; Michael K. Lewis, Adjudicator, Pigford v. Glickman; and Randi 
Ilyse Roth, Monitor, Pigford v. Glickman. The following witness 
appeared, but did not submit a written statement: Alexander Pires, 
Class Counsel, Pigford v. Glickman.
    Phillip J. Haynie, II testified, among other things, that 
the Pigford v. Glickman settlement was supposed to put an end 
to discrimination to black farmers and compensate black farmers 
for years of discrimination and that this settlement has failed 
black farmers, but that there were problems with the 
settlement.
    Randi Ilyse Roth provided an explanation of her role as 
Monitor. Next she testified, among other things, to the results 
thus far under the Consent Decree. Finally, she addressed the 
question of whether the terms of the Consent Decree have been 
honored.
    Michael K. Lewis testified, among other things, that a 
court order provides that no late claim petition would be 
accepted for consideration if filed after September 15, 2000 
and that 65,950 late claim petitions were filed by the 
September 15, 2000 deadline. He added that an additional 7,742 
were filed after the September 15 deadline and that each of the 
petitioners in the latter category were sent a letter by him 
informing them that he or she had missed the court imposed 
deadline. He also explained that he created a process 
permitting late claim petitioners to request reconsideration of 
his decision to deny their participation in the settlement and 
that the reconsideration process provided petitioners with a 
60-day window in which to request reconsideration of the 
initial decision to deny their late claim petitions.
    Alexander Pires testified, among other things, that it is 
very hard to win discrimination cases against the USDA; that 
the Pigford case is a very limited case and that when he 
started he hoped to represent a thousand farmers and ended up 
with 22,000; that when they talked about settling this case, 
there were four black firms, four white law firms, and Charles 
Ogletree from Harvard University; that the number one demand of 
the black lawyers was that black people get money and not 
injunctive relief or getting requirements from USDA.

Presidential Succession Act

    On October 6, 2004, the Constitution Subcommittee held an 
oversight hearing on the Presidential Succession Act. Witnesses 
included: The Honorable Brad Sherman, U.S. Representative, 27th 
District of California; Mr. Thomas H. Neale, Congressional 
Research Service, Library of Congress; Mr. Akhil Reed Amar, 
Southmayd Professor of Law, Yale Law School; and M. Miller 
Baker, Partner, McDermott Will & Emery.
    Rep. Brad Sherman testified in favor of legislation that 
included the following provisions: the line of succession 
should run through the Cabinet Officers, not through the 
Congressional leadership; and five ambassadors should be added 
to the end of the succession list.
    Thomas Neal provided a summary of his Congressional 
Research Service Report entitled ``Presidential and Vice 
Presidential Succession: Overview and Current Legislation.''
    Akhil Reed Amar testified that the current presidential 
succession act, 3 U.S.C. Sec. 19, was many problems.
    M. Miller Baker testified that the current Presidential 
Succession Act ``is almost certainly the most dangerous statute 
to be found in the United States Code.''

``Notice'' provision in the Pigford v. Glickman consent decree

    On Thursday, November 18, 2004, the Subcommittee on the 
Constitution held an oversight hearing on the `` `Notice' 
Provision in the Pigford v. Glickman Consent Decree.''
    The following witnesses appeared and submitted a written 
statement for the record: Jeanne C. Finegan, APR, Consultant to 
Poorman-Douglas Corporation (Court-Appointed Facilitator, 
Pigford v. Glickman) for Communications and Public Relations; 
Formerly Vice-President and Director of Huntington Legal 
Advertising, a division of Poorman-Douglas Corporation; Thomas 
Burrell, Farmer; Bernice Atchison, Farmer. The following 
witness appeared, but did not submit a written statement: J.L. 
Chestnut, Jr., Chestnut, Sanders, Sanders, Pettaway, & 
Campbell, L.L.C., Class Counsel, Pigford v. Glickman.
    J.L. Chestnut testified that the settlement only became 
possible after a judge agreed to set a court date. He also 
stated that he tried to educate the white class counsel to the 
fact that black farmers would not believe that the same 
government that had served for 150 years to ruin them would now 
be legitimately providing help to them. He explained that black 
farmers would believe the settlement when they started to see 
others receiving checks and, by then, the filing period would 
have expired. He testified that no matter what farmers received 
in the settlement, they will not be satisfied that justice has 
been served.
    Jeanne Finegan testified that she does not believe that the 
number of late applicants means that the notice campaign was 
flawed or inadequate. She explained that the problem is not 
that the class members' awareness was late, but class member 
activation was late and she is not certain that any class 
notification program, by itself, could have remedied the 
problem.
    Thomas Burrell testified that the media chosen to advertise 
the settlement were not culturally and occupationally attuned 
to black farmers.
    Bernice Atchison testified that she sent certified letters 
asking for affidavits and claim packages because none were 
available in Chilton County, Alabama. She explained that she 
was not notified by mail of the settlement and that none of the 
local government offices or newspapers had received copies of 
the Notice.
      SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY \1\

  HOWARD COBLE, North Carolina, 
             Chairman

 ROBERT C. SCOTT, Virginia           TOM FEENEY, Florida
ADAM B. SCHIFF, California           BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            MARK GREEN, Wisconsin
MARTIN T. MEEHAN, Massachusetts      RIC KELLER, Florida
                                     MIKE PENCE, Indiana
                                     J. RANDY FORBES, Virginia

----------
\1\ Subcommittee chairmanship and assignments approved February 12, 
2003.

Tabulation of subcommittee legislation and activity

Legislation referred to the Subcommittee..........................   328
Legislation on which hearings were held...........................    20
Legislation reported favorably to the full Committee..............     9
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......................    11
Legislation pending before the full Committee.....................     1
Legislation reported to the House.................................    19
Legislation discharged from the Committee.........................     9
Legislation pending in the House..................................     7
Legislation passed by the House...................................    19
Legislation pending in the Senate.................................     5
Legislation vetoed by the President (not overridden)..............     0
Legislation enacted into Public Law...............................    12
Legislation enacted into Public Law as part of other legislation..     4
Days of legislative hearings......................................    15
Days of oversight hearings........................................     6

                    Jurisdiction of the Subcommittee

    The Subcommittee on Crime, Terrorism, and Homeland Security 
has jurisdiction over the Federal Criminal Code, drug 
enforcement, sentencing, parole and pardons, terrorism, 
internal and homeland security, Federal Rules of Criminal 
Procedure, other appropriate matters as referred by the 
Chairman, and relevant oversight.

                         Legislative Activities


H.R. 1161, the ``Child Obscenity and Pornography Prevention Act''

    Summary.--Representative Lamar S. Smith 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.\1\ No action was taken in the Senate on the bill in 
the 107th Congress, and Congressman Smith reintroduced the bill 
as H.R. 1161 on March 6, 2003. The Supreme Court decision held 
that two parts of the Federal definition of child pornography 
in Title 18 of the United States Code were too broad and were 
therefore unconstitutional. Those two provisions were 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 defined 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. At risk are 
the prosecutions against child pornographers who are frequently 
child molesters.\2\ In any criminal case, the prosecution must 
prove beyond a reasonable doubt that a crime was committed.
---------------------------------------------------------------------------
    \1\ 122 S. Ct. 1389 (2002).
    \2\ 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 attempted to respond to 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 new offenses 
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. 
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 May 15, 2002, the 
Committee met in open session and ordered favorably reported 
the bill, H.R. 4623, with an 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. No. 107-526). The House passed 
the bill on June 25, 2002, by a recorded vote of 413 yeas to 8 
nays and 1 present. No further action was taken on the bill, 
H.R. 4623, during the 107th Congress. Congressman Lamar S. 
Smith reintroduced the bill as H.R. 1161 on March 6, 2003. On 
March 11, 2003, the Subcommittee held a hearing on H.R. 1161, 
the ``Child Obscenity and Pornography Prevention Act.'' This 
bill was incorporated into S. 151, the ``Prosecuting Remedies 
and Tools Against the Exploitation of Children Today (PROTECT) 
Act of 2003,'' which became Public Law No. 108-21 on April 30, 
2003.

H.R. 1104, the ``Child Abduction Prevention Act''

    Summary.--Chairman F. James Sensenbrenner, Jr. introduced 
H.R. 1104 on March 5, 2003. This bill strengthened penalties 
against kidnaping, including mandatory minimum sentences; 
subjected those who abduct and sexually exploit children to the 
possibility of lifetime supervision; aided law enforcement in 
effectively preventing, investigating, and prosecuting crimes 
against children; and provided families and communities with 
immediate and effective assistance to recover a missing child.
    According to the United States Department of Justice (DOJ), 
Office of Juvenile Justice Delinquency Prevention (OJJDP), the 
number of missing persons reported to law enforcement had 
increased from 154,341 in 1982 to 876,213 in 2000, an increase 
of 468 percent. Out of those cases, there are approximately 
3,000 to 5,000 non-family abductions reported to police each 
year, most of which are short term sexually-motivated cases. 
About 200 to 300 of those cases, or about 6 percent, made up 
the most serious cases where the child was murdered, ransomed 
or taken with the intent to keep. According to Federal 
Government statistics, three out of four children who are 
kidnapped and murdered are killed within three hours of their 
initial abduction. Research has shown that the average victim 
of abduction and murder is an approximately 11-year-old girl 
from a stable family who has initial contact with the abductor 
within a quarter mile of her home.
    H.R. 1104 authorized funding for a voluntary national AMBER 
Alert program to help expand the child abduction communications 
warning network throughout the United States. This legislation 
further provided 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. 
1104 removed any statute of limitations and any opportunity for 
pretrial release for crimes of child abduction and sex 
offenses.
    Legislative History.--On March 11, 2003, the Subcommittee 
held a legislative hearing on H.R. 1104, the ``Child Abduction 
Prevention Act.'' The two witnesses who testified were: 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 
March 11, 2003, the Subcommittee held a markup of H.R. 1104, 
reporting it favorably to the Judiciary Committee. On March 27, 
2003, the House of Representatives passed H.R. 1104 by a vote 
of 410-14. The House amendment to the text of this bill was 
inserted as a substitute text to the Senate bill and was passed 
as S. 151, the ``Prosecuting Remedies and Tools Against the 
Exploitation of Children Today (PROTECT) Act of 2003,'' which 
became Public Law No. 108-21 on April 30, 2003.

S. 151, the ``Prosecuting Remedies and Tools Against the Exploitation 
        of Children Today (PROTECT) Act of 2003''

    Summary.--Senate Orrin Hatch introduced S. 151 on January 
13, 2003. The House amendment to the text of the bill struck 
all of the Senate bill after the enacting clause and inserted a 
substitute text using Chairman Sensenbrenner's legislation, 
H.R. 1104, as the base bill.
    As noted above, the PROTECT Act included several bills and 
provisions, which were considered by the Judiciary Committee. 
Among these are H.R. 1104, the ``Child Abduction Prevention 
Act,'' which the House passed on March 27, 2003; H.R. 4623, the 
``Child Obscenity and Pornography Prevention Act of 2002,'' 
which the House passed on June 25, 2002 and was included in 
H.R. 1104; and H.R. 1161, the Child Obscenity and Pornography 
Prevention Act of 2003.''
    This legislation also included provisions from H.R. 4477, 
the ``Sex Tourism Prohibition Improvement Act of 2002,'' which 
the House passed (418-8) on June 26, 2002. This bill addressed 
a number of problems related to persons who travel to foreign 
countries and engage in illicit sexual relations with minors. 
Before its passage, the Government had to prove that the 
defendant traveled ``for the purpose'' of engaging in the 
illegal activity. Under this bill, the government only has to 
prove that the defendant engaged in illicit sexual conduct with 
a minor while in a foreign country. This legislation also 
criminalized 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.
    This bill also included H.R. 4658, the ``Truth in Domain 
Names Act,'' which Representative Pence introduced on May 1, 
2002. The Internet, at its best, is used to disseminate 
information and provide educational materials to children. 
However, websites have used legitimate-sounding domain names to 
lure children into viewing pornographic materials. This 
legislation addressed this problem by making it a crime to use 
domain names that deliberately mislead minors into viewing 
pornographic material.
    S. 151 included provisions similar to H.R. 1877, the 
``Child Sex Crimes Wiretapping Act of 2002, which the House 
passed (396-11) on May 21, 2002. H.R. 1877 assists law 
enforcement by authorizing the interception of wire, oral, or 
electronic communications in the investigation of: the selling 
and buying of a child for sexual exploitation; child 
pornography; the coercion and enticement to engage in 
prostitution or other illegal sexual activity; and 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.
    Additionally, the PROTECT Act provided strong support to 
recover abducted children quickly and safely through a prompt 
and effective public alert system. Such a system can be the 
difference between life and death for that child. To accomplish 
this, the bill codified the AMBER Alert program in place in the 
Departments of Justice and Transportation and authorized 
increased funding to help States deploy child abduction 
communications warning networks. While our goal must always be 
to prevent the abduction of a child before it occurs, our 
communities must have effective and responsive AMBER Alert 
systems to assist in the quick and safe return of a kidnapped 
child.
    This legislation doubled the authorized funding for the 
National Center for Missing and Exploited Children, the 
Nation's resource center for child protection, to $20 million 
through 2005. The Center assists in the recovery of missing 
children and raises public awareness about ways to protect 
children from abduction, molestation, and sexual exploitation.
    This legislation included provisions from H.R. 4679, the 
``Lifetime Consequences for Sex Offenders Act of 2002,'' which 
the House passed (409-3) on June 25, 2002. These provisions 
allow federal judges to include, as part of any sentence of a 
convicted sex offender, a term of supervised release for any 
term of years or life. This legislation also provided a 20-year 
mandatory minimum sentence of imprisonment for non-familial 
abductions of a child under the age of 18 and mandatory life 
imprisonment for second time offenders.\3\ The compromise 
legislation restricted the opportunity for pretrial release for 
crimes of child abduction and sex offenses and extends the 
statute of limitations.
---------------------------------------------------------------------------
    \3\ These provisions are similar to H.R. 2146, the ``Two Strikes 
and You're Out Child Protection Act,'' which the House passed (382-34) 
on March 14, 2002. This legislation amends the Federal criminal code to 
provide for mandatory life imprisonment of a person convicted of a 
Federal sex offense in which a minor is the victim, when that person 
has previously been convicted of a state or Federal child sex offense.
---------------------------------------------------------------------------
    Finally, this legislation included the ``Feeney 
Amendment,'' which was adopted during floor consideration of 
H.R. 1104 on March 27, 2003. Among other things, this amendment 
placed strict limitson departures from federal sentencing 
guidelines by allowing sentences outside the guideline range only upon 
grounds specifically enumerated as proper for departure and required 
courts to give specific and written reasons for any departure from 
federal sentencing guidelines. It also amended sentencing guidelines 
with regard to the penalties for possession of child pornography by 
increasing penalties if the offense involved material that portrays 
sadistic or masochistic conduct or other depictions of violence and by 
increasing penalties based on the amount of child pornography involved 
in the offense.
    Legislative History.--On February 24, 2003, the Senate 
passed S. 151, the ``PROTECT Act,'' by a vote of 84 to 0. The 
bill was referred to the House Judiciary Committee on February 
26 and to the Subcommittee on Crime, Terrorism, and Homeland 
Security on March 6, 2003. On March 27, 2003, Chairman 
Sensenbrenner insisted on House amendments and requested a 
conference, agreed to without objection. The conference report 
was filed on April 9, 2003.\4\ On April 10, 2003, both the 
House and the Senate agreed to the conference report by votes 
of 400-25 and 98-0, respectively. S. 151 became Public Law No. 
108-21 on April 30, 2003.
---------------------------------------------------------------------------
    \4\ H. Rep. No. 108-66 (2003).
---------------------------------------------------------------------------

H.R. 21, the ``Unlawful Internet Gambling Funding Prohibition Act''

    Summary.--Congressman James Leach introduced H.R. 21, the 
``Unlawful Internet Gambling Funding Prohibition Act'' on 
January 7, 2003. It would provide State and Federal authorities 
with the means to enforce current statutes and would clarify 
that those statutes make gambling over the Internet illegal. 
This bill would create a new crime--accepting financial 
instruments, such as credit cards or electronic fund transfers, 
for debts incurred in illegal Internet gambling. Because the 
perpetrators of this activity are off-shore and beyond the 
reach of U.S. law enforcement tactics, the bill would enable 
State attorneys general and Federal enforcement authorities to 
request that injunctions be issued against any party, including 
financial institutions, Internet service providers, and 
computer software providers, to assist in the prevention or 
restraint of this crime. Finally, this bill would allow Federal 
bank regulators to create rules requiring financial 
institutions to use designated methods to block or filter 
illegal Internet gambling transactions.
    Legislative History.--On April 29, 2003, the Subcommittee 
held a legislative hearing on H.R. 21. On May 6, 2003, the 
Subcommittee held a markup of H.R. 21 and reported it favorably 
to the Judiciary Committee. On May 22, 2003, the Committee 
ordered H.R. 21 reported favorably as amended by a recorded 
vote of 16 yeas to 15 nays. The bill was reported to the House 
on May 22, 2003 (H. Rept. No. 108-051, Part II).

H.R. 1223, the ``Internet Gambling Licensing and Regulation Commission 
        Act''

    Summary.--On March 12, 2003, Congressman John Conyers, Jr. 
introduced H.R. 1223, the ``Internet Gambling Licensing and 
Regulation Commission Act.'' As noted above, it is unclear that 
using the Internet to operate a gambling business is illegal 
under current Federal law. Accordingly, this bill would 
establish the Internet Gambling Licensing and Regulation Study 
Commission to conduct a comprehensive study of the existing 
legal framework governing Internet gambling and the issues 
involved with the licensing and regulation of Internet 
gambling.
    Legislative History.--H.R. 1223 was referred to the 
Subcommittee and a legislative hearing was held on April 29, 
2003. No further action was taken during the 108th Congress.

H.R. 1707, the ``Prison Rape Reduction Act of 2003''

    Summary.--Representative Frank Wolf introduced H.R. 1707 on 
April 9, 2003. This legislation made prevention of prison rape 
a priority for Federal, State, and local institutions and 
provided for the development of national standards for 
detection, prevention, reduction, and punishment of prison 
rape. It required State and local governments to work with the 
Federal Bureau of Justice Statistics (BJS) to study the number 
and effects of sexual assaults in correctional facilities and 
to adopt and maintain compliance with the national standards 
developed by the Attorney General. All sections of the bill 
were intended to address the problem of inmates who are raped 
while incarcerated in a correctional facility.
    The original legislation mandated a study to determine the 
number of incidents and effects of sexual assault in 
correctional facilities and provide accurate data for the first 
time on the number of incidents. The legislation as introduced 
was controversial due to its grant funding scheme. For 
institutions that complied with the Federal Government 
standards and requests for information, it would have increased 
the amount of all grant funding a State or local government 
receives by 10 percent, at the expense of those States who do 
not comply with such requests or adopt such standards. 
Additionally, because this legislation required that the grant 
funds designated must aggregate a minimum of $1 billion 
(affecting approximately one-third of all grants at the Office 
of Justice Programs), many different grants for many entities 
that have no relationship to prisons might have been affected. 
After introduction of the bill, a compromise was reached after 
negotiation among various parties. A bipartisan substitute 
amendment representing that compromise was then reported 
favorably by the Subcommittee on Crime, Terrorism, and Homeland 
Security.
    The substitute amendment still requires a study on the 
incidence and effects of sexual assault in correctional 
facilities. But, the substitute no longer rewards States and 
institutions who are invited to testify at the expense of other 
States and institutions. Additionally, the grant program 
provisions were revised in the substitute to specifically 
target only those grant programs that award funds to State and 
local prisons. The substitute requires States to adopt national 
standards for the prevention and prosecution of prison rape. 
States that do not adopt these standards can lose 5 percent of 
prison funds unless they choose to redirect those funds to 
become compliant with the national standards. The provisions of 
this legislation, including both the reporting requirements and 
the standards and protections developed by the Attorney 
General, are intended to apply to all individuals detained in 
the U.S. in both civil and criminal detentions.
    Legislative History.--On April 9, 2003, the Subcommittee 
held a legislative hearing on H.R. 1707. On June 12, 2003, the 
Subcommittee held a markup of H.R. 1707 and ordered the bill 
reported favorably with an amendment by voice vote. The 
Judiciary Committee held a markup of H.R. 1707 on July 9, 2003, 
ordering the bill reported as amended by voice vote. The bill 
was reported as amended by the Judiciary Committee on July 18, 
2003 (H. Rept. No. 108-219). This legislation was later 
incorporated into S. 1435, the ``Prison Rape Elimination Act of 
2003.'' S. 1435 passed the Senate on July 21, 2003 and the 
House on July 25, 2003 and became Public Law No. 108-79 on 
September 4, 2003.

H.R. 919, the ``Hometown Heroes Survivors Benefits Act of 2003''

    Summary.--Congressman Bob Etheridge introduced H.R. 919, 
the ``Hometown Heroes Survivors Benefits of 2003'' on February 
26, 2003. Similar legislation, S. 459, was introduced and 
passed in the Senate. Before its passage (as S. 459), current 
law provided $250,000, indexed for inflation, to the survivors 
of public safety officers such as police officers, 
firefighters, and rescue squad officers who died ``as the 
direct and proximate result of a personal injury sustained in 
the line of duty.'' S. 459, the ``Hometown Heroes Survivor 
Benefits Act of 2003,'' as introduced, provided that if a 
public safety officer died 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, that officer was presumed to have 
died as the direct and proximate result of a personal injury 
sustained in the line of duty for purposesof that officer's 
survivors receiving a death benefit.
    The intent of H.R. 919 was to cover officers who suffered a 
heart attack or stroke as a result of non-routine stressful or 
strenuous physical activity; however, testimony at the 
Subcommittee hearing indicated that the legislation as drafted 
was overbroad. Witnesses testified that the legislation as 
drafted would undermine the purpose of the Public Safety 
Officer Benefits program, which was intended to provide a 
benefit to heroes who gave their lives in the line of duty for 
their communities. As drafted, it would cover officers who did 
not engage in any physical activity but merely happened to 
suffer a heart attack at work.
    A compromise substitute amendment to S. 459 was offered by 
Representative DeLay and passed with unanimous consent on the 
House floor to address these concerns. The substitute amendment 
creates a presumption that an officer who died as a direct and 
proximate result of a heart attack or stroke died as a direct 
and proximate result of a personal injury sustained in the line 
of duty if:
          (1) that officer participated in a training exercise 
        that involved non-routine stressful or strenuous 
        physical activity or responded to a situation and such 
        participation or response involved non-routine 
        stressful or strenuous physical law enforcement, 
        hazardous material response, emergency medical 
        services, prison security, fire suppression, rescue, 
        disaster relief, or other emergency response activity;
          (2) that officer suffered a heart attack or stroke 
        while engaging or within 24 hours of engaging in that 
        physical activity; and
          (3) such presumption cannot be overcome by competent 
        medical evidence.
    For the purposes of this Act, the phrase ``non-routine 
stressful or strenuous physical'' activity excludes actions of 
a clerical, administrative, or non-manual nature. Such deaths, 
while tragic, are not to be considered in the line of duty 
deaths. Therefore, the families of officers who died of such 
causes would not be eligible to receive public safety officers 
benefits.
    Legislative History.--Representative Bob Etheridge 
previously introduced similar legislation, H.R. 5334, the 
``Hometown Heroes Survivors Benefits Act of 2002,'' on 
September 5, 2002. The House passed H.R. 5334 by unanimous 
consent on November 15, 2002, but no action was taken by the 
Senate during the 107th Congress. Representative Etheridge 
reintroduced the bill as H.R. 919, and on June 26, 2003, the 
Subcommittee held a legislative hearing on H.R. 919. Witnesses 
who testified at the hearing were: Captain Brian Willison, 
Chair, Wisconsin Law Enforcement Memorial, Inc.; Craig Floyd, 
Chairman and Executive Director, National Law Enforcement 
Memorial Fund, Inc.; and Mike Williams, Fire Rescue Training 
Specialist, North Carolina Department of Insurance, Office of 
the State Fire Marshal. H.R. 919 was incorporated into S. 459, 
as an amendment in the nature of a substitute, and the bill as 
amended passed the Senate without objection as the ``Hometown 
Heroes Survivors Benefits Act of 2003,'' which became Public 
Law No. 108-182 on December 15, 2003.

H.R. 2214, the ``Reduction in Distribution of Spam Act of 2003''

    Summary.--Chairman Sensenbrenner, Mr. Burr, Mr. Tauzin, Mr. 
Goodlatte, Mr. Upton, Ms. Hart, Mr. Stearns, and Mr. Cannon 
introduced H.R. 2214 on May 22, 2003. The bill would amend 
Title 18 of the U.S. Code to provide significant criminal 
penalties and civil fines for the most egregious senders of 
spam--those who intentionally falsify their identity and the 
source of their messages; attack protected computers; harvest 
the addresses of unsuspecting internet users; and send unwanted 
sexually explicit materials.
    Legislative History.--On July 8, 2003, the Subcommittee 
held a legislative hearing on H.R. 2214, the ``Reduction in 
Distribution of Spam Act of 2003.'' No further action was taken 
on the bill.

H.R. 3214, the ``Advancing Justice Through DNA Technology Act of 2003''

    Summary.--Chairman Sensenbrenner introduced H.R. 3214 on 
October 1, 2003. H.R. 3214 addresses three interrelated 
problems: the elimination of backlogs of DNA evidence that has 
not been analyzed; the lack of training, equipment, technology, 
and standards for handling DNA and other forensic evidence; and 
the conviction of innocent persons.
    Title I of the bill addressed DNA backlogs by reauthorizing 
and expanding the ``DNA Analysis Backlog Elimination Act of 
2000.'' It increased the authorized funding levels for the DNA 
Analysis Backlog Elimination program to $151 million annually 
for the next five years. Title II authorized funding for 
training for law enforcement, correctional, court, and medical 
personnel on the use of DNA evidence. Title II also authorized 
grant programs to reduce other forensic science backlogs, 
research new DNA technology, and promote the use of DNA 
technology to identify missing persons. Title II provided funds 
to the FBI for the administration of its DNA programs. Title 
III established rules for post-conviction DNA testing of 
Federal prison inmates and required the preservation of 
biological evidence in Federal criminal cases while the 
defendant remains incarcerated. Additionally, the legislation 
provided incentive grants to States that adopt adequate 
procedures for providing post-conviction DNA testing and 
preserving biological evidence. Finally, it authorized funding 
to help States provide competent legal services for both the 
prosecution and the defense in death penalty cases and provided 
funds for post-conviction DNA testing.
    Legislative History.--The Subcommittee held an oversight 
hearing on ``Advancing Justice through the Use of Forensic DNA 
Technology'' on July 17, 2003. On October 8, 2003, the 
Judiciary Committee held a markup of H.R. 3214, ordering the 
bill reported as amended. On November 5, 2003, the House passed 
H.R. 3214 by a vote of 357-67. The bill was later incorporated 
into H.R. 5107, the ``Justice for All Act of 2004,'' which was 
introduced by Chairman Sensenbrenner on September 21, 2004. The 
Judiciary Committee held a markup of H.R. 5107 on September 22, 
2004, reporting the bill favorably as amended by a voice vote 
(H. Rept. No. 108-711). On October 6, 2004, H.R. 5107 passed 
the House by a vote of 393-14 and the Senate on October 9, 
2004, and was signed by the President on October 30, 2004 
becoming Public Law No. 108-405.

H.R. 3266, the ``Faster and Smarter Funding for First Responders Act''

    Summary.--Congressman Chris Cox introduced H.R. 3266, the 
``Faster and Smarter Funding for First Responders Act of 
2004,'' on October 8, 2003. H.R. 3266, the ``Faster and Smarter 
Funding for First Responders Act of 2004,'' would improve the 
effectiveness and efficiency with which the Department of 
Homeland Security (``DHS'') issues grants to States, local 
governments, and first responders to prevent, prepare for, 
mitigate, and respond to terrorism.
    H.R. 3266, the ``Faster and Smarter Funding for First 
Responders Act of 2004,'' would change the criteria for 
distributing funding for two existing grant programs managed by 
the Office for Domestic Preparedness (``ODP''). Since 1998, 
ODP, as part of the Department of Homeland Security and 
previously as part of the Department of Justice, has had the 
mission of enhancing State and local capabilities for 
responding to terrorists using weapons of mass destruction 
(``WMD''). One of the two grant programs is the State Homeland 
Security grant program, which the Committee on the Judiciary 
authorized in the USA PATRIOT Act after the September 11, 2001 
terrorist attacks. The other grant program is the Urban Area 
Security Initiative grant program, which was established in 
fiscal year 2003.The bill was introduced to improve the 
management of these grants because of numerous complaints from State 
and local governments and first responder organizations that the money 
was not being distributed effectively or efficiently.
    H.R. 3266, as introduced, would authorize the DHS to 
consolidate the State Homeland Security and the Urban Area 
Security Initiative grant programs and replace the minimum 
formula and population based distribution with a funding 
distribution based on: (1) the degree to which applications 
would lessen the threats, vulnerabilities, and consequences of 
a terrorist attack; and (2) the degree to which applications 
demonstrate a valid need for such funding. The bill also 
directs the Secretary of DHS to establish ``essential 
capabilities'' that different types of communities should 
obtain to prepare for potential terrorist acts, and directs 
grant assistance to be utilized to build these essential 
capabilities in a measurable fashion. Under the bill, the 
States must disburse the grant money to local governments 
within 45 days of receiving the funds. The bill would increase 
total funding in fiscal year 2006 to $3.4 billion and would 
expand the suggested list of activities covered by the grants 
to include covering the costs of additional personnel during 
heightened threat alerts and training activities. Another 
change would allow the Department to transfer funds directly to 
local recipients.
    Finally, the security of Indian reservations and tribal 
lands against acts of terrorism must be considered by DHS and 
the States as part of their overall goal of protecting the 
American homeland against terrorism. The DHS must also consider 
security of the territories against acts of terrorism. H.R. 
3266 as amended by the Committee on the Judiciary would ensure 
such coverage. Similar to current law, the amended bill 
provides a base level of funding for the territories. Puerto 
Rico and the District of Columbia are treated as States. Indian 
Tribes are treated as described below. Section 1804, as 
amended, would establish a program to permit twenty ``directly 
eligible Tribes'' or consortia of tribes to receive covered 
grants from DHS. This program parallels that established for 
regions; it requires directly eligible Tribes to designate a 
liaison, to submit simultaneously its application to both DHS 
and to each State within the boundaries of which any part of 
that tribe is located and to submit an application consistent 
with any applicable State homeland security plan or plans. The 
Committee, however, recognized that the vast majority of Indian 
Tribes will not be eligible to receive direct grant funding. As 
a consequence, the Committee expected the States to treat 
Indian Tribes fairly in the grant process.
    Legislative History.--On November 20, 2003, the 
Subcommittee held a legislative hearing on H.R. 3266, the 
``Faster and Smarter Funding for First Responders Act of 
2004.'' On June 16, 2004, the Judiciary Committee held a 
legislative markup of H.R. 3266, ordering the bill reported 
favorably as amended. On June 21, 2004, the bill was reported 
to the House (H. Rept. No. 108-460, Part IV). There was no 
further action taken on this bill. However, a version of the 
bill was included in the intelligence reform bill, S. 2845, 
which became Public Law No. 108-458.

H.R. 3158, the ``Preparing America to Respond Effectively Act of 2003'' 
        or the ``Prepare Act''

    Summary.--Congressman Jim Turner introduced H.R. 3158 on 
September 24, 2003. This bill would create a task force on 
standards for terrorism preparedness. The task force would 
conduct a study to identify the essential capabilities needed 
by every State and local government and determine the extent to 
which a State or local government has achieved or failed to 
achieve these essential capabilities, among other things. The 
bill would also create a grant program to address the State's 
need to meet these essential capabilities. This bill would 
authorize ODP to administer all terrorism preparedness and 
response grant programs. This bill was referred to the Select 
Committee on Homeland Security and the Committees on Judiciary, 
Transportation and Infrastructure, and Energy and Commerce.
    Legislative History.--The Subcommittee held a legislative 
hearing on H.R. 3158 on November 20, 2003. No further action 
was taken during the 108th Congress.

H.R. 2512, the ``First Responders Funding Reform Act of 2003''

    Summary.--Congressman John E. Sweeney introduced H.R. 2512 
on June 18, 2003. This bill would amend the USA PATRIOT Act to 
change the formula the Office for Domestic Preparedness uses to 
provide domestic preparedness grants. Section 1014 of the 
PATRIOT Act (Public Law No. 107-56) authorized the formula used 
to distribute funds in the FY 04 Homeland Security Grant 
Program application kit. The allocations were determined using 
a base amount of .75 percent of the total allocation for the 
States (including the District of Columbia and the Commonwealth 
of Puerto Rico), and .25 percent of the total allocation for 
the U.S. Territories (American Samoa, the Commonwealth of the 
Northern Mariana Islands, Guam, and the U.S. Virgin Islands), 
with the balance of funds being distributed on a population-
share basis. ODP used 2002 U.S. Bureau of the Census data to 
determine population figures. H.R. 2512 would lower the fixed 
amount each State receives from the current 0.75 percent to 0.5 
percent of the total amount appropriated for domestic 
preparedness grants and would require that each grant be based 
upon a risk assessment for threat, vulnerability, and 
consequence. The bill would also require the Office for 
Domestic Preparedness to submit an assessment to Congress by 
March 1 of each year.
    Legislative History.--On November 20, 2003, the 
Subcommittee held a legislative oversight hearing, entitled 
``Homeland Security--the Balance Between Crisis and Consequence 
Management Through Training and Assistance,'' which included 
discussion of H.R. 2512.

H.R. 3866, the ``Anabolic Steroid Control Act of 2004''

    Summary.--Chairman F. James Sensenbrenner, Jr. along with 
Representatives Conyers, Sweeney, Osborne, and Berman, 
introduced H.R. 3866 on March 1, 2004. H.R. 3866, the 
``Anabolic Steroid Control Act of 2004,'' helps to prevent the 
abuse of steroids by professional athletes. It also addresses 
the widespread use of steroids and steroid precursors by 
college, high school, and even middle school students.
    Steroid use has been banned in the United States since the 
passage of the ``Anabolic Steroids Control Act of 1990.'' This 
legislation adds several new substances to the list of banned 
substances and provides increased penalties (up to twice the 
current maximum term of imprisonment, maximum fine, or maximum 
term of supervised release) for any individual who traffics in 
steroids within 1,000 feet of an athletic facility.
    The Subcommittee amended this legislation to include a 
requirement that the Department of Health and Human Services 
and the Department of Justice report to the House and Senate 
Committees on the Judiciary within two years regarding the need 
to add additional dangerous substances to the list.
    H.R. 3866 served as the House counterpart to S. 2195, 
introduced by Senators Biden and Hatch. Both bills were 
endorsed by a broad cross-section of groups representing the 
medical and sports communities, including the National Football 
League, Major League Baseball, the U.S. Anti-Doping Agency, the 
American Medical Association, and the Major League Baseball 
Players Association. The Major League Baseball Players 
Association has stated, ``* * * if Congress chooses to expand 
the definition of Schedule III anabolic steroids in order to 
cover certain steroid precursors, we would not only support 
such a decision but also would automatically expand our testing 
program, jointly administered with the clubs, to cover such 
substances.''
    Legislative History.--On March 16, 2004, the Subcommittee 
held a legislative hearing on H.R. 3866, the``Anabolic Steroid 
Control Act of 2004.'' On March 30, 2004, the Subcommittee held a 
markup of the legislation and ordered it reported favorably, as amended 
by voice vote, to the Judiciary Committee. On March 31, 2004, the 
Judiciary Committee held a markup of H.R. 3866, ordering it reported 
favorably, as amended by voice vote, to the House (H. Rept. No. 108-
461, Part I). The House passed the bill under suspension of the rules 
on June 3, 2004, by a vote of 408-3. On October 6, 2004, the Senate 
passed S. 2195 with an amendment by unanimous consent. The bill was 
then referred to the House and passed by unanimous consent on October 
8, 2004 and became Public Law No. 108-358.

H.R. 1731, the ``Identity Theft Penalty Enhancement Act''

    Summary.--Congressman John Carter introduced H.R. 1731 on 
April 10, 2003. H.R. 1731, the ``Identity Theft Penalty 
Enhancement Act,'' addresses the growing problem of identity 
theft. Previously, under 18 U.S.C. Sec. 1028, many identity 
thieves received short terms of imprisonment or probation; 
after their release, many of these thieves would go on to use 
false identities to commit much more serious crimes. H.R. 1731 
provides enhanced penalties for persons who steal identities to 
commit immigration violations, firearms offenses, and other 
serious crimes. The bill also amends current law to impose a 
higher maximum penalty for identity theft used to facilitate 
acts of terrorism.
    Amendments to this legislation were adopted both at 
Subcommittee and full Committee and incorporated into the 
version of the bill the Committee ordered reported. The 
Subcommittee adopted an amendment to allow the aggravated 
identity theft penalties to be applied to individuals who used 
fraudulent identities, in addition to those who used the 
identities of other persons, to commit a terrorist offense. The 
full Committee adopted two amendments. The first amendment 
added several Social Security fraud crimes and theft or 
embezzlement by a bank officer or employee to the list of 
crimes for which the enhanced penalties may be applied. 
Additionally, this amendment clarified that a crime involving 
more than one incident could be aggregated for purposes of 
determining the penalties. It also included a directive to the 
United States Sentencing Commission to require that the Federal 
Sentencing Guideline, ``Abuse of Position of Trust or Use of 
Special Skill,'' be amended to apply to employees or directors 
who use access to information at their place of business to 
commit identity theft or fraud. This amendment helps to address 
the problem of insiders who use their employment position to 
commit fraud or help others commit fraud. It allows judges to 
apply additional penalties to these individuals under the 
sentencing guidelines.
    The second amendment adopted by the Committee authorized $2 
million per year for 5 years for the Department of Justice to 
investigate and prosecute identity theft and identity fraud 
cases. Significantly, the Committee rejected amendments which 
would have removed the mandatory consecutive sentences from the 
bill.
    Legislative History.--The Subcommittee held a legislative 
hearing on H.R. 1731 on March 23, 2004. On March 30, 2004, the 
Subcommittee conducted a markup of the legislation and ordered 
it reported favorably to the Judiciary Committee, as amended by 
voice vote. On May 12, 2004, the Judiciary Committee held a 
markup of H.R. 1731, reporting it to the House as amended by 
voice vote. On June 23, 2004, H.R. 1731 passed the House by a 
voice vote under suspension of the rules, and on June 25, 2004, 
it passed the Senate by unanimous consent. The President signed 
the bill on July 15, 2004, and it became Public Law No. 108-
275.

H.R. 3693, the ``Identity Theft Investigation and Prosecution Act of 
        2003''

    Summary.--Congressman Robert Scott introduced H.R. 3693 on 
December 8, 2003. This bill proposes additional steps Congress 
can take to minimize the threat of identity theft to the 
individual, American companies, and the security of our 
country. H.R. 3693 would provide $100 million to the Department 
of Justice to investigate and prosecute identity theft crimes.
    Legislative History.--The Subcommittee held a legislative 
hearing on H.R. 3693 on March 23, 2004. This funding was 
reduced to $10 million over five years and incorporated into 
H.R. 1731 as passed. No further action was taken on the bill, 
but a version of it was incorporated into H.R. 1731.

S. 1743, the ``Private Security Employment Authorization Act of 2003''

    Summary.--Senator Carl Levin introduced S. 1743 on October 
16, 2003. This bill addressed the security officer industry's 
unique need for criminal history background checks on employees 
and prospective employees. This bill would authorize private 
security companies access to criminal history records. This 
would prevent companies from hiring individuals who have 
criminal histories that make them unsuitable for employment 
guarding critical infrastructures or other sensitive 
assignments.
    Legislative History.--On March 30, 2004, the Subcommittee 
held a legislative hearing on S. 1743. Provisions of this 
legislation was incorporated into S. 2845, the ``National 
Intelligence Reform Act of 2004,'' which became Public Law No. 
108-458. The President signed it on December 17, 2004.

S. 1301, the ``Video Voyeurism Prevention Act of 2004''

    Summary.--Senator Michael DeWine introduced S. 1301 on June 
19, 2003. S. 1301, the ``Video Voyeurism Prevention Act of 
2003,'' would amend the Federal Criminal Code to prohibit a 
person, in the special maritime and territorial jurisdiction of 
the United States, from intentionally capturing an image of a 
private area of an individual without that individual's consent 
and the person capturing the image knowingly does so under 
circumstances in which the individual has a reasonable 
expectation of privacy.
    S. 1301 would criminalize the act of ``video voyeurism'' on 
Federal land, such as national parks or Federal buildings, 
using the well-accepted legal concept that individuals are 
entitled to a reasonable expectation of privacy. This crime is 
now punishable by a fine of not more than $100,000 or 
imprisonment for up to 1 year, or both. S. 1301, the ``Video 
Voyeurs Prevention Act of 2003,'' is similar in substance to 
H.R. 2405, the ``Video Voyeurism Prevention Act,'' introduced 
by Representatives Oxley, Gonzalez, Goode, and Baird.
    Legislative History.--The Subcommittee held a legislative 
hearing and markup of S. 1301 on March 30, 2004, ordering the 
bill reported favorably to the Judiciary Committee. On May 12, 
2004, the Judiciary Committee held a markup and ordered the 
bill reported favorably as amended by voice vote, and on May 
20, the bill was reported to the House (H. Rept. 108-504). On 
September 21, 2004, the bill was considered under suspension of 
the rules and was agreed to, as amended, by a voice vote. 
Likewise, the Senate amended the bill and passed it under 
unanimous consent on September 25. On November 18, 2004, the 
House sent to the Senate an amendment to the Senate bill. The 
Senate agreed to the House amendment by unanimous consent on 
December 7, 2004.

H.R. 1678, the ``Anti-Hoax Terrorism Act of 2004''

    Summary.--Congressman Lamar S. Smith introduced H.R. 1678 
on April 8, 2003. H.R. 1678, the ``Anti-Hoax Terrorism Act of 
2003,'' creates criminal and civil penalties for whoever 
knowingly engages in any conduct, with intent to convey false 
or misleading information, under circumstances where such 
information may reasonably be believed and where such 
information concerns an activity which would constitute a 
violation of such crimes as those relating to explosives; 
firearms; destruction of vessels; terrorism; sabotage of 
nuclear facilities; aircraft piracy; a dangerous weapon to 
assault flight crew members and attendants; explosives on an 
aircraft; homicide or attempted homicide or damaging 
ordestroying facilities. The bill also prohibits making a false 
statement with intent to convey false or misleading information about 
the death, injury, capture, or disappearance of a member of the U.S. 
Armed Forces during a war or armed conflict in which the United States 
is engaged. Additionally, the bill increases penalties from not more 
than 5 years to not more than 10 years for making false statements, and 
obstructing justice, if the subject matter relates to international or 
domestic terrorism.
    H.R. 1678 grows out of H.R. 3209, the ``Anti-Hoax Terrorism 
Act of 2001,'' which passed the House in the 107th Congress on 
December 12, 2001, by a recorded vote of 423 yeas to 0 nays. No 
further action was taken on the bill during the 107th Congress.
    Legislative History.--The Subcommittee held a legislative 
hearing on H.R. 1678 on July 10, 2003. On March 30, 2004, the 
Subcommittee held a markup and ordered the bill reported 
favorably to the Judiciary Committee as amended by voice vote. 
On May 12, 2004, the Judiciary Committee held a legislative 
markup, ordering the bill reported favorably as amended by 
voice vote, and on May 20, 2004, the bill was reported to the 
House (H. Rept. No. 108-505). This bill was included in the 
conference report of S. 2845, the ``National Intelligence 
Reform Act,'' which was agreed to by the House on December 7, 
2004 and by the Senate on December 8, 2004. The President 
signed it on December 17, 2004, and it became Public Law No. 
108-458.

H.R. 2934, the ``Terrorist Penalties Enhancement Act of 2004''

    Summary.--Congressman John R. Carter introduced H.R. 2934 
on July 25, 2003. H.R. 2934 would provide for increased 
penalties, including up to life in prison or death, for 
terrorist offenses that result in the death of another person. 
H.R. 2934 would also provide that any person convicted of a 
``Federal crime of terrorism'' is ineligible to receive any 
benefits from the Federal Government for any term of years or 
for life.
    Despite some changes to the law to increase penalties after 
the deadly terrorist attacks, a jury still cannot consider a 
sentence of death or life imprisonment for terrorists in many 
cases even when the attack resulted in death. For example, in a 
case in which a terrorist caused massive loss of life by 
sabotaging a national defense installation, sabotaging a 
nuclear facility, or destroying an energy facility, there would 
be no possibility of imposing the death penalty under the 
statutes defining these offenses because they contain no death 
penalty authorizations. In contrast, dozens of other Federal 
violent crime provisions authorize up to life imprisonment or 
the death penalty in cases where victims are killed. There are 
also cross-cutting provisions which authorize these sanctions 
for specified classes of offenses whenever death results, such 
as 18 U.S.C. Sec. 2245, which provides that a person who, in 
the course of a sexual abuse offense, ``engages in conduct that 
results in the death of a person, shall be punished by death or 
imprisoned for any term of years or for life.''
    Current law allows Federal courts to deny Federal benefits 
to persons who have been convicted of drug-trafficking or drug-
possession crimes. 21 U.S.C. Sec. 862. As a result, these 
convicts can be prohibited, for periods of up to life, from 
receiving grants, contracts, loans, professional licenses, or 
commercial licenses that are provided by a Federal agency or 
out of appropriated funds. This legislation provides the same 
authority for terrorism offenses.
    Legislative History.--The Subcommittee held a legislative 
hearing and markup of H.R. 2934 on April 21, 2004, ordering the 
bill reported favorably to the Judiciary Committee. On June 23, 
2004, the Judiciary Committee held a legislative markup, 
reporting the bill favorably as amended by voice vote to the 
House (H. Rept. No. 108-588). H.R. 2934 was originally include 
in H.R. 10, the ``9/11 Recommendations Implementation Act,'' 
but was removed in conference. No further action was taken 
during the 108th Congress.

H.R. 3179, the ``Anti-Terrorism Intelligence Tools Improvement Act of 
        2003''

    Summary.--Chairman Sensenbrenner introduced H.R. 3179 on 
September 25, 2003. The bill would strengthen the existing 
prohibition against disclosing an FBI request for information 
related to a counterterrorism or a foreign counterintelligence 
investigation using a National Security Letter (NSL). The bill 
would also enhance compliance with an NSL request through 
judicial enforcement. An NSL is an administrative subpoena used 
in investigations of international terrorism or clandestine 
intelligence activities. An administrative subpoena is an 
investigative tool that allows a Federal agency to request 
document production or testimony without prior approval from a 
grand jury, court, or other judicial entity. An NSL cannot be 
used for a criminal investigation unrelated to international 
terrorism or clandestine intelligence activities.
    Additionally, this legislation included a provision that 
changed the Foreign Intelligence Surveillance Act's (FISA) 
definition of ``agent of foreign power'' to cover non-U.S. 
persons who are engaged in international terrorism but who are 
not specifically affiliated with an international terrorist 
group. A modified version of this provision was adopted in S. 
2845, the ``National Intelligence Reform Act of 2004.'' H.R. 
3179 would also amend section 4 of the Classified Information 
Procedures Act (CIPA) to provide the Department of Justice the 
discretion to make a request to a court to delete classified 
information in documents made available to a defendant, to 
substitute a summary of the classified information, or to 
substitute a statement admitting relevant facts. H.R. 3179 
would not change the court's discretion to grant or deny this 
request. Finally, the bill would amend FISA to provide that 
while the prosecution has to disclose information in 
immigration proceedings, the government would no longer have to 
point out that the information was collected under FISA.
    Legislative History.--The Subcommittee held a legislative 
hearing on H.R. 3179 on May 18, 2004. No further action was 
taken on the bill, but portions of the bill were included in S. 
2845, the Intelligence Reform bill, which became Public Law No. 
108-458.

H.R. 218, the ``Law Enforcement Officers Safety Act of 2004''

    Summary.--Congressman Randy (Duke) Cunningham introduced 
H.R. 218 on January 7, 2003. A State has traditionally, in the 
exercise of its sovereignty, controlled who within its borders 
may carry concealed weapons and when law enforcement officers 
may carry firearms.
    Before its passage, the law allowed individual States to 
decide whether or not they wished to allow out-of-State 
officers to carry a concealed weapon within that State's 
borders. The law also allowed active, but not retired, Federal 
law enforcement officers to carry a concealed weapon anywhere 
within the jurisdiction of the United States; however, it did 
not allow active and retired State and local law enforcement 
officers to carry a concealed weapon without the permission of 
each specific State. H.R. 218, the ``Law Enforcement Officers 
Safety Act of 2003,'' overrides State laws to allow current and 
retired police officers to carry a concealed weapon in any of 
the 50 States.
    Legislative History.--The Subcommittee held a legislative 
hearing on H.R. 218 on June 15, 2004. On June 15, 2004, the 
Subcommittee held a markup of H.R. 218, ordering the bill 
reported favorably. On June 23, 2004, the Judiciary Committee 
ordered the bill reported favorably to the House by a recorded 
vote of 23 yeas to 9 nays (H. Rept. No. 108-560). On June 23, 
2004, H.R. 218 passed the House by a voice vote under 
suspension of the rules, and on July 7, 2004, the bill passed 
the Senate by unanimous consent without amendment. The 
President signed the bill on July 22, 2004, and it became 
Public Law No. 108-277.

S. 1194, the ``Mentally Ill Offender Treatment and Crime Reduction Act 
        of 2004''

    Summary.--Senator Mike Dewine introduced S. 1194 on June 5, 
2003. S. 1194, the ``Mentally Ill Offender Treatment and Crime 
Reduction Act of 2004,'' creates a grant program to encourage 
State and local governments to improve their treatment of 
mentally ill offenders. The grants can be used: to fund mental 
health courts or diversion programs; to promote cooperation 
between the criminal justice and mental health personnel; or to 
train criminal justice and mental health personnel on issues 
relating to mentally ill offenders.
    During a markup, the Committee adopted an amendment in the 
nature of a substitute that ensures an appropriate role for 
victims and law enforcement personnel in dealing with mentally 
ill offenders, encourages graduated sanctions, limits the 
amount of authorizations, and encourages continued monitoring 
of mentally ill offenders after release.
    Legislative History.--On June 22, 2004, the Subcommittee 
held a legislative hearing on S. 1194, and on September 23, 
2004, the Subcommittee held a markup, ordering the bill 
reported favorably to the Judiciary Committee as amended by a 
voice vote. On September 30, 2004, the Judiciary Committee held 
a markup of S. 1194, and the bill was reported to the House as 
amended on October 5, 2004 (H. Rept. No. 108-732). On October 
6, 2004, the bill, as amended, passed the House by a voice vote 
under suspension of the rules. The Senate agreed to the House 
amendment and passed the bill by unanimous consent on October 
11, 2004. On October 30, 2004, the President signed the bill, 
making it Public Law No. 108-414.

H.R. 4547, the ``Defending America's Most Vulnerable: Safe Access to 
        Drug Treatment and Child Protection Act of 2004''

    Summary.--Chairman Sensenbrenner introduced H.R. 4547 on 
June 14, 2004. This bill would amend the Controlled Substance 
Act to protect vulnerable persons, including recovering addicts 
and children, from drug traffickers.
    This legislation is intended to penalize those who 
victimize the most vulnerable of our citizens. It would: 
increase mandatory minimum sentences under existing laws and 
expand protected drug-free zones to include drug treatment 
centers, day-care centers, and libraries; direct sentencing 
enhancements for exposing children and incompetent persons to 
drug trafficking activities and firearms; and assure 
progressive sentencing enhancements for possessing and using 
firearms.
    Legislative History.--On July 6, 2004, the Subcommittee 
held a hearing on H.R. 4547. On September 23, 2004, the 
Subcommittee held a markup of H.R. 4547, ordering the bill 
reported favorably, as amended by voice vote, to the Judiciary 
Committee.

                          Oversight Activities


List of oversight hearings

Reauthorization of the United States Department of Justice--
            Part I: Criminal Law Enforcement: Bureau of 
            Alcohol, Tobacco, Firearms, and Explosives; Federal 
            Bureau of Investigation; and Drug Enforcement 
            Administration, May 6, 2003 (Serial No. 43).
Reauthorization of the United States Department of Justice--
            Part II: Criminal Law Enforcement: Bureau of 
            Prisons, Office of Justice Programs, U.S. Marshals 
            Service, and Criminal Division, May 14, 2003 
            (Serial No. 43).
Advancing Justice through Forensic DNA Technology, July 17, 
            2003 (Serial No. 46).
Terrorist Threat Integration Center (TTIC) and its relationship 
            with the Departments of Justice and Homeland 
            Security, July 22, 2003 (Serial No. 64). (This was 
            a full Committee hearing but was facilitated by the 
            Subcommittee and held jointly with the Select 
            Committee on Homeland Security).
Law Enforcement Efforts Within the Department of Homeland 
            Security, February 3, 2004 (Serial No. 83).
Process of Consolidating Terrorist Watchlists--The Terrorist 
            Screening Center (TSC), March 25, 2004 (Serial No. 
            86). (Held jointly with the Subcommittee on 
            Intelligence and Counterterrorism of the Select 
            Committee on Homeland Security).
Recommendations of the 9/11 Commission, August 23, 2004 (Serial 
            No. 115)
Federal Offender Reentry and Protecting Children from Criminal 
            Recidivists, October 7, 2004 (Serial No. 116)

Oversight issues

            Law enforcement issues generally
    As part of its oversight responsibilities, the Subcommittee 
monitors the Justice Department's state and local law 
enforcement grants programs; examines the efficiency and 
effectiveness of the various law enforcement training programs 
by the Departments of Justice and Homeland Security; and 
examines the policies, procedures, and incentives for local 
police organizations to ensure (1) that incidents of misconduct 
will be minimized, and (2) that allegations of misconduct are 
investigated and prosecuted appropriately.
    Since 9/11, the Subcommittee on Crime, Terrorism, and 
Homeland Security has held thirty-four hearings on law 
enforcement matters. Among the most important of these are 
hearings entitled: ``Law Enforcement Efforts Within the 
Department of Homeland Security;'' ``Homeland Security--the 
Balance Between Crisis and Consequence Management through 
Training and Assistance (Review of Legislative Proposals;'' 
``Terrorism and War-Time Hoaxes;'' ``The Proposal to Create a 
Department of Homeland Security;'' ``The Risk to Homeland 
Security From Identity Fraud and Identity Theft;'' the 
``Antiterrorism Explosives Act of 2002;'' the ``Homeland 
Security Information Sharing Act;'' the ``Cyber Security 
Enhancement Act;'' ``Implementation Legislation for the 
International Convention for the Suppression of Terrorist 
Bombings and the International Convention for the Suppression 
of the Financing of Terrorism;'' and the ``Anti-Hoax Terrorism 
Act of 2001.''
    In addition to these hearings, the Crime Subcommittee, in 
the spirit of cooperation, has held a joint hearing with the 
Select Committee on Homeland Security on the Terrorism Threat 
Integration Center (``TTIC''); jointly sent letters with post-
hearing questions to the relevant agencies on the 
implementation of TTIC; and conducted a joint hearing on the 
integration of terrorism watchlists at the Terrorism Screening 
Center.
    In the law enforcement and law enforcement training area, 
the Crime Subcommittee held a joint hearing with a subcommittee 
of the Select Committee on Homeland Security on consolidating 
terrorist watch lists. The Subcommittee held a hearing and 
markup on H.R. 2934, a bill to expand the death penalty to 
additional acts of terrorism. The full committee reported that 
bill on June 23, 2004. The Subcommittee held a hearing on H.R. 
3179, a bill to enhance law enforcement powers in stopping 
terrorism. The Subcommittee worked closely with the Select 
Committee on Homeland Security on H.R. 3266, a bill to improve 
grants to first responders, which the full committee reported 
on June 16, 2004. A version of H.R. 3266 was included in the 
National Intelligence Reform Act which became Public Law No. 
108-458. Additionally, the Subcommittee held an oversight 
hearing on October 7, 2004, regarding federal offender reentry 
and how to protect children from criminal recidivists. The 
Committee is working closely with the Select Committee on yet 
to be introduced legislation to reauthorize theDepartment of 
Homeland Security.
    Finally, Subcommittee staff conducted continuous oversight 
of the Justice Department's Office of Justice Programs (OJP). 
As part of a continuing effort to reform the Office of Justice 
Programs, staff met with OJP in April of 2003 to review its 
reorganization. In addition, staff requested that GAO conduct 
several studies, including studies to evaluate drug court 
programs; the National Criminal History Improvement Program 
(NCHIP); the National Institute of Justice's operations and 
research; and the Justice Department's Weed and Seed program. 
The combination of the Subcommittee's oversight and review of 
these GAO studies were instrumental in determining what 
legislative fixes were to be included in the DoJ 
Reauthorization bill.
            Missing firearms
    In the 107th Congress, the Inspector General for the 
Department of Justice reported that a number of Justice 
Department agencies could not account for hundreds of firearms 
supposed to be in their possession. Based on this information, 
the Committee on Judiciary began an oversight review of the 
practices to inventory and secure firearms at all Federal 
Departments and agencies with law enforcement authorities and 
personnel.
    As part of this oversight the House Committee on the 
Judiciary requested the General Accounting Office (GAO), the 
independent research arm of the Congress, on July 30, 2001, 
review ``the internal controls for weapons in the possession of 
the law enforcement agencies with the Executive Branch of the 
[F]ederal [G]overnment.''
    The GAO study was released in June of 2003 and indicates 
that agencies have implemented, or are in the process of 
implementing actions, to strengthen their firearms controls. 
GAO found that all 18 of the federal agencies they reviewed had 
policies and procedures designed to control and safeguard 
firearms. The agencies, according to GAO, should strengthen 
these controls in areas that are important for effective 
inventory management such as recording and tracking firearms 
inventory data.
            Implementation of the USA PATRIOT Act
    Section 1001 of the PATRIOT Act requires the Department of 
Justice to report to the House and Senate Committees on the 
Judiciary on a semi-annual basis on any complaints of civil 
liberties abuses by the Department of Justice. In accordance 
with Section 1001, the Department of Justice sent the House and 
Senate Judiciary Committees, four reports entitled, ``Report to 
Congress on the Implementation of Section 1001 of the USA 
PATRIOT Act.'' The first report was sent on July 15, 2002; the 
second on January 22, 2003; the third on July 17, 2003; and the 
fourth on January 27, 2004.
    On April 1, 2003, Chairman Sensenbrenner and Ranking 
Minority Member Conyers sent a letter to the Department of 
Justice with additional questions regarding the use of pre-
existing authorities and the new authorities conferred by the 
PATRIOT Act.\5\ The questions were the product of bipartisan 
coordination by Committee staff. Acting Assistant Attorney 
General Jamie E. Brown responded with a letter on May 13, 2003, 
answering the questions she deemed relevant to the Department 
of Justice and forwarding the remaining questions to the 
appropriate officials at the Department of Homeland Security. 
On June 13, 2003, the Assistant Secretary for Legislative 
Affairs at the Department of Homeland Security, Pamela J. 
Turner, sent responses to the forwarded questions Chairman 
Sensenbrenner and Ranking Minority Member Conyers. These items 
were the subject of extensive press coverage. On May 20, 2003, 
Chairman Sensenbrenner and Ranking Minority Member Conyers 
released statements regarding the Department of Justice's 
response to questions concerning oversight and civil liberties 
issues. Additionally, Chairman Sensenbrenner threatened to 
subpoena Attorney General Ashcroft if the Committee did not 
receive responses to its questions.
---------------------------------------------------------------------------
    \5\ These questions were in addition to those sent to the 
Department of Justice during the 107th Congress.
---------------------------------------------------------------------------
    The House Judiciary Committee also held hearings as part of 
its ongoing oversight efforts. On May 20, 2003, the Committee's 
Subcommittee on the Constitution held an oversight hearing 
entitled, ``Anti-Terrorism Investigations and the Fourth 
Amendment After September 11th: Where and When Can Government 
Go to Prevent Terrorist Attacks?'' Then, on June 5, 2003, the 
Attorney General testified before the Committee at an oversight 
hearing on the United States Department of Justice. Both the 
hearing on May 20th and the hearing on June 5th discussed 
oversight aspects of the PATRIOT Act.
    Further, the Subcommittee on Crime, Terrorism, and Homeland 
Security requested that officials from the Department of 
Justice appear and answer questions regarding the 
implementation of the PATRIOT Act. In response to our request, 
the Department of Justice gave two separate briefings to 
Members and Staff. During the briefing held on August 7, 2003, 
Department officials covered the long-standing authority for 
law enforcement to conduct delayed searches and collect 
business records, as well as the effect of the PATRIOT Act on 
those authorities. During the second briefing, held on February 
3, 2004, the Department of Justice discussed its views of S. 
1709, the ``Security and Freedom Ensured (SAFE) Act of 2003'' 
and H.R. 3352, the House companion bill, as both bills propose 
changes to the PATRIOT Act. All Members' offices were invited 
to these briefings.
    On November 20, 2003, Chairman Sensenbrenner and 
Congressman Hostettler, Chairman of the Subcommittee on 
Immigration, Border Security, and Claims, sent a letter to the 
Comptroller General requesting a GAO study of the 
implementation of the PATRIOT Act anti-money laundering 
provisions. The Committee has not yet received this report.
    Staff for the Subcommittee on Crime, Terrorism, and 
Homeland Security continually monitored concerns expressed by 
Members' offices regarding the implementation of the PATRIOT 
Act, as well as matters reported in the press. Counsel 
maintained regular contact with officials in the Departments of 
Justice and Homeland Security and received periodic briefings. 
As an example, on June 10, 2003 and October 29, 2003, staff 
received briefings by the Department of Justice on the Foreign 
Intelligence Surveillance Act (FISA). The staff also met with 
various civil liberty groups, such as the American Civil 
Liberty Union, the Center for Democracy and Technology, the 
Library Association, and the American Conservative Union. The 
staff also regularly communicated with representatives of these 
groups over the phone or through email.
            Metropolitan Detention Center (MDC)
    In the first 11 months after the 9/11 attacks, 672 illegal 
aliens were detained in connection with the FBI terrorism 
investigations for various immigration offenses. Eighty-four of 
those aliens were confined at Federal Bureau of Prisons (BOP) 
Metropolitan Detention Center (MDC) in Brooklyn, NY. Chairman 
Sensenbrenner visited MDC in July 2003.
    Section 1001 of the USA PATRIOT Act requires the DoJ's 
Inspector General to provide for the review of information and 
receipt of complaints alleging abuses of civil rights and civil 
liberties by employees of the DoJ and also requires that the IG 
submit a report to the Committee on the implementation of this 
provision. Accordingly, in October of 2001, the Bureau of 
Prisons (BOP) Office of Internal Affairs referred to the 
Department of Justice (DoJ) Office of the Inspector General 
(OIG) several allegations of physical abuse at the (BOP) 
Metropolitan Detention Center (MDC) in Brooklyn, NY. The OIG 
New York Field Office initiated a criminal investigation and 
consulted with prosecutorsfrom the Civil Rights Division of the 
DoJ and with the United States Attorney's Office for the Eastern 
District of New York. The Civil Rights Division assigned some 
additional allegations to the FBI for investigation and the OIG 
referred several allegations to the BOP Office of Internal Affairs (BOP 
OIA) for investigation.
    On September 25, 2002, the Civil Rights Division and the 
United States Attorney's Office declined criminal prosecution 
of the MDC staff who were the focus of the OIG's New York Field 
Office. The OIG continued its investigation to determine if 
disciplinary or other administrative actions were warranted. 
The allegations of detainee abuse assigned to the FBI and the 
BOP OIA were considered but declined for criminal prosecution 
and as a result the OIG took over all of these cases and issued 
a report on June 2, 2003, entitled ``The September 11 
Detainees: A Review of the Treatment of Aliens Held on 
Immigration Charges in Connection with the Investigation of the 
September 11 Attacks.'' In the June 2, 2003 report, the OIG 
stated that while it had not completed its investigation, the 
OIG found that some detainees had been physically and mentally 
abused. The 47-page follow-up report discusses the evidence of 
abuse, describes several issues related to systemic treatment 
of the detainees, and offers recommendations.
    In December 2003, the Office of the Inspector General (OIG) 
released its Supplemental Report regarding allegations of abuse 
at the Metropolitan Detention Center (MDC) in New York. This 
report generated further concerns about the FBI's timeliness in 
handling the investigations of abuse. Accordingly, on February 
9, 2004, the Committee sent a letter to Attorney General 
Ashcroft to learn why the FBI did not attempt to locate or 
interview detainee complainants that had been removed either 
prior to the FBI receiving the case or subsequent to the FBI 
receiving the case. In addition, the Chairman requested 
information regarding the delay of the FBI in interviewing 
detainees and an explanation of reported incidents that 
attorney-client communications were recorded without regard to 
established procedures for such conduct; that employees may 
have intentionally lied during the OIG inquiry; and that the 
MDC refused or otherwise failed to turn over video tapes after 
several attempts by the OIG to obtain them. The Committee 
requested information regarding the implementation of the OIG's 
recommendations be reported to the Committee by March 31, 2004.
    The DoJ responded with a letter on July 20, 2004, stating 
that the OIG began investigating allegations of mistreatment 
and abuse of the detainees as early as November 2001. Although 
these investigations resulted in recommendations to BOP to 
correct aspects of its practices, they did not determine that 
criminal prosecution of any BOP officials was warranted. 
Further, the DoJ explained the lack of FBI interviews due to 
the unavailability of complainants and the concurrent OIG 
investigations, which involved numerous interviews.
            Detainees at Guantanamo Bay
    During the U.S.-led war in Afghanistan, ``Operation 
Enduring Freedom,'' approximately 10,000 individuals were taken 
prisoner, screened, and released in Afghanistan. Less than 10% 
of those screened were moved to the U.S. naval base in 
Guantanamo Bay, Cuba along with a small number captured in 
Pakistan. Detainee operations began in Guantanamo in January of 
2002.
    Debate has ensued about whether the detentions are legal, 
and opponents of the policy have argued that the policy creates 
a ``no law zone'' and places the prisoners outside the reach of 
any type of judicial review. Opponents have also questioned the 
living conditions of the prisoners. Proponents have argued that 
the detention of these ``enemy combatants'' is lawful, 
justified, and necessary for the effective collection and 
exploitation of intelligence in support of the global war on 
terrorism. In Rasul v. Bush, the Supreme Court held that the 
foreign combatants held in Cuba are entitled to judicial 
protection, and the approximate 550 enemy combatants currently 
being held in Cuba are receiving reviews by Combatant Status 
Review Tribunals to determine whether they are being properly 
held or whether they should be released.
    The Committee on the Judiciary requested that the DoD brief 
the Committee regarding the Guantanamo detainees, military 
tribunals, and the Geneva Conventions. Accordingly, on November 
15, 2003 and February 24, 2004, military officers briefed 
Members and staff on the detainees being held in Guantanamo 
Bay, Cuba. Both of these briefings were classified.
    Additionally, the Committee requested an unclassified 
briefing, where Brigadier General Wright and Lieutenant General 
Alexander briefed Members and staff on May 21, 2004. In light 
of the recent revelations of abuse at Abu Ghraib prison, the 
military officers discussed the interrogation rules of 
engagement and outlined the events that occurred at Abu Ghraib 
prison, including how many prisoners were interrogated, how 
many pictures were taken, etc. Further, they discussed the 
Geneva Conventions, focusing on the Third and Fourth 
Conventions, which covered POWs and detainees, respectively. 
They described who would be covered by the Conventions and what 
rights would be afforded to POWs and military detainees under 
the rules of the Conventions.
    Subcommittee Chairman Coble led a bipartisan delegation to 
Guantanamo, including Representatives Schiff and Hart and 
subcommittee staff. On April 29, 2004, officials from the 
Departments of Defense and Justice briefed those going on the 
trip, and on May 3, 2004, the group toured the facilities in 
Guantanamo Bay, Cuba, where they saw firsthand the living 
conditions of the prisoners.
    Chairman Sensenbrenner wrote a letter to the Attorney 
General on July 13, 2004, regarding documents related to the 
interrogation of detainees. The DoJ responded on July 20, 2004, 
assuring the Committee that the Administration had released all 
unclassified, final written opinions from the Department 
addressing the legality of interrogation techniques used in the 
interrogations of al-Qaeda and Taliban enemy combatants. The 
letter also cited the release from the White House of numerous 
documents on June 22, 2004.
            Review of National Criminal History Improvement (``NCHIP'') 
                    Program
    On October 15, 2002, Chairman Sensenbrenner requested that 
the GAO audit the use of Federal funds by the State of Maryland 
to implement the National Criminal History Improvement Program 
(``NCHIP''). The Committee expressed its concern that the State 
of Maryland misused its NCHIP funds, possibly endangering lives 
and threatening public safety. After learning that GAO had not 
yet started this audit, Chairman Sensenbrenner sent a letter to 
Comptroller General David M. Walker, dated May 21, 2003, 
requesting that the audit begin immediately. Additionally, the 
Chairman requested that the GAO provide the Committee with a 
report, including an audit of how other states use NCHIP funds 
and a determination of whether states are cleaning up their 
files and records adequately. On June 30, 2003, the Committee 
received a letter from GAO, saying that the GAO accepted its 
request proposal and would begin work with subcommittee staff 
to discuss the project. In a letter dated August 22, 2003, the 
GAO laid out its objectives and key questions that would be 
answered by the study. The study was completed and sent to the 
Committee on February 27, 2004.
            DoJ and Falun Gong
    Subcommittee staff requested several meetings with 
representatives of Falun Gong, a spiritual movement originating 
in China. On February 6, 2003, the Subcommittee wrote a letter 
to Attorney General John Ashcroft regarding claims bymembers of 
Falun Gong that the Chinese Government was harassing, intimidating, and 
conducting surveillance of them in the United States. Members of Falun 
Gong had reportedly met with officials from the Department of Justice 
and the FBI but had expressed frustration that incidents had not been 
investigated by agents in various fields. The subcommittee requested 
that the appropriate Department personnel brief subcommittee staff on 
these matters. On July 21, 2003, subcommittee staff met with one of the 
victims of the Falun Gong harassment and viewed video footage of an 
attack in New York on Falun Gong practitioners by persons suspected of 
having connections to the PRC government.
            COPS program
    On May 10, 2003, the Committee on the Judiciary requested 
that the General Accounting Office (GAO) do an analysis of data 
provided to the Committee by the DoJ regarding the Community 
Oriented Policing Services (COPS) program. The data was 
provided to GAO on May 13, 2003. Due to time constraints, the 
GAO indicated that it could not provide an official analysis. 
Accordingly, in a letter to David M. Walker, Comptroller 
General of the United States, dated June 2, 2003, the Chairman 
extended the deadline for the request to June 3, 2003 to ensure 
that an official document could be provided. Additionally, the 
Committee requested that GAO do an independent study of the 
COPS Program's effect on crime, including consideration of 
other Federal, state, and local programs or policies that are 
focused on reducing crime.
    On November 11, 2003, staff from the GAO met with staff 
from the Judiciary Committee regarding this issue. In a letter 
dated January 8, 2004, the GAO notified the Committee that a 
separate design phase would be necessary to assess the 
relationship between COPS funding and crime while considering 
the effects of other such programs. The GAO estimated that the 
design phase would be completed by March 31, 2004. The GAO is 
currently still working on the study.
            First responders and interoperability of their equipment
    In light of the 9/11 attacks and the importance of first 
responders in responding to terrorist attacks and other 
emergencies, the Committee has a strong interest in grants to 
first responders and the interoperability of their 
communications systems. On April 1, 2003, Chairman 
Sensenbrenner met with officials from the International 
Association of Chiefs of Police (IACP) and the police chief 
from Oregon, Wisconsin. During their meeting, they discussed 
the issue of interoperability of communications, allowing first 
responders to communicate with other first responders. At the 
time, communications were not interoperable, in part because 
television stations had not switched from analog to digital 
signals for high definition television, vacating the channels 
needed for public safety officers. As a result of this meeting, 
Chairman Sensenbrenner wrote a letter, dated June 2, 2003, to 
the Federal Communications Commission (FCC) requesting that the 
FCC set a specific deadline to make the spectrum available for 
public use. Chairman Sensenbrenner requested a response by June 
16, 2003.
    The FCC responded with a letter on June 30, 2003, stating 
that it had taken a number of steps to provide the public 
safety community with additional spectrum. The FCC admitted, 
however, that some spectrum is currently unavailable for public 
safety use in many areas of the country:

          The 700 MHz band spectrum currently is encumbered by 
        broadcasters in many parts of the country, particularly 
        in the urban areas where the Commission anticipates the 
        greatest demand for public safety use. Under the 
        existing statutory framework for this spectrum, the 
        Commission is constrained from making this spectrum 
        fully available for public safety because incumbent 
        television broadcasters do not have to vacate their 
        analog channels until the end of 2006, and may seek to 
        remain until at least 85 percent of the households in 
        their markets have access to DTV signals, whichever is 
        later. * * *
          In response to these statutory constraints, the 
        Commission had crafted a policy to facilitate voluntary 
        band clearing arrangements between broadcasters and new 
        commercial wireless users to clear the entire upper 700 
        MHz band. * * *

    The contents of the letter conveyed that the FCC had done 
all that it could to comply with the needs of first responders.
    On November 23, 2003, the Washington Post printed an 
article entitled, ``Anti-Terrorism Funds Buy Wide Array of Pet 
Projects,'' which alleged possible mismanagement of first 
responder grants. In response, Chairman Sensenbrenner and 
Ranking Minority Member Conyers wrote a letter, dated January 
21, 2004, to the Inspectors General (IG) at the Departments of 
Justice and Homeland Security requesting that they conduct a 
review of the accountability procedures for first responder 
grants. Letters were sent to the Attorney General and the 
Secretary of the Department of Homeland Security as well, 
requesting answers to the Post allegations.
    On February 20, 2004, Chairman Sensenbrenner and Ranking 
Minority Member Conyers wrote a letter to the Attorney General 
and the Secretary of the Department of Homeland Security 
regarding ``interoperability'' among state and local first 
responders. The letter stated the Committee's belief that first 
responders should receive federal support to resolve the 
``interoperability'' in its efforts to prevent, prepare, and 
respond to terrorist attacks. The letter asked the AG and the 
Secretary to provide in detail their efforts to assist state 
and local first responders with ``interoperability.''
    The DHS responded on May 11, 2004, saying that the Office 
for Domestic Preparedness (ODP) had begun awarding grants under 
the Homeland Security Grant Program and the Urban Areas 
Security Initiative to States and territories and high-threat 
areas, respectively. In addition, ODP encouraged all new radio 
systems purchased with these funds to be compatible with 
standards that will ensure interoperability. Further, ODP, in 
conjunction with other organizations, provided funds to the 
Chula Vista C41 Evaluation Exercise, which would test and 
implement a secure and seamless communication and data system 
for interoperability.
            Allegations of misleading testimony before the subcommittee 
                    and Judge Rosenbaum
    On October 31, 2002, the Committee issued its report on 
H.R. 4689, the ``Fairness in Sentencing Act of 2002,'' \6\ 
which also dealt with the May 14, 2002 testimony of the 
Honorable James M. Rosenbaum, Chief Judge, United States 
District Court for the District of Minnesota before the 
Subcommittee on Crime, Terrorism, and Homeland Security.
---------------------------------------------------------------------------
    \6\ H. Rep. No. 107-769 (2002).
---------------------------------------------------------------------------
    Although most of the activity relating to this matter 
occurred in the 107th Congress, there was additional activity 
during the 108th Congress. On March 10, 2003, the Committee 
noticed consideration of, ``Resolution authorizing the Chairman 
to issue subpoenas in the matter relating to the Honorable 
James M. Rosenbaum.'' After meeting with Judge Rosenbaum's 
attorneys and with the assistance of the Administrative Office 
for the United States Courts, the Committee obtained pertinent 
records, including transcripts of sentencing proceedings on a 
rolling basis over the ensuing months. The Committee is 
continuing to review the records as part of its ongoing 
investigation into Judge Rosenbaum's sentencing decisions.
            FBI employee turnover
    On February 9, 2004, the Committee sent a letter to FBI 
Director, Robert S. Mueller, III regarding the turnover of FBI 
personnel, in particular, the fact that the FBI has had four 
different Executive Assistant Directors (EAD) of 
Counterterrorism-Counterintelligence since it established the 
position in December of 2001. As the United States continues to 
fight the war on terrorism at home and abroad, it is imperative 
that the leadership of the FBI is consistent, experienced, and 
knowledgeable. Therefore, the Judiciary Committee requested 
from the FBI: the entry-exit dates of service of each 
individual who served at the rank of Executive Assistant 
Director to Special Agent in Charge since September 11, 2001, 
along with their reasons of departure and where they went; any 
difference in turnover trends from pre-9/11 to post-9/11; the 
average length of time that level GS-14 agents serve in various 
capacities; the average length of time that an agent serves as 
an investigator before entering the management career track; 
and the status and objectives of the current overhaul of the 
FBI's career development program. A response was due back from 
the FBI by March 31, 2004. On April 26, 2004, the Committee 
received a letter from the FBI's Congressional Affairs Office, 
saying that additional time would be needed to prepare material 
that was responsive to our request.
            Terrorist Explosive Device Analytical Center (TEDAC)
    Since 9/11, the Government has been examining the potential 
threats against the security of our nation, including an attack 
utilizing an improvised explosive device (IED). IEDs are 
explosives made with the right combination of common household 
materials and have the potential to kill or maim. These types 
of explosives have been used in over 90 percent of explosive 
attacks on Americans in the past five years, and investigators 
believe a global bomb-making network exists that disseminates 
instructions for creating such explosives.
    In response, the FBI established the Terrorist Explosive 
Device Analytical Center (TEDAC) in December of 2003. The 
Center works with multiple agencies to examine explosive 
devices used in attacks against Americans to identify bomb-
making networks and bomb makers. The Subcommittee requested an 
FBI briefing, and on February 27, 2004, the FBI briefed Members 
and staff on TEDAC and its operations.
            FBI's misidentification of suspected terrorist
    Numerous press reports drew attention to Brandon Mayfield, 
who was detained for two weeks as a result of an inaccurate 
fingerprint identification tied to the Madrid bombing, which 
occurred in March of 2004. Accordingly, Subcommittee staff 
requested briefings by the FBI regarding the material witness 
detainment of Mayfield. Two briefings were held jointly with 
the Committee on Government Reform and Oversight on May 5 and 
June 8, 2004. Apparently, the FBI failed to investigate the 
accuracy of the fingerprint after Spanish authorities 
questioned it weeks before Mayfield's May 6th arrest. The FBI 
further failed to examine the original fingerprint when they 
met with Spanish investigators in Madrid on April 21. On May 
21, the FBI finally compared the fingerprint to an Algerian 
national whom the Spanish investigators had identified. The 
FBI's misidentification was alarming because such 
``conclusive'' evidence is used in courts around the country to 
arrest and detain people.
            Child protection
    The FBI's Cyber Crime Division reports that online child 
pornography and sexual exploitation is the most significant 
cyber crime against children facing investigators today. Sexual 
predators are using the Internet to distribute child 
pornography and to lure youth into illicit sexual 
relationships. The FBI's Innocent Images National Initiative 
(IINI) tracks down these predators and identifies and helps 
their victims. On March 9, 2004, the Subcommittee hosted a 
briefing where IINI staff briefed Members and Staff on its 
goals and operations, the technology used to investigate these 
crimes, and recent developments in the fight to protect 
American children.
    Additionally, the Judiciary Committee received concerns, 
expressing frustration with the Department of Justice's 
distribution of the Amber Alert grants created by the PROTECT 
Act. In response, on April 21, 2004, the Committee sent the 
Attorney General a letter requesting general information about 
the Amber Alert grants. The purpose of the letter was to 
determine whether the grant program was being implemented for 
the purposes stated in the Act and whether the money was being 
fairly distributed. Chairman Sensenbrenner requested a response 
by May 21, 2004. On May 17, 2004, the Department of Justice 
sent a letter to the Chairman, stating that the April 21, 2004 
letter had been received and referred to the proper Department 
component. The Department is currently working on a response.
            Identification and employment authorization
    In a letter to the Department of Defense dated March 19, 
2004, Chairman Sensenbrenner requested that it ``undertake an 
investigation of the processes that the Department of Defense 
(DoD) uses to verify the identification and employment 
authorization of individuals seeking to enlist in the United 
States Armed Forces.'' On February 24, 2004, the Denver Post 
claimed that, at the time, the citizenship status of 16,031 
active duty members of the Army, Navy, Air Force, and Marines 
was listed as ``unknown.'' On June 23, 2004, the Assistant 
Inspector General at the DoD responded, saying that the matter 
was under the purview of the Deputy Under Secretary of Defense 
for Military Personnel Policy, an element of the Under 
Secretary of Defense for Personnel and Readiness. The DoD 
referred the inquiry accordingly and requested that the Under 
Secretary respond to the matter. On July 14, 2004, the Office 
of the Undersecretary of Defense responded with a letter and 
memorandum, noting that enlistment in the U.S. Armed Forces is 
limited by law and service policy to U.S. citizens or aliens 
lawfully permitted for permanent residency. The Department 
acknowledged inaccuracies in personnel databases and ensured 
that it had taken steps to improve its data entry and transfer 
processes. Along with two critical safeguards that had been 
implemented to improve document verification, these steps were 
outlined in the accompanying memorandum.
            Supreme Court decision in Department of Interior v. Klamath 
                    Water Users Protective Association
    On March 23, 2004, Chairman Sensenbrenner wrote a letter to 
Attorney General Ashcroft regarding the Supreme Court's 
decision in Department of Interior v. Klamath Water Users 
Protective Association, which required the government to 
disclose, under the ``Freedom of Information Act'' (FOIA), 
documents regarding settlement negotiations and communications 
with co-parties while non-governmental litigants are not 
obliged to reveal such information.
    The Chairman was concerned that the Department of Justice 
may have been compelled to publicly disclose documents 
regarding settlement negotiations or communications with co-
parties. He believed that this would place the government at a 
disadvantage vis-a-vis non-governmental parties and prejudice 
taxpayer interests because they reveal information about the 
government's negotiating position and vulnerabilities in 
litigation. To assist in his evaluation of whether to pursue 
legislation to address this matter, the Chairman requested that 
the Attorney General address several questions regarding the 
Klamath decision.
            Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) 
                    facilities oversight
    On July 16, 2003, subcommittee staff toured ATF's new 
laboratory in College Park, Maryland, and in March of 2004, 
staff returned for an arson demonstration, where they were 
briefed on ATF's role in arson investigations. On April 13, 
2004, staff from the subcommittee toured the Bureau of 
Alcohol,Tobacco, Firearms, and Explosives 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. In addition, on April 15, 2004, 
subcommittee staff and staff visited the ATF firing range. There, staff 
were briefed on ATF's mission and responsibilities and received 
instruction on appropriate protocol while on the firing range. Staff 
saw the training and firearms instruction that ATF agents receive.
            Federal sentencing guidelines and the Blakely v. Washington 
                    case
    Subcommittee staff met periodically with members and staff 
of the U.S. Sentencing Commission and the Justice Department 
during the one-year amendment cycle. In a letter dated May 11, 
2004, Subcommittee Chairman Coble forwarded to Members of the 
Judiciary Committee an April 30, 2004 correspondence from the 
United States Sentencing Commission, which conveyed amendments 
to the Federal Sentencing Guidelines. The amendments reflected 
ongoing oversight and legislative initiatives of the Judiciary 
Committee and the Subcommittee. These include implementing 
provisions included in the ``PROTECT Act,'' assuring increased 
penalties for child pornography and sexual abuse offenses.
    In 1984, Congress authorized the creation of the Federal 
Sentencing Guidelines in response to the realization that large 
sentencing disparities existed throughout the nation, as judges 
in different localities sentenced differently for very similar 
crimes. To lessen these sentencing disparities, the U.S. 
Sentencing Commission was established and charged with 
promulgating the Sentencing Guidelines to ensure and 
standardize sentences for similar crimes nationwide. After 
seventeen years, the Supreme Court called this system into 
question with its decision in Blakely v. Washington (June 24, 
2004). In Blakely, the Court applied the rule announced in 
Apprendi v. New Jersey, to invalidate, under the Sixth 
Amendment, enhanced penalties under the Washington State 
sentencing guideline system that was imposed on the basis of 
facts found by the court at sentencing.
    Judge Paul Cassell of the U.S. District Court in Utah, 
announced on June 29, 2004, that the Federal Sentencing 
Guidelines could not be applied constitutionally in a child 
pornography case. Cassell stated that he intended to continue 
to issue sentences without regard for the guidelines ``until 
the constitutionality * * * has been definitely resolved by the 
Supreme Court.'' He planned to issue a ``fallback sentence,'' 
however, to avoid re-sentencing in the event that the 
Guidelines were upheld.
    As a result, Subcommittee staff were active in preparing 
for various possible scenarios, considering what, if any 
action, Congress should take in response to possible Supreme 
Court rulings. On July 7, 2004, subcommittee staff met with 
Senate counterparts regarding judicial oversight and a possible 
legislative fix to Blakely. Similarly, on July 9, staff met 
with Senate counterparts and DoJ officials regarding the 
decision. On September 10, 2004, staff met with staff from the 
U.S. Sentencing Commission regarding the guidelines and post-
Blakely plans. On September 13, 2004, staff attended a CRS 
briefing regarding the Blakely decision and possible remedies 
and reactions that would stem from the decision and future 
Supreme Court decisions regarding the Guidelines. Lastly, on 
November 4, 2004, staff met with officials from the 
Administrative Office of the Courts regarding the decision.
    In addition, staff was in regular contact with staff from 
the U.S. Sentencing Commission to discuss periodic amendments 
to the Guidelines that were suggested by the Commission. 
Subcommittee staff met with U.S. Sentencing Commission staff on 
January 12, 21, and on May 27, 2004.
    On October 5, 2004, subcommittee staff met with ABA 
officials to discuss their concerns with a Commission amendment 
regarding corporate defendants and the waiver of attorney-
client and work product protections to show ``thorough'' 
cooperation with the government, and subsequently qualify for a 
reduction in the culpability score under the Guidelines.

U.S. Marshals Service

    From May 26-28, 2004, subcommittee staff visited the U.S. 
Marshals Service's Special Operations Group (SOG) at Camp 
Beauregard, Louisiana and reviewed the missions, capabilities, 
and equipment of the SOG. The SOG is a specially trained 
tactical unit based in Pineville, Louisiana. The SOG is 
deployed in high risk or sensitive law enforcement situations, 
national emergencies, civil disorders, and natural disasters in 
support of USMS districts and headquarters operational 
divisions or as ordered by the U.S. Attorney General. The SOG 
is staffed full-time by eight criminal investigators and three 
administrative personnel, and the SOG workforce core is 
comprised of 72 highly-trained criminal investigators who are 
activated and respond to SOG missions when necessary. The SOG 
was founded and continues to function based on operational 
necessity. Many of the SOG's supplies, weapons, vehicles, and 
equipment were obtained second-hand from other government 
agencies. The SOG staff has made great efforts to refurbish 
this equipment and suit it to their own needs, saving 
government and taxpayer dollars. The trip continued ongoing 
oversight by the Subcommittee on Crime, Terrorism, and Homeland 
Security of the U.S. Marshals Service.
    Further, news reports in April of 2004 alleged 
inappropriate behavior by the U.S. Marshals while protecting 
Supreme Court Justice Scalia. In response, staff set up 
oversight meetings with Marshals officials on April 29, 2004. 
In addition, in August of 2004, staff visited the U.S. Marshals 
Electronic Surveillance Unit to review technology and 
operations utilized in electronic surveillance for fugitive 
apprehensive. Finally, in October of 2004, the subcommittee 
requested that the Marshals provide an identity theft 
demonstration. At the briefing, Judiciary staff reviewed 
technology to detect fraudulent identification documents, 
including drivers' licenses and passports for security of 
federal buildings, borders, and national transportation.
            DEA auditor and laptop
    In a letter dated June 18, 2004, Subcommittee Chairman 
Coble asked the IG at the DoJ for information regarding an 
incident involving an Office of the Inspector General auditor 
and a laptop computer containing sensitive but unclassified 
information related to an audit of the Drug Enforcement 
Administration (DEA). The IG responded in a letter dated July 
28, 2004, providing a response to the Subcommittee's questions 
and assuring the Subcommittee that the incident had been 
thoroughly investigated and that no sensitive information was 
lost or placed into the wrong hands.
            Information sharing with State and local law enforcement
    On July 1, 2004, staff from the Subcommittee coordinated 
and participated in a briefing regarding information sharing 
with State and local law enforcement officials. The briefing 
was led by FBI Assistant Director, Louis Quijas, who discussed 
the Office of Law Enforcement Coordination (OLEC) and its role 
in ensuring optimum coordination and communication between 
federal, state, and local law enforcement agencies.
    The topic of law enforcement cooperation and information 
sharing has been frequently examined by the Committee since 9/
11 and has been the focus of hearings, legislation, and 
constituent letters. The FBI's OLEC was created to enhance 
coordination and communications between the FBI and its 
federal, state, and local law enforcement partners on a 
national level. The OLEC facilitates two-way communication, 
collaboration, and a high level of customer service. It 
supports the FBI in coordination with its law enforcement 
partners to uphold the law and protect the United States from 
criminal and terrorist activities. The OLEC serves as the FBI's 
primary liaison for the national law enforcement associations 
and represents the perspective of police and sheriffs' 
departments within the FBI. The OLEC coordinates the Director's 
Law Enforcement Advisory Group and supports the FBI's 
intelligence-sharingand technological efforts with state and 
local law enforcement.
            National Security Entry-Exit Registration System (NSEERS) 
                    and the detainment of Iranians
    On July 16, 2004, staff from the subcommittee attended a 
briefing by the Iranian American Bar Association regarding the 
detainment of Iranians in response to events of 9/11. Beginning 
in November of 2002, Iranians living in the United States were 
detained after voluntarily appearing for registration in the 
National Security Entry-Exit Registration System (NSEERS).
    One of the presenters noted that under the PATRIOT Act, 
detainees could ``be disappeared'' for seven days without 
counsel or the notification of family members. The Attorney 
General has inherent authority to detain individuals for 
immigration proceedings. Under Sec. 236 of the Immigration and 
Nationality Act, one can be detained in anticipation of 
removal, which is a civil--not a criminal-proceeding. The 
PATRIOT Act provides for a 7-day limitation, within which the 
AG must go through a certification process to ensure that 
detainees are put into proceedings within this allotted time.
            9/11 Commission Report, recommendations, and legislation
    The National Commission on Terrorist Attacks Upon the 
United States (9/11 Commission) was created in late 2002 to 
investigate and subsequently prepare a report about the 
circumstances surrounding the 9/11 attacks, including an 
assessment of the U.S. preparedness and response to the 
attacks. In addition, the Commission was to provide 
recommendations to guard against future attacks. The 9/11 
Commission released its lengthy report on July 22, 2004, 
including 41 recommendations. These recommendations prompted a 
flurry of hearings and proposed legislation.
    The Subcommittee held a hearing to discuss the report and 
recommendations on August 23, 2004. Witnesses included: Mr. 
Christopher Kojm, the Deputy Executive Director of the National 
Commission on Terrorist Attacks Upon the United States; Mr. 
John S. Pistole, the Executive Assistant Director of the 
Counterterrorim Division of the FBI; Mr. John O. Brennan, 
Director of the Terrorist Threat Integration Center; and Mr. 
Gregory T. Nojeim, the Associate Director of the American Civil 
Liberties Union. In addition to considering the Commission's 
recommendations, the hearing was consistent with the Judiciary 
Committee's ongoing oversight of the Departments of Justice and 
Homeland Security.
    The hearing specifically focused on the 9/11 Commission's 
recommendations in the following areas: the creation of a 
National Intelligence Director (NID); the tightening of U.S. 
borders; the establishment of a National Counterterrorism 
Center; the prevention of identity theft and fraud; the 
creation of a specialized and integrated national security 
workforce at the FBI; and the targeting of networks that 
provide material support to terrorists. Additionally, the 
hearing provided the DoJ and the Director of the Terrorist 
Threat Integration Center (TTIC) an opportunity to discuss the
9/11 Commission recommendations that had already been, or were 
in the process of being, implemented.
            Violence against women
    The Committee sent a letter to the DoJ in support of the 
federal Judicial Oversight Demonstration Initiative (JODI) to 
the Office on Violence Against Women for continuation funding. 
In response, DoJ sent a letter to the Committee on August 19, 
2004, indicating that the Office of Violence Against Women 
would provide each of the three Federal Judicial Oversight 
Demonstration Initiatives (JODI) sites with limited support for 
an additional year, as the JODI was scheduled to end in Fiscal 
Year 2004. After 2005, however, each JODI site will be eligible 
to compete for a grant through the Fiscal Year 2005 Grants to 
Encourage Arrest Policies and Enforcement of Protection Orders 
Grant Program.
            Federal Air Marshals Service (FAMS)
    On September 28, 2004, the Committee sent a letter to 
Thomas D. Quinn, Director of the Federal Air Marshals Service 
(FAMS) regarding alleged security gaps in air travel. In their 
letter, they asked the FAMS to respond to a number of detailed 
questions by October 15, 2004. On October 20, 2004, Director 
Quinn responded with 29 pages of information and several 
classified secret documents, which were placed in a separate 
folder. Committee staff has reviewed this material, and these 
issues are an ongoing oversight issue.
      SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS \1\

   JOHN N. HOSTETTLER, Indiana, 
             Chairman

SHEILA JACKSON LEE, Texas            JEFF FLAKE, Arizona
LINDA T. SANCHEZ, California         MARSHA BLACKBURN, Tennessee
ZOE LOFGREN, California              LAMAR S. SMITH, Texas
HOWARD L. BERMAN, California         ELTON GALLEGLY, California
JOHN CONYERS, Jr., Michigan          CHRIS CANNON, Utah
                                     STEVE KING, Iowa
                                     MELISSA A. HART, Pennsylvania

----------
\1\ Subcommittee chairmanship and assignments approved February 12, 
2003.

Tabulation of subcommittee legislation and activity

Public:
    Legislation referred to the Subcommittee......................   226
    Legislation on which hearings were held.......................     8
    Legislation reported favorably to the full Committee..........     4
    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..................     6
    Legislation pending before the full Committee.................     0
    Legislation reported to the House.............................     9
    Legislation discharged from the Committee.....................     2
    Legislation pending in the House..............................     2
    Legislation passed by the House...............................    12
    Legislation pending in the Senate.............................     4
    Legislation vetoed by the President (not overridden)..........     0
    Legislation enacted into Public Law...........................     8
    Days of legislative hearings..................................     3
    Days of oversight hearings....................................    22
Private:
    Claims:
        Legislation referred to the Subcommittee..................    16
        Legislation on which hearings were held...................     0
        Legislation reported favorably to the full Committee......     2
        Legislation pending before the full Committee.............     1
        Legislation reported to the House.........................     1
        Legislation discharged from the Committee.................     0
        Legislation pending in the House..........................     1
        Legislation passed by the House...........................     1
        Legislation pending in the Senate.........................     0
        Legislation enacted into Private Law......................     1
    Immigration:
        Legislation referred to the Subcommittee..................    77
        Legislation on which hearings were held...................     0
        Legislation reported favorably to the full Committee......     4
        Legislation pending before the full Committee.............     0
        Legislation reported to the House.........................     4
        Legislation discharged from the Committee.................     0
        Legislation pending in the House..........................     0
        Legislation passed by the House...........................     4
        Legislation pending in the Senate.........................     0
        Legislation enacted into Private Law......................     4

                    Jurisdiction of the Subcommittee

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

                         Legislative Activities


                              IMMIGRATION

H.R. 2152, Extending the Special Immigrant Religious Worker Program

    Summary.--``Special immigrant'' visas (9,940 each year) are 
available for a number of different categories of aliens. One 
such category is religious workers. An alien (along with spouse 
and children) can qualify for a special religious worker visa 
if the alien has been a member for the immediately preceding 
two years of a religious denomination having a bona fide 
nonprofit, religious organization in the United States and 
seeks to enter the United States to (1) serve as a minister, 
(2) serve in a professional capacity in a religious vocation or 
occupation at the request of the organization, or (3) serve in 
a religious vocation or occupation at the request of the 
organization, and in each case has been carrying out such work 
continuously for at least the prior two years. The two non-
minister categories are limited to 5,000 visas a year and were 
set to sunset on October 1, 2003. H.R. 2152 extends the sunset 
date to October 1, 2008.
    Legislative History.--On May 19, 2003, Representative 
Barney Frank introduced H.R. 2152. On July 15, 2003, the 
Subcommittee on Immigration, Border Security and Claims ordered 
H.R. 2152 reported to the Judiciary Committee by a voice vote. 
On September 10, 2003, the Judiciary Committee ordered H.R. 
2152 reported by a voice vote. On September 16, 2003, the 
Judiciary Committee reported H.R. 2152 (H. Rept. No. 108-271). 
On September 17, 2003, the House passed H.R. 2152 under 
suspension of the rules by a voice vote. On October 3, 2003, 
the Senate passed H.R. 2152 by unanimous consent. On October 
15, 2003, the President signed H.R. 2152 into law (Public Law 
No. 108-99).

Naturalization through service in the Armed Forces

    Summary.--After learning that 10 members of our Armed 
Forces who died in combat during ``Operation Iraqi Freedom'' 
were not United States citizens, Congress acted to ease 
thenaturalization requirements of legal permanent residents in the 
armed services and provided immigration benefits to surviving family 
members of those killed in service to America. Public Law No. 108-136:
     Reduces the peace time military service 
requirement from three years to one year before a lawful 
permanent resident military member may apply for naturalization 
without having to have met the requirement of five years 
continuous residence in the U.S.
     Prohibits fees from being charged to military 
members applying for naturalization or a certificate of 
naturalization, including full or partial State charges for 
State documents that support an application for naturalization, 
such as criminal disposition documents.
     For alien military members who naturalize using 
expedited procedures, the legislation permits the revocation of 
citizenship for separation from military service under other 
than honorable conditions. Because active-duty and certain 
other military members may apply for naturalization during a 
named period of hostilities without having met any requirement 
of continuous residence in the U.S., prior law provided that 
such military members may have their naturalization revoked if, 
at any time subsequent to naturalization, the persons are 
separated from the military under other than honorable 
conditions. The legislation provides that such military members 
may have their naturalization revoked only if the person had 
not served honorably in the military for a period or periods 
aggregating five years. Since the legislation lowers the peace 
time military service requirement from three years to one year 
before a lawful permanent resident military member may apply 
for naturalization without having met any requirement of 
continuous residence in the U.S., the legislation also provides 
that such military members may have their naturalization 
revoked if they are separated from the military under other 
than honorable conditions and had not served honorably in the 
military for a period or periods aggregating five years.
     The Departments of Homeland Security, State, and 
Defense must make available naturalization applications, 
interviews, filings, oaths, and ceremonies through United 
States embassies, consulates, and as practicable, U.S. military 
installations overseas.
     Under prior law, active-duty military members 
could apply for naturalization during a named period of 
hostilities without having met any requirement of continuous 
residence in the U.S. The legislation extends this privilege to 
members of the Selected Reserve of the Ready Reserve.
     Spouses, children, and parents of U.S. citizens 
who served honorably in active duty status and died as a result 
of injury or disease incurred in or aggravated by combat, may 
retain their status as immediate relatives for purposes of 
receiving immigration benefits.
     An alien who was the spouse, child, or parent of 
an alien who served honorably in active duty, died as a result 
of injury or disease incurred in or aggravated by combat and 
was granted posthumous citizenship, shall be considered 
immediate relatives of a U.S. citizen for the purpose of 
receiving immigration benefits (regardless of whether the 
service member had previously petitioned for family-sponsored 
immigrant status for them).
     The public charge ground of inadmissibility is 
waived for aliens seeking such posthumous immigration benefits.
     Under prior law, the surviving spouse of a U.S. 
citizen who died during a period of honorable service in active 
duty could naturalize without having met any requirement of 
continuous residence in the U.S. The legislation extends this 
privilege to surviving spouses of military members granted 
posthumous citizenship.
    Legislative History.--On May 6, 2003, Chairman F. James 
Sensenbrenner, Jr., introduced H.R. 1954. On May 7, 2003, the 
Judiciary Committee ordered H.R. 1954 reported as amended by a 
voice vote. On May 19, 2003, the Judiciary Committee reported 
H.R. 1954 (H. Rept. No. 108-111). On June 4, 2003, the House 
passed H.R. 1954 under suspension of the rules by a vote of 
414-5. On June 12, 2003, the Senate Judiciary Committee ordered 
H.R. 1954 reported to the Senate with an amendment in the 
nature of a substitute. On November 24, 2003, the President 
signed into law H.R. 1588, the National Defense Authorization 
Act for Fiscal Year 2004 (Public Law No. 108-136), 
Sec. Sec. 1701-05 of which contained language representing a 
compromise between the House and Senate versions of H.R. 1954.

H.R. 2620, the ``Trafficking Victims Protection Reauthorization Act of 
        2003''

    Summary of Immigration Provisions.--The Trafficking Victims 
Protection Act of 2000 created a new nonimmigrant ``T'' visa 
for persons who: (1) are victims of severe forms of trafficking 
in persons (sex trafficking in which a commercial sex act is 
induced by force, fraud, or coercion, or in which the person 
induced to perform such acts has not attained 18 years of age, 
or the recruitment, harboring, transportation, provision, or 
obtaining of a person for labor or services, through the use of 
force, fraud, or coercion for the purpose of subjection to 
involuntary servitude, peonage, debt bondage, or slavery), (2) 
are in the U.S. or at a U.S. port of entry on account of such 
trafficking, (3) have complied with any reasonable request for 
assistance in the investigation or prosecution of acts of 
trafficking or have not attained 15 years of age, and (4) would 
suffer extreme hardship involving unusual and severe harm upon 
removal from the U.S. The TVPA also permitted the Department of 
Homeland Security to grant a T visa, if necessary to avoid 
extreme hardship, to the victim's spouse, children, and parents 
if the victim is under 21 years of age, and the victim's spouse 
and children if the victim is 21 years of age or older. The Act 
precluded anyone from receiving a T visa if there was 
substantial reason to believe that the person had committed an 
act of a severe form of trafficking in persons. It also placed 
an annual cap of 5,000 on T visas for trafficking victims and 
permitted DHS to waive certain grounds of inadmissibility. The 
TVPA permitted DHS to adjust the status of a T visa holder to 
that of a permanent resident if the alien: (1) has been 
physically present in the U.S. for a continuous period of at 
least three years since the date of admission, (2) has 
throughout such period been a person of good moral character, 
and (3) has, during such period, complied with any reasonable 
request for assistance in the investigation or prosecution of 
acts of trafficking, or would suffer extreme hardship involving 
unusual and severe harm upon removal from the U.S. It also 
permitted DHS to adjust the status of the victim's spouse, 
parent, or child, if admitted with a T visa, to that of an 
alien lawfully admitted for permanent residence. An annual cap 
of 5,000 was placed on adjustments of status for trafficking 
victims.
    H.R. 2620 made the following modifications to the 
immigration provisions of the TVPA:
     Aliens can qualify for T visas by cooperating with 
state and local law enforcement agencies as well as federal 
agencies.
     The age of aliens who can receive T visas without 
cooperating with law enforcement authorities was raised from 
under 15 years of age to under 18 years of age.
     If an alien receiving a T visa is under 21, 
unmarried siblings under 18 would have been added to the list 
of family members who can also receive T visas (and 
subsequently permanent residence).
     The public charge ground of inadmissibility will 
not apply to aliens seeking T visas.
    Legislative History.--On June 26, 2003, Representative 
Christopher H. Smith introduced H.R. 2620. The Committees on 
International Relations and the Judiciary received referrals on 
H.R. 2620 on June 26, 2003. On September 22, 2003 the 
Subcommittee on Immigration and Claims was discharged from 
further consideration of the bill. H.R. 2620 was marked up and 
reported by the Judiciary Committee on September 24, 2003 with 
an amendment, by a voice vote. (H. Rept. 108-264, Part II) The 
Committee on International Relations also filed a report on 
September 5, 2003. (H. Rept. No. 108-264, Part I) The Senate 
passed H.R. 2620 on December 9, 2003, without amendment, by 
unanimous consent. The President signed H.R. 2620 on December 
19, 2003 and the bill became Public Law No. 108-193.

S. 1685, Extending and Expanding the Basic Pilot Program for Employment 
        Eligibility Verification

    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.
    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 four years. Under the ``basic pilot 
program,'' the proffered Social Security numbers and alien 
identification numbers of new hires would be checked against 
Social Security Administration and Immigration and 
Naturalization Service records in order to weed out fraudulent 
numbers and thus to ensure that new hires are genuinely 
eligible to work.
    The basic pilot program was commenced in November 1997 and 
was set to expire in November 2001. Public Law 107-128 extended 
its operation through November 2003. The program was required 
to operate in, at a minimum, 5 of the 7 states with the highest 
estimated population of illegal aliens.
    IIRIRA required the INS to submit a report on the basic 
pilot program after the end of the third and fourth years the 
program was in effect. The report found that ``an overwhelming 
majority of employers participating found the basic pilot 
program to be an effective and reliable tool for employment 
verification''--96% of employers found it to be an effective 
tool for employment verification; and 94% of employers believed 
it to be more reliable than the IRCA-required document check. 
The report found that 64% of employers agreed that the number 
of unauthorized workers who applied for jobs decreased when the 
basic pilot system was used. ``[E]mployees were largely 
satisfied with the services provided by INS and the Social 
Security Administration.'' Of the employees who contacted local 
SSA or INS offices as part of the verification process, 95% who 
visited SSA offices said that their work authorization problem 
was resolved in a timely, courteous, and efficient manner, as 
did 90% who visited INS offices.
    The report found that the ``Social Security Administration 
and INS are currently capable of handling either of the 
voluntary programs described here [a voluntary program open to 
employers nationwide or an enhanced voluntary program in 
selected states], or some other program of limited scope.'' 
However, it recommended against ``a mandatory or large-scale 
program.''
    S. 1685 extends operation of the pilot programs for an 
additional 5 years and requires that it be made available to 
employers nationwide no later than December 1, 2004. The bill 
also extends the regional center pilot program of the fifth 
employer preference ``investor visa'' program. To encourage 
economic development through the immigrant investor visa 
program, Congress created a five year temporary pilot program 
in 1993 that set aside 3,000 immigrant visas each year for 
aliens who invested at least $500,000 in ``designated regional 
centers.'' A regional center is ``any economic unit, public or 
private, which is involved with the promotion of economic 
growth, including increased export sales, improved regional 
productivity, job creation, or increased domestic capital 
investment.'' The bill extends the pilot program through 
September 2008 and allows DHS to process investor visa 
petitions involving regional centers expeditiously as compared 
to non pilot program investor visa petitions. Finally, the bill 
required GAO to conduct a study of the investor visa program.
    Legislative History.--On June 5, 2003, Representative Ken 
Calvert introduced H.R. 2359. On September 24, 2003, the 
Judiciary Committee ordered H.R. 2359 reported with an 
amendment by a vote of 18-8. On October 7, 2003, the Judiciary 
Committee reported H.R. 2359 to the House (H. Rept. No. 108-
304, Part I). On October 28, 2003, the Judiciary Committee 
filed a supplemental report on H.R. 2359 (H. Rept. No. 108-304, 
Part II). On the same date, the House failed to pass H.R. 2359 
under suspension of the rules by a vote of 231-170 (a two-
thirds vote being required). On September 30, 2003, Senator 
Charles Grassley introduced S. 1685. On November 6, 2003 the 
Senate Judiciary Committee ordered S. 1685 reported to the 
Senate with an amendment in the nature of a substitute, and 
reported the bill without a written report. On November 12, 
2003, the Senate passed S. 1685 as amended by unanimous 
consent. On November 19, 2003, the House passed S. 1685 under 
suspension of the rules by a voice vote. On December 3, 2003, 
the President signed S. 1685 into law (Public Law No. 108-156).

H.R. 4417, Modifying Certain Deadlines Pertaining to Machine-Readable, 
        Tamper-Resistant Entry and Exit Documents

    Summary.--The visa waiver program allows tourists from low-
risk nations to visit the United States without having to first 
procure visas. The program facilitates more than ten million 
foreign visits to the U.S. each year. However, allowing aliens 
to come to the U.S. without first being interviewed for visas 
poses certain risks. Thus, the Enhanced Border Security and 
Visa Entry Reform Act in 2002 required that countries wishing 
to participate in the visa waiver program begin to issue 
passports with biometric features. These high-security 
passports will ensure that their bearers are the individuals to 
whom they were issued and will be harder to alter or 
counterfeit than conventional passports.
    The Enhanced Border Security and Visa Entry Reform Act 
established an October 26, 2004, deadline by which countries 
participating in the visa waiver program had to begin issuing 
biometric passports. Nationals of visa waiver countries wanting 
to enter the U.S. pursuant to the program who had passports 
issued after this date would also have to present biometric 
passports. While some countries would have been able to meet 
the October deadline, many others would not. Our embassies 
would not be able to handle the sudden rush of applicants, and 
tourism to the U.S. could be seriously disrupted. H.R. 4417 
extends the deadline to October 26, 2005. This prevented a 
severe disruption to international tourism to the U.S. However, 
by keeping a strict October 2005 deadline, the bill will keep 
the necessary pressure on those countries who have 
unfortunately been slow to add biometrics.
    Legislative History.--On May 20, 2004, Chairman F. James 
Sensenbrenner, Jr., introduced H.R. 4417. On June 14, 2004, the 
House passed H.R. 4417 under suspension of the rules by a voice 
vote. On July 22, 2004, the Senate passed H.R. 4417 by 
unanimous consent. On August 9, 2004, the President signed H.R. 
4417 into law (Public Law No. 108-299).

H.R. 4011, the ``North Korean Human Rights Act of 2004''

    Summary of Immigration Provisions.--The legislation 
reiterates that North Koreans who have not availed themselves 
of the right to South Korean citizenship are eligible to be 
considered as refugees and asylees, and directs the Secretary 
of State to facilitate the submission of refugee applications 
by North Koreans and to report to Congress on how the Secretary 
has done so.
    Legislative History.--On March 23, 2004, Representative 
James Leach introduced H.R. 4011. On March 31, 2004, the 
Committee on International Relations ordered H.R. 4011 reported 
as amended by unanimous consent. On May 4, 2004, the Committee 
on International Relations reported H.R. 4011 (H. Rept. No.108-
478, Part I). On July 16, 2004, the Judiciary Committee was 
discharged from further consideration of H.R. 4011. On July 21, 
2004, the House passed H.R. 4011 under suspension of the rules 
by a voice vote. On September 28, 2004, the Senate passed H.R. 
4011 by unanimous consent. On October 4, 2004, the House passed 
H.R. 4011 (as amended by the Senate) under suspension of the 
rules by a voice vote. On October 18, 2004, the President 
signed H.R. 4011 into law (Public Law No. 108-333).

H.R. 4306, Amending the Immigration and Nationality Act to Improve the 
        Process for Verifying an Individual's Eligibility for 
        Employment

    Summary.--All employers in the United States are required 
to complete and retain an Employment Eligibility Verification 
Form (Form I-9) for each individual they hire for employment. 
On the form, the employer must identify the documents presented 
by the employee to establish identity and employment 
authorization and verify that the employer has reviewed those 
documents. The form is not filed with the government, but 
instead the employer must keep the I-9 in paper form or on 
microfiche or microfilm, either for three years after the date 
of hire or for one year after employment is terminated, 
whichever is later. The form must be made available for 
inspection by federal officials from U.S. Immigration and 
Customs Enforcement, the Justice Department's Civil Rights 
Division, and the Department of Labor. Government officials who 
want to inspect those documents must provide the employer with 
three business days' notice of such inspection. The documents 
must be made available for inspection either at the place where 
the request was made or elsewhere if the employer and 
government officials agree.
    H.R. 4306 allows employers to electronically complete and 
store I-9 forms. This will facilitate employer preparation and 
storage and government inspection of those documents.
    Legislative History.--On May 6, 2004, Representative Chris 
Cannon introduced H.R. 4306. On September 14, 2004, the 
Subcommittee on Immigration, Border Security and Claims 
reported the bill to the Judiciary Committee as amended by a 
voice vote. On September 30, 2004, the Judiciary Committee 
ordered H.R. 4306 reported by a voice vote. On October 5, 2004, 
the Judiciary Committee reported H.R. 4306 (H. Rept. No. 108-
731). On October 6, 2004, the House passed H.R. 4306 under 
suspension of the rules by a voice vote. On October 11, 2004, 
the Senate passed H.R. 4306 by unanimous consent. On October 
30, 2004, the President signed H.R. 4306 into law (Public Law 
No. 108-390).

S. 2302, Improving Access to Physicians in Medically Underserved Areas

    Summary.--Aliens who participate in medical residencies in 
the United States on ``J'' exchange program visas must 
generally leave the U.S. at the conclusion of their residencies 
to reside abroad for two years before they can be eligible for 
permanent residence or status as ``H-1B'' or ``L'' visa 
nonimmigrants. The intent behind this policy is to encourage 
American-trained foreign doctors to return home to improve 
health conditions and advance the medical profession in their 
native countries. In 1994, Congress created a waiver (until 
June 1, 1996) of the two-year foreign residence requirement 
when requested by state departments of public health for 
foreign doctors who commit to practicing medicine for no less 
than three years in a geographic area or areas designated by 
the Secretary of Health and Human Services as having a shortage 
of health care professionals. The number of foreign doctors who 
could receive the waiver was limited to 20 per state. In 1996, 
Congress extended the waiver to June 1, 2002. In 2002, Congress 
extended the waiver until June 1, 2004. At the same time, the 
numerical limitation on waivers was increased to 30 per state.
    S. 2302 extends the waiver until June 1, 2006. The bill 
also continues the practice of allowing foreign doctors 
receiving a waiver to receive H-1B nonimmigrant status 
regardless of the annual H-1B visa quota (whether they are 
sponsored by a state or federal agency). It allows foreign 
doctors receiving a waiver to work in medically-underserved 
areas in either primary care or specialty medicine. The bill 
allows five of each state's 30 waivers to go to doctors who 
would practice medicine in areas not designated by the 
Secretary of Health and Human Services as having a shortage of 
health care professionals, if the doctors receiving the waivers 
would practice in facilities that serve patients who reside in 
areas designated by the Secretary as having a shortage of 
health care professionals. Finally, where a physician seeking a 
waiver will practice specialty medicine, there must be a 
shortage of health care professionals able to provide services 
in the specialty to the patients who will be served by the 
physican.
    Legislative History.--On April 7, 2004, Senator Kent Conrad 
introduced S. 2302. On May 20, 2004, Representative Jerry Moran 
introduced H.R. 4453, the Access to Rural Physicians 
Improvement Act of 2004. On June 3, 2004, the House 
Subcommittee on Immigration, Border Security and Claims 
reported H.R. 4453 to the Judiciary Committee by a voice vote. 
On September 30, 2004, the House Judiciary Committee ordered 
H.R. 4453 reported as amended by a voice vote. On October 5, 
2004, the House Judiciary Committee reported H.R. 4453 (H. 
Rept. No. 108-730). On October 6, 2004, the House passed H.R. 
4453 under suspension of the rules by a voice vote. On October 
7, 2004, the Senate Judiciary Committee ordered S. 2302 
reported as amended to the Senate and reported the bill without 
a written report. On October 11, 2004, the Senate passed S. 
2302 by unanimous consent. On November 17, 2004, the House 
passed S. 2302 under suspension of the rules by a vote of 407-
4. On December 3, 2004, the President signed S. 2302 into law 
(Public Law No. 108-441).

L-1 Visa and H-1B Visa Reform Act

    Summary.--The H-1B Visa Program. ``H-1B'' visas are 
available for workers coming temporarily to the United States 
to perform services in a specialty occupation. Such 
anoccupation is one that requires ``theoretical and practical 
application of a body of highly specialized knowledge, and attainment 
of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United 
States.''
    The Immigration Act of 1990 set a 65,000 annual cap on H-1B 
visas. The American Competitiveness and Workforce Improvement 
Act of 1998 increased the cap to 115,000 in 1999 and 2000 and 
107,500 in 2001, after which the cap would revert to 65,000. 
The American Competitiveness in the Twenty-First Century Act of 
2000 increased the cap to 195,000 in 2001 through 2003, after 
which it reverted back to 65,000. AC21 also provided that 
aliens who are employed at institutions of higher education or 
at nonprofit or governmental research organizations do not 
count against the cap and are not limited by the cap.
    Because of the need of employers to bring H-1B aliens on 
board in the shortest possible time, the H-1B program's 
mechanism for protecting American workers is not a lengthy pre-
arrival review of the availability of suitable American workers 
(such as the labor certification process necessary to obtain 
most employer-sponsored immigrant visas). Instead, an employer 
files a ``labor condition application'' with the Department of 
Labor making certain basic attestations (promises) and the 
Department then investigates complaints alleging noncompliance.
    There are six attestations a petitioning employer must 
make:
     The employer will pay H-1B aliens wages that are 
the higher of the actual wage level paid by the employer to all 
other individuals with similar experience and qualifications 
for the specific employment in question or the prevailing wage 
level for the occupational classification in the area of 
employment, and the employer will provide working conditions 
for H-1B aliens that will not adversely affect those of workers 
similarly employed. Pursuant to ACWIA, an employer must offer 
an H-1B alien benefits and eligibility for benefits on the same 
basis, and in accordance with the same criteria, as the 
employer offers to American workers, and universities and 
certain other employers only have to pay the prevailing wage 
level of employees at similar institutions.
     There is no strike or lockout in the course of a 
labor dispute in the occupational classification at the place 
of employment.
     At the time of the filing of the application, the 
employer has provided notice of the filing to the bargaining 
representative of the employer's employees in the occupational 
classification and area for which the H-1B aliens are sought, 
or if there is no such bargaining representative, the employer 
has posted notice in conspicuous locations at the place of 
employment.
     The application will contain a specification of 
the number of aliens sought, the occupational classification in 
which the aliens will be employed, and the wage rate and 
conditions under which they will be employed.
     Pursuant to ACWIA, two attestations--the no-lay 
off attestation and the recruitment attestation--apply to ``H-
1B dependent employers'' (generally 15% or more of whose 
workforces are composed of H-1B aliens) and to employers who 
have been found to have wilfully violated the rules of the H-1B 
program. The H-1B dependent employers (+15%) are subject to 
these attestations in those instances where they petition for 
aliens without masters degrees in their specialties or who will 
not be paid at least $60,000 a year. These two attestations 
expired at the end of fiscal year 2003. The no-lay off 
attestation prohibits an employer from laying off an American 
worker from a job that is essentially the equivalent of the job 
for which an H-1B alien is sought (involves essentially the 
same responsibilities, was held by a United States worker with 
substantially equivalent qualifications and experience, and is 
located in the same areas of employment) during the period 
beginning 90 days before and ending 90 days after the employer 
files a visa petition for the alien. The recruitment 
attestation requires an employer to have taken good faith steps 
to recruit American workers (using industry-wide standards) for 
the job an H-1B alien will perform and to offer the job to any 
American worker who applies and is equally or better qualified 
than the alien.
    Departmental investigations as to whether an employer has 
failed to fulfill its attestations or has misrepresented 
material facts in its application are triggered by complaints 
filed by aggrieved persons or organizations (including 
bargaining representatives). Investigations can be conducted 
where there is reasonable cause to believe that a violation has 
occurred. Pursuant to ACWIA, the Labor Department can 
investigate an employer using the H-1B program without having 
received a complaint from an aggrieved party in certain 
circumstances where it receives specific credible information 
that provides reasonable cause to believe that the employer has 
committed a willful failure to meet conditions of the H-1B 
program, has shown a pattern or practice of failing to meet the 
conditions, or has substantially failed to meet the conditions 
in a way that affects multiple employees. In addition, ACWIA 
allows the Labor Department to subject an employer to random 
investigations for up to five years after the employer is found 
to have committed a willful failure to meet the conditions of 
the H-1B program.
    The Labor Department enforces all aspects of the program 
except in instances where an American worker claims that he 
should have been offered a job instead of an H-1B alien. In 
such cases, an arbitrator appointed by the Federal Mediation 
and Conciliation Service will decide the issue.
    An employer is subject to penalties for failing to fulfill 
the attestations and for making a misrepresentation of material 
fact in an application. Potential penalties include back pay, 
civil monetary penalties of up to $1,000 per violation (up to 
$5,000 per willful violation, and up to $35,000 per violation 
where a willful violation was committed along with the improper 
layoff of an American worker), and debarment from the H-1B 
program for from one to three years. Whistleblower protection 
is provided to employees.
    ACWIA established a $500 fee per alien for all employers 
except universities and certain other institutions. The funds 
go principally for scholarship assistance for low-income 
students studying mathematics, computer science, or 
engineering, for federal job training services, and for 
administrative and enforcement expenses. The fee was raised to 
$1,000 in 2000, and primary and secondary school employers were 
exempted. The fee expired at the end of fiscal year 2003.
    The L Visa Program. L visas are available for 
``intracompany transferees''--they allow employees working at a 
company's overseas branch to be shifted to the company's 
worksite in the United States. 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 one year (or for six months in certain 
circumstances) by a firm or an affiliate or subsidiary 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 in a capacity that is managerial, 
executive, or involves specialized knowledge.
    ``Specialized knowledge'' with respect to a company is 
special knowledge of the company product and its application in 
international markets or an advanced level of knowledge of 
processes and procedures of the company.
    The visas are good for up to five years for aliens admitted 
to render services in a capacity that involves specialized 
knowledge and for up to seven 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 and to reduce adjudicatory 
costs, ``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 one 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. 
Individual aliens seeking visas to work for the company simply 
have to go to a U.S. consular office abroad and show that the 
job they will be employed in qualifies for the L visa program 
and that they are qualified for the job.
            The L-1 Visa and H-1B Visa Reform Act
    As to L visas:
     An alien who will serve in a capacity involving 
specialized knowledge of his employer and who will be stationed 
primarily at the worksite of another employer shall not be 
eligible for L visa status if he will be controlled and 
supervised principally by the other employer or the placement 
of the alien at the worksite of the other employer is 
essentially an arrangement to provide labor for hire, rather 
than a placement in connection with the provision of a product 
or service for which specialized knowledge of the petitioning 
employer is necessary.
     The continuous service requirement for an employee 
shall be one year uniformly.
     The Department of Homeland Security will maintain 
certain statistics regarding usage of the L visa program.
     The Inspector General of DHS shall investigate the 
vulnerabilities and potential abuses of the L visa program. 
Then, an L Visa Interagency Task Force shall review and seek to 
implement the recommendations of the Inspector General.
     A new fraud prevention and detection fee of $500 
will be assessed against employers for each alien receiving L 
visa status. One-third of the fee receipts will be provided to 
the Secretary of State for programs and activities at U.S. 
embassies and consulates abroad to prevent and detect H-1B and 
L visa fraud. One-third of the fee receipts will be provided to 
the Secretary of Homeland Security for the same purposes. One 
third of the fee receipts will be provided to the Secretary of 
Labor to assist enforcing the H-1B program.
    As to H-1B visas:
     The $1,000 fee is permanently reauthorized and 
increased to $1,500 (except that it shall be $750 for each 
petition by an employer with no more than 25 full-time 
equivalent employees in the U.S.). Certain changes will be made 
to the percentage of fee receipts provided to various 
recipients and to the purposes for which the receipts shall be 
utilized.
     The no-lay off attestation and the recruitment 
attestation are permanently reauthorized.
     The prevailing wage required to be paid to an H-1B 
worker shall be 100% of the wage determined as the prevailing 
wage (prior regulations called for the payment of 95%). In 
addition, where the Secretary of Labor uses a governmental 
survey to determine the prevailing wage, such survey shall 
provide at least four levels of wages commensurate with 
experience, education, and the level of supervision.
     The Secretary of Labor's investigative authority 
is expanded in that the Secretary may initiate an investigation 
of any employer of H-1B aliens if the Secretary has reasonable 
cause to believe that the employer is not in compliance with 
the H-1B program requirements.
     An employer is considered to have complied with 
the H-1B program requirements, notwithstanding a technical or 
procedural failure to meet such requirements, if there was a 
good faith attempt to comply. However, this will not apply if 
the Department of Labor has explained the basis for the 
failure, and the employer has not corrected the failure 
voluntarily within 10 business days, or if the employer has 
engaged in a pattern or practice of willful violations of the 
H-1B program requirements.
     An employer that is found to have violated the H-
1B program's prevailing wage requirements shall not be assessed 
fines or other penalties if the manner in which the employer 
calculated the prevailing wage was consistent with recognized 
industry standards and practices, unless the employer has 
engaged in a pattern or practice of willful violations of the 
H-1B program requirements.
     Aliens who have earned master's or higher degrees 
from U.S. institutions of higher education will not count 
against the annual H-1B cap and are not limited by the cap, 
until the number of such aliens during a fiscal year exceeds 
20,000.
     A new fraud prevention and detection fee of $500 
will be assessed against employers for each alien receiving H-
1B visa status, as with the L visa program.
    Legislative History.--On December 8, 2004, the President 
signed H.R. 4818, the Consolidated Appropriations Act, 2005, 
into law (Public Law No. 108-447). Title IV of Division J of 
the Act contains the L-1 Visa and H-1B Visa Reform Act.

H.R. 2655, Amending the Irish Peace Process Cultural and Training 
        Program Act of 1998

    Summary.--In 1998, the Irish Peace Process Cultural and 
Training Program Act was enacted. The purpose of the program 
was to allow adults between the ages of 18 and 35 years old who 
lived in disadvantaged areas of Northern Ireland and designated 
border counties of Ireland that were 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 could return to their homes better able to contribute 
toward economic regeneration and the Irish peace process. Up to 
4,000 qualifying aliens (and their spouses and minor children) 
could be admitted each year and they could stay in the U.S. for 
up to three years. The program was set to sunset on October 1, 
2005. In the 107th Congress, the program was extended until 
October 1, 2006.
    H.R. 2655 extends the program for another two years until 
October 1, 2008. It also makes a number of changes to the 
program. These changes are mainly designed to ensure that the 
aliens granted admission are those truly economically 
disadvantaged young adults the program was designed to help. 
These changes include requirements that the program 
participants be citizens of the United Kingdom or the Republic 
of Ireland, not have degrees from highereducation institutions, 
be at least 21 years of age, and have been unemployed for at least one 
year and resident in Northern Ireland or the designated border counties 
for at least 18 months.
    The bill also makes changes to the program to help ensure 
that the aliens return to Ireland to foster economic 
development and peace. The bill reduces the duration of the 
visa term from three years to two years. The bill also requires 
that aliens admitted under the program return home for two 
years before they can apply for an immigrant visa, permanent 
residence, or another nonimmigrant visa. The Secretary of 
Homeland Security may waive this requirement if departure from 
the U.S. would impose exceptional hardship upon the alien's 
U.S. citizen or permanent resident spouse or child, or the 
admission of the alien is in the public or national interest of 
the U.S.
    Legislative History.--On June 26, 2003, Representative 
James Walsh introduced H.R. 2655. On July 25, 2003, the 
Judiciary Committee ordered H.R. 2655 reported by a voice vote. 
On September 4, 2003, the Judiciary Committee reported H.R. 
2655 (H. Rept. No. 108-260, Part I). On October 7, 2003, the 
House passed H.R. 2655 under suspension of the rules by a voice 
vote. On November 19, 2004, the Senate passed H.R. 2655 with an 
amendment by unanimous consent. On November 20, 2004, the House 
passed H.R. 2655 (as amended by the Senate) by unanimous 
consent. On December 10, 2004, the President signed H.R. 2655 
into law (Public Law No. 108-449).

             LEGISLATION PASSED BY THE JUDICIARY COMMITTEE

H.R. 775, the ``Security and Fairness Enhancement for America Act of 
        2003''

    Summary.--The diversity visa program was designed to 
provide nationals of countries with low levels of immigration 
to the United States the opportunity to apply for immigrant 
visas. The program is also called the ``visa lottery'' because 
the winners are determined through a computer-generated random 
drawing. In 2004, 10 million applications were submitted. 
Between 90,000 and 110,000 lottery ``winners'' are selected, 
who apply for 50,000 available visas. H.R. 775 would have 
terminated the diversity program because of a variety of 
complaints about it.
    Legislative History.--On February 13, 2003, Representative 
Bob Goodlatte introduced H.R. 775. On September 14, 2004, the 
Subcommittee on Immigration, Border Security and Claims 
reported H.R. 775 to the Judiciary Committee by a vote of 5-3. 
On September 30, 2004, the Judiciary Committee ordered H.R. 775 
reported by a vote of 18-8. On October 6, 2004, the Judiciary 
Committee reported H.R. 775 (H. Rept. No. 108-747). No further 
action was taken on H.R. 775.

                            FEDERAL CHARTERS

Subcommittee policy on new Federal charters

    On March 6, 2003, the Subcommittee on Immigration, Border 
Security, 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.

                             Private Bills

    During the 108th Congress, the Subcommittee on Immigration, 
Border Security and Claims received referral of 28 private 
claims bills, 1 private claims resolution, and 72 private 
immigration bills. The Subcommittee held no hearings on these 
bills. The Subcommittee recommended one private claims bill, 
one private claims resolution, and 4 private immigration bills 
to the full Committee. The Committee ordered 1 private claims 
bills and 4 private immigration bills reported favorably to the 
House. The House passed no private claims bills and 4 private 
immigration bills reported by the Committee. The private 
immigration bills were passed by the Senate and signed into law 
by the President. One Senate private claims bill was passed by 
unanimous consent by the House (a House bill for the same 
individual had passed the House in a prior Congress) and signed 
into law by the President. No bills were still pending in the 
Senate at the close of the 108th Congress. A private House 
Resolution ordered reported by the Subcommittee to the full 
Committee was not taken up by the Committee prior to the close 
of the 108th Congress.

                          Oversight Activities


Oversight list of hearings

Alien Removals under Operation Predator, March 4, 2004 (Serial 
            no. 73)
US-VISIT--A Down Payment on Homeland Security, March 18, 2004 
            (Serial no. 77)
Pushing the Border Out on Alien Smuggling: New Tools and 
            Intelligence Initiatives, May 18, 2004 (Serial no. 
            88)
Families and Businesses in Limbo: The Detrimental Impact of the 
            Immigration Backlog, June 17 and 23, 2004 (Serial 
            no. 96)
The Diversity Visa program, and its Susceptibility to Fraud and 
            Abuse, April 29, 2004 (Serial no. 82)
Funding for Immigration in the President's 2005 Budget, 
            February 25 and March 11, 2004 (Serial no.68)

Oversight of public safety and immigration consequences of local 
        immigration ``sanctuary'' policies

    In the first session, the Subcommittee on Immigration, 
Border Security, and Claims examined local sanctuary policies, 
which bar local employees from contacting the immigration 
authorities about suspected illegal aliens. In particular, the 
Subcommittee reviewed such policies in the context of a brutal 
sexual assault that occurred in New York City on December 19, 
2002, carried out by a group of aliens, some of whom had prior 
criminal records at the time of the assault.
    At a February 27, 2003 hearing, the Subcommittee reviewed 
the immigration and criminal histories of the aliens charged in 
connection with the December 1992 assault, assessed whether any 
of those individuals should have been removed from the United 
States prior to that assault, and examined whether a New York 
City policy, which purportedly bars city police officers from 
contacting immigration authorities about arrested aliens, may 
have prevented New York City Police Department (NYPD) officers 
from contacting the Immigration and Naturalization Service 
(INS) about four of those aliens, each of whom had been 
previously arrested by the NYPD. In addition, the effect of 
other, similar policies on law enforcement efforts was reviewed 
at the hearing.
    The Subcommittee continues to investigate the effect of 
sanctuary policies on alien criminality in the United States.

Oversight of nonimmigrant student tracking: implementation and proposed 
        modifications

    The Subcommittee has closely overseen the implementation of 
the system for tracking alien students in both the 107th and 
108th Congresses. On Wednesday, April 2, 2003, the Subcommittee 
held a hearing on the INS's implementation of its student 
tracking program, and proposed modifications to that program. 
This was a follow-up to the Subcommittee's September 18, 2002 
oversight hearing on ``The Immigration and Naturalization 
Service's (INS's) Implementation of the Foreign Student 
Tracking Program.'' At the April 2, 2003, hearing, the 
Subcommittee examined INS's and ICE's implementation of the 
program, Student Exchange Visitor Information System (SEVIS), 
as well as some possible modifications to the system that might 
improve its performance and functionality in the war against 
terrorism.
    As the SEVIS system neared implementation, concerns were 
raised about its effectiveness, and about the INS's ability to 
have the system fully functional by the January 30, 2003 
deadline. In particular, prior to implementation, schools 
complained that they would not be able to comply with the 
January 30, 2003 deadline, for a variety of reasons.
    Schools also assailed the INS's unilateral decision to 
discontinue SEVIS seminars. The INS had previously hired EDS, 
which developed the student database, to set up daylong 
information seminars on college campuses and elsewhere to show 
officials how to use the system and to field questions and 
concerns about it. The schools deemed these to be ``training 
sessions.'' In July 2002, the INS discontinued those seminars 
to focus on technical support.
    INS had previously argued that it had decided to eliminate 
the contracted services to focus resources on getting SEVIS up 
and running as quickly and effectively as possible, and that it 
wanted to put more effort toward ensuring that institutions 
filed the proper paperwork with the immigration agency on time. 
As Janis Sposato, former Assistant Deputy Associate 
Commissioner at the INS and the then-head of the SEVIS 
implementation team stated at the September hearing:

          For the last year INS had regularly scheduled SEVIS 
        seminars across the country to provide the information 
        necessary to schools and programs to begin 
        implementation of SEVIS. With the publication of the 
        proposed rule and the deployment of the system in July, 
        INS transitioned from providing informational seminars 
        to providing a SEVIS-dedicated, national call center 
        with multiple tiers to answer technical and policy-
        related questions.

    Furthermore, Sposato asserted, the INS SEVIS team 
frequently participated in national and regional level 
educational conferences to inform the schools about SEVIS.
    The Department of Justice's Inspector General also voiced 
concerns about the system. The Inspector General had overseen 
SEVIS since it was in its development stage, as part of his 
larger review of how the INS tracked foreign students. His 
findings with respect to SEVIS were included in a May 2002 
report on the issuance of visas to two of the September 11 
hijackers and in testimony before the Subcommittee at the 
September 2002 student-tracking hearing.
    At the hearing, the Inspector General stated that SEVIS 
would help solve many of the problems that the INS has had in 
the past in tracking foreign students, and would help the INS 
detect I-20 fraud by schools and students. He concluded, 
however, that despite these improvements, there were problems 
in the INS's student program that the implementation of SEVIS 
would not solve. He also asserted that the INS was failing to 
address problems that his office had identified in its May 2002 
report.
    In addition to pre-implementation concerns about the 
system, critics also had concerns and complaints about the 
system after it was implemented. While January 30, 2003 was the 
original deadline for schools to enroll in SEVIS to produce 
Forms I-20 for foreign students, that deadline was extended to 
February 15, 2003, because of a performance problem in the 
system that had slowed the response times for system users. 
Even after that date, however, some system users and the 
Inspector General were critical of the system. Many of those 
criticisms mirrored concerns that the schools and the Inspector 
General voiced prior to the January 2003 implementation of the 
system.
    The schools and other users of SEVIS complained that the 
system suffered fromnumerous problems, which fell into three 
general categories.
    The first category of problems were technical in nature. 
Schools asserted that they encountered numerous technical 
difficulties and glitches in using the system. The second 
purported problem with SEVIS was that the system did not 
provide real-time access to data. The system is intended to 
link ICE, the State Department, and the schools in real time. 
In testimony before the House Science Committee, however, Dr. 
David Ward of ACE testified that some embassies and consulates 
had found that it took a week or longer for them to access data 
entered into SEVIS, meaning that students who had traveled to 
consular posts for their visas were turned away because the 
consular officers had no SEVIS record for the students.
    The third category of complaints that academic officials 
raised about SEVIS concerned user support. Reflecting pre-
implementation complaints, Ward testified before the Science 
Committee that the INS failed to provide adequate training to 
either INS employees or the academic community on use of the 
system. Schools officials also complained about the SEVIS 
users' guides and help desk. In addition to the complaints 
raised by academic officials about glitches in SEVIS, the 
Inspector General released a report on March 17, 2003, that 
identified additional deficiencies in the INS's implementation 
of the system.
    The INS had guaranteed that it would process, by January 
30, 2003, all I-17 applications submitted by November 15, 2002. 
The Inspector General concluded, however, that the INS failed 
to complete its reviews for those schools in time to comply 
with the enrollment deadline for SEVIS, processing by that date 
only 1,963 (69%) of the 2,856 applications that were submitted 
between September 25, 2002, and November 15, 2002. There were 
delays in processing those applications, he determined, because 
of insufficient field adjudication staffing; technical problems 
related to the adjudicators' password access to SEVIS; and the 
failure of the INS contract investigators to conduct on-site 
reviews in a timely manner and to transmit the schools' 
supporting documentation to the INS adjudicators.
    The Inspector General also concluded in that report that 
SEVIS was not ``fully implemented'' by January 1, 2003, as 
required by the USA PATRIOT Act, and that the system was ``only 
technically available'' by that date. Arguing that ``system 
implementation can[not] be viewed as separate from program 
implementation,'' he asserted that ``SEVIS has not been fully 
implemented because the program elements essential to ensuring 
the integrity of the system are not fully in place.'' He 
identified these elements, inter alia, as: (1) ensuring that 
sufficient resources are devoted to the foreign student 
program; (2) ensuring that only bona fide schools are provided 
access to SEVIS; (3) ensuring that schools are completely and 
accurately entering information on their foreign students into 
SEVIS in a timely manner; (4) adequately training Department of 
Homeland Security (DHS) employees and school representatives; 
(5) establishing procedures for using SEVIS data to identify 
noncompliant and fraudulent operations; and (6) following up 
when SEVIS data indicated fraud in a school's program.
    The Inspector General drew upon his review of SEVIS to 
support his conclusion that these elements were not fully in 
place. He found that the INS's oversight of its contractors was 
inadequate to ensure that schools with access to SEVIS are bona 
fide.
    The Inspector General also found that the INS's review of 
the schools' recordkeeping and internal controls was 
insufficient to ensure that the schools were complying with 
SEVIS recordkeeping requirements. The INS relied on contract 
investigators to conduct compliance audits to ensure that 
schools had appropriate internal controls in place and were 
entering data into SEVIS accurately, completely, and in a 
timely manner. The report concluded that this process was not 
sufficient to identify a school's internal control weaknesses, 
however, which, the Inspector General concluded, could lead to 
fraud, or to determine that a school's SEVIS records are 
complete, accurate, and current.
    In addition, the Inspector General argued that the SEVIS 
database would not be fully functional as a monitoring system 
until August 1, 2003 by which date schools were required to 
enter information on their continuing (as opposed to newly 
admitted) foreign students into the system. Until then, the 
Inspector General found, the INS would continue to operate what 
he termed an ``inadequate, paper-based system to monitor 
continuing foreign students.''
    The Inspector General further found that the INS needed to 
ensure that it uses SEVIS to identify foreign students who are 
not complying with their visa requirements, as well as schools 
and other individuals engaging in visa fraud. While the INS had 
taken steps to achieve these goals, he found, due to limited 
resources the INS was unable to investigate all foreign 
students who fail to enroll or who fail to leave the United 
States after completing their studies, sham schools, and 
designated school officials (DSOs) who commit foreign student 
visa fraud at legitimate schools.
    Finally, the Inspector General found that the transfer of 
INS to DHS created a significant management challenge for the 
foreign student program and SEVIS implementation. Pursuant to 
the Homeland Security Act of 2002, responsibility for SEVIS 
implementation was shifted from the Immigration Services 
Division at the INS to ICE. The Inspector General concluded 
that ``[c]lose oversight is required to ensure a smooth 
transition,'' and that it was essential that the individuals 
responsible for certifying schools in ICE be quickly 
identified,\1\ so that they could receive sufficient training 
and guidance.
---------------------------------------------------------------------------
    \1\ Prior to the break-up of the INS, I-17 applications were 
adjudicated by district office benefits personnel, who were moved in 
the transition to CIS. As noted, responsibility for SEVIS has been 
shifted to ICE, which has jurisdiction over interior immigration 
enforcement.
---------------------------------------------------------------------------
    ICE defended the system at the April 2003 hearing. It 
argued that since implementation, SEVIS has performed very 
effectively, and that while it has not been without issues, 
most problems are quickly addressed and resolved. ``For 
example,'' it asserted, ``the intermittent inability of some 
schools to access the system and users timing out before they 
could complete their desired task had occurred. In early March, 
the system was taken off line for 15 minutes and the necessary 
fixes were made to remedy these performance problems.'' The 
only ``outstanding issue'' identified by ICE had to do with 
``an issue known as `bleeding,' the unintended merging of data 
from one school to another which results in the printing of 
legitimate student information at the wrong institution.'' The 
agency witness stated that ICE had hired an additional 
contractor specifically to address this issue, which it termed 
an issue of ``privacy, not accuracy.''
    The agency promised to continue to enhance its internal 
training of DHS officers on the system, as well as to improve 
the SEVIS training provided to schools. Looking ahead to a 
constant two-year cycle of school certification reviews, it 
asserted that it would be ``examining the best ways to verify 
the bona fides of currently certified schools and new schools 
seeking touse the system.'' With the system fully implemented 
and all schools enrolling foreign students required to utilize the 
system, ICE averred that it would ``continue to examine and re-examine 
methods used to verify compliance with record-keeping, reporting, and 
other SEVIS requirements.''
    Finally, responding to concerns in the school community 
that SEVIS errors were responsible for unwarranted enforcement 
actions being taken against students, the ICE witness 
``assure[d] the public that [ICE] does not rely solely on 
information in SEVIS.'' Rather, he stated, ``[p]rior to taking 
an enforcement action, ICE agents review each individual case, 
including interviewing potential violators, to confirm that 
action is warranted.''
    An additional concern about SEVIS that was only briefly 
addressed at the April 2003, hearing was funding for the 
system. Section 641 of IIRIRA mandated the imposition of a fee 
on students and exchange visitors to fund the design, 
development, and operation of SEVIS. This payment feature has 
been one of the most controversial parts of the system.
    On December 21, 1999, the INS published a proposed rule to 
implement this provision. Following the language in Sec. 641(e) 
of IIRIRA, which required that ``an approved institution of 
higher education and a designated exchange visitor program'' 
collect and remit the fee to the Attorney General, the proposed 
regulation identified these two groups as the designated fee 
collectors. The INS received over 4,600 comments to the 
proposed regulation, most of which opposed the role of 
educational institutions and exchange visitor programs as fee 
collectors, which, commentators asserted, was an inappropriate 
role for such institutions.
    In response, the INS worked with Congress, the State 
Department, and stakeholder groups to amend Sec. 641(e). The 
resulting legislation was included in Sec. 404 of the Visa 
Waiver Permanent Act, Pub. L. No. 106-396 (2000). The three 
most significant changes in that section were: (1) the removal 
of the requirement that educational institutions and exchange 
visitor programs collect SEVIS fees, and the requirement that 
aliens pay fees directly to the Attorney General; (2) a 
requirement that the alien pay the fee before being classified 
as an F, J, or M nonimmigrant; and (3) a reduction in the fee 
amount for certain J-1 nonimmigrants, specifically au pairs, 
camp counselors, and summer work or travel participants.
    INS subsequently submitted a fee collection rule to OMB, 
but withdrew that rule following the passage of the USA PATRIOT 
Act, which authorized funding to accommodate the fast track 
implementation of SEVIS. The SEVIS fee was eventually 
instituted on September 1, 2004, after several inquiries from 
the Subcommittee. There are currently multiple methods of 
paying the SEVIS fee: Internet payments via debit or credit 
card; checks or money orders drawn on a U.S. account; third-
party payments; via Western Union Quick Pay service; and 
through bulk-filing payments for certain exchange visitor 
program sponsors.
    The Subcommittee continues to oversee the implementation of 
SEVIS.

Oversight of John Allen Muhammad, passport fraud, and the Western 
        Hemisphere passport exception

    In the 108th Congress, the Subcommittee examined the so-
called Western Hemisphere exception, which relieves United 
States citizens of the statutory requirement that they carry 
passports when entering the country from, and leaving to, a 
country in the Western Hemisphere other than Cuba, in the 
context of the John Muhammad case.
    Muhammad, convicted in connection with one of a series of 
shootings in the National Capital area that occurred in October 
2002, lived in Antigua from March 2000 to May 2001. In a 
December 31, 2002, report, an Antiguan government-sponsored 
``Task Force'' headed by island attorney John Fuller determined 
that Muhammad primarily supported himself in Antigua by selling 
forged U.S.-travel documents, including birth certificates and 
driver's licenses, to travelers seeking admission to the United 
States. On May 13, 2003, the Subcommittee held a hearing to 
examine Muhammad's document-fraud activities in Antigua, his 
apparent exploitation of the Western Hemisphere exception in 
the course of those activities, and ways to address that 
loophole.
    According to a government website reviewed by the 
Subcommittee in May 2003, a U.S. citizen returning to the 
United States from elsewhere in the Western Hemisphere may 
present either a passport or a secondary document, i.e., a 
certified copy of the citizen's birth certificate or baptismal 
record, along with a current photo identification issued by a 
government agency (such as a state identification card, 
driver's license, or military identification card). A citizen 
without a certified copy of his or her birth certificate may 
present a U.S. state- or federal-government-issued birth record 
or baptismal record, accompanied by a government-issued 
identification.
    Logically, aliens withdrawal visas may try to persuade 
themselves as citizens to gain entry. Another reason for a 
traveler to present false documents at a port of entry is to 
evade scrutiny on entry. The computer system used by inspectors 
at the ports of entry accesses a number of databases, including 
``lookout'' databases, which target specific individuals who 
are sought, for questioning or otherwise, by various law-
enforcement agencies. The class of individuals who might 
present false documents for this reason crosses the spectrum of 
immigration statuses, from citizens to lawful permanent 
residents to inadmissible aliens. It is reasonable to presume 
that smugglers and others who cross the border frequently for 
illicit purposes would employ a number of aliases for this 
reason.
    The effectiveness of the INS's screening of secondary 
citizenship documents was examined by the GAO Office of Special 
Investigations (OSI) twice, once in late 2002 at the Senate's 
request, and again at the Committee's request in May 2003. In 
those operations, GAO created counterfeit identification 
documents to establish fictitious identities for the agents 
``by using off-the-shelf computer graphic software that is 
available to any purchaser.'' The agents then entered the 
United States from Jamaica, Barbados, Mexico, and Canada using 
the fictitious names, counterfeit driver's licenses, and birth 
certificates. As Robert Cramer, Managing Director of OSI 
described the results at the May 2003, Subcommittee hearing: 
``CBP staff never questioned the authenticity of the 
counterfeit documents, and our agents encountered no difficulty 
entering the country using them.''
    In apparent contradiction to the information contained on 
the aforementioned government website, Cramer asserted that 
``people who enter the United States are not always asked to 
present identification.'' He concluded that ``[a]lthough [CBP] 
inspects millions of people who enter the United States and 
detects thousands of individuals who attempt to enter illegally 
each year, the results of our work indicate that [CBP] 
inspectors are not readily capable of detecting counterfeit 
identification documents.''
    The large number of documents that could be processed for 
inspector undoubtedly complicates CBP's Task. The number of 
documents that may be presented to enter the United States 
increases exponentially when birth certificates are factored 
in. Specifically, more than 8,000 different authorities in the 
United States issue birth certificates, and more than 50,000 
different versions of birth certificates are issued by states, 
counties and municipalities. Even if baptismal certificates are 
removed from the equation, therefore, the number of acceptable 
documents that could be presented by a traveler seeking entry 
as a U.S. citizen is far greater than any one inspector, or any 
one port, could possibly have familiarity with, let alone a 
working knowledge of.
    The second factor that makes it difficult to screen 
purported U.S. citizens at ports of entry with secondary 
documents, or no documents at all, has to do with the checks 
that inspectors perform at those ports. At a January 30, 2003, 
Senate hearing, Ron Malfi of OSI described those checks as 
``negative checks,'' explaining: ``[I]f the name is fictitious 
and there is no record of those names or those identifiers and 
it is not someone that has a record using that name, nothing is 
going to bounce out of these computers.'' Therefore, an 
inspector cannot rely on the inspections databases to identify 
mala fide travelers using false names, or to verify claims of 
U.S. citizenship.
    Thus, when a traveler at a port of entry carrying only 
secondary documents, or no documents at all, seeks entry into 
the United States as a U.S. citizen, the inspector at the port 
of entry must largely rely on his or her judgment and instincts 
in evaluating the traveler's demeanor in determining whether 
the traveler is bona fide, or rather is using an alias or 
making a false claim to U.S. citizenship. As the INS witness 
explained at the January 30, 2003 hearing: ``[I]nspectors rely 
heavily on their experience. Some people call it a sixth sense, 
or a gut feeling.'' While relying on an inspector's sixth sense 
may be reasonable with seasoned inspectors, such reliance may 
be misplaced when the inspector is newly hired, as 
approximately 26% of all immigration inspectors were in FY 
2002.
    The advanced level of readily available technology that is 
used by document counterfeiters is a third factor that makes it 
difficult for inspectors at the ports of entry to screen 
citizenship claims. Such technology, coupled with the lack of 
uniform standards for birth certificates and driver's licenses 
in the United States, would make it difficult if not impossible 
for even the most well-informed, observant and conscientious 
inspector to identify every counterfeit document that is 
presented for inspections purposes.
    Such factors do not impede an inspector who is reviewing a 
U.S. passport, on the other hand. While a passport, like any 
document, is susceptible to counterfeiting or alteration, it is 
a fairly standardized document with a number of security 
features that make it more difficult to counterfeit, and that 
make alterations more apparent. The passport is printed on 
high-quality safety paper with a watermark. The passport pages 
use multicolor split-fountain printing and solvent-sensitive 
inks. Each visa page is unique, having a different U.S. state 
seal in the center. The document is machine readable, 
conforming to standards set by the International Civil Aviation 
Organization. These features make it easier for an immigration 
inspector to identify a mala fide traveler with a counterfeit, 
altered, or photo-substituted passport. Accordingly, the 
Western Hemisphere exception to the passport rule makes it 
easier for U.S. citizens and aliens to avoid scrutiny at the 
ports of entry, by making it easier for them to use non-
verifiable aliases. These factors also make it easier for 
inadmissible aliens to falsely claim U.S. citizenship.
    From the Committee's investigation, it is apparent that 
Muhammad took advantage of the Western Hemisphere exception in 
assisting aliens who were inadmissible to the United States. 
The vulnerability of the exception to terrorist fraud and abuse 
was raised by the 9/11 Commission in its final report. This 
loophole was addressed in Sec. 7209 of the Intelligence Reform 
and Terrorism Prevention Act of 2004, which will limit the 
documents that may be presented for admission purposes.

Oversight of lateral repatriation and the release of non-Mexican 
        nationals along the southwest border

    In the fall of 2003, at the request of Members of the Texas 
delegation, Subcommittee staff reviewed two policies affecting 
south Texas: lateral repatriation and the release of nationals 
from countries other than Mexico (OTMs) on their own 
recognizance (OR) in Laredo.
    In FY 2003, 7,787 OTMs were arrested in the Laredo sector, 
as were 62,734 Mexicans. The five largest sending countries for 
OTMs were Honduras, El Salvador, Brazil, Guatemala, and 
Nicaragua. Most of these OTMs, those who were not criminals, 
were released on their own recognizance.
    Due to an October 2003 change in local court policy on the 
detention of OTMs prosecuted for illegal entry, however, some 
64 such aliens were subject to release shortly after they were 
convicted. ICE was able to detain 24 of those aliens, but the 
remaining 40 were released on their own recognizance as a 
group.
    When this fact became public, it raised concerns in the 
local community, and prompted the Subcommittee's review of the 
release of OTMs into Laredo. Staff was sent to assess the 
situation in Laredo, and to consult with local officials and 
DHS in Texas. In San Antonio, DHS informed staff that 
additional bedspace would be secured for the OTMs apprehended 
along the Texas border, and that procedures would be put in 
place to ensure that their cases could be adjudicated quickly.
    On August 10, 2004, DHS announced plans to expand the 
expedited removal program beyond the ports of entry, in part to 
address OTM release issues like those experienced in Laredo. 
DHS expanded expedited removal to cover OTMs who have entered 
illegally, and who are encountered within 100 miles of the 
border and within two weeks of entry. This will allow such 
aliens to be removed more quickly than in traditional 
immigration proceedings, freeing up detention bedspace.
    At the same time, the staff explained ``lateral 
repatritation,'' whereby Mexican nationals apprehended in 
Arizona were sent to south Texas for deportation. Critics in 
the affected Texas communities complained that Border Patrol 
was ``dumping'' aliens from Arizona into the area, and argued 
that the aliens that the Border Patrol removed were likely to 
try to reenter at the ``safer'' crossing points along the 
Texas-Mexican border than they would in Arizona. In addition, 
there were concerns that the aliens would attempt illegal entry 
into Laredo, as well as concerns about the impact that the 
surge of aliens into Laredo would have on Nuevo Laredo, across 
the river. All of these concerns were apparently heightened by 
reports that aliens to be repatriatedwere seen deplaning in 
shackles, raising fears that the aliens were criminals.
    The staff investigation has revealed that the aliens 
repatriated across the Mexican border did not, in fact, attempt 
to reenter the United States at any substantive level. Of the 
1700 Mexican nationals repatriated at Laredo, only 14 were 
caught while reentering. Given the fact that the Border Patrol 
estimates that it apprehends 90% of the aliens attempting 
illegal entry through Laredo, this would mean that less than 1% 
of the aliens repatriated tried to reenter. Nor were any of the 
aliens transported known to be criminal aliens. Rather, while 
the aliens were shackled during their flights, this was only 
done to protect the detention officers and crew.
    Despite its successes, CBP has not attempted to reinstate 
the lateral repatriation program. In its place, on June 29, 
2004, the agency announced a bilateral agreement between the 
United States and Mexico for a voluntary interior repatriation 
pilot program. Under this interior repatriation program, 
Mexican nationals are given the option of returning to their 
place of origin when apprehended for illegal entry. As the CBP 
press release puts it: ``Beginning in July [2004], illegal 
Mexican migrants may volunteer for the program, returning home 
via charter aircraft from Tucson, Arizona to either Mexico City 
or Guadalajara. Bus transportation will then be provided to 
their final destination.''

Oversight of alien gang activity

    Published reports have indicated that there are upwards of 
750,000 gang members in the United States. Gang membership has 
reportedly been on the increase among aliens, particularly 
aliens from Mexico and Central America, and published reports 
in 2004 linked alien gang members to a series of shocking 
crimes across the country.
    In June 2004, Chairman Hostettler wrote to ICE, asking for 
that agency's response to the growing alien gang problem. ICE 
has subsequently announced that in 2005, it will be launching a 
nationwide gang-enforcement program.

Immigration backlog

    On June 17 and 23, 2004, the Subcommittee on Immigration, 
Border Security, & Claims held an oversight hearing on how the 
Department of Homeland Security (DHS), U.S. Citizenship & 
Immigration Services (USCIS), plans to fulfill the President's 
commitment to reduce the immigration and naturalization 
petition and application backlog (hereinafter, ``application 
backlog'') to a six-month response time by FY 2006.
    The President has targeted a universal six-month processing 
time standard by FY 2006 for all immigration petitions filed. 
Towards this goal he proposed a $500 million initiative to 
attain this standard and Congress has so far accommodated this 
initiative.
    The Subcommittee examined the experience of family members 
and business owners suffering because the immigration backlog 
has prevented legitimate aliens from entering the U.S. or 
gaining proper status to be with their relatives or work for an 
American company. The hearing also reviewed the history of the 
now 6 million petition backlog (as of the end of FY 2003), 
USCIS problems in keeping current with the application flow, 
and several possible solutions to assist in reducing in the 
backlog.
    The petition backlog has had a wide ranging impact on 
families, business, and security issues in the U.S. Families 
have had to wait longer to see their loved ones come to the 
United States while waiting overseas for a petition approval. 
Even if their family member is in the U.S., and they have been 
able to extend their immigration status while waiting for a 
decision on the petition from USCIS, they are essentially in 
limbo status and unable to make long term decisions. Many 
family-based applicants feel they are unable to leave the U.S. 
on business or to visit family overseas until their immigration 
petition is adjudicated (although humanitarian parole is 
available, this requires more paperwork added to backlog work).
    Businesses have difficulty taking on new employees without 
knowing whether they will be employed long-term, and yet they 
feel compelled to do so in the case of some aliens who possess 
skills otherwise unavailable in the U.S. Large American 
multinationals have found it increasingly difficult to act 
efficiently in shutting down offices in international 
locations, opening others, and moving their international 
personnel to and from the U.S. to conduct business. 
International business partners or potential partners or 
clients are increasingly frustrated from their inability to fly 
freely to speak to American counterparts in the U.S. Further, 
businesses have been unable to timely fill positions with 
foreign personnel when market demands have required an 
immediate, if not temporary, increase in certain types of 
personnel (e.g., the ``dot com'' boom). In some cases, these 
businesses lose competitiveness because of the immigration 
backlog factor.
    From FY 1992 through FY 1994, the Immigration & 
Naturalization Service (INS) was ``current'' in processing 
immigration applications within a reasonable time. The number 
of applications pending at INS increased from 656,000 in FY 
1992 to 1.8 million in FY 1995. By the end of FY 2003, the 
applications backlog increased to over six million (including 
662,000 naturalization applications as of June 2004). Current 
processing times can take years (e.g., a naturalization N-400 
application in Columbus, Ohio, currently takes two years).
    At the hearing, USCIS revealed its formal plan to reduce 
response times on immigration petitions to six months or less 
by FY 2006 (and thus, ``eliminate'' the backlog). The 
Department of Homeland Security Ombudsman unveiled his formal 
report on USCIS operations required by the Homeland Security 
Act of 2000.
    On May 13, 2004, Chairman F. James Sensenbrenner, Jr., and 
Ranking Member John Conyers, Jr., sent a joint letter to 
Comptroller General, requesting an audit of the funds 
appropriated to reduce the immigration application backlog, and 
examine the management issues, employee incentives, 
accountability, incompatible dual missions, legal restraints, 
technology issues, and funding issues that related to the 
application backlog. GAO accepted the request and the 
examination is ongoing.
    The Committee staff also discussed reforms with the 
Department of Homeland Security (DHS) Ombudsman including pilot 
programs he advanced. The DHS Ombudsman has a specific mandate 
in the Homeland Security Act of 2002, Sec. 452, to assist 
individuals and employers inresolving problems with USCIS and 
to propose changes in the administrative practices of USCIS. Thus, the 
Ombudsman has proposed and is about to institute pilot programs with 
the cooperation of DHS (but USCIS's position on the pilot program is 
uncertain). One pilot program will provide an interview to immediate 
relatives of U.S. citizens as soon as a petition is filed. Currently, 
these aliens may obtain work authorization immediately, but their 
application may not be acted upon for years while waiting its turn in 
the backlog (at which time, it may be determined that a genuine family 
relationship does not exist). The pilot would try to immediately 
adjudicate new petitions instead of taking the oldest cases in the 
backlog (the traditional method). Such a method of handling long 
adjudication delays was employed with asylum cases in the mid 1990s. 
The Ombudsman submitted his report before the end of June.
    Various parties have suggested better computer systems and 
data management as a critical part of improving immigration 
petition processing. As mentioned above, USCIS is developing e-
filing, but remains tied to its outdated Computer Linked 
Application Information Management System (CLAIMS4) system for 
handling data management. The CLAIMS4 system is not capable of 
producing statistics on the backlog for particular types of 
immigration petitions (e.g., those which must wait for an 
available visa number versus those which do not).
    The Department of Labor (DOL) also has a backlog of 
immigration applications, which the Subcommittee has monitored. 
DOL handles the ``labor certifications'' for H-2 nonimmigrant 
visas and some employment-based immigrant visas (green cards), 
and the less stringent ``labor attestations'' for H-1 
nonimmigrant visas (approvals go to USCIS for final 
adjudication on immigration status approval). This process is 
designed to protect American workers from adverse wage impacts 
or conditions stemming from foreign worker influx. Part of the 
process is handled at the state level where processing has been 
slow; however, Department of Labor has also had difficulty 
keeping their applications for labor certifications and labor 
attestations current. DOL has published interim final rules 
(regulations) to consolidate the processing at two centers and 
remove state agencies from the process (except in setting 
``prevailing wages'' for comparison). The Committee staff 
obtained planning information and received a number of 
briefings on this subject.
    The Committee also sent staff, at State Department expense, 
to examine the National Visa Center and the National Passport 
Center, located in New Hampshire, and the USCIS Service Center 
at St. Albans, Vermont. The trip exposed different types of 
processing for immigration applications and other backlog 
issues.

Alien sexual predators

    The Subcommittee held a hearing on removing alien sexual 
predators under ``Operation Predator'' in March 2004. According 
to a recent study on ``The Commercial Sexual Exploitation of 
Children in the U.S., Canada and Mexico,'' funded in part by 
the Department of Justice, between 300,000 and 400,000 U.S. 
children are victims of some type of sexual exploitation every 
year.\2\ Police officials have reported that, at the border, it 
is easier for sexual predators of children to avoid 
prosecution.\3\ The State Department has reported that 20,000 
people are trafficked into the U.S. each year for the purpose 
of sexual exploitation.\4\ ICE launched an initiative in July 
2003 to identify, investigate, and arrest alien child 
predators. That initiative, ``Operation Predator,'' draws on 
the expertise of the several legacy organizations merged into 
ICE, including legacy Customs Service and the enforcement wing 
of the Immigration & Naturalization Service (INS). Operation 
Predator personnel utilize ICE intelligence, investigative, 
detention and removal and cyber resources (including ICE 
CyberSmuggling Center in Fairfax, VA) to accomplish its goals.
---------------------------------------------------------------------------
    \2\ Edwards, U.S. child-sex exploitation an `epidemic,' study 
finds, The Washington Times, p. A7, Sept. 11, 2001.
    \3\ Valedez, Border helps cloak sexual predators, El Paso Times, 
June 15, 2001, p. 4B.
    \4\ Trafficking in Persons Report, June 2003, ``A recent U.S. 
Government estimate indicates * * * between 18,000 and 20,000 of those 
victims are trafficked into the United States.'' http:
//www.state.gov/r/pa/ei/rls/21475.htm
---------------------------------------------------------------------------
    Since inception, the ``Operation Predator'' initiative has 
resulted in over 2000 arrests nationwide. ``Operation 
Predator'' concentrates on Internet child predators, human 
traffickers, and other sexual predators. As part of the effort, 
ICE has established a single web portal to access all publicly 
available state addresses provided under Megan's Law. Megan's 
Law, enacted in 1996, requires state and local agencies to 
release information to communities about violent sex offenders 
when then move into a neighborhood. The law was named after 
seven-year-old Megan Kanka who was raped and murdered by Jesse 
K. Timmendequas, a convicted sex offender in Hamilton Township, 
N.J.
    ICE agents are stationed abroad to work with foreign 
governments and their foreign law enforcement counterparts to 
enhance coordination and cooperation on related crimes across 
borders. Similarly, ICE is working with INTERPOL to enhance 
foreign government intelligence on criminal child predators. It 
has created a National Child Victim Identification System with 
other agencies. ICE also works with non-governmental 
organizations such as World Vision to fight child sex 
trafficking, and recently signed a Memorandum of Understanding 
with National Center for Missing & Exploited Children (NCMEC) 
for NCMEC to perform child identification functions for ICE.
    ICE's Detention and Removal Division has prioritized the 
removal of criminal aliens with a history of sexual offenses. 
These are aliens who have been convicted but who subsequently 
evaded efforts to remove them from the U.S. If apprehended, 
these aliens are held without bond. To assist in this effort, 
ICE publishes a ``Most Wanted'' Criminal Aliens List on its 
website, and staffs a 24 hour tip-line at 1-866-DHS-BICE.
    ICE's Institutional Removal Program identifies removable 
alien inmates at federal prisons and ensures that they are 
identified prior to release and removed after serving their 
sentence. Similarly, ICE has sought to partner with state 
prison officials to ensure the same treatment at state prisons. 
Further, ICE has begun notifying foreign governments to notify 
them of any deportations of aliens with child sex histories, 
and hopes to obtain information from foreign governments on 
sexual predators seeking to enter the U.S.
    In December, the Subcommittee submitted a bipartisan 
request to the General Accountability Office (GAO) to examine 
the fact that USCIS has found prior felons with histories of 
sexual abuse against minors and spouses petitioning for foreign 
spouses with children.

US VISIT entry exit system

    The Subcommittee held a hearing on March 18, 2004 on the US 
VISIT program. US VISIT is a Congressionally mandated entry-
exit system that collects biometric data and utilizes 
previously collected data at U.S. ports of entry and at U.S. 
Consulates abroad. DHS met its statutory deadline for 
implementing US VISIT entry screening by initiating the program 
at all airports and seaports just after the new year began, but 
the exit screening portion has not been completed. The data 
collected at entry is compared with databases containing names, 
biometric data, and information regarding known or suspected 
terrorists, criminals, visa-ineligible aliens and immigration 
violators. The biometric data taken at the time of visa 
issuance abroad will be compared to fingerprints and pictures 
taken at the U.S. port of entry. This assures that the person 
to whom the State Department issued a visa is also the person 
who is applying for entry at the port of entry. It also 
provides a second check of watchlists to ensure aliens entering 
the U.S. are not ineligible for entry.
    Aliens issued visas are processed through the US VISIT 
program at the port of entry by presenting a passport with the 
U.S. visa. They are asked to place their index fingers on a 
scanner which captures the fingerprint for entry into a 
watchlist database. The immigration inspector also takes a 
quick digital photo of the alien's face which also goes into 
the US VISIT database. This data, as well as the data contained 
in the visa and passport, are checked against watchlists that 
have been connected through US VISIT. If an alien's identity or 
visa eligibility is in question, that person is sent to 
secondary inspection for further investigation. In the middle 
of the year, Visa Waiver Program (VWP) aliens were no longer 
excepted from US VISIT, but Border Crossing Card (BCC) holders 
and Canadians continue to be.
    VWP countries are required to begin production of biometric 
passports by October 2005. The State Department has developed a 
``chip'' passport that is scheduled to go into production late 
this year. The new passport will contain a chip that is capable 
of containing biometric data, including fingerprint and facial 
recognition data. To remain in the VWP program, countries must 
follow suit in producing these passports in the near future. 
VWP entrants can only visit the United States for up to 90 days 
as a visitor or for temporary business (essentially, as a B1/B2 
visa holder with shorter timeframes). In 2003, 13.5 million 
aliens entered the U.S. on the VWP program.
    Processing times only increased by 15 additional seconds 
per person admitted. There are no reported incidents of 
backlogs in processing travelers through the airports, although 
there are occasional complaints about providing a fingerprint. 
Delays may be experienced when US VISIT is implemented at the 
land borders later this year and as an exit system. 
Nevertheless, there are signs that the fingerprinting process 
of US VISIT actually increases the efficiency of processing 
travelers through inspection. The gradual progression of the 
program continues to be an important oversight issue.
    The Data Management Improvement Act (DMIA) created the 
current basis of US VISIT. The Illegal Immigration Reform & 
Immigrant Responsibility Act of 1996 (IIRIRA), Sec. 110, 
initially required the development of an entry-exit system that 
would track non-immigrants who overstayed their visas. After 
the 9-11 terrorist attacks, the Enhanced Border Security and 
Visa Reform Act of 2002 set a deadline of October 26, 2004, for 
installing equipment and a system to make biometric comparisons 
of entry and exit data from non-immigrant aliens. However, it 
is the DMIA that amended Sec. 110 of IIRIRA to require the 
basic system to collect electronic data on the arrival of 
aliens with the capability of matching that data with an 
alien's departure data. It also requires equipment to access 
the data at ports of entry and exit. IIRIRA originally set the 
development of an entry-exit system by September 20, 1998. DMIA 
set December 31, 2003, as the deadline for implementation of 
the entry-exit system at airports and seaports. Implementation 
of the system is to take place at the 50 busiest land borders 
one year later. By December 31, 2005, the entry-exit system 
should be implemented at all ports of entry.
    The Subcommittee corresponded with the Under Secretary for 
Homeland Security Asa Hutchison to clarify what would be 
considered to be a complete entry-exit system, as little has 
been done to complete the exit portion of the system.

Alien smuggling

    On May 18, 2004, the Subcommittee held a hearing on 
``Pushing out the Border on Alien Smuggling: New Tools and 
Intelligence Initiatives.''
    From FY 1997 to FY 1999, the number of apprehended aliens 
smuggled into the U.S. increased nearly 80%. Government 
estimates indicate 500,000 illegal aliens are smuggled into the 
United States by organized crime networks. Of those illegal 
immigrants who entered the U.S. in 1999, 500,000 are estimated 
to be Mexican nationals, 225,000 were estimated to be Central 
American nationals, and 30,000 to 40,000 were smuggled in from 
Asia. Worldwide, the United Nations estimates 4 million people 
are smuggled annually, amounting to a $7 billion enterprise 
(USG estimates reach $9.5 billion). In the past fifteen years, 
alien smuggling has developed into big business run by well 
organized and sophisticated criminal organizations reaching 
from distant Ukraine, Vietnam, and China. The U.S. Department 
of State estimated that the primary target for smugglers is the 
United States and that thousands of people are constantly in 
the smuggling pipeline waiting in holding facilities and 
waiting for either new routes to open up or fraudulent 
documents to be produced.
    Since its creation, DHS/ ICE has conducted a number of 
successful operations to interdict alien smugglers. Operation 
ICE Storm was unleashed in November of 2003 and included the 
formation of a federal, state, and local agencies task force to 
uncover criminal organizations that have turned to smuggling 
human beings for profit in the Phoenix, Arizona sector. Phoenix 
has large highway systems and an international airport, making 
it an attractive hub for alien smugglers; it has also seen a 
large increase in the violence and deaths associated with 
smuggling organizations. One feature of the program was the 
creation of a Most Wanted list for alien smugglers with a toll 
free line for reporting.
    ICE will discuss this program and similar programs (such as 
internal transportation checks) during its testimony. It will 
also discuss the increasingly violent and organized nature of 
alien smuggling rings. ICE may also discuss the need for better 
tools to investigate alien smuggling, such as increased 
penalties for alien smuggling.
    ICE addresses alien smuggling at the national and 
international levels and will focus its efforts in 
intelligence-based investigations against major violators. 
Specifically, ICE will target smuggling organizations with ties 
to countries that support terrorists. A 1997 legacy INS 
strategy paper called for INS intelligence to optimize its 
ability to collect, analyze, anddisseminate intelligence 
information to identify targets for enforcement, and for its 
international components to conduct operations in cooperation with 
foreign governments.
    The State Department, Diplomatic Security Bureau (DS), has 
funded some anti-alien smuggling operations, including the 
staffing of 25 new positions to combat fraud and gather 
information on alien smuggling operations. In the past, DS has 
worked with ICE on a number of anti-smuggling anti-fraud 
efforts, and this relationship needs to develop further to 
combat alien smuggling before it reaches the U.S. It would like 
to testify on the need to proactively coordinate an 
international response by working with foreign law enforcement 
agencies and committing more resources to gathering 
intelligence on large smuggling rings and stopping alien 
smuggling abroad. Transnational resources at U.S. embassies and 
consulates abroad need to be developed and devoted to 
disrupting the well-organized criminal rings (small or large 
scale) profiting off the smuggling of aliens into the U.S.
    DS is the most far-flung federal law enforcement agency, 
with 32,500 employees assigned to more than 170 countries. The 
DS Criminal Investigative Division conducts criminal 
investigations into large scale visa and passport fraud. It 
coordinates all requests from other federal, state, and local 
law enforcement agencies for criminal investigative assistance 
overseas, including requests for assistance in investigations 
involving fugitive alien smuggling and parental abductions. DS 
likes to point out that by definition alien smuggling involves 
more than one country. DS has experience with U.S. law 
enforcement authorities operating abroad and is cognizant of 
issues involving sovereignty and the application of foreign 
laws and, further, in dealing with the capabilities and 
limitations of local law enforcement authorities in the foreign 
country. DS has experience with individuals associated with 
terrorist organizations who have been known to use existing 
smuggling organizations and document vendors to facilitate 
their travel in various parts of the world. Consequently, DS at 
the State Department works with DOJ and DHS to minimize threats 
to our national security.
    The President, under NSPD-22 (classified) has directed 
agencies to develop strategic plans to combat alien smuggling 
(and trafficking). He has also provided $50 million to ``rescue 
victims'' of trafficking and alien smuggling, some of which 
goes to foreign local law enforcement for anti-alien smuggling 
efforts.
    Major projects on the border include traffic checkpoints 
along highways, city patrols and transportation checks, and 
anti-smuggling investigations. Since 1994, CBP has made more 
than 11.3 million apprehensions nationwide. In FY 2001, CBP 
apprehended almost 1.26 million persons for illegally entering 
the country (a 24% decline from the previous year). Data has 
indicated an overall decline in apprehensions (from a high of 
1.6 million in fiscal year 2000, down to a 28-year low of less 
than 1 million in fiscal year 2002). Border Patrol also 
maintains relationships with local communities, including 
ranchers, farmers and other law enforcement entities to assist 
in interdicting alien smugglers. At the hearing, CBP will 
discuss its major initiatives and the tools it requires to 
combat alien smuggling.
    The Department of Justice, Criminal Division, Domestic 
Security Section, is a major player involved in the prosecution 
of alien smugglers. In 2000, the Domestic Security Section 
created the Alien Smuggling Task Force. The Civil Rights 
Division, with the United States Attorneys' Offices, prosecutes 
alien smuggling cases involving sweat shops, domestic 
servitude, and agricultural workers. As part of the effort, DOJ 
works with other U.S. agencies, such as the FBI, DHS, the Labor 
Department, and the State Department, as well as with foreign 
authorities. DOJ has assisted foreign countries in removing 
officials collaborating with alien smuggling organizations, and 
assisted foreign counterparts to initiate their own 
prosecutions (of those the U.S. would like to see prosecuted). 
DOJ would like to expand international immigration enforcement 
efforts.
    On January 20, 2004, Chairman John N. Hostettler of the 
Subcommittee on Immigration, Border Security & Claims, sent a 
letter to the Comptroller General, David Walker, requesting a 
study on the federal government response to alien smuggling. 
This study is ongoing.

Diversity visas

    On April 29, 2004, the Subcommittee held a hearing on ``The 
Diversity Visa Program, and Its Susceptibility to Fraud and 
Abuse.'' On January 28, 2004, Chairman John N. Hostettler of 
the Subcommittee on Immigration, Border Security, & Claims, 
sent a letter to the Secretary of State, Colin Powell, 
requesting clarification on several points in the U.S. 
Department of State's Inspector General Report (#ISP-CA-03-52) 
on the Diversity Visa Program. The request included data 
required under regulation, the results of a workload study when 
completed, and a legal clarification on the applicability of 
Immigration & Nationality Act (INA) Sec. 212(a)(6)(C) when 
multiple applications for one applicant is discovered.
    On June 1, 2004, Subcommittee Chairman John N. Hostettler 
of the Subcommittee on Immigration, Border Security & Claims, 
sent a letter to the Secretary of State, Colin Powell, 
requesting further clarification of various issues after the 
oversight hearing was conducted. The State Department explained 
its program to transform the entire diversity visa program into 
an electronic based system that could combat fraud more easily 
(the system was put in place).

Citizenship

    In July, the Committee requested an explanation from the 
State Department on how it records the dates of entry, exit, 
and accreditation for foreign diplomats with full privileges 
and immunities, and how it consequently makes determinations on 
the citizenship status of children born to such foreign 
diplomats. There is a concern that the Protocol Office relies 
heavily on present and past records held by foreign embassies 
rather than maintaining accurate records of its own. The State 
Department has only provided an interim response.
    In September, the Committee inquired into whether 
Certificates of Loss of Nationality had been issued by the 
State Department for ``American Taliban'' as required under law 
and regulation, whether such certificates had been approved, 
and whether any legal analysis had been conducted on this 
subject. The legal strategy for several high-profile cases 
might have changed depending on whether the certificates had 
been issued, including the cases of Yaser Esam Hamdi, John 
Phillip Walker Lindh, Jose Padilla, Adham Amin Assoun, Mohamed 
Hesham Youssef, and possibly future similar cases. The State 
Department has sent an interim response. The issue was again 
raised when ``Azzam the American,'' suspected to be Adam Yahiye 
Gadahn, issued threats of mass carnage against Americans in 
October.

Redesign of the naturalization exam

    In April, the Committee asked for clarification of a 
statement from a U.S. Citizenship and Immigration Services 
(USCIS) official essentially setting the pass rate for the new 
exam at the same level as current pass/fail rate. The Committee 
expressed concerns that the redesign of the exam would be a 
tailored to ensure the same pass/fail rate rather than ensure 
that applicants meet the statutory requirements to obtain 
citizenship. The Committee staff also attended workshops, 
researched legislative history, and provided advice on the 
direction of the design of the exam. Many stakeholders have 
expressed differing opinions about the direction of the 
examination. CRS was requested to conduct research on the 
English language and civics requirements of the naturalization 
process.

Passports

    On January 16, 2004, Chairman John N. Hostettler of the 
Subcommittee on Immigration, Border Security, and Claims sent a 
letter to Secretary of State Colin Powell, requesting 
information on the integrity of recently issued Venezuelan 
passports. Various news agencies reported that Venezuelan 
President Chavez made two controversial appointments to head 
passport issuance and national identity document issuance. 
These appointees had ties to certain Ba'ath Party members and 
had reportedly provided identity documents to radical Islamic 
groups. The State Department responded with a letter that 
included a recent cable to all consular posts entitled, ``New 
Policy for Venezuelan Passports.''
    In April, the Committee requested the State Department's 
position on eliminating the ``Western Hemisphere'' passport 
exception (the exception to the rule based in statute that 
requires all American to enter the country with a valid U.S. 
passport). Based on past hearings, the Government Accounting 
Office (GAO) recommended elimination of the exception. State 
Department responded that would wait for recommendations from 
the 9/11 commission.

Adoption

    In February, the subcommittee sent a letter to inquire 
about particular adoption cases held up in Guatemala because of 
investigations requiring DNA checks. The State Department 
responded to these concerns. The Committee staff met with 
interest groups about adoption issues.

Application fraud

    In July, the Subcommittee requested a study into 
immigration application fraud across several agencies. The 
Department of Homeland Security (DHS) Ombudsman Report, 
required by Sec. 452 of the Homeland Security Act of 2002, 
verifies testimony by USCIS Director Aguirre, that fraudulent 
petitions significantly add to the backlog. One recent 
discussion with the DHS Ombudsman revealed that G-22 workload 
reports from USCIS district offices indicated an over 40% 
rejection rate at the New York offices for immigrant ``green 
card'' applications (a strong indicator of fraudulent 
applications), and similar high rejection rates in other 
offices. The DHS Ombudsman has reported that findings on 
application rejection rates suggest that fraud is more 
prevalent as the backlog grows and prevents investigation of 
bogus applications. In meetings with USCIS, anti-fraud officers 
have indicated that petitioners and unscrupulous immigration 
attorneys have become ever more bold in submitting fraudulent 
applications (in one case, an attorney submitted thousands of 
fraudulent applications).
    Within DHS, application and lower level fraud is handled by 
USCIS as it comes before an adjudicator. However, if the 
processing reveals a larger fraud conspiracy, the matter is 
sent to Immigration & Customs Enforcement (ICE) as with all 
large scale immigration investigations.
    On February 11, 2004, Chairman John N. Hostettler of the 
Subcommittee on Immigration, Border Security, and Claims sent a 
letter to Assistant Secretary of State for Legislative Affairs, 
Paul Kelly, to request a copy of a cable sent to all consular 
posts instructing consular officers on how to look out for 
``L'' petition fraud. ``L'' fraud was expected to increase as 
the ``H-1B'' visa cap was reached for FY 2004 and FY 2005. The 
State Department provided the instruction cable shortly after. 
Staff requested CRS information on anti-fraud budgets of USCIS, 
DOL, State Department, and ICE.

Consular malfeasance

    In April, the Committee clarified a request to the 
Government Accountability Office (formerly and at the time, the 
Government Accounting Office) to expand its inquest (from 2003) 
into specified consulates with possible consular malfeasance 
problems, to examine all posts. Visa fraud rings have been 
uncovered in the past two years at consular posts in Sri Lanka, 
Mexico, Qatar, Guyana, and the Czech Republic.

Visa security issues

    Staff conducted a courtesy call on Ambassador Arcos to 
research and discuss issues related to the staffing of DHS 
personnel to oversee visa processing at various consular posts 
abroad. DHS is currently having difficulty increasing staffing 
abroad and an Inspector General report indicates DHS has added 
little additional security to the process so far. It also 
indicated that DHS has done little to assert its authority, 
given in the Homeland Security Act, Sec. 428, and a consequent 
Memorandum of Understanding with the State Department, over 
visa policy. As a result, the Committee began asserting its 
concern about visa policy by requesting various studies, 
investigations and policy changes directly (some of which are 
discussed elsewhere in this report).
    In July, the Subcommittee requested the Government 
Accounting Office examine problems with combating application 
fraud across different agencies. Various government reports 
indicate immigration application fraud is rampant and that 
anti-fraud coordination problems still exist across agencies. 
Fraudulent visa applications present a security risk.
    In August the Committee requested information on worldwide 
visa refusals based on ``immigrant intent,'' especially with 
regard to visa refusals at consular posts located in Saudi 
Arabia. The State Department complied and the data is under 
examination. Part of the examination led to a request for a 
State Department Inspector General inquiry into the way 
``immigrant intent'' refusals are made and a bipartisan request 
to examine what safeguards are in place to protect visa 
application adjudicators.
    The Subcommittee requested and received copies of all visa 
policy cables sent to all consular and diplomatic posts setting 
standard operating procedures. It also requested andreceived 
information on the Technology Alert List and investigated numerous 
issues related to visa security checks for security, terrorism, law 
enforcement, technology transfer, and economic espionage issues. This 
oversight prodded certain agencies to expedite the process without 
degrading related security. Much of this oversight was conducted in a 
classified setting. Field visits were made to the FBI records warehouse 
and computer processing centers.
    The Committee reminded the Central Intelligence Agency that 
Sec. 359 of the Intelligence Authorization Act for Fiscal Year 
2004 (Pub. L. No. 108-177) required their agency to submit a 
report on the operations of the Terrorist Threat Integration 
Center (TTIC). CIA responded to the request.
    In December, the Subcommittee sent an inquiry into the fact 
that the U.S. Embassy in Mexico City houses two machines to 
produce Border Crossing Cards (BCCs). All other BCCs are 
produced at a central location in the United States.
    The Subcommittee staff requested CRS conduct research on 
what other countries (particularly the U.K., Australia, and 
Canada) have done to attract more foreign students, what 
measures they have put in place to guard against economic 
espionage and technology transfer, and what foreign students in 
these countries can do to remain in these countries 
permanently.

Legal interpretations

    The Subcommittee requested a Government Accounting Office 
(GAO) study of the sharp increase in ``J-1'' cultural exchange 
summer work travel program.'' The program has tripled the 
number of aliens entering under the ``J-1'' summer hire program 
from 1998-2003; the current number (approximately 87,000) 
exceeds the annual limit for H-2B issuances for temporary 
workers. There is concern that the program has not been 
monitored sufficiently to prevent abuses, that J-1 category 
aliens are not entering primarily for cultural exchange 
purposes, and that rules regarding this category do not provide 
sufficient safeguards or monitoring.
    In June, the Committee wrote to USCIS and requested a legal 
clarification of the ``P-1'' visa category requirements. 
Specifically, the request was to examine whether minor league 
players should be eligible for admission under the P-1 category 
(even though they would be eligible to become a legal permanent 
resident).
    A staff member to spoke at the National Academy of Sciences 
regarding ``immigrant intent'' visa denials (Sec. 214(b) of the 
Immigration and Nationality Act (INA)). Applying the denials to 
student visas has come under scrutiny as many student visa 
holders eventually apply for work visa status or otherwise gain 
permanent residency in the United States. Most graduate 
engineering students seeking a doctorate in the country are 
aliens and the academic community believes continued high-
technology research is dependent on a continued flow of foreign 
students. Concerns regarding security and the low level of 
American student participation in the sciences were raised, as 
well as possibilities for reform.
    The Committee contacted the Office of Legal Counsel to 
resolve an interagency dispute regarding legal thresholds for 
the denial and revocation of visas based on information 
contained in terrorist watch lists. The legal dispute between 
the U.S. Department of State, U.S. Department of Homeland 
Security, and the U.S. Department of Justice regards the 
ability of consular officers to deny a visa based solely on a 
name check search of terrorist watch lists that results in a 
match or ``hit.'' The DOJ letter stated: ``The State Department 
is also of the view that it cannot deny a visa based solely on 
a Foreign Terrorist Task Force (FTTTF) or Federal Bureau of 
Investigation (FBI) name search that results in a hit or match. 
We do not share the State Department's view of the law * * * 
[as it] presumes that a visa applicant is inadmissible and 
places the burden of proof on the applicant to establish his 
admissibility. As such, a consular officer need not have 
specific evidence that the applicant has participated in 
terrorist activities or associations to justify a visa denial * 
* * a name search hit does provide the consular officer a 
`reasonable ground to believe' * * * that the applicant 
presents a threat to national security and is therefore 
ineligible for admission.''

Southern border security

    On January 14, 2004, Chairman F. James Sensenbrenner, Jr., 
and Ranking Member John Conyers, Jr., sent a joint letter to 
the Department of Justice Inspector General requesting all 
information, studies, and reports in his possession regarding 
government employee corruption in connection with the 
enforcement of the immigration laws. The letter also requested 
any materials produced with or shared by the Department of 
Homeland Security.
    On January 27, 2004, Chairman John N. Hostettler of the 
Subcommittee on Immigration, Border Security & Claims sent a 
letter to Secretary of Homeland Security, Thomas Ridge, 
requesting an explanation of Department of Homeland Security 
policy regarding parole and admission of asylum seekers along 
the Mexican border.
    On January 21, 2004, Chairman John N. Hostettler of the 
Subcommittee on Immigration, Border Security & Claims sent a 
letter to Attorney General John Ashcroft and Secretary of 
Homeland Security, Thomas Ridge, requesting the results of an 
investigation into Hesham Hedayet who killed two and wounded 
several others at the Los Angeles International Airport on July 
4, 2002. Mr. Hedayet was a lawful permanent resident who won 
the diversity lottery in 1996 and adjusted his status (received 
a green card without having to leave the United States).

Gang violence

    In June, the Subcommittee requested an explanation of 
Immigration and Customs Enforcement (ICE) policies with regards 
to combating gang violence tied to illegal immigration, citing 
cases in the Northern Virginia area.

Illegal hiring of undocumented workers

    The Committee requested in March the Department of Defense 
Inspector General investigate the hiring practices of the 
Defense Department with regards to checking the documentation 
of those it recruits. The issue was raised at a hearing and has 
been reported on in major news media. The Defense Department 
responded through its Deputy Under Secretary for Military 
Personnel Policy by explaining its new safeguards.
    In May, the Committee requested the GAO examine the 
policies and programs aimed atenforcing the immigration laws in 
the workplace, including the verification systems to ensure legal 
authority to work and hire and related enforcement mechanisms. The 
Committee wrote to the Social Security Commissioner, Jo Anne Barnhart, 
in June to clarify implementation of various statutes and to clarify 
how the Social Security Administration would implement a totalization 
agreement with Mexico.
    In June, the Committee urged the Department of Homeland 
Security, General Counsel, to revise the last administration's 
interpretation of the legal weight of social security ``no 
match'' letters. These letters inform employers that the social 
security number provided to the Social Security Administration 
by new employees do not match a validly issued social security 
number on record. Current interpretation is that the no match 
letters are not a basis to preclude employment unless or until 
the mismatch is clarified. DHS declined to change the 
interpretation.

Refugees

    In April, the Subcommittee wrote letters to the Department 
of Homeland Security and the State Department asking for facts 
and their opinions on the North Korean refugee situation. Both 
agencies provided information. The Committee staff examined 
refugee resettlement first hand both in the Republic of Korea 
and in the United States, and trip reports were filed. Staff 
also met with various interest groups on this issue, including 
Mr. Syghman Rhee of the Presbyterian Church and Friends 
Committee.
    Staff monitored the situation in Haiti and Dominican 
Republic as various political, economic, and natural disaster 
conditions made it increasingly likely that refugees may 
attempt to enter the United States.
    Staff researched and produced materials concerning the 
refugee situation in Darfur, Sudan and neighboring Chad. The 
issue was raised during the annual refugee consultations with 
the Secretary of State.

Asylum

    Staff requested various asylum files from the Department of 
Justice, Executive Office of Review (EOIR) as part of its 
continuing oversight function. In August, the Committee 
requested all information in its possession from the Department 
of Justice and the Department of Homeland Security on a Russian 
national. He recently received asylum despite the fact that the 
Russian Federation issued an international arrest warrant for 
him. DHS initially appealed the asylum judgment, but then 
declined to appeal. The Committee has asked for more 
information on the reasons for the reversal and asked the 
Department of Justice to review the decision of the Immigration 
Court. The Department of Justice interpreted relevant 
regulations to preclude their review and DHS has not responded 
yet.
    In mid-November, the State Department was asked to clarify 
a statement by its spokesman indicating that it would not rule 
out allowing Uighur detainees at Guantanamo Bay to enter the 
United States and claim asylum. A formal response is pending. 
Much of this oversight involved classified information.
    The Subcommittee examined the issue of parole and asylum 
seekers at the Mexican and Canadian borders.

Funding immigration

    The Subcommittee held two hearings on immigration related 
budgets for the U.S. Department of Homeland Security, U.S. 
Customs and Border Patrol, U.S. Immigration and Customs 
Service, U.S. Citizenship & Immigration Services, and the 
Bureau of Consular Affairs at the U.S. Department of State. The 
hearings were held on February 25 and March 11, 2004. The 
President's FY 2005 budget for the Department of Homeland 
Security (DHS) contains increases for several key immigration 
initiatives, mainly in the areas of interior enforcement and 
alien detention and removal. Other enforcement initiatives, 
however, received more limited increases. In particular, under 
the President's budget, the number of Border Patrol Agents 
would remain approximately the same in FY 2005 as this year. 
The budget also calls for additional funding to reduce the 
backlog in applications for immigration benefits.
    On February 3, 2004, Chairman F. James Sensenbrenner, Jr., 
sent a letter to the Department of Justice Inspector General, 
Glenn A. Fine, requesting action on recommendations provided in 
the Department of Justice Inspector General report entitled 
``Immigration & Naturalization Service Expenditures Charged to 
the Organized Crime Drug Enforcement Task Forces Program for 
Fiscal Years 1997-2002'' (Audit Report 04-03, November 2003).
    The Subcommittee staff requested CRS research statistics on 
immigration categories and the relationship to welfare and 
other assistance. In addition, CRS researched federal grants 
available to foreign students (directly or indirectly); CRS was 
unable to find much information compiled on this subject.

Pre-clearance for aviation security

    On October 20, 2004, the Committee requested that the 
Department of Homeland Security provide information on fourteen 
Syrians who were detained on Flight Northwest 327 from Detroit 
to Los Angles. Various questions concerned their valid 
immigration status. This led to an inquiry at the State 
Department and their visa applications, which are the subject 
of an on going examination. Flight 327 and on several other 
aviation security incidents involving pre-clearance and ``no-
fly'' watch list issues (including United Flight 919 on 
September 21, and Olympic Flight 411 on September 27) are under 
continued examination.
         SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW \1\

   CHRIS CANNON, Utah, Chairman

MELVIN L. WATT, North Carolina       HOWARD COBLE, North Carolina
JERROLD NADLER, New York             JEFF FLAKE, Arizona
TAMMY BALDWIN, Wisconsin             JOHN R. CARTER, Texas
WILLIAM D. DELAHUNT, Massachusetts   MARSHA BLACKBURN, Tennessee
ANTHONY D. WEINER, New York          STEVE CHABOT, Ohio
                                     TOM FEENEY, Florida

----------
\1\ Subcommittee chairmanship and assignments approved February 12, 
2003.

Tabulation of subcommittee legislation and activity

Legislation referred to the Subcommittee..........................    57
Legislation reported favorably to the full Committee..............     3
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......................     7
Legislation ordered tabled in the Subcommittee....................     0
Legislation pending before the full Committee.....................     0
Legislation reported to the House.................................     8
Legislation discharged from the Committee.........................     2
Legislation pending in the House..................................     4
Legislation passed by the House...................................    13
Legislation pending in the Senate.................................     7
Legislation vetoed by the President...............................     1
Legislation enacted into public law...............................     5
Legislation enacted into public law as part of another bill.......     0
Legislation on which hearings were held...........................     8
Days of legislative hearings......................................     8
Days of oversight hearings........................................    10

                    Jurisdiction of the Subcommittee

    The Subcommittee on Commercial and Administrative Law shall 
have jurisdiction over the following subject matters: 
bankruptcy and commercial law, bankruptcy judgeships, 
administrative law, independent counsel, state taxation 
affecting interstate commerce, interstate compacts, other 
appropriate matters as referred by the Chairman and relevant 
oversight.

                         Legislative Activities


                                PRIVACY

H.R. 338, the ``Defense of Privacy Act''

    Summary.--H.R. 338 was intended to help safeguard privacy 
rights of Americans by requiring a rule 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 utilized by the 
Federal government. The bill also 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 during the public comment period and explaining whether 
the agency could have taken an approach less burdensome to 
personal privacy. H.R. 338, in addition, contained a provision 
for judicial review to ensure agency compliance with its 
requirements.
    Legislative History.--Subcommittee on the Constitution 
Chair Steve Chabot introduced H.R. 338, the ``Defense of 
Privacy Act,'' on January 27, 2003. The bill's short title was 
subsequently amended and reported as the ``Federal Agency 
Protection of Privacy Act.'' The Subcommittee held a joint 
legislative hearing together with the Subcommittee on the 
Constitution on H.R. 338 on July 22, 2003. Witnesses who 
testified included Senator Charles Grassley, former Congressman 
Bob Barr, on behalf of the American Conservative Union, James 
X. Dempsey, on behalf of the Center for Democracy & Technology, 
and Laura Murphy, on behalf of the American Civil Liberties 
Union.
    On February 10, 2004, the Subcommittee ordered H.R. 338 
favorably reported with an amendment by voice vote. Thereafter, 
the Committee ordered the bill favorably reported with an 
amendment by voice vote on June 23, 2004. The Committee 
reported H.R. 338 on July 7, 2004 as House Report No. 108-587. 
Although placed on the Union Calendar, the bill was not acted 
upon prior to the conclusion of the 108th Congress.

                             COMMERCIAL LAW

H.R. 361, To designate certain conduct by sports agents relating to the 
        signing of contracts with student athletes as unfair and 
        deceptive acts or practices to be regulated by the Federal 
        Trade Commission

    Summary.--H.R. 361 prohibits an athlete agent from: (1) 
recruiting or soliciting a student athlete to enter into an 
agency contract by giving false or misleading information, 
making a false promise or representation, or providing anything 
of value to the athlete or anyone associated with the athlete 
before entering into such contract; (2) entering into an agency 
contract with a student athlete without providing the required 
disclosure document; or (3) predating or postdating an agency 
contract.
    Legislative History.--Representative Bart Gordon introduced 
H.R. 361, a bill to designate certain conduct by sports agents 
relating to the signing of contracts with student athletes as 
unfair and deceptive acts or practices to be regulated by the 
Federal Trade Commission, on January 27, 2003. H.R. 361 was 
referred to the House Committee on Energy and Commerce, which 
marked up the bill on January 27, 2003 and ordered the bill 
reported by voice vote. On March 5, 2003, the House Committee 
on Energy and Commerce reported the bill as H. Rept. No. 108-
24, Part I.
    On March 5, 2003, the House Committee on Judiciary received 
H.R. 361 as a sequential referral, for a period ending not 
later than June 1, 2003, for consideration of such provisions 
of the bill as fall within the Committee's jurisdiction. On May 
1, 2003, the bill was referred to the Subcommittee on 
Commercial and Administrative Law. On May 15, 2003, the 
Subcommittee held a hearing on H.R. 361, with Representative 
Gordon, Representative Tom Osborne, and Sports Agent Scott 
Boras as witnesses, and moved the bill for consideration and 
mark-up, and forwarded with an amendment relating to sports 
agent conduct with student athletes to the full Committee by 
voice vote.
    On May 21, 2003, the Committee reported H.R. 361, as 
amended, by voice vote and filed its report on June 2, 2003 as 
H. Rep. No. 108-24, Part II. On June 4, 2003, H.R. 361 was 
considered by the House under the suspension of the rules and 
the bill passed, as amended.
    On June 6, 2003, H.R. 361 was received in the Senate and 
referred to the Committee on Commerce, Science, and 
Transportation. On September 9, 2004, the bill passed the 
Senate by unanimous consent. On September 24, 2004, the bill 
was signed by the President and became Public Law 108-304.

                               BANKRUPTCY

H.R. 975, the ``Bankruptcy Abuse Prevention and Consumer Protection Act 
        of 2003''

    Summary.--H.R. 975 represented the culmination of nearly 
seven years of Congressional consideration of bankruptcy reform 
legislation. With respect to creditors, H.R. 975'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 
debtors in bankruptcy, and the institution of a pilot program 
to study the effectiveness of consumer financial education for 
debtors.
    The heart of H.R. 975'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. 975 to move for dismissal of chapter 7 cases for 
abuse. These reforms were intended to not affect consumer 
debtors lacking the ability to repay their debts and deserving 
of an expeditious fresh start.
    With regard to business bankruptcy reform, H.R. 975 
addressed the special problems that small business cases 
present by instituting a variety of time frames and enforcement 
mechanisms to identify and weed out debtors that were 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. 975 included provisions dealing with 
business bankruptcy cases in general and chapter 12 (family 
farmer bankruptcies). The small business and single asset real 
estate provisions of H.R. 975 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. It also included provisions 
concerning the treatment of certain financial contracts under 
the banking laws as well as under the Bankruptcy Code. H.R. 975 
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. With 
regard to single asset real estate debtors, H.R. 975 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.
    H.R. 975, in addition, contained several provisions having 
general impact with respect to bankruptcy law and practice. 
Under H.R. 975, 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. 975 
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.
    Legislative History.--Committee Chairman F. James 
Sensenbrenner, Jr. (for himself and 50 original cosponsors) 
introduced H.R. 975, the ``Bankruptcy Abuse Prevention and 
Consumer Protection Act of 2003,'' on February 27, 2003. On 
March 4, 2003, the Subcommittee held a hearing on H.R. 975 
during which testimony was received from a representative from 
the Executive Office for United States Trustees (a component of 
the United States Department of Justice charged with 
administrative oversight of bankruptcy cases), a credit union 
representative, a representative on behalf of the Coalition for 
Responsible Bankruptcy Laws (a coalition of various consumer 
creditors), and a representative on behalf of the Commercial 
Law League of America (a creditors' rights organization 
comprised of attorneys and other professionals engaged in the 
fields of bankruptcy, insolvency, reorganization, and 
commercial law).
    On March 7, 2003, the Subcommittee was discharged from 
further consideration of the bill. Thereafter, the Committee 
met in open session on March 12, 2003 and ordered H.R. 975 
favorably reported by a vote of 18 to 11 with an amendment 
making technical revisions to the bill. On March 18, 2003, the 
Committee filed its report on H.R. 975 as House Report No.108-
40.
    The House, under a rule making certain amendments in order, 
thereafter passed H.R.975, as amended, on March 19, 2003 by a 
vote of 315 to 113, with one Member voting present. H.R. 975 was 
received in the Senate on March 20, 2003. The Senate did not consider 
the bill prior to the conclusion of the 108th Congress.

S. 1920, Bankruptcy Abuse Prevention and Consumer Protection Act of 
        2004

    Summary.--As introduced, S. 1920 simply provided for a 
temporary extension of chapter 12, a specialized form of 
bankruptcy relief for family farmers. As passed by the House, 
the bill was amended to include the text of H.R. 975, the 
``Bankruptcy Abuse Prevention and Consumer Protection Act.''
    Legislative History.--On November 21, 2003, Senator Charles 
Grassley introduced S. 1920, a bill to extend chapter 12 (a 
specialized form of bankruptcy relief for family farmers) for 
six months. On November 25, 2003, the Senate passed S. 1920 
without amendment by unanimous consent. The bill was received 
in the House on December 8, 2003.
    On January 28, 2004, the House considered and passed the 
bill by a vote of 265 to 99, with one Member voting present, 
under a rule making certain amendments in order. The sole 
amendment that the House passed consisted of an amendment in 
the nature of a substitute that replaced the text of S. 1920 
with that of H.R. 975, the ``Bankruptcy Abuse Prevention and 
Consumer Protection Act'' (previously discussed in this 
Report). Committee Chairman F. James Sensenbrenner, Jr. moved 
that the House insist upon its amendment, and request a 
conference. His motion was granted without objection by voice 
vote. A motion to instruct conferees offered by Representative 
Jerrold Nadler (relating to the applicability of the 
disinterestedness standard to investment bankers retained to 
represent a bankrupt company) failed by a vote of 146 to 203, 
with one Member voting present.
    The following Members from the Committee on the Judiciary 
were appointed as conferees for the consideration of the Senate 
bill and the House amendment: Committee Chairman F. James 
Sensenbrenner, Jr., Henry Hyde, Lamar S. Smith, Steve Chabot, 
Subcommittee Chairman Chris Cannon, Melissa Hart, Committee 
Ranking Member John Conyers, Jr., Subcommittee Ranking Member 
Mel Watt, Rick Boucher, and Jerrold Nadler. The following 
Members from the Committee on Financial Services were appointed 
as conferees for consideration of Sec. Sec. 901-906, 908-909, 
911, and 1301-1309 of the House amendment: Representatives 
Michael Oxley, Spencer Bachus, and Bernard Sanders.
    S. 1920, as amended, was received in the Senate on February 
3, 2004. The Senate did not consider the bill prior to the 
conclusion of the 108th Congress.

H.R. 1375, the ``Financial Services Regulatory Relief Act of 2003''

    Summary.--H.R. 1375, the Financial Services Regulatory 
Relief Act of 2003, allows the expeditious termination or 
netting of certain types of financial transactions.\1\ 
Provisions substantially identical to those in H.R. 1375 were 
included as title IX in H.R. 975, the ``Bankruptcy Abuse 
Prevention and Consumer Protection Act.''
---------------------------------------------------------------------------
    \1\ In addition to the Bankruptcy Code, the bill amends the Federal 
Deposit Insurance Act, the Financial Institutions Reform, Recovery and 
Enforcement Act of 1989, the Federal Deposit Insurance Corporation 
Improvement Act of 1991, the Federal Reserve Act, and the Securities 
Investor Protection Act of 1971.
---------------------------------------------------------------------------
    Legislative History.--H.R. 1375 was introduced by 
Representative Shelley Moore Capito on March 20, 2003. The bill 
was referred to the Committee on Financial Services and the 
Committee on the Judiciary. The Committee on Financial Services 
reported H.R. 1375 on June 12, 2003 as H. Rept. No. 108-152, 
Part I. On July 14, 2003, the Committee on the Judiciary 
reported H.R. 1375, as amended, by voice vote, as H. Rept. No. 
108-152, Part II. H.R. 1375 passed the House by a vote of 392-
25 on March 18, 2004, but was not considered in the Senate 
prior to the conclusion of the 108th Congress.

H.R. 1428, the ``Bankruptcy Judgeship Act of 2003''

    Summary.--H.R. 1428, the ``Bankruptcy Judgeship Act of 
2003,'' would have authorized 29 permanent and seven temporary 
bankruptcy judgeships. H.R. 975, the ``Bankruptcy Abuse 
Prevention and Consumer Protection Act,'' included a similar 
provision, which would have authorized 28 additional bankruptcy 
judgeships and extended four existing temporary judgeships.
    Legislative History.--On March 25, 2003, Representative 
Jack Kingston (R-GA) (for himself and 22 original cosponsors) 
introduced H.R. 1428, the ``Bankruptcy Judgeship Act of 2003.'' 
The Subcommittee, on May 22, 2003, conducted a hearing on H.R. 
1428. Witnesses who testified at the hearing included 
representatives from the Judicial Conference of the United 
States, the United States Government Accountability Office, and 
the National Conference of Bankruptcy Judges, and a consultant. 
Further consideration of H.R. 1428 by either the House or the 
Senate did not occur prior to the conclusion of the 108th 
Congress.

H.R. 1529, the ``Involuntary Bankruptcy Improvement Act of 2003''

    Summary.--Current law provides that a person can 
voluntarily commence a bankruptcy case \2\ or be involuntarily 
forced into bankruptcy, under certain circumstances.\3\ With 
respect to involuntary bankruptcy, one or more creditors 
(meeting specified criteria) \4\ can file an involuntary 
petition for bankruptcy relief under chapter 7 (liquidation) or 
chapter 11 (business reorganization) of the Bankruptcy Code 
against an individual as well as certain types of business 
entities,\5\ if grounds for granting such relief are 
established.\6\ If the person who is the subject of an 
involuntary bankruptcy petition does not timely oppose the 
petition, the court enters an ``order for relief,'' which 
formally commences the bankruptcy case.\7\ If the involuntary 
petition is opposed by the putative debtor, then the court must 
conduct a trial to determine if the debtor should be 
adjudicated a bankrupt.\8\
---------------------------------------------------------------------------
    \2\ 11 U.S.C. Sec. 301 (2002).
    \3\ 11 U.S.C. Sec. 303 (2002).
    \4\ 11 U.S.C. Sec. 303(b)(2002). If, for example, the alleged 
debtor has less than 12 creditors, a single creditor holding a claim of 
at least $11,625 can commence an involuntary petition. 11 U.S.C. 
Sec. 303(b)(2) (2002).
    \5\ 11 U.S.C. Sec. 303(b) (2002). Certain individuals and entities, 
such as farmers and eleemosynary institutions, cannot be involuntarily 
forced into bankruptcy. Id.
    \6\ A court may grant an involuntary bankruptcy petition only if:

        (1) the debtor is generally not paying such debtor's 
      debts as such debts become due unless such debts are the 
      subject of a bona fide dispute; or
        (2) within 120 days before the date of the filing of the 
      petition, a custodian, other than a trustee, receiver, or 
      agent appointed to take charge of less than substantially 
      all of the property of the debtor for the purpose of 
      enforcing a lien against such property, was appointed or 
      took possession.

11 U.S.C. Sec. 303(b) (2002).
---------------------------------------------------------------------------
    \7\ Id.
    \8\ Id.
---------------------------------------------------------------------------
    In 2002, for example, one tax protester filed fraudulent 
involuntary petitions against 36 local public officials in 
Wisconsin,\9\ some of whom did not find out about the petitions 
until ``they attempted to use a credit card or execute some 
other financial transaction.'' \10\ These filings were 
subsequently dismissed by the bankruptcy court, which found 
that they were filed in bad faith without legal basis and were 
commenced ``for the sole purpose of harrassment of the named 
public officials.'' \11\
---------------------------------------------------------------------------
    \9\ See In re Kenealy, No. 02-6100-MDM (Bankr. E.D. Wis. May 21, 
2002). Involuntary petitions ``were filed against all but one of the 
County Board supervisors,'' the county corporation counsel, county 
sheriff, clerk of courts, and county circuit judge. Jeff Cole, 
Paperwork Uned for Revenge; Protester's Bogus Bankruptcy Petitions 
Temporarily Disrupt Officials' Credit, Milwaukee J. Sentinel, June 6, 
2002, at 1B. The protester also filed numerous liens totaling $15 
million against these individuals. Jeff Cole, Man Charged with Filing 
False Documents; Town of Fredonia Protester's Case in 5th Brough by 
State, Milwaukee J. Sentinel, May 21, 2002, at 1B.
    \10\ Jeff Cole, Paperwork Used for Revenge; Protester's Bogus 
Bankruptcy Petitions Temporarily Disrupt Officials' Credit, Milwaukee 
J. Sentinel, June 6, 2002, at 1B.
    \11\ In re Kenealy, No. 02-26100-MDM (Bankr. E.D. Wis. May 21, 
2002).
---------------------------------------------------------------------------
    Legislative History.--Committee Chairman Sensenbrenner 
introduced H.R. 1529, the ``Involuntary Bankruptcy Improvement 
Act of 2003,'' on April 1, 2003: First, it amended the 
Bankruptcy Code to require the bankruptcy court on motion of an 
individual who was the subject of a fraudulent involuntary 
bankruptcy case to expunge all records relating to that case 
from the court's files. Second, it authorized the bankruptcy 
court to prohibit any credit reporting agency from issuing a 
consumer report containing any reference to a fraudulent 
involuntary bankruptcy case if the case is dismissed.
    On May 7, 2003, the Committee ordered the bill favorably 
reported without amendment by voice vote. Thereafter, the 
report on H.R. 1529 was filed on May 19, 2003 as House Report 
No. 108-110. The House, on June 10, 2003, passed the bill, 
without amendment, under suspension of the rules by voice vote. 
H.R. 1529 was received the following day in the Senate. The 
Senate, however, did not consider the bill prior to the 
conclusion of the 108th Congress.

H.R. 2465, the ``Family Farmer Bankruptcy Relief Act of 2003'' and S. 
        2864, the ``Family Farmer Bankruptcy Relief Act of 2004''

    Summary.--During the 108th Congress, 11 bills were 
introduced to either extend chapter 12 or make it a permanent 
component of the Bankruptcy Code. In addition, a provision that 
would make chapter 12 permanent was included in omnibus 
bankruptcy reform legislation, H.R. 975, the ``Bankruptcy Abuse 
Prevention and Consumer Protection Act.'' Two of these bills, 
providing for the temporary extension of chapter 12, were 
enacted into law.
    Chapter 12 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 in response to the farm financial crisis of the early 
1980s.\12\ It has subsequently been extended several times.
---------------------------------------------------------------------------
    \12\ Pub. L. No. 99-554, 100 Stat. 3088, 3105 (1986).
---------------------------------------------------------------------------
    Legislative History.--On June 12, 2003, Chairman 
Sensenbrenner introduced H.R. 2465, the ``Family Farmer 
Bankruptcy Relief Act of 2003,'' to extend chapter 12 for six 
months to January 1, 2004. The House under the suspension of 
the rules passed the bill, without amendment, by a vote of 379 
to 3 on June 23, 2003. It thereafter passed the Senate on 
unanimous consent, without amendment, on July 31, 2003. The 
bill was signed into law on August 15, 2003 as Public Law No. 
108-73.
    On September 29, 2004, Senator Charles Grassley introduced 
S. 2864, the ``Family Farmer Bankruptcy Relief Act of 2004,'' 
to extend chapter 12 for eighteen months to July 1, 2005. After 
the Senate passed the bill, without amendment, by unanimous 
consent on October 6, 2004, Subcommittee Chairman Chris Cannon 
requested unanimous consent to have the bill discharged from 
the Committee and considered by the House. His request was 
granted and S. 2864 was considered and passed by the House on 
October 8, 2004 by voice vote without amendment. The bill was 
signed into law on October 25, 2004 as Public Law 108-369.

              STATE TAXATION 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,\13\ these claims have 
yet to materialize.
---------------------------------------------------------------------------
    \13\ 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 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 \14\ 
(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.
---------------------------------------------------------------------------
    \14\ The Internet Tax Freedom Act comprises titles XI and XII of 
Division C of the Omnibus Consolidated and Emergency Supplemental 
Appropriations Act of 1999, Pub. L. No. 105-277, 112 Stat. 2681 (1998) 
(codified as amended at 47 U.S.C. Sec. 151 (1998)).
---------------------------------------------------------------------------
    During the 107th Congress, the Subcommittee reported H.R. 
1552 extending the moratorium on taxation of Internet access 
and multiple and discriminatory taxes until November 1, 2003. 
It also maintained the authority of States to collect Internet 
access taxes were generally imposed and collected prior to 
October 1, 1998. That bill was signed into law by President 
Bush on November 28, 2001 as Public Law 107-75.

H.R. 49, the ``Internet Tax Nondiscrimination Act''

    Summary.--H.R. 49, the ``Internet Tax Nondiscrimination 
Act,'' permanently extended the moratorium enacted by the 
Internet Tax Freedom Act. In doing so, H.R. 49 sought to 
promote equal access to the Internet and protect electronic 
commerce from discriminatory State and local taxes. H.R. 49 
applied equally to all States, and therefore contained an 
immediate abolishment of the grandfather clause contained in 
the 1998 ITFA that allowed certain states special status to 
continue taxing Internet access. H.R. 49 also made the 
moratorium permanent rather than subject to renewal.
    Legislative History.--H.R. 49 was introduced by 
Representative Christopher Cox on January 7, 2003 and referred 
to the Judiciary Committee. Subsequently referred to the 
Subcommittee on Commercial and Administrative Law on March 6, 
2003, the bill was the subject of a subcommittee hearing on 
April 1, 2003 at which testimony was received from: Harley T. 
Duncan, Executive Director, Federation of Tax Administrators; 
the Honorable James S. Gilmore, former Governor, Commonwealth 
of Virginia; the Honorable Jack Kemp Co-Director, Empower 
America; and Harris N. Miller, President, Information 
Technology Association of America.
    On May 22, 2003, the Subcommittee on Commercial and 
Administrative Law held amarkup of H.R. 49. During markup, the 
Ranking Minority Member Mel Watt introduced one amendment addressing a 
development in the tax treatment of certain types of Internet access 
since 1998. Mr. Watt noted that some States had issued letter rulings 
that DSL Internet access service constituted a ``bundle'' of taxable 
telecommunications services and Internet access. Thus some Internet 
access had become subject to State taxation in contravention of the 
ITFA, while others were not. Mr. Watt withdrew the amendment, and 
Subcommittee Chairman Chris Cannon stated his intention to study the 
issue and develop amendment language with Mr. Watt to offer for 
consideration at the full Committee markup. Additionally, Mr. Cannon 
offered an amendment in the nature of a substitute which was adopted by 
voice vote.
    At the full Committee markup of H.R. 49 on July 16, 2003, 
Mr. Watt and Mr. Cannon offered an amendment to the definition 
of ``Internet access'' to ensure parity of tax treatment for 
all technologies used to provide Internet access to consumers 
and emphasize the original intent of the ITFA. The amendment 
was adopted and the bill was reported by voice vote.
    H.R. 49 was passed by the House under suspension of the 
rules by voice vote on September 17, 2003.
    On July 31, 2003, the Senate Commerce Committee reported S. 
150 extending the moratorium under the ITFA for five years but 
continuing the grandfather clause for states currently taxing 
Internet access for three years. Further Senate action on S. 
150 was delayed by opposition within that body until April 26, 
2004 when cloture was invoked by a vote of 74-11 and the bill 
was passed as amended by a vote of 93-3 on April 29, 2004, six 
months after the moratorium expired. The final amended version 
of S. 150 that passed the Senate differed from H.R. 49 in 
several important ways. First, rather than a permanent 
moratorium it created a temporary, four-year moratorium on 
Internet access taxes, running retroactively from November 1, 
2003 until November 1, 2007. Second, it extended the 1998 
``grandfather'' clause for the life of the moratorium so those 
states currently taxing Internet access will continue to do so. 
Third, it created a new, two-year grandfather clause for States 
that taxed Internet access after the expiration of the 
moratorium.
    Although the Senate passed its version second, it did not 
seek a conference with the House and indicated an unwillingness 
to go to conference on the legislation. Informal negotiations 
between the House and Senate continued throughout the summer 
and fall of 2004 on crafting a compromise measure until an 
agreement about modest changes was achieved. Pursuant to the 
agreement between House and Senate negotiators, both bodies 
considered and adopted an enrolling resolution, S. Con. Res. 
146, that directed the Secretary of the Senate upon passage of 
the resolution and underlying bill by both chambers to 
incorporate the changes contained therein into the enrolled 
version of S. 150 before it was presented to the President for 
signature. The Senate passed S. Con. Res. 146 on November 17, 
2004. On November 19, 2004 the House passed both S. Con. Res. 
146 and S. 150 under suspension of the rules by voice vote. The 
changes made to S. 150 by this process included a provision 
that ended some state taxation of Internet access previously 
allowed by the original 1998 moratorium grandfather exceptions. 
The final version of S. 150 was signed by President Bush on 
December 3, 2004 as Public Law No. 108-435.

Business activity taxation

    During the 107th Congress, the Subcommittee considered H.R. 
2526, legislation introduced by Representative Bob Goodlatte 
that would, among other things, have established a bright-line 
physical presence nexus requirement for States to collect 
business activity taxes on multistate enterprises.\15\
---------------------------------------------------------------------------
    \15\ 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 a business for the right to conduct 
business within the taxing jurisdiction which is measured by the amount 
of such business or related activity.
---------------------------------------------------------------------------
    The genesis of the physical-presence-nexus portion of the 
bill was the Supreme Court's ruling in Quill Corp. v. North 
Dakota, \16\ 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.'' 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 led to costly 
and protracted litigation between State taxing authorities and 
multistate businesses.
---------------------------------------------------------------------------
    \16\ 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 have reduced 
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 
listed those conditions which would not meet the 'substantial 
physical presence' threshold sufficient to warrant the 
imposition of business activity taxes upon a nonresident 
enterprise. The Subcommittee reported H.R. 2526 to the full 
committee on July 17, 2002, but no further action was taken by 
the House during the 107th Congress.

H.R. 3220, the ``Business Activity Tax Simplification Act of 2003''

    Summary.--H.R. 3220 amended Federal law concerning the 
taxation of interstate commerce to expand the scope of the 
protections prohibiting taxation by jurisdictions of the income 
of out-of-state corporations whose in-state presence is nominal 
from just tangible personal property to include intangible 
property and services. The bill required that an out-of-state 
company have a physical presence in a State before the State 
can impose franchise taxes, business license taxes, and other 
business activity taxes.
    Legislative History.--H.R. 3220 was introduced on October 
1, 2003 by Representative Goodlatte. Referred to the 
Subcommittee on Commercial and Administrative Law on October 
22, 2003, the bill was the subject of a public hearing on May 
13, 2004. There was no further consideration of H.R. 3220 
during the 108th Congress.

                              Tort Reform


H.R. 339--the ``Personal Responsibility in Food Consumption Act of 
        2004''

    Summary.--H.R. 339, the ``Personal Responsibility in Food 
Consumption Act,'' would generally prohibit obesity or weight 
gain-related claims against the food industry. It would, 
however, allow obesity-related claims to go forward in several 
circumstances, including cases in which a state or federal law 
was broken and as a result a person gained weight. Under H.R. 
339, cases could also go forward in which a company violates an 
express contract or warranty. Also, because H.R. 339 only 
applies to claims based on ``weight gain'' or ``obesity,'' 
lawsuits could go forward under the bill if, for example, 
someone gets sick from a tainted hamburger. H.R. 339 also 
contains provisions governing the conduct of legal proceedings. 
First, H.R. 339 includes the discovery provisions designed to 
prevent fishing expeditions that are already part of our 
federal securities laws. These provisions provide that 
discovery of documents be stayed while the court decides 
whether the case should be dismissed, unless the court decides 
that particular discovery is necessary to preserve evidence or 
to prevent undue prejudice to a party. Such provisions also 
provide for court sanctions if a defendant destroys any 
documents relevant to the litigation. Second, H.R. 339 contains 
provisions that require that a complaint must set out the state 
and federal laws that were allegedly violated, and the facts 
that are alleged to have proximately caused the injuries 
claimed, whenever a lawsuit is filed under the exception in the 
bill that allows obesity claims to proceed when a violation of 
state or federal law was the proximate cause of harm.
    Legislative History.--H.R. 339, the ``Personal 
Responsibility in Food Consumption Act of 2003,'' was 
introduced by Rep. Ric Keller on January 27, 2003. On May 19, 
2003, H.R. 339 was referred to the Subcommittee on Commercial 
and Administrative Law for purposes of hearing only 
(jurisdiction retained at Full Committee). On June 19, 2003, 
the Subcommittee held a hearing on H.R. 339 at which testimony 
was received from the following witnesses: John Banzhaf, 
Professor, George Washington University Law School; Victor 
Schwartz, Shook, Hardy & Bacon; Christianne Ricchi, the 
National Restaurant Association; and Richard Berman, the Center 
for Consumer Freedom. On January 28, 2004, the Committee met in 
open session and ordered favorably reported the bill H.R. 339 
with an amendment by voice vote, a quorum being present. (H. 
Rept. No. 108-432). On March 10, 2004, H.R. 339 was passed by 
the House by a vote of 276 to 139. No further action was taken 
on the bill.

                           ADMINISTRATIVE LAW

H.R. 4917, the ``Federal Regulatory Improvement Act of 2004''

    Summary.--Established as a permanent independent agency in 
1964, the Administrative Conference of the United States 
(Conference or ACUS) was created to develop recommendations for 
improving procedures by which federal agencies administer 
regulatory, benefit, and other government programs.\17\ The 
Conference's jurisdiction over administrative procedure was 
intentionally broad.\18\ It was authorized to study ``the 
efficiency, adequacy, and fairness of the administrative 
procedure used by administrative agencies in carrying out 
administrative programs, and make recommendations to 
administrative agencies, collectively or individually, and to 
the President, Congress, or the Judicial Conference of the 
United States[.]'' \19\ In addition, ACUS facilitated the 
exchange among administrative agencies of information 
potentially useful in improving administrative procedure. The 
Conference also collected information and statistics from 
administrative agencies and published reports evaluating and 
improving administrative procedure. It served as a ``private-
public think tank'' that conducted ``basic research on how to 
improve the regulatory and legal process.'' \20\ Although 
ACUS's authorization expired as of February 1, 1996, the 
statutory provisions establishing the Conference were not 
repealed.\21\
---------------------------------------------------------------------------
    \17\ Administrative Conference Act of 1964, Pub. L. No. 88-499, 5 
U.S.C. Sec. Sec. 591-96 (2002). Temporary conferences were established 
in 1953 by President Eisenhower, Memorandum Convening the President's 
Commission on Administrative Procedure, Pub. Papers, 219-22 (Apr. 28, 
1953), and in 1961 by President Kennedy, Exec. Order No. 10,934, 26 
Fed. Reg. 3233 (Apr. 13, 1961).
    \18\ Section 592 of title 5, for example, provides that the term 
``administrative procedure,'' is to be ``broadly construed to include 
any aspect of agency organization, procedure, or management which may 
affect the equitable consideration of public and private interests, the 
fairness of agency decisions, the speed of agency action, and the 
relationship of operating methods to later judicial review. . . .'' 5 
U.S.C. Sec. 592(3) (2002).
    \19\ 5 U.S.C. Sec. 594(1) (2002).
    \20\ Reauthorization of the Administrative Conference of the United 
States Before the Subcomm. on Commercial and Administrative Law of the 
House Comm. on the Judiciary, 104th Cong. 31 (1994) (statement of C. 
Boyden Gray).
    \21\ H.R. Rep. 104-291, at 6 (1995).
---------------------------------------------------------------------------
    H.R. 4917 was introduced to reauthorize ACUS. The bill grew 
out of two oversight hearings that the Subcommittee on 
Commercial and Administrative Law held on the Conference, which 
are described in the Subcommittee's Oversight Activities 
section of this Report. The bill amends Sec. 591 of Title 5 of 
the United States Code, which sets forth the Conference's 
purposes, to add four additional purposes as follows: (1) 
promote more effective public participation and efficiency in 
the rulemaking process; (2) reduce unnecessary litigation in 
the regulatory process; (3) improve the use of science in the 
regulatory process; and (4) improve the effectiveness of laws 
applicable to the regulatory process. In addition, the bill 
revises Sec. 596 of Title 5 of the United States Code to 
authorize $3 million for fiscal year 2005, $3.1 million for 
fiscal year 2006, and $3.2 for fiscal year 2007.
    Legislative History.--On July 22, 2004, Subcommittee on 
Commercial and Administrative Law Chairman Chris Cannon (for 
himself and 33 original cosponsors) introduced H.R. 4917, the 
``Federal Regulatory Improvement Act of 2004.'' On request of 
Subcommittee Chairman Cannon, the bill was discharged from the 
Committee and considered by the House on unanimous consent. The 
House passed the bill, without amendment, by voice vote on 
October 8, 2004. H.R. 4917 was received by the Senate on the 
following day. On October 11, 2004, the Senate passed the bill 
without amendment on unanimous consent. Thereafter, the bill 
was signed into law as Public Law 108-401 on October 30, 2004.

                          Oversight Activities


Oversight hearing list

------------------------------------------------------------------------
         Date/Serial No.                       Hearing title
------------------------------------------------------------------------
April 8, 2003/# 28...............  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.
October 1, 2003/# 57.............  Streamlined Sales Tax Agreement:
                                    States' Efforts to Facilitate Sales
                                    Tax Collection from Remote Vendors
February 10, 2004/#85............  Privacy in the Hands of the
                                    Government: The Privacy Officer for
                                    the Department of Homeland Security
March 9, 2004/# 79...............  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
March 31, 2004/# 100.............  Legal Services Corporation (LSC):
                                    Inquiry into the Activities of the
                                    California Rural Legal Assistance
                                    Program and Testimony Relating to
                                    the Merits of Client Co-Pay
May 20, 2004/# 109...............  Reauthorization of the Administrative
                                    Conference of the United States--
                                    Part I
June 24, 2004/# 109..............  Administrative Conference of the
                                    United States--Part II: Why Is There
                                    a Need to Reauthorize the Conference
July 21, 2004/# 114..............  Administration of Large Business
                                    Bankruptcy Reorganizations: Has
                                    Competition for Big Cases Corrupted
                                    the Bankruptcy System?
July 23, 2004/# 102..............  Regulatory Aspects of Voice Over the
                                    Internet Protocol (VoIP)
August 20, 2004/# 113............  Regarding Privacy and Civil Liberties
                                    in the Hands of the Government Post-
                                    September 11, 2001: Recommendations
                                    of the 9/11 Commission and the U.S.
                                    Department of Defense Technology and
                                    Privacy Advisory Committee
------------------------------------------------------------------------

Privacy in the hands of the government: The privacy officer for the 
        Department of Homeland Security

    The Privacy Act of 1974 regulates how federal agencies may 
use personally identifiableinformation they collect from 
individuals.\22\ It generally prohibits these agencies from disclosing 
this information to other federal or state agencies or to any other 
person,\23\ subject to certain specified exceptions.\24\ An agency that 
releases such information in violation of the Privacy Act may be sued 
for damages sustained by an individual as a result of such violation, 
under certain circumstances.\25\ In addition, the Privacy Act grants 
individuals the right to have agency records maintained on themselves 
corrected upon a showing that such records are inaccurate, irrelevant, 
out-of-date, or incomplete.\26\
---------------------------------------------------------------------------
    \22\ 5 U.S.C. Sec. 552a (2002). According to one treatise, the 
Privacy Act ``gives individuals greater control over gathering, 
dissemination, and ensuring accuracy of information collected about 
themselves by agencies'' and that its ``main purpose'' is to ``forbid 
disclosure unless it is required by the Freedom of Information Act.'' 
Administrative Conference of the United States, Federal Administrative 
Procedure Sourcebook--Statutes and Related Materials 863 (2d ed. 1992).
    \23\ 5 U.S.C. Sec. 552a(b) (2002). For example, medical, 
educational, criminal, financial, and employment records generally may 
not be disclosed. 5 U.S.C. Sec. 552a(a)(4) (2002).
    \24\ The Privacy Act, for instance, except disclosures that 
constitute a ``routine use'' of such information by an agency 
``compatible with the purpose for which it was collected.'' 5 U.S.C. 
Sec. 552a(a)(7), (d)(3) (2002). It also permits disclosure for law 
enforcement purposes, in response to a Congressional request, pursuant 
to court order, for the purpose of carrying out a census, or to a 
consumer reporting agency. 5 U.S.C. Sec. 552a(b) (2002).
    \25\ 5 U.S.C. Sec. 552a(g)(4) (2002).
    \26\ 5 U.S.C. Sec. 552a(d) (2002).
---------------------------------------------------------------------------
    Technological developments have increasingly facilitated 
the collection and dissemination of personally identifiable 
information and have correspondingly increased the potential 
for misuse of such information.\27\ Compliance with the Privacy 
Act by federal agencies, however, remains ``uneven,'' according 
to the U.S. Government Accountability Office.\28\
---------------------------------------------------------------------------
    \27\ The Federal GTrade Commission, for example, reported that 
``identity theft topped the list'' of consumer complaints it received 
in 2002 and that they accounted for 43 percent of the complaints lodged 
in its database. Federal Trade Commission Release, TC Releases Top 10 
Consumer Complaint Categories in 2002--As in 2000 and 2001, Identity 
Theft Tops the List, at 1 (Jan. 22, 2003), at http://www.ftc.gov/opa/
2003/01/top10.htm.
    \28\ U.S. Government Accountability Office, Privacy Act: OMB 
Leadership Needed to Improve Agency Compliance, GAO-03-304, at 1 (June 
2003).
---------------------------------------------------------------------------
    Particularly since the September 11, 2001 terrorist 
attacks, Congress has sought to balance two competing goals: 
keeping the nation secure and protecting the privacy rights of 
our nation's citizens. The desire to achieve and maintain this 
balance was reflected in the debate concerning the creation of 
the Department of Homeland Security (Department or DHS) during 
the 107th Congress. In 2002, the Subcommittee held a hearing on 
various privacy and administrative law issues presented by the 
anticipated creation of the Department.\29\ Among the matters 
considered were issues concerning how the new Department would 
ensure the privacy of personally identifiable information as it 
``establishes necessary databases that coordinate with other 
agencies of the Government.'' \30\ Concerns were expressed on a 
bipartisan basis about the agency's ability to collect, manage, 
share, and secure personally identifiable information.\31\ Over 
the course of the hearing, it became apparent that the 
Department would benefit from the appointment of an individual 
responsible for privacy issues.\32\
---------------------------------------------------------------------------
    \29\ Administrative Law, Adjudicatory Issues, and Privacy 
Ramifications of Creating a Department of Homeland Security: Hearing 
Before the Subcomm. on Commercial and Administrative Law of the House 
Comm. on the Judiciary, 107th Congress (2002).
    \30\ Id. at 2 (statement of Subcommittee Chairman Chris Cannon).
    \31\ See, e.g., id. at 3-4 (statements of Rep. Mark Green and Rep. 
Maxine Waters).
    \32\ Id. at 14 (statement of Professor Jeffrey S. Lubbers, 
Washington College of Law--American University); 20 (statement of 
Professor Peter P. Swire, Chief Counselor for Privacy, U.S. Office of 
Management and Budget under the Clinton Administration);
---------------------------------------------------------------------------
    In response to such persuasive testimony, the Subcommittee 
with the support of Committee Chairman Sensenbrenner, 
successfully sought to have legislation establishing the 
Department amended to include the appointment of a privacy 
officer.\33\ This legislation, signed into law on November 25, 
2002,\34\ directed the DHS Secretary to appoint a senior 
official in the Department to ``assume primary responsibility 
for privacy policy.'' \35\ In April of 2003, DHS Secretary Tom 
Ridge appointed Nuala O'Connor Kelly to serve as the 
Department's privacy officer.\36\
---------------------------------------------------------------------------
    \33\ H. Rep. No. 107-609, at 9-10 (2002).
    \34\ Pub. L. No. 107-296, Sec. 222, 116 Stat. 2135, 2155 (2002).
    \35\ 6 U.S.C. Sec. 142 note (2002). The statutory duties of the 
privacy officer are specified as the following:

        (1) assuring that the use of technologies sustain, and do 
      not erode, privacy protections relating to the use, 
      collection, and disclosure of personal information;
        (2) assuring that personal information contained in 
      Privacy Act systems of records is handled in full 
      compliance with fair information practices as set out int 
      he Privacy Act of 1974;
        (3) evaluating legislative and regulatory proposals 
      involving collection, use, and disclosure of personal 
      information by the Federal Government;
        (4) conducting a privacy impact assessment of proposed 
      rules of the Department or that of the Department on the 
      privacy of personal information, including the type of 
      personal information collected and the number of people 
      affected; and
        (5) preparing a report to Congress on an annual basis on 
      activities of the Department that affect privacy, including 
      complaints of privacy violations, implementation of the 
      Privacy Act of 1974, internal controls, and other matters.

Id.
---------------------------------------------------------------------------
    \36\ DHS Press Release, Department of Homeland Security Announces 
Privacy Officer (Apr. 16, 2003).
---------------------------------------------------------------------------
    Since her appointment, Ms. Kelly has played an active role 
in evaluating privacy ramifications of various terrorist-
detection initiatives undertaken by the DHS, including the 
Computer-Assisted Passenger Prescreening System (also known as 
CAPPS II), a prescreening system designed to conduct risk 
assessments and authentications for airline passengers 
traveling to the United States.\37\ After the revelation that 
certain airlines apparently shared passenger data without their 
knowledge with federal agencies,\38\ Ms. Kelly met with airline 
executives to discuss privacy protections for passengers and 
the need to improve their privacy policies.\39\ She also 
investigated whether any agencies or airlines acted 
improperly.\40\
---------------------------------------------------------------------------
    \37\ See U.S. Department of Homeland Security Transportation 
Security Administration--Privacy Act of 1974: System of Records Notice 
of Status of System of Records; Interim Final Notice; Request for 
Further Comments, 68 Fed. Reg. 45265, 45265 (Aug. 1, 2003).
    \38\ Leslie Miller, Airline Industry To Work on Privacy Issues, 
Associated Press, Jan. 22, 2004; Terence Neilan, Suits Against Airline 
Put Focus on Privacy Concerns, N.Y. Times, Jan. 22, 2004; Sara 
Kehaulani Goo, Northwest Gave U.S. Data on Passengers; Airline Had 
Denied Sharing Information for Security Effort, Wash. Post, Jan. 18, 
2004, at A1; Matthew L. Wald, Airline Gave Government Information on 
Passengers, N.Y. Times, Jan 18, 2004, at 16.
    \39\ Leslie Miller, Airline Industry To Work on Privacy Issues, 
Associated Press, Jan. 22, 2004.
    \40\ Drew Clark, Privacy: Homeland Security Official Discusses 
Department's Privacy Work, Nat'l Journal's Technology Daily PM, Nov. 
17, 2003; Philip Shenon & John Schwartz, JetBlue Target of Inquiries by 
2 Agencies, N.Y. Times, Sept. 23, 2003, at 1.
---------------------------------------------------------------------------
    In addition, Ms. Kelly prepared a privacy impact assessment 
for the United States Visitor and Immigration Status Indicator 
Technology Program, an integrated entry and exit data system 
designed to: (1) record the entry into and exit out of the 
United States by certain individuals; (2) verify the identity 
of such individuals; and (3) confirm their compliance with the 
terms of their admission into the United States.\41\ The 
privacy impact assessment ``was hailed by many in the privacy 
community as an excellent model of transparency, including 
detailed information about the program, the technology and the 
privacy protections.'' \42\
---------------------------------------------------------------------------
    \41\ U.S. Department of Homeland Security, Privacy Impact 
Assessment and Privacy Policy; US-VISIT Program, 69 Fed. Reg, 2608-15 
(Jan. 16, 2004). The US-VISIT Program was implemented pursuant to the 
Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No. 
107-173, Title III, Sec. 302 (codified at 8 U.S.C. 1731 (2002)).
    \42\ Review of US-VISIT Border Security Program: Hearing Before the 
Subcomm. on Infrastructure and Border Security of the House Select 
Comm. on Homeland Security, 108th Cong. 36 (2004) (testimony of 
Undersecretary Asa Hutchinson, Department of Homeland Security).
---------------------------------------------------------------------------
    To assess Ms. Kelly's performance and execution of her 
official responsibilities, the Subcommittee held an oversight 
hearing on February 10, 2004. In addition to Ms. Kelly, 
witnesses at the hearing included the Honorable James S. 
Gilmore, President, USA Secure Corporation; Professor Sally 
Katzen, Visiting Professor at the University of Michigan Law 
School; and James Dempsey, Executive Director, the Center for 
Democracy & Technology. The three private sector witnesses 
generally endorsed Ms. Kelly's work and performance.
    Based on the results of this hearing, the Subcommittee 
actively pursued and ultimately obtained the inclusion of a 
provision in H.R. 3036, the ``Department of Justice 
Appropriations Authorization Act, Fiscal Years 2004 through 
2006,'' requiring the Attorney General to designate a senior 
official to assume primary responsibility for privacy 
policy.\43\ This bill is discussed in greater detail in the 
Committee section of this Report.
---------------------------------------------------------------------------
    \43\ H.R. 3036, 108th Cong. Sec. 305 (2003).
---------------------------------------------------------------------------
    In addition, the Subcommittee sought and successfully 
obtained inclusion in legislation reorganizing our nation's 
intelligence agencies, S. 2845, the ``Intelligence Reform and 
Terrorism Prevention Act of 2004,'' a provision expressing a 
sense of the Congress that the head of a Federal agency with 
law enforcement or anti-terrorism functions appoint a chief 
privacy officer to have primary responsibility for that 
agency's privacy policy.\44\ S. 2845 is discussed in greater 
detail in the Committee section of this Report.
---------------------------------------------------------------------------
    \44\ H. Rep. No. 108-796, at 53 (2004).
---------------------------------------------------------------------------

Reauthorization of the Administrative Conference of the United States

    As earlier noted in the Subcommittee's Legislative 
Activities section discussion of H.R. 4917, the ``Federal 
Regulatory Improvement Act of 2004,'' the bill, which was 
enacted into law as Public Law 108-401, reauthorizes the 
Administrative Conference of the United States. H.R. 4917 grew 
out of two oversight hearings conducted by the Subcommittee.
    Witnesses at the first oversight hearing, held May 20, 
2004, consisted of the Honorable Antonin Scalia and the 
Honorable Stephen Breyer, Associate Justices of the United 
States Supreme Court. Both Justices, without qualification, 
strongly endorsed the Administrative Conference and supported 
its reauthorization. Justice Scalia, a former chairman of the 
Conference, described this agency as ``a worthwhile 
organization'' that offered ``a unique combination of talents 
from the academic world, from within the executive branch * * * 
and, thirdly, from the private bar, especially lawyers 
particularly familiar with administrative law.'' \45\ He 
observed, ``I did not know another organization that so 
effectively combined the best talent from each of those 
areas.'' In addition, he said that the Conference was ``an 
enormous bargain.'' \46\ Likewise, Justice Breyer cited the 
``huge'' savings to the public as a result of the Conference's 
recommendations.\47\ Noting that the Conference was ``a matter 
of good Government,'' he stated, ``I very much hope you 
reauthorize the Administrative Conference.'' \48\ Both Justices 
agreed that there were various matters that a reauthorized 
Conference could examine. These included assessing the value of 
having agencies use teleconferencing facilities and the need to 
create a regulatory process that promotes sound science.\49\
---------------------------------------------------------------------------
    \45\ Reauthorization of the Administrative Conference of the United 
States Before the Subcomm. on Commercial and Administrative Law of the 
House Comm. on the Judiciary, 108th Cong. 10 (2004).
    \46\ Id. at 21.
    \47\ Id. at 22.
    \48\ Id. at 15.
    \49\ Id. at 25-26.
---------------------------------------------------------------------------
    A second oversight hearing on this matter was held June 24, 
2004. Witnesses at the hearing included C. Boyden Gray, on 
behalf of the American Bar Association; Professor Gary J. 
Edles, Fellow in Administrative Law at American University 
Washington College of Law and General Counsel of the 
Administrative Conference from 1987 to 1995; Professor Philip 
J. Harter,Earl F. Nelson Professor of Law Center for the Study 
of Dispute Resolution, University of Missouri Law School; and Professor 
Sallyanne Payton, William W. Cook Professor of Law at the University of 
Michigan Law School, on behalf of the National Academy of Public 
Administration.
    As with the prior hearing, each witness at this latter 
hearing enthusiastically endorsed the Conference's work and 
supported its reauthorization. Issues explored at this hearing 
included the following: (1) whether the Conference should be 
reauthorized without any modification; (2) whether the 
Conference should be established as part of another agency, 
such as the Justice Department or be the General Services 
Administration, or privatized; (3) the priorities of a 
reconstituted Conference; and (4) the amount of funding 
necessary to authorize the Conference.

Administration of large business bankruptcy reorganizations: Has 
        competition for big cases corrupted the bankruptcy system?

    From a societal perspective, chapter 11 of the Bankruptcy 
Code reflects the premise that ``the debtor is worth more 
economically alive than economically dead.'' \50\ Unlike a 
liquidation case (where the debtor's assets are sold to pay the 
claims of creditors), a chapter 11 reorganization case permits 
a debtor to restructure its finances while continuing to 
operate its business.\51\ The perceived benefits of this 
process are that it theoretically preserves the debtor's going 
concern value, enables the debtor to repay its creditors, and 
provides continued employment for its workers. Absent 
bankruptcy, claimants engage in a veritable ``race to the 
courthouse'' leaving little recourse for future claimants.
---------------------------------------------------------------------------
    \50\ Linda J. Rusch, Unintended Consequences of Unthinking 
Tinkering: The 1994 Amendments to the Chapter 11 Process, 69 Am. Bankr. 
L.J. 349, 349 (1995).
    \51\ Note, however, that a debtor may also liquidate all of its 
assets in Chapter 11. See 11 U.S.C. Sec. 1123(a)(5)(B), (D) (2002).
---------------------------------------------------------------------------
    Some academics describe the ``Delawarization'' of 
bankruptcy venue as an ``embarrassing'' development \52\ and 
cite the higher failure rates of cases filed in Delaware.\53\ 
Critics ``also complain that Delaware's bankruptcy judges are 
so interested in attracting prominent reorganizations to 
Delaware that they will take only debtors' interests into 
account.'' \54\ On the other hand, some observers view this 
development ``as part of beneficial jurisdictional competition 
that serves to force bankruptcy judges to make bankruptcy 
outcomes more efficient.'' \55\
---------------------------------------------------------------------------
    \52\ Theodore Eisenberg & Lynn M. LoPucki, Shopping for Judges: An 
Empirical Analysis of Venue Choice in Large Chapter 11 Reorganizations, 
84 Cornell L. Rev. at 968.
    \53\ See, e.g., Lynn M. LoPucki & Joseph W. Doherty, Why Are 
Delaware and New York Bankruptcy Reorganizations Failing? 55 Vand. L. 
Rev. 1933 (2002). These academics concluded:

      The data show that during their first five years, firms 
      emerging from Delaware bankruptcy court reorganizations 
      refile more often than firms emerging from [o]ther [c]ourt 
      reoganizations. Specifically, firms emerging from Delaware 
      reorganization were more than ten times as likely to refile 
      (42%) during this period than were firms emerging from 
      reorganization in Other Courts (4%) and more than twice as 
      likely to refile as firms emerging from New York 
---------------------------------------------------------------------------
      reorganization (19%)[.]

Id. at 1939.
---------------------------------------------------------------------------
    \54\ David A. Skeel, Jr., Bankruptcy Judges and Bankruptcy Venue: 
Some Thoughts on Delaware, 1 Del. L. Rev. 1, 1 (1998).
    \55\ Barry E. Adler & Henry N. Butler, On the ``Delawarization of 
Bankruptcy'' Debate, 52 Emory L.J. at 1310; see, e.g.,Douglas G. Baird 
& Robert K. Rasmussen, Control Rights, Priority Rights, and the 
Conceptual Foundations of Corporate Reorganizations, 87 VA. L. Rev. 921 
(2001); Robert K. Rasmussen & Randall S. Thomas, Whither the Race? A 
Comment on the Effects of the Delawarization of Corporate 
Reorganizations, 54 Vand. L. Rev. 283 (2001).
---------------------------------------------------------------------------
    Over the years, various legislative responses have been 
considered. In 1997, for example, the National Bankruptcy 
Review Commission recommended, as part of its report to 
Congress,\56\ that the venue options of corporate debtors be 
restricted to districts in which their principal places of 
business or principal assets are located. As part of its 
consideration of comprehensive bankruptcy reform.\57\
---------------------------------------------------------------------------
    \56\ National Bankruptcy Review Commission, Bankruptcy: The Next 
Twenty Years 770-87, 791 (1997).
    \57\ In the 108th Congress, for example, considered an amendment 
that would have restricted venue of corporate bankruptcy cases to where 
the debtor's principal place of business is located. The amendment 
failed by a vote of 155 to 269. 149 Cong. Rec. H2095-96 (daily ed. Mar. 
19, 2003). In the 107th Congress, a similar provision was included in 
bankruptcy legislation, as reported by the Committee. H.R Rep. No. 106-
123, at 36, 144 (1999).
---------------------------------------------------------------------------
    To provide an opportunity to examine into the validity of 
these and other concerns, the Subcommittee held an oversight 
hearing on July 21, 2004 that focused on how large chapter 11 
cases are administered in the current bankruptcy system. 
Witnesses at the hearing consisted of Roberta DeAngelis, Acting 
United States Trustee for Region 3, on behalf of the Executive 
Office for United States Trustees; Professor Lynn LoPucki, UCLA 
School of Law; and Professor Lester Brickman, Yeshiva 
University--Benjamin N. Cardozo School of Law. The witnesses 
addressed the following matters: (1) whether the bankruptcy 
courts seek to attract large chapter 11 cases; (2) whether the 
current law adequately addresses the treatment of future mass 
claims; (3) whether the venue provisions in Title 28 of the 
United States Code provide adequate protection against 
inappropriate forum shopping by chapter 11 debtors; (4) whether 
prepackaged reorganization plans create an unlevel playing 
field for participants in chapter 11 cases; (5) whether such 
plans result in higher failure rates; (6) why the failure rates 
of chapter 11 cases in certain districts higher than in other 
districts; and (7) whether the United States Trustee Program 
adequately polices the integrity of the bankruptcy system, 
especially with respect to large chapter 11 cases.
    Further analysis of these issues will continue during the 
109th Congress, particularly with respect to the treatment of 
asbestos claims in bankruptcy cases.

Regarding privacy and civil liberties in the hands of the government 
        Post-September 11, 2001: Recommendations of the 9/11 Commission 
        and the U.S. Department of Defense Technology and Privacy 
        Advisory Committee

    On November 27, 2002, President George W. Bush signed into 
law legislation creating the National Commission on Terrorist 
Attacks Upon the United States (9/11 Commission or 
Commission).\58\ The Commission's principal responsibility was 
to ``examine and report upon the facts and causes relating to 
the terrorist attacks of September 11, 2001,'' with respect to 
intelligence and law enforcement agencies, diplomacy, 
immigration and border control, the flow of assets to terrorist 
organizations, commercial aviation, and the role of 
congressional oversight and resource allocation, among other 
matters, and to suggest ``corrective measures that can be taken 
to prevent acts of terrorism.'' \59\ Established on an 
independent, bipartisan basis,\60\ the 9/11 Commission held 19 
days of hearings and received public testimony from 160 
witnesses over the course of its 20-month existence.\61\
---------------------------------------------------------------------------
    \58\ Intelligence Authorization Act for Fiscal Year 2003, Pub. L. 
No. 107-306, Title VI, 116 Stat. 2383, 2408-13 (2002).
    \59\ Id. at Sec. Sec. 602(1), (5), 604.
    \60\ Id. at Sec. 603. The Republican members were Commission Chair 
Thomas H. Kean, Fred F. Fielding, Slade Gorton, John F. Lehman, and 
James R. Thompson. The Democratic members were Commission Vice Chair 
Lee H. Hamilton, Richard Ben-Veniste, Jamie S. Gorelick, Bob Kerrey, 
and Timothy J. Roemer. The 9/11 Commission Report--Final Report of the 
National Commission on Terrorist Attacks Upon the United States, at xii 
(2004) [hereinafter 9/11 Commission Report].
    \61\ The 9/11 Commission Report--Final Report of the National 
Commissionon Terrorist Attacks Upon the United States, at xv (2004).
---------------------------------------------------------------------------
    Pursuant to its statutory mandate, the Commission submitted 
its final report and unanimous recommendations to Congress and 
the President on July 22, 2004.\62\ The 567-page report 
provides a detailed chronicle of the events leading up to the 
September 11th attacks. The paperback version of the report has 
since become a ``national bestseller, a first for such a 
commission report.'' \63\ As part of its analysis of these 
events, the Commission identified ``fault lines within our 
government--between foreign and domestic intelligence, and 
between and within agencies.'' \64\ The Commission also cited 
``pervasive problems of managing and sharing information across 
a large and unwieldy government that had been built in a 
different era to confront different dangers.'' \65\
---------------------------------------------------------------------------
    \62\ Press Release, 9/11 Commission, 9-11 Commission Releases 
Unanimous Final Report--Calls for Quick Action on Recommendations to 
Prevent Future Attacks (July 22, 2004), at http://www.9-
11commission.gov/press/pr-2004-07-22.pdf.
    \63\ Jim VandeHei, 9/11 Panel Roiling Campaign Platforms, Wash. 
Post, Aug. 9, 2004, at A1.
    \64\ The 9/11 Commission Report--Final Report of the National 
Commission on Terrorist Attacks Upon the United States, at xvi (2004).
    \65\ Id.
---------------------------------------------------------------------------
    The Commission's Report contained 41 recommendations, 
``[m]any'' of which called for the government to increase its 
presence in our lives--for example, by creating standards for 
the issuance of forms of identification, by better securing our 
borders, [and] by sharing information gathered by many 
different agencies.'' \66\ Three of these recommendations, 
however, specifically addressed the need to protect our 
citizens' privacy and civil liberties.\67\
---------------------------------------------------------------------------
    \66\ Id. at 393-94. As part of its findings concerning operational 
management issues, the Commission observed:

        Earlier in this report we detailed various missed 
      opportunities to thwart the 9/11 plot. Information was not 
      shared, sometimes inadvertently or because of legal 
      misunderstandings. Analysis was not pooled. Effective 
      operations were not launched. Often the handoffs of 
      information were lost across the divide separating the 
---------------------------------------------------------------------------
      foreign and domestic agencies of the government.

Id. at 353.
---------------------------------------------------------------------------
    \67\ The three recommendations were as follows:

        As the President determines the guidelines for 
      information sharing among government agencies and by those 
      agencies with the private sector, he should safeguard the 
      privacy of individuals about whom information is shared.
        The burden of proof for retaining a particular 
      governmental power should be on the executive, to explain 
      (a) that the power actually materially enhances security 
      and (b) that there is adequate supervision of the 
      executive's use of the powers to ensure protection of civil 
      liberties. If the power is granted, there must be adequate 
      guidelines and oversight to properly confine its use.
        At this time of increased and consolidated government 
      authority, there should be a board within the executive 
      branch to oversee adherence to the guidelines we recommend 
      and the commitment the government makes to defend our civil 
      liberties.

Id. at 394-95.
---------------------------------------------------------------------------
    With respect to a related concern regarding the need for secure 
identification information, the Commission made the following 
recommendation:

        Secure identification should begin in the United States. 
      The federal government should set standards for the 
      issuance of birth certificates and sources of 
      identification, such as drivers licenses. Fraud in 
      identification documents is no longer just a problem of 
      theft. At many entry points to vulnerable facilities, 
      including gates for boarding aircraft, sources of 
      identification are the last opportunity to ensure that 
      people are who they say they are and to check whether they 
---------------------------------------------------------------------------
      are terrorists.

Id. at 390.
    As the Commission engaged in its deliberations, the U.S. 
Department of Defense (DOD) undertook a self-examination of how 
it treats private information. In February 2003, Secretary 
Donald Rumsfeld appointed the Technology and Privacy Advisory 
Committee (TAPAC) to examine the Terrorism Information 
Awareness Program (TIA or Program), a controversial data mining 
project.\68\ TAPAC was tasked with proposing recommendations 
that would ``ensure that the application of this or any like 
technology developed within DOD is carried out in accordance 
with U.S. law and American values related to privacy.'' \69\ 
The eight-member, bipartisan committee was comprised of private 
citizens, ``independent from the government and `selected on 
the basis of their preeminence in the fields of constitutional 
law and public policy relating to communication and information 
management.' '' \70\ Over the course of its deliberations, 
TAPAC received testimony from 60 witnesses, including Members 
of Congress, representatives from the DOD and other government 
agencies, private industry, academia, and various advocacy 
groups.\71\ TAPAC's final report included five recommendations 
regarding government-wide data mining operations.\72\
---------------------------------------------------------------------------
    \68\ Created by the Defense Advanced Research Projects Agency 
(DARPA) in 2002, the TIA Program was intended to proactively detect 
terrorist plots through the use of data mining. Its ambitious data 
mining security system/network would have gathered, among other things, 
personally identifiable information from governmental and private 
sources to prevent future international terrorist attacks against the 
United States by preemptively determining behavior patterns indicative 
of terrorist activities. U.S. Department of Defense, Executive Summary, 
Report to Congress Regarding the Terrorism Information Awareness 
Program, at 1, note 1 (May 20, 2003); see Gina Marie Stevens, Privacy: 
Total Information Awareness Programs and Related Information Access, 
Collection, and Protection Laws, Congressional Research Service Report 
for Congress, at 3 (Mar. 21, 2003). The Program was previously known as 
``Total Information Awareness,'' but was changed to its present title 
because the former name ``created in some minds the impression that TIA 
was a system to be used for developing dossiers on U.S. citizens.'' 
U.S. Department of Defense, Executive Summary, Report to Congress 
Regarding the Terrorism Information Awareness Program, at 1 (May 20, 
2003).
    \69\ U.S. Department of Defense, safeguarding Privacy in Re Fight 
Against Terrorism--Report of the Technology and Privacy Advisory 
Committee, at vii (Mar. 2004) (quoting U.S. Department of Defense, 
Technology and Privacy Advisory Committee Charter (Mar. 25, 2003)).
    \70\ Id. at 1 (quoting U.S. Department of Defense Notice of 
Establishment of the Technology and Privacy Advisory Committee, 68 Fed. 
Reg. 11384 (Mar. 10, 2003)).
    \71\ Id. at 2, 97-98.
    \72\ The five recommendations were as follows:

        The [DOD] Secretary should recommend that Congress and 
      the President establish one framework of legal, 
      technological, training, and oversight mechanisms necessary 
      to guarantee the privacy of U.S. persons in the context of 
      national security and law enforcement.
        The [DOD] Secretary should recommend that the President 
      appoint an inter-agency committee to help ensure the 
      quality and consistency of federal government efforts to 
      safeguard informational privacy in the context of national 
      security and law enforcement activities.
        The [DOD] Secretary should recommend that the President 
      appoint a panel of external advisors to advise the 
      President concerning federal government efforts to 
      safeguard informational privacy in the context of national 
      security and law enforcement activities.
        The [DOD] Secretary should recommend that the President 
      and Congress take those steps necessary to ensure the 
      protection of U.S. persons' privacy and the efficient and 
      effective oversight of government data mining activities 
      through the judiciary and by this nation's elected leaders 
      through a politically credible process. Specifically, 
      Congress and the President should authorize the Foreign 
      Intelligence Surveillance Court to receive requests for 
      orders under Recommendations 2.4 and 8 and to grant or deny 
      such orders, and each house of Congress should identify a 
      single committee to receive all agencies' reports 
      concerning data mining.
        The [DOD] Secretary should recommend that the President 
      and Congress support research into means for improving the 
      accuracy and effectiveness of data mining systems and 
      technologies; technological and other tools for enhancing 
      privacy protection; and the broader legal, ethical, social, 
      and practical issues involved with data mining concerning 
      U.S.

Id. at xiv.
    To provide an opportunity for the Subcommittee to examine 
the recommendations relating to privacy and civil liberties 
proposed by the Commission and TAPAC, an oversight hearing was 
held jointly with the Subcommittee on the Constitution on 
August 20, 2004. Witnesses at the hearing consisted of the 
Honorable Lee H. Hamilton and the Honorable Slade Gorton on 
behalf of the 9/11 Commission; former Secretary of the Army 
John O. Marsh, Jr. on behalf of the U.S. Department of Defense 
Technology and Privacy Advisory Committee; and Nuala O'Connor 
Kelly, Chief Privacy Officer for the U.S. Department of 
Homeland Security. Various issues were considered at the 
oversight hearing, including how Congress, in crafting 
legislation, can best protect our citizens' privacy without 
compromising legitimate law enforcement and terrorism detection 
efforts. Another issue explored at the hearing was the role of 
privacy officers in effectuating the privacy-related 
recommendations of the Commission.
    Based on testimony received from this hearing, the 
Subcommittee actively pursued the inclusion of privacy 
protections in S. 2845, the ``Intelligence Reform and Terrorism 
Prevention Act of 2004,'' which is discussed in greater detail 
in the Committee section of this Report.

Regulatory aspects of Voice over the Internet Protocol (VoIP)

    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 ``substantial nexus'' with 
the taxing State. Finally, the Privilege 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.
    Background.--Voice over the Internet Protocol (VoIP) is a 
dynamic technology that sends telephone calls over a broadband 
Internet connection rather than a regular (or analog) telephone 
line. VoIP, also called Internet Protocol (``IP'') telephony, 
converts the voice signal from a telephone into a digital 
signal that travels over the Internet and then converts it back 
at the other end so the user may speak to anyone with a regular 
telephone number.
    VoIP functionality differs from that of traditional 
telephone companies which use circuit-switched technology. A 
person using a traditional telephone, or ``plain old telephone 
service'' (POTS), is connected to the public switched telephone 
network (PSTN), which is operated by local telephone companies. 
In contrast, voice communication using the Internet utilizes 
``packet switching,'' a process of breaking down data into 
packets of digital bits and transmitting them over the 
Internet. A marked difference between VoIP and POTS 
functionalities is that POTS establishes a dedicated circuit 
between the parties to a voice transmission, whereas VoIP 
technology sends packets of information over the fastest 
available route along the Internet, without requiring the 
establishment of an end-to-end path.
    IP telephony falls generally into one of three categories: 
computer-to-computer; telephone-to-computer; and telephone-to-
telephone. In other words, some VoIP services only work over a 
computer or a special VoIP phone, while others allow the use of 
a traditional phone through an adaptor. Some services using 
VoIP may only allow a user to call other people using the same 
service, but others may allow a user to call anyone who has a 
telephone number--including local, long distance, mobile, and 
international numbers.
    VoIP presents new opportunities for users and investors 
alike. VoIP is based on software rather than hardware, which 
makes it less expensive to set up and operate and more flexible 
than circuit-switched technology.\73\ Further, because VoIP is 
digital, it may offer features and services that are not 
available with POTS, such as calls that follow the customer 
from telephone to telephone, voice mail sent to the user's e-
mail, and inexpensive conference calling. Further, VoIP allows 
new competitors into the telephone business, which could change 
the face of the U.S. telecommunications business. Indeed, FCC 
Chairman Michael K. Powell has heralded VoIP as promising ``the 
most important shift in the entire history of modern 
communications since the invention of the telephone.'' \74\
---------------------------------------------------------------------------
    \73\ Scott Cleland of the Precursor Group claims that one could 
replace the $125 billion in hardware that the Bell companies have 
installed in their conventional networks with a few billion dollars 
worth of VoIP software and servers. Eric J. Savits, Talk Gets Cheap: 
Internet Telephony is Bad News for the Bells, but may be Great News for 
the Cable Guys, Barron's, May 24, 2004.
    \74\ Id.
---------------------------------------------------------------------------
    VoIP has been offered in various forms since at least 1995. 
While early experience deterred investors and consumers from 
adopting VoIP because it was deemed unreliable and poor in 
quality, technology has now overcome such concerns. In addition 
to such improvements, the VoIP market has been driven by the 
creation of new IP services and increasing penetration of 
broadband into the residential market. Further, market entry by 
IP service providers such as Vonage appears to have spurred 
deployment of IP-enabled voice services by established 
telephony providers. For example, AT&T in 2003 announced that 
it expected to enroll over one million customers in the next 
two years.\75\ SBC, BellSouth, Qwest and Verizon either offer 
VoIP currently or plan to offer VoIP in the near future.\76\ 
Wireless service providers have also begun to provide VoIP, and 
Time Warner Cable predicted that it would offer IP telephony to 
all of its subscribers by the end of 2004.\77\
---------------------------------------------------------------------------
    \75\ See Shawn Young, AT&T to Launch Internet-Based Telephone 
Service, Wall St. J. B6 (Dec. 11, 2003).
    \76\ See, e.g. Ben Charny, Qwest Taps into Net Telephony, CNET 
News.com (Dec. 10, 2003); Ben Charny, Verizon Details Internet Phone 
Plans, CNET News.com (Nov. 18, 2003).
    \77\ See Presentation by John Billock, Vice Chairman & Chief 
Operating Officer, Time Warner Cable, to FCC VoIP Forum, at 5 (Dec. 1, 
2003), available at .
---------------------------------------------------------------------------
    Prior Legislation Relevant to VoIP.--Relevant to the 
consideration of the proper regulatory treatment of VoIP are 
the Communications Act of 1934,\78\ as amended by the 
Telecommunications Act of 1996,\79\ and prior FCC orders. The 
Communications Act defines the terms ``common carrier'' and 
``carrier'' to include ``any person engaged as a common carrier 
for hire, in interstate or foreign communication by wire or 
radio.'' \80\ Next, the FCC has long distinguished between 
``basic'' and ``enhanced'' service offerings. In the Computer 
Inquiry line of decisions,\81\ the Commission specified that a 
``basic'' service is a service offering transmission capacity 
for the delivery of information without net change in form or 
content.\82\ Providers of ``basic'' services were subjected to 
common carrier regulation under Title II of the Act.\83\ In 
contrast, an ``enhanced service contains a basic service 
component but also ``employ[s] computer processing applications 
that act on the format, content, code, protocol or similar 
aspects of the subscriber's transmitted information; provide 
the subscriber additional, different, or restructured 
information; or involve subscriber interaction with stored 
information.'' \84\ The Commission found that enhanced services 
were subject to the Commission's jurisdiction.\85\ The 
Commission further found that the enhanced service market was 
highly competitive with low barriers to entry; therefore the 
Commission declined to treat providers of enhanced services as 
``common carriers'' subject to regulation under Title II of the 
Act.\86\
---------------------------------------------------------------------------
    \78\ 47 U.S.C. Sec. 151 et. seq. (1934) (hereinafter 
``Communications Act'').
    \79\ 47 U.S.C. Sec. 151 et. seq. (1996) (hereinafter ``1996 Act'').
    \80\ 47 U.S.C. Sec. 153(10). The Act specifically excludes persons 
``engaged in radio broadcasting'' from this definition. Id.
    \81\ See Regulatory and Policy Problems Presented by the 
Interdependence of Computer and Communications Services and Facilities, 
Docket No. 16979, Notice of Inquiry, 7 FCC 2d 11 (1996); Regulatory and 
Policy Problems Presented by the Interdependence of Computer and 
Communications Services and Facilities, Docket No. 16979, Final 
Decision and Order, 28 FCC 2d 267 (1971); Amendment of Section 64.702 
of the Commission's Rules and Regulations, Docket No. 20828, Tentative 
Decision and Further Notice of Inquiry and Rulemaking, 72 FCC 2d 358 
(1979); Amendment of Section 64.702 of the Commission's Rules and 
Regulations, Docket No. 20828, Final Decision, 77 FCC 2d 384; Amendment 
of Section 64.702 of the Commission's Rules and Regulations, CC Docket 
No. 85-229, Report and Order, 104 FCC 2d 958.
    \82\ 77 FCC 2d at 419-22, paras. 93-99.
    \83\ Id. at 428, para. 114.
    \84\ 47 C.F.R. Sec. 64.702; see also 77 FCC 2d at 420-21, para. 97.
    \85\ 77 FCC 2d at 432, para. 125.
    \86\ Id. at 432-35, paras. 126-132.
---------------------------------------------------------------------------
    The 1996 Act represented the first major overhaul of 
telecommunications law in nearly 62 years. Enacted twelve years 
after the breakup of the AT&T monopoly, the 1996 Act was 
intended to move all telecommunications markets toward 
competition. The Act envisioned competition in all 
telecommunications markets, both in the markets for the various 
elements that comprise the telecommunications network, as well 
as for the final services the network creates. Building on the 
experience of the long distance market, which was transformed 
from a monopoly to an effectively competitive market, the Act 
attempts to promote competition in the formerly monopolized 
local exchange markets. Of the most important provisions of the 
Act is the requirement that incumbent local exchange carriers 
(ILECs) provide competitors access to their networks and lease 
to competitors parts of their networks (unbundled network 
elements) at reduced rates.\87\
---------------------------------------------------------------------------
    \87\ 47 U.S.C. Sec. 251.
---------------------------------------------------------------------------
    The 1996 Act codified, with minor modifications, the 
Commission's distinction between regulated ``basic'' and 
largely unregulated ``enhanced'' services. The Act defined the 
terms ``telecommunications,'' ``telecommunications services'' 
and ``information services.'' \88\ As discussed below, a 
distinction critical to the industry is whether VoIP is a 
regulated telecommunications service, which has a long history 
of substantial government regulation, or an ``information 
service'' subject to federal jurisdiction but largely 
unregulated. Reaching a definitive conclusion has thus far 
eluded the FCC, at least in part due to the unique nature of 
VoIP functionality and its disconnect with the current 
telecommunications regulatory scheme.
---------------------------------------------------------------------------
    \88\ The 1996 Act defines ``telecommunications'' as ``the 
transmission, between or among points specified by the user, of 
information of the user's choosing, without change in the form or 
content of the information as sent and received.'' 47 U.S.C. 
Sec. 153(43). ``Telecommunications service'' is defined as ``the 
offering of telecommunications for a fee directly to the public, or to 
such classes of users as to be effectively available directly to the 
public, regardless of the facilities use.'' 47 U.S.C. Sec. 153(46). 
``Information service'' is defined as ``the offering of a capability 
for generating, acquiring, storing, transforming, processing, 
retrieving, utilizing, or making available information via 
telecommunications, and includes electronic publishing, but does not 
include any use of any such capability for the management, control, or 
operation of a telecommunications system or the management of a 
telecommunications service.'' 47 U.S.C. Sec. 153(20).
---------------------------------------------------------------------------
    The current telecommunications regulatory model reflects 
the ``legacy PSTN era,'' in which specific platforms were 
optimized for one and only one application.\89\ For example, 
POTS required a physical wire connection to every home in order 
for a connection to be made. In contrast, the concept of ``end 
points'' has little relevance to VoIP. VoIP and other IP 
platforms are not specific to one application; rather they can 
operate on various applications. VoIP technology is therefore a 
new paradigm because it has disconnected the architecture from 
the application platform. In sum, because the current 
telecommunications regulatory model does not accommodate VoIP 
functionality, VoIP represents a unique regulatory challenge.
---------------------------------------------------------------------------
    \89\ The current regulatory paradigm has been described as 
conceptually ``vertical'' in organization, in which the communications 
service offered and the underlying network utilized are deemed one in 
the same. In contrast, VoIP and other IP-related services are, in 
concept, horizontally layered stacks in which the services are no 
longer tied to discrete networks, facilities or technologies.
---------------------------------------------------------------------------
    FCC Action on VoIP.--While the FCC has not addressed VoIP 
and IP-enabled services in a comprehensive manner, it has taken 
steps to determine the appropriate regulatory approach.

VoIP Forum

    On December 1, 2003, the FCC announced a year-long VoIP 
Forum, in which all Commissioners would participate.\90\ The 
purpose of the Forum was to discuss VoIP and to solicit 
comments from the public on the impact that IP-enabled 
services, including VoIP, have had and will continue to have on 
the United States.\91\ Seventy parties submitted materials to 
the VoIP Forum, including small- to medium-sized 
telecommunications companies, larger concerns such as AT&T, 
related associations, individuals working in related fields, 
and Members of the other body.\92\
---------------------------------------------------------------------------
    \90\ See http://www.fcc.gov/voip/voipforum.
    \91\ Id.
    \92\ Comments are posted on the FCC website at http://www.fcc.gov/
voip/materials-view.html.
---------------------------------------------------------------------------

FCC Rulings

    To date, the FCC has issued a handful of rulings on the 
regulatory treatment of VoIP, including:
            Pulver.com
    Pulver.com is a company offering a service entitled ``Free 
World Dialup'' (``FWD''), which allows users of broadband 
Internet services to make telephone calls, free of charge, to 
others who installed FWD software, using WiFi telephones, or 
other consumer devices.\93\ On February 5, 2003, company 
founder Jeff Pulver had filed a petition for declaratory ruling 
requiring the FCC to declare FWD to be neither a 
``telecommunications service'' nor ``telecommunications'' as 
defined in the Communications Act of 1934.\94\ Mr. Pulver 
maintained that, because FWD originates on the Internet and 
provides no transmission capabilities to its members, it should 
not be subject to regulation as a telecommunications service. 
Rather, Mr. Pulver argued, FWD is an Internet application that 
provides its members information that members use to 
communicate with other members.\95\
---------------------------------------------------------------------------
    \93\ FWD operates by requiring members to complete an initial 
registration process and comply with other requirements. Specifically, 
members must have an existing broadband Internet access service as FWD 
does not offer transmission service or transmission capability. In 
addition, members must acquire download software or appropriately 
configured phones that enable their personal computers to function as 
``soft phones.'' Once these criteria are met, anyone anywhere in the 
world may obtain a Pulver-assigned FWD number that enables members to 
make free VoIP communications to other FWD members. Further, FWD 
numbers are completely portable to any broadband-accessible location to 
which a member may go. Pulver.com neither knows nor needs to know the 
geographical location of its members in order for its members to use 
FWD.
    \94\ Federal Communications Commission, Pulver.com Petition for 
Declaratory Ruling that pulver.com's Free World Dialup is Neither 
Telecommunications Nor a Telecommunications Service, WC Docket No. 03-
45 (filed Feb. 5, 2003).
    \95\ Id.
---------------------------------------------------------------------------
    On February 12, 2004, more than one year after the 
submission of comments by interested parties, the FCC issued a 
29-page Memorandum opinion and Order (``Order'') agreeing with 
Mr. Pulver.\96\ The Order declared that FWD is neither 
``telecommunications,'' nor a ``telecommunications service,'' 
but that FWD is an unregulated ``information service'' subject 
to federal jurisdiction.\97\ The Commission's Order noted that 
pulver.com neither offers nor provides transmission to its 
members.\98\ Rather, FWD members must ``bring their own 
broadband'' transmission in order to interact with the FWD 
server.\99\ The FCC further stated:
---------------------------------------------------------------------------
    \96\ Federal Communications Commission, Memorandum Opinion and 
Order, In the Matter of Petition for Declaratory Ruling that 
pulver.com's Free World Dialup is Neither Telecommunications Nor a 
Telecommunications Service, WC Docket No. 03-45, FC 04-27 (rel. Feb. 
12, 2004).
    \97\ Id. at 5.
    \98\ Id. at 4.
    \99\ Id. at 6.

        Offerings such as Pulver's FWD promise significant 
        benefits in the form of lower prices, new pricing 
        models and enhanced functionality. Accordingly, our 
        action is part of a number of initiatives that are 
        designed to bring the benefits of * * * IP-based 
        services to American consumers.\100\
---------------------------------------------------------------------------
    \100\ Id. at 1.
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            AT&T's ``Phone-to-Phone'' VoIP Services
    Following its Order concerning FWD, the Commission turned 
its attention to the outstanding question of whether ``phone-
to-phone'' IP telephony services are subject to the access 
charges applicable to circuit-switched interexchange calls. On 
October 18, 2002, AT&T had filed a petition for declaratory 
ruling to exempt its phone-to-phone telephony services from 
access charges.\101\ AT&T's VoIP functionality differs from 
that of FWD in that the service originates and terminates on 
the PSTN.\102\
---------------------------------------------------------------------------
    \101\ Federal Communications Commission, Petition for Declaratory 
Ruling that AT&T's Phone-to-Phone IP Telephony Services Are Exempt from 
Access Charges, WC Docket No. 02-361 (filed Oct. 18, 2002).
    \102\ Specifically, AT&T's service consists of an interexchange 
call that is initiated in the same manner as traditional interexchange 
calls, by an end-user who dials 1 + the called number from a regular 
telephone. When the call reaches AT&T's network, AT&T converts it from 
its existing format into an IP format and transports it over AT&T's 
Internet backbone. AT&T then converts the call back from the IP format 
and delivers it to the called party through local-exchange-carrier 
local business lines. Services such as AT&T's have been called ``IP in 
the middle'' services. See Tech Law Journal, FCC Rules on AT&T's VOIP 
Petition, April 21, 2004.
---------------------------------------------------------------------------
    The Commission issued its Order on April 21, 2004, one and 
one-half years after the filing of the petition.\103\ The FCC 
stated that its Order was intended to provide clarity to the 
industry with respect to the application of interstate access 
charges pending the outcome of the FCC's notice of Proposed 
Rulemaking on IP-Enabled Services (``NPRM''), discussed 
supra.\104\ The Order rejected AT&T's petition, ruling that 
traditional telephone calls that start and end on the PSTN, but 
are carried part of the time on AT&T's Internet backbone, are 
properly classified as a telecommunications service.\105\ Those 
calls, the Commission ruled, are subject to the access charges 
that are exchanged when a telephone call made through one 
carrier ends on another carrier's network.\106\ FCC Chairman 
Michael Powell remarked that the decision was ``correctly 
decided on very narrow grounds. A straightforward application 
of existing law places the long distance telephone service, as 
it is factually described by AT&T, squarely in the category of 
a telecommunications service.'' \107\
---------------------------------------------------------------------------
    \103\ Federal Communications Commission Order In the Matter of 
Petition for Declaratory Ruling that AT&T's Phone-to-Phone IP Telephony 
Services Are Exempt from Access Charges, WC Docket No. 02-36, FCC 04-97 
(rel. April 21, 2004).
    \104\ Id. at 7.
    \105\ Id. at 9.
    \106\ Id.
    \107\ Statement of Chairman Michael K. Powell Re: Petition for 
Declaratory Ruling That AT&T's Phone-to-Phone IP Telephony Services Are 
Exempt From Access Charges, WC Docket No. 02-361, Order, available at 
www.fcc.gov.
---------------------------------------------------------------------------

Outstanding petitions

    As of the subcommittee's June 23, 2004 hearing, several 
outstanding petitions remained at the FCC, including that of 
Vonage Holdings Corporation (``Vonage''), a VoIP service 
offering computer-to-computer and phone-to-computer telephony. 
In September, 2003 Vonage filed with the FCC a petition for 
declaratory ruling that Vonage's service constituted an 
information service and that federal policy preempts state 
action in this area.\108\ Vonage's petition was contemporaneous 
with its involvement in litigation with the Minnesota Public 
Utilities Commission (MPUC), discussed in further detail infra. 
The FCC has yet to issue an Opinion in this matter.
---------------------------------------------------------------------------
    \108\ Federal Communications Commission, Vonage Petition for 
Declaratory Ruling, WC Docket No. 03-211 (filed Sept. 22, 2003).
---------------------------------------------------------------------------
    In addition, on December 23, 2003, Level 3 Communications 
filed a petition with the FCC requesting that it forebear from 
applying the requirements of Sec. 251(g) of the 1996 Act and 
FCC rules to the extent that they might be interpreted to allow 
local exchange carriers to impose interstate or intrastate 
access charges on IP traffic that originates or terminates on 
the PSTN.\109\ As of the time of this report, several other 
petitions relating to the regulatory treatment of VoIP remain 
outstanding with the FCC.\110\
---------------------------------------------------------------------------
    \109\ Federal Communications Commission, Level 3 Communications 
Petition for Forbearance Under 47 U.S.C. Sec. 160(c) from Enforcement 
of 47 U.S.C. Sec. 251(g), Rule 51,701(b)(1), and Rule 69.5(b), WC 
Docket No. 03-266 (filed Dec. 23, 2003).
    \110\ Additional pending petitions related to the regulatory 
treatment of VoIP are those of Vonage, SBC, and Inflexion.
---------------------------------------------------------------------------

Notice of proposed rulemaking in the matter of IP-Enabled Services

    On March 10, 2004, the FCC issued a Notice of Proposed 
Rulemaking (``NPRM'') regarding ``IP-Enabled Services.'' \111\ 
In the NPRM, the FCC raised issues relating to services and 
applications making use of IP including, but not limited to, 
VoIP, and solicited comments on a broad array of concerns, 
including:
---------------------------------------------------------------------------
    \111\ Federal Communications Commission, Notice of Proposed 
Rulemaking, In the Matter of IP-Enabled Services, WC Docket No. 04-36, 
FCC 04-48 (adopted Feb. 12, 2004) (hereinafter ``NPRM'').
---------------------------------------------------------------------------
          1. The impact that such IP-enabled services, 
        including VoIP, have had and will continue to have on 
        the United States' communications landscape;\112\
---------------------------------------------------------------------------
    \112\ NPRM at 2.
---------------------------------------------------------------------------
          2. How the Commission might distinguish among such 
        services and on whether any regulatory treatment would 
        be appropriate for any class of IP services;\113\
---------------------------------------------------------------------------
    \113\ Id. at 24.
---------------------------------------------------------------------------
          3. Whether the proliferation of services and 
        applications utilizing a common protocol may permit 
        competitive developments in the marketplace to play the 
        key role once played by regulation; \114\
---------------------------------------------------------------------------
    \114\ Id. at 5.
---------------------------------------------------------------------------
          4. Whether there is a compelling rationale for 
        applying traditional economic regulation to providers 
        of IP-enabled services; \115\
---------------------------------------------------------------------------
    \115\ Id. at 49.
---------------------------------------------------------------------------
          5. How the regulatory classification of IP-enabled 
        services, including VoIP would affect the FCC's ability 
        to fund universal service; \116\ and
---------------------------------------------------------------------------
    \116\ Id. at 43.
---------------------------------------------------------------------------
          6. Whether to extend the application of the 
        Commission's ruling in Pulver.\117\
---------------------------------------------------------------------------
    \117\ Id. at 24.
---------------------------------------------------------------------------
          The FCC received 249 comments and reply comments in 
        response to the NPRM within the May 10, 2004 and June 
        10, 2004 deadlines, respectively. According to the FCC, 
        it has taken no further action on these 
        submissions.\118\ According to press reports, ``broad 
        VoIP rules are expected to be released'' by about May 
        2005.\119\
---------------------------------------------------------------------------
    \118\ E-mail communication with FCC staff Russ Hauser, July 1, 
2004.
    \119\ See Josh Long, FCC Due to Explain IP Voice Rules/Tauzin: 
``Silence Is Not Acceptable,'' Xchange, March 1, 2004.
---------------------------------------------------------------------------
    State Action.--While the FCC has continued to consider the 
matter, States have begun to address VoIP regulation. For 
example, in September 2003, the Minnesota Public Utilities 
Commission (MPUC) found that it had jurisdiction over the VoIP 
services provided by companies such as Vonage, a service that 
offered computer-to-computer and phone-to-computer telephony 
only.\120\ The MPUC ordered Vonage to comply with state 
statutes and rules regarding the offering of telephone service.
---------------------------------------------------------------------------
    \120\ See Vonage Holdings Corp. v. Minnesota Pub. Utils. Comm'n, 
290 F. Supp. 2d 993 (D. Minn. 2003) (citing In the Matter of the 
Complaint of the Minnesota Department of Commerce Against Vonage 
Holding Corp Regarding Lack of Authority to Operate in Minnesota, 
Docket No. P-6214/C-03-108 (Minn. Pub. Utils. Comm'n Sept. 11, 2003) 
(order finding jurisdiction and requiring compliance) (Minnesota 
federal court decision hereinafter ``Vonage-Minnesota'').
---------------------------------------------------------------------------
    Vonage sought review of the decision in federal court,\121\ 
and on October 16, 2003, the U.S. District Court for the 
District of Minnesota concluded that Vonage ``uses 
telecommunications services, rather than provides them.'' \122\ 
The court found Vonage's VoIP service to constitute an 
information service within the meaning of the Communications 
Act, noting that Vonage's process of transmitting customer 
calls over the Internet requires Vonage to ``act on'' the 
format and protocol of information.\123\ In other words, for 
calls originating with one of Vonage's customers, calls in the 
VoIP format must be transformed into the PSTN format before a 
POTS user can receive the call.\124\ Further, the court held 
that state ``regulation over VoIP services is not permissible 
because of the recognizable congressional intent to leave the 
Internet and information services largely unregulated.'' \125\
---------------------------------------------------------------------------
    \121\ Id. Vonage also filed with the FCC a petition for declaratory 
ruling that its service is an ``information service'' and that federal 
policy preempts state action in this area. See supra n. 34.
    \122\ Vonage-Minnesota at 999 (emphasis in original).
    \123\ Id.
    \124\ Id.
    \125\ Id. at 98.
---------------------------------------------------------------------------
    The State of New York initially reached the opposite 
conclusion with regard to Vonage.\126\ In September 2003, 
Frontier Telephone of Rochester, Inc. (``Frontier'') filed a 
complaint against Vonage alleging Vonage was a telephone 
corporation providing a telecommunications service under New 
York State Public Law.\127\ Vonage argued that it was not a 
telecommunications service, rather an ``information service.'' 
\128\ Vonage also argued that even if found to be a telephone 
corporation, state regulation is preempted because the 
interstate and intrastate aspects of its service cannot be 
segregated.\129\
---------------------------------------------------------------------------
    \126\ Complaint of Frontier Telephone of Rochester, Inc. Against 
Vonage Holdings Corporation Concerning Provision of Local Exchange and 
InterExchange Telephone Service in New York State in Violation of the 
Public Service Law, Case 03-C-1285 (New York Public Service Comm'n May 
21, 2004) (order establishing balanced regulatory framework for Vonage 
Holdings Corporation) (hereinafter ``Vonage Minnesota'').
    \127\ Id.
    \128\ Id.
    \129\ Id.
---------------------------------------------------------------------------
    The New York State Public Services Commission (``NYPSC'') 
found in favor of Frontier in May 2004.\130\ The NYPSC held 
that Vonage is not an ``information service'' under the 
Telecommunications Act of 1996, but rather a 
``telecommunications service'' which can be regulated by the 
states.\131\ The Commission held that Vonage is a telephone 
corporation under state law and as such subject to statutory 
requirements.\132\ The Commission reasoned that Vonage is 
reselling to its own customers capabilities it acquires from 
the other, third party, telephone corporations.\133\ Finally, 
the NYPSC found Vonage ``should be subject to, at most, the 
same limited regulatory regime to which comparable circuit 
switched competitive carriers are currently subject to in New 
York.'' \134\
---------------------------------------------------------------------------
    \130\ Id.
    \131\ Id.
    \132\ Id.
    \133\ Id.
    \134\ Id. Jeff Pulver criticized the decision, stating, ``I am 
quite disappointed to see that New York State decided to apply legacy 
telephone regulation to Internet-based communications, while the FCC is 
in the process of figuring out the right regulatory treatment for VoIP. 
* * * Between his decision in New York and a pending decision in 
California, these new developments may lead to the introduction of new 
regulatory barriers that in fact could slow the adoption of IP 
communication services and delay the extraordinary benefits available 
from such services.'' See Evan Hansen, New York Classifies Vonage as 
Phone Company; Handing a Setback to Emerging Net Phone Services, the 
State's Public Service Commission Rules that Vonage Holdings is a 
Telephone Company and thus Subject to State Regulation, CNETNews.com 
(May 19, 2004).
---------------------------------------------------------------------------
    However, on June 30, 2004, Magistrate Judge Douglas F. 
Eaton, U.S. District Court (Southern District of New York) 
announced his intention to enjoin the NYPSC from regulating 
Vonage as a telecommunications carrier.\135\ Judge Eaton will 
consider the merits of a permanent injunction in January 
2005.\136\ Although Judge Eaton's action reinforces the Vonage 
Minnesota decision, the formation of a national framework for 
the emerging VoIP industry remains incomplete. Indeed, it is 
not surprising that Vonage CEO Jeffrey Citron calls the threat 
of increased regulation ``one of the biggest uncertainties'' 
his company faces.\137\
---------------------------------------------------------------------------
    \135\ See Ben Charney, Vonage Beats Back New York Ruling, CNET 
News.com, June 30, 2004.
    \136\ Id.
    \137\ Brian M. Carney, Business, Make Way for the VoIP Revolution, 
Wall St. J. Eur., June 14, 2004.
---------------------------------------------------------------------------
    Further, about half of all states have launched regulatory 
or legal proceedings addressing VoIP.\138\ Some, such as 
Colorado, have postponed their efforts until the FCC completes 
its NPRM.\139\ In response to increasing state involvement, 
some state regulators have urged the FCC to take a prompt 
stance on VoIP.\140\ Members of the California and Florida 
public-utilities commissions warned that many state regulators 
and legislators are being driven by an ``irrational fear of 
Internet telephone services,'' and stated that the FCC ``must 
pre-empt states from tampering'' with VoIP.\141\ The members 
warned that, in the absence of needed federal pre- emption, 
states will occupy the VoIP field. The California member 
concluded, ``We need the FCC to step in and take the bullets 
for us at the federal level.'' \142\
---------------------------------------------------------------------------
    \138\ Mark Wigfield, It Looks Like a Duck; or Does It? Should 
Regulators Treat Internet Phone Service Like a Phone or the Internet? 
Its Future May Depend on the Answer, Wall St. J. R8 (May 24, 2004).
    \139\ Id.
    \140\ Drew Clark, State Regulators Urge FCC Stand on Internet 
Telephony, Tech. Daily PM, June 22, 2004.
    \141\ Id.
    \142\ Id.
---------------------------------------------------------------------------
    Legislative Initiatives.--On April 2, 2004, Rep. Charles 
``Chip'' Pickering introduced H.R. 4129, the ``VoIP Regulatory 
Freedom Act of 2004.'' \143\ The intent of H.R. 4129 was to 
provide a clear structure for the regulatory treatment for the 
offering or provision of VoIP applications. The bill reserved 
sole authority to regulate VoIP applications to the federal 
government. H.R. 4129 prohibited state regulation of VoIP 
applications as well as the delegation of reserved authority to 
any state or political authority.
---------------------------------------------------------------------------
    \143\ H.R. 4129, 108th Cong., 2004. The bill currently has two 
cosponsors, Subcommittee on Commercial and Administrative Law Chairman 
Chris Cannon and Rep. James T. Walsh.
---------------------------------------------------------------------------
    The bill directed the FCC to: (1) establish rules and 
standards for appropriate arrangements to compensate providers 
of facilities and equipment used to transmit communications 
employing a connected VoIP application; and (2) maximize 
participation in the support of universal service among the 
greatest number of providers of connected VoIP applications. 
H.R. 4129 also requires the FCC to appoint an appropriate 
representative industry organization to develop guidelines and 
protocols related to the offering of connected VoIP 
applications for: (1) providing emergency 911 services; (2) 
improving use by the disabled community; and (3) improving the 
reliability and security of voice communications.
    Further, H.R. 4129 prohibited states or their subdivisions 
from taxing or imposing other charges on the offering or 
provision of a VoIP application. The bill would not affect the 
authority to regulate transmission facilities nor would it 
authorize regulation of such authorities.
    H.R. 4129 had a companion bill in the other body, S. 2281, 
which was similar, although not identical, to H.R. 4129.\144\ 
No action was taken by the House on H.R. 4129. S. 2281 was 
reported by the Committee on Commerce, Science and 
Transportation on November 19, 2004 to the Senate, which took 
no further action.
---------------------------------------------------------------------------
    \144\ Both bills provide that regulation of VoIP is an exclusively 
federal prerogative, that states cannot tax the offering or provision 
of a VoIP application, and that the FCC has regulatory authority only 
in the enumerated areas of interprovider compensation, universal 
service contributions, and law enforcement surveillance. The bills 
differ in the nature and extent of the FCC's regulatory authority in 
these latter categories. See, e.g., ``Summary of VOIP Regulatory 
Freedom Bills,'' Tech Law Journal, E-Mail Alert No. 872, (April 8, 
2004). A hearing was held on S. 2281 in the Committee on Commerce, 
Science & Transportation in the other body on June 16, 2004. Witnesses 
at the hearing included: Jeff Pulver, Thomas Rutledge; Chief Operating 
Officer, Cablevision Systems Corporation; David Jones, Director of 
Emergency Services, Spartanburg County Communications/9-1-1; the 
Honorable Stan Wise, Commissioner of the Georgia Public Service 
Commission; and James X. Dempsey, Executive Director, Center for 
Democracy & Technology. On July 22, 2004, S. 2281 was reported 
favorably by the Committee on Commerce, Science & Transportation with 
an amendment in the nature of a substitute which, rather than imposing 
a blanket prohibition on state taxation of VoIP, would limit the 
preemption of state regulation on VoIP to three years.
---------------------------------------------------------------------------

Hearing by Subcommittee on Commercial and Administrative Law

    On July 23, 2004, the Subcommittee on Commercial and 
Administrative Law held an oversight hearing entitled 
``Regulatory Aspects of Voice over Internet Protocol.'' \145\ 
The purpose of the hearing was to discuss aspects of VoIP 
relevant to the consideration of the appropriate regulatory 
treatment of this technology. Witnesses at the hearing were 
Robert Pepper, Ph.D., chief of policy development at the FCC; 
John Langhauser, vice-president, law, and chief counsel to the 
Consumer Services Group of AT&T Corporation; Stephen Cordi, 
deputy comptroller for the Maryland Comptroller of the Treasury 
and immediate past president of the Federation of Tax 
Administrators; and James Kirkland, general counsel and senior 
vice-president of Covad Communications Group.
---------------------------------------------------------------------------
    \145\ Regulatory Aspects of Voice Over Internet Protocol: Hearing 
Before the Subcomm. on Commercial and Administrative Law of the House 
Comm. on the Judiciary, 108th Cong. (2004) (hereinafter ``Hearing 
Transcript'').
---------------------------------------------------------------------------
    Mr. Pepper began his testimony stating that VoIP presents 
unique challenges to the FCC because it does not conform to the 
traditional economic and regulatory structures that have 
governed the traditional telephone industry for more than a 
century.\146\ According to Mr. Pepper, ``[s]aying that VoIP is 
just another way to make a phone call is much like saying that 
Ebay is just another way to have a garage sale.'' \147\ A 
fundamental change is associated with the transmission of voice 
over the Internet, because, according to Mr. Pepper, it has 
made voice simply one of many applications over a digital 
broadband network with multiple uses.\148\ Due to the 
fundamental shifts associated with VoIP, Mr. Pepper reasoned, 
``it would be irrational for regulators to ignore these changes 
and automatically apply legacy regulation without first 
seriously examining whether it is relevant.'' \149\ Pointing to 
cell phones and the Internet as positive examples of a 
``deregulatory course,'' \150\ Mr. Pepper noted that the FCC 
has begun careful and thorough examination of VoIP because 
``development of this promising technology might very well be 
hampered by unjustified, conflicting and burdensome regulatory 
requirements that could result as different state commissions 
and courts begin to address this area.'' \151\ Further, he 
testified that the FCC ``cannot simply assume that inaction 
will create an environment that encourages innovation, 
investment and competition.'' \152\ Mr. Pepper summarized the 
many activities in which the FCC is engaged pertaining to VoIP, 
including the Notice of Proposed Rulemaking, the consideration 
of VoIP-related petitions, and questions related to the 
universal service fund, but noted that the FCC is nonetheless 
constrained by the amount of flexibility and discretion granted 
to it by Congress through the Telecommunications Act.\153\
---------------------------------------------------------------------------
    \146\ Hearing Transcript at 63.
    \147\ Id.
    \148\ Id.
    \149\ Id.
    \150\ Id. at 64.
    \151\ Id.
    \152\ Id.
    \153\ Id.
---------------------------------------------------------------------------
    Mr. Langhauser testified that the benefits of VoIP to be 
derived by small businesses and the larger economy alike will 
only be realized if Congress and regulators ``bring certainty 
and stability to the regulatory rules surrounding VoIP.'' \154\ 
Mr. Langhauser called for strong leadership at the Federal 
level with regard to VoIP, stating that this technology should 
be allowed to develop into another technology controlled via 
the anticompetitive practices of the Bell monopolies.\155\ Mr. 
Langhauser stated that such anticompetitive practices include 
the Bells' refusal to sell broadband to customers purchasing 
voice services from a competitor.\156\ Legislative and 
regulatory certainty, he reasoned, would ``encourage AT&T to 
invest in VoIP and remain in the domestic residential voice 
market.'' \157\ Mr. Langhauser commended the efforts of 
Judiciary Committee Chairman Sensenbrenner and Ranking Member 
Conyers in offering H.R. 4412, the ``Clarification of Antitrust 
Remedies in Telecommunications Act of 2004,'' \158\ legislation 
to ensure that the Telecommunications Act is not construed to 
supersede the antitrust laws.\159\ In conclusion, Mr. 
Langhauser asked Congress to allow VoIP to deliver on its 
promising potential by not regulating it like ``plain old 
telephone service,'' noting in particular that the FCC's delays 
in achieving reforms have only benefitted the incumbent local 
exchange carriers.\160\
---------------------------------------------------------------------------
    \154\ Id. at 72.
    \155\ Id. at 73.
    \156\ Id.
    \157\ Id.
    \158\ H.R. 4412, 108th Cong. (2004).
    \159\ Hearing Transcript at 73.
    \160\ Id.
---------------------------------------------------------------------------
    The prepared testimony of Mr. Cordi, who represented the 
Federation of Tax Administrators, addressed only his objections 
to H.R. 4129. Mr. Cordi presented four objections to the bill: 
(1) it discriminates against other providers of voice 
communications services; (2) it represents a considerable 
fiscal cost to the state governments; (3) it runs counter to 
the system of federalism; and (4) no case has been made for 
preempting state and local tax authority.\161\ Mr. Cordi 
elaborated that, in nurturing a new technology, we must not 
forget existing and competing products. Since a primary goal of 
tax policy is to treat similar taxpayers and similar goods in a 
similar fashion, Mr. Cordi stated, the government should not 
put traditional phone service (i.e., land-line service) at a 
disadvantage through tax preemption of VoIP. Mr. Cordi reasoned 
that VoIP, wireless telephone, and traditional telephone 
services are functional equivalents and should be taxed in a 
similar manner. Mr. Cordi also cautioned that preemption would 
reduce state revenues by at least $3 billion per year within 
five years, and possibly lead to much more in the future. Mr. 
Cordi also objected to H.R. 4129 on the grounds that states are 
sovereign entities and Congress ``has heretofore generally 
limited preemption of state and local taxation to narrow 
situations'' such as excessive reporting burdens or a 
compelling need for uniformity. Mr. Cordi concluded that there 
is no evidence of such a compelling need to preempt state 
taxing authority with regard to VoIP.
---------------------------------------------------------------------------
    \161\ Id. at 80-83.
---------------------------------------------------------------------------
    Mr. Kirkland offered the perspective of Covad 
Communications, stressing that the Judiciary Committee's 
oversight in ensuring the proper application of antitrust laws 
to telecommunications was of paramount importance. Citing the 
recent Trinko \162\ line of decisions, Mr. Kirkland noted that 
there appears to have been a ``bait and switch'' since 1996, 
when the Telecommunications Act was promulgated to encourage 
competition in the industry. Mr. Kirkland explained the 
difference between the offerings of Covad versus that of other 
organizations: while services such as AT&T's CallVantage and 
Vonage offer applications and software packages that can be 
delivered over any kind of broadband network, Covad provides 
the underlying transmission facilities. Mr. Kirkland continued 
that the one ``ubiquitous set of loops that connects all homes 
and all businesses in this country,'' however, remains the 
local telephone network. In order to achieve continued 
innovation and competition, therefore, companies such as Covad 
will still require access to those loops in order to provide 
VoIP service. Thus, Mr. Kirkland concluded, pro-competitive 
market regulation with regard to VoIP ``still has a critical 
role to play.''
---------------------------------------------------------------------------
    \162\ Verizon Communications Inc. v. Law Offices of Curtis. V. 
Trinko, 124 S. Ct. 872 (2004) (Complaint by customer of competing 
telephone service against incumbent carrier alleging antitrust and 
Telecommunications Act violations did not state an antitrust claim 
under Section 2 of the Sherman Act. Telecommunications Act of 1996 has 
no effect upon the application of traditional antitrust principles, in 
light of antitrust-specific savings clause which barred fining of 
implied immunity); rev'g Law offices of Curits V. Trinko, L.L.P, v. 
Bell, 305 F. 3d 89 (2d Cir. 2002) (Customer bringining action for 
alleged violations of Telecommunications Act has standing to bring 
antitrust action, and Telecommunications Act does not take precedence 
over general antitrust laws.): aff'g in part, vacating in part, Law 
offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp., 294 F. 3d 
307 (S.D.N.Y. 2000) (alleged violations of Telecommunications Act 
obligations do not constitute antitrust violations under Section 2 of 
the Sherman Act).
---------------------------------------------------------------------------
    Mr. Cannon then proceeded to question the witnesses 
regarding the tax base of VoIP. Specifically, since the cost of 
VoIP was, at present, approximately \1/5\ that of traditional 
telephone service, and will reduce over time, it appeared that 
taxation of VoIP would inevitably result in smaller state tax 
revenue. Mr. Cordi conceded that the reduced cost of VoIP 
service would result in a smaller state tax collections, and 
this would present a problem for states over time. Mr. Cordi 
stated that, to the extent that states would need additional 
revenue, they would either have to increase rates for their 
services, find other sources of revenue, or cut expenditures. 
Mr. Pepper offered that affordable telephone service is a 
shared goal of everyone, including the FCC, states and 
Congress, and that lower costs for telephone service will 
contribute to the goal of providing affordable telephone 
service to all Americans. Mr. Pepper added that broadband 
deployment is a good example of the advantages that new 
technologies bring to communities.
    Mr. Cannon then questioned the witnesses as to whether a 
tax on a fundamental service, such as VoIP was inherently a 
regressive tax that broadens the ``digital divide'' between 
those who benefit from technology and those that do not. Mr. 
Pepper agreed, offering that, ironically, it is the poorest 
Americans, who make many long-distance calls, that tend to bear 
the greatest telecommunications tax burdens. Mr. Langhauser, 
also agreeing on the question of regressiveness, added that the 
telecommunications industry has been singled out for a myriad 
of state and local taxation, and is treated somewhat 
punitively, as if it were tobacco or alcohol.
    Building on this observation, Mr. Kirkland proffered that 
real inequities exist in the telecommunications industry with 
regard to taxes and fees that are based on the legacy system 
created under the Telecommunications Act. Mr. Kirkland stated 
that regulators must carefullyexamine the current system, 
consider the rationalization for the existence of rules generated under 
it, and undertake a fundamental and equitable restructuring of the 
paradigm. Mr. Cordi, in responding to the question of regressive 
taxation, initially argued that preemption of the type found in H.R. 
4129 is in fact regressive, given the fact that wealthier citizens 
would benefit from H.R. 4129 because it is they who are computer-
literate and can afford to buy broadband access. Mr. Cannon then 
responded by pointing out that VoIP requires only that a person own a 
telephone, not a computer, and the poorest citizens tend to live in 
densely packed urban areas where DSL connections are widely available 
for use by VoIP companies. Mr. Cannon questioned Mr. Cordi whether 
these were the type of people that should be brought to the right side 
of the ``digital divide'' (i.e., given the opportunity to benefit from 
the advantages of new technology). Mr. Cordi agreed with Mr. Cannon 
following these comments.
    Mr. Cannon then questioned Mr. Pepper about the FCC's 
efforts to address the social issues associated with VoIP, 
including the universal service fund and 911 service. Mr. 
Pepper responded that the FCC believes it very important to 
``separate economic regulation from * * * social or consumer 
policies.'' \163\ In this regard, the FCC has organized a 
series of summits to discuss the issues and work toward 
potential solutions. Finally, when questioned about 
intercarrier compensation (the price one provider of a service 
pays another to terminate a call), Mr. Pepper noted that the 
FCC has undertaken a separate proceeding on the issue to 
resolve problems including that of multiple prices for the same 
service.
---------------------------------------------------------------------------
    \163\ Id. at 106.
---------------------------------------------------------------------------

Conclusion

    Several points were underscored at the hearing, notably 
that VoIP is a unique and dynamic technology that offers 
greater consumer options in telecommunications at a lower cost. 
The testimony of the witnesses emphasized that this technology 
should be fostered and allowed to develop to its full 
potential, although the social obligations associated with 
telecommunications should not be ignored. There was general 
agreement that preemption of state taxation on VoIP stands to 
benefit poor Americans and avail them of the advantages offered 
by new technology. Since both the FCC and Congress have 
critical roles to play in establishing the appropriate 
regulatory framework for VoIP, continuing oversight by the 
Judiciary Committee is important to ensure development of the 
technology and proper competition in the industry.

Oversight hearing on the ``Streamlined Sales Tax Agreement: States'' 
        Efforts to Facilitate Sales Tax Collection from Remote 
        Vendors''

    The Streamlined Sales and Use Tax Agreement (SSTA) is the 
result of an effort by State and local tax administrators to 
design and implement a system radically simplifying sales and 
use taxes.\164\ Organizers of this project are referred to 
generally as the ``Streamline Sales Tax Project'' (SSTP or 
``Project''). The SSTP has worked with the support of the 
National Governors' Association (NGA) and the National 
Conference of State Legislatures (NCSL).
---------------------------------------------------------------------------
    \164\ See http://www.geocities.com/streamlined2000/ and http://
www.streamlinedsalestax.org for information on the SSTP.
---------------------------------------------------------------------------
    On November 12, 2002, the State participants approved a 
final agreement outlining a comprehensive system to streamline 
and make uniform the States' current sales tax rules and 
administrative requirements.
    The SSTA would mark a significant departure from the sales 
and use tax system now in place in the United States. 
Currently, a State is prohibited under the Supreme Court's 
decision in Quill \165\ from compelling a remote seller lacking 
a physical presence in the State to collect and remit sales 
taxes for sales made to citizens within that States boundaries. 
The Project is expected to ask Congress to approve the 
agreement, and thereby authorize the States to compel out-of-
State merchants to collect sales taxes on all sales to 
customers in their respective States. Without Congressional 
authorization, compliance with the SSTA will be voluntary.
---------------------------------------------------------------------------
    \165\ Quill Corp. v. North Dakota, 504 U.S. 298 (1992).
---------------------------------------------------------------------------
    On October 1, 2003, the Subcommittee conducted a hearing on 
the SSTA.\166\ Witnesses included: the Honorable Bill Owens, 
Governor of the State of Colorado; Maureen Riehl, Vice 
President, State and Government Relations Counsel, the National 
Retail Federation; George Isaacson, tax counsel, the Direct 
Marketing Association; and Jack VanWoerkom, Executive Vice 
President and General Counsel, Staples Incorporated.
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    \166\ Hearing entitled: ``Streamline Sales and Use Tax Agreement: 
States' Efforts to Facilitate Sales Tax Collection from Remote 
Vendors'', Serial No. 57. October 1, 2003.
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    Governor Owens testified that the SSTA raises many 
questions about whether it will in effect be viewed as a new 
tax that would, in effect, negate tax relief Congress has 
granted to the American people over the past several years. He 
viewed the SSTA as being essentially unfair to consumers and 
raising troubling questions of fairness in how states will deal 
with retailers. He indicated his concerns about whether the 
SSTA respected principles of federalism by ceding authority 
over State tax policy to ``a board of unelected, out-of-State 
members of the sales tax administrative bureaucracy.'' \167\
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    \167\ Hearing Transcript at 11.
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    Ms. Riehl testified in favor of the SSTA, indicating that 
in her view it was ``very pro-retail.'' \168\ She indicated 
that the SSTA would provide certainty for retailers and give 
them the benefits of ``common definitions, centralized 
administration of the sales tax, limits on audits, which are an 
enormous cost burden to retailers and we can have simplicity 
down to one rate per zip code.'' \169\
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    \168\ Id. at 13.
    \169\ Id.
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    Mr. Isaacson noted that while there has been general 
agreement among commentators on the American sales and use tax 
system that a major problem is the existence of thousands of 
taxing jurisdictions. The SSTA, however, involves no reduction 
in the number of these jurisdictions, he noted. He testified 
that in 1967 there were approximately 3000 taxing 
jurisdictions, while there are now more than 8,000. ``The 
problem worsens and the SSTA does not address it,'' he 
said.\170\ He emphasized the complexity of the sales and use 
tax collection was not considered in the development of the 
SSTA, ``nor do we have conforming legislation that matches even 
the weakest version of uniformity that SST project has passed. 
What is important is to go back to the drawing board and do it 
right.'' \171\
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    \170\ Id. at 18
    \171\ Id. at 19.
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    Mr. VanWoerkom testified in support of the SSTA because it 
``levels the playing field among all retailers by requiring 
remote retailers to collect and remit State sales taxes in the 
same manner as brick-and-mortar retailers * * * We also support 
it because it simplifies the enormous task of complying with 
State sales tax, and it is enormous.'' \172\ He indicated that 
consistent definitions would be a benefit to retailers.
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    \172\ Id. at 74.
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Oversight Hearings 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: the 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.
    During the 108th Congress, the Subcommittee two oversight 
hearings on the reauthorization requests of the DOJ components 
over which it has jurisdiction. The first hearing was held on 
April 8, 2003. Testifying on behalf of the DOJ were: Lawrence 
Friedman, Director, Executive Office for United States 
Trustees; Guy Lewis, Director, Executive Office for United 
States Attorneys; Honorable Thomas Sansonetti, Assistant 
Attorney General, Environment and Natural Resources Division; 
and Stuart Schiffer, Deputy Assistant Attorney General, Civil 
Division. The second hearing was held on March 9, 2004. 
Testifying at this hearing were the following: Lawrence 
Friedman, Director, Executive Office for United States 
Trustees; Guy Lewis, Director, Executive Office for United 
States Attorneys; Honorable Thomas Sansonetti, Assistant 
Attorney General, Environment and Natural Resources Division; 
and Peter D. Keisler, Assistant Attorney General, Civil 
Division.
            (a) Executive Office for United States Attorneys (EOUSA)
    During the two reauthorization oversight hearings, the 
Subcommittee examined the budget priorities for programs within 
the responsibility of the United States Attorneys (USAs) to 
determine whether adequate resources were being devoted to 
these responsibilities. The Subcommittee also examined how well 
the EOUSA and the Attorney General oversaw and coordinated the 
efforts of the 94 USAs.
            (b) Office of the Solicitor General (OSG)
    The Subcommittee received written statements for both 
hearings from Theodore B. Olson, the Solicitor General, 
discussing the criteria utilized by the OSG in determining 
which issues to appeal, the relationship between the OSG and 
other areas of the DOJ with respect to the control of appellate 
matters, improving efficiency and other administrative matters.
            (c) Executive Office for United States Trustees
    The United States Trustee Program is responsible for 
overseeing the administration of bankruptcy cases and private 
trustees. The Program is overseen by the Executive Office for 
United States Trustees, which provides policy and management 
direction to United States Trustees. The Program operates 
through a system of 21 regions.
    Specific responsibilities of the United States Trustees 
include appointing and supervising private trustees who 
administer chapter 7,\173\ 12,\174\ and 13 \175\ bankruptcy 
estates; taking legal action to enforce the requirements of the 
Bankruptcy Code; ferreting out fraud and abuse; referring 
matters for investigation and criminal prosecution when 
appropriate; ensuring that bankruptcy estates are administered 
promptly and efficiently; ensuring that professional fees are 
reasonable; appointing and convening creditors' committees in 
chapter 11 business reorganization cases; \176\ and reviewing 
disclosure statements and retention applications for 
professional persons retained to represent certain interested 
parties in bankruptcy cases.
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    \173\ Under chapter 7, a debtor's non-exempt assets are collected 
and liquidated to satisfy the claims of creditors. The United States 
Trustee appoints a private trustee who serves as a fiduciary for the 
debtor's creditors and adminsiters the chapter 7 bankruptcy estate. An 
eligible debtor may receive a discharge from his or her debts under 
chapter 7, except for certain debts prohibited from discharge under the 
Bankruptcy Code.
    \174\ Chapter 12 permits an eligible family farmer to reorganize 
the farm's financial obligations while continuing his or her farming 
operations. The United States Trustree typically appoints a standing 
trustee who serves as a fiduciary for the debtor's creditors and 
oversees the fulfillment of debtor's obligaitons under a repayment 
plan. Upon completion of the plan payments, the chapter 12, debtor is 
eligible to receive a discharge.
    \175\ Chapter 13 is used primarily be individual consumers to 
reorganize their financial affairs under a repayment plan that must be 
completed within five years. To be eligible for chapter 13 relief, a 
consumer must have regular income and may not have more than a certain 
amount of debt. A standing trustee appointed by the United States 
Trustee serves as a fiduciary for the debotr's creditors and oversees 
the fulfillment of the debtor's obligations under a repayment plan. 
Upon completion of the plan playments, the chapter 13 debtor is 
eligible to receive a discharge.
    \176\ Chapter 11 provides an individual or business entity the 
opportunity to reorganize financial liabilities while remaining in 
business. The debtor, typically with the participation of its 
creditors, prepares a reorganization plan to repay all or part of its 
debts.
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    The oversight hearings conducted in 2003 and 2004 provided 
an opportunity for the Subcommittee to consider various issues, 
including the following:
          (1) In light of DOJ Inspector General's 2003 Audit 
        Report on the United States Trustee Program's Efforts 
        to Prevent Bankruptcy Fraud and Abuse--which was rather 
        critical of the Program's efforts to detect criminal 
        fraud and abuse--what efforts had the Program 
        undertaken to respond to the Audit Report's findings?
          (2) Has the Program's refocused emphasis on 
        dismissing chapter 7 cases for substantial abuse taken 
        resources away from other Program priorities, such as 
        detecting criminal fraud and abuse?
          (3) Does the Program currently screen every chapter 7 
        case for substantial abuse?
          (4) In fiscal year 2002, the Program obtained 
        discharge denials in 308 chapter 7 cases out of 
        approximately 1 million chapter 7 cases filed that 
        year. What is the significance of these statistics?
    In addition, the Subcommittee inquired into how the Program 
utilizes federal training and meeting facilities.
    As a result of these hearings, the Subcommittee 
successfully sought to have included two provisions in H.R. 
3036, the ``Department of Justice Appropriations Authorization 
Act, Fiscal
    Years 2004 through 2006.'' Section 304 of the bill provides 
that unless specifically authorized in writing by the Attorney 
General, the Department of Justice (and each entity within it) 
must use for any predominately internal training or conference 
meeting only a facility that does not require payment to a 
private entity for use of the facility. In addition, section 
306 of the bill requires the Director of the Executive Office 
for United States Trustees to prepare an annual report to the 
Congress detailing the following: (1) the number and types of 
criminal referrals made by the United States Trustee Program; 
(2) the outcomes of each criminal referral; (3) for any year in 
which the number of criminal referrals is less than for the 
prior year, an explanation of the decrease; and (4) the United 
States Trustee Program's efforts to prevent bankruptcy fraud 
and abuse, particularly with respect to the establishment of 
uniform internal controls to detect common, higher risk frauds, 
such as a debtor's failure to disclose all assets.
            (d) Civil Division
    The Civil Division is one of six litigating divisions 
within the Justice Department, and represent the United States, 
its departments and agencies, Members of Congress, Cabinet 
officers, and other Federal employees. The Division itself is 
comprised of seven branches: Commercial Litigation; Federal 
Programs; Torts; Office of Immigration Litigation; Office of 
Consumer Litigation; Office of Management Programs; and 
Appellate Staff. The Subcommittee focused questioning on 
decentralization of Division attorneys from Main Justice to 
field offices, and current status of Cobell v. Norton involving 
Individual Indian Trust Accounts.
            (e) Environment and Natural Resources Division (ENRD)
    ENRD handles disputes involving federal lands, water, and 
Indian disputes. The Division is composed of the following 
sections: Environmental Crimes; Environmental Enforcement; 
Environmental Defense; Wildlife and Marine Resources; General 
Litigation; Indian Resources; Land Acquisition; Policy, 
Legislation, and Special Litigation; and Appellate. Assistant 
Attorney General Sansonetti testified before the Subcommittee, 
with questioning centering around the Division's past handling 
of the Cobell v. Norton case, and general issues involving 
futurepotential claims arising from the Department of 
Interior's handling of Individual and Tribal Trust Accounts.

Oversight hearing on the Legal Services Corporation (LSC): Inquiry into 
        the activities of the California Rural Legal Assistance Program 
        and testimony relating to the merits of client co-pay

    The hearing on LSC took place on March 31, 2004. Witnesses 
for the hearing were Helaine M. Barnett, President of LSC; Jose 
R. Padilla, Executive Director of California Rural Legal 
Assistance, Inc.; and Jeanne Charn, Director of the Hale and 
Dorr Legal Services Center, and Director, Bellow-Sachs Access 
to Legal Services Project, Harvard Law School.
    LSC is a private, non-profit corporation established by 
Congress to provide civil legal assistance to those who would 
otherwise be unable to afford it. LSC was created in 1974 and 
is funded through congressional appropriation. LSC does not 
provide services directly. Instead, it acts as the funding 
source to various grantees organized across the country that 
provide the actual legal services. LSC acts as the oversight 
and administrative body to assure that the federal funds are 
expended in accordance with congressional intent and in an 
efficient and effective manner. These grantees provide service 
in every county in America, as well as U.S. territories, and 
also specialize in migrant farmworker and Native American needs 
in certain coverage areas.
    LSC is headed by an 11-member Board of Directors appointed 
by the President and confirmed by the Senate. The board is 
bipartisan, and no more than six members of the board may be 
affiliated with the same political party. Local programs are 
governed by their own board of Directors, which set priorities 
and determine the types of cases that will be handled by the 
grantee, subject to the restrictions placed by Congress. These 
boards are comprised of members of local bar associations as 
well as others. Each board hires its own executive director, 
who in turn hires the program staff. Programs may supplement 
their LSC grants with additional funds from state and local 
governments, IOLTA (Interest on Lawyer Trust Accounts), other 
federal agencies, bar associations, United Way and other 
charitable organizations, foundations and corporations, and 
individual donors. They further leverage federal funds by 
involving private attorneys in the delivery of legal services 
for the poor, mostly through volunteer pro bono work.
    Congressionally-mandated restrictions specify which cases a 
grantee may undertake. LSC-funded programs may not handle 
criminal cases, nor may they accept fee-generating cases that 
private attorneys are willing to accept on a contingency basis. 
In addition, Congress imposed further restrictions through the 
1996 LSC Appropriations Act, which clarified the scope of work 
which an LSC funded grantee may undertake, even with non-LSC 
funds. Among them were prohibitions on class actions, 
challenges to welfare reform, collection of attorneys' fees, 
rulemaking, lobbying, litigation on behalf of prisoners, 
representation in drug-related public housing evictions, and 
representation of certain categories of aliens. It is the duty 
of LSC to make sure that grantees are operating within the 
restrictions set by Congress.
    LSC states that its legal services delivery system is based 
on several principles. These include: local priorities, 
national accountability, competition for grants, and a strong 
public- private partnership. Local programs are independent 
entities, governed by Boards of Directors drawn from the local 
bar and client community. All legal services programs must 
comply with laws enacted by Congress and the implementing 
regulations promulgated by LSC.
    The hearing provided an opportunity for the Subcommittee to 
explore the notion of co-payments between clients and grantees. 
In addition, the hearing considered the activities of the 
California Rural Legal Assistance (CRLA), which had been the 
subject of LSC Inspector General reports.
    Congressman Doolittle prompted an Inspector General report 
regarding CRLA's involvement in Hernandez v. Board of Education 
of Stockton Unified School District. Pursuant to the 
investigation conducted by LSC's Inspector General, it found 
that involvement in the Hernandez case in 2002 and 2003 
violated the statutory and regulatory prohibitions on 
participation in class actions cases. However, the Inspector 
General also indicated that continued participation in a 
desegregation case was permissible because CRLA reasonably 
relied on LSC guidance for pre-existing desegregation cases 
provided in 1977. Finally, there was insufficient evidence to 
substantiate the allegation that CRLA acted unilaterally by not 
consulting with clients. The Inspector General has recommended 
that CRLA withdraw from the Hernandez case, and reportedly CRLA 
has agreed to file the proper motion to withdraw.
    The Inspector General conducted an audit of CRLA that 
revealed multiple concerns regarding the administration and 
function of CRLA and, specifically, its compliance with certain 
requirements of 45 CFR Part 1610, a regulation which prohibits 
grantees from transferring LSC funds to an organization that 
engages in activities prohibited by the LSC Act, and LSC 
Appropriations Acts, and LSC regulations. To comply with these 
requirements, grantees must be legally separate from such 
organizations, not transfer LSC funds to them, not subsidize 
any restricted activity, and maintain physical and financial 
separation from them. The report by the Inspector General 
indicated that, in the period between January 1, 2000 and May 
10, 2002: (1) CRLA did not maintain objective integrity and 
independence from a legal organization which engaged in 
prohibited activities; (2) CRLA did not prepare statements of 
facts and identify clients in certain cases; and, (3) CRLA 
improperly made rental payments for an organization in further 
contradiction of 45 CFR 1610.
    Specifically, CRLA was found to subsidize the restricted 
activities of another separate entity that was involved in 
restricted activity while also maintaining a sufficiently close 
relationship with the restricted entity that it was difficult 
to distinguish between the two organizations. This was 
demonstrated through co-counseled cases, shared staff, rent 
subsidy, and the physical separation (or lack thereof) of 
facilities. Additionally, in contravention of 45 CFR 1636.2, 
the grantee did not prepare statements of facts nor identify 
all clients as required, leaving out the identity of some 197 
clients. Section 1636.2 of LSC's regulations requires that when 
a grantee files a complaint in court or participates in 
litigation, it must identify each plaintiff and prepare a 
statement of facts that each plaintiff signs. And, finally, 
CRLA improperly paid rent for a separate organization, the San 
Luis Obispo Legal Alternatives Corporation (SLOLAC). SLOLAC, a 
separate legal organization which provides legal services to 
the elderly, was co-located with the one of CRLA's branch 
offices, and CRLA gave rent subsidization during 2000 and 2001 
in an amount of $6,845.

                                  
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