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# Legislative Bulletin....................................................July 17, 2006

**Contents:**

> **H.R. 4075** --- Marine Mammal Protection Act Amendments of 2005
>
> **H.R. 3085** --- To amend the National Trails System Act to update
> the feasibility and suitability study originally prepared for the
> Trail of Tears National Historic Trail and provide for the inclusion
> of new trail segments, land components, and campgrounds associated
> with that trail, and for other purposes
>
> **H.R. 4376** --- Springfield Armory National Historic Site,
> Massachusetts Act of 2005
>
> **H.R. 3729** --- Federal Judiciary Emergency Tolling Act of 2005
>
> **H.R. 1871** --- Volunteer Pilot Organization Protection Act of 2006

H.R. 4075 --- Marine Mammal Protection Act Amendments of 2005 --- *as
introduced* (Pombo, R-CA)

**[Order of Business]{.underline}**: The bill is scheduled for
consideration on Monday, July 17, 2006, under a motion to suspend the
rules and pass the bill.

**[Summary]{.underline}**: H.R. 4075 permits marine mammal (any mammal
that lives in the ocean) product to be exported from the U.S. if the
product:

-   "is legally possessed, and exported by, a citizen of the United
    States for noncommercial purposes in conjunction with travel outside
    the United States and the product is imported into the United States
    by the same person upon the termination of travel;

-   "is legally possessed, and exported by, a person that is not a
    citizen of the United States for noncommercial purposes;

-   "is legally possessed and exported as part of a cultural exchange,
    by an Indian, Aleut, or Eskimo residing in Alaska; or

-   "is owned by a Native inhabitant of Russia, Canada, or Greenland and
    is exported for noncommercial purposes in conjunction with travel or
    as part of a cultural exchange with an Indian, Aleut, or Eskimo
    residing in Alaska."

Current marine mammal laws have placed a moratorium on the taking and
importation of marine mammals and marine mammal products, except in
certain specific cases. However, current statute provides for the
*importation* of marine mammal product in certain cases, and this
provision of H.R. 4075 outlines under what circumstances marine mammal
product may be *exported*. According to the Resources Committee, marine
mammal products are parts of any marine mammal that can be turned into
something else; for instance, Alaska natives can make mammal parts into
clothing or art.

H.R. 4075 provides that no marine mammal may be exported for the purpose
of public display, unless the Secretary of Agriculture evaluates and
verifies that the receiving facility meets standards that are comparable
to the requirements that a person must meet to receive a permit, which
is offered under current law to certain individuals and entities. The
bill also prohibits the exportation of marine mammals for the purpose of
scientific research or enhancing the survival or recovery of a species
or stock, unless the above conditions are met. Current law also
prohibits these practices; however, this provision of H.R. 4075 explains
the prohibitions in greater detail and adds the requirement that the
Secretary of Agriculture to evaluate and verify each receiving entity or
individual.

Current law requires the Secretary of Commerce to maintain an inventory
of all marine mammals brought into the country by persons who have
received a permit from the government to do so. H.R. 4075 directs the
Secretaries of Commerce and the Interior to, within 12 months of
enactment, conduct a review of this inventory, the use of the
information in the inventory, and the costs, benefits, and issues
associated with the development of an online inventory. The findings of
this review are to be submitted to the appropriate congressional
committees, in a report containing recommendations on whether the
Secretary, or the private sector, should continue to maintain the
inventory, how public access and access by federal agencies should be
maintained, and several other recommendations.

H.R. 4075 prohibits anyone under U.S. jurisdiction from releasing any
captive marine mammal unless specifically authorized under the Marine
Mammal Protection Act.

H.R. 4075 increases civil and criminal penalties associated with
improper marine mammal exports and imports. These penalties are as
follows:

-   \$20,000 civil penalty (up from \$10,000) for violating any
    provisions of the Marine Mammal Protection Act or any permit or
    regulation issued under the Act;

-   \$30,000 fine (up from \$20,000) upon conviction, for each
    violation, or imprisonment for up to one year, or both; and

-   \$35,000 (up from \$25,000) civil penalty for the unlawful taking of
    any marine mammal by any vessel subject to the jurisdiction of the
    United States.

H.R. 4075 reauthorizes and amends an existing marine mammal grant
program, which provides grants to federal state agencies, as well as
public and private institutions that are undertaking research in
subjects relevant to the protection and conservation of marine mammals.

In addition, the bill reauthorizes and amends, a Department of Commerce
fishing gear research program of which the purpose is to "reduce to the
maximum extent practicable the incidental taking of marine mammals in
connection fishing operations, and to make every practicable effort to
develop, evaluate, and make available to owners and operators of fishing
vessels such gear and fishing method improvements as quickly as
possible." The fishing gear program receives roughly \$148,000 in annual
appropriations, but a specific funding level is not authorized in
current law. H.R. 4075 also permits the Secretary of Commerce to
establish a mini-grant program, in which federal assistance would be
giving for developing, manufacturing, testing, or designing new types of
fishing gear designed to reduce the deaths and injuries to marine
mammals associated with fishing. This mini program exists in current
law, but is rewritten by this Act.

H.R. 4075 directs the Secretary of Commerce to develop and implement a
"take reduction plan" designed to assist in the recovery or prevent the
depletion of each strategic stock which interacts with commercial
fisheries that have frequent or occasional incidental mortality and
serious injury of marine mammals, unless the Secretary determines, after
notice and opportunity for public comment, that the level of fishery
related mortality and serious injury is having a negligible impact on
that stock.

H.R. 4075 reauthorizes and amends a current program on the nonlethal
removal and control of nuisance pinnipeds. The program is to include a
review of measures that have been taken to effect such removal and
control, the effectiveness of these measures, and the development of new
technologies to deter nuisance pinnipeds. The nonlethal removal of
pinnipeds program receives roughly \$10 million in annual
appropriations, but a specific funding level is not authorized in
current law. Pinnipeds are "marine mammals characterized by fur/hair,
four limbs modified for swimming (flippers), breath held while diving,
generally coming ashore in colonies for reproduction. \[This\] includes
harbor seals, sea lions, walruses, elephant seals, and other seals."
([www.projectpacific.org/glossary.html](http://www.google.com/url?sa=X&start=0&oi=define&q=http://www.projectpacific.org/glossary.html))

In addition, the bill reauthorizes a grant program for the purpose of
making grants to state and local governments and regional agencies to
carry out qualified nonlethal control of nuisance pinnipeds projects.
The federal share for these projects is limited to 75% of the total
cost.

H.R. 4075 reauthorizes at \$5 million each year (current authorization),
the John H. Prescott Marine Mammal Rescue Assistance Grant Program,
which provides grants to eligible stranding network participants for the
recovery or treatment of marine mammals, the collection of data from
living or dead stranded marine mammals for scientific research regarding
marine mammal health, and facility operation costs that are directly
related to those purposes. Under current law, \$4 million of the annual
authorizations is made available to the Department of Commerce, while
\$1 million is made available to the Department of the Interior. This
legislation would increase the Department of Commerce's allotment to \$6
million.

H.R. 4075 also reauthorizes, at \$125,000 each year (down from
\$500,000), the Marine Mammal Health and Stranding Response Program,
which facilitates the collection and dissemination of reference data on
the health of marine mammals and health trends of marine mammal
populations in the wild. The current authorization for this program
expired in 1993, and H.R. 4075 reauthorizes the program for fiscal years
2006 through 2010.

**[Committee Action]{.underline}**: H.R. 4075 was introduced on October
18, 2005 and was referred to the Committee on Resources, which took no
official action.

**[Cost to Taxpayers]{.underline}**: There is no CBO cost estimate
available for this bill. However, according to the Resources Committee,
the text of H.R. 2130 is almost identical to H.R. 4075, and the CBO
score for this bill is being used in place. According to CBO, H.R. 2130
will cost \$12 million in FY06 and \$60 million over five years.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: No.

**[Constitutional Authority]{.underline}**: There is no committee report
available citing constitutional authority. However, House Rule XIII,
Section d(1), requires that all committee reports contain "a statement
citing the *specific* powers granted to Congress in the Constitution to
enact the law proposed by the bill or joint resolution." *\[emphasis
added\]*

**[RSC Staff Contact:]{.underline}** Joelle Cannon;
<joelle.cannon@mail.house.gov>, (202) 226-0718.

H.R. 3085 --- To amend the National Trails System Act to update the
feasibility and suitability study originally prepared for the Trail of
Tears National Historic Trail and provide for the inclusion of new trail
segments, land components, and campgrounds associated with that trail,
and for other purposes --- *as amended* (Wamp, R-TN)

**[Order of Business]{.underline}**: The bill is scheduled for
consideration on Monday, July 17, 2006, under a motion to suspend the
rules and pass the bill, as amended.

**[Summary]{.underline}**: H.R. 3085 would direct the Secretary of the
Interior to complete the feasibility study on adding to the Trail of
Tears National Historic Trail the Benge and Bell routes; the "land
components of the designated water routes in Alabama, Arkansas,
Oklahoma, and Tennessee;" "routes from collection forts in Alabama,
Georgia, North Carolina, and Tennessee to emigration depots;" and the
campgrounds located along the previously listed routes within 6 months
of passage of the bill.

**[Additional Information]{.underline}**: According to the National Park
Service's website, the Trail of Tears National Historic Trail
commemorates the negative effects of the Indian Removal Act of 1830,
which mandated relocating all Native American Indian tribes east of the
Mississippi River to lands west of the Mississippi. Currently, the
Historic Trail includes 2,200 miles of routes over nine states. (source:
<http://www.nps.gov/trte/>)

According to the sponsor's office, the Park Service has not completed
the process to make a recommendation to Congress, and the bill is
intended to direct the process to be completed. The Park Services has
stated it needs six months to complete the process.

Additionally, the sponsor's office has asserted that even if the lands
were designated a part of the National Historic Trail of Tears, the
lands would not be under federal jurisdiction. The designation would
simply allow historical markers to be placed along the routes.

**[Committee Action]{.underline}**: H.R. 3085 was introduced on June 28,
2005, and referred to the Committee on Resources Subcommittee on
National Parks. The bill was marked-up by the full committee and was
reported to the House, as amended, by unanimous consent on June 21,
2006.

**[Cost to Taxpayers]{.underline}**: CBO estimates that the bill would
cost less than \$100,000 assuming the availability of appropriated
funds.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: No.

**[Constitutional Authority]{.underline}**: Committee Report 109-549
cites constitutional authority for this legislation in Article 4,
Section 3, and Clause 2 of the Constitution, the property clause.

**[RSC Staff Contact]{.underline}**: Marcus Kelley;
<marcus.kelley@mail.house.gov>; 202-226-9717

H.R. 4376 --- Springfield Armory National Historic Site, Massachusetts
Act of 2005 --- *as amended* (Neal, D-MA)

**[Order of Business]{.underline}**: The bill is scheduled for
consideration on Monday, July 17, 2006, under a motion to suspend the
rules and pass the bill, as amended.

**Note:** Under House Republican Conference Rules, legislation creating
a new program is not to be considered by the House on the Suspension
Calendar. Although the Conference rule may be waived, H.R. 4376 has been
deemed ***[not]{.underline}*** to create a new federal program, despite
evidence to the contrary (see additional information below), and a
waiver was therefore not sought by the sponsor nor granted by
Leadership.

**[Summary]{.underline}**: H.R. 4376 allows the Secretary of the
Interior, acting through the National Park Service (NPS), to enter into
a cooperative agreement with the Commonwealth of Massachusetts on behalf
of Springfield Technical Community College (STCC) to provide financial
assistance to that college for the purpose of maintaining, preserving,
renovating, and rehabilitating any historic structures within the
Springfield Armory National Historic Site, including historic structures
located within the Preservation Control Area.

The bill lists a number of findings regarding the Springfield Armory,
including the following:

-   "The Site commemorates the role of the Springfield Armory in the
    Nation\'s military history, a role that the Armory served for almost
    200 years;

-   "In 1968 the Armory was deactivated as a military installation and
    in 1974 Congress established the Springfield Armory National
    Historic Site. A portion of the Site is administered by the National
    Park Service. The remainder of the Springfield Armory National
    Historic Site, known as the 'Preservation Control Area', is owned
    and administered by the Commonwealth of Massachusetts on behalf of
    Springfield Technical Community College; and

-   "The Preservation Control Area contains several historic buildings
    that are in a state of disrepair. The deteriorating condition of
    these historic buildings threatens to undermine the character and
    integrity of the Springfield Armory National Historic Site and their
    repair, renovation, maintenance and rehabilitation is essential to
    the continued preservation of the Site and its museum and
    collections."

**[Additional Information]{.underline}**: According to Committee Report
109-559, "In 1978, Congress established the Springfield Armory National
Historic Site to preserve the Nation's first national armory and the
center of military small arms manufacturing from 1794 to 1968. Today,
the National Park Service manages the Armory Museum and other historical
structures while Springfield Technical Community College owns and
manages a number of other important historical structures in the
'Preservation Control Area' within the Park." Although a cooperative
agreement between the NPS and Springfield Technical Community College
currently exists, the agreement does not allow for federal financial
assistance to the college for the purpose of preserving the historic
structures. However, H.R. 4376 allows for a new agreement to be entered
into, which would provide for federal assistance. **This new federal
funding stream to a local project in Massachusetts is considered by RSC
staff to be essentially a new program, because the bill allows the
Secretary to negate a previous agreement that does not allow for federal
funding, and to enact a new agreement, which does allow for federal
funding.**

**[Committee Action]{.underline}**: H.R. 4376 was introduced on November
17, 2005 and was referred to the Committee on Resources, which
considered it, held a mark-up, and reported the bill, as amended, by
unanimous consent on July 13, 3006.

**[Cost to Taxpayers]{.underline}**: According to CBO, "The costs of
implementing H.R. 4376 are uncertain because the NPS has not completed
formal engineering assessments of the STCC buildings... ...However,
based on information provided by the NPS and the STCC, CBO estimates
that total costs to restore more than 20 historic buildings and related
structures eligible for financial assistance under the bill would be
between \$50 million and \$100 million. We expect that the federal
government would pay between 75 percent and 100 percent of such costs
over the next five years, including \$10 million to stabilize the
exterior of the buildings and about \$25 million to restore the largest
structure, the Caserne building."

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: Yes, the bill creates a new cooperative
agreement allowing for federal funding, where funding was previously not
allowed.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: No.

**[Constitutional Authority]{.underline}**: The Committee finds
constitutional authority in Article IV, Section 3, Clause 2 of the
Constitution (the congressional power to make laws relating to federal
land).

**[RSC Staff Contact:]{.underline}** Joelle Cannon;
<joelle.cannon@mail.house.gov>, (202) 226-0718.

[]{.mark}

H.R. 3729 --- Federal Judiciary Emergency Tolling Act of 2005 --- *as
reported* (Sensenbrenner, R-WI)

**[Order of Business]{.underline}**: The bill is scheduled for
consideration on Monday, July 17, 2006, under a motion to suspend the
rules and pass the bill.

**[Summary]{.underline}**: H.R. 3729 would allow courts to delay
deadlines in cases when the court is affected by a natural disaster or
emergency situation, for example, the New Orleans courts during
Hurricanes Katrina and Rita. The specific provisions of the bill are as
follows:

**Tolling in District Courts.** H.R. 3729 would allow a chief judge of a
district court to delay deadlines imposed by federal or state law when
natural disasters or other emergency situations close the courts or make
compliance with deadlines impracticable. This authority would not apply
to criminal statutes of limitation, any state statute of limitation on
an action arising from state law, or if the extension is inconsistent
with controlling state law.

In the event the chief judge is unavailable, the authority falls first
to the senior judge in regular active service, then to the chief judge
of the circuit.

**Criminal Cases.** H.R. 3729 would not authorize the suspension of
habeas corpus, which is "a judicial mandate to a prison official
ordering that an inmate be brought to the court so it can be determined
whether or not that person is imprisoned lawfully and whether or not he
should be released from custody." (source:
<http://www.lectlaw.com/def/h001.htm>) In criminal cases, the judges
extending deadlines must consider the United States' ability to
prosecute, as well as the defendants' ability to prepare their defenses.

**Tolling in Courts of Appeals.** H.R. 3729 would, in appellate courts,
give the chief judge the authority to delay deadlines in the event of a
natural disaster or emergency situation. If the chief judge is
unavailable, the senior judge in regular active service has the
authority to delay deadlines. Habeas corpus is unaffected in appellate
courts as in district courts.

**Issuance of Orders.** The bill would permit an Attorney General, or
his designee, to request tolling of a deadline. In addition, a judge
empowered by the bill may delay a deadline of his own accord.

**Duration of Orders.** The bill would provide that delays are to last
no longer than 14 days unless the chief judge of a district or circuit
seeks the consent of the judicial council of the circuit to issue
additional tolling orders.

**Notice.** H.R. 3729 would require that tolling orders be "reasonably
publicized," including on the websites of the affected courts, and on
the federal judiciary website. Additionally, the Director of the
Administrative Office of the U.S. Courts would be required to notify
both the House and Senate Judiciary Committees.

If the delay is fourteen days or more, the court issuing the order would
submit a brief report to the House and Senate Judiciary Committees
within 180 days after the delay ends. The report should include the
reason for issuing the order(s); the duration of the order(s); the
effect of the order(s) on litigants; and the costs to the judiciary
resulting from the order(s).

**[Committee Action]{.underline}**: H.R. 3729 was introduced on
September 13, 2005, and referred to the Committee on the Judiciary. The
bill was marked-up November 9, 2005, and ordered reported to the House
by voice vote.

**[Cost to Taxpayers]{.underline}**: CBO estimates that enacting H.R.
3729 would neither have a significant impact on the budget, nor affect
direct spending or revenues.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: No.

**[Constitutional Authority]{.underline}**: Committee Report 109-371
cites constitutional authority for this legislation in Article 1,
Section 8 of the Constitution, but fails to cite a specific Clause.

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution" *\[emphasis added\]*.

The Committee could have cited Article 1, Section, 8, clause 9, giving
Congress the enumerated power to "constitute Tribunals inferior to the
supreme Court," and/or Article 1, Section 8, clause 18, the necessary
and proper clause.

**[RSC Staff Contact]{.underline}**: Marcus Kelley;
<marcus.kelley@mail.house.gov>; 202-226-9717

H.R. 1871 --- Volunteer Pilot Organization Protection Act of 2006 ---
*as reported* (Drake, R-VA)

**[Order of Business]{.underline}**: The bill is scheduled for
consideration on Monday, July 17, 2006, under a motion to suspend the
rules and pass the bill.

**[Summary]{.underline}**: H.R. 1871 would amend current law to limit
liability for volunteer pilots and organizations that dedicate time to
public service.

**Findings:** H.R. 1871 lists the following findings:

-   "Scores of public benefit nonprofit volunteer pilot organizations
    provide valuable services to communities and individuals;

-   "In calendar year 2001, nonprofit volunteer pilot organizations
    provided long-distance, no-cost transportation for over 30,000
    people in times of special need;

-   "Such organizations are no longer able to reasonably purchase
    non-owned aircraft liability insurance to provide liability
    protection, and thus face a highly detrimental liability risk; and

-   "Such organizations have supported the interests of homeland
    security by providing volunteer pilot services at times of national
    emergency."

The bill would exempt pilots and volunteer organizations from liability
for harm caused by a specific act, or the omission of an action by the
volunteer on behalf of the organization, if the pilot was flying in
furtherance of the purpose of the organization and was operating an
aircraft for which the volunteer was properly licensed and insured. The
pilot or organization would still be liable if the acts in question are
classified as the federal crime of terrorism or domestic terrorism.

The exemption would also cover "referring agencies," including, "any
nonprofit organization that provides disaster relief services that place
staff, volunteers, evacuees, goods, supplies, or cargo on aircraft
flights being coordinated by volunteer pilot organizations in
circumstances of disaster response and relief."

H.R. 1871 directs the Attorney General (AG) to study the availability of
insurance to non-profit volunteer pilot organizations that fly for
public benefit. The AG is required to submit a report and
recommendations to Congress outlining findings on the ability of such
organizations to obtain insurance, and if an inability to obtain
insurance has an impact on operations.

**[Committee Action]{.underline}**: H.R. 1871 was introduced on April
27, 2005, and referred to the Committee on the Judiciary. The bill was
marked-up, and ordered to be reported to the House by voice vote on
March 2, 2006

**[Cost to Taxpayers]{.underline}**: CBO estimates that enacting H.R.
1871 would neither have a significant impact on the budget, nor affect
direct spending or revenues.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: H.R. 1871 contains an
intergovernmental mandate because it would preempt state tort laws by
exempting volunteer pilots and organizations from liability for injuries
caused during the course of volunteer activities. CBO estimates that the
resulting costs, if any, would be insignificant, and would be well below
the threshold established in UMRA.

**[Constitutional Authority]{.underline}**: Committee Report 109-349
cites constitutional authority for this legislation in Article 1,
Section 8 of the Constitution, but fails to cite a specific Clause.

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution" *\[emphasis added\]*.

The Committee could have cited the Commerce Clause in Article 1, Section
8, Clause 3, giving Congress the enumerated power to regulate commerce
between the states; and the necessary and proper clause in Article 1,
Section 8, Clause 18, giving Congress the power to make all laws
necessary and proper in executing the powers enumerated in Article 1,
Section 8.

**[RSC Staff Contact]{.underline}**: Marcus Kelley;
<marcus.kelley@mail.house.gov>; 202-226-9717

\###