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PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4789
Public Law 101-647
101st Congress
An Act
To control crime.
Nov. 29, 1990
[S. 3266]
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled.
Crime Control
'
SECTION 1. SHORT TITLE.
^
Act of 1990.
18 USC 1 note.
This Act may be cited £is the "Crime Control Act of 1990".
TITLE I—INTERNATIONAL MONEY
LAUNDERING
SEC. 101. REPORTS ON USES MADE OF CURRENCY TRANSACTION REPORTS.
Not later than 180 days after the effective date of this section, and
every 2 years for 4 years, the Secretary of the Treasury shall report
to the Congress the following:
(1) the number of each type of report filed pursuant to subchapter II of chapter 53 of title 31, United States Code (or
regulations promulgated thereunder) in the previous fiscal year;
(2) the number of reports filed pursuant to section 60501 of the
Internal Revenue Code of 1986 (regarding transactions involving currency) in the previous fiscal year;
(3) an estimate of the rate of compliance with the reporting
requirements by persons required to file the reports referred to
in paragraphs (1) and (2);
(4) the manner in which the Department of the Treasury and
other agencies of the United States collect, organize, analyze
and use the reports referred to in paragraphs (1) and (2) to
support investigations and prosecutions of (A) violations of the
criminal laws of the United States, (B) violations of the laws of
foreign countries, and (C) civil enforcement of the laws of the
United States including the provisions regarding asset forfeiture;
(5) a summary of sanctions imposed in the previous fiscal year
against persons who failed to comply with the reporting requirements referred to in paragraphs (1) and (2), and other steps
taken to ensure maximum compliance;
(6) a summary of criminal indictments filed in the previous
fiscal year which resulted, in large part, from investigations
initiated by analysis of the reports referred to in paragraphs (1)
and (2); and
(7) a summary of criminal indictments filed in the previous
fiscal year which resulted, in large part, from investigations
initiated by information regarding suspicious financial transactions provided voluntarily by financial institutions.
31 USC 5311
^°^-
104 STAT. 4790
Establishment.
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 102. ELECTRONIC SCANNING OF CERTAIN UNITED STATES CURRENCY NOTES.
(a) ELECTRONIC SCANNING TASK FORCE.—(1) Not more than thirty
days after the date of enactment of this section, the Secretary of the
Treasury (hereafter in this section referred to as the "Secretary")
shall appoint an Electronic Scanning Task Force (hereafter in this
section referred to as the "Task Force") to—
(A) study methods of printing on United States currency notes
issued under section 51115 of title 31, United States Code, in
denominations of $10 or more a serial number on each such
United States currency note that may be read by electronic
scanning;
(B) make an assessment of the cost of implementing such
electronic scanning of such United States currency notes; and
(C) make recommendations abput the amount of time needed
to implement such electronic scanning.
(2) In appointing members to the Task Force described in subsection (a), the Secretary shall appoint such number of members as the
Secretary determines to be appropriate. The Secretary, shall, at a
minimum appoint to the Task Force—
(A) the Assistant Secretary for Enforcement in the Department of the Treasury (who shall serve as a nonvoting, ex officio
member);
(B) at least one recognized expert from each of the following
fields relating to electronic scanning technology:
(i) coding,
(ii) symbology,
(iii) scanning systems,
(iv) computer data compilation, and
(v) printing technology, and
(C) Representatives from each of the following:
(i) the Bureau of Engraving and Printing,
(ii) the Federal Reserve Board, and
(iii) the United States Secret Service.
(3) Except as provided in paragraph (2)(A), no individual who is a
full-time employee of the Federal Government may serve as a
member of the Task Force.
(4) The provisions of the Federal Advisory Committee Act shall
not apply with respect to the Task Force.
(5) Members of the Task Force shall, while attending meetings
and conferences of the Task Force or otherwise engaging in the
business of the Task Force (including travel time), be entitled to
receive compensation at a rate fixed by the Secretary, but not
exceeding the rate specified at the time of such service under GS-18
of the General Schedule established under section 5332 of title 5,
United States Code.
(6) While away from their homes or regular places of business on
the business of the Task Force, such members may be allowed travel
expenses, including per diem in lieu of subsistence, as authorized by
section 5703 of title 5, United States Code, for persons employed
intermittently in the Government service.
(7) Upon the issuance of the report by the Secretary under subsection (b), the Task Force shall cease to exist.
(b) REPORT TO THE CONGRESS.—Not later than one hundred and
eighty days after the date of enactment of this section, the Secretary
shall issue a report to the appropriate committees of the Congress
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4791
that summarizes the findings and recommendations of the Task
Force under subsection (a)(1), and includes any additional recommendations by the Secretary,
(c) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to
be appropriated such sums as may be necessary to carry out the
purposes of this section.
SEC. 103. CONFORMING AMENDMENT RELATING TO THE EQUITABLE
TRANSFER OF FORFEITED PROPERTY TO A PARTICIPATING
FOREIGN NATION.
Section 981(i) of title 18, United States Code, is amended—
(1) by striking out the matter before paragraph (1);
(2) by realigning paragraphs (1) through (5) 2 ems to the left,
so that the left margins of such paragraphs are flush;
(3) by striking out "(1) Notwithstanding" in paragraph (1) and
all that follows through the end of the second sentence of that
parsigraph and inserting in lieu thereof the following:
"(i)(l) Whenever property is civilly or criminally forfeited under
this chapter, the Attorney General or the Secretary of the Treasury,
as the case may be, may transfer the forfeited personal property or
the proceeds of the sale of any forfeited personal or real property to
any foreign country which participated directly or indirectly in the
seizure or forfeiture of the property, if such a transfer—
"(A) has been agreed to by the Secretary of State;
"(B) is authorized in an international agreement between the
United States and the foreign country; and
"(C) is made to a country which, if applicable, has been
certified under section 481(h) of the Foreign Assistance Act of
1961.";
(4) by inserting after "Attorney General" in the third and
fifth sentences of paragraph (1) the following: "or the Secretary
of the Treasury"; and
(5) by striking out the last sentence of paragraph (1).
SEC. 104. ADDITION OF CONFORMING PREDICATE MONEY LAUNDERING
REFERENCES TO "INSIDER" EXEMPTION FROM THE RIGHT TO
FINANCIAL PRIVACY ACT.
Section 1113(1)(2) of the Right to Financial Privacy Act of 1978 (12
U.S.C. 3413(1)(2)) is amended by inserting "or of section 1956 or 1957
of title 18, United States Code" after "any provision of subchapter II
of chapter 53 of title 31, United States Code".
SEC. 105. CLARIFICATION
STRUMENTS".
OF
DEFINITION
OF
"MONETARY
IN-
Section 1956(c)(5) of title 18, United States Code, is amended to
read as follows:
"(5) the term 'monetary instruments' means (i) coin or currency of the United States or of any other country, travelers'
checks, personal checks, bank checks, and money orders, or (ii)
investment securities or negotiable instruments, in bearer form
or otherwise in such form that title thereto passes upon
delivery;".
SEC. 106. MONEY LAUNDERING AMENDMENTS.
Section 1956(c)(1) of title 18, United States Code, is amended by
striking "State or Federal" and inserting "State, Federal, or foreign".
,
104 STAT. 4792
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 107. CORRECTION OF ERRONEOUS
ERENCE UNDER 18 U.S.C. 1956.
PREDICATE
OFFENSE
REF-
Section 1956(c)(7)(D) of title 18, United States Code, is amended by
striking out "section 310 of the Controlled Substances Act (21 U.S.C.
830) (relating to precursor and essential chemicals)" and inserting in
lieu thereof "a felony violation of the Chemical Diversion and
Trafficking Act of 1988 (relating to precursor and essential
chemicals)".
SEC. 108. KNOWLEDGE REQUIREMENT
LAUNDERING.
FOR INTERNATIONAL
MONEY
Section 1956(a) of title 18, United States Code, is amended—
(1) in paragraph (2) by inserting at the end the following: "For
the purpose of the offense described in subparagraph (B), the
defendant's knowledge may be established by proof that a law
enforcement officer represented the matter specified in
subparagraph (B) £is true, and the defendant's subsequent statements or actions indicate that the defendant believed such
representations to be true."; and
(2) in paragraph (3) by striking "For purposes of this paragraph" and inserting "For purposes of this paragraph and
paragraph (2)".
.
Victims of Child
Abuse Act of
1990.
Courts.
Legal services.
42 u s e 13001
note.
TITLE II—VICTIMS OF CHILD ABUSE ACT
OF 1990
SEC. 201. SHORT TITLE.
This title may be cited as the "Victims of Child Abuse Act of
1990".
Grant programs.
42 u s e 13001.
Subtitle A—Improving Investigation and
Prosecution of Child Abuse Cases
SEC. 211. FINDINGS.
The Congress finds that—
(1) over 2,000,000 reports of suspected child abuse and neglect
are made each year, and drug abuse is associated with a significant portion of these;
(2) the investigation and prosecution of child abuse cases is
extremely complex, involving numerous agencies and dozens of
personnel;
(3) in such cases, too often the system does not pay sufficient
attention to the needs and welfare of the child victim, aggravating the trauma that the child victim has already experienced;
(4) multidisciplinary child abuse investigation and prosecution programs have been developed that increase the reporting
of child abuse cases, reduce the trauma to the child victim, and
increase the successful prosecution of child abuse offenders; and
(5) such programs have proven effective, and with targeted
Federal assistance, could be duplicated in many jurisdictions
throughout the country.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4793
SEC. 212. AUTHORITY OF THE DIRECTOR TO MAKE GRANTS.
42 USC 13002.
(a) IN GENERAL.—The Director of the Office of Victims of Crime
(hereinafter in this subtitle referred to as the "Director"), in consultation with officials of the Department of Health eind Human
Services, shall make grants to develop and implement multidisciplinary child abuse investigation and prosecution programs.
(b) GRANT CRITERIA.—(1) The Director shall establish the criteria
to be used in evaluating applications for grants under this section
consistent with sections 262, 293, and 296 of subpart II of title II of
the Juvenile Justice and Delinquency Prevention Act of 1974 (42
U.S.C. 5665 et seq.).
(2) In general, the grant criteria established pursuant to paragraph (1) may require that a program include any of the following
elements:
(A) A written agreement between local law enforcement,
social service, health, and other related agencies to coordinate
child abuse investigation, prosecution, treatment, and counseling services.
(B) An appropriate site for referring, interviewing, treating,
and counseling child victims of sexual and serious physical
abuse and neglect (referred to as the "counseling center").
(C) Referral of all sexual and serious physical abuse and
neglect cases to the counseling center not later than 24 hours
after notification of an incident of abuse.
(D) Joint initial investigative interviews of child victims by
personnel from law enforcement, health, and social service
agencies.
(E) A requirement that, to the extent practicable, the same
agency representative who conducts an initial interview conduct all subsequent interviews.
(F) A requirement that, to the extent practicable, all interviews and meetings with a child victim occur at the counseling
center.
(G) Coordination of each step of the investigation process to
minimize the number of interviews that a child victim must
attend,
(H) Designation of a director for the multidisciplinary program.
(I) Assignment of a volunteer or staff advocate to each child in
order to Eissist the child and, when appropriate, the child's
family, throughout each step of judicial proceedings.
(J) Such other criteria as the Director shall establish by
regulation.
(c) DISTRIBUTION OF GRANTS.—In awarding grants under this section, the Director shall ensure that grants are distributed to both
large and small States and to rural, suburban, and urban jurisdictions.
SEC. 213. GRANTS FOR SPECIALIZED TECHNICAL ASSISTANCE AND
TRAINING PROGRAMS.
(a) IN GENERAL.—The Director shall make grants to national
organizations to provide techniceil assistance and training to attorneys and others instrumental to the criminal prosecution of child
abuse cases in State or Federal courts, for the purpose of improving
the quality of criminal prosecution of such cases.
(b) GRANTEE ORGANIZATIONS.—An organization to which a grant is
made pursuant to subsection (a) shall l ^ one that has, or is affiliated
42 USC 13003.
104 STAT. 4794
PUBLIC LAW 101-647—NOV. 29, 1990
with one that has, broad membership among attorneys who prosecute criminal cases in State courts and has demonstrated experience in providing training and technical assistance for prosecutors,
(c) GRANT CRITERIA.—
(1) The Director shall establish the criteria to be used for
evaluating applications for grants under this section, consistent
with sections 262, 293, and 296 of subpart II of title II of the
Juvenile Justice and Delinquency Act of 1974 (42 U.S.C. 5665 et
seq.).
(2) The grant criteria established pursuant to paragraph (1)
shall require that a program provide training and technical
assistance that includes information regarding improved child
interview techniques, thorough investigative methods, interagency coordination and effective presentation of evidence in
court, including the use of alternative courtroom procedures
described in this title.
42 u s e 13004.
SEC. 214. AUTHORIZATIONS OF APPROPRIATIONS.
(a) IN GENERAL.—There are authorized to be appropriated to carry
out this chapter—
(1) $20,000,000 in fiscal year 1991; and
(2) such sums as may be necessary to carry out this chapter in
each of fiscal years 1992 and 1993.
(b) USE OF FUNDS.—Of the amounts appropriated under subsection
(a), not less than 90 percent shall be used for grants under section
212.
Grant programs.
42 u s e 13011.
Subtitle B—Court-Appointed Special Advocate
Program
SEC. 215. FINDINGS.
The Congress finds that—
(1) the National Court-Appointed Special Advocate provides
training and technical assistance to a network of 13,000 volunteers in 377 programs operating in 47 States; and
(2) in 1988, these volunteers represented 40,000 children,
representing approximately 15 percent of the estimated 270,000
cases of child abuse and neglect in juvenile and family courts.
42 u s e 13012.
SEC. 216. PURPOSE.
The purpose of this chapter is to ensure that by January 1, 1995, a
court-appointed special advocate shall be available to every victim of
child abuse or neglect in the United States that needs such an
advocate.
42 u s e 13013.
SEC. 217. STRENGTHENING OF THE COURT-APPOINTED SPECIAL ADVOCATE PROGRAM.
(a) IN GENERAL.—The Administrator of the Office of Juvenile
Justice and Delinquency Prevention shall make grants to expand
the court-appointed special advocate program.
(b) GRANTEE ORGANIZATIONS.—
(1) An organization to which a grant is made pursuant to
subsection (a) shall be a national organization that has broad
membership among court-appointed special advocates and has
demonstrated experience in grant administration of court-appointed special advocate programs and in providing training
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4795
and technical assistance to court-appointed special advocate
program; or (2) may be a local public or not-for-profit agency
that has demonstrated the willingness to initiate or expand a
court-appointed special advocate program.
(2) An organization described in pargigraph (IXa) that receives
a grant may be authorized to make subgrants and enter into
contracts with public and not-for-profit agencies to initiate and
to expand the court-appointed special advocate program. Should
a grant be made to a national organization for this purpose, the
Administrator shall specify an amount not exceeding 5 percent
that can be used for administrative purposes by the national
organization.
(c) GRANT CRITERIA.—(1) The Administrator shall establish criteria to be used in evaluating applications for grants under this
section, consistent with sections 262, 293, and 296 of subpart II of
title II of the Juvenile Justice and Delinquency Prevention Act of
1974 (42 U.S.C. 5665 et seq.).
(2) In general, the grant criteria established pursuant to paragraph (1) shall require that a court-appointed special advocate program provide screening, training, and supervision of court-appointed
special advocates in accordance with standards developed by the
National Court-Appointed Special Advocate Association. Such criteria may include the requirements that—
(A) a court-appointed special advocate association program
have a mission and purpose in keeping with the mission and
purpose of the National Court-Appointed Special Advocate
Association and that it abide by the National Court-Appointed
Special Advocate Association Code of Ethics;
(B) a court-appointed special advocate association program
operate with access to legal counsel;
(C) the management and operation of a court-appointed special advocate program assure adequate supervision of courtappointed special advocate volunteers;
(D) a court-appointed special advocate program keep written
records on the operation of the program in general and on each
applicant, volunteer, and case;
(E) a court-appointed special advocate program have written
management and personnel policies and procedures, screening
requirements, and training curriculum;
(F) a court-appointed special advocate program not accept
volunteers who have been convicted of, have charges pending
for, or have in the past been charged with, a felony or misdemeanor involving a sex offense, violent act, child abuse or
neglect, or related acts that would pose risks to children or to
the court-appointed special advocate program's credibility;
(G) a court-appointed special advocate program have an established procedure to allow the immediate reporting to a court or
appropriate agency of a situation in which a court-appointed
special advocate volunteer has reason to believe that a child is
in imminent danger;
(H) a court-appointed special advocate volunteer be an
individual who has been screened and trained by a recognized
court-appointed special advocate program and appointed by the
court to advocate for children who come into the court system
primarily as a result of abuse or neglect; and
(I) a court-appointed special advocate volunteer serve the
function.of reviewing records, facilitating prompt, thorough
(.[
^
^
"
:
104 STAT. 4796
PUBLIC LAW 101-647—NOV. 29, 1990
' review of cases, and interviewing appropriate parties in order to
make recommendations on what would be in the best interests
of the child.
(3) In awarding grants under this section, the Administrator shall
ensure that grants are distributed to localities that have no existing
court-appointed special advocate program and to programs in need
of expansion.
42 u s e 13014.
SEC. 218. AUTHORIZATION OF APPROPRIATIONS.
(a) AUTHORIZATION.—There are authorized to be appropriated to
carry out this chapter—
(1) $5,000,000 in fiscal year 1991; and
(2) such sums as may be necessary to carry out this subtitle in
each of fiscal years 1992,1993, and 1994.
(b) LIMITATION.—No funds are authorized to be appropriated for a
fiscal year to carry out this subtitle unless the aggregate amount
appropriated to carry out title II of the Juvenile Justice and Delinquency Prevention Act of 1974 (42 U.S.Q. 5611 et seq.) for such fiscal
year is not less than the aggregate amount appropriated to carry out
such title for the preceding fiscal year.
Grant programs.
42 u s e 13021.
Subtitle C—Child Abuse Training Programs
for Judicial Personnel and Practitioners
SEC. 221. FINDINGS AND PURPOSE.
(a) FINDINGS.—The Congress finds that—
(1) a large number of juvenile and family courts are inundated with increasing numbers of cases due to increased reports
of abuse and neglect, increasing drug-related maltreatment, and
insufficient court resources;
(2) the amendments made to the Social Security Act by the
Adoption Assistance and Child Welfare Act of 1980 make
substantial demands on the courts handling abuse and neglect
cases, but provide no assistance to the courts to meet those
demands;
(3) the Adoption and Child Welfare Act of 1980 requires courts
to—
(A) determine whether the agency made reasonable efforts to prevent foster care placement;
(B) approve voluntary nonjudicial placement; and
(C) provide procedural safeguards for parents when their
parent-child relationship is affected;
(4) social welfare agencies press the courts to meet such
requirements, yet scarce resources often dictate that courts
comply pro forma without undertaking the meaningful judicial
inquiry contemplated by Congress in the Adoption and Child
Welfare Act of 1980;
(5) compliance with the Adoption and Child Welfare Act of
1980 and overall improvements in the judicial response to abuse
and neglect cases can best come about through action by top
level court administrators and judges with administrative functions who understand the unique aspects of decisions required
in child abuse and neglect cases; and
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4797
(6) the Adoption and Child Welfare Act of 1980 provides
financial incentives to train welfare agency staff to meet the
requirements, but provides no resources to train judges,
(b) PURPOSE.—The purpose of this chapter is to provide expanded
technical assistance and training to judicial personnel and attorneys, particularly personnel and practitioners in juvenile and family
courts, to improve the judicial system's handling of child abuse and
neglect cases with specific emphasis on the role of the courts in
addressing reasonable efforts that can safely avoid unnecessary and
unnecessarily prolonged foster care placement.
SEC. 222. GRANTS FOR JUVENILE AND FAMILY COURT PERSONNEL.
y
v
42 USC 13022.
In order to improve the judicial system's handling of child abuse
and neglect cases, the Administrator of the Office of Juvenile Justice and Delinquency Prevention shall make grants for the purpose
of providing—
(1) technical assistance and training to judicial personnel and
attorneys, particularly personnel and practitioners in juvenile
and family courts; and
(2) administrative reform in juvenile and family courts.
SEC. 223. SPECIALIZED TECHNICAL ASSISTANCE AND TRAINING PROGRAMS.
(a) GRANTS TO DEVELOP MODEL PROGRAMS.—(1) The Administrator
shall make grants to national organizations to develop 1 or more
model technical assistance and training programs to improve the
judicial system's handling of child abuse and neglect cases.
(2) An organization to which a grant is made pursuant to paragraph (1) shall be one that has broad membership among juvenile
and family court judges and has demonstrated experience in providing training and technical assistance for judges, attorneys, child
welfare personnel, and lay child advocates.
(b) GRANTS TO JUVENILE AND FAMILY COURTS.—(1) In order to
improve the judicial system's handling of child abuse and neglect
cases, the Administrator shall make grants to State courts or judicial administrators for programs that provide or contract for, the
implementation of—
(A) training and technical assistance to judicial personnel and
attorneys in juvenile and family courts; and
(B) administrative reform in juvenile and family courts.
(2) The criteria established for the making of grants pursuant to
paragraph (1) shall give priority to programs that improve—
(A) procedures for determining whether child service sigencies
have made reasonable efforts to prevent placement of children
in foster care;
(B) procedures for determining whether child service agencies
have, after placement of children in foster care, made reasonable efforts to reunite the family; and
(C) procedures for coordinating information and services
among health professionals, social workers, law enforcement
professionals, prosecutors, defense attorneys, and juvenile and
family court personnel, consistent with subtitle A.
(c) GRANT CRITERIA.—The Administrator shall make grants under
subsections (a) and (h) consistent with section 262, 293, and 296 of
title II of the Juvenile Justice and Delinquency Prevention Act of
1974 (42 U.S.C. 5665 et seq.).
42 USC 13023.
104 STAT. 4798
42 u s e 13024.
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 224. AUTHORIZATION OF APPROPRIATIONS.
(a) IN GENERAL.—There are authorized to be appropriated to carry
out this chapter—
(1) $10,000,000 in fiscal year 1991; and
(2) such sums as may be necessary to carry out this chapter in
each of fiscal years 1992,1993, and 1994.
(b) USE OF FUNDS.—Of the amounts appropriated in subsection (a),
not less than 80 percent shall be used for grants under section
223(b).
(c) LIMITATION.—No funds are authorized to be appropriated for a
fiscal year to carry out this subtitle unless the aggregsite amount
appropriated to carry out title II of the Juvenile Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5611 et seq.) for such fiscal
year is not less than the aggregate amount appropriated to carry out
such title for the preceding fiscal year.
,
•
Subtitle D—Federal Victims' Protections and
Rights
SEC. 225. CHILD VICTIMS'RIGHTS.
«^
^
(a) I N GENERAL.—Chapter 223 of title 18, United States Code, is
amended by adding at the end the following new rule:
"
)
/
'
"§ 3509. Child victims* and child witnesses' rights
"(a) DEFINITIONS.—For purposes of this section—
"(1) the term 'adult attendant' means an adult described in
subsection (i) who accompanies a child throughout the judicial
process for the purpose of providing emotional support;
"(2) the term 'child' means a person who is under the age of
18, who is or is alleged to be—
"(A) a victim of a crime of physical abuse, sexual abuse,
or exploitation; or
"(B) a witness to a crime committed against another
?»«>«
person;
"(3) the term 'child abuse' means the physical or mental
injury, sexual abuse or exploitation, or negligent treatment of a
child;
"(4) the term 'physical injury' includes lacerations, fractured
bones, burns, internal injuries, severe bruising or serious bodily
harm;
"(5) the term 'mental injury' means harm to a child's psychological or intellectual functioning which may be exhibited by
severe anxiety, depression, withdrawal or outward aggressive
behavior, or a combination of those behaviors, which may be
demonstrated by a change in behavior, emotional response, or
cognition;
(6) the term 'exploitation' means child pornography or child
prostitution;
"(7) the term 'multidisciplinary child abuse team' means a
professional unit composed of representatives from health,
social service, law enforcement, and legal service agencies to
coordinate the assistance needed to handle cases of child abuse;
"(8) the term 'sexual abuse' includes the employment, use,
persuasion, inducement, enticement, or coercion of a child to
engage in, or assist another person to engage in, sexually
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4799
explicit conduct or the rape, molestation, prostitution, or other
form of sexual exploitation of children, or incest with children;
"(9) the term 'sexually explicit conduct' means actual or
simulated—
"(A) sexuEil intercourse, including sexual contact in the
manner of genital-genital, oral-genital, anal-genital, or oralanal contact, whether between persons of the same or of
opposite sex; sexual contact means the intentional touching, either directly or through clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify sexusil desire of any person;
"(B) bestiality;
"(C) masturbation;
"(D) lascivious exhibition of the genitals or pubic area of
a person or animal; or
"(E) sadistic or masochistic abuse;
"(10) the term 'sex crime' means an act of sexual abuse that is
a criminal act;
"(11) the term 'exploitation' means child pornography or child
prostitution;
"(12) the term 'negligent treatment' means the failure to
provide, for reasons other than poverty, adequate food, clothing,
shelter, or medical care so as to seriously endanger the physical
health of the child; and
"(13) the term 'child abuse' does not include discipline
administered by a parent or legal guardian to his or her child
provided it is reasonable in manner and moderate in degree and
otherwise does not constitute cruelty.
'(b) ALTERNATIVES TO LIVE IN-COURT TESTIMONY.—
"(1) CHILD'S LIVE TESTIMONY BY 2-WAY CLOSED CIRCUIT TELEVISION.—
"(A) In a proceeding involving an alleged offense against
a child, the attorney for the government, the child's attorney, or a guardian ad litem appointed under subdivision (h)
may apply for an order that the child's testimony be taken
in a room outside the courtroom and be televised by 2-way
closed circuit television. The person seeking such an order
shall apply for such an order at least 5 days before the trial
date, unless the court finds on the record that the need for
such an order was not reasonably foreseeable.
"(B) The court may order that the testimony of the child
be taken by closed-circuit television as provided in subparagraph (A) if the court finds that the child is unable to testify
in open court in the presence of the defendant, for any of
the following reasons:
"(i) The child is unable to testify because of fear,
"(ii) There is a substantial likelihood, established by
expert testimony, that the child would suffer emotional
trauma from testifying.
"(iii) The child suffers a mental or other infirmity.
"(iv) Conduct by defendant or defense counsel causes
the child to be unable to continue testifying.
"(C) The court shall support a ruling on the child's inability to testify with findings on the record. In determining
whether the impact on an individual child of one or more of
the factors described in subparagraph (B) is so substantial
104 STAT. 4800
PUBLIC LAW 101-647—NOV. 29, 1990
as to justify an order under subparagraph (A), the court
may question the minor in chambers, or at some other
comfortable place other than the courtroom, on the record
for a reasonable period of time with the child attendant, the
prosecutor, the child's attorney, the guardian ad litem, and
the defense counsel present.
"(D) If the court orders the taking of testimony by television, the attorney for the government and the attorney
for the defendant not including an attorney pro se for a
party shall be present in a room outside the courtroom with
the child and the child shall be subjected to direct and
cross-examination. The only other persons who may be
permitted in the room with the child during the child's
testimony are—
"(i) the child's attorney or guardian ad litem
appointed under subdivision (h);
"(ii) persons necessary to operate the closed-circuit
television equipment;
"(iii) a judicial officer, appointed by the court; and
"(iv) other persons whose presence is determined by
the court to be necessary to the welfare and well-being
of the child, including an adult attendant.
The child's testimony shall be transmitted by closed circuit
television into the courtroom for viewing and hearing by the
defendant, jury, judge, and public. The defendant shall be provided with the means of private, contemporaneous communication with the defendant's attorney during the testimony. The
closed circuit television transmission shall relay into the room
in which the child is testifying the defendant's image, and the
voice of the judge.
"(2) VIDEOTAPED DEPOSITION OF CHILD.—(A) In a proceeding
involving an alleged offense against a child, the attorney for the
government, the child's attorney, the child's parent or legal
guardian, or the guardian ad litem appointed under subdivision
(h) may apply for an order that a deposition be taken of the
child's testimony and that the deposition be recorded and preserved on videotape.
"(B)(i) Upon timely receipt of an application described in
subparagraph (A), the court shall make a preliminary finding
regarding whether at the time of trial the child is likely to be
unable to testify in open court in the physical presence of the
defendant, jury, judge, and public for any of the following
reasons:
"(I) The child will be unable to testify because of fear.
"(II) There is a substantial likelihood, established by
expert testimony, that the child would suffer emotional
trauma from testifying in open court.
"(ni) The child suffers a mental or other infirmity.
"(IV) Conduct by defendant or defense counsel causes the
child to be unable to continue testifying,
"(ii) If the court finds that the child is likely to be unable to
testify in open court for any of the reasons stated in clause (i),
the court shall order that the child's deposition be taken and
preserved by videotape.
"(iii) The trial judge shall preside at the videotape deposition
of a child and shall rule on all questions as if at trial. The only
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4801
other persons who may be permitted to be present at the
proceeding are—
"(I) the attorney for the Government;
"(II) the attorney for the defendant;
"(III) the child's attorney or guardian ad Utem appointed
under subdivision (h);
"(IV) persons necessary to operate the videotape equipment;
"(V) subject to clause (iv), the defendant; and
"(VI) other persons whose presence is determined by the
court to be necessary to the welfare and well-being of the
child.
The defendant shall be afforded the rights applicable to defendants during trial, including the right to an attorney, the right to
be confronted with the witness against the defendant, and the
right to cross-examine the child.
"(iv) If the preliminary finding of inability under clause (i) is
based on evidence that the child is unable to testify in the
physical presence of the defendant, the court may order that the
defendant, including a defendant represented pro se, be excluded from the room in which the deposition is conducted. If
the court orders that the defendant be excluded from the deposition room, the court shall order that 2-way closed circuit television equipment relay the defendant's image into the room in
which the child is testifying, and the child's testimony into the
room in which the defendant is viewing the proceeding, and
that the defendant be provided with a means of private, contemporaneous communication with the defendant's attorney during
the deposition.
"(v) HANDLING OF VIDEOTAPE.—The complete record of the Records,
examination of the child, including the image and voices of all
persons who in any way participate in the examination, shall be
made and preserved on video tape in addition to being stenographically recorded. The videotape shall be transmitted to the
clerk of the court in which the action is pending and shall be
made available for viewing to the prosecuting attorney, the
defendant, and the defendant's attorney during ordinary business hours.
"(C) If at the time of trial the court finds that the child is
unable to testify as for a reason described in subparagraph
(B)(i), the court may admit into evidence the child's videotaped
deposition in lieu of the child's testifying at the trial. The court
shall support a ruling under this subparagraph with findings on
the record.
"(D) Upon timely receipt of notice that new evidence has been
discovered after the original videotaping and before or during
trial, the court, for good cause shown, may order an additional
videotaped deposition. The testimony of the child shall be restricted to the matters specified by the court as the basis for
granting the order.
"(E) In connection with the taking of a videotaped deposition
under this paragraph, the court may enter a protective order for
the purpose of protecting the privacy of the child.
"(F) The videotape of a deposition taken under this paragraph
shall be destroyed 5 years after the date on which the trial court
entered its judgment, but not before a final judgment is entered
on appeal including Supreme Court review. The videotape shall Records.
104 STAT. 4802
PUBLIC LAW 101-647—NOV. 29, 1990
become part of the court record and be kept by the court until it
is destroyed.
"(c) COMPETENCY EXAMINATIONS.—
"(1) EFFECT OF FEDERAL RULES OF EVIDENCE.—Nothing in this
subdivision shall be construed to abrogate rule 601 of the Federal Rules of Evidence.
"(2) PRESUMPTION.—A child is presumed to be competent.
"(3) REQUIREMENT OF WRITTEN MOTION.—A competency examination regarding a child witness may be conducted by the court
only upon written motion and offer of proof of incompetency by
a party.
"(4) REQUIREMENT OF COMPELLING REASONS.—A competency
examination regarding a child may be conducted only if the
court determines, on the record, that compelling reasons exist.
A child's age alone is not a compelling reason.
"(5) PERSONS PERMITTED TO BE PRESENT.—The only persons
who may be permitted to be present at a competency examination are—
"(A) the judge;
"(B) the attorney for the government;
"(C) the attorney for the defendant;
"(D) a court reporter; and
"(E) persons whose presence, in the opinion of the court,
is necessary to the welfare and well-being of the child,
including the child's attorney, guardian ad litem, or adult
attendant.
"(6) NOT BEFORE JURY.—A competency examination regarding
a child witness shall be conducted out of the sight and hearing
of a jury.
"(7) DIRECT EXAMINATION OF CHILD,—Examination of a child
related to competency shall normally be conducted by the court
on the basis of questions submitted by the attorney for the
Government and the attorney for the defendant including a
party acting as an attorney pro se. The court may permit an
attorney but not a party acting as an attorney pro se to examine
a child directly on competency if the court is satisfied that the
child will not suffer emotional trauma as a result of the examination.
"(8) APPROPRIATE QUESTIONS.—The questions asked at the
competency examination of a child shall be appropriate to the
age and developmental level of the child, shall not be related to
the issues at trial, and shall focus on determining the child's
ability to understand and answer simple questions.
"(9) PSYCHOLOGICAL AND PSYCHIATRIC EXAMINATIONS.—Psycho-
logical and psychiatric examinations to assess the competency
of a child witness shall not be ordered without a showing of
compelling need.
"(d) PRIVACY PROTECTION.—
"(1) CoNFiDENTiAUTY OF INFORMATION.—(A) A person acting
in a capacity described in subparagraph (B) in connection with a
criminal proceeding shall—
"(i) keep all documents that disclose the name or any
other information concerning a child in a secure place to
which no person who does not have reason to know their
contents has access; and
"(ii) disclose documents described in clause (i) or the
information in them that concerns a child only to persons
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4803
who, by reason of their participation in the proceeding,
have reason to know such information.
"(B) Subparagraph (A) applies to—
"(i) all employees of the Government connected with the
case, including employees of the Department of Justice, any
law enforcement agency involved in the case, and any
person hired by the government to provide assistance in the
proceeding;
"(ii) employees of the court;
"(iii) the defendant and employees of the defendant,
including the attorney for the defendant and persons hired
by the defendant or the attorney for the defendant to
provide assistance in the proceeding; and
"(iv) members of the jury.
"(2) FiUNG UNDER SEAL.—All papers to be filed in court that
disclose the name of or any other information concerning a
child shall be filed under seal without necessity of obtaining a
court order. The person who makes the filing shall submit to
the clerk of the court—
"(A) the complete paper to be kept under seal; and
"(B) the paper with the portions of it that disclose the Public
name of or other information concerning a child redacted, information,
to be placed in the public record.
^
^
"(3) PROTECTIVE ORDERS.—(A) On motion by any person the
court may issue an order protecting a child from public disclosure of the ngmie of or any other information concerning the
child in the course of the proceedings, if the court determines
that there is a significant possibility that such disclosure would
be detrimental to the child.
"(B) A protective order issued under subparagraph (A) may—
"(i) provide that the testimony of a child witness, and the
testimony of any other witness, when the attorney who
^calls the witness has reason to anticipate that the name of
or any other information concerning a child may be divulged in the testimony, be taken in a closed courtroom;
and
"(ii) provide for any other measures that may be necessary to protect the privacy of the child.
"(4) DISCLOSURE OF INFORMATION.—This subdivision does not
prohibit disclosure of the name of or other information concerning a child to the defendant, the attorney for the defendant, a
multidisciplinary child abuse team, a guardian ad litem, or an
adult attendant, or to anyone to whom, in the opinion of the
court, disclosure is necessary to the welfare and well-being of
the child.
"(e) CLOSING THE COURTROOM.—When a child testifies the court
may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the
case. Such an order may be made if the court determines on the
record that requiring the child to testify in open court would cause
substantial psychological harm to the child or would result in the ,
child's inability to effectively communicate. Such an order shall be
narrowly tailored to serve the government's specific compelling
interest.
"(f) VICTIM IMPACT STATEMENT.—In preparing the presentence
report pursuant to rule 32(c) of the Federal Rules of Criminal
Procedure, the probation officer shall request information from the
/
(
104 STAT. 4804
PUBLIC LAW 101-647—NOV. 29, 1990
multidisciplinary child abuse team and other appropriate sources to
determine the impact of the offense on the child victim and any
other children who may have been affected. A guardian ad litem
appointed under subdivision (h) shall make every effort to obtain
and report information that accurately expresses the child's and the
family s views concerning the child's victimization. A guardian ad
litem shall use forms that permit the child to express the child's
views concerning the personal consequences of the child's victimization, at a level and in a form of communication commensurate with
the child's age and ability.
'
"(g) USE OF MULTIDISCIPLINARY CHILD ABUSE TEAMS.—
InteiTgovemmental
relations.
"(1) IN GENERAL.—A multidisciplinary child abuse team shall
be used when it is feasible to do so. The court shall work with
State and local governments that have established multidisciplinary child abuse teams designed to assist child victims and
child witnesses, and the court and the attorney for the government shall consult with the multidisciplinary child abuse team
as appropriate.
"(2) ROLE OF MULTIDISCIPLINARY CHILD ABUSE TEAMS.—The role
of the multidisciplinary child abuse team shall be to provide for
a child services that the members of the team in their professional roles are capable of providing, including—
"(A) medical diagnoses and evaluation services, including
provision or interpretation of x-rays, laboratory tests, and
related services, as needed, and documentation of findings;
"(B) telephone consultation services in emergencies and
in other situations;
"(C) medical evaluations related to abuse or neglect;
"(D) psychological and psychiatric diagnoses and evaluation services for the child, parent or parents, guardian or
guardians, or other caregivers, or any other individual
involved in a child victim or child witness case;
"(E) expert medical, psychological, and related professional testimony;
"(F) case service coordination and assistance, including
the location of services available from public and private
agencies in the community; and
"(G) training services for judges, litigators, court officers
and others that are involved in child victim and child
witness cases, in handling child victims and child witnesses.
"(h) GUARDIAN AD LITEM.—
^
^
"(1) IN GENERAL.—The court may appoint a guardian ad litem
for a child who was a victim of, or a witness to, a crime
involving abuse or exploitation to protect the best interests of
the child. In making the appointment, the court shall consider a
prospective guardian's background in, and familiarity with, the
judicial process, social service programs, and child abuse issues.
The guardian ad litem shall not be a person who is or may be a
witness in a proceeding involving the child for whom the guardian is appointed.
"(2) DUTIES OF GUARDIAN AD LITEM.—A guardian ad litem may
attend all the depositions, hearings, and trial proceedings in
which a child participates, and make recommendations to the
court concerning the welfare of the child. The guardian ad litem
may have access to all reports, evaluations and records, except
attorney's work product, necessary to effectively advocate for
the child. (The extent of access to grand jury materials is
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4805
limited to the access routinely provided to victims and their
representatives.) A guardian ad litem shall marshal and coordinate the delivery of resources and special services to the child.
A guardian ad litem shall not be compelled to testify in any
court action or proceeding concerning any information or opinion received from the child in the course of serving as a guardian ad litem.
"(3) IMMUNITIES.—A guardian ad litem shall be presumed to
be acting in good faith and shall be immune from civil £md
criminal liability for complying with the guardian's lawful
duties described in subpart (2),
"(i) ADULT ATTENDANT.—A child testifying at or attending a ju-
dicial proceeding shall have the right to be accompanied by an adult
attendant to provide emotional support to the child. The court, at its
discretion, may allow the adult attendant to remain in close physical proximity to or in contact with the child while the child
testifies. The court may allow the adult attendant to hold the child's
hand or allow the child to sit on the adult attendant's lap throughout the course of the proceeding. An adult attendant shall not
provide the child with an gmswer to any question directed to the
child during the course of the child's testimony or otherwise prompt
the child. The image of the child attendant, for the time the child is
testifying or being deposed, shall be recorded on videotape.
"(j) SPEEDY TRIAL.—In a proceeding in which a child is called to
give testimony, on motion by the attorney for the Government or a
guardian ad litem, or on its own motion, the court may designate the
case as being of special public importance. In cases so designated,
the court shall, consistent with these rules, expedite the proceeding
and ensure that it takes precedence over any other. The court shall
ensure a speedy trial in order to minimize the length of time the
child must endure the stress of involvement with the criminal
process. When deciding whether to grant a continuance, the court
shall take into consideration the age of the child and the potential
adverse impact the delay may have on the child's well-being. The
court shall make written findings of fact and conclusions of law
when granting a continuance in cases involving a child.
"(k) EXTENSION OF CHILD STATUTE OF LIMITATIONS.—No statute of
limitation that would otherwise preclude prosecution for an offense
involving the sexual or physical abuse of a child under the age of 18
years shall preclude such prosecution before the child reaches the
age of 25 years. If, at any time that a cause of action for recovery of
compensation for damage or injury to the person of a child exists, a
criminal action is pending which arises out of the same occurrence
and in which the child is the victim, the civil action shall be stayed
until the end of all phases of the criminal action and any mention of
the civil action during the criminal proceeding is prohibited. As used
in this subsection, a criminal action is pending until its final adjudication in the trial court.
"(1) TESTIMONIAL AIDS.—The court may permit a child to use
anatomical dolls, puppets, drawings, mannequins, or any other
demonstrative device the court deems appropriate for the purpose of
assisting a child in testifying.",
(b) VIOLATION OF RULE REGARDING DISCLOSURE.—
(1) PUNISHMENT AS CONTEMPT.—Chapter 21 of
title 18, United
States Code, is amended by adding at the end thereof the
following new section:
104 STAT. 4806
PUBLIC LAW 101-647—NOV. 29, 1990
"§ 403. Protection of the privacy of child victims and child witnesses
"A knowing or intentional violation of the privacy protection
accorded by section 3509 of this title is a criminal contempt punishable by not more than one year's imprisonment, or a fine under this
title, or both.".
(2) TECHNICAL AMENDMENT.—The table of sections at the
J
beginning of chapter 21 of title 18, United States Code, is
amended by adding at the end thereof the following new item:
"403. Protection of the privacy of child victims and child witnesses.".
42 u s e 13031.
SEC. 226. CHILD ABUSE REPORTING.
(a) IN GENERAL.—A person who, while engaged in a professional
capacity or activity described in subsection Ot>) on Federal land or in
a federally operated (or contracted) facility, learns of facts that give
reason to suspect that a child has suffered an incident of child
abuse, shall as soon as possible make a report of the suspected abuse
to the agency designated under subsection (d).
,
(b) COVERED PROFESSIONALS.—Persons engaged in the following
professions and activities are subject to the requirements of subsec, tion (a):
(1) Physicians, dentists, medical residents or interns, hospital
personnel and administrators, nurses, health care practitioners,
chiropractors, osteopaths, pharmacists, optometrists, podiatrists, emergency medical technicians, ambulance drivers,
undertakers, coroners, medical examiners, alcohol or drug treatment personnel, and persons performing a healing role or
?
practicing the healing arts.
(2) Psychologists, psychiatrists, and mental health professionals.
j
(3) Social workers, licensed or unlicensed marriage, family,
and individual counselors.
(4) Teachers, teacher's aides or assistants, school counselors
and guidance personnel, school officials, and school administrators.
(5) Child care workers and administrators.
(6) Law enforcement personnel, probation officers, criminal
prosecutors, and juvenile rehabilitation or detention facility
employees.
(7) Foster parents.
(8) Commercial film and photo processors.
(c) DEFINITIONS.—For the purposes of this section—
(1) the term "child abuse" means the physical or mental
injury, sexual abuse or exploitation, or negligent treatment of a
child;
(2) the term "physical injury" includes but is not limited to
'
lacerations, fractured bones, burns, internal injuries, severe
bruising or serious bodily harm;
'
(3) the term "mental injury" means harm to a child's psychological or intellectual functioning which may be exhibited by
severe anxiety, depression, withdrawal or outward aggressive
behavior, or a combination of those behaviors, which may be
demonstrated by a change in behavior, emotional response or
r
cognition;
(4) the term "sexual abuse" includes the employment, use,
persuasion, inducement, enticement, or coercion of a child to
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4807
engage in, or assist another person to engage in, sexually
explicit conduct or the rape, molestation, prostitution, or other
form of sexual exploitation of children, or incest with children;
(5) the term sexually explicit conduct" means actual or
simulated—
(A) sexual intercourse, including sexual contact in the
manner of genital-genital, oral-genital, anal-genital, or oralanal contact, whether between persons of the same or of
opposite sex; sexual contact means the intentional touching, either directly or through clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify sexual desire of any person;
(B) bestiality;
(C) masturbation;
(D) lascivious exhibition of the genitals or pubic area of a
person or animal; or
(E) sadistic or masochistic abuse;
(6) the term "exploitation" means child pornography or child
prostitution;
(7) the term "negligent treatment" means the failure to provide, for reasons other than poverty, adequate food, clothing,
shelter, or medical care so as to seriously endanger the physical
health of the child; and
(8) the term "child abuse" shall not include discipline
administered by a parent or legal guardian to his or her child
provided it is reasonable in manner and moderate in degree and
otherwise does not constitute cruelty.
(d) AGENCY DESIGNATED TO RECEIVE REPORT AND ACTION TO B E Federal
buildings and
facilities.
TAKEN.—For all Federal lands and all federally operated (or contracted) facilities in which children are cared for or reside, the
Attorney General shall designate an agency to receive and investigate the reports described in subsection (a). By formal written
agreement, the designated agency may be a non-Federsd agency.
When such reports are received by social services or health care
agencies, and involve allegations of sexual abuse, serious physical
injury, or life-threatening neglect of a child, there shall be an
immediate referral of the report to a law enforcement agency with
authority to take emergency action to protect the child. AH reports
received shall be promptly investigated, and whenever appropriate,
investigations shall be conducted jointly by social services and law
enforcement personnel, with a view toward avoiding unnecessary
multiple interviews with the child.
(e) REPORTING FORM.—In every federally operated (or contracted)
facility, and on all Federal lands, a standard written reporting form,
with instructions, shall be disseminated to all mandated reporter
groups. Use of the form shall be encouraged, but its use shall not
take the place of the immediate making of oral reports, telephonically or otherwise, when circumstances dictate.
(f) IMMUNITY FOR GOOD FAITH REPORTING AND ASSOCIATED AC-
TIONS.—All persons who, acting in good faith, make a report by
subsection (a), or otherwise provide information or assistance in
connection with a report, investigation, or legal intervention pursuant to a report, shall be immune from civil and criminal liability
arising out of such actions. There shall be a presumption that any
such persons acted in good faith. If a person is sued because of the
person's performance of one of the above functions, and the defend-
-194 O - 91 - 14 : QL 3 Part 6
Federal
buildings and
facilities.
104 STAT. 4808
PUBLIC LAW 101-647—NOV. 29, 1990
ant prevails in the litigation, the court may order that the plaintiff
pay the defendant's legal expenses. Immunity shall not be accorded
to persons acting in bad faith.
(g) CRIMINAL PENALTY FOR FAILURE TO REPORT.—(1) Chapter 110 of
title 18, United States Code, is amended by adding at the end thereof
the following new section:
*'§ 2258. Failure to report child abuse
"A person who, while engaged in a professional capacity or activity described in subsection (b) of section 226 of the Victims of Child
Abuse Act of 1990 on Federal land or in a federally operated (or
contracted) facility, learns of facts that give reason to suspect that a
child has suffered an incident of child abuse, as defined in subsection (c) of that section, and fails to make a timely report as required
by subsection (a) of that section, shall be guilty of a Class B
misdemeanor.".
(2) The chapter analysis for chapter 110, United States Code, is
amended—
(A) by amending the catchline to read as follows:
"CHAPTER 110—SEXUAL EXPLOITATION AND OTHER
ABUSE OF CHILDREN";
,
and
(B) by adding at the end thereof the following new item:
"2258. Failure to report child abuse.".
(3) The item relating to chapter 110 in the part analysis for part 1
of title 18, United States Code, is amended to read as follows:
J
-
"110. Sexual exploitation and other abuse of children
2251".
(h) TRAINING OF PROSPECTIVE REPORTERS.—All individuals in the
occupations listed in subsection (bXD who work on Federal lands, or
are employed in federally operated (or contracted) facilities, shall
receive periodic training in the obligation to report, as well as in the
identification of abused and neglected children.
Subtitle E—Child Care Worker Employee
Background Checks
• ' • • ' • '
42USC1304i.
,
• > • •
'•
v
.
;
' • ' •
,
SEC. 231. REQUIREMENT FOR BACKGROUND CHECKS.
•
'
^
'
'
-
^
(a) IN GENERAL.—(1) Each agency of the Federal Government, and
every facility operated by the Federal Government (or operated
under contract with the Federal Government), that hires (or contracts for hire) individuals involved with the provision to children
under the age of 18 of child care services shall assure that all
existing and newly-hired employees undergo a criminal history
background check. All existing staff shedl receive such checks not
later than 6 months after the date of enactment of this chapter, and
no additional staff shall be hired without a check having been
completed.
(2) For the purposes of this section, the term "child care services"
means child protective services (including the investigation of child
abuse and neglect reports), social services, health and mental health
care, child (day) care, education (whether or not directly involved in
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4809
teaching), foster care, residential care, recreational or rehabilitative
programs, and detention, correctional, or treatment services.
(b) CRIMINAL HISTORY CHECK.—(1) A background check required
by subsection (a) shall be—
(A) based on a set of the employee's fingerprints obtained by a
law enforcement officer and on other identifying information;
(B) conducted through the Identification Division of the Federal Bureau of Investigation and through the State criminal
history repositories of all States that an employee or prospective
employee lists as current and former residences in an employment application; and
(C) initiated through the personnel programs of the applicable
Federal agencies.
(2) The results of the background check shall be communicated to
the employing agency.
(c) APPLICABLE CRIMINAL HISTORIES.—Any conviction for a sex
crime, an offense involving a child victim, or a drug felony, may be
ground for denying employment or for dismissal of an employee in
any of the positions listed in subsection (a)(2). In the case of an
incident in which an individual has been charged with one of those
offenses, when the charge has not yet been disposed of, an employer
may suspend an employee from having any contact with children
while on the job until the case is resolved. Conviction of a crime
other than a sex crime may be considered if it bears on an individual's fitness to have responsibility for the safety and well-being of
children.
(d) EMPLOYMENT APPLICATIONS.—(1) Employment applications for
individuals who are seeking work for an agency of the Federal
Government, or for a facility or program operated by (or through
contract with) the Federal Government, in any of the positions listed
in subsection (a)(1), shall contain a question asking whether the
individual has ever been arrested for or charged with a crime
involving a child, and if so requiring a description of the disposition
of the arrest or charge. An application shall state that it is being
signed under penalty of perjury, with the applicable Federal punishment for perjury stated on the application.
(2) A Federal agency seeking a criminal history record check shall
first obtain the signature of the employee or prospective employee
indicating that the employee or prospective employee has been
notified of the employer's obligation to require a record check as a
condition of employment and the employee's right to obtain a copy
of the criminal history report made available to the employing
Federal agency and the right to challenge the accuracy and
completeness of any information contained in the report.
(e) ENCOURAGEMENT OF VOLUNTARY CRIMINAL HISTORY CHECKS
FOR OTHERS WHO MAY HAVE CONTACT WITH CHILDREN.—Federal
agencies and facilities are encouraged to submit identifying information for criminal history checks on volunteers working in any of the
positions listed in subsection (a) and on adult household members in
places where child care or foster care services are being provided in
a home.
104 STAT. 4810
PUBLIC LAW 101-647—NOV. 29, 1990
Subtitle F—Grants for Televised Testimony
Intergovernmental
relations.
SEC. 241. GRANTS FOR CLOSED-CIRCUIT TELEVISING OF TESTIMONY OF
CHILDREN WHO ARE VICTIMS OF ABUSE.
100 Stat.
3207-41.
(a) EsTABUSHMENT OF GRANT PROGRAM.—Title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is
amended—
(1) in part N—
OS .
(A) in the heading by striking "PART N " and inserting
"PART O", and
42 use 3797.
kfc-j
A
(B) by redesignating section 1401 as 1501, and
(2) by inserting after part M the following:
'
"PART N—GRANTS FOR CLOSED-CIRCUIT TELEVISING OF TESTIMONY
OF CHILDREN WHO ARE VICTIMS OF ABUSE
FUNCTION OF THE DIRECTOR
42 u s e 3796aa.
"SEC. 1401. The Director shall provide funds to eligible States and
units of local government pursuant to this part.
"DESCRIPTION OF GRANT PROGRAM
42 use
3796aa-l.
'
',
"SEC. 1402. The Director is authorized to make grants to States,
for the use of States and units of local government in the States to
provide equipment and personnel training for the closed-circuit
televising and video taping of the testimony of children in criminal
proceedings for the violation of laws relating to the abuse of
children.
" A P P U C A T I O N S TO RECEIVE GRANTS
42 use
3796aa-2.
"SEC. 1403. To request a grant under section 1402, the chief
executive officer of a State shall submit to the Director an application at such time and in such form as the Director may require.
Such application shall include—
"(1) a certification that Federal funds made available under
section 1402 of this title will not be used to supplant State or
^f local funds, but will be used to increase the amounts of such
I
funds that would, in the absence of such funds, be made available for criminal proceedings for the violation of laws relating
to the abuse of children;
"(2) a certification that funds required to pay the non-Federal
portion of the cost of equipment and personnel training for
which such grant is made shall be in addition to funds that
gj would otherwise be made available by the recipients of grant
funds for criminal proceedings for the violation of laws relating
to the abuse of children;
"(3) an assurance that the State application described in this
section, and any amendment to such application, has been
f
submitted for review to the State legislature or its designated
body (for purposes of this section, such application or amendment shall be deemed to be reviewed if the State legislature or
such body does not review such application or amendment
within the 60-day period beginning on the date such application
or amendment is so submitted); and
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4811
"(4) an assurance that the State appHcation and any amendment thereto was made public before submission to the Bureau
and, to the extent provided under State law or established
procedure, an opportunity to comment thereon was provided to
citizens and to neighborhood and community groups.
^
,
-5,
REVIEW OF APPUCATIONS
«? ,
"SEC. 1404. (a) The Bureau shall provide financial assistance to 42USC
each State applicant under section 1402 of this title to provide 3796aa-3.
equipment and personnel training for the closed-circuit televising
and video taping of the testimony of children in criminal proceedings for the violation of laws relating to the abuse of children, upon
determining that—
"(1) there is in effect in such State a law that permits the
closed-circuit televising and video taping of testimony of children in criminal proceedings for the violation of laws relating to
the abuse of children;
;
"(2) such State law shall meet the following criteria:
^
"(A) the judges determination that a child witness will be
traumatized by the presence of the defendant must be made
; on a case-by-case basis;
"(B) the trauma suffered must be more than de minimis;
"(C) the child witness must give his/her statements under
oath;
"(D) the child witness must submit to cross-examination;
and
"(E) the finder of fact must be permitted to observe the
demeanor of the child witness in making his or her statement and the defendant must be able to contemporaneously
communicate with his defense attorney;
"(3) the application submitted under section 1402 or amendment to such application is consistent with the requirements of
this title; and
"(4) before the approval of such application and any amendment thereto the Bureau has made an affirmative finding in
writing that such equipment and personnel training has been
reviewed in accordance with section 1403 of this title.
Each application or amendment made and submitted for approval to
the Bureau pursuant to section 1403 shall be deemed approved, in
whole or in part, by the Bureau not later than 60 days after first
received unless the Bureau informs the applicant of specific reasons
for disapproval.
"(b) The Bureau shall not finally disapprove any application, or
any amendment thereto, submitted to the Director under this section without first affording the applicant reasonable notice and
opportunity for reconsideration.
"ALLOCATION AND DISTRIBUTION OF FUNDS UNDER FORMULA GRANTS
"SEC. 1405. (a) The total amount appropriated for this part in any 42 USC
fiscal year shall be set aside for section 1402 and allocated to States 3796aa-4.
as follows:
"(1) $50,000 shall be allocated to each of the participating
States.
"(2) Of the total funds remaining after the allocation under
paragraph (1), there shall be allocated to each participating
104 STAT. 4812
PUBLIC LAW 101-647—NOV. 29, 1990
State an amount which bears the same ratio to the smaount of
remaining funds described in this paragraph as the population
of such State bears to the population of all the States.
"0)X1) Each State which receives funds under subsection (a) in a
fiscal year shall distribute among units of local government, in such
State for the purpose specified in section 1402 of this title that
portion of such funds which bears the same ratio to the aggregate
amount of such funds as the amount of funds expended by £dl units
of local government in the preceding fiscal year for prosecution of
child abuse offenses bears to the aggregate amount of funds expended by the State and all units of local government in such State
in such preceding fiscal year for prosecution of child abuse offenses.
"(2) Any funds not distributed to units of local government under
paragraph (1) shall be available for expenditure by the State
involved.
"(3) For purposes of determining the distribution of funds under
paragraph (1), the most accurate and complete data available for the
fiscal year involved shall be used. If data for such fiscal year are not
available, then the most accurate and complete data available for
the most recent fiscal year preceding such fiscal year shall be used.
"(c) No funds allocated to a State under subsection (a) or received
by a State for distribution under subsection (b) may be distributed
by the Director or by the State involved for any use other than a use
specified in an approved application.
"(d) If the Director determines, on the basis information available
to the Director during any fiscal year, that a portion of the funds
allocated to a State for that fiscal year will not be required or that a
State will be unable to qualify or receive funds under section 1402 of
this title, or that a State chooses not to participate in the program
established under such section, then such portion shall be awarded
by the Director to^ units of local government or combinations thereof
within such State giving priority to those jurisdictions with greatest
need.
"REPORTS
42 use
3796aa-5.
"SEC. 1406. (a) Each State which receives a grant under this title
shall submit to the Director, for each year in which any part of such
grant is expended by a State or unit of local government, a report
which contains—
"(1) a summary of the activities carried out with such grant
and an assessment of the impact of such activities on meeting
the needs identified in the State application submitted under
section 1403 of this title; and
"(2) such other information as the Director may require by
rule.
Such report shall be submitted in such form and by such time as the
Director may require by rule.
"(b) Not later than 90 days after the end of each fiscal year for
which grants are made under this part, the Director shall submit to
the Speaker of the House of Representatives and the President pro
tempore of the Senate a report that includes with respect to each
State—
"(1) the aggregate amount of grants made under this title to
such State for such fiscal year; and
"(2) a summary of the information provided in compliance
with subsection (a)(1).
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4813
EXPENDITURE OF GRANTS; RECORDS
"SEC. 1407. (a) A grant made under this part may not be expended
for more than 75 percent of the cost of the identified uses, in the
aggregate, for which such grant is received to carry out section 1402,
except that in the case of ftinds distributed to an Indian tribe which
performs law enforcement functions (as determined by the Secretary of the Interior) for any such program or project, the amount
of such grant shall be equal to 100 percent of such cost. The nonFederal portion of the expenditures for such uses shall be paid in
cash.
"(b) Not more than 10 percent of a grant made under this part
may be used for costs incurred to administer such grant.
"(c)(1) Each State which receives a grant under this title shall
keep, and shall require units of local government which receive any
part of such grant to keep, such records as the Director may require
by rule to facilitate an effective audit.
"(2) The Director and the Comptroller General of the United
States shall have access, for the purpose of audit and examination,
to any books, documents, and records of States which receive grants,
and of units of local government which receive any part of a grant
made under this part if, in the opinion of the Director or the
Comptroller General, such books, documents, and records are related to the receipt or use of any such grant.
Indians.
42 use
3796aa-6.
STATE OFFICE
"SEC. 1408. (a) The chief executive of each participating State 42 use
3796aa-7.
shall designate a State office for purposes of—
"(1) preparing an application to obtain funds under section
1402 of this title; and
"(2) administering funds received under this part from the
Director, including receipt, review, processing, monitoring,
progress and financial report review, technical assistance, grant
adjustments, accounting, auditing, and fund disbursements.
"(b) An office or agency performing other functions within the
executive branch of a State may be designated to carry out the
functions specified in subsection (a).
DEFINITIONS
"SEC. 1409. For purposes of this part—
42 use
"(1) the term 'child' means an individual under the age of 18 3796aa-8.
years; and
"(2) the term 'abuse' means physical or mental injury, sexual
abuse or exploitation, or negligent treatment of a child.'.
(b) TECHNICAL AMENDMENTS.—(1) Section 402(1) of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 is amended by 42 u s e 3742.
striking "part E" and inserting "parts E and N".
(2) Section 801(b) of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 378203)) is amended by striking "and
M" and inserting "M, and N".
(3) Section 802(b) of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 37830))) is amended by striking "or M"
and inserting ", M, or N".
(4) Section 808 of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3789) is amended by striking "or 1308"
and inserting ", 1308, or 1408".
i
104 STAT. 4814
PUBLIC LAW 101-647—NOV. 29, 1990
(5) The table of contents of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is amended—
(A) by striking the items relating to part M and sections 1301
through 1312, as added by section 1552(b)(5) of the State and
Local Law Enforcement Assistance Act of 1986 (Public Law
99-570; 100 Stat. 3207-46), and
(B) by striking the items relating to part N and section 1401,
and inserting the following new items:
"PART N—GRANTS FOR CLOSED-CIRCUIT TELEVISING OF TESTIMONY OF CHILDREN WHO
ARE VICTIMS OF ABUSE
"Sec.
"Sec.
"Sec.
"Sec.
"Sec.
"Sec.
"Sec.
"Sec.
"Sec.
1401. Function of Director.
1402. Description of grant program.
1403. Application to receive grants.
1404. Review of applications.
1405. Allocation and distribution of funds under formula grants.
1406. Reports.
1407. Expenditure of grants; records.
1408. State office.
1409. Definitions.
"PART O—TRANSITION—EFFECTIVE DATE—REPEALER
"Sec. 1501. Continuation of rules, authorities, and proceedings.".
(c) AUTHORIZATION OF APPROPRIATIONS.—Section 1001
of title I of
the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3793) is amended—
(1) in subsection (a)—
(A) in paragraph (3) by striking "and M" and inserting
"M, and N";
(B) by redesignating paragraph (6) as paragraph (7); and
(C) by inserting after paragraph (5) the following:
"(6) There is authorized to be appropriated $25,000,000 for each of
the fiscal years 1991,1992, and 1993 to carry out the programs under
part N of this title."; and
(2) in subsection (b) by striking "and M" and inserting "M,
and N".
Subtitle G—Treatment for Juvenile Offenders
Who Are Victims of Child Abuse Or Neglect
AUTHORITY TO MAKE GRANTS
42 use 13051.
SEC. 251. The Administrator, in consultation with the Secretary of
Health and Human Services, shall make grants to public and nonprofit private organizations to develop, establish, and support
projects which—
(1) provide treatment to juvenile offenders who are victims of
child abuse or neglect, and to their families so as to reduce the
likelihood that such juvenile offenders will commit subsequent
violations of law;
(2) based upon the best interests of juvenile offenders who
receive treatment for abuse or neglect, provide transitional
services (including individual, group, and family counseling) to
such juvenile offenders—
(A) to strengthen the relationships of such juvenile
offenders with their families and to encourage the resolution of intrafamily problems related to the abuse or neglect;
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4815
(B) to facilitate their alternative placement; or
(C) to prepare juveniles aged 16 years of age and older to
live independently; or
(3) carry out research, including surveys of existing transitional services, identification of exemplary treatment modalities, and evaluation of treatment and transitional services
provided with grants made under this section.
ADMINISTRATIVE REQUIREMENTS
SEC. 252. The Administrator shall administer this subtitle subject 42 USC 13052.
to the requirements of sections 262, 293, and 296 of the Juvenile
Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5665a,
5673, 5676).
PRIORITY
SEC. 253. In making grants under section 690, the Administrator— 42 USC 13053.
(1) shall give priority to applicants that have experience in
treating juveniles who are the victims of abuse or neglect; and
(2) may not disapprove an application solely because the
applicant proposes to provide treatment or transitional services
to juveniles who are adjudicated delinquent for having committed offenses which are not serious crimes.
AUTHORIZATION OF APPROPRIATIONS
SEC. 254. (a) Subject to subsection (b), there are authorized to be 42 USC 13054.
appropriated to carry out this subtitle—
(1) $15,000,000 for fiscal year 1991; and
(2) such sums as may be necessary for fiscal years 1992 and
1993.
(b) No amount is authorized to be appropriated for a fiscal year to
carry out this subtitle unless the aggregate amount appropriated to
carry out title II of the Juvenile Justice and Delinquency Prevention
Act of 1974 (42 U.S.C. 5611-5676) for such fiscal year is not less than
the aggregate amount appropriated to carry out such title for the
preceding fiscal year.
(c) From the amount appropriated to carry out this subtitle in any
fiscal year, the Administrator shall use—
(1) not less than 85 percent to make grants under section 731
for treatment and transitional services;
(2) not to exceed 10 percent for grants under section 731 for
research; and
(3) not to exceed 5 percent for salaries and expenses of the
Office of Juvenile Justice and Delinquency Prevention related
to administering this subtitle.
DEFINITIONS
SEC. 255. For the purpose of this subtitle—
42 USC 13055.
(1) the term "Administrator" means the Administrator of the
Office of Juvenile Justice and Delinquency Prevention; and
(2) the term "juvenile" means an individual who is less than
18 years of age.
104 STAT. 4816
PUBLIC LAW 101-647—NOV. 29, 1990
Krati^^d TITLE III—CHILD PROTECTION RESTORAEnh^Snent
TION AND PENALTIES ENHANCEMENT
Act of 1990.
ACT O F 1 9 9 0 .
SEC. 301. SHORT TITLE.
18 use 2251
note.
. . . ..,. ' .
(a) SHORT TITLE.—This title may be cited as the "Child Protection
Restoration and Penalties Enhancement Act of 1990".
(b) EFFECTIVE DATE.—Section 2257(aXl) of title 18, United States
Code, is amended by striking "February 6, 1978" and inserting
"November 1,1990".
Subtitle A—Restoration of Recordkeeping
Requirement
SEC. 311. RECORDKEEPING REQUIREMENTS.
Regulations.
•: P
Section 2257 of title 18, United States Code, is amended by striking subsections (d) and (e) and inserting the following:
'(dXl) No information or evidence obtained from records required
to be created or maintained by this section shall, except as provided
in this section, directly or indirectly, be used as evidence against any
person with respect to any violation of law.
"(2) Paragraph (1) of this subsection shall not preclude the use of
such information or evidence in a prosecution or other action for a
violation of this section or for a violation of any applicable provision
of law with respect to the furnishing of false information.
"(eXD Any person to whom subsection (a) applies shall cause to be
affixed to every copy of any matter described in paragraph (1) of
subsection (a) of this section, in such manner and in such form as
the Attorney General shall by regulations prescribe, a statement
describing where the records required by this section with respect to
all performers depicted in that copy of the matter may be located.
"(2) If the person to whom subsection (a) of this section applies is
an organization the statement required by this subsection shall
include the name, title, and business address of the individual
employed by such organization responsible for maintaining the
records required by this section,
"(f) It shall be unlawful—
"(1) for any person to whom subsection (a) applies to fail to
create or maintain the records as required by subsections (a)
and (c) or by any regulation promulgated under this section;
"(2) for any person to whom subsection (a) applies knowingly
to make any false entry in or knowingly to fail to make an
appropriate entry in, any record required by subsection (b) of
this section or any regulation promulgated under this section;
"(3) for any person to whom subsection (a) applies knowingly
to fail to comply with the provisions of subsection (e) or any
regulation promulgated pursuant to that subsection; and
'(4) for any person knowingly to sell or otherwise transfer, or
offer for sale or transfer, any book, magazine, periodical, film,
video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign
commerce or which is intended for shipment in interstate or
foreign commerce, which—
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4817
"(A) contains one or more visual depictions made after
the effective date of this subsection of actual sexually explicit conduct; and
"(B) is produced in whole or in part with materigils which
have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for
shipment or transportation in interstate or foreign
commerce;
which does not have affixed thereto, in a manner prescribed as
set forth in subsection (e)(1), a statement describing where the
records required by this section may be located, but such person
shall have no duty to determine the accuracy of the contents of
the statement or the records required to be kept.
"(g) The Attorney General shall issue appropriate regulations to
carry out this section.
"(h) As used in this section—
"(1) the term 'actual sexually explicit conduct' means actual
but not simulated conduct as defined in subparagraphs (A)
through (D) of paragraph (2) of section 2256 of this title;
"(2) 'identification document' has the meaning given that
term in section 1028(d) of this title;
"(3) the term 'produces' means to produce, manufacture, or
publish any book, magazine, periodical, film, video tape or other
similar matter and includes the duplication, reproduction, or
reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring,
contracting for managing, or otherwise arranging for the
participation of the performers depicted; and
"(4) the term 'performer' includes any person portrayed in a
visual depiction engaging in, or assisting another person to
engage in, actual sexually explicit conduct,
"(i) Whoever violates this section shall be imprisoned for not more
than 2 years, and fined in accordance with the provisions of this
title, or both. Whoever violates this section after having been convicted of a violation punishable under this section shall be imprisoned for any period of years not more than 5 years but not less than
2 years, and fined in accordance with the provisions of this title, or
both.".
SEC. 312. EFFECTIVE DATE.
Regulations,
Law
enforcement.
Penalties.
18 u s e 2257
Subsections (d), (f), (g), (h), and (i) of section 2257 of title 18, United note.
States Code, £is added by this title shall take effect 90 days after the
date of the enactment of this Act except—
(1) the Attorney General shall prepare the initial set of
regulations required or authorized by subsections (d), (f), (g), (h),
and (i) of section 2257 within 60 days of the date of the enactment of this Act; and
(2) subsection (e) of section 2257 and of any regulation issued
pursuant thereto shall take effect 90 days after the date of the
enactment of this Act.
Subtitle B—Sexual Abuse Penalties
SEC. 321. SENTENCING COMMISSION GUIDELINES.
The United States Sentencing Commission shall amend existing
guidelines for sentences involving sexual crimes against children.
28 u s e 994 note.
104 STAT. 4818
PUBLIC LAW 101-647—NOV. 29, 1990
including offenses contained in chapter 109A of title 18, so that more
substantial penalties may be imposed if the Commission determines
current penalties are inadequate.
SEC. 322. SEXUAL ABUSE OF A MINOR.
Section 2243(a) of title 18, United States Code, is amended by
striking "five years" and inserting "15 years".
^
SEC. 323. CERTAIN ACTIVITIES RELATING TO VISUAL DEPICTIONS.
. -i
^
\
* Vf
(a) Section 2252 of title 18, United States Code, is amended—
(1) by striking out "or" at the end of subsection (a)(1); and
(2) by striking out "shall be punished as provided in subsection (b) of this section" in subsection (a)(2) and all that follows
f through the end of subsection (b) and inserting the following:
"(3) either—
"(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by,
•- r leased to, or otherwise used by or under the control of the
Government of the United States, or in the Indian country
as defined in section 1151 of this title, knowingly sells or
possesses with intent to sell any visual depiction; or
"(B) knowingly sells or possesses with intent to sell any
visual depiction that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or which
was produced using materails which have been mailed or so
shipped or transported, by any means, including by com.*rj
puter, if—
"(i) the producing of such visual depiction involves
T •>
the use of a minor engaging in sexually explicit conduct; and
"(ii) such visual depiction is of such conduct; or
"(4) either—
•' "(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by,
leased to, or otherwise used by or under the control of the
Government of the United States, or in the Indian country
as defined in section 1151 of this title, knowingly possesses 3
or more books, magazines, periodicals, films, video tapes, or
other matter which contain any visual depiction; or
"(B) knowingly possesses 3 or more books, magazines,
periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been
shipped or transported in interstate or foreign commerce,
or which was produced using materials which have been
mailed or so shipped or transported, by any means including by computer, if—
;, ,
"(i) the producing of such visual depiction involves
the use of a minor engaging in sexually explicit conduct; and
"(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
"(bXD Whoever violates paragraph (1), (2), or (3) of subsection (a)
shall be fined under this title or imprisoned not more than ten
years, or both, but, if such person has a prior conviction under this
section, such person shall be fined under this title and imprisoned
for not less than five years nor more than fifteen years.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4819
"(2) Whoever violates paragraph (4) of subsection (a) shall be fined
under this title or imprisoned for not more than five years, or
both.".
(b) Paragraph (2) of subsection 2252(a) of title 18, United States
Code, is amended by striking "that has been transported or shipped
in interstate or foreign commerce by any means including by computer or mailed" and inserting "that has been mailed, or has been
shipped or transported in interstate or foreign commerce, or which
contains materials which have been mailed or so shipped or transported, by any means including by computer,".
(c) Section 1460 of title 18, United States Code, is amended—
(1) in subsection (a), by striking "or a visual depiction of a
minor engaging in or assisting another person to engage in
sexually explicit conduct," and
(2) so that subsection (b) reads as follows:
"(b) For the purposes of this section, the term 'visual depiction'
includes undeveloped film and videotape but does not include mere
words.".
TITLE IV—OFFENSES INVOLVING
CHILDREN
SEC. 401. SPECIAL RULE FOR CERTAIN OFFENSES INVOLVING CHILDREN.
Section 1201 of title 18, United States Code, is amended by adding
at the end the following new subsection:
"(g) SPECIAL RULE FOR CERTAIN OFFENSES INVOLVING CHILDREN.—
"(1) To WHOM APPLICABLE.—If—
"(A) the victim of an offense under this section has not
attained the age of eighteen years; and
"(B) the offender—
y
"(i) has attained such £ige; and
"(ii) is not—
"(I) a parent;
"(II) a grandparent;
*
"(III) a brother;
>
"(IV) a sister;
.
-^ ,; ,
"(V) an aunt;
"(VI) an uncle; or
"(VII) an individual having legal custody of the
victim;
the sentence under this section for such offense shall be subject
^ to paragraph (2) of this subsection.
"(2) GUIDELINES.—The United States Sentencing Commission
is directed to amend the existing guidelines for the offense of
'kidnapping, abduction, or unlawful restraint,' by including the
following additional specific offense characteristics: If the
. victim was intentionally maltreated (i.e., denied either food or
medical care) to a life-threatening degree, increase by 4 levels; if
the victim was sexually exploited (i.e., abused, used involuntarily for pornographic purposes) increase by 3 levels; if the victim
was placed in the care or custody of another person who does
not have a legal right to such care or custody of the child either
in exchange for money or other consideration, increase by 3
levels; if the defendant allowed the child to be subjected to any
104 STAT. 4820
PUBLIC LAW 101-647—NOV. 29, 1990
of the conduct specified in this section by another person, then
increase by 2 levels,".
Victims' Rights
and Restitution
Act of 1990.
42 u s e 10601
note.
42 u s e 10606.
TITLE V—PROTECTION OF CRIME
VICTIMS
SEC. 501. SHORT TITLE.
This title may be cited as the "Victims' Rights and Restitution Act
of 1990".
SEC. 502. VICTIMS* RIGHTS.
(a) BEST EFFORTS TO ACCORD RIGHTS.—Officers and employees of
the Department of Justice and other departments and agencies of
the United States engaged in the detection, investigation, or
prosecution of crime shall make their best efforts to see that victims
of crime are accorded the rights described in subsection (b).
(b) RIGHTS OF CRIME VICTIMS.—A crime victim has the following
rights:
(1) The right to be treated with fairness and with respect for
the victim's dignity and privacy.
(2) The right to be reasonably protected from the accused
offender.
(3) The right to be notified of court proceedings.
(4) The right to be present at all public court proceedings
related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim
heard other testimony at trial.
(5) The right to confer with attorney for the Government in
the case.
(6) The right to restitution.
(7) The right to information about the conviction, sentencing,
imprisonment, and release of the offender.
(c) No CAUSE OF ACTION OR DEFENSE.—This section does not create
a cause of action or defense in favor of any person arising out of the
failure to accord to a victim the rights enumerated in subsection (b).
42 u s e 10607.
SEC. 503. SERVICES TO VICTIMS.
(a) DESIGNATION OF RESPONSIBLE OFFICIALS.—The head of each
department and agency of the United States engaged in the detection, investigation, or prosecution of crime shall designate by names
and office titles the persons who will be responsible for identifying
the victims of crime and performing the services described in subsection (c) at each stage of a criminal case.
(b) IDENTIFICATION OF VICTIMS.—At the earliest opportunity after
the detection of a crime at which it may be done without interfering
with an investigation, a responsible official shall—
(1) identify the victim or victims of a crime;
(2) inform the victims of their right to receive, on request, the
services described in subsection (c); and
(3) inform each victim of the name, title, and business address
and telephone number of the responsible official to whom the
victim should address a request for each of the services described in subsection (c).
(c) DESCRIPTION OF SERVICES.—(1) A responsible official shall—
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4821
(A) inform a victim of the place where the victim may receive
emergency medical and social services;
(B) inform a victim of any restitution or other relief to which
the victim may be entitled under this or any other law and
manner in which such relief may be obtained;
(C) inform a victim of public and private programs that are
available to provide counseling, treatment, and other support to
the victim; and
(D) assist a victim in contacting the persons who are responsible for providing the services and relief described in subparagraphs (A), (B), and (C).
(2) A responsible official shall arrange for a victim to receive
reasonable protection from a suspected offender and persons acting
in concert with or at the behest of the suspected offender.
(3) During the investigation and prosecution of a crime, a responsible official shall provide a victim the earliest possible notice of—
(A) the status of the investigation of the crime, to the extent it
is appropriate to inform the victim and to the extent that it will
not interfere with the investigation;
(B) the arrest of a suspected offender;
(C) the filing of charges against a suspected offender;
(D) the scheduling of each court proceeding that the witness is
either required to attend or, under section 1102(b)(4), is entitled
to attend;
(E) the release or detention status of an offender or suspected
offender;
(F) the acceptance of a plea of guilty or nolo contendere or the
rendering of a verdict after trial; and
(G) the sentence imposed on an offender, including the date
on which the offender will be eligible for parole.
(4) During court proceedings, a responsible official shall ensure
that a victim is provided a waiting area removed from and out of the
sight and hearing of the defendant and defense witnesses.
(5) After trial, a responsible official shall provide a victim the
earliest possible notice of—
(A) the scheduling of a parole hearing for the offender;
(B) the escape, work release, furlough, or any other form of
release from custody of the offender; and
(C) the death of the offender, if the offender dies while in
custody.
(6) At all times, a responsible official shall ensure that any
property of a victim that is being held for evidentiary purposes be
maintained in good condition and returned to the victim as soon as
it is no longer needed for evidentiary purposes.
(7) The Attorney General or the head of another department or
agency that conducts an investigation of a sexual assault shall pay,
either directly or by reimbursement of payment by the victim, the
cost of a physical examination of the victim which an investigating
officer determines was necessary or useful for evidentiary purposes.
(8) A responsible official shall provide the victim with general
information regarding the corrections process, including information about work release, furlough, probation, and eligibility for each.
(d) No CAUSE OF ACTION OR DEFENSE.—This section does not create
a cause of action or defense in favor of any person arising out of the
failure of a responsible person to provide information as required by
subsection (b) or (c).
(e) DEFINITIONS.—For the purposes of this section—
104 STAT. 4822
PUBLIC LAW 101-647—NOV. 29, 1990
(1) the term "responsible official" means a person designated
pursuant to subsection (a) to perform the functions of a responsible official under that section; and
(2) the term "victim" means a person that has suffered direct
physical, emotional, or pecuniary harm as a result of the
commission of a crime, including—
(A) in the case of a victim that is an institutional entity,
an authorized representative of the entity; and
(B) in the case of a victim who is under 18 years of age,
incompetent, incapacitated, or deceased, one of the following (in order of preference):
(i) a spouse;
(ii) a legal guardian;
(iii) a parent;
(iv) a child;
(v) a sibling;
(vi) another family member; or
(vii) another person designated by the court.
SEC. 504. VICTIMS OF CRIME.
42 use 10601.
Section 1402(c)(l)(B)(i) of the Victims of Crime Act of 1984 is
amended by striking "1991" and inserting "1990".
SEC. 505. EXTENSION OF DEADLINE FOR CERTAIN PROVISIONS IN VICTIMS OF CRIME ACT.
Section 7129 of the Anti-Drug Abuse Act of 1988 (42 U.S.C. 10601
note) is amended by striking "1990" and inserting "1991".
42 u s e 10606
SEC. 506. SENSE OF CONGRESS WITH RESPECT TO VICTIMS OF CRIME.
It is the sense of Congress that the States should make every
effort to adopt the following goals of the Victims of Crime Bill of
Rights:
(1) Victims of crime should be treated with compassion, respect and dignity throughout the criminal justice process.
(2) Victims of crime should be reasonably protected from the
accused throughout the criminal justice process.
(3) Victims of crime should have a statutorily designated
advisory role in decisions involving prosecutorial discretion,
such as the decision to plea-bargain.
(4) Victims of crime should have the right to a reasonable
assurance that the accused will be tried in an expeditious
manner.
(5) A victim of crime should have the right to be present at all
proceedings related to the offense against him, unless the victim
is to testify and the court determines that the victim's testimony would be materially prejudiced by hearing other testimony at the trial.
(6) Victims of crime should have the right to information
about the conviction, sentencing and imprisonment of the
person who committed the crime against them.
(7) Victims of crime should be compensated for the damage
resulting from the crime to the fullest extent possible by the
person convicted of the crime.
(8) Victims of crime should have a statutorily designated
advisory role in deciding the early release status of the person
convicted of the crime against them.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4823
(9) A victim of crime should never be forced to endure again
the emotional and physical consequences of the original crime.
TITLE VI—LAW ENFORCEMENT
AGENCIES
Subtitle A—Maintaining Funding for State and
Local Law Enforcement Agencies
SEC. 601. MAINTAINING FUNDING FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES.
(a) Section 504(a)(1) of part E of title I of the Omnibus Crime
Control and Safe Streets Act of 1968, as amended by section 211 of
the Department of Justice Appropriations Act, 1990 (Public Law
101-162), is amended by striking "1990" and inserting in lieu thereof 42 USC 3754.
"1991".
(b) IMPROVING THE EFFECTIVENESS OF COURT PROCESS.—Paragraph
(10) of section 501 of part D of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 is amended to read as follows:
42 USC 3751.
"(10) improving the operational effectiveness of the court
process, by expanding prosecutorial, defender and judicial resources, and implementing court delay reduction programs;".
Subtitle B — N a t i o n a l Crime I n f o r m a t i o n
Center Project 2000
Kcemenr
on§?o^*'°''^'*
28 u s e 534 note.
SEC. 61L SHORT TITLE.
This section may be cited as the "National Law Enforcement
Cooperation Act of 1990".
SEC. 612. FINDINGS.
The Congress finds that—
(1) cooperation among Federal, State and local law enforcement agencies is critical to an effective national response to the
problems of violent crime and drug trafficking in the United
States;
(2) the National Crime Information Center, which links more
than 16,000 Federal, State and local law enforcement agencies,
is the single most important avenue of cooperation among law
enforcement agencies;
(3) major improvements to the National Crime Information
Center are needed because the current system is more than
twenty years old; carries much greater volumes of enforcement
information; and at this time is unable to incorporate technological advances that would significantly improve its performance; and
(4) the Federal Bureau of Investigation, working with State
and local law enforcement sigencies and private organizations,
has developed a promising plan, "NCIC 2000", to make the
necessary upgrades to the National Crime Information Center
that should meet the needs of United States law enforcement
agencies into the next century.
104 STAT. 4824
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 613. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated the following sums to
implement the "NCIC 2000" project:
(1) $17,000,000 for fiscal year 1991;
(2) $25,000,000 for fiscal year 1992;
(3) $22,000,000 for fiscal year 1993;
(4) $9,000,000 for fiscal year 1994; and
(5) such sums as may be necessary for fiscal year 1995.
SEC. 614. REPORT.
By February 1 of each fiscal year for which funds for NCIC 2000
are requested, the Director of the Federal Bureau of Investigation
shall submit a report to the Committees on the Judiciary of the
Senate and House of Representatives that details the progress that
has been made in implementing NCIC 2000 and a complete justification for the funds requested in the following fiscal year for NCIC
2000.
TITLE VII—FEDERAL LAW ENFORCEMENT AND JUDICIAL ASSISTANCE
SEC. 701. ADDITIONAL AUTHORIZATIONS.
There are authorized to be appropriated for the fiscal year ending
September 30, 1991, the following sums (which shall be in addition
to any other appropriations):
(1) For the Federal Bureau of Investigation, $98,000,000 for
the hiring of additional agents and support personnel to be
dedicated to the investigation of drug trafficking organizations;
(2) For the Drug Enforcement Administration, $100,500,000
which shall include—
(A) not to exceed $10,000,000 for enforcing provisions of
Federal law regarding precursor and essential chemicals;
(B) not to exceed $37,500,000 for assigning not fewer than
250 agents and necessary support personnel to rural areas
where State and local law enforcement agencies have
identified the distribution of "crack" cocaine and/or the
manufacture and distribution of methamphetamine to be a
serious law enforcement problem that exceeds the resources
of local law enforcement, and involves trafficking across
State or national boundaries; and
(C) not to exceed $15,000,000 to expand DEA State and
local task forces, including payment of State and local
overtime equipment and personnel costs;
(3) For the United States courts, $9,000,000 for additional
probation officers, judges, magistrates and other personnel
including not to exceed $2,000,000 for training, document
production, and other expenses related to the implementation of
the Federal sentencing guidelines;
(4) For the United States attorneys, $24,000,000 for additional
prosecutors and staff to implement a program of prosecuting in
Federal court drug offenses arising out of arrests and investigations conducted by State and local law enforcement agencies;
(5) For defender services, $8,000,000 for the defense of persons
prosecuted in Federal court for drug offenses arising out of
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4825
arrests and investigations conducted by State and local law
enforcement agencies;
(6) For the United States marshals, $9,000,000; and
(7) For the Immigration and Naturalization Service United
States Border Patrol, $45,000,000 to be allocated as follows:
(A) $15,000,000 for the hiring, training, and equipping of
no fewer than 500 full-time equivalent Border Patrol officer
positions;
(B) $25,000,000 for INS criminal investigations and the
expeditious deportation of criminal aliens from detention;
and
(C) $5,000,000 for the procurement of low-level light television systems, portable and permanent sensor systems,
and 4-wheel drive law enforcement vehicles for the United
States Border Patrol.
TITLE VIII—RURAL DRUG ENFORCEMENT
SEC. 801. RURAL DRUG ENFORCEMENT ASSISTANCE.
(a) IN GENERAL.—Title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3711 et seq.) as amended by section 241
of this Act, is amended—
(1) by redesignating part O as part P;
(2) by redesignating section 1501 as section 1601; and
(3) by inserting after part N the following:
42 USC 3797.
"Part O—Rural Drug Enforcement Assistance
"RURAL DRUG ENFORCEMENT ASSISTANCE
"SEC. 1501. (a) Of the total amount appropriated for this section in
any fiscal year:
"(1) 50 percent shall be allocated to and shared equally among
rural States as described in subsection (b); and
"(2) 50 percent shall be allocated to the remaining States for
use in nonmetropolitan areas within those States, as follows:
"(A) $100,000 to each nonrural State; and
"(B) of the total funds remaining after the allocation in
subparagraph (A), there shall be allocated to each State an
amount which bears the same ratio to the amount of
remaining funds described as the population of such State
bears to the population of all States.
"(b) For the purpose of this section, the term 'rural State' means a
State that has a population density of fifty-two or fewer persons per
square mile or a State in which the largest county has fewer than
one hundred and fifty thousand people.
42 USC 3796bb.
OTHER REQUIREMENTS
"SEC. 1502. Subparts 1 and 3 of part E of this title shall apply with
respect to funds appropriated to carry out this part, in the same
manner as such subparts apply to funds appropriated to carry out
part E, except that—
"(1) section 506(a) of this title shall not apply with respect to
this part; and
42 USC
3796bb-l.
104 STAT. 4826
PUBLIC LAW 101-647—NOV. 29, 1990
"(2) in addition to satisfying the requirements of section
503(a), each application for a grant under this part shall include
in its application a statement specifying how such grant will be
coordinated with a grant received under section 506 of this title
for the same fiscal year.".
0?) AUTHORIZATION OF APPROPRIATIONS.—Section 1001(a) of title I
of the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3793(a)) is amended by adding at the end the following:
"(7) There are authorized to be appropriated $20,000,000 for fiscal
year 1991, and such sums as may be necessary for fiscal years 1992
and 1993, to carry out part O " .
(c) TECHNICAL AMENDMENTS.—(1) Section 801(b) of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3782(b)) is amended by striking "and N " and inserting "N, and O".
(2) Section 802(b) of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3783(b)) as amended by section 241 of
this Act, is amended by striking "or N " and inserting ", N, or O".
(3) The table of contents of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) as amended by
section 241 of this Act, is amended by striking the matter relating to
part O and inserting the following:
"PART O—RURAL DRUG ENFORCEMENT ASSISTANCE
"Sec. 1401. Rural drug enforcement assistance.
"Sec. 1402. Other Requirements.
"PART P—TRANSITION; EFFECTIVE DATE; REPEALER
"Sec. 1501. Continuation of rules, authorities, and proceedings.".
Mandatory
Detention for
Offenders
Convicted of
Serious Crimes
Act.
18 u s e 3141
note.
TITLE IX—MANDATORY DETENTION
SEC. 901. SHORT TITLE.
This title may be cited as the "Mandatory Detention for Offenders
Convicted of Serious Crimes Act".
SEC. 902. MANDATORY DETENTION.
(a) PENDING SENTENCE.—Subsection (a) of section 3143 of title 18,
United States Code, is amended by—
(1) striking "The judicial officer" and inserting:
"(1) Except as provided in paragraph (2), the judicial officer"; and
(2) inserting at the end thereof the following:
"(2) The judicial officer shall order that a person who has been
found guilty of an offense in a case described in subparagraph (A),
(B), or (C) of subsection (fKl) of section 3142 and is awaiting imposition or execution of sentence be detained unless—
"(AXi) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
"(ii) an attorney for the Government has recommended that
no sentence of imprisonment be imposed on the person; and
"(B) the judicial officer finds by clear and convincing evidence
that the person is not likely to flee or pose a danger to any other
person or the community. .
(b) PENDING APPEAL.—Subsection (b) of section 3143 of title 18,
United States Code, is amended by—
(1) striking "The judicial officer" and inserting:
"(1) Except as provided in paragraph (2), the judicial officer";
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4827
(2) redesignating subparagraphs (A), (B), (C), and (D) of paragraph (2) as clauses (i), (ii), (iii), and (iv), respectively;
(3) redesignating paragraphs (1) and (2) as subparagraphs (A)
and (B); and
(4) adding at the end thereof the following:
"(2) The judicial officer shall order that a person who has been
found guilty of an offense in a case described in subparagraph (A),
(B), or (C) of subsection (f)(1) of section 3142 and sentenced to a term
of imprisonment, and who has filed an appeal or a petition for a writ
of certiorari, be detained.''.
(c) EXCEPTIONAL CASES.—Subsection (c) of section 3145 of title 18,
United States Code, is amended by adding at the end the following:
"A person subject to detention pursuant to section 3143(a)(2) or
(b)(2), and who meets the conditions of release set forth in section
3143(a)(1) or (b)(1), may be ordered released, under appropriate
conditions, by the judicial officer, if it is clearly shown that there are
exceptional reasons why such person's detention would not be
appropriate.".
TITLE X—JUVENILE JUSTICE
SEC. 1001. TECHNICAL AMENDMENTS.
(a) CORRECTION OF MISSPELLED WORD.—Subsection (a) of section
3143 of title 18, United States Code, is amended by striking "waiting" and inserting "awaiting".
(b) CORRECTION OF REFERENCE TO REPEALED PROVISION.—Subsec-
tions (e) and (f) of section 3142 of title 18, United States Code, are
each amended by striking "section 1 of the Act of September 15,
1980 (21 U.S.C. 955a)" and inserting "the Maritime Drug Law
Enforcement Act (46 U.S.C. App. 1901 et seq.)".
y
SEC. 1002. REDESIGNATION OF CONFUSING SECTIONS IN THE CONTROLLED SUBSTANCES ACT PERTAINING TO CHILDREN.
(a) SECTION 405—NEW SECTION 418.—(1) Section 405 of the Controlled Substances Act is redesignated as section 418.
(2) Section 418 of such Act (as redesignated by paragraph (1)) is
amended—
(A) in subsection (a), by striking "section 405A" and inserting
"section 419"; and
(B) in subsection (b) by striking "section 405A" and inserting
"section 419".
0)) SECTION 405A—NEW SECTION 419.—Section 405A of the Controlled Substances Act is redesignated as section 419.
(c) SECTION 405B—NEW SECTION 420.—Section 405B of the Controlled Substances Act is redesignated as section 420.
21 USC 845,859.
21 USC 859.
,
21 USC 845a,
^^^
21 USC 845b,
(d) TRANSFER OF SECTION 5301 OF THE ANTI-DRUG ABUSE ACT OF ^^^•
1988—NEW SECTION 421.—(1) Section 5301 of the Anti-Drug Abuse
Act of 1988 is—
21 USC 853a,
(A) transferred to the Controlled Substances Act; and
^^^•
(B) redesignated as section 421 of the Controlled Substances
Act.
(2) Section 421(aXl) of the Controlled Substances Act, as amended
by paragraph (1) of this subsection, is amended by striking "(as such 21 USC 862.
terms are defined for purposes of the Controlled Substances Act)".
104 STAT. 4828
PUBLIC LAW 101-647—NOV. 29, 1990
(e) CONFORMING AMENDMENTS TO OTHER SECTIONS.—(1) Section
21 use 841.
^
401(b) of the Controlled Substances Act is amended by striking
"section 405, 405A, or 405B" and inserting "section 418, 419, or 420".
(2) Section 401(c) of the Controlled Substances Act is amended by
striking "section 405, 405A, or 405B" and inserting "section 418, 419,
or 420".
(f) AMENDMENT TO TABLE OF CONTENTS.—The table of contents of
the Comprehensive Drug Abuse Prevention and Control Act of 1970
is amended in part D of title II by striking the items for sections 405,
405A and 405B and inserting at the end thereof the following:
J
"418.
"419.
"420.
"421.
Distribution to persons under age twenty-one.
Distribution or manufacturing in or near schools and colleges.
Employment of persons under 18 years of age.
Denial of Federal benefits to drug traffickers and possessors.".
(g) TRANSFER OF SECTION 6486 OF THE ANTI-DRUG ABUSE ACT OF
1988—NEW SECTION 405.—(1) Section 6486 of the Anti-Drug Abuse
21 use 844a.
Act of 1988 is—
(A) transferred to the Controlled Substances Act; and
(B) redesignated as section 405 of the Controlled Substances
Act.
(2) Section 405 of the Controlled Substances Act, as amended by
paragraph (1) of this subsection, is amended—
(A) in subsection (a), by—
(i) striking "of the Controlled Substances Act (21 U.S.C.
841(b)(1)(A))"; and
(ii) striking "of that Act (21 U.S.C. 841(b)(1)(A))";
• (B) in subsection (c), by striking "as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)";
(C) in subsection (j)(4), by striking "as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)".
(3) The table of contents of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (as amended by subsection (c) of
this section) is amended in part D of title II by inserting after the
item for section 404 the following:
21 use 844a.
^
^
"405. Civil penalty for possession of small amounts of certain controlled substances.".
(h) PART E OF THE CONTROLLED SUBSTANCES ACT.—
(1) SECTION 511A—NEW SECTION 518.—Section 511A of the
21 use 881-1,
^^^-
Controlled Substances Act is redesignated as section 518.
(2) TRANSFER OF SECTION 1764 OF THE FOOD SECURITY ACT OF
21 use 881a,
^^>
:
1985.—Section 1764 of the Food Security Act of 1985 is—
( -,r js. (A) transferred to the Controlled Substances Act; and
(B) redesignated as section 519 of the Controlled Substances Act.
(3) AMENDMENT TO TABLE OF CONTENTS.—The table of contents
of the Comprehensive Drug Abuse Prevention and Control Act
of 1970 is amended in part E of title II by striking the items for
section 511A and inserting at the end thereof the following:
"518. Expedited procedures for seized conveyances.
"519. Production control of controlled substances.".
SEC. 1003. CLARIFICATION OF ENHANCED PENALTIES UNDER CONTROLLED SUBSTANCES ACT.
Ante, p. 4827.
(a) SECTION 418 (OLD SECTION 405).—Section 418 of the Controlled
Substances Act (as redesignated by this Act) is amended—
(1) in subsection (a), by striking "punishable by (1) a term of
imprisonment, or a fine, or both, up to twice that authorized by
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4829
section 401(b)" and inserting "subject to (1) twice the maximum
punishment authorized by section 401(b)"; and
(2) in subsection (b), by striking "punishable by (1) a term of
imprisonment, or a fine, or both, up to three times that authorized by section 401(b)" and inserting "subject to (1) three
^
times the maximum punishment authorized by section 401(b)".
(b) SECTION 419 (OLD SECTION 405A).—Section 419 of the Controlled Substances Act (as redesignated by this Act) is amended— Ante, p. 4827.
(1) in subsection (a), by striking "punishable (1) by a term of
imprisonment, or a fine, or both, up to twice that authorized by
section 401(b)" and inserting "subject to (1) twice the maximum
punishment authorized by section 401(b)"; and
(2) in subsection (bXl), by striking subparsigraph (B) and
inserting "(B) three times the maximum punishment authorized
by section 401(b) for a first offense".
(c) SECTION 420 (OLD SECTION 405B).—Section 420 of the Controlled
Substances Act (as redesignated by this Act) is amended—
Ante, p. 4827.
(1) in subsection (b), by striking "is punishable by a term of
imprisonment up to twice that authorized, or up to twice the
fine authorized, or both," and inserting "is subject to twice the
maximum punishment otherwise authorized"; and
(2) in subsection (c), by striking "is punishable by a term of
imprisonment up to three times that authorized, or up to three
times the fine authorized, or both," and inserting "is subject to
three times the maximum punishment otherwise authorized".
TITLE XI—SHORT-BARRELED SHOTGUNS
• \
•
•
SEC. 1101. MINIMUM PENALTY RELATING TO SHORT-BARRELED SHOTGUNS AND OTHER FIREARMS.
Section 924(cXl) of title 18, United States Code, is amended in the
first sentence by—
(1) inserting "and if the firearm is a short-barreled rifle,
short-barreled shotgun to imprisonment for ten years," after
"sentenced to imprisonment for five years,"; and
(2) by inserting "or a destructive device," after "a machinegun,", wherever the term "machine gun" appears in section
924(cXl).
:
TITLE XII—MISCELLANEOUS CRIMINAL
LAW IMPROVEMENTS
SEC. 1201. CLARIFICATION OF MANDATORY MINIMUM PENALTY FOR
SERIOUS CRACK POSSESSION.
Section 404(a) of the Controlled Substances Act (21 U.S.C. 844(a)) is
emiended in the third sentence by striking out "shall be fined under
title 18, United States Code, or imprisoned not less than 5 years and
not more than 20 years, or both," and inserting in lieu thereof "shall
be imprisoned not less than 5 years and not more than 20 years, and
fined a minimum of $1,000,".
^
104 STAT. 4830
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 1202. CORRECTION OF AN ERROR RELATING TO THE QUANTITY OF
METHAMPHETAMINE NECESSARY TO TRIGGER A MANDATORY MINIMUM PENALTY.
Section 401(b)(l)(AXviii) of the Controlled Substances Act (21
U.S.C. 841(b)(l)(AXviii)) is amended by striking out "or 100 grams or
more of a mixture or substance containing a detectable amount of
methamphetamine" and inserting in lieu thereof "or 1 kilogram or
more of a mixture or substance containing a detectable amount of
methamphetamine".
SEC. 1203. CONFORMING AMENDMENT TO CONSPIRACY AND ATTEMPT
PENALTY UNDER THE MARITIME DRUG LAW ENFORCEMENT
ACT.
'
'
Section 3(j) of the Maritime Drug Law Enforcement Act (46 U.S.C.
App. 1903(j)) is amended by striking out "is punishable by imprisonment or fine, or both, which may not exceed the maximum punishment" and inserting in lieu thereof "shall be subject to the same
penalties as those".
SEC. 1204. CONFORMING AMENDMENTS TO CONTROLLED SUBSTANCES
IMPORT AND EXPORT ACT RELATING TO METHAMPHETAMINE.
,
(a) LARGE AMOUNTS.—Section 1010(bXl) of the Controlled Substances Import and Export Act (21 U.S.C. 960(bXl)) is amended by—
(1) striking out "or" at the end of subparagraph (F);
(2) inserting "or" at the end of subparagraph (G); and
y i (3) adding a new subparagraph (H), as follows:
"(H) 100 grams or more of methamphetamine, its salts, iso„ mers, and salts of its isomers or 1 kilogram or more of a mixture
or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.".
Ot>) SMALL AMOUNTS.—Section 1010(bX2) of the Controlled Substances Import and Export Act (21 U.S.C. 960(bX2)) is amended by—
(1) striking out "or" at the end of subparagraph (F);
r (2) inserting "or" at the end of subparagraph (G); and
(3) adding a new subparagraph (H), as follows:
"(H) 10 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 100 grams or more of a mixture
or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.".
SEC. 1205. APPLICATION OF VARIOUS OFFENSES TO POSSESSIONS AND
TERRITORIES.
(a) Section 232 of title 18, United States Code, is amended by
adding a new paragraph, as follows:
"(8) The term 'State' includes a State of the United States,
and any commonwealth, territory, or possession of the United
States.".
(b) Section 245 of title 18, United States Code, is amended by
adding a new subsection, as follows:
"(d) For purposes of this section, the term'State'includes a State
of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.".
(c) Section 402 of title 18, United States Code, is amended by
adding a new undesignated paragraph, as follows:
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4831
"For purposes of this section, the term 'State' includes a State of
the United States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.".
(d) Section 666(d) of title 18, United States Code, is amended—
(1) by striking out "and" at the end of paragraph (2);
(2) by striking out the period at the end of paragraph (3) and
inserting in lieu thereof '; and"; and
(3) by adding a new paragraph, as follows:
"(4) the term 'State' includes a State of the United States, the
District of Columbia, and any commonwealth, territory, or
possession of the United States.".
(e) Sections 1028(d)(5) and 1030(e)(3) of title 18, United States Code,
are each amended by inserting "commonwealth," before "possession
or territory of the United States".
(f) Section 1029(f) of title 18, United States Code, is amended by
adding at the end the following: "For purposes of this subsection, the
term 'State' includes a State of the United States, the District of
Columbia, and any commonwealth, territory, or possession of the
United States.".
(g) Section 1084(e) of title 18, United States Code, is amended by
inserting "commonwealth," before "territory or possession of the
United States".
(h) Section 1114 of title 18, United States Code, is amended by
inserting "or any other commonwealth, territory, or possession"
after "the Virgin Islands".
(i) Section 1952(b) of title 18, United States Code, is amended—
(1) by inserting "(i)" after "As used in this section"; and
(2) by inserting "and (ii) the term 'State' includes a State of
the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States" before the
period.
(j) Section 1956(c) of title 18, United States Code, is amended by
adding at the end the following new paragraph:
"(8) the term 'State' includes a State of the United States, the
District of Columbia, and any commonwealth, territory, or
possession of the United States.",
(k) Section 19580t)) of title 18, United States Code, is amended—
(1) by striking out "and" at the end of paragraph (1);
(2) by striking out the period at the end of paragraph (2) and
inserting in lieu thereof "; and"; and
(3) by adding a new pareigraph (3), as follows:
"(3) 'State' includes a State of the United States, the District
of Columbia, and any commonwealth, territory, or possession of
the United States.".
(1) Section 2313 of title 18, United States Code, is amended—
(1) by inserting "(a)" before "Whoever"; and
(2) by adding a new subsection, as follows:
"(b) For purposes of this section, the term 'State' includes a State
of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.".
(m) Section 2315 of title 18, United States Code, is amended by
adding at the end the following undesignated paragraph:
"For purposes of this section, the term 'State' includes a State of
the United States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.".
(n) Section 5032 of title 18, United States Code, is amended—
104 STAT. 4832
PUBLIC LAW 101-647—NOV. 29, 1990
(1) in the second undesignated paragraph, by adding at the
end the following: "For purposes of this section, the term 'State'
includes a State of the United States, the District of Columbia,
and any commonwealth, territory, or possession of the United
States."; and
(2) in the third undesignated paragraph, by striking out "to
the authorities of a State or the District of Columbia" and
inserting in lieu thereof "to the authorities of a State".
SEC. 1206. REPEAL OF ANTIQUATED OFFENSE AND DELETION OF TABLE
REFERENCES TO REPEALED OFFENSES.
(a) Section 45 of title 18, United States Code, is repealed.
Ob) The table of sections for chapter 3 of title 18, United States
Code, is amended by striking out the items relating to sections 43,
44, and 45.
SEC. 1207. REPEAL OF OTHER OUTMODED OFFENSES AND RELATED
PROVISIONS.
(a) Section 969 of title 18, United States Code, is repealed and the
table of sections for chapter 45 of title 18, United States Code, is
amended by striking out the items relating to sections 968 and 969.
(b) Sections 2198 and 3286 of title 18, United States Code, are
repealed and the respective tables of sections in chapter 107 and 213
are amended by striking out the items relating to sections 2198 and
3286.
SEC. 1208. CONFORMING JURISDICTIONAL AMENDMENT FOR SECTION
2314 TO COVER FRAUDULENT SCHEMES INVOLVING FOREIGN
AS WELL AS INTERSTATE TRAVEL.
The second paragraph of section 2314 of title 18, United States
Code, is amended by inserting "or foreign" after "interstate".
SEC. 1209. CLARIFICATION OF ONE-YEAR PERIOD.
Section 666(d) of title 18, United States Code, is amended—
(1) by striking out "and" at the end of paragraph (2);
(2) by striking out the period at the end of paragraph (3) and
inserting in lieu thereof "; and"; and
(3) by adding a new paragraph, as follows:
"(4) the term 'in any one-year period' means a continuous
period that commences no earlier than twelve months before
the commission of the offense or that ends no later than twelve
months after the commission of the offense. Such period may
include time both before and after the commission of the
offense.".
SEC. 1210. REPEAL OF PROVISIONS JUDICIALLY DETERMINED TO BE INVALID.
(a) Section 1730 of title 18, United States Code, is amended by
striking out ", if the portrayal does not tend to discredit that
service".
OJ) Section 1714 of title 18, United States Code, is repealed and the
item for such section in the table of sections at the beginning of
chapter 83 of title 18 is repealed.
(c) Section 1718 of title 18, United States Code, is repealed and the
item for such section in the table of sections at the beginning of
chapter 83 of title 18 is likewise repealed.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4833
SEC. 1211. DELETION OF REQUIREMENT OF PERSONAL APPROVAL OF
ATTORNEY GENERAL FOR PROSECUTIONS UNDER THE
ATOMIC ENERGY ACT.
Section 221(c) of the Atomic Energy Act of 1954 (42 U.S.C. 2271(c))
is amended by striking out "That no action shall be brought under
section 222, 223, 224, 225, or 226 except by the express direction of
the Attorney General: And provided further,".
SEC. 1212. TECHNICAL CORRECTION TO PROVISION FOR COMPUTING
MARSHAL'S COMMISSION.
Section 1921(c)(1) of title 28, United States Code, is amended in the
second sentence by striking out "If the property is to be disposed of
by marshal's sale ' and inserting in lieu thereof "if the property is
not disposed of by marshal's sale'.
SEC. 1213. CORRECTION OF MISPLACED PHRASE IN 18 U.S.C. 3289.
Section 3289 of title 18, United States Code, is amended by striking out "or, in the event of an appeal, within 60 days of the date the
dismissal of the indictment or information becomes final," and
inserting that same stricken language after "within six months of
the expiration of the statute of limitations,".
SEC. 1214. MANDATORY MINIMUM SENTENCES FOR DRUG OFFENSES
INVOLVING MINORS.
DISTRIBUTION OR MANUFACTURING IN OR NEAR SCHOOLS AND COL-
LEGES.—(1) Section 405A(a) of the Controlled Substances Act (21
U.S.C. 845a(a)) as redesignated by this Act, is amended—
Ante, p. 4827.
(A) in paragraph (1) of the first sentence by striking ", or a
fine, or both,";
(B) by adding after the first sentence the following: "A fine up
to twice that authorized by section 401(b) may be imposed in
addition to any term of imprisonment authorized by this subsection."; and
(C) in the second sentence by striking beginning with "a term
o f through the end of the sentence and inserting "a person
shall be sentenced under this subsection to a term of imprisonment of not less than one year.".
(2) Section 405A(b) of the Controlled Substances Act (21 U.S.C.
845a(b)) as redesignated by this Act, is amended—
(A) in paragraph (1)(B) by striking ", or a fine up to three
times that" through "or both"; and
(B) by inserting after the first sentence the following: "A fine
up to three times that authorized by section 401(b) may be
imposed in addition to any term of imprisonment authorized by
this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a person shall be
sentenced under this subsection to a term of imprisonment of
not less than three years".
(3) Section 419(c) of the Controlled Substances Act (21 U.S.C.
845a(c)) as redesignated by this Act, is amended—
Ante, p. 4827.
(A) in the first sentence by inserting "mandatory minimum"
after "any";
(B) in the first sentence by striking "subsection (b) of; and
(C) by striking the second sentence and inserting "An individual convicted under this section shall not be eligible for parole
until the individual has served the mandatory minimum term
of imprisonment as provided by this section.".
104 STAT. 4834
PUBLIC LAW 101-647—NOV. 29, 1990
TITLE XIII—PUBLIC SAFETY OFFICERS'
DISABILITY BENEFITS
SEC. 1301. PUBLIC SAFETY OFFICERS' DISABILITY BENEFITS.
42 use 3796b.
(a) PAYMENT.—Section 1201 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796) is amended—
(1) in subsections (c) and (d) by striking "(b)" each place it
appears and inserting "(c)",
(2) by redesignating subsections (b), (c), (d), (e), (f), (g), and (h)
as subsections (c), (d), (e), (f), (g), (h), and (i), respectively,
(3) by inserting after subsection (a) the following:
"(b) In accordance with regulations issued pursuant to this part,
in any case in which the Bureau determines that a public safety
officer has become permanently and totally disabled as the direct
result of a catastrophic personal injury sustained in the line of duty,
the Bureau shall pay, to the extent that appropriations are provided, a benefit of up to $100,000, adjusted in accordance with
subsection (g), to such officer: Provided, That the total annual
benefits paid under this section may not exceed $5,000,000. For the
purposes of making these benefit payments, there are authorized to
be appropriated for each fiscal year such sums as may be necessary:
Provided further. That these benefit pajonents are subject to the
availability of appropriations and that each beneficiary's payment
shall be reduced by a proportionate share to the extent that sufficient funds are not appropriated.", and
(4) by adding at the end thereof the following:
"(j)(l) No benefit is payable under this part with respect to the
death of a public safety officer if a benefit is paid under this part
with respect to the disability of such officer.
"(2) No benefit is payable under this part with respect to the
disability of a public safety officer if a benefit is payable under this
part with respect to the death of such public safety officer.".
(b) LIMITATIONS.—Paragraphs (1), (2), (3), and (4) of section 1202 of
the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3796a) are each amended by inserting "or catastrophic injury" after
"death".
(c) DEFINITION.—Section 1204 of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3796c) is amended—
(1) by redesignating paragraphs (1) through (6) as paragraphs
(2) through (7), respectively, and
(2) by inserting before paragraph (2),. as so redesignated, the
following:
"(1) 'catastrophic injury' means consequences of an injury
that permanently prevent an individual from performing any
gainful work;"..
SEC. 1302. RESCUE SQUAD AND AMBULANCE PERSONNEL.
Section 1204 of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3796b) is amended in paragraph (2)
(relating to the definition of firefighter) by—
(1) adding "." after "ambulance crew"; and
(2) striking "who was responding to a fire, rescue or police
emergency.".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4835
SEC. 1303. EFFECTIVE DATE.
42 USC 3796
EFFECTIVE DATE.—The amendments made by this title shall take
effect upon enactment and shall not apply with respect to injuries
occurring before the effective date of such amendments.
TITLE XIV—MONEY LAUNDERING
SEC. 1401. CRIMINAL FORFEITURE IN CASES INVOLVING CMIR VIOLATIONS.
Section 982(a) of title 18, United States Code, is amended by
inserting ", 5316" after "5313(a)".
SEC. 1402. DEFINITION OF "FINANCIAL TRANSACTION".
Section 1956(c)(4) of title 18, United States Code, is amended by—
(1) inserting "(A)" before "a transaction" the first place it
appears and inserting "(B)" before "a transaction" the second
place it appears; and
(2) inserting "(i)" before "involving" the first place it appears
and inserting "(ii)" before "involving" the second place it
appears.
SEC. 1403. MONEY LAUNDERING FORFEITURES.
Section 982(b)(2) of title 18, United States Code, is amended by
inserting the following before the period: "unless the defendant, in
committing the offense or offenses giving rise to the forfeiture,
conducted three or more separate transactions involving a total of
$100,000 or more in any twelve month period".
<
SEC. 1404. ENVIRONMENTAL CRIMES AS MONEY LAUNDERING PREDICATES.
(a) Section 1956(cX7) of title 18, United States Code, is amended
by(1) striking "or" before "(D)"; and
(2) inserting "; or" and the following before the period:
"ENVIRONMENTAL CRIMES
"(E) a felony violation of the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), the Ocean Dumping Act
(33 U.S.C. 1401 et seq.), the Act to Prevent Pollution from
Ships (33 U.S.C. 1901 et seq.), the Safe Drinking Water Act
(42 U.S.C. 300f et seq.), or the Resources C!onservation and
Recovery Act (42 U.S.C. 6901 et seq.)".
Ot>) Section 1956(e) of title 18, United States Code, is amended by
adding at the end the following sentence: "Violations of this section
involving offenses described in paragraph (cX'7)(E) may be investigated by such components of the Department of Justice £is the
Attorney General may direct, and the National Enforcement Investigations Center of the Evironmental Protection Agency.
'
,
,4 -
104 STAT. 4836
PUBLIC LAW 101-647—NOV. 29, 1990
TITLE XV—DRUG-FREE SCHOOL ZONES
20 u s e 3192
note.
SEC. 1501. DEVELOPMENT OF MODEL PROGRAM OF STRATEGIES AND
TACTICS.
(a) I N GENERAL.—The Attorney General shall develop a model
program of strategies and tactics for establishing and maintaining
drug-free school zones.
(b) ASSISTANCE TO STATE AND LOCAL LAW ENFORCEMENT AGEN-
CIES.—The program required by subsection (a) shall be designed to
provide State and local law enforcement agencies with materials,
training, and other assistance to establish, enforce, and evaluate the
effectiveness of drug-free school zone enforcement efforts.
(c) PROGRAM CRITERIA.—The program required by subsection (a)
shall—
(1) define the criminal justice community's role in creating
and maintaining drug-free school zones;
(2) develop a framework for law enforcement collaboration
with the school system and community resource network;
(3) identify a core law enforcement drug demand reduction
program plan;
(4) provide materials and technical assistance for demarcating
and establishing drug-free school zones;
(5) create a coordinated publicity plan with the school system
and community resource network;
(6) identify and develop model drug-free school zone law
enforcement strategies and tactics;
(7) develop a model coordinated strategy for prosecuting violations within the zones;
(8) create a uniform framework for monitoring and evaluating
the effectiveness of drug-free school zones to determine which
strategies and tactics succeed under various conditions and
constraints; and
(9) provide support materials and exemplary program
overviews.
(d) PREFERRED APPROACHES.—In establishing the program
required by subsection (a), the Attorney General shall prefer approaches to drug-free school zone enforcement that unite the criminal justice community, the education community, and the network
of community resources in meaningful collaboration to reduce the
availability of and demand for drugs in a drug-free school zone.
(e) REPORT.—At the conclusion of the program required by subsection (a), the Attorney General shall submit a report to Congress
describing the strategies and tactics that are found to be successful
in establishing, enforcing, and maintaining drug-free school zones.
(f) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be
appropriated to carry out this section $1,500,000 for fiscal year 1991.
SEC. 1502. AMENDMENT TO THE CONTROLLED SUBSTANCES ACT.
Ante, p. 4827.
V
Section 405A of the Controlled Substances Act (21 U.S.C. 845a) as
redesignated by this Act, is amended—
(1) in subsection (a) by—
"
(A) striking "playground,"; and
(B) inserting "or a playground," after "university,"; and
(2) in subsection Qo) by—
(A) striking "playground,"; and
(B) inserting or a playground," after "university,".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4837
SEC. 1503. STRENGTHENING OF DRUG-FREE SCHOOL ZONES.
(a) GENERAL AUTHORITY.—Paragraph (8) of section 5122(a) of the
Drug-Free Schools and Communities Act of 1986 (20 U.S.C. 3192(a))
is amended by striking the period and inserting the following: ",
which shall include—
"(A) the determination, with the assistance of municipal
authorities and local law enforcement agencies, as appropriate, of the geographical boundaries of schools within the
State and the posting of signs identifying school properties
as drug-free school zones;
f
"(B) drug-abuse education and prevention programs and
enforcement policies designed to eliminate the illicit use of
alcohol and drugs in such zones;
"(C) assisting teachers, administrators, athletic directors,
and other school personnel in cooperating fully with law
enforcement officials to punish violations of laws relating to
illegal drugs;
"(D) informing the community—
"(i) of the content and intent of laws relating to
school safety and laws relating to illegal drugs as they
t
affect schoolchildren; gind
"(ii) of the perimeters of the drug-free school zones;
"(E) emplo)dng the services of the local or substate regional advisory council on drug abuse education and
prevention established or designated by the local application submitted under section 5126(a) as a resource for
advice and support with respect to implementation of such
zones; and
"(F) communication to students, teachers, athletic directors, £uid other school personnel by administrators that
activities that are illicit and harmful to the health and wellbeing of the students will not be tolerated within schools
and their surrounding environments.".
(b) CONFORMING AMENDMENT.—Subsection (a) of section 5137 of
the Drug-Free Schools and Communities Act of 1986 (20 U.S.C. 3217)
is amended by inserting before the period at the end of the first
sentence the following: BS, described in section 5122(aX8)".
SEC. 1504. DRUG ABUSE RESISTANCE EDUCATION AND REPLICATION OF
SUCCESSFUL DRUG EDUCATION PROGRAMS.
Section 5122 of the Drug-Free Schools and Communities Act of
1986 (20 U.S.C. 3192) is amended—
(1) in subsection (a), by striking "50 percent" and inserting
"42.5 percent";
(2) in paragraph (1) of subsection (b), by striking "50 percent"
and inserting "42.5 percent"; and
(3) by adding at the end the following:
"(c) DRUG ABUSE RESISTANCE EDUCATION PROGRAMS.—(1) Not less
than 10 percent of the funds available for each fiscal year under
section 5121(a) to the chief executive officer of a State shall be used
for grants to local educational agencies in consortium with entities
which have experience in assisting school districts to provide
instruction to students grades kindergarten through 6 to recognize
and resist pressures that influence such students to use controlled
substances, as defined in Schedules I and II of section 202 of the
Controlled Substances Act the possession or distribution of which is
unlawful under such Act, or beverage alcohol, such as Project Drug
^
v
^
-
'
104 STAT. 4838
PUBLIC LAW 101-647—NOV. 29, 1990
Abuse Resistance Education, that meet the requirements of paragraph (2).
"(2) A local educational agency in consortium with an entity shall
not be eligible for a grant under paragraph (1) unless such local
educational agency in consortium with an entity will use assistance
provided under such grant to provide or arrange for the provisions
of services that shall include—
"(A) drug abuse resistance education instruction for students
grades kindergarten through 6 that is designed to teach students to recognize and resist pressures to experiment that
influence such children to use controlled substances, as defined
under paragraph (1), or beverage alcohol, including instruction
in the following areas—
"(i) drug use and misuse;
"(ii) understanding the consequences of drug abuse;
"(iii) resistance techniques;
"(iv) assertive response styles;
"(v) managing stress without taking drugs;
"(vi) decisionmaking and risk taking;
"(vii) media influences on drug use;
"(viii) positive alternatives to drug abuse behavior;
"(ix) interpersonal and communication skills;
"(x) self-esteem building activities; and
"(xi) resistance to peer pressure and gang pressure;
"(B) provisions for parental involvement;
"(C) classroom instruction by uniformed law enforcement
officials;
"(D) the use of positive student leaders to influence younger
students not to use drugs;
"(E) an emphasis on activity-oriented techniques designed to
encourage student-generated responses to problem-solving
situations; and
"(F) the awarding of a certificate of achievement to each
student who participates in a drug abuse resistance education
program.
"(3) Amounts received under paragraph (1) by any local educational agency or entity shall be used only to supplement, not to
supplant, the amount of Federal, State, and local funds expended for
the support of projects of the t3T)e described in paragraph (2).
"(d) REPUCATION OF SUCCESSFUL DRUG EDUCATION PROGRAMS.—
-^
Not less than 5 percent of the funds available for each fiscal year
under section 5121(a) to the chief executive officer of a State shall be
used for grants to local educational agencies or consortia of local
educational sigencies and private nonprofit entities to provide drug
abuse education, prevention, or counseling services to students in
kindergarten through grade 12.
"(e) EuGiBiUTY.—A local educational agency or consortium described in subsection (a) shall not be eligible for a grant under this
section unless such agency or consortium agrees—
"(1) to use assistance provided under such grant to provide or
arrange for the provision of programs offering drug abuse education, prevention, or counseling to students of compulsory
school age, including—
"(A) programs to provide drug abuse counseling in the
schools by trained personnel;
"(B) programs that stress the use of peers to combat
student abuse of drugs and alcohol;
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4839
"(C) programs that stress parental and community
involvement in combating student abuse of drugs and alcohol; and
"(D) other appropriate programs;
"(2) that programs provided with assistance under the grant
shall be designed to prevent or eliminate student abuse of drugs
or alcohol;
"(3) to use assistance provided under the grant to expand or
replicate a program that has a demonstrated record of success
at either the State or local level in preventing or eliminating
student abuse of drugs or alcohol; and
"(4) to ensure that the program to be expanded or replicated
is appropriate for the students to be served, based on an assessment of their most important needs.
"(f) APPUCATION.—A local educational agency or consortium described in subsection (a) that desires to receive a grant under this
section shall submit an application to the chief executive office of
the State at such time, in such manner, and containing or accompanied by such information and assurances as such officer may
reasonably require. Each such application shall contain—
"(1) a discussion of why the particular program to be assisted
under the grant is appropriate for and responds to the particular needs of the students to be served;
"(2) a complete description of the success of the program to be
assisted under the grant in reducing or eliminating drug or
alcohol abuse among students of compulsory school age;
"(3) an assurance that the consortium concerned will provide
assistance, in cash or in kind, for the program assisted under
the grant in an amount equal to not less than 10 percent of the
amount provided under the grant; and
"(4) an assurance that funds received under the grant shall be
used to supplement, not supplant, the amount of other Federal,
State, and local funds expended for support of programs of the
type described in subsection (b).".
SEC. 1505. SUPPORT OF SCHOOL-BASED RECREATIONAL ACTIVITIES.
Section 5125(a) of the Drug-Free Schools and Communities Act of
1986 (20 U.S.C. 3195(a)) is amended—
(1) by redesignating paragraph (14) as paragraph (16);
(2) by redesignating paragraph (13) the second place it appears as paragraph (14);
(3) by striking "and" at the end of paragraph (14) (as redesignated by paragraph (2) of this section); and
(4) by inserting after paragraph (14) the following:
"(15) in the case of a local educational agency that determines
that it provides sufficient drug and alcohol abuse education
during regular school hours, after-school programs that provide
drug and alcohol abuse education for school-aged children,
including children who are unsupervised after school, and that
may include school-sponsored sports, recreational, educational,
or instructional activities (local educational agency may make
grants or contracts with nonprofit community-based organizations that offer sports, recreation, education, or child care programs); and".
9-194 O - 91 - 15 : QL 3 Part 6
104 STAT. 4840
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 1506. SUPPORT OF SCHOOL-BASED DRUG ABUSE COUNSELING PROGRAMS.
(a) GENERAL AUTHORITY.—Part C of the Drug-Free Schools and
Communities Act of 1986 (20 U.S.C. 3201) is amended to read as
follows:
"PART C—TRAINING OF TEACHERS,
COUNSELORS, AND SCHOOL PERSONNEL
20 use 3201.
20 use 3202.
"SEC. 5128. GRANTS FOR TRAINING OF TEACHERS.
"(a) I N GENERAL.—From amounts appropriated pursuant to the
authorization contained in section 5111(aX2), the Secretary shall
make grants to State educational agencies, local educationed agencies, and institutions of higher education for teachers training programs in accordance with this section.
"(b) USE OF FUNDS.—Amounts made available under grants under
this section shall be used to establish, expand, or enhance programs
and activities for the training of elementary and secondary school
teachers and administrators, and other elementary and secondary
school personnel concerning drug and alcohol abuse education and
prevention.
"SEC. 5129. GRANTS FOR TRAINING OF COUNSELORS.
"(a) IN GENERAL.—
20 use 3203.
"(1) From amounts appropriated pursuant to the authorization contained in section 5111(aX2), the Secretary shall give
priority to making a substantial number of grants to qualified
State educational agencies, local educational agencies, and
institutions of higher education for programs to train counselors, social workers, psychologists, or nurses in accordance
with this section.
"(2) The Secretary may also make a grant under this part to
any private nonprofit agency that has an agreement with a
local educational agency to provide training in drug abuse
counseling for individuals who will provide such counseling in
the schools of such local educational agency.
"(b) USE OF FUNDS.—Amounts made available under grants under
this section shall be used to establish, expand, or enhance programs
and activities for the training of counselors, social workers,
psychologists, or nurses who are providing or will provide drug
abuse prevention, counseling, or referral services in elementary and
secondary schools.
"SEC. 5130. APPLICATIONS.
"(a) IN GENERAL.—Any State or local educational agency, institution of higher education, or consortium of such agencies or institutions that desires to receive a grant under this part in any fiscal
year submit an application to the Secretary at such time and in such
manner as the Secretary may prescribe.
"(b) CoNTENTS.^Each application submitted under this section
shall—
"(1) set forth the activities and programs to be carried out
with funds paid under this part;
"(2) contain an estimate of the cost for the establishment and
operation to such activities and programs;
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4841
"(3) provide £issurances that the Federal funds made available
under this section shall be used to supplement, and, to the
extent practical, to increase the level of funds that would, in the
absence of such Federal funds, be made available by the applicant for the purpose described in this part, and in no case to
supplant such funds;
"(4) provide assurances of compliance with this part;
"(5) in the case of a grant under section 5129, contain a
discussion of how the training to be Eissisted under the grant
will assist the applicant to—
"(A) increase the number of school personnel who are
trained to provide drug abuse counseling services; and
"(B) improve the quality of drug abuse counseling services offered by the applicant or the local educational agency
concerned; and
"(6) include such other information and assurances as the
Secretary reasonably determines to be necessary.",
(b) AUTHORIZATION OF APPROPRIATIONS.—Subparagraph (A) of section 5111(aX2) of the Drug-Free Schools and Communities Act of
1986 (20 U.S.C. 3181(a)(2)) is amended by striking "$35,000,000" and
inserting "$50,000,000".
SEC. 1507. ADDITIONAL REQUIREMENTS FOR LOCAL APPLICATIONS.
Section 5126(aX2) of the Drug-Free Schools and Communities Act
of 1986 (20 U.S.C. 3196(a)(2)) is amended—
(1) by redesignating subparagraphs (N) and (O) as subparagraphs (P) and (Q), respectively; and
(2) by inserting after subparagraph (M) the following:
"(N) describe how, to the extent practicable, assistance provided under the grant will be used to provide drug abuse
counseling services to children of all ages, including students in
the elementary schools;
"(O) describe how, to the extent practicable, activities assisted
under the grant will be coordinated with local law enforcement
agencies in order to improve security on school grounds and in
the surrounding community and to educate students about—
"(i) the dangers of drug use and drug-related violence;
"(ii) the penalties for possession of or trafficking in illegal
drugs;
"(iii) techniques for resisting drug abuse; and
"(iv) the importance of cooperating with law enforcement
officials in eliminating drug abuse and identifying individuals who supply drugs to students;".
SEC. 1508. IDENTIFICATION OF FEDERALLY ASSISTED PROGRAMS.
Part G of the Drug-Free Schools and (Hommunities Act of 1986 (20
U.S.C. 3231 et seq.) is amended by adding at the end the following:
"SEC. 5193. IDENTIFICATION OF FEDERALLY ASSISTED PROGRAMS.
"Every local recipient of funds under this title shall, in any
publication or public announcement, clearly identify any program
assisted under this title as a Federal program funded under the
Drug-Free Schools and Communities Act of 1986.".
20 USC 3233.
104 STAT. 4842
PUBLIC LAW 101-647—NOV. 29,1990
SEC. 1509. TECHNICAL AMENDMENTS.
(a) AUTHORIZATION OF APPROPRIATIONS.—Subsection (a) of section
20 use 3181.
2 of the Drug-Free Schools and Communities Act Amendments of
1989 is amended—
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by s t r i ^ n g paragraph (1) and inserting the following:
"(1) in p a r s ^ a p h (1), by inserting after "part C" the following: "and section 5136"; and
^'(2) in paragraph (2)—
"(A) in subparagraph (A), by striking 'and $20,000,000'
and all that follows and inserting the following: '$20,000,000
for the fiscal year 1990, and $35,000,000 for each of the
fiscal years 1991,1992, and 1993."; and
"(B) in subparagraph (B), by striking '$230,000,000' and
inserting '$215,000,000'; and".
(b) RESERVATIONS AND STATE ALLOTMENTS.—Subsection (a) of section 5112 of the Drug-Free Schools and Communities Act of 1986 (20
U.S.C. 3182) is amended in the matter preceding par£igraph (1) by
inserting ", from" after "subsection (c)".
(c) RESPONSIBILITIES OP STATE EDUCATIONAL AGENCIES.—
(1) (CORRECTION OF PUNCTUATION.—Section 5124(aX4XB) of the
Drug-Free Schools and Communities Act of 1986 (20 U.S.C.
3194(aX4XB)) is amended by striking the comma at the end of
clause (ii) and inserting a period.
(2) CORRECTION OF REFERENCE.—Section 7(2) of the Drug-Free
20 use 3194.
Schools and (Dommunities Act Amendments of 1989 is amended
in subparagraph (A) by inserting "the first place it appears"
before "the following".
(d) FEDERAL ACTIYITIES.—Section 5132(b) of the Drug-Free Schools
and Communities Act of 1986 (20 U.S.C. 3212) is amended by striking
"and" at the end of paragraph (5).
(e) EMERGENCY (JRANTS.—The heading for section 5136 of the
Drug-Free Schools and Communities Act of 1986 (20 U.S.C. 3216) is
amended to read as follows:
"SEC. 5136. EMERGENCY GRANTS.".
(f) CERTIFICATION OF DRUG AND ALCOHOL ABUSE PREVENTION PRO-
20 use 3224a.
20 use 3196.
GRAMS.—Section 22(b) of the Drug-Free Schools and Clommunities
Act Amendments of 1989 is £miended—
(1) in paragraph (1), by striking "Part D" and inserting "Part
E";and
(2) in paragraph (2), by striking "5126(e)" and inserting
"5126(a)".
(g) DISSEMINATION OF INFORMATION AND TECHNICAL ASSISTANCE.—
20 use 3224b.
Section 18 of the Drug-Free Schools and (Dommunities Act Amendments of 1989 is amended by striking "Part D" and inserting
"PartE".
TITLE XVI—MISCELLANEOUS
SEC. 1601. ENLARGEMENT OF FORFEITURE AWARD AUTHORITY.
Section 524(cXlXC) of title 28, United States Code, is amended by
striking out "the pajmient of awards for information or assistance
leading to civil or criminal forfeiture under the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 800 et
seq.) or a criminal forfeiture under the Racketeer Infiuenced and
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4843
Corrupt Organizations statute (18 U.S.C. 1961 et seq.)" and inserting
in lieu thereof "the pajnnent of awards for information or assistance
leading to a civil or criminal forfeiture under any law enforced or
administered by the Department of Justice.".
SEC. 1602. AMENDMENT TO CLARIFY APPLICATION OF SENTENCING
REFORM ACT TO ASSIMILATIVE CRIMES.
Section 3551(a) of title 18, United States Code, is amended by
inserting "including sections 13 and 1153 of this title," after "any
Federal statute,".
SEC. 1603. CONFORMING AMENDMENTS TO SUBSTITUTE A REFERENCE TO
THE FDIC FOR THE NOW ABOLISHED FSLIC IN TWO BANKING
OFFENSES.
Sections 657 and 1006 of title 18, United States Code, are each
amended by striking out "the Federal Savings and Loan Insurance
Corporation" and inserting in lieu thereof "the Federal Deposit
Insurance Corporation".
SEC. 1604. CLARIFICATION OF APPLICABILITY OF 18 U.S.C. 1952 TO ALL
MAILINGS IN FURTHERANCE OF UNLAWFUL ACTIVITY.
Section 1952(a) of title 18, United States Code, is amended—
(1) by inserting "the mail or" after "uses"; and
(2) by striking out "including the mail,".
SEC. 1605. ARREST OF FUGITIVE ABOUT TO ENTER UNITED STATES.
Section 3184 of title 18, United States Code, is amended by inserting "or, if there is reason to believe the person will shortly enter the
United States" after "if the whereabouts within the United States of
the person charged are not known".
SEC. 1606. CORRECTION TO REFERENCE TO NONEXISTENT AGENCIES IN
18 U.S.C. 1114.
Section 1114 of title 18, United States Code, is amended—
(1) by striking "secret service" and inserting "Secret Service";
(2) by striking "any officer or employee of the Department of
Health, Education, and Welfare," and inserting "any officer or
employee of the Department of Education, the Department of
Health and Human Services,"; and
(3) by striking "the Federal Savings and Loan Insurance
Corporation,".
TITLE XVII—GENERAL PROVISIONS
SEC. 1701. SUPPORT OF FEDERAL PRISONERS IN NON-FEDERAL INSTITUTIONS.
Section 4013 of title 18, United States Code, is amended by adding
at the end thereof the following new subsection:
"(b)(1) The United States Marshals Service may designate districts
that need additional support from private detention entities under
subsection (a)(3) based on—
"(A) the number of Federal detainees in the district; and
"(B) the availability of appropriate Federal, State, and local
government detention facilities.
"(2) In order to be eligible for a contract for the housing, care, and
security of persons held in custody of the United States Marshals
104 STAT. 4844
PUBLIC LAW 101-647—NOV. 29, 1990
pursuant to Federal law and funding under subsection (a)(3), a
private entity shall—
"(A) be located in a district that has been designated as
needing additional Federal detention facilities pursuant to paragraph (1);
"(B) meet the standards of the American Correctional
Association;
"(C) comply with all applicable State and local laws and
regulations;
'(D) have approved fire, security, escape, and riot plans; and
"(E) comply with any other regulations that the Marshals
Service deems appropriate.
"(3) The United States Marshals Service shall provide an opportunity for public comment on a contract under subsection (aX3).".
Gun-Free School
SEC. 1702. GUN-FREE SCHOOL ZONES ACT OF 1990.
1990.
(a) SHORT TITLE.—This section may be cited as the "Gun-Free
18 use 921 note. School Zones Act of 1990".
(b) PROHIBITIONS AGAINST POSSESSION OR DISCHARGE OF A FIREARM
IN A SCHOOL Z O N E . —
(1) I N GENERAL.—Section 922 of title 18, United States Code, is
amended by adding at the end the following new subsection:
"(qXlXA) It shall be unlawful for any individual knowingly to
possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone.
"(B) Subparagraph (A) shall not apply to the possession of a
firearm—
"(i) on private property not part of school grounds;
"(ii) if the individual possessing the firearm is licensed to do
so by the State in which the school zone is located or a political
subdivision of the State, and the law of the State or political
subdivision requires that, before an individual obtain such a
license, the law enforcement authorities of the State or political
subdivision verify that the individual is qualified under law to
receive the license;
"(iii) which is—
"(I) not loaded; and
"(II) in a locked container, or a locked firearms rack
which is on a motor vehicle;
"(iv) by an individual for use in a program approved by a
school in the school zone;
"(v) by an individual in accordance with a contract entered
into between a school in the school zone and the individual or
an employer of the individual;
"(vi) by a law enforcement officer acting in his or her official
capacity; or
(vii) that is unloaded and is possessed by an individual while
traversing school premises for the purpose of gaining access to
public or private lands open to hunting, if the entry on school
premises is authorized by school authorities.
"(2XA) Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the
safety of another, to discharge or attempt to discharge a firearm at a
place that the person knows is a school zone.
"(B) Subparagraph (A) shall not apply to the discharge of a
firearm—
"(i) on private property not part of school grounds;
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4845
"(ii) as part of a program approved by a school in the school
zone, by an individual who is participating in the program;
"(iii) by an individual in accordance with a contract entered
into between a school in a school zone and the individual or an
employer of the individual; or
"(iv) by a law enforcement officer acting in his or her official
capacity.
"(3) Nothing in this subsection shall be construed as preempting
or preventing a State or local government from enacting a statute
establishing gun-free school zones as provided in this subsection.".
(2) DEFINITIONS.—Section 921(a) of such title is amended by
adding at the end thereof the following new paragraphs:
"(25) The term 'school zone' means—
"(A) in, or on the grounds of, a public, parochial or
private school; or
"(B) within a distance of 1,000 feet from the grounds of a
public, parochial or private school.
"(26) The term 'school' means a school which provides elementary or secondary education, as determined under State
law.
"(27) The term 'motor vehicle' has the meaning given such
term in section 10102 of title 49, United States Code.".
(3) PENALTY.—Section 924(a) of such title is amended by
adding at the end thereof the following new paragraph:
"(4) Whoever violates section 922(q) shall be fined not more than
$5,000, imprisoned for not more than 5 years, or both. Notwithstanding any other provision of law, the term of imprisonment imposed
under this paragraph shall not run concurrently with any other
term of imprisonment imposed under any other provision of law.
Except for the authorization of a term of imprisonment of not more
than 5 years made in this paragraph, for the purpose of any other
law a violation of section 922(q) shall be deemed to be a misdemeanor.".
(4) EFFECTIVE DATE.—The amendments made by this section 18 USC 921 note,
shall apply to conduct engaged in after the end of the 60-day
period beginning on the date of the enactment of this Act.
(5) GUN-FREE ZONE SIGNS.—Federal, State, and local authori- 18 USC 922 note,
ties are encouraged to cause signs to be posted around school
zones giving warning of prohibition of the possession of firearms
in a school zone.
SEC. 1703. REPORT ON MANDATORY MINIMUM SENTENCING PROVISIONS.
(a) REPORT.—Not less than six months after the date of enactment
of this Act, the United States Sentencing Commission shall transmit
to the respective Judiciary Committees of the Senate and House of
Representatives a report on mandatory minimum sentencing provisions in Federal law.
(b) COMPONENTS OF REPORT.—The report mandated by subsection
(a) shall include:
(1) a compilation of all mandatory minimum sentencing provisions in Federal law;
(2) an assessment of the effect of mandatory minimum
sentencing provisions on the goal of eliminating unwarranted
sentencing disparity;
(3) a projection of the impact of mandatory minimum sentencing provisions on the Federal prison population;
104 STAT. 4846
PUBLIC LAW 101-647—NOV. 29, 1990
(4) an assessment of the compatibility of mandatory minimum
sentencing provisions and the sentencing guidelines system
established by the Sentencing Reform Act of 1984;
(5) a description of the interaction between mandatory minimum sentencing provisions and plea agreements;
(6) a detailed empirical research study of the effect of msmdatory minimum penalties in the Federal system;
(7) a discussion of mechanisms other than mandatory minimum sentencing laws by which Congress can express itself with
respect to sentencing policy, such as:
(A) specific statutory instructions to the Sentencing
Commission;
(B) general statutory instructions to the Sentencing
Commission;
(C) increasing or decreasing the maximum sentence authorized for particular crimes;
(D) Sense of Congress resolutions; and
(8) any other information that the Commission would contribute to a thorough assessment of mandatory minimum sentencing provisions.
(c) AMENDMENT OF REPORT.—The Commission may amend or
update the report mandated by subsection (a) at any time after its
transmittal.
45 u s e 446.
SEC. 1704. RAILROAD POLICE OFFICERS.
A railroad police officer who is employed by a rail carrier and
certified or commissioned as a police officer under the laws of any
State shall, in accordance with regulations issued by the Secretary
of Transportation, be authorized to enforce the laws of any jurisdiction in which the rail carrier owns property, for the purpose of
protecting—
(1) the employees, passengers, or patrons of the rail carrier;
(2) the property, equipment, and facilities owned, leased, operated, or maintained by the rail carrier;
(3) property moving in interstate or foreign commerce in the
possession of the rail carrier; and
(4) personnel, equipment, and materials moving via railroad
that are vital to the national defense, to the extent of the
authority of a police officer properly certified or commissioned
under the laws of that jurisdiction.
TITLE XVIII—CORRECTIONAL OPTIONS
INCENTIVES AMENDMENTS
SEC. 1801. CORRECTIONAL OPTIONS GRANTS.
(a) AUTHORITY TO MAKE GRANTS.—Subpart 2 of part E of title I of
the Omnibus Crime and Safe Streets Act of 1968 (42 U.S.C. 3760 et
seq.) is amended—
(1) by inserting after the heading relating to subpart 2 the
following:
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4847
•CHAPTER A—GRANTS TO PUBLIC AND PRIVATE
ENTITIES".
(2) in section 510 by striking "subpart" each place it appears
and inserting "chapter",
(3) in section 511—
(A) in the heading by striking "DISCRETIONARY", and
(B) by inserting "(other than chapter B of this subpart)"
after "this part",
(4) in section 513—
(A) in subsection (aXl) by inserting "or 515" after "511",
and
(B) in subsection 0)) by inserting "applicable" after "all
the" each place it appears,
(5) in section 514(2) by striking "public agency or private
nonprofit organization within which the program or project has
been conducted" and inserting "applicant that conducts such
program or project",
(6) by redesignating sections 513 and 514 as sections 517 and
518, respectively, and
(7) by inserting after section 512 the following:
42 USC 3760.
42 USC 3761.
42 USC 3763.
42 USC 3764.
"CHAPTER B—GRANTS TO PUBLIC AGENCIES
CORRECTIONAL OPTIONS GRANTS
"SEC. 515. (a) The Director, in consultation with the Director of 42 USC 3762a.
the National Institute of Corrections, may make—
"(1) 4 grants in each fiscal year, in various geographical areas
throughout the United States, to public agencies for correctional options (including the cost of construction) that provide
alternatives to traditional modes of incarceration and offender
release programs—
"(A) to provide more appropriate intervention for youth- Juvenile
ful offenders who are not career criminals, but who, with- delinquency,
out such intervention, are likely to become career criminals
or more serious offenders;
"(B) to provide a degree of security and discipline appropriate for the offender involved;
"(C) to provide diagnosis, and treatment and services
(including counseling, substance abuse treatment, education, job training and placement assistance while under
correctional supervision, and linkage to similar outside
services), to increase the success rate of offenders who
decide to pursue a course of lawful and productive conduct
after release from legal restraint;
"(D) to reduce criminal recidivism by offenders who receive punishment through such alternatives;
"(E) to reduce the cost of correctional services and facilities by reducing criminal recidivism; and
"(F) to provide work that promotes development of industrial and service skills in connection with a correctional
option;
"(2) grants to private nonprofit organizations—
"(A) for any of the purposes specified in subparagraphs
(A) through (F) of paragraph (1);
104 STAT. 4848
PUBLIC LAW 101-647—NOV. 29, 1990
"(B) to undertake educationsd and training pr(^rams for
criminal justice personnel;
"(C) to provide technical assistance to States and local
units of government; and
"(D) to carry out demonstration projects which, in view of
previous research or experience, are likely to be a success in
more than one jurisdiction;
in connection with a correctional option (excluding the cost of
construction); and
"(3) grants to public agencies to establish, operate, and support boot camp prisons.
"(b) The selection of applicants to receive grants under subsection
(aXl) and (2) shall be based on their potential for developing or
testing various innovative alternatives to traditional modes of incarceration and offender release programs. In selecting the applicants
to receive grants under subsection (aX3), the Director shall—
"(1) consider the overall quality of an applicant's shock incarceration program, including the existence of substance abuse
treatment, drug testing, counseling literacy education, vocational education, and job training programs during incarceration or after release; and
"(2) give priority to States that clearly demonstrate that the
capacity of their correctional facilities is inadequate to
accommodate the number of individuals who are convicted of
offenses punishable by a term of imprisonment exceeding 1
year.
"(c) The Director shall consult with the Commission on Alternative Utilization of Military Facilities created by Public Law
100-456 in order to identify military facilities that may be used as
sites for correctional programs receiving assistance under this
chapter.
"ALLOCATION OF FUNDS; ADMINISTRATIVE PROVISIONS
42 use 3762b.
Regulations.
Reports.
"SEC. 516. (a) Of the total amount appropriated for this chapter in
any fiscal year, 80 percent shall be used to make grants under
section 515(aXl), 10 percent for section 515(aX2), and 10 percent for
section 515(aX3).
"(b) A grant made under section 515(aXl) or (aX3) may be made for
an amount up to 75 percent of the cost of the correctional option
contained in the approved application.
"(c) The Director shall—
"(1) not later than 90 days after funds are first appropriated
to carry out this chapter, issue rules to carry out this chapter;
and
"(2) not later than 180 days after funds are first appropriated
to carnr out this chapter—
(A) submit to the Speaker of the House of Representatives and the President pro tempore of the Senate, a report
describing such rules; and
"(B) request applications for grants under this chapter.
"CHAPTER C—GENERAL REQUIREMENTS".
(b) EVALUATION.—Section 520(aX2) of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3766(aX2)) is amended
by striking "section 511" and inserting "sections 511 and 515".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4849
(c) DEFINITION.—Section 901(a) of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3791(a)) is amended—
(1) in paragraph (20) by striking "and" at the end,
(2) in paragraph (21) by striking the period at the end, and
(3) by adding at the end the following:
"(22) 'correctional option' includes community-based incarceration, weekend incarceration, boot camp prison, electronic
monitoring of offenders, intensive probation, and any other
innovative punishment designed to have the greatest impact on
offenders who can be punished more effectively in an environment other than a traditional correctional facility; and
"(23) 'boot camp prison' includes a correctional facility in
which inmates are required to participate in a highly
regimented program that provides strict discipline, physical
training, and hard labor, together with extensive rehabilitative
activities and with educational, job training, and drug treatment support.".
(d) TECHNICAL AMENDMENTS.—The table of contents of title I of
the Omnibus Crime and Safe Streets Act of 1968 (42 U.S.C. 3711 et
seq.) is amended—
(1) by inserting after the heading relating to subpart 2 of part
E the following:
"Chapter A—Grants to Public and Private Entities",
(2) in the item relating to section 511 by striking "discretionary", and
(3) by striking the items relating to sections 513 and 514, and
inserting the following:
"CHAPTER B—GRANTS TO PUBUC AGENCIES
"Sec. 515. Correctional options grants.
"Sec. 516. Allocation of funds; administrative provisions.
<
"CHAPTER C—GENERAL REQUIREMENTS
"Sec. 517. Application requirements.
"Sec. 518. Period of award.".
(e) CONFORMING AMENDMENTS.—Section 1001(a) of title I of the
Omnibus Crime and Safe Streets Act of 1968 (42 U.S.C. 3793(a)) is
amended by inserting after paragraph (5) the following:
"(6) There are authorized to be appropriated $220,000,000 for fiscal Appropriation
year 1991 and such sums as may be necessary for fiscal year 1992 to authorization,
carry out chapter B of subpart 2 of part E of this title.".
SEC. 1802. CONVEYANCE OF PROPERTY AND FACILITIES AT MILITARY
INSTALLATIONS.
(a) I N GENERAL.—Chapter 159 of title 10, United States Code, is
amended by adding at the end the following:
"§ 2693. Conveyance of certain property
"(a) Except as provided in subsection (b), before any real property
or facility of the United States that is under the jurisdiction of any
department, agency, or instrumentality of the Department of Defense is determined to be excess to the needs of such department,
agency, or instrumentality, the Secretary shall—
"(1) provide adequate notification of the availability of such
real property or facility within the Department of Defense;
104 STAT. 4850
PUBLIC LAW 101-647—NOV. 29, 1990
"(2) if the real property or facility remains available after
such notification, notify the Attorney Greneral of its availability;
and
"(3) if the Attorney Greneral certifies that a determination has
been made by the Director of the Bureau of Justice Assistance
within the Department of Justice to utilize the real property or
facility under the correctional options program carried out
under section 515 of title I of the Omnibus Crime Control and
Safe Streets Act of 1968, convey the real property or facility,
without reimbursement, to the public agencies referred to in
section 515(aXl) or 515(aX3) of title I of such Act for such
utilization.
"(b) The provisions of this section shall not apply—
"(1) to real property and facilities to which title II of the
Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100-526) is applicable; and
' (2) during any portion of a fiscal year after four conveyances
have been made under this section in such fiscal year.",
(b) CLERICAL AMENDMENT,—The table of sections at the beginning
of such chapter is amended by adding at the end the following:
"2693. Conveyance of certain property.".
SEC. 1803. IMPROVEMENT OF CRIMINAL JUSTICE RECORDS.
(a) AMENDMENT.—Subpart 1 of part E of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is
amended by adding at the end the following:
"IMPROVEMENT OF CRIMINAL JUSTICE RECORDS
42 use 3759.
Reports.
"SEC. 509. (a) Subject to subsection (d), each State which receives
funds under section 506 in a fiscal year shall allocate not less than 5
percent of such funds to the improvement of criminal justice
records.
"(b) The improvement referred to in subsection (a) shall include—
"(1) the completion of criminal histories to include the final
dispositions of all arrests for felony offenses;
(2) the full automation of all criminal justice histories and
fingerprint records; and
(S) the frequency and quality of criminal history reports to
the Federal Bureau of Investigation.
"(c) The Director, in consultation with the Director of the Bureau
of Justice Statistics, shall establish guidelines for the fulfillment of
the requirements specified in subsections (a) and (b) of this section.
"(d) In accordance with such guidelines as the Director shall issue
and on the request of a State, the Director may—
"(1) waive compliance with subsection (a) by such State; or
"(2) authorize such State to reduce the minimum amount
such State is required to allocate under subsection (a);
if the Director, in the discretion of the Director, finds that the
quality of the State's criminal justice records does not warrant
expending the amount allocated under subsection (a).".
(b) TECHNICAL AMENDMENT.—The table of contents of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711
et seq.) is amended by inserting after the item relating to section 508
the following:
"Sec. 509. Improvement of criminal justice records.".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4851
(c) APPUCATION OF AMENDMENTS.—The amendments made by this 42 USC 3759
section shall not apply with respect to any fiscal year beginning ^° "
before the date of the enactment of this Act.
SEC. 1804. TESTING CERTAIN SEX OFFENDERS FOR HUMAN
IMMUNODEFICIENCY VIRUS.
Section 506 of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (42 U.S.C. 3756) is amended—
(1) in subsection (aXD by striking "subsection (e)" and inserting "subsections (e) and (f)",
(2) by redesignating subsection (f) as subsection (g), and
(3) by inserting after subsection (e) the following:
"(f)(1) For any fiscal year beginning more than 2 years after the
effective date of this subsection—
"(A) 90 percent of the funds allocated under subsection (a),
taking into consideration subsection (e) but without regard to
this subsection, to a State described in paragraph (2) shall be
distributed by the Director to such State; and
"(B) 10 percent of such amount shall be allocated equally
among States that are not affected by the operation of subparagraph (A).
"(2) Paragraph (1)(A) refers to a State that does not have in effect,
and does not enforce, in such fiscal year, a law that requires the
State at the request of the victim of a sexual act—
"(A) to administer, to the defendant convicted under State
law of such sexual act, a test to detect in such defendant the
presence of the etiologic agent for acquired immune deficiency
syndrome;
"(B) to disclose the results of such test to such defendant and
to the victim of such sexual act; and
"(C) to provide to the victim of such sexual act counseling
regarding HIV disease, HIV testing, in accordance with applicable law, and referral for appropriate health care and support services.
"(3) For purposes of this subsection—
"(A) the term 'convicted' includes adjudicated under juvenile
proceedings; and
"(B) the term 'sexual act' has the meaning given such term in
subparagraph (A) or (B) of section 2245(1) of title 18, United
States Code.".
TITLE X I X - A N A B O L I C STEROIDS
CONTROL ACT OF 1990
I^JS'rcontroi
Actofi99o
SEC. 1901. SHORT TITLE.
This Act may be cited as the "Anabolic Steroids Control Act of 21USC 801 note.
1990".
SEC. 1902. ANABOLIC STEROID PENALTIES.
(a) ADDITION OF ANABOLIC STEROIDS TO SCHEDULE III.—Schedule III
of section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) is
amended by adding at the end the following:
"(e) Anabolic steroids.".
104 STAT. 4852
PUBLIC LAW 101-647—NOV. 29, 1990
(b) DEFINITION OF ANABOUC STEROID.—Section 102 of the C!on-
trolled Substances Act (21 U.S.C. 802) is amended by adding at the
end the following:
"(41XA) The term 'anabolic steroid' means any drug or hormonal substance, chemically and pharmacologically related to
testosterone
(other
than
estrogens,
progestins, and
corticosteroids) that promotes muscle growth, and includes—
*(i) boldenone,
'(ii) chlorotestosterone,
*(iii) clostebol,
'(iv) dehydrochlormethyltestosterone,
*(v) dihydrotestosterone,
'(vi) drostanolone,
'(vii) ethylestrenol,
'(viii) fluoxymesterone,
'(ix) formebulone,
'(x) mesterolone,
*(xi) methandienone,
'(xii) methandranone,
'(xiii) methandriol,
'(xiv) methandrostenolone,
'(xv) methenolone,
'(xvi) methyltestosterone,
'(xvii) mibolerone,
'(xviii) nandrolone,
'(xix) norethandrolone,
'(xx) oxandrolone,
'(xxi) oxymesterone,
'(xxii) oxymetholone,
'(xxiii) stanolone,
'(xxiv) stanozolol,
'(xxv) testolactone,
'(xxvi) testosterone,
'(xxvii) trenbolone, and
'(xxviii) any salt, ester, or isomer of a drug or substance
described or listed in this paragraph, if that salt, ester, or
isomer promotes muscle growth.
"(BXi) Except as provided in clause (ii), such term does not
include an smabolic steroid which is expressly intended for
administration through implants to cattle or other nonhuman
species and which has been approved by the Secretary of Health
and Human Services for such administration.
"(ii) If any person prescribes, dispenses, or distributes such
steroid for human use, such person shall be considered to have
prescribed, dispensed, or distributed an anabolic steroid within
the meaning of subparagraph (A).".
(c) EFFECT OF SCHEDUUNG ON PRESCRIPTIONS.—Any prescription
21 u s e 829 note.
for anabolic steroids subject to refill on or after the date of enactment of the amendments made by this section may be refilled
without restriction under section 309(a) of the Controlled Substances
Act (21 U.S.C. 829(a)).
21 u s e 802 note.
(d) EFFECTIVE DATE.—This section and the amendment made by
this section shall take effect 90 days after the date of enactment of
this Act.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4853
SEC. 1903. REGULATIONS BY ATTORNEY GENERAL.
21 USC 802 note.
(a) ABUSE POTENTIAL.—The Attorney General, upon the recommendation of the Secretary of Health and Human Services, may,
by regulation, exempt any compound, mixture, or preparation
containing a substance in paragraph (41) of section 102 of the
Controlled Substances Act (as added by section 2 of this Act) from
the application of all or any part of the Controlled Substances Act if,
because of its concentration, preparation, mixture or delivery ysystem, it has no significant potential for abuse.
(b) DRUGS FOR TREATMENT OF RARE DISEASES.—If the Attorney
General finds that a drug listed in paragraph (41) of section 102 of
the Controlled Substances Act (as added by section 2 of this Act) is—
(1) approved by the Food and Drug Administration £is an
accepted treatment for a rare disease or condition, as defined in
section 526 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 360bb); and
(2) does not have a significant potential for abuse, the Attorney General may exempt such drug from any production regulations otherwise issued under the Controlled Substances Act as
may be necessary to ensure adequate supplies of such drug for
medical purposes.
(c) DATE OF ISSUANCE OF REGULATIONS.—The Attorney General
shall issue regulations implementing this section not later than 45
days after the date of enactment of this Act, except that the
regulations required under section 3(a) shall be issued not later than \
180 days after the date of enactment of this Act.
SEC. 1904. AMENDMENT TO THE FOOD, DRUG, AND COSMETIC ACT.
Section 303 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
333) is amended by inserting a new subsection (e) as follows:
"(e)(1) Except as provided in paragraph (2), whoever knowingly
distributes, or possesses with intent to distribute, human growth
hormone for any use in humans other than the treatment of a
disease or other recognized medical condition, where such use has
been authorized by the Secretary of Health and Human Services
under section 505 and pursuant to the order of a physician, is guilty
of an offense punishable by not more than 5 years in prison, such
fines as are authorized by title 18, United States Code, or both.
"(2) Whoever commits any offense set forth in paragraph (1) and
such offense involves an individual under 18 years of age is punishable by not more than 10 years imprisonment, such fines as are
authorized by title 18, United States Code, or both.
"(3) Any conviction for a violation of paragraphs (1) and (2) of this
subsection shall be considered a felony violation of the Controlled
Substances Act for the purposes of forfeiture under section 413 of
such Act.
"(4) As used in this subsection the term 'human growth hormone'
means somatrem, somatropin, or an anedogue of either of them.
"(5) The Drug Enforcement Administration is authorized to investigate offenses punishable by this subsection.".
SEC. 1905. CONVICTION FOR VIOLATION OF SECTION 303(e) OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT.
Section 2401 of the Anti-Drug Abuse Act of 1988 (Public Law Repeal.
100-690; 102 Stat. 4181) is repealed.
21 USC 333a.
104 STAT. 4854
PUBLIC LAW 101-647—NOV. 29, 1990
SEC.
1906. DEMONSTRATION
STEROIDS.
PROGRAMS
REGARDING
ANABOLIC
Section 508(b) of the Public Health Service Act (42 U.S.C.
290aa-6(b)) is amended—
(1) in paragraph (lOXB), by striking "and" after the semicolon
at the end;
(2) in paragraph (IIXB), by striking the period at the end and
inserting "; and ; and
(3) by adding at the end the following new paragraph:
"(12) develop and support innovative demonstration programs
designed to identify and deter the improper use or abuse of
anabolic steroids by students, especially students in secondary
schools.".
SEC. 1907. CLERICAL CORRECTION.
Section 404 of the Controlled Substances Act (21 U.S.C. 844) is
amended by inserting "(a)" before "It shall be unlawful" in the first
undesignated paragraph.
TITLE XX—ASSET FORFEITURE
SEC. 2001. AMENDMENTS RELATING TO THE SPECIAL FORFEITURE FUND.
(a) ASSETS FORFEITURE FUND AMENDMENT.—Section 524(c)(9) of
title 28, United States Code, is amended—
(1) in the first sentence, by striking out "(9) There" and
inserting in lieu thereof "(9)(A) There"; and
(2) by striking out the second sentence and inserting in lieu
thereof the following:
"(B) Subject to subparagraph (C), in each of fiscal years 1990,1991,
1992, and 1993, the Attorney General may transfer from the Fund
not more than $150,000,000 to the Special Forfeiture Fund established by section 6073 of the Anti-Drug Abuse Act of 1988. Such
transfers shall be made at the end of each quarter of the fiscal year
involved and on a quarterly pro rata basis.
"(C) Transfers under subparsigraph (B) may be made only from
excess unobligated amounts and only to the extent that, as determined by the Attorney General, such transfers will not impair the
future availability of amounts for the purposes under paragraph (1).
"(D) At the end of each of fiscal years 1990, 1991, 1992, and 1993,
the Attorney General may retain in the Fund not more than
$15,000,000, or, if determined by the Attorney General to be necessary for asset-specific expenses, a greater amount equal to not
more than one-tenth of the total of obligations from the Fund in
preceding fiscal year.".
(b) SPECIAL FORFEITURE FUND AMENDMENT.—Section 6073(b) of the
Anti-Drug Abuse Act of 1988 (21 U.S.C. 1509(b)) is amended to read
as follows:
"(b) DEPOSITS.—Deposits in the Fund shall be made by transfer
from the Department of Justice Assets Forfeiture Fund in the
manner provided in section 524(cX9) of title 28, United States Code.".
SEC. 2002. CLARIFICATION OF ATTORNEY GENERAL'S AUTHORITY TO
WARRANT CLEAR TITLE UPON TRANSFER OF FORFEITED
PROPERTY.
Section 524(c) of title 28, United States Code, is amended—
(1) by redesignating pargigraph (10) as paragraph (11); and
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4855
(2) by inserting Eifter paragraph (9) the following new
paragraph:
"(10) Following the completion of procedures for the forfeiture of
property pursuant to any law enforced or administered by the
Department, the Attorney General is authorized, at his discretion,
to warrant clear title to any subsequent purchaser or transferee of
such forfeited property.".
SEC. 2003. CLARIFICATION OF ATTORNEY GENERAL'S FORFEITURE SALE
AUTHORITY.
Section 511(e)(1)(B) of the Controlled Substances Act (21 U.S.C.
881(e)(1)(B)) and section 2254(f)(2) of title 18, United States Code, are
each amended by inserting after "sell" the following: ", by public
sale or any other commercially feasible means,".
SEC. 2004. FORFEITURE AND DESTRUCTION OF DANGEROUS, TOXIC, AND
HAZARDOUS MATERIALS.
Section 511(f) of the Controlled Substances Act (21 U.S.C. 881(f)) is
amended by inserting after "this title" each place it appears the
following: "; all dangerous, toxic, or hazardous raw materials or
products subject to forfeiture under subsection (a)(2) of this section;
and any equipment or container subject to forfeiture under subsection (aX2) or (3) which cannot be separated safely from such raw
materials or products".
SEC. 2005. ADDITIONAL FORFEITURE AWARD AUTHORITY.
Section 524(c)(1)(C) of title 28, United States Code, is amended to
read as follows:
"(C) at the discretion of the Attorney General, the payment of
awards for information or assistance leading to—
"(i) a civil or criminal forfeiture under the (Controlled
Substances Act or the C!ontroUed Substances Import and
Export Act;
"(ii) a criminal forfeiture under chapter 96 of title 18;
"(iii) a civil forfeiture under section 981 of title 18; or
"(iv) a criminal forfeiture under section 982 of title 18.".
SEC. 2006. REPORT TO CONGRESS.
Section 524(c)(6) of title 28, United States Code, is amended—
(1) in the matter before subparagraph (A), by striking out
"two";
(2) by striking out "and" at the end of subparagraph (A);
(3) by striking out the period at the end of subparagraph (B)
and inserting in lieu thereof "; and"; and
(4) by adding at the end the following new subparagraph:
"(C) a report for such fiscal year, containing audited financial
statements, in the form prescribed by the Attorney Genersil, in
consultation with the Comptroller (Jeneral, including profit and
loss information with respect to forfeited property (by category),
and financial information on forfeited property transactions (by
type of disposition).".
SEC. 2007. FORFEITURE OF DRUG PARAPHERNALIA.
Section 511(a) of the Controlled Substances Act (21 U.S.C. 881(a)) is
amended by adding at the end the following new paragraph:
"(10) Any drug paraphernalia (as defined in section 1822 of
the Mail Order Drug Paraphernalia Control Act).".
104 STAT. 4856
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 2008. FORFEITURE OF A FIREARM USED TO FACILITATE A DRUG
OFFENSE.
Section 511(a) of the Controlled Substances Act (21 U.S.C. 881(a)) is
amended by adding at the end the following new paragraph:
"(11) Any firearm (as defined in section 921 of title 18, United
States Code) used or intended to be used to facilitate the
transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2) and any proceeds traceable
to such property.".
TITLE XXI—PERKINS GRANT EXPANSION
SEC. 2101. POLICE RECRUITMENT EDUCATION PROGRAM.
20 u s e I087ee
°°*®-
(a) AMENDMENT,—Section 465(a)(2) of the Higher Education Act of
1965 (20 U.S.C. 1087ee(a)(2)) is amended—
(1) by striking "or" at the end of subparagraph (D);
(2) by striking the period at the end of subparagraph (E) and
inserting "; or"; and
(3) by adding at the end the following new subparagraph:
"(F) as a full-time law enforcement officer or corrections
officer for service to local. State, or Federal law enforcement or corrections agencies.".
(b) C O N F O R M I N G A M E N D M E N T . — S e c t i o n 465(a)(3)(i) of such A c t (20
U.S.C. 1087ee(a)(3)(i)) is a m e n d e d b y s t r i k i n g "(A) o r (C)" a n d inserting "(A), (C), or (F)".
(c) EFFECTIVE D A T E . — T h e a m e n d m e n t s m a d e b y t h i s section shall
apply only to loans made on or after the date of enactment of this
Act under part E of title IV of the Higher Education Act of 1965.
TITLE XXII—FIREARMS PROVISIONS
SEC. 2201. PROHIBITION AGAINST TRANSFERRING FIREARMS TO NONRESIDENTS.
Section 922(aX5) of title 18, United States Code, is amended by
striking "resides" the first place such term appears and all that
follows through "(or other than that in which its place of business is
located if the transferor is a corporation or other business entity);"
and inserting "does not reside in (or if the person is a corporation or
other business entity, does not maintain a place of business in) the
State in which the transferor resides;".
SEC. 2202. COMMERCE NEXUS FOR TRAFFICKING IN STOLEN FIREARMS.
(a) I N GENERAL.—Section 922(j) of title 18, United States Code, is
amended by striking "or which constitutes," and inserting "which
constitutes, or which has been shipped or transported in,".
(b) ALTERATION OF SERIAL NUMBER OF FIREARM.—Section 922(k) of
title 18, United States Code, is amended by inserting "or to possess
or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any
time, been shipped or transported in interstate or foreign commerce" after "altered".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4857
SEC. 2203. TECHNICAL AMENDMENTS.
(a) AMENDMENT TO SECTION 923(dXlXB).—Section 923(dXl)(B) of
title 18, United States Code, is amended by striking "(h)" and
inserting "(n)".
(b) AMENDMENT TO SECTION 925(aXl).—Section 925(aXl) of title 18,
United States Code, is amended by inserting "possession," before "or
importation".
(c) AMENDMENTS TO SECTION 925(C).—Section 925(c) of title 18,
United States Code, is amended—
(1) by striking "conviction" the first and third places such
term appears and inserting "disability"; and
(2) by striking "by reason of such a conviction".
(d) AMENDMENTS TO SECTION 924(a).—Section 924(a) of title 18,
United States Code, is amended by striking ", and shall become
eligible for parole as the Parole Commission shall determine" each
place such term appears. This amendment shall be effective with Effective date,
respect to any offense committed after November 1,1987.
18 USC 924 note.
SEC. 2204. AMENDMENTS RELATING TO THE DOMESTIC ASSEMBLY OF
NONIMPORTABLE FIREARMS.
(a) SEMIAUTOMATIC RIFLE DEFINED.—Section 921(a) of title 18,
United States Code, is amended by adding at the end the following:
"(28) The term 'semiautomatic rifle' means any repeating rifle
which utilizes a portion of the energy of a firing cartridge to extract
the fired cartridge case and chamber the next round, and which
requires a separate pull of the trigger to fire each cartridge.".
(b) PROHIBITIONS.—Section 922 of title 18, United States Code, is
amended by adding at the end the following:
"(r) It shall be unlawful for any person to assemble from imported
parts any semiautomatic rifle or any s h o t ^ n which is identical to
any rifle or shotgun prohibited from importation under section
925(dX3) of this chapter as not being particularly suitable for or
readily adaptable to sporting purposes except that this subsection
shall not apply to—
"(1) the assembly of any such rifle or shotgun for sale or
distribution by a licensed manufacturer to the United States or
any department or agency thereof or to any State or any
department, agency, or political subdivision thereof; or
"(2) the assembly of any such rifle or shotgun for the purposes
of testing or experimentation authorized by the Secretary.".
(c) PENALTY.—Section 924(aXlXB) of title 18, United States Code, is
amended by striking "or (k)" and inserting "(k), or (q)".
SEC. 2205. PROHIBITION AGAINST POSSESSION OF FIREARMS IN FEDERAL COURT FACILITIES.
(a) PROHIBITION.—Section 930 of title 18, United States Code, is
amended—
(1) in subsection (a), by inserting "(other than a Federal court
facility)" before the second comma;
(2) by redesignating subsections (d), (e), and (f) as subsections
(e), (f), and (g), respectively;
(3) by inserting after subjection (c) the following:
"(dXl) Except as provided in paragraph (2), whoever knowingly
possesses or causes to be present a firearm in a Federed court
facility, or attempts to do so, shall be fined under this title, imprisoned not more than 2 years, or both.
104 STAT. 4858
18 use 930 note.
PUBLIC LAW 101-647—NOV. 29, 1990
"(2) Paragraph (1) shall not apply to conduct which is described in
paragraph (1) or (2) of subsection (c).";
(4) in subsection (f) (as so redesignated by paragraph (2) of this
subsection), by adding at the end the following:
"(3) The term 'Federal court facility' means the courtroom,
judges' chambers, witness rooms, jury deliberation rooms, attorney conference rooms, prisoner holding cells, offices of the court
clerks, the United States attorney, and the United States marshal, probation and parole offices, and adjoining corridors of any
court of the United States."; and
(5) in subsection (g) (as so redesignated by paragraph (2) of this
subsection)—
(A) by inserting "and notice of subsection (d) shall be
posted conspicuously at each public entrance to each Federal court facility," after the first comma;
(B) by inserting "or (d)" before "with respect to"; and
(C) by inserting "or (d), as the case may be" before the
period.
(b) EFFECTIVE DATE.—The amendments made by subsection (a)
shall apply to conduct engaged in after the date of the enactment of
this Act.
TITLE XXIII—CHEMICAL DIVERSION AND
TRAFFICKING
SEC. 2301. CHEMICAL DIVERSION AND TRAFFICKING.
(a) N E W LISTED PRECURSOR CHEMICALS.—Section 102(34) of the
Controlled Substances Act (21 U.S.C. 802(34)) is amended by adding
at the end the following:
"(M) Methylamine.
"(N) Ethylamine.
"(O) D-lysergic acid.
"(P) Propionic anhydride.
"(Q) Insosafrole.
"(R) Safrole.
"(S) Piperonal.
"(T) N-Methylepherdrine.
"(U) N-ethylephedrine.
"(V) N-methylpseudoephedrine.
"(W) N-ethylpseudoephedrine.
"(X) Hydriotic acid.
"(Y) Any salt, optical isomer, or salt of an optical isomer of
the chemicals listed in subparagraphs (M) through (X) of this
paragraph.".
(b) CONFORMING REPEAL.—Section 102(35) of the Controlled Substances Act (21 U.S.C. 802(35)) is amended by striking subparagraph
(E).
TITLE XXIV—DRUG PARAPHERNALIA
SEC. 2401. DRUG PARAPHERNALIA.
(a) I N GENERAL.—The Controlled Substances Act is amended by
adding at the end of part D the following:
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4859
DRUG PARAPHERNALIA
"SEC. 422. (a) It is unlawful for any person—
21USC 863.
"(1) to sell or offer for sale drug paraphernalia;
"(2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or
"(3) to import or export drug paraphernalia.".
(b) TRANSFER OP REMAINING EXISTING PROVISIONS RELATING TO 21 use 857,863.
DRUG PARAPHERNALIA.—Subsections (b) through (f) of section 1822 of
the Anti-Drug Abuse Act of 1986 (21 U.S.C. 857) are transferred to
appear as subsections (b) through (f) of the section 422 added to the
Controlled Substances Act by this section.
(c) TECHNICAL CORRECTIONS TO TRANSFERRED PROVISIONS.—The
21 use 863.
provisions of law transferred by subsection (b) are amended—
(1) in subsection (b), by striking "not more than $100,000" and
inserting "under title 18, United States Code"; and
(2) in subsection (f), by striking "This subtitle" and inserting
"This section".
(d) CONFORMING REPEAL.—Subtitle O of title I of the Anti-Drug 21 USC 801 note,
857 and note.
Abuse Act of 1986 is repealed.
Comprehensive
Thrift and Bank
Fraud
Prosecution and
Taxpayer
Recovery Act of
SEC. 2500. SHORT TITLE.
1990.
This title may be cited as the "Comprehensive Thrift and Bank 18 u s e 1001
note.
Fraud Prosecution and Taxpayer Recovery Act of 1990".
TITLE XXV—BANKING LAW
ENFORCEMENT
Subtitle A—Enhanced Criminal Penalties
SEC. 2501. CONCEALMENT OF ASSETS FROM FDIC, RTC, OR NCUA ESTABLISHED AS CRIMINAL OFFENSE.
(a) IN GENERAL.—Chapter 47 of title 18, United States Code, is
amended by adding at the end the following new section:
"§ 1032. Concealment of assets from conservator, receiver, or liquidating agent of flnancial institution
"Whoever—
"(1) knowingly conceals or endeavors to conceal an asset or
property from the Federal Deposit Insurance Corporation,
acting as conservator or receiver or in the Corporation's corporate capacity with respect to any asset acquired or liability
assumed by the Corporation under section 11, 12, or 13, of the
Federal Deposit Insurance Act, the Resolution Trust Corporation, any conservator appointed by the Comptroller of the Currency or the Director of the Office of Thrift Supervision, or the
National Credit Union Administration Board, acting as conservator or liquidating agent;
"(2) corruptly impedes or endeavors to impede the functions of
such Corporation, Board, or conservator; or
"(3) corruptly places or endeavors to place an asset or property beyond the reach of such Corporation, Board, or
conservator.
104 STAT. 4860
PUBLIC LAW 101-647—NOV. 29, 1990
shall be fined under this title or imprisoned not more than 5 years,
or both.".
(b) CLERICAL AMENDMENT.—The table of sections for chapter 47 of
title 18, United States Code, is amended by inserting after the item
relating to section 1031 the following new item:
"1032. Concealment of assets from conservator, receiver, or liquidating agent of
financial institution.".
SEC. 2502. PROHIBITION ON CONTROL OF OR PARTICIPATION IN DEPOSITORY INSTITUTION BY CERTAIN CONVICTED PERSONS.
(a) FDIC INSURED DEPOSITORY INSTITUTIONS.—Section 19(a) of the
Federal Deposit Insurance Act (12 U.S.C. 1829(a)) is amended to read
as follows:
"(a) PROHIBITION.—
"(1) I N GENERAL.—Except with the prior written consent of
the Corporation—
"(A) any person who has been convicted of any criminal
offense involving dishonesty or a breach of trust, or has
agreed to enter into a pretrial diversion or similar program
in connection with a prosecution for such offense, may
not—
"(i) become, or continue as, an institution-affiliated
party with respect to any insured depository institution;
"(ii) own or control, directly or indirectly, any insured depository institution; or
"(iii) otherwise participate, directly or indirectly, in
the conduct of the affairs of any insured depository
institution; and
"(B) any insured depository institution may not permit
any person referred to in subparagraph (A) to engage in any
conduct or continue any relationship prohibited under such
subparagraph.
"(2) MINIMUM
OFFENSES.—
IO-YEAR
PROHIBITION PERIOD
FOR CERTAIN
"(A) IN GENERAL.—If the offense referred to in paragraph
(1)(A) in connection with any person referred to in such
paragraph is—
"(i) an offense under—
"(I) section 215, 656, 657, 1005, 1006, 1007, 1008,
1014, 1032, 1344, or 1956 of title 18, United States
Code; or
"(II) section 1341 or 1343 of such title which
affects any financial institution (as defined in section 20 of such title); or
"(ii) the offense of conspiring to commit any such
offense,
the Corporation may not consent to any exception to the
application of paragraph (1) to such person during the 10year period beginning on the date the conviction or the
agreement of the person becomes final.
"(B) EXCEPTION BY ORDER OF SENTENCING COURT.—
"(i) IN GENERAL.—On motion of the Corporation, the
court in which the conviction or the agreement of a
person referred to in subparagraph (A) has been entered may grant an exception to the application of
PUBLIC LAW 101-647—NOV. 29,1990
104 STAT. 4861
paragraph (1) to such person if granting the exception
is in the interest of justice.
"(ii) PERIOD FOR FILING.—A motion may be filed
under clause (i) at any time during the 10-year period
described in subparagraph (A) with regard to the
person on whose behsdf such motion is made.".
SEC. 2503. CRIME OF OBSTRUCTING AN EXAMINER.
(a) I N GENERAL.—Chapter 73 of title 18, United States Code
(relating to obstruction of justice) is amended by inserting after
section 1516 the following new section:
*'§ 1517. Obstructing examination of financial institution
"Whoever corruptly obstructs or attempts to obstruct any exsunination of a financial institution by an agency of the United States
with jurisdiction to conduct an examination of such financial
institution shall be fined under this title, imprisoned not more than
5 years, or both.".
0)) CLERICAL AMENDMENT.—The table of sections for chapter 73 of
title 18, United States Code, is amended by inserting after the item
relating to section 1516 the following new item:
"1517. Obstructing examination of financial institution.".
SEC. 2504. INCREASING BANK FRAUD AND EMBEZZLEMENT PENALTIES.
(a) RECEIPT OF COMMISSIONS OR GIFTS FOR PROCURING LOANS.—
Section 215(a) of title 18, United States CJode, is amended by striking
"20" and inserting "30".
(b) THEFT, EMBEZZLEMENT, OR MISAPPUCATION BY BANK OFFICER
OR EMPLOYEE.—Section 656 of title 18, United States (Dode, is
amended by striking "20" and inserting "30".
(c) LENDING, CREDIT, AND INSURANCE INSTITUTIONS.—Section 657 of
title 18, United States Code, is amended by striking "20" and
inserting "30".
(d) BANK ENTRIES, REPORTS, AND TRANSACTIONS.—Section 1005
of
title 18, United States Code, is amended by striking "20" and
inserting "30".
(e) FEDERAL CREDIT INSTITUTION ENTRIES, REPORTS, AND TRANS-
ACTIONS.—Section 1006 of title 18, United States Code, is amended
by striking "20" and inserting "30".
(f) FEDERAL DEPOSIT INSURANCE CORPORATION TRANSACTIONS.—
Section 1007 of title 18, United States Code, is amended by striking
"20" and inserting "30".
(g) FALSE STATEMENTS IN LOAN, CREDIT, AND CROP INSURANCE
APPLICATIONS.—Section 1014 of title 18, United States Code, is
amended by striking "20" and inserting "30".
(h) FRAUDS AND SWINDLES AFFECTING FINANCIAL INSTITUTIONS.—
The last sentence of section 1341 of title 18, United States Code, is
amended by striking "20" and inserting "30".
(i) WIRE FRAUDS AFFECTING FINANCIAL INSTITUTIONS.—The last
sentence of section 1343 of title 18, United States Code, is amended
by striking "20" and inserting "30".
(j) BANK FRAUD.—Section 1344 of title 18, United States Code, is
amended by striking "20" and inserting "30".
104 STAT. 4862
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 2505. STATUTE OF LIMITATIONS FOR RICO OFFENSES INVOLVING
FINANCIAL INSTITUTIONS.
18 use 3293
^°^-
(a) I N GENERAL.—Section 3293 of title 18, United States Code, is
amended—
(1) by striking "or" at the end of paragraph (1);
(2) by inserting "or" at the end of paragraph (2); and
(3) by inserting after paragraph (2) the following new
paragraph:
"(3) section 1963, to the extent that the racketeering activity
involves a violation of section 1344;".
(b) SCOPE OF APPLICATION.—The amendments made by subsection
(a) shall apply to any offense committed before the date of the
enactment of this section, if the statute of limitations applicable to
that offense had not run as of such date.
SEC. 2506. MONEY LAUNDERING INVOLVING BANK CRIMES.
Section 1956(c)(7)(D) of title 18, United States Code, is amended—
(1) by inserting "section 1005 (relating to fraudulent bank
entries), 1006 (relating to fraudulent Federal credit institution
entries), 1007 (relating to Federal Deposit Insurance transactions), 1014 (relating to fraudulent loan or credit applications), 1032 (relating to concealment of assets from conservator,
receiver, or liquidating agent of financial institution), " after
"section 875 (relating to interstate communications),"; and
(2) by inserting "section 1341 (relating to mail fraud) or
section 1343 (relating to wire fraud) affecting a financial institution," after "section 1203 (relating to hostage taking),".
18 u s e 994 note.
SEC. 2507. INCREASED PENALTIES IN MAJOR BANK CRIME CASES.
(a) INCREASED PENALTIES.—Pursuant to section 994 of title 28,
United States Code, and section 21 of the Sentencing Act of 1987, the
United States Sentencing C!ommission shall promulgate guidelines,
or amend existing guidelines, to provide that a defendant convicted
of violating, or conspiring to violate, section 215, 656, 657,1005,1006,
1007, 1014, 1032, or 1344 of title 18, United States Code, or section
1341 or 1343 affecting a financial institution (as defined in section 20
of title 18, United States Code), shall be assigned not less than
offense level 24 under chapter 2 of the sentencing guidelines if the
defendant derives more than $1,000,000 in gross receipts from the
offense.
(b) AMENDMENTS TO SENTENCING GUIDEUNES.—If the sentencing
guidelines are amended after the effective date of this section, the
Sentencing (Commission shall implement the instruction set forth in
subsection (a) so as to achieve a comparable result.
SEC. 2508. RESTORATION OF PROPERTY FOR VICTIMS OF BANK CRIMES.
Section 981(e) of title 18, United States Code, is amended—
(1) by striking out "or" at the end of paragraph (4);
(2) by striking the period at the end of paragraph (5) and
inserting a semicolon; and
(3) by adding after paragraph (5) the following new paragraph:
"(6) in the case of property referred to in subsection (a)(1)(C),
restore forfeited property to any victim of an offense described
in subsection (aXl)(C); or".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4863
SEC. 2509. ENHANCEMENT OF ABILITY TO ORDER RESTITUTION IN CERTAIN FRAUD CASES.
Section 3663(a) of title 18, United States Code, is amended—
(1) by i n s e r t i n g ' W after "(a)"; and
(2) by adding at the end the following:
"(2) For the purposes of restitution, a victim of an offense that
involves as £in element a scheme, a conspiracy, or a pattern of
criminal activity means any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or
pattern.
"(3) The court may also order restitution in any criminal case to
the extent agreed to by the parties in a plea agreement.".
SEC. 2510. FINANCIAL CRIME KINGPIN STATUTE.
(a) CONTINUING FINANCIAL CRIME ENTERPRISES.—Chapter 11 of
title 18, United States Code, is amended by adding at the end thereof
the following new section:
"§ 225. Continuing flnancial crimes enterprise
Penalties.
"(a) Whoever—
"(1) organizes, manages, or supervises a continuing financial
crimes enterprise; and
"(2) receives $5,000,000 or more in gross receipts from such
enterprise during any 24-month period,
shall be fined not more than $10,000,000 if an individual, or
$20,000,000 if an organization, and imprisoned for a term of not less
than 10 years and which may be life.
"(b) For purposes of subsection (a), the term 'continuing financial
crimes enterprise' means a series of violations under section 215,
656, 657, 1005, 1006, 1007, 1014, 1032, or 1344 of this title, or section
1341 or 1343 affecting a financial institution, committed by at least 4
persons acting in concert.".
(b) CLERICAL AMENDMENT.—The table of sections for chapter 11 of
title 18, United States Code, is amended by adding at the end the
following new item:
"225. Continuing financial crimes enterprise.".
Subtitle B—Protecting Assets From Wrongful
Disposition
SEC. 2521. INJUNCTIVE RELIEF; PREJUDGMENT ATTACHMENTS.
(a) INJUNCTIVE REUEF.—
(1) APPUCATION BY CONSERVATOR OR RECEIVER FOR INSURED
DEPOSITORY INSTITUTIONS.—Section 11(d) of the Federal Deposit
Insurance Act (12 U.S.C. 1821(d)) is amended by inserting after
paragraph (17) (as added by section 2511 of this title) the
following new paragraphs:
"(18) ATTACHMENT OF ASSETS AND OTHER INJUNCTIVE REUEF.—
Subject to paragraph (19), any court of competent jurisdiction
may, at the request of—
"(A) the Corporation (in the Corporation's capacity as
conservator or receiver for any insured depository institution or in the Corporation's corporate capacity with respect
to any asset acquired or liability assumed by the Corporation under section 11,12, or 13); or
104 STAT. 4864
PUBLIC LAW 101-647—NOV. 29, 1990
"(B) any conservator appointed by the Comptroller of the
Currency or the Director of the Office of Thrift Supervision,
issue an order in accordance with Rule 65 of the Federal Rules
of Civil Procedure, including an order placing the assets of any
person designated by the Corporation or such conservator under
the control of the court and appointing a trustee to hold such
assets.
"(19) STANDARDS.—
"(A) SHOWING.—Rule 65 of the Federal Rules of Civil
Procedure shall apply with respect to any proceeding under
paragraph (18) without regard to the requirement of such
rule that the applicEuit show that the injury, loss, or
damage is irreparable and immediate.
"(B) STATE PROCEEDING.—If, in the case of any proceeding
in a State court, the court determines that rules of civil
procedure available under the laws of such State provide
substantially similar protections to such party's right to
due process £is Rule 65 (as modified with respect to such
proceeding by subparagraph (A)), the relief sought by the
Corporation or a conservator pursuant to paragraph (18)
may be requested under the laws of such State.".
(2) APPLICATION BY CONSERVATOR OR UQUIDATING AGENT FOR
INSURED CREDIT UNION.—Section 207(b)(2) of the Federal Credit
Union Act (12 U.S.C. 1787GD)(2)) is amended by redesignating
subparagraph (G) as subparagraph (I) and by inserting after
subparagraph (F) the following new subparagraphs:
"(G) ATTACHMENT OF ASSETS AND INJUNCTIVE RELIEF.—
Subject to subparagraph (H), any court of competent jurisdiction may, at the request of the Board (in the Board's
capacity as conservator or liquidating agent for any insured
credit union or in the Board's corporate capacity in the
exercise of any authority under section 207), issue an order
in accordance with Rule 65 of the Federal Rules of Civil
Procedure, including an order placing the assets of any
person designated by the Board under the control of the
court and appointing a trustee to hold such assets.
"(H) STANDARDS.—
"(i) SHOWING.—Rule 65 of the Federal Rules of Civil
Procedure shall apply with respect to any proceeding
under subparagraph (G) without regard to the requirement of such rule that the applicant show that the
injury, loss, or damage is irreparable and immediate,
"(ii) STATE PROCEEDING.—If, in the case of any
proceeding in a State court, the court determines that
rules of civil procedure available under the laws of such
State provide substantially similar protections to such
party's right to due process as Rule 65 (as modified with
respect to such proceeding by clause (i)), the relief
sought by the Board pursuant to subparagraph (G) may
be requested under the laws of such State.",
(b) PREJUDGMENT ATTACHMENTS.—
(1) APPROPRIATE FEDERAL BANKING AGENCIES.—Section 8(i) of
" the Federal Deposit Insurance Act (12 U.S.C. 1818(i)) is amended
by adding at the end the following new paragraph:
"(4) PREJUDGMENT ATTACHMENT.—
"(A) I N GENERAL.—In any action brought by an appropriate Federal banking agency (excluding the Corporation
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4865
when acting in a manner described in section ll(dX18))
pursuant to this section, or in actions brought in aid of, or
to enforce an order in, any administrative or other civil
action for money damages, restitution, or civil money penalties brought by such agency, the court may, upon application of the agency, issue a restraining order that—
"(i) prohibits any person subject to the proceeding
from withdrawing, transferring, removing, dissipating,
or disposing of any funds, assets or other property; and
"(ii) appoints a temporary receiver to administer the
restraining order.
"(B) STANDARD.—A permanent or temporary injunction
or restraining order shall be granted without bond upon a
prima facie showing that money damages, restitution, or
civil money penalties, as sought by such agency, is
appropriate.".
(2) ATTORNEY GENERAL.—Section 1345 of title 18, United
States Code, is amended—
(1) by striking the 1st sentence and inserting the following:
"(aXl) If a person is—
"(A) violating or about to violate this chapter or section 287,
371 (insofar as such violation involves a conspiracy to defraud
the United States or any agency thereof), or 1001 of this title; or
"(B) committing or about to commit a banking law violation
(as defined in section 3322(d) of this title),
the Attorney (Jeneral may commence a civil action in any Federal
court to enjoin such violation.
"(2) If a person is alienating or disposing of property, or intends to
alienate or dispose of property, obtained as a result of a banking law
violation (as defined in section 3322(d) of this title) or property which
is traceable to such violation, the Attorney General may commence
a civil action in any Federal court—
"(A) to enjoin such alienation or disposition of property; or
"(B) for a restraining order to—
"(i) prohibit any person from withdrawing, transferring,
removing, dissipating, or disposing of any such property or
property of equivalent value; and
"(ii) appoint a temporary receiver to administer such
restraining order.
(3) A permanent or temporary injunction or restraining order
shall be granted without bond."; and
(2) by redesignating the material remaining in such section as
subsection (b).
SEC. 2522. NONDISCHARGE OF DEBTS IN FEDERAL BANKRUPTCY INVOLVING OBLIGATIONS ARISING FROM A BREACH OF FIDUCIARY
DUTY; DISALLOWING USE OF BANKRUPTCY TO EVADE
COMMITMENTS TO MAINTAIN THE CAPITAL OF A FEDERALLY
INSURED DEPOSITORY INSTITUTION OR TO EVADE CIVIL OR
CRIMINAL LIABILITY.
(a) EXCEPTION TO DISCHARGE IN GENERAL.—Section 523 of title 11,
United States Code, is amended—
(1) in subsection (a) by—
(A) striking "or" at the end of paragraph (9);
(B) striking the period at the end of paragraph (10) and
inserting a semicolon; and
104 STAT. 4866
PUBLIC LAW 101-647—NOV. 29, 1990
(C) adding at the end thereof the following new paragraphs:
"(11) provided in any final judgment, unreviewable order, or
consent order or decree entered in any court of the United
States or of any State, issued by a Federal depository institutions regulatory agency, or contained in any settlement agreement entered into by the debtor, arising from any act of fraud
or defalcation while acting in a fiduciary capacity committed
with respect to any depository institution or insured credit
union; or
"(12) for malicious or reckless failure to fulfill any commitment by the debtor to a Federal depository institutions regulatory agency to maintain the capital of an insured depository
institution, except that this paragraph shall not extend any
such commitment which would otherwise be terminated due to
any act of such agency;"; and
(2) by adding at the end thereof the following new subsections:
"(e) Any institution-affiliated party of a depository institution or
insured credit union shall be considered to be acting in a fiduciarv
capacity with respect to the purposes of subsection (a) (4) or (11). ;
and
(3) in subsection (c)—
(A) by inserting "(1)" after "(c)"; and
(B) by adding at the end the following:
"(2) Paragraph (1) shall not apply in the case of a Federal depository institutions regulatory agency seeking, in its capacity as conservator, receiver, or liquidating agent for an insured depository
institution, to recover a debt described in subsection (a)(2), (aX4),
(a)(6), or (a)(ll) owed to such institution by an institution-affiliated
party unless the receiver, conservator, or liquidating agent was
appointed in time to reasonably comply, or for a Federal depository
institutions regulatory agency acting in its corporate capacity as a
successor to such receiver, conservator, or liquidating agent to
reasonably comply, with subsection (a)(3)(B) as a creditor of such
institution-affiliated party with respect to such debt.".
(b) EXCEPTION TO EXEMPTIONS,—Section 522(c) of title 11, United
States Code, is amended—
(1) in paragraph (1) by striking "or" at the end;
(2) in paragraph (2) by striking the period and inserting "; or";
and
(3) by adding at the end the following:
"(3) a debt of a kind specified in section 523(a)(4) or 523(a)(6) of
this title owed by an institution-affiliated party of an insured
depository institution to a Federal depository institutions regulatory agency acting in its capacity as conservator, receiver, or
liquidating agent for such institution.".
(c) ASSUMPTION OF COMMITMENTS AS EXECUTORY CONTRACTS.—Sec-
tion 365 of title 11, United States Code, is amended by adding at the
end thereof the following:
"(o) In a case under chapter 11 of this title, the trustee shall be
deemed to have assumed (consistent with the debtor's other obligations under section 507), and shall immediately cure any deficit
under, any commitment by the debtor to the Federal Deposit Insurance (Corporation, the Resolution Trust Corporation, the Director of
the Office of Thrift Supervision, the Comptroller of the Currency, or
the Board of Governors of the Federal Reserve System, or its
predecessors or successors, to maintain the capital of an insured
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4867
depository institution, and any claim for a subsequent breach of the
obligations thereunder shall be entitled to priority under section
507. This subsection shall not extend any commitment that would
otherwise be terminated by any act of such an agency.".
(d) COMMITMENTS TO MAINTAIN THE CAPITAL OF FEDERALLY INSURED DEPOSITORY INSTITUTIONS.—Section 507(a) of title 11, United
States Code, is amended by adding at the end the following new
paragraph:
"(8) Eighth, allowed unsecured claims based upon any
commitment by the debtor to the Federal Deposit Insurance
Corporation, the Resolution Trust Corporation, the Director of
the Office of Thrift Supervision, the Comptroller of the Currency, or the Board of Governors of the Federal Reserve System,
or their predecessors or successors, to maintain the capital of an
insured depository institution.".
(e) DEFINITIONS.—Section 101 of title 11, United States Code, is
amended—
(1) by redesignating paragraphs (32) through (53) as para. graphs (36) through (57), respectively;
(2) by inserting before paragraph (36), as so redesignated, the
following:
"(33)'institution-affiliated party'—
"(A) with respect to an insured depository institution (as
defined in section 3(cX2) of the Federal Deposit Insurance
Act), has the meaning given it in section 3(u) of the Federal
Deposit Insurance Act (12 U.S.C. 1813(u)); and
*(B) with respect to an insured credit union, has the
meaning given it in section 206(r) of the Federal Credit
Union Act (12 U.S.C. 1786(r));
"(34) 'insured credit union' has the meaning given it in
section 101(7) of the Federal Credit Union Act (12 U.S.C.
1752(7));
"(35) 'insured depository institution'—
"(A) has the meaning given it in section 3(cX2) of the
Federal Deposit Insurance Act (12 U.S.C. 1813(cX2)); and
"(B) includes an insured credit union (except in the case
of paragraphs (3) and (33XA) of this subsection);'';
(3) by redesignating paragraphs (3) through (31) as paragraphs
(4) throi^h (32), respectively; and
(4) by inserting after paragraph (2) the following:
"(3) 'Federal depository institutions regulatory agency'
means—
"(A) with respect to an insured depository institution (as
defined in section 3(cX2) of the Federal Deposit Insurance
Act) for which no conservator or receiver has been appointed, the appropriate Federal banking agency (as defined in section 3(q) of such Act);
"(B) with respect to an insured credit union (including an
insured credit union for which the National Credit Union
Administration has been appointed conservator or liquidating agent), the National Credit Union Administration;
'(C) with respect to any insured depository institution for
which the Resolution Trust Corporation has been appointed
conservator or receiver, the R ^ l u t i o n Trust CJorporation;
and
"(D) with respect to any insured depository institution for
which the Federal Deposit Insurance CJorporation has been
104 STAT. 4868
PUBLIC LAW 101-647—NOV. 29, 1990
appointed conservator or receiver, the Federal Deposit
Insurance Corporation;".
SEC. 2523. REGULATION OF GOLDEN PARACHUTES AND OTHER BENEFITS
WHICH ARE SUBJECT TO MISUSE.
(a) FDIC INSURED DEPOSITORY INSTITUTIONS.—Section 18 of the
Federal Deposit Insurance Act (12 U.S.C. 1828) is amended by
inserting after subsection (j) the following new subsection:
"(k) AUTHORITY TO REGULATE OR PROHIBIT CERTAIN FORMS OF
BENEFITS TO INSTITUTION-AFFIUATED PARTIES.—
"(1) GOLDEN PARACHUTES AND INDEMNIFICATION PAYMENTS.—
The Corporation may prohibit or limit, by regulation or order,
any golden parachute pajonent or indemnification payment.
"(2) FACTORS TO BE TAKEN INTO ACCOUNT.—The Corporation
shall prescribe, by regulation, the factors to be considered by
the Corporation in taking any action pursuant to paragraph (1)
which may include such factors as the following:
"(A) Whether there is a reasonable basis to believe that
the institution-affiliated party has committed any fraudulent act or omission, breach of trust or fiduciary duty, or
insider abuse with regard to the depository institution or
depository institution holding company that has had a
material affect on the financial condition of the institution.
"(B) Whether there is a reasonable basis to believe that
the institution-affiliated party is substantially responsible
for the insolvency of the depository institution or depository
institution holding company, the appointment of a conservator or receiver for the depository institution, or the
depository institution's troubled condition (as defined in the
regulations prescribed pursuant to section 32(f)).
"(C) Whether there is a reasonable basis to believe that
the institution-affiliated party has materially violated any
applicable Federal or State banking law or regulation that
has had a material affect on the financial condition of the
institution.
"(D) Whether there is a reasonable basis to believe that
the institution-affiliated party has violated or conspired to
violate—
"(i) section 215, 656, 657, 1005, 1006, 1007, 1014, 1032,
or 1344 of title 18, United States Code; or
"(ii) section 1341 or 1343 of such title affecting a
federally insured financial institution.
"(E) Whether the institution-affiliated party was in a
position of managerial or fiduciary responsibility.
"(F) The length of time the party was affiliated with the
insured depository institution or depository institution
holding company and the degree to which—
"(i) the payment reasonably reflects compensation
earned over the period of employment; and
"(ii) the compensation involved represents a reasonable payment for services rendered.
"(3) CERTAIN PAYMENTS PROHIBITED.—No insured depository
institution or depository institution holding company may
prepay the salary or any liability or legal expense of any
institution-affiliated party if such payment is made—
PUBLIC LAW 101-647—NOV. 29,1990
104 STAT. 4869
"(A) in contemplation of the insolvency of such institution or holding company or after the commission of an act
of insolvency; and
"(B) with a view to, or has the result of—
"(i) preventing the proper application of the assets of
the institution to creditors; or
"(ii) preferring one creditor over another.
"(4) GOLDEN PARACHUTE PAYMENT DEFINED.—For purposes of
this subsection—
"(A) I N GENERAL.—The term 'golden parachute payment'
means any payment (or any agreement to make any payment) in the nature of compensation by any insured depository institution or depository institution holding company
for the benefit of any institution-affiliated party pursuant
to an obligation of such institution or holding company
that'll) is contingent on the termination of such party's
affiliation with the institution or holding company; and
"(ii) is received on or after the date on which—
"(I) the insured depository institution or depository institution holding company, or any insured
depository institution subsidiary of such holding
company, is insolvent;
"(II) any conservator or receiver is appointed for
such institution; or
"(III) the institution's appropriate Federal banking agency determines that the insured depository
institution is in a troubled condition (as defined in
the regulations prescribed pursuant to section
32(f));
"(IV) the insured depository institution has been
assigned a composite rating by the appropriate
Federal banking agency or the Corporation of 4 or
5 under the Uniform Financial Institutions Rating
System; or
"(V) the insured depository institution is subject
to a proceeding initiated by the Corporation to
terminate or suspend deposit insurance for such
institution.
"(B)
CERTAIN
PAYMENTS IN
CONTEMPLATION OF
AN
EVENT.—Any payment which would be a golden parachute
payment but for the fact that such payment was made
before the date referred to in subparagraph (AXii) shall be
treated as a golden parachute payment if the payment was
made in contemplation of the occurrence of an event described in any subclause of such subparagraph.
"(C) CERTAIN PAYMENTS NOT INCLUDED.—1116 term 'golden
parachute payment' shall not include—
"(i) any payment made pursuant to a retirement plan
which is qualified (or is intended to be qualified) under
section 401 of the Internal Revenue Code of 1986 or
other nondiscriminatory benefit plan;
"(ii) any pajonent made pursuant to a bona fide
deferred compensation plan or arrangement which the
Board determines, by regulation or order, to be permissible; or
104 STAT. 4870
PUBLIC LAW 101-647—NOV. 29, 1990
"(iii) any payment made by reason of the death or
disability of an institution-afflUated party.
"(5) OTHER DEFINITIONS.—For purposes of this subsection—
"(A)
:
INDEMNIFICATION PAYMENT.—Subject to paragraph
(6), the term 'indemnification payment means any payment (or any agreement to make any pa5mient) by any
insured depository institution or depository institution
holding company for the benefit of any person who is or was
an institution-affiliated party, to pay or reimburse such
person for any liability or legal expense with regard to any
administrative proceeding or civil action instituted by the
appropriate Federal banking agency which results in a
final order under which such person—
"(i) is assessed a civil money penalty;
"(ii) is removed or prohibited from participating in
conduct of the affairs of the insured depository institution; or
"(iii) is required to take any affirmative action described in section 8(bX6) with respect to such institution.
"(B) LIABILITY OR LEGAL EXPENSE.—The term 'liability or
legal expense' means—
"(i) any legal or other professional expense incurred
in connection with any claim, proceeding, or action;
"(ii) the amount of, and any cost incurred in connection with, any settlement of any claim, proceeding, or
action; and
"(iii) the amount of, and any cost incurred in connection with, any judgment or penalty imposed with respect to any claim, proceeding, or action.
"(C) PAYMENT.—The term 'payment' includes—
"(i) any direct or indirect transfer of any funds or any
asset; and
"(ii) any segregation of any funds or assets for the
purpose of making, or pursuant to an agreement to
make, any payment after the date on which such funds
or assets are segregated, without regard to whether the
obligation to make such payment is contingent on—
"(I) the determination, after such date, of the
liability for the payment of such amount; or
"(II) the liquidation, after such date, of the
amount of such payment.
"(6) CERTAIN COMMERCIAL INSURANCE COVERAGE NOT TREATED
AS COVERED BENEFIT PAYMENT.—No provision of this subsection
shall be construed as prohibiting any insured depository institution or depository institution holding company from purchasing
any commercial insurance policy or fidelity bond, except that,
subject to any requirement described in paragraph (5)(A)(iii),
such insurance policy or bond shall not cover any legal or
liability expense of the institution or holding company which is
described in paragraph (5)(A).".
(b) NCUA INSURED CREDIT UNIONS DEPOSITORY INSTITUTIONS.—
Section 206 of the Federal Credit Union Act (12 U.S.C. 1786) is
amended by adding at the end the following new subsection:
"(t) REGULATION OF CERTAIN FORMS OF BENEFITS TO INSTITUTIONAFFIUATED PARTIES.—
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4871
"(1) GOLDEN PARACHUTES AND INDEMNIFICATION PAYMENTS.—
The Board may prohibit or limit, by regulation or order, any
golden parachute pajonent or indemnification payment.
"(2) FACTORS TO BE TAKEN INTO ACCOUNT.—The Board shall Regulations,
prescribe, by regulation, the factors to be considered by the
Board in taking any action pursuant to paragraph (1) which
may include such factors as the following:
"(A) Whether there is a reasonable basis to believe that
the institution-affiliated party has committed any fraudulent act or omission, breach of trust or fiduciary duty, or
insider abuse with regard to the credit union that has had a
material siffect on the financial condition of the credit
union.
"(B) Whether there is a reasonable basis to believe that
the institution-affiliated party is substantially responsible
for the insolvency of the credit union, the appointment of a
conservator or liquidating agent for the credit union, or the
credit union's troubled condition (as defined in prescribed
by the Board pursuant to paragraph (4)(A)(ii)(III)).
"(C) Whether there is a reasonable basis to believe that
the institution-affiliated party has materially violated any
applicable Federal or State banking law or regulation that
has had a material affect on the financial condition of the
credit union.
"(D) Whether there is a reasonable basis to believe that
the institution-affiliated party has violated or conspired to
violate—
"(i) section 215, 656, 657, 1005, 1006, 1007, 1014, 1032,
or 1344 of title 18, United States Code; or
"(ii) section 1341 or 1343 of such title affecting a
financial institution.
"(E) Whether the institution-affiliated party was in a
; position of managerial or fiduciary responsibility.
"(F) The length of time the party was affiliated with the
, credit union and the degree to which—
"(i) the payment reasonably reflects compensation
earned over the period of emplojmaent; and
"(ii) the compensation involved represents a reasonable payment for services rendered.
"(3) CERTAIN PAYMENTS PROHIBITED.—No credit union may
prepay the salary or any liability or legal expense of any
institution-afQliated party if such payment is made—
"(A) in contemplation of the insolvency of such credit
union or after the commission of an act of insolvency; and
"(B) with a view to, or has the result of—
"(i) preventing the proper application of the assets of
the credit union; or
"(ii) preferring one creditor over another.
"(4) GOLDEN PARACHUTE PAYMENT DEFINED.—For purposes of
this subsection—
"(A) I N GENERAL.—The term 'golden parachute payment'
means any payment (or any agreement to make any payment) in the nature of compensation by any credit union for
the benefit of any institution-affiliated party pursuant to an
obligation of such credit union that—
"(i) is contingent on the termination of such party's
affiliation with the credit union; and
39-194 O - 91 - 16 : QL 3 Part 6
104 STAT. 4872
PUBLIC LAW 101-647—NOV. 29, 1990
"(ii) is received on or after the date on which—
"(I) the credit union is insolvent;
"(II) any conservator or Uquidating agent is appointed for such credit union; or
"(III) the Board determines that the credit union
is in a troubled condition (as defined in regulations
which the Board shall prescribe);
"(IV) the credit union has been assigned a
composite rating by the Board of 4 or 5 under the
Uniform Financial Institutions Rating System (as
applicable with respect to credit unions); or
(V) the credit union is subject to a proceeding
initiated by the Board to terminate or suspend
deposit insurance for such credit union.
"(B)
CERTAIN
PAYMENTS IN
CONTEMPLATION OF
AN
EVENT.—Any pa3anent which would be a golden parachute
pajrment but for the fact that such pajmient was made
before the date referred to in subparagraph (AXii) shall be
treated as a golden parachute payment if the payment was
made in contemplation of the occurrence of an event described in any subclause of such subparagraph.
"(C) CERTAIN PAYMENTS NOT INCLUDED,—Tlie term 'golden
parachute payment' shall not include—
"(i) any payment made pursuant to a retirement plan
which is qualified (or is intended to be qualified) under
section 401 of the Internal Revenue Code of 1986 or
other nondiscriminatory retirement or severance benefit plan;
(ii) any pajonent made pursuant to a bona fide
deferred compensation plan or arrangement which the
Board determines, by regulation or order, to be permissible; or
"(iii) any payment made by reason of the death or
disability of an institution-affiliated party.
"(5) OTHER DEFINITIONS.—For purposes of this subsection—
"(A)
INDEMNIFICATION PAYMENT.—Subiect to paragraph
(6), the term 'indemnification pajonent means any payment (or any agreement to make any payment) by any
credit union for the benefit of any person who is or was an
institution-affiliated party, to pay or reimburse such person
for any liability or legal expense with regard to any
administrative proceeding or civil action instituted by the
Board which results in a final order under which such
person—
"(i) is assessed a civil money penalty;
"(ii) is removed or prohibited from participating in
conduct of the £iffairs of the credit union; or
"(iii) is required to take any affirmative action described in section 206(eX3) with respect to such credit
union.
"(B) LIABILITY OR LEGAL EXPENSE.—The term 'liability or
legal expense'means—
"(i) any legal or other professional expense incurred
in connection with any claim, proceeding, or action;
"(ii) the amount of, and any cost incurred in connection with, any settlement of any claim, proceeding, or
action; and
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4873
"(iii) the amount of, and any cost incurred in connection with, any judgment or penalty imposed with respect to any claim, proceeding, or action.
"(C) PAYMENT.—The term 'payment' includes—
"(i) any direct or indirect transfer of any funds or any
asset; and
"(ii) any segregation of any funds or assets for the
purpose of making, or pursuant to an agreement to
make, any payment after the date on which such funds
or assets are segregated, without regard to whether the
obligation to make such payment is contingent on—
"(I) the determination, after such date, of the
liability for the payment of such amount; or
"(11) the liquidation, after such date, of the
amount of such payment.
"(6) CERTAIN COMMERCIAL INSURANCE COVERAGE NOT TREATED
AS COVERED BENEFIT PAYMENT.—No provision of this subsection
shall be construed as prohibiting any credit union from purchasing any commercial insurance policy or fidelity bond, except
that, subject to any requirement described in paragraph
(5)(A)(iii), such insurance policy or bond shall not cover any
legal or liability expense of the credit union which is described
in paragraph (5)(A).".
SEC. 2524. AMENDMENTS RELATING TO CIVIL FORFEITURE.
Section 981 of title 18, United States Code, is amended—
(1) in subsection (a)(1)(C)—
(A) by inserting "1032," after "1014,"; and
(B) by inserting "or a violation of section 1341 or 1343 of
such title affecting a financial institution" before the
period;
(2) in subsection (b)—
(A) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; and
(B) by striking all that appears before subparagraph (A)
(as so redesignated by subparagraph (A) of this paragraph)
and inserting the following:
"G)X1) Any property—
"(A) subject to forfeiture to the United States under subparagraph (A) or (B) of subsection (a)(1) of this section—
"(i) may be seized by the Attorney General; or
"(ii) in the case of property involved in a violation of
section 5313(a) or 5324 of title 31, United States Code, or
section 1956 or 1957 of this title investigated by the Secretary of the Treasury or the United States Postal Service,
may be seized by the Secretary of the Treasury or the
Postal Service; and
"(B) subject to forfeiture to the United States under subparagraph (C) of subsection (a)(1) of this section may be seized by the
Attorney General, the Secretary of the Treasury, or the Postal
Service.
"(2) Property shall be seized under paragraph (1) of this subsection
upon process issued pursuant to the Supplemental Rules for certain
Admiralty and Maritime Claims by any district court of the United
States having jurisdiction over the property, except that seizure
without such process may be made when—";
104 STAT. 4874
PUBLIC LAW 101-647—NOV. 29, 1990
(3) in subsection (eX3), by striking "(if the affected financial
institution is in receivership or liquidation)"; and
(4) in subsection (eX4), by striking "(if the affected Jjnancial
institution is not in receivership or liquidation)".
SEC. 2525. CIVIL AND CRIMINAL FORFEITURE FOR FRAUD IN THE SALE
OF ASSETS BY THE RESOLUTION TRUST CORPORATION, FDIC,
ORNCUA.
(a) CIVIL FORFEITURE.—
(1) I N GENERAL.—Section 981(aXl) of title 18, United States
Code, is amended by adding the following new subparagraphs:
"(D) Any property, real or personal, which represents or is
traceable to the gross receipts obtained, directly or indirectly,
from a violation of—
"(i) section 666(aXl) (relating to Federal program fraud);
"(ii) section 1001 (relating to fraud and false statements);
"(iii) section 1031 (relating to major fraud eigainst the
United States);
"(iv) section 1032 (relating to concealment of assets from
conservator or receiver of insured financial institution);
"(v) section 1341 (relating to mail fraud); or
"(vi) section 1343 (relating to wire fraud),
if such violation relates to the sale of assets acquired or held by
the Resolution Trust Corporation, the Federal Deposit Insurance Corporation, as conservator or receiver for a financial
institution, or any other conservator for a financial institution
appointed by the Office of the Comptroller of the Currency or
the Office of Thrift Supervision or the National Credit Union
Administration, as conservator or liquidating agent for a financial institution.
"(E) With respect to an offense listed in subsection (aXlXD)
committed for the purpose of executing or attempting to execute
any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent statements, pretenses,
representations or promises, the gross receipts of such an offense shall include all property, real or personal, tangible or
intangible, which thereby is obtained, directly or indirectly.".
(2) TECHNICAL AND CONFORMING AMENDMENT.—Section 981(e)
of title 18, United States Code, is amended by inserting after
paragraph (6) (as added by section 108(3) of this Act) the following new paragraph:
"(7) In the case of property referred to in subsection
(aXlXD), to the Resolution Trust Corporation, the Federal
Depc^it Insurance Corporation, or any other Federal financial institution regulatory agency (as defined in section
8(eX7XD) of the Federal Deposit Insurance Act)v".
(b) CRIMINAL FORFEITURE.—Section 982(a) of title 18, Uhited States
Code, is amended by adding the following new paragraphs:
"(3) The court, in imposing a sentence on a person convicted
of an offense under—
"(A) section 666(aXl) (relating to Federal program fraud);
"(B) section 1001 (relating to fraud and false statements);
"(C) section 1031 (relating to major fraud against the
United States);
"(D) section 1032 (relating to concealment of assets from
conservator, receiver, or liquidating agent of insured financial institution);
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4875
"(E) section 1341 (relating to mail fraud); or
"(F) section 1343 (relating to wire fraud),
involving the sale of assets acquired or held by the Resolution
Trust Corporation, the Federal Deposit Insurance Corporation,
as conservator or receiver for a financial institution or any
other conservator for a financial institution appointed by the
Office of the Comptroller of the Currency or the Office of Thrift
Supervision, or the National Credit Union Administration, as
conservator or liquidating Eigent for a financial institution, shall
order that the person forfeit to the United States any property,
real or personal, which represents or is traceable to the gross
receipts obtained, directly or indirectly, as a result of such
violation.
"(4) With respect to an offense listed in subsection (aX3)
committed for the purpose of executing or attempting to execute
any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent statements, pretenses,
representations, or promises, the gross receipts of such an offense shall include any property, real or personal, tangible or
intangible, which is obtained, directly or indirectly, as a result
of such offense.".
SEC. 2526. PROHIBITION ON ACQUISITIONS FROM CONSERVATORS AND
RECEIVERS OF DEPOSITORY INSTITUTIONS BY CONVICTED
FELONS.
(a) FDIC INSURED DEPOSITORY INSTITUTIONS.—Section 11 of the
Federal Deposit Insurance Act (12 U.S.C. 1821) is amended by
adding at the end the following new subsection:
"(p) CERTAIN CONVICTED DEBTORS PROHIBITED FROM PURCHASING
ASSETS.—
"(1) CONVICTED DEBTORS.—Except as provided in paragraph
(2), any individual who—
"(A) has been convicted of an offense under section 215,
656, 657, 1005, 1006, 1007, 1008, 1014, 1032, 1341, 1343, or
1344 of title 18, United States Code, or of conspiring to
commit such an offense, affecting any insured depository
institution for which any conservator or receiver has been
appointed; and
"(B) is in default on any loan or other extension of credit
from such insured depository institution which, if not paid,
will cause substantial loss to the institution, any deposit
insurance fund, the Corporation, the FSLIC Resolution
Fund, or the Resolution Trust Corporation,
may not purchase any asset of such institution from the conservator or receiver.
"(2) SETTLEMENT OF CLAIMS.—Paragraph (1) shgill not apply to
the sale or transfer by the Corporation of any asset of any
insured depository institution to any individual if the sale or
transfer of the asset resolves or settles, or is part of the resolution or settlement, of—
"(A) 1 or more claims that have been, or could have been,
asserted by the Corporation against the individual; or
"(B) obligations owed by the individual to any insured
depository institution, the FSLIC Resolution Fund, the
Resolution Trust Corporation, or the Corporation.".
104 STAT. 4876
PUBLIC LAW 101-647—NOV. 29, 1990
(b) INSURED CREDIT UNIONS.—Section 207 of the Federal Credit
Union Act (12 U.S.C. 1787) is amended by adding at the end the
following new subsection:
"(q) PROHIBITION ON CERTAIN ACQUISITIONS OF ASSETS.—
"(1) CONVICTED DEBTORS.—Except as provided in paragraph
(2), any individual who—
"(A) has been convicted of an offense under section 215,
657, 1006, 1014, 1032, 1341, 1343, or 1344 of title 18, United
States Code, or of conspiring to commit any such offense,
affecting any insured credit union for which the Board is
appointed conservator or liquidating agent; and
(B) is in default on any loan or other extension of credit
from such insured credit union which, if not paid, will cause
substantial loss to the credit union, the National Credit
Union Share Insurance Fund, or the Board,
may not purchase any asset of such credit union from the
conservator or liquidating agent.
"(2) SETTLEMENT OP CLAIMS.—Paragraph (1) shall not apply to
the sale or transfer by the Board of any asset of any insured
credit union to any individual if the sale or transfer of the asset
resolves or settles, or is part of the resolution or settlement, of—
"(A) 1 or more claims that have been, or could have been,
asserted by the Board against the individual; or
"(B) obligations owed by the individual to the insured
credit union or the Board.".
(c) LIMITATION ON R T C ASSET SALES,—Section 21A(f) of the Federal Home Loan Bank Act (12 U.S.C. 1441a(f)) is amended to read as
follows:
"(f) LIMITATION ON CERTAIN CORPORATION ACTIVITIES.—
Regulations.
"(1) CERTAIN SALES PROHIBITED.—The Corporation shall prescribe regulations to prohibit the sale of assets of a failed
institution by the Corporation to any person who—
"(AXi) has defaulted, or was a member of a partnership or
an officer or director of a corporation which has defaulted,
on 1 or more obligations the aggregate amount of which
exceed $1,000,000 to such failed institution;
"(ii) has been found to have engaged in fraudulent activity in connection with any obligation referred to in clause
(i); and
"(iii) proposes to purchase any such asset in whole or in
part through the use of the proceeds of a loan or advance of
credit from the Corporation or from any institution subject
to the jurisdiction of the Corporation pursuant to paragraph (3XA);
"(B) participated, as an officer or director of such failed
institution or of any affiliate of such institution, in a material way in transactions that resulted in a substantial loss
to such failed institution;
"(C) has been removed from, or prohibited from participating in the affairs of, such failed institution pursuant to
any final enforcement action by an appropriate Federal
banking agency; or
"(D) has demonstrated a pattern or practice of defalcation
regarding obligations to such failed institution.
"(2) SETTLEMENT OF CLAIMS; DEFINITIONS.—
"(A) SETTLEMENT OF CLAIMS.—Nothing in this subsection
shall prohibit the Corporation from selling or otherwise
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4877
transferring any asset to any person if the sale or transfer
of the asset resolves or settles, or is part of the resolution or
settlement, of obligations owed by the person to the failed
institution or the Corporation.
"(B) DEFINITIONS.—For purposes of paragraph (1)—
"(i) DEFAULT.—The term 'default' means a failure to
comply with the terms of a loan or other obligation to
such an extent that the property securing the obligation is foreclosed upon.
"(ii) AFFILIATE.—The term 'affiliate' has the meaning
given to such term in section 2(k) of the Bank Holding
Company Act of 1956.".
SEC. 2527. EXPEDITED PROCEDURES FOR CERTAIN CLAIMS.
(a) EXPEDITED PROCEDURES FOR CERTAIN CLAIMS.—Section 11 of the
Federal Deposit Insurance Act (12 U.S.C. 1821) is amended by
inserting after subsection (p) (as added by section 2526 of this title)
the following new subsection:
"(q) EXPEDITED PROCEDURES FOR CERTAIN CLAIMS.—
"(1) TIME FOR FILING NOTICE OF APPEAL.—The notice of appeal
of any order, whether interlocutory or final, entered in any case
brought by the Corporation against an insured depository
institution's director, officer, employee, agent, attorney,
accountant, or appraiser or any other person employed by or
providing services to an insured depository institution shall be
filed not later than 30 days after the date of entry of the order.
The hearing of the appeal shall be decided not later than 120
days after the date of the notice of appeal. The appeal shall be
decided not later than 180 days after the date of the notice of
appeal.
"(2) ScHEDUUNG.—Consistent with section 1657 of title 18,
United States Code, a court of the United States shall expedite
the consideration of any case brought by the Corporation
against an insured depository institution's director, officer, employee, agent, attorney, accountant, or appraiser or any other
person employed by or providing services to an insured depository institution. As far as practicable the court shall give such
case priority on its docket.
"(3) JUDICIAL DISCRETION.—The court may modify the schedule and limitations stated in paragraphs (1) and (2) in a particular case, based on a specific finding that the ends of justice that
would be served by making such a modification would outweigh
the best interest of the public in having the case resolved
expeditiously.".
Ot>) CONFORMING AMENDMENT.—Section 1657 of title 18, United
States Code, is amended by inserting "section 11, 12, or 13 of the
Federal Deposit Insurance Act" after "consideration of any action
brought under".
SEC. 2528. FRAUDULENT CONVEYANCES AVOIDABLE BY CONSERVATORS
AND RECEIVERS.
(a) INSURED DEPOSITORY INSTITUTIONS OTHER THAN INSURED
CREDIT UNIONS.—Section 11(d) of the Federal Deposit Insurance Act
(12 U.S.C. 1821(d)) is amended by adding at the end the following
new paragraph:
"(17) FRAUDULENT TRANSFERS.—
104 STAT. 4878
PUBLIC LAW 101-647—NOV. 29, 1990
"(A) I N GENERAL.—The Corporation, as conservator or
receiver for any insured depository institution, and any
conservator appointed by the Comptroller of the Currency
or the Director of the Office of Thrift Supervision may
avoid a transfer of any interest of an institution-affiliated
party, or any person who the Corporation or conservator
determines is a debtor of the institution, in property, or any
obligation incurred by such party or person, that was made
within 5 years of the date on which the Corporation or
conservator was appointed conservator or receiver if such
party or person voluntarily or involuntarily made such
transfer or incurred such liability with the intent to hinder,
delay, or defraud the insured depository institution, the
Corporation or other conservator, or any other appropriate
Federal banking agency.
"(B) RIGHT OF RECOVERY.—To the extent a transfer is
avoided under subparagraph (A), the Corporation or any
conservator described in such subparagraph may recover,
for the benefit of the insured depository institution, the
property transferred, or, if a court so orders, the value of
such property (at the time of such transfer) from—
"(i) the initial transferee of such transfer or the
institution-affiliated party or person for whose benefit
such transfer was made; or
"(ii) any immediate or mediate transferee of any such
initial transferee.
"(C) RIGHTS OF TRANSFEREE OR OBLIGEE.—The Corporation
or any conservator described in subparagraph (A) may not
recover under subparagraph (B) from—
"(i) any transferee that takes for value, including
satisfaction or securing of a present or antecedent debt,
in good faith; or
"(ii) any immediate or mediate good faith transferee
of such transferee.
"(D) RIGHTS UNDER THIS PARAGRAPH.—The rights under
this paragraph of the Corporation and any conservator
described in subparagraph (A) shall be superior to any
rights of a trustee or any other party (other than any party
which is a Federal agency) under title 11, United States
Code.",
(b) INSURED CREDIT UNIONS.—Section 207(b) of the Federal Credit
Union Act (12 U.S.C. 1787(b)) is amended by adding at the end the
following new paragraph:
"(16) FRAUDULENT TRANSFERS.—
"(A) I N GENERAL.—The Board, as conservator or liquidating agent for any insured credit union, may avoid a transfer
of any interest of an institution-affiliated party, or any
person who the Board determines is a debtor of the institution, in property, or any obligation incurred by such party
or person, that was made within 5 years of the date on
which the Board becomes conservator or liquidating agent
if such party or person voluntarily or involuntarily made
such transfer or incurred such liability with the intent to
hinder, delay, or defraud the insured credit union or the
Board.
"(B) RIGHT OF RECOVERY.—To the extent a transfer is
avoided under subparagraph (A), the Board may recover,
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4879
for the benefit of the insured credit union, the property
transferred, or, if a court so orders, the value of such
property (at the time of such transfer) from—
"(i) the initial transferee of such transfer or the
institution-affiliated party or person for whose benefit
such transfer was made; or
"(ii) any immediate or mediate transferee of any such
initial transferee,
"(C) RIGHTS OF TRANSFEREE OR OBUGEE.—The Board may
not recover under subparagraph (B) from—
"(i) any transferee that takes for value, including
satisfaction or securing of a present or antecedent debt,
in good faith; or
"(ii) any immediate or mediate good faith transferee
of such transferee.
"(D) RIGHTS UNDER THIS PARAGRAPH.—The rights of
the
Board under this paragraph shall be superior to any rights
of a trustee or any other party (other than any party which
is a Federal agency) under title 11, United States Code.".
Subtitle C—Improved Procedures for Handling
Banking-Related Cases
SEC. 2531. WIRETAP AUTHORITY FOR BANK FRAUD AND RELATED OFFENSES; TECHNICAL AMENDMENTS TO WIRETAP LAW.
Section 2516 of title 18, United States Code, is amended—
(1) in paragraph (IXc)—
(A) by inserting "section 215 (relating to bribery of bank
officials)," before "section 224";
(B) by inserting "section 1014 (relating to loans and credit
applications generally; renewsils and discounts)," before
"sections 1503,";
(C) by inserting "section 1032 (relating to concealment of
assets)," before "section 1084";
(D) by inserting "section 1344 (relating to bank fraud),"
before "sections 2251 and 2252"; and
(E) by striking "the section in chapter 65 relating to
destruction of an energy facility,"; and
(2) in paragraph (1)—
(A) by striking the 1st subparagraph which is designated
as (m) ;
(B) by striking "and" at the end of the 2d subparagraph
designated as "(m)" (as determined before the amendment
made by subparagraph (A) of this paragraph);
(C) by striking the period at the end of subparagraph (n)
and inserting "; and"; and
(D) by adding at the end the following new subparagraph:
"(o) any conspiracy to commit any offense described in any
subparagraph of this paragraph."; and
(3) in paragraph (l)(j), by striking "any violation of section
16'79(c)(2) (relating to destruction of a natural gas pipeline) or
subsection (i) or (n) of section 1472 (relating to aircraft piracy) of
title 49, of the United States Code" and inserting "any violation
of section 11(c)(2) of the Natural Gas Pipeline Safety Act of 1968
(relating to destruction of a natural gas pipeline) or subsection
104 STAT. 4880
PUBLIC LAW 101-647—NOV. 29, 1990
(i) or (n) of section 902 of the Federal Aviation Act of 1958
(relating to aircraft piracy)".
SEC. 2532. FOREIGN INVESTIGATIONS BY FEDERAL BANKING AGENCIES
AND INVESTIGATIONS ON BEHALF OF FOREIGN BANKING
AUTHORITIES.
(a) APPROPRIATE FEDERAL BANKING AGENCIES, GENERALLY.—Sec-
tion 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818) is
amended by adding at the end thereof the following new subsection:
"(v) FOREIGN INVESTIGATIONS.—
"(1) REQUESTING ASSISTANCE FROM FOREIGN BANKING AUTHORI-
TIES.—In conducting any investigation, examination, or enforcement action under this Act, the appropriate Federal banking
agency may—
"(A) request the assistance of any foreign banking authority; £Uld
"(B) maintain an ofRce outside the United States.
"(2) PROVIDING ASSISTANCE TO FOREIGN BANKING AUTHORITIES.—
"(A) I N GENERAL.—Any appropriate Federal banking
agency may, at the request of any foreign banking authority, assist such authority if such authority states that the
requesting authority is conducting an investigation to
determine whether any person has violated, is violating, or
is about to violate any law or regulation relating to banking
matters or currency transactions administered or enforced
by the requesting authority.
"(B) INVESTIGATION BY FEDERAL BANKING AGENCY.—Any
appropriate Federal banking agency may, in such agency's
discretion, investigate and collect information and evidence
pertinent to a request for assistance under subparagraph
(A). Any such investigation shall comply with the laws of
the United States and the policies and procedures of the
appropriate Federal banking agency.
"(C) FACTORS TO CONSIDER.—In deciding whether to provide assistance under this paragraph, the appropriate Federal banking agency shall consider—
"(i) whether the requesting authority has agreed to
provide reciprocal assistance with respect to banking
matters within the jurisdiction of any appropriate Federal banking agency; and
"(ii) whether compliance with the request would
prejudice the public interest of the United States.
"(D) TREATMENT OF FOREIGN BANKING AUTHORITY.—For
purposes of any Federal law or appropriate Federal banking agency regulation relating to the collection or transfer
of information by any appropriate Federal banking agency,
the foreign banking authority shall be t t.3.ted as another
appropriate Federal banking agency.
"(3) RULE OF CONSTRUCTION.—Paragraphs (1) and (2) shall not
be construed to limit the authority of an appropriate Federal
banking agency or any other Federal agency to provide or
receive assistance or information to or from any foreign authority with respect to any matter.".
(b) FOREIGN INVESTIGATIONS BY F D I C AND R T C AS CONSERVATOR
OR RECEIVER.—Section 11 of the Federal Deposit Insurance Act (12
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4881
U.S.C. 1821) is amended by inserting after subsection (q) (as added by
section 2527 of this Act) the following new subsection:
"(r) FOREIGN INVESTIGATIONS,—The Corporation and the Resolution Trust Corporation, as conservator or receiver of any insured
depository institution and for purposes of carrying out any power,
authority, or duty with respect to an insured depository
institution—
"(1) may request the assistance of any foreign banking
authority and provide assistance to any foreign banking authority in accordance with section 8(v); and
"(2) may each maintain an office to coordinate foreign
investigations or investigations on behalf of foreign banking
authorities.",
(c) NATIONAL CREDIT UNION ADMINISTRATION, GENERALLY.—Sec-
tion 206 of the Federal Credit Union Act (12 U.S.C. 1786) is amended
by inserting after subsection (t) (as added by section 2503(b) of this
Act) the following new subsection:
"(u) FOREIGN INVESTIGATIONS.—
"(1) REQUESTING ASSISTANCE FROM FOREIGN BANKING AUTHORI-
TIES.—In conducting any investigation, examination, or enforcement action under this Act, the Board may—
"(A) request the assistance of £iny foreign banking authority; and
"(B) maintain an office outside the United States.
"(2) PROVIDING ASSISTANCE TO FOREIGN BANKING AUTHORITIES.—
"(A) I N GENERAL.—The Board may, at the request of any
foreign banking authority, assist such authority if such
authority states that the requesting authority is conducting
an investigation to determine whether any person has violated, is violating, or is about to violate any law or regulation relating to banking matters or currency transactions
administered or enforced by the requesting authority.
"(B) INVESTIGATION BY FEDERAL BANKING AGENCY.—The
Board may, in the Board's discretion, investigate and collect
information and evidence pertinent to a request for assistance under subparagraph (A). Any such investigation shall
comply with the laws of the United States and the policies
and procedures of the Board.
"(C) FACTORS TO CONSIDER.—In deciding whether to provide assistance under this paragraph, the Board shall
consider—
"(i) whether the requesting authority has agreed to
provide reciprocal assistance with respect to banking
matters within the jurisdiction of the Board or any
appropriate Federal banking agency; and
"(ii) whether compliance with the request would
prejudice the public interest of the United States.
"(D) TREATMENT OF FOREIGN BANKING AUTHORITY.—For
'
purposes of any Federal law or Board regulation relating to
the collection or transfer of information by the Board or
any appropriate Federal banking agency, the foreign banking authority shall be treated as another appropriate Federal banking agency.
"(3) RULE OF CONSTRUCTION.—Paragraphs (1) and (2) shall not
be construed to limit the authority of the Board or any other
104 STAT. 4882
PUBLIC LAW 101-647—NOV. 29, 1990
Federal agency to provide or receive assistance or information
to or from any foreign authority with respect to any matter.",
(d) FOREIGN INVESTIGATIONS BY BOARD AS CONSERVATOR OR LIQUIDATING AGENT.—Section 207 of the Federal Credit Union Act (12
U.S.C. 1787) is amended by inserting after subsection (q) (as added by
section 2526(b) of this Act) the following new subsection:
"(r) FOREIGN INVESTIGATIONS.—The Board, as conservator or liquidating agent of any insured credit union and for purposes of
carrying out any power, authority, or duty with respect to an
insured credit union—
"(1) may request the assistance of any foreign banking
authority and provide assistance to any foreign banking authority in accordance with section 206(u); and
"(2) may maintain an office to coordinate foreign investigations or investigations on behalf of foreign banking authorities.".
SEC. 2533. EXTENSION OF STATUTE
PENALTIES.
OF LIMITATIONS
FOR CIVIL
Section 951 of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (12 U.S.C. 1833a) is amended by adding at
the end the following:
"(g) STATUTE OF LIMITATIONS.—A civil action under this section
may not be commenced later than 10 years after the cause of action
accrues.".
SEC. 2534. C L A R I F I C A T I O N OF SUBPOENA AUTHORITY FOR FDIC, RTC,
AND NCUA ACTING AS CONSERVATOR, RECEIVER, OR LIQUIDATING AGENT.
(a) FDIC AND RTC AUTHORITY.—Section ll(dX2) of the Federal
Deposit Insurance Act (12 U.S.C. 1821(dX2)) is amended by redesignating subparagraph (I) as subparagraph (J) and by inserting
after subparagraph (H) the following new subparagraph:
"(I) SUBPOENA AUTHORITY.—
"(i) IN GENERAL.—The Corporation may, as conservator, receiver, or exclusive manager and for purposes of
carrying out any power, authority, or duty with respect
to an insured depository institution (including determining any claim against the institution and determining and realizing upon any asset of any person in the
course of collecting money due the institution), exercise
any power established under section 8(n), and the provisions of such section shall apply with respect to the
exercise of any such power under this subparagraph in
the same manner as such provisions apply under such
section.
"(ii) AUTHORITY OF BOARD OF DIRECTORS.—A subpoena
or subpoena duces tecum may be issued under clause (i)
only by, or with the written approval of, the Board of
Directors or their designees (or, in the case of a subpoena or subpoena duces tecum issued by the Resolution Trust Corporation under this subparagraph and
section 21A(bX4), only by, or with the written approval
of, the Board of Directors of such Corporation or their
designees).
"(iii) RULE OF CONSTRUCTION.—This subsection shall
not be construed as limiting any rights that the Cor-
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4883
poration, in any capacity, might otherwise have under
section 10(c) of this Act.'.
0)) NCUA AUTHORITY.—Section 207(bX2) of the Federal Credit
Union Act (12 U.S.C. 1787(b)(2)) is amended by redesignating
subparagraph (I) (as so redesignated by section 202(b) of this Act) as
subparagraph (J) and by inserting after subparagraph (H) (as added
by such section) the following new subparagraph:
"(I) SUBPOENA AUTHORITY.—
"(i) IN GENERAL.—The Board may, as conservator or
liquidating agent and for purposes of carrying out any
power, authority, or duty with respect to an insured
credit union (including determining any claim against
the credit union and determining gind realizing upon
any asset of any person in the course of collecting
money due the credit union), exercise any power established under section 206(p), and the provisions of such
section shall apply with respect to the exercise of any
such power under this subparagraph in the same
manner as such provisions apply under such section,
"(ii) AUTHORITY OF BOARD.—A subpoena or subpoena
duces tecum may be issued under clause (i) only by,
or with the written approval of, the Board or their
designees.
"(iii) RULE OF CONSTRUCTION.—This subsection shall
not be construed as limiting any rights that the Board,
in any capacity, might otherwise have under section
206(p).".
Subtitle D—Structural Reforms to Improve the
Federal Response to Crimes Affecting Financial Institutions
SEC. 2536. ESTABLISHMENT OF FINANCIAL INSTITUTIONS CRIME UNIT 28 USC 509 note.
AND OFFICE OF SPECIAL COUNSEL FOR FINANCIAL INSTITUTIONS CRIME UNIT.
(a) ESTABLISHMENT.—There is established within the Office of the
Deputy Attorney General in the Department of Justice a Financial
Institutions Fraud Unit to be headed by a special counsel (hereafter
in this title referred to as the "Special Counsel").
(b) RESPONSIBILITY.—The Financial Institutions Fraud Unit and
the Special Counsel shall be responsible to and shall report directly
to the Deputy Attorney General.
(c) SUNSET.—The provisions of this section shall cease to apply at
the end of the 5-year period beginning on the date of the enactment
of this Act.
SEC. 2537. APPOINTMENT RESPONSIBILITIES AND COMPENSATION OF 28 USC 509 note.
THE SPECIAL COUNSEL.
(a) APPOINTMENT.—The Special Counsel shall be appointed by the
President, by and with the advice and consent of the Senate.
(b) RESPONSIBIUTIES.—The Special Counsel shall—
(1) supervise and coordinate investigations and prosecutions
within the Department of Justice of fraud and other criminal
activity in and against the financial services industry, including, to the extent consistent with the independent counsel
104 STAT. 4884
PUBLIC LAW 101-647—NOV. 29, 1990
provision of chapter 40 of title 28, United States Code, any such
activity by any current or former elected official or high-level
executive branch official or any member of the immediate
family of any such official;
(2) ensure that Federal law relating to civil enforcement, asset
seizure and forfeiture, money laundering, and racketeering are
used to the fullest extent authorized to recover the proceeds of
unlawful activities from persons who have committed crimes in
and against the financial services industry; and
(3) ensure that adequate resources are made available for the
investigation and prosecution of fraud and other criminal activity in and against the financial services industry.
(c) COMPENSATION.—The Special Counsel shall be paid at the basic
pay payable for level V of the Executive Schedule.
28 u s e 509 note.
SEC. 2538. ASSIGNMENT OF PERSONNEL.
There shall be assigned to the Financial Institutions Fraud Unit
such personnel as the Attorney Gteneral deems necessary to provide
an appropriate level of enforcement activity in the area of fraud
and other criminal activity in and against the financial services
industry.
28 u s e 509 note.
SEC. 2539. FINANCIAL INSTITUTIONS FRAUD TASK FORCES.
(a) EsTABUSHMENT.—The Attorney General shall establish such
financial institutions fraud task forces as the Attorney General
deems appropriate to ensure that adequate resources are made
available to investigate and prosecute crimes in or against financial
institutions and to recover the proceeds of unlawful activities from
persons who have committed fraud or have engaged in other criminal activity in or against the financial services industry.
(b) SUPERVISION.—The Attorney General shall determine how
each task force shall be supervised and may provide for the supervision of any task force by the Special Counsel.
(c) SENIOR INTERAGENCY GROUP.—
(1) ESTABUSHMENT.—The Attorney General shall establish a
senior interagency group to assist in identifying the most
significant financial institution fraud cases and in allocating
investigative and prosecutorial resources where they are most
needed.
(2) MEMBERSHIP.—The senior interagency group shall be
chaired by the Special Counsel and shall include senior officials
from—
(A) the Department of Justice, including representatives
of the Federal Bureau of Investigation, the Advisory
Committee of United States Attorneys, and other relevant
entities;
(B) the Department of the Treasury;
(C) the Office of Thrift Supervision;
(D) the Resolution Trust Corporation;
(E) the Federal Deposit Insurance Corporation;
(F) the Office of the Comptroller of the Currency;
(G) the Board of Governors of the Federal Reserve
System; and
(H) the National Credit Union Administration.
(3) DUTIES.—This senior interagency group shall enhance
interagency coordination and assist in accelerating the investigations and prosecution of financial institutions fraud.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4885
SEC. 2540. RTC ENFORCEMENT DIVISION.
Section 21A(b)(12) of the Federal Home Loan Bank Act (12 U.S.C.
1441a(b)(12)) is amended by adding at the end thereof the following
new subparagraph:
"(G) The Corporation shall maintain an executive-level
position and dedicated staff to assist and advise the Corporation and other agencies in pursuing cases, civil claims,
and administrative enforcement actions against institutionaffiliated parties of insured depository institutions under
the jurisdiction of the Corporation. These personnel shall Reports,
have such duties as the Corporation establishes, including
the duty to compile and publish a report to the Congress on
the coordinated pursuit of claims by all Federal financial
institution regulatory agencies, including the Department
of Justice and the Securities and Exchange Commission.
The report shall be published before December 31,1990 and
updated semiannually after such date.".
Subtitle E—Reporting Requirements
SEC. 2546. REPORTING REQUIREMENTS.
(a) IN GENERAL.—
(1) DATA COLLECTION.—The Attorney General shall compile
and collect data concerning—
(A) the nature and number of civil and criminal investigations, prosecutions, and related proceedings, and civil
enforcement and recovery proceedings, in progress with
respect to banking law offenses under sections 981, 1008,
1032, and 3322(d) of title 18, United States Code, and section
951 of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 and conspiracies to commit any
such offense, including inactive investigations of such
offenses;
(B) the number of—
(i) investigations, prosecutions, and related proceedings described in subparagraph (A) which are inactive
as of the close of the reporting period but have not been
closed or declined; and
(ii) unaddressed referrals which allege criminal misconduct involving offenses described in subparagraph
(A),
and the reasons such matters are inactive and the referrals
unaddressed;
(C) the nature and number of such matters closed, settled,
or litigated to conclusion; and
(D) the results achieved, including convictions and pretrial diversions, fines and penalties levied, restitution
assessed and collected, and damages recovered, in such
matters.
(2) ANALYSIS AND REPORT.—The Attorney General shall analyze and report to the Congress on the data described in paragraph (1) and its coordination and other related activities
named in section 2539(c)(2) and shall provide such report on the
data monthly through December 31, 1991, and quarterly after
such date.
28 USC 522 note.
104 STAT. 4886
PUBLIC LAW 101-647—NOV. 29, 1990
(b) SPECIFICS OF REPORT.—The report required by subsection (a)
shall—
(1) categorize data as to various t5rpes of financial institutions
and appropriate dollar loss categories;
(2) disclose data for each Federal judicial district;
(3) describe the activities of the Financial Institution Fraud
Unit; and
(4) list—
(A) the number of institutions, categorized by failed and
open institutions, in which evidence of significant fraud,
unlawful activity, insider abuse or serious misconduct has
been alleged or detected;
(B) civil, criminal, and administrative enforcement actions, including those of the Federal financial institutions
regulatory agencies, brought against offenders;
(C) any settlements or judgments obtained against offenders;
(D) indictments, guilty pleas, or verdicts obtained against
offenders; and
(E) the resources allocated in pursuit of investigations,
prosecutions, and sentencings (including indictments, guilty
pleas, or verdicts obtained against offenders) and related
proceedings.
Public
SEC. 2547. CIVIL DISCLOSURE.
(a) PROVISIONS APPUCABLE TO FEDERAL BANKING AGENCIES.—
(1) IN GENERAL,—Section 8(u) of the Federal Deposit Insurance Act (12 U.S.C. 1818(u)) is amended to read £is follows:
"(u) PuBuc DISCLOSURES OF FINAL ORDERS AND AGREEMENTS.—
"(1) IN GENERAL.—The appropriate Federal banking agency
shall publish and make available to the public on a monthly
basis—
"(A) any written agreement or other written statement
for which a violation may be enforced by the appropriate
Federal banking agency, unless the appropriate Federal
banking agency, in its discretion, determines that publication would be contrary to the public interest;
"(B) any final order issued with respect to any administrative enforcement proceeding initiated by such agency
under this section or any other law; and
"(C) any modification to or termination of any order or
agreement made public pursuant to this paragraph.
"(2) HEARINGS.—All hearings on the record with respert io
any notice of charges issued by a Federal banking agency shall
be open to the public, unless the agency, in its discretion,
determines that holding an open hearing would be contrary to
the public interest.
"(3) REPORTS TO CONGRESS.—A written report shall be made
part of a determination not to hold a public hearing pursuant to
paragraph (2) or not to publish a document pursuant to paragraph (IXA). At the end of each calendar quarter, all such
reports shall be transmitted to the Congress.
"(4) TRANSCRIPT OF HEARING.—A transcript that includes all
testimony and other documentary evidence shall be prepared
for gdl hearings commenced pursuant to subsection (i). A transcript of public hearings shall be made available to the public
pursuant to section 552 of title 5, United States Code.
PUBLIC LAW 101-647—NOV. 29, 1990
"(5)
DELAY
OF
PUBLICATION
UNDER
EXCEPTIONAL
104 STAT. 4887
CIR-
CUMSTANCES.—If the appropriate Federal banking agency
makes a determination in writing that the publication of a final
order pursuant to paragraph (IXB) would seriously threaten the
safety and soundness of an insured depository institution, the
agency may delay the publication of the document for a reasonable time.
"(6) DOCUMENTS FILED UNDER SEAL IN PUBUC ENFORCEMENT
HEARINGS.—The appropriate Federal banking agency may file
any document or part of a document under seal in any administrative enforcement hearing commenced by the agency if disclosure of the document would be contrary to the public interest. A
written report shall be made part of any determination to
withhold any part of a document from the transcript of the
hearing required by paragraph (2).
"(7) RETENTION OF DOCUMENTS.—Each Federal banking
agency shall keep and maintain a record, for a period of at least
6 years, of all documents described in paragraph (1) and all
informal enforcement agreements and other supervisory actions
and supporting documents issued with respect to or in connection with any administrative enforcement proceeding initiated
by such agency under this section or any other laws.
"(8) DISCLOSURES TO CONGRESS.—No provision of this subsection may be construed to authorize the withholding, or to
prohibit the disclosure, of any information to the Congress or
any committee or subcommittee of the Congress.".
(2) PUBUC HEARINGS.—Section 8(hXl) of the Federal Deposit
Insurance Act (12 U.S.C. 1818(h)(1)) is amended by striking
"Such hearing shall be private, unless the appropriate Federal
banking agency, in its discretion, after fully considering the
views of the party afforded the hearing, determines that a
public hearing is necessary to protect the public interest.".
(3) EFFECTIVE DATE.—The amendment made by paragraph (1) ^^ ^SC 1818
shall apply with respect to all written agreements which are note.
entered into and all written statements which become effective
after the date of the enactment of this Act.
(b) AMENDMENT OF FEDERAL CREDIT UNION ACT.—
(1) I N GENERAL.—Section 206(s) of the Federal Credit Union
Act (12 U.S.C. 1786(s)) is amended to read as follows:
"(s) PUBUC DISCLOSURE OF AGENCY ACTION.—
"(1) I N GENERAL.—The Board shall publish and make available to the public on a monthly basis—
"(A) any written agreement or other written statement
for which a violation may be enforced by the Board, unless
the Board, in its discretion, determines that publication
would be contrary to the public interest;
"(B) any final order issued with respect to any administrative enforcement proceeding initiated by the Board
under this section or any other law; and
"(C) any modification to or termination of any order or
agreement made public pursuant to this paragraph.
"(2) HEARINGS.—All hearings on the record with respect to
any notice of charges issued by the Board shall be open to the
public, unless the agency, in its discretion, determines that
holding an open hearing would be contrary to the public
interest.
104 STAT. 4888
PUBLIC LAW 101-647—NOV. 29, 1990
"(3) REPORTS TO CONGRESS.—A written report shall be made
part of a determination not to hold a public hearing pursuant to
paragraph (2) or not to publish a document pursuant to paragraph (1)(A). At the end of each calendar quarter, all such
reports shall be transmitted to the Congress,
"(4) TRANSCRIPT OF HEARING.—A transcript that includes all
testimony and other documentary evidence shall be prepared
for all hearings commenced pursuant to subsection (k). A transcript of public hearings shall be made available to the public
pursuant to section 552 of title 5, United States Code.
"(5)
DELAY
OF
PUBUCATION
UNDER
EXCEPTIONAL
CIR-
CUMSTANCES.—If the Board makes a determination in writing
that the publication of a final order pursuant to paragraph
(1)(B) would seriously threaten the safety and soundness of an
insured depository institution, the agency may delay the
publication of the document for a reasonable time.
"(6) DOCUMENTS FILED UNDER SEAL IN PUBLIC ENFORCEMENT
^P<>^^-
HEARINGS.—The Board may file any document or part of a
document under seal in any administrative enforcement hearing commenced by the agency if disclosure of the document
would be contrary to the public interest. A written report shall
be made part of any determination to withhold any part of a
document from the transcript of the hearing required by paragraph (2).
"(7) RETENTION OF DOCUMENTS.—The Board shall keep and
maintain a record, for a period of at least 6 years, of all
documents described in paragraph (1) and all informal enforcement agreements and other supervisory actions and supporting
documents issued with respect to or in connection with any
administrative enforcement proceeding initiated by such agency
under this section or any other laws.
"(8) DISCLOSURES TO CONGRESS.—No provision of this subsection may be construed to authorize the withholding, or to
prohibit the disclosure, of any information to the Congress or
any committee or subcommittee of the Congress.".
(2) PUBLIC HEARING.—Section 206(j)(l) of the Federal Credit
Union Act (12 U.S.C. 1786(j)(l)) is amended by striking "Such
hearing shall be private, unless the Board, in its discretion,
after fully considering the views of the party afforded the
hearing, determines that a public hearing is necessary to protect the public interest.".
SEC. 2548. REPORT ON COURT BUSINESS IMPACT OF SAVINGS AND LOAN
CRISIS.
Section 604(a) of title 28, United States Code, is amended by
adding at the end the following new paragraph:
"(24) Lay before Congress, annually, statistical tables that
will accurately reflect the business imposed on the Federal
courts by the savings and loan crisis.".
P U B U C LAW 101-647—NOV. 29, 1990
104 STAT. 4889
Subtitle F—National Commission on Financial
Institution Reform, Recovery, and Enforcement
SEC. 2551. ESTABLISHMENT.
There is hereby established a commission to be known as the
National Commission on Financial Institution Reform, Recovery,
and Enforcement (hereafter in this title referred to as the
"Commission").
SEC. 2552. DUTIES OF THE COMMISSION.
The Commission shall—
(1) examine and identify the origin and causes of the problems
in the savings and loan industry that led to the enactment of
the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, including consideration of the role of—
(A) State and Federal regulation of savings and loan
associations, including capital and accounting standards;
(B) supervision of, and supervisory resources allocated to,
savings and loan associations by, or under the authority of.
State and Federal Governments;
(C) State and Federal statutes concerning savings and
loan associations, including asset powers legislation;
(D) macroeconomic changes and regional recessions;
(E) competitive factors;
(F) unprecedented fraud and abuse by persons in or connected with savings and loan associations; and
(G) deposit insurance, including changes in the amount
insured and in technology;
(2) recommend, on the basis of the Commission's examination
and investigations under this section, further legislative, regulatory, supervisory, and other administrative changes that
will—
(A) improve the safety and soundness of depository
associations, the Federal deposit insurance funds, and other
Federal insurance programs;
(B) facilitate civil and criminal enforcement actions
concerning financial institutions; and
(C) prevent the recurrence of the problems identified in
the savings and loan industry; and
(3) recommend any other reforms which the Commission
determines to be appropriate.
SEC. 2553. MEMBERSHIP.
(a) NUMBER AND APPOINTMENT.—The Commission shall be composed of 8 members appointed as follows:
(1) 2 individuals appointed by the President.
(2) 3 individuals appointed by the Speaker of the House of
Representatives, 1 of whom shall be appointed upon the recommendation of the minority leader of the House of Representatives.
(3) 3 individuals appointed by the President pro tempore of
the Senate, 2 of whom shall be appointed upon the recommendation of the majority leader of the Senate and 1 of
104 STAT. 4890
PUBLIC LAW 101-647—NOV. 29, 1990
whom shall be appointed upon the recommendation of the
minority leader of the Senate.
(b) EuGiBiLTTY.—No member, officer, or employee of the executive,
legislative, or judicial branch of the Federal Government or of £iny
State or local government may be a member of the Commission.
(c) TERMS.—
(1) IN GENERAL.—Each member shall be appointed for the life
of the Commission.
(2) VACANCY.—A vacancy in the Commission shall be filled in
the manner in which the original appointment was made.
(d) PROHIBITION ON COMPENSATION.—
(1) IN GENERAL.—Except as provided in paragraph (2), members of the Commission shall serve without pay.
(2) TRAVEL EXPENSES.—Each member shall receive travel expenses, including per diem in lieu of subsistence, in accordance
with sections 5702 and 5703 of title 5, United States Code.
(e) QUORUM.—5 members of the Commission shall constitute a
quorum but 3 members may hold hearings.
(f) CHAIRPERSON.—The Chairperson of the Commission shall be
elected by the Commission from among its members.
(g) MEETINGS.—The Commission shall meet at the call of the
Chairperson or of 5 members of the Commission.
(h) PROXY VOTING.—Members of the Commission may vote by
proxy.
SEC. 2554. POWERS OF COMMISSION; HEARINGS AND SESSIONS.
(a) IN GENERAL.—The Commission may, for the purposes of carrying out this subtitle, hold hearings, sit and act at times and places,
take testimony, and receive evidence as the Commission considers
appropriate.
(b) WITNESSES; ADMINISTRATION OF OATHS.—
(1) IN GENERAL.—Subject to paragraph (2) and, in the case of a
subpoena, to subsection (c), the Commission may call witnesses
and administer oaths or affirmations to witnesses appearing
before the Commission.
(2) COORDINATION OF CERTAIN TESTIMONY AND EVIDENCE.—(A)
In any case where the Commission intends to call a witness or
receive evidence (including a witness or evidence to be
subpoened in accordance with subsection (c)) to provide testimony concerning a specific savings and loan association or the
role of any person in connection therewith, the Commission
shall, in writing not less than 21 days prior to the taking of such
testimony or receiving such evidence, provide the Attorney
General, the Director of the Office of Thrift Supervision, and
the Chairperson of the Federal Deposit Insurance Corporation
and the Resolution Trust Corporation with—
(i) the name of the savings and loan association involved;
(ii) the date and location of the testimony or the receipt of
evidence; and
(iii) as appropriate, the name of the witness and a specific
identification of the subject matter about which such witness is to testify or provide evidence, or the specific nature
of the evidence to be received.
(B) If the Attorney General, the Director of the Office of
Thrift Supervision, or the Chairperson of the Federal Deposit
Insurance Corporation and the Resolution Trust Corporation
determines that taking such testimony or receiving such evi-
•^-^^Btf^'
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4891
dence (including witnesses or evidence to be subpoened in
accordance with subsection (c)) would impair, impede, or compromise the investigation, prosecution, or adjudication of a
criminal, civil, or administrative matter or proceeding, the
Attorney General, the Director, or the Chairperson shall
promptly notify the Commission of that determination.
(C) The Commission shall decide whether to proceed to call a
witness or to receive evidence after considering any determination under subparagraph (B)—
(i) on the basis of the Commission's determination that
taking such testimony or receiving such evidence is specifically necessary to carry out the duties of the Commission;
and
(ii) upon an affirmative vote of not fewer than 5 members
of the Commission (or not fewer than 6 members of the
Commission in the case of a witness or evidence to be
subpoened).
(D) The Commission shall notify the official who made the
determination under subparagraph (B) of the Commission's
determination under subparagraph (C).
(c) SUBPOENA POWER.—
(1) ADMINISTRATIVE ASPECTS OF SUBPOENA.—
(A) ATTENDANCE OR PRODUCTION AT DESIGNATED SITE.—
The attendance of witnesses and the production of evidence
may be required from any place within the United States at
any designated place of hearing within the United States.
(B) FEES AND TRAVEL EXPENSES.—Persons served with a
subpoena under this subsection shall be paid the same fees
and mileage for travel within the United States that are
paid witnesses in Federal courts.
(C) No LiABiUTY FOR OTHER EXPENSES.—The Commission
and the United States shall not be liable for any expense,
other than an expense described in subparagraph (B), incurred in connection with the production of any evidence
under this subsection.
(2) FAILURE TO OBEY A SUBPOENA.—
(A) APPLICATION TO COURT.—If
a person refuses to obey a
subpoena issued under this subsection, the Commission
may apply to a district court of the United States for an
order requiring that person to appear before the Commission to give testimony or produce evidence, as the case may
be, relating to the matter under investigation.
(B) JURISDICTION OF COURT.—The application may be
made within the judicial district where the hearing is
conducted or where that person is found, resides, or transacts business.
(C) FAILURE TO COMPLY WITH ORDER.—Any failure to obey
the order of the court may be punished by the court as civil
contempt.
(3) SERVICE OF SUBPOENAS.—The subpoenas of the Commission
shall be served in the manner provided for subpoenas issued by
a United States district court under the Federal Rules of Civil
Procedure for the United States district courts.
(4) SERVICE OF PROCESS.—All process of any court to which
application is to be made under paragraph (3) may be served in
the judicial district in which the person required to be served
resides or may be found.
104 STAT. 4892
PUBLIC LAW 101-647—NOV. 29, 1990
(d) MAILS.—The Commission may use the United States mails in
the same manner and under the same conditions as other departments and agencies of the United States.
(e) INTERIM REPORT.—Not later than 60 days after the date of the
enactment of this Act, the Commission may submit a report to the
Congress concerning the ability of the Commission to obtain
information and evidence necessary to carry out its duties under
this subtitle and including such recommendations concerning additional authority as the Commission deems appropriate.
(f) ADMINISTRATIVE SUPPORT SERVICES.—Upon the request of
the
Commission, the Administrator of General Services shall provide to
the Commission administrative support services on a reimbursable
basis.
(g) POWERS OF MEMBERS AND AGENTS.—Except for actions that
require a vote of the Commission, any member or agent authorized
by the Commission may take any action the Commission may take.
SEC. 2555. STAFF OF COMMISSION; EXPERTS AND CONSULTANTS.
(a) STAFF.—Subject to such regulations as the Commission may
prescribe, the Chairperson may appoint and fix the pay of such
personnel as the Chairperson considers appropriate.
(b) APPLICABILITY OF CERTAIN CIVIL SERVICE LAWS.—The staff of
the Commission may be appointed without regard to the provisions
of title 5, United States Code, governing appointments in the
competitive service, and may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of that title
relating to classification and General Schedule pay rates, except
that an individual so appointed may not receive pay in excess of the
annual rate of basic pay payable for GS-18 of the General Schedule.
(c) EXPERTS AND CONSULTANTS.—Subject to rules prescribed by the
Commission, the Chairperson may procure temporary and intermittent services under section 3109(b) of title 5, United States Code, but
at rates for individuals not to exceed the annual rate of basic pay
payable for GS-18 of the General Schedule.
(d) STAFF OF FEDERAL AGENCIES.—Upon request of the Chairperson, the head of any Federal department or agency may detail,
on a reimbursable basis, any of the personnel of that department or
agency to the Commission to assist it in carrying out its duties under
this Act.
SEC. 2556. REPORT.
(a) REPORT REQUIRED.—The Commission shall submit a final
report to the President and the Congress not later than 9 months
after the election of the Chairperson under section 3(f).
(b) CONTENTS.—The final report shall, consistent with the duties of
the Commission set forth in section 2562 of this title, contain a
detailed statement of the findings, conclusions, and recommendations of the Commission.
SEC. 2557. TERMINATION.
The Commission shall terminate 30 days after submitting the
report required by section 2566(a) of this Act.
SEC. 2558. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated not to exceed $1,000,000
to carry out the purposes of this Act.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4893
Subtitle G—Authorizations
SEC. 2559. ADDITIONAL FUNDING FOR INVESTIGATORS AND PROSECUTORS FOR BANK CRIME CASES.
(a) ADDITIONAL APPROPRIATION FOR DEPARTMENT OF JUSTICE.—
Section 966(a) of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (103 Stat. 506) is amended to read as
follows:
"(a) I N GENERAL.—
"(1) AUTHORIZATION.—There is authorized to be appropriated
to the Attorney Greneral, without fiscal year limitation,
$162,500,000 for each of fiscal years 1991 through 1993, for
purposes of investigations, prosecutions, and civil proceedings
involving financial institutions to which the Act and amendments made by this Act apply.
"(2) ALLOCATIONS.—With respect to fiscal years 1991 and 1992,
the amount authorized to be appropriated under paragraph (1)
shall be allocated as follows:
"(A) Federal Bureau of Investigation: $78,300,000.
"(B) The offices of the United States attorneys:
$65,000,000.
"(C) The criminal division of the Department of Justice:
$8,800,000.
"(D) The civil division of the Department of Justice:
$7,000,000.
"(E) The tax division of the Department of Justice:
$3,400,000.".
(b) ADDITIONAL APPROPRIATIONS FOR THE INTERNAL REVENUE SERV-
ICE.—There is authorized to be appropriated to the Internal Revenue
Service, Department of the Treasury, $16,000,000 for fiscal year 1991
for investigation of violations of the Internal Revenue (Dode of 1986,
and related statutes, involving insured depository institutions.
(c) ADDITIONAL FUNDS FOR THE FEDERAL JUDICIARY.—Section 967 of
the Financial Institutions Reform, Recovery, and Enforcement Act
of 1989 (103 Stat. 506) is amended to read as follows:
"SEC. 967. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
FEDERAL JUDICIARY.
"(a) I N GENERAL.—There are authorized to be appropriated to the
Federal court system $25,000,000 for fiscal year 1991 and $28,000,000
for each of fiscal years 1992 and 1993 to carry out such system's
duties under this Act.".
Subtitle H—Actions Against Persons
Committing Bank Fraud Crimes
SEC. 2560. SHORT TITLE.
This subtitle may be cited as the 'Financial Institutions AntiFraud Enforcement Act of 1990".
Financial
Institutions
Anti-Fraud
Enforcement
Act of 1990.
12 u s e 4201
note.
104 STAT. 4894
PUBLIC LAW 101-647—NOV. 29, 1990
CHAPTER 1—DECLARATIONS PROVIDING NEW CLAIMS TO
THE UNITED STATES
12 u s e 4201.
SEC. 2561. FILING OF CONFIDENTIAL DECLARATIONS BY PRIVATE PERSONS.
(a) IN GENERAL.—Any person may file a declaration of a violation
giving rise to an action for civil penalties under section 951 of the
Financial Institutions Reform, Recovery and Enforcement Act of
1989 affecting a depository institution insured by the Federal Deposit Insurance Corporation or any other agency or entity of the
United States.
(b) PLACE OF FILING.—A declaration under subsection (a) shall be
filed with the Attorney General of the United States or with an
agent designated by the Attorney General for receiving declarations
under this section.
12 u s e 4202.
SEC. 2562. CONTENTS OF DECLARATIONS.
A declaration filed pursuant to section 2561 shall—
(1) set forth the name and address of the declarant and the
basis for the declarant's knowledge of the facts alleged;
(2) allege under oath or affirmation specific facts, relating to a
particular transaction or transactions, which constitute a prima
facie CEise of a violation giving rise to an action for civil penalties under section 951 of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 affecting a depository
institution insured by the Federal Deposit Insurance Corporation or any other agency or entity of the United States;
(3) contain at least 1 new factual element necessary to establish a prima facie case that was unknown to the Government at
the time of filing; and
(4) set forth all facts supporting the allegation of a violation
described in paragraph (2) known to the declarant, along with
the names of material witnesses and the nature and location of
documentary evidence known to the declarant.
12 u s e 4203.
SEC. 2563. CONFIDENTIALITY OF DECLARATIONS.
(a) PERIOD OF CONFIDENTIALITY.—A declarant and the declarant's
agents shall not disclose the existence or filing of a declaration filed
pursuant to section 2561 until—
(1) the declarant receives notice that the Attorney General
has concluded that an action should not be pursued under
section 2566(b);
(2) the declarant receives notice of an award pursuant to
section 2566(c); or
(3) the declarant is granted a contract to pursue an action
under section 2565(b) or 2567.
(b) MAINTENANCE OF CONFIDENTIAUTY TO PREVENT PREJUDICE.—(1)
Notwithstanding any other law, the contents of a declaration shall
not be disclosed by the declarant if the disclosure would prejudice or
compromise in any way the completion of any government investigation or any criminal or civil case that may arise out of, or make
use of, information contained in a declaration, but information
contained in a declaration may be disclosed as required by duly
issued and authorized legal process.
(2) The Attorney General may in a circumstance described in
paragraph (1) notify a declarant that continued confidentiality is
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4895
required under this subsection notwithstanding paragraph (1) or (2)
of subsection (a).
(c) Loss OF RIGHTS.—A declarant who discloses, except as provided
by this title, the existence or filing of a declaration or the contents
thereof to anyone other than a duly authorized Federal or State
investigator or the declarant's attorney shall immediately lose all
rights under this chapter.
SEC. 2564. INELIGIBILITY TO FILE VALID DECLARATIONS.
(a) I N GENERAL.—A declaration filed pursuant to section 811 and
in accordance with sections 2562 and 2563 is valid u n l e s s ^
(1) the declaration is filed by a current or former officer or
employee of a Federal or State government sigency or
instrumentality who discovered or gathered the information in
the declaration, in whole or in part, while acting within the
course of the declarant's government employment;
(2) the declaration is filed by a person who knowingly participated in the violation of section 1517 of title 18, United States
Code, or any of the sections of title 18, United States Code,
referred to in section 951(c) of the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989, or any other
fraudulent conduct with respect to which the declaration is
made;
(3) the declaration is filed by an institution-affiliated party (as
defined in section 3(u) of the Federal Deposit Insurance Act, 12
U.S.C. 1813(u)) who withheld information during the course of
any bank examination or investigation authorized pursuant to
section 10 of such Act (12 U.S.C. 1820) which such party owed a
fiduciary duty to disclose;
(4) the declaration is filed by a member of the immediate
family of the individual whose activities are the subject of the
declaration or where, in the discretion of the Attorney General,
it appears the individual could benefit from the award; or
(5) the declaration consists of allegations or transactions that
have been disclosed to a member of the public in a criminal,
civil, or administrative proceeding, in a congressional, administrative, or General Accounting Office report, hearing, audit or
investigation, by any other government source, or by the news
media, unless the person providing the declaration is the original source of the information.
(b) DEFINITION.—For the purposes of subsection (aX5), the term
"original source" means a person who has direct and independent
knowledge of the information contained in the declaration and who
voluntarily provided the information to the government prior to the
disclosure.
(c) NOTICE OF INVALIDITY.—If the Attorney General determines at
any time that a declaration is invalid under this section, that a
declaration fails to meet the requirements of section 2562, or that a
declaration has been disclosed in violation of section 2563, the
Attorney General shall notify the person who filed the declaration
in writing that the declaration is invalid, and the declarant shall not
enjoy Einy of the rights of the declarant listed in section 2565 or 2566.
12 USC 4204.
104 STAT. 4896
12 u s e 4205.
^
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 2565. RIGHTS OF
AWARDS.
DECLARANTS; PARTICIPATION
IN
ACTIONS,
(a) IN GENERAL.—A person who has filed a declaration that meets
the requirements of sections 2561 through 2564 shall have the rights
stated in this section.
0)) CIVIL ACTION.—If the Attorney General determines that a
cause of action referred to in section 2561 based on the declaration
should be referred to private counsel pursuant to chapter 4, the
declarant, after consultation with the Attorney General, shall have
the right to select counsel to prosecute the action, and the declarant
and the declarant's counsel shall act in accordance with chapter 4.
(c) CRIMINAL CONVICTION.—(1) When the United States obtains a
criminal conviction and the Attorney General determines that the
conviction was based in whole or in part on the information contained in a valid declaration filed under section 2561, the declarant
shall have the right to receive not less than $5,000 and not more
than $100,000, any such award to be paid from the Financial Institution Information Award Fund established under section 2569.
(2) In determining the size of any award under paragraph (1), the
Attorney General may, in the Attorney General's discretion, consider any appropriate factor, including—
(A) the seriousness of the offense for which the conviction was
obtained;
(B) the extent to which the facts alleged in the declaration
contributed to the conviction;
(C) the number of offenders apprehended pursuant to
information provided by the declarant;
(D) whether or not the offender was previously under investigation by any law enforcement agency when the declaration
was filed;
(E) the extent to which the declarant cooperated in the development of the Government's case and its presentation at trial;
(F) the sentences and fines imposed on the offender and other
offenders in related cases;
(G) the extent to which other sources of private information
were relied upon; and
(H) the hardship to the declarant and any expenses the
declarant incurred in preparing the declaration.
(d) SHARE OF FUNDS AND ASSETS,—(1) When the United States
acquires funds or assets pursuant to the execution of a judgment,
order, or settlement and the Attorney General determines that the
judgment, order, or settlement was based in whole or in part on the
information contained in a valid declaration filed under section
2561, the declarant shall have the right to share in the recovery as
follows:
(A)(i) The declarant shall be entitled to 20 percent to 30
percent of any recovery up to the first $1,000,000 recovered, 10
percent to 20 percent of the next $4,000,000 recovered, and 5
percent to 10 percent of the next $5,000,000 recovered.
(ii) In calculating an award under clause (i), the Attorney
General may consider the size of the overall recovery and the
usefulness of the information provided by the declarant.
(B) When a declarant has received an award under subsection
(c), the Attorney General may subtract the amount of that
reward from any recovery under this subsection.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4897
(2XA) When more than 1 declarant has provided information
leading to a recovery under this subsection, the Attorney General
shall first calculate the size of the total award under paragraph
(IXA) and then distribute that amount according to the contribution
made by each declarant.
(B) In distributing any such award between 2 or more declarants,
the Attorney General may, in the Attorney General's discretion,
consider any appropriate factor.
(e) PROHIBITION OF DOUBLE AWARDS.—(1) No person shall receive
both an award under this section and a reward under either section
34 of the Federal Deposit Insurance Act or section 3509A of title 18,
United States Code, for providing the same or substantially similar
information.
(2) When a person qualifies for both an award under this section
and a reward under either section 34 of the Federal Deposit Insurance Act or section 3509A of title 18, United States Code, for
providing the same or substantially similar information, the person
may notify the Attorney Greneral in writing of the person's election
to seek an award under this section or a reward under such other
section.
if) APPROPRIATE FEDERAL BANKING AGENCY EXCEPTION.—For purposes of this section, funds or assets acquired by the United States
shall not include any funds or assets acquired by any appropriate
Federal banking agency acting in any capacity or the Resolution
Trust Corporation acting in any capacity, except for any civil money
penalties recovered by a Federal banking agency through a final
judgment, order or settlement.
SEC. 2566. RIGHTS O F DECLARANTS; NOTIFICATIONS; GOVERNMENT 12 USC 4206.
ACCOUNTABILITY.
(a) IN GENERAL.—A person who has filed a declaration that meets
the requirements of sections 2561 through 2564 shall have the rights
stated in this section.
(b) NOTICE OF DECISION NOT TO PURSUE.—If, after review, the
Attorney General concludes that the information contained in a
declaration should not be pursued in a civil or criminal proceeding,
the Attorney General shall so notify the declarant in writing and
shall provide a brief statement of the reasons that the declaration
will not be pursued.
(c) JUDGMENT, ORDER, OR SETTLEMENT.—(1) When the United
States obtains a judgment, order, or settlement based in whole or in
part on a valid declaration filed under section 2561, the Attorney
General shall notify the declarant in writing of such fact.
(2) A notice described in paragraph (1) shall contain—
(A) the Attorney General's determination of the amount of
the award due the declarant under subsection (c) or (d) of
section 2565 upon recovery by the United States; and
(B) a short statement of reasons for the amount of the award.
(d) NOTICE OF PENDENCY OF INVESTIGATION OR PROCEEDING.—If the
Attorney General has not provided the declarant with notice under
subsection Ot)) or a notice of invalidity pursuant to section 2564
within the time period set forth in subsection (e), the Attorney
General shall notify the declarant in writing that—
(1) there is a pending investigation or proceeding in the course
of which the declarant's allegations are being addressed; or
(2) the declarant's allegations have not yet been addressed.
104 STAT. 4898
PUBLIC LAW 101-647—NOV. 29, 1990
(e) TIME FOR NOTICES.—(1) In the case of a valid declaration filed
not more than 3 years after the date of enactment of this Act, the
Attorney General shall send notification to a declarant pursuant to
subsection (d) not later than 3 years after the date of filing of the
declaration.
(2XA) Subject to subparagraph (B), in the case of a declaration
filed more than 3 years after the date of enactment of this Act, the
Attorney General shall send notification not later than 1 year after
the date of filing of the declaration.
(B) If the Attorney General certifies that it is in the interest of the
United States to give further consideration to the information provided in the declaration for an additional 90-day period, the Attorney General shall so notify the declarant in writing.
(f) CONFIDENTIALITY OF NOTICES.—All notices provided to a declarant under this section shall be kept confidential by the declarant in
the same manner, and subject to the same penalties, as the declaration under section 2563.
12 u s e 4207.
SEC. 2567. UNREVIEWED DECLARATIONS; PETITION TO PURSUE ACTION
AS PRIVATE CONTRACTOR.
(a) NOTIFICATION.—(1) If, pursuant to section 2566(d)(2), the Attorney General notifies a declarant that the declarant's allegations
have not yet been addressed, the declarant may notify the Attorney
General to award a contract pursuant to chapter 4 to pursue the
case.
(2) A declarant's notification under paragraph (1) shall be filed
with the Attorney General not later than 30 days after the date of
service of notice under section 2566(dX2), and the Attorney General
shall respond to the notification not later than 30 days after receipt.
(b) CONTENTS OF RESPONSE.—In response to a notification under
subsection (aXD, the Attorney General shall—
(1) grant a contract pursuant to chapter 4; or
(2) proceed with an action.
(c) GRANT OF CONTRACT.—If the Attorney General decides to grant
a contract, the declarant, after consultation with the Attorney
General, shall have the right to select counsel to prosecute an
action, and the declarant and the declarant's counsel shall act in
accordance with chapter 4.
12 u s e 4208.
SEC. 2568. NONREVIEWABILITY OF ACTION BY THE ATTORNEY GENERAL.
Notwithstanding any other law, no court shall have jurisdiction
over any claim based on any action taken by the Attorney General
or any refusal to take action under this chapter, except for failure to
provide notification under section 2566.
12 u s e 4209.
SEC. 2569. FINANCIAL INSTITUTION INFORMATION AWARD FUND.
(a) ESTABLISHMENT.—There is established in the United States
Treasury a special fund to be known as the Financial Institution
Information Award Fund (referred to as the "Fund") which shall be
available to the Attorney General without fiscal year limitation to
pay awards to declarants pursuant to section 2565(c) and to pay
special rewards pursuant to section 3059A of title 18, United States
Code.
(b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to
be appropriated to the Fund such funds as are necessary to maintain
the Fund at a level not to exceed $5,000,000.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4899
SEC. 2570. SOURCES OF PAYMENTS TO DECLARANTS.
12 USC 4210.
Notwithstanding any other law, an award under this title may be
paid to a declarant, or to an individual providing information, from
the amounts recovered through civil actions based in whole or in
part on the information provided in a valid declaration under this
title.
SEC. 2571. GOVERNMENT ACCOUNTABILITY;
PROCESSING OF DECLARATIONS.
PUBLIC
REPORTS
ON 12 USC 4211.
(a) IN GENERAL.—In addition to the written statements of reasons
provided individual declarants under section 2566, on the date that
is 6 months after the date of enactment of this Act, and at the end of
each 6-month period thereafter during which this chapter is in
effect, the Attorney General shall compile a public report on the
processing of declarations under this chapter.
(b) CONTENTS OF REPORT.—The report required by subsection (a)
shall state—
(1) the number of declarations filed within the relevant
period;
(2) the number of declarations found invalid under sections
2562, 2563, and 2564;
(3) the number of valid declarations processed and their
present status, including whether or not they have been reviewed and if they have been reviewed what determination was
reached;
(4) the number and amounts of all rewards paid to declarants
under this chapter; and
(5) the number of convictions attributable in whole or in part
to valid declarations filed under this chapter and the number
and dollar amounts of all monetary recoveries, criminal or civil,
attributable in whole or in part to valid declarations filed under
this chapter.
(c) CONFIDENTIALITY.—Notwithstanding any other law, in compiling the report required by subsection (a), the Attorney General may
take all steps necessary to guard against the disclosure of any
information that could in any way prejudice a current criminal or
civil investigation or proceeding.
SEC. 2572. PROTECTION FOR DECLARANTS.
12 USC 4212.
A declarant under this chapter shall enjoy the protections of
section 3059A(e) of title 18, United States Code.
SEC. 2573. PROMULGATION OF REGULATIONS.
12 USC 4213.
The Attorney General may promulgate any rules, regulations, or
guidelines that, in the Attorney General's judgment, are necessary
and appropriate to the effective administration of this chapter.
CHAPTER 2—DECLARATIONS PROVIDING THE UNITED
STATES WITH NEW INFORMATION CONCERNING THE
RECOVERY OF ASSETS
SEC. 2576. FILING OF CONFIDENTIAL DECLARATIONS BY PRIVATE PERSONS IDENTIFYING SPECIFIC ASSETS.
(a) IN GENERAL.—After the United States obtains a final judgment
or settlement in any action referred to in section 2561, gmy person
may file a declaration identifying specific assets which might be
12 USC 4221.
104 STAT. 4900
PUBLIC LAW 101-647—NOV. 29, 1990
recovered by the United States in satisfaction of that judgment or
settlement.
(b) PLACE OF FILING.—A declaration under subsection (a) shall be
filed with the Attorney General of the United States or with an
agent designated by him for receiving declarations under this
section.
12 u s e 4222.
SEC. 2577. CONTENTS OF DECLARATIONS.
A declaration filed pursuant to section 2576 shall—
(1) set forth the name and address of the declarant and the
basis for the declarant's knowledge of the facts alleged;
(2) allege under oath or affirmation specific facts indicating
the nature, location, and approximate dollar value of the asset
or assets and the names of all persons known to the declarant to
have possession, custody, or control of the asset or assets; and
(3) allege under oath or affirmation specific facts that establish a prima facie case showing that the asset is legally subject
to attachment, garnishment, sequestration, or other proceeding
in satisfaction of the judgment referred to in section 2576.
12 u s e 4223.
SEC. 2578. CONFIDENTIALITY OF DECLARATIONS.
(a) PERIOD OF CONFIDENTIALITY.—A declarant and the declarant's
agents shall not disclose the existence or filing of a declaration filed
pursuant to section 2576 until:
(1) the declarant receives notice that the Attorney General
has concluded that an action should not be pursued under
section 2581(b);
(2) the declarant receives notice of an award pursuant to
section 2581(c); or
(3) the declarant is granted a contract to pursue an action
under section 2580(b) or 2582.
(b) MAINTENANCE OF CONFIDENTIALITY TO PREVENT PREJUDICE.—(1)
Notwithstanding any other law, the contents of a declaration shall
not be disclosed by the declarant if the disclosure would prejudice or
compromise in any way the completion of any government investigation or any criminal or civil case that may arise out of, or make
use of, information contained in a declaration, but information
contained in a declaration may be disclosed as required by duly
issued and authorized legal process.
(2) The Attorney General may in a circumstance described in
paragraph (1) notify a declarant that continued confidentiality is
required under this subsection notwithstanding paragraph (1) or (2)
of subsection (a).
(c) Loss OF RIGHTS.—A declarant who discloses, except as provided
by this chapter, the existence or filing of a declaration or the
contents thereof to anyone other than a duly authorized Federal or
State investigator or the declarant's attorney shall immediately lose
all rights under this chapter.
12 u s e 4224.
SEC. 2579. INELIGIBILITY TO FILE VALID DECLARATIONS.
(a) IN GENERAL.—A declaration filed pursuant to section 2576 and
in accordance with sections 2577 and 2578 is valid unless—
(1) the declaration is filed by a current or former officer or
employee of a Federal or State government agency or
instrumentality who discovered or gathered the information in
the declaration, in whole or in part, while acting within the
course of the declarant's government employment;
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4901
(2) the declaration is filed by a person who knowingly participated in the violation of section 1517 of title 18, United States
Code, or any of the sections of title 18, United States Code,
referred to in section 2561, or any other fraudulent conduct with
respect to which the declaration is made;
(3) the declaration is filed by an institution-affiliated party (as
defined in section 3(u) of the Federal Deposit Insurance Act (12
U.S.C. 1813(u)) who withheld information during the course of
any bank examination or investigation authorized pursuant to
section 10 of such Act (12 U.S.C. 1820) which such party owed a
fiduciary duty to disclose;
(4) the declaration is filed by a member of the immediate
family of the individual whose activities are the subject of the
declaration or where, in the discretion of the Attorney General,
it appears the individual could benefit from the award; or
(5) the declaration identifies an asset or assets the nature,
location, or possible recovery of which has been disclosed to a
member of the public in a criminal, civil, or administrative
proceeding, in a congressional, administrative, or Greneral
Accounting Office report, hearing, audit or investigation, by any
other government source, or by the news media, unless the
person providing the declaration is the original source of the
information.
(b) DEFINITION.—For the purposes of subsection (aX5), the term
"original source" means a person who has direct and independent
knowledge of the information contained in the declaration and who
voluntarily provided the information to the government prior to the
disclosure.
(c) NOTICE OF INVAUDITY.—If the Attorney General determines at
any time that a declaration is invalid under this section, that a
declaration fails to meet the requirements of section 2577, or that a
declaration has been disclosed in violation of section 2578, the
Attorney General sh£ill notify the person who filed the declaration
in writing that the declaration is invalid, and the declarant shall not
enjoy £my of the rights of the declarant listed in section 2580 or 2581.
SEC. 2580. RIGHTS OF
AWARDS.
DECLARANTS; PARTICIPATION
IN
ACTIONS, 12 USC 4225.
(a) I N GENERAL.—A person who has fUed a declaration that meets
the requirements of sections 2576 through 2579 shall have the rights
stated in this section.
(b) CIVIL ACTION.—If the Attorney Greneral determines that a
proceeding to recover the asset or assets identified in the declaration
should be referred to private counsel pursuant to chapter 4, the
declarant, after consultation with the Attorney General, shall have
the right to select counsel to prosecute the action, and the declarant
and the declarcmt's counsel shall act in accordance with chapter 4.
(c) SHARE OF ASSETS.—When the United States recovers any asset
or assets specifically identified in a valid declaration filed under
section 2576 and the Attorney Genered determines that the asset or
assets would not have been recovered if the declaration had not been
filed, the declarant shall have the right to share in the recovery in
the amount of 20 percent to 30 percent of any recovery up to the
first $1,000,000 recovered, 10 percent to 20 percent of the next
$4,000,000 recovered, and 5 percent to 10 percent of the next
$5,000,000 recovered.
104 STAT. 4902
PUBLIC LAW 101-647—NOV. 29, 1990
(d) PROHIBITION OF DOUBLE AWARDS.—(1) No person shall receive
both an award under this section and a reward under either section
34 of the Federal Deposit Insurance Act or section 3509A of title 18,
United States Code, for providing the same or substantially similar
information.
(2) When a person qualifies for both an award under this section
and a reward under either section 34 of the Federal Deposit Insurance Act or section 3509A of title 18, United States Code, for
providing the same or substantially similar information, the person
may notify the Attorney General in writing of the person's election
to seek an award under this section or a reward under such other
section.
(e) APPROPRIATE FEDERAL BANKING AGENCY EXCEPTION.—For purposes of this section, funds or assets acquired by the United States
shall not include any funds or assets acquired by any appropriate
Federal banking agency acting in any capacity or the Resolution
Trust Corporation acting in any capacity, except for any civil money
penalties recovered by a Federal banking agency through a final
judgement, order, or settlement.
12 u s e 4226.
SEC. 2581. RIGHTS OF DECLARANTS; NOTIFICATIONS; GOVERNMENT
ACCOUNTABILITY.
(a) IN GENERAL.—A person who has filed a declaration that meets
the requirements of sections 2576 through 2579 shall have the rights
stated in this section.
(b) NOTICE OF DECISION NOT TO PURSUE.—If, after review, the
Attorney General concludes that the information contained in a
declaration should not be pursued in a proceeding to recover the
asset or assets, the Attorney General shall so notify the declarant in
writing £ind shall provide a brief statement of the reasons that the
declaration will not be pursued.
(c) JUDGMENT, ORDER, OR SETTLEMENT.—(1) When the United
States obtains a final judgment, order, or settlement transferring to
the United States title to an asset or assets identified in a valid
declaration filed under section 831, the Attorney General shall
notify the declarant in writing of the entry of the judgment, order,
or settlement.
(2) A notice described in paragraph (1) shall contain—
(A) the Attorney General's determination of the amount of
the award due the declargmt under section 2580(c) upon recovery by the United States; and
(B) a short statement of reasons for the amount of the award.
(d) NOTICE OP PENDENCY OF INVESTIGATION OR PROCEEDING.—(1)
Subject to paragraph (2), if the Attorney General has not provided
the declarant with notice under subsection (b) or a notice of invalidity pursuant to section 2579 within 1 year after the date of filing of
the declaration, the Attorney General shall notify the declarant in
writing that—
(A) there is a pending investigation or proceeding in the
course of which the declarant's allegations are being addressed;
or
(B) the declarant's allegations have not yet been addressed.
(2) If the Attorney General certifies that it is in the interest of the
United States to give further consideration to the information provided in the declaration for an additional 90-day period, the Attorney General shall so notify the declarant in writing.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4903
(e) CONFIDENTIALITY OF NOTICES.—All notices provided to a declarant under this section shall be kept confidential by the declarant in
the same manner, and subject to the same penalties, as the declaration under section 2578.
SEC. 2582. UNREVIEWED DECLARATIONS; PETITION TO PURSUE ACTION 12 USC 4227.
AS PRIVATE CONTRACTOR.
(a) NOTIFICATION.—(1) If, pursuant to section 2581(d)(1)(B), the
Attorney General notifies a declarant that the declarant's allegations have not yet been addressed, the declarant may notify the
Attorney General to award a contract pursuant to chapter 4 to
pursue the case.
(2) A declarant's notification under paragraph (1) shall be filed
with the Attorney General not later than 30 days after the date of
service of notice under section 2581(d)(1)(B), and the Attorney General shall respond to the notification not later than 30 days after
receipt.
(b) CONTENTS OF RESPONSE.—In response to a notification under
subsection (a)(1), the Attorney General shall—
(1) grant a contract pursuant to chapter 4; or
(2) proceed with an action.
(c) GRANT OF CONTRACT.—If the Attorney General decides to grant
a contract, the declarant, after consultation with the Attorney
General, shall have the right to select counsel to prosecute an
action, and the declarant and the declarant's counsel shall act in
accordance with chapter 4.
SEC. 2583. NONREVIEWABILITY OF ACTION BY THE ATTORNEY GENERAL. 12 USC 4228.
Notwithstanding any other law, no court shall have jurisdiction
over any claim based on any action taken by the Attorney General
or any refusal to take action under this chapter, except for failure to
provide notification under section 2581.
SEC. 2584. PROTECTION FOR DECLARANTS.
12 USC 4229.
A declarant under this chapter shall enjoy the protections of
section 3059A(e) of title 18, United States Code.
SEC. 2585. PROMULGATION OF REGULATIONS.
The Attorney General may promulgate any rules, regulations, or
guidelines that, in the Attorney General's judgment, are necessary
and appropriate to the effective administration of this chapter.
CHAPTER 3—REWARDS FOR INFORMATION LEADING TO
RECOVERIES, CIVIL PENALTIES, OR PROSECUTIONS
SEC. 2586. REWARD FOR INFORMATION LEADING TO RECOVERIES OR
CIVIL PENALTIES.
Section 34(a) of the Federal Deposit Insurance Act (12 U.S.C.
1831k(a)) is amended—
(1) in paragraph (1) by striking ", in an amount that exceeds
$50,000,"; and
(2) by amending paragraph (2) to read as follows:
"(2) a forfeiture under section 981 or 982 of title 18, United
States Code, that arises in connection with a depository institution insured by the Federal Deposit Insurance Corporation".
9-194 O - 91 - 17 : QL 3 Part 6
12 USC 4230.
104 STAT. 4904
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 2587. REWARD FOR INFORMATION LEADING TO POSSIBLE PROSECUTION.
(a) AMENDMENT OF TITLE 18, UNITED STATES CODE.—Chapter 203 of
title 18, United States Code, is amended by inserting after section
3059 the following new section:
"§ 3059A. Special rewards for information relating to certain
Hnancial institution offenses
"(aXD In special circumstances and in the Attorney Greneral's sole
discretion, the Attorney General may make payments to persons
who furnish information unknown to the Government relating to a
possible prosecution under section 215, 287, 656, 657, 1001, 1005,
1006, 1007, 1014, 1032, 1341, 1343, or 1344 of this title affecting a
depository institution insured by the Federal Deposit Insurance
Corporation or any other agency or entity of the United States, or to
a possible prosecution for conspiracy to commit such an offense.
"(2) The amount of a payment under paragraph (1) shall not
exceed $50,000 and shall be paid from the Financial Institution
Information Award Fund established under section 2569 of the
Financial Institutions Anti-Fraud Enforcement Act of 1990.
"(b) A person is not eligible for a payment under this subsection
(a)if"(1) the person is a current or former officer or employee of a
Federal or State government agency or instrumentality who
furnishes information discovered or gathered in the course of
his government emplo5mient;
"(2) the furnished information consists of allegations or transactions that have been disclosed to a member of the public in a
criminal, civil, or administrative proceeding, in a congressional,
administrative, or General Accounting Office report, hearing,
audit or investigation, from any other government source, or
from the news media unless the person is the original source of
the information;
"(3) the person is an institution-affiliated party (as defined in
section 3(u) of the Federal Deposit Insurance Act, 12 U.S.C.
1813(u)) which withheld information during the course of any
bank examination or investigation authorized pursuant to section 10 of such Act (12 U.S.C. 1820) who such party owed a
fiduciary duty to disclose;
"(4) the person is a member of the immediate family of the
individual whose activities are the subject of the declaration or
where, in the discretion of the Attorney General, it appears the
individual could benefit from the award; or
"(5) the person knowingly participated in the violation of the
section with respect to which the payment would be made.
"(c) For the purposes of this subsection (bX2), the term 'original
source' means a person who has direct and independent knowledge
of the information on which the allegations are based and has
voluntarily provided the information to the Government prior to the
disclosure.
"(d) Neither the failure of the Attorney General to authorize a
payment nor the amount authorized shall be subject to judicial
review.
"(e)(1) A person who—
"(A) is discharged, demoted, suspended, threatened, harassed,
or in any other manner discriminated against in the terms and
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4905
conditions of employment by an employer because of lawful acts
done by the person on behalf of the person or others in furtherance of a prosecution under any of the sections referred to in
subsection (a) (including provision of information relating to,
investigation for, initiation of, testimony for, or assistance in
such a prosecution); and
"(B) was not a knowing participant in the unlawful activity
that is the subject of such a prosecution,
may, in a civil action, obtain all relief necessary to make the person
whole.
"(2) Relief under paragraph (1) shall include—
"(A)(i) reinstatement with the same seniority status;
"(ii) 2 times the amount of back pay plus interest; and
"(iii) interest on the backpay,
that the plaintiff would have had but for the discrimination;
and
"(B) compensation for any special damages sustained as a
result of the discrimination, including litigation costs and
reasonable attorney's fees.".
(b) TECHNICAL AMENDMENT.—The chapter heading for chapter 203
of title 18, United States Code, is amended by inserting after the
item relating to section 3059 the following new item:
"3059A. Special rewards for information relating to certain financial institution
offenses".
CHAPTER 4—USE OF PRIVATE LEGAL RESOURCES
SEC. 2588. AUTHORITY TO ENTER INTO CONTRACTS FOR PRIVATE 12 USC 4241.
COUNSEL.
(a) I N GENERAL.—The Attorney General may enter into contracts
retaining private counsel to furnish legal services, including representation in investigation, negotiation, compromise, settlement,
litigation, and execution of judgments in the case of any civil action
referred to in section 2561 or section 2580.
(b) TERMS AND CONDITIONS.—Each contract under subsection (a)
shall include the provisions described in section 2591 and such other
terms and conditions as the Attorney General considers necessary
and appropriate to protect the interests of the United States.
(c) LIMITATION OF FEE.—The amount of the contingency fee payable for legal services furnished under a contract described in
subsection (a) shall not exceed the contingency fee that counsel
engaged in the private practice of law in the jurisdiction wherein
the legal services are furnished typically charge clients for furnishing the same or comparable legal services.
(id) CONTINGENT FEES.—Notwithstanding section 3302(b) of title 31,
United States Code, a contract under this section shall provide that
a fee that the United States pays private counsel for services is
payable from the amount recovered and shall be based on a percentage of the civil penalties or assets recovered.
SEC. 2589. CONTRACT DECISIONS NONREVIEWABLE.
Notwithstanding any other law, no court shall have jurisdiction
over any claim based on the Attorney General's decision to refuse to
enter into a contract for legal services referred to in section 2588.
12 USC 4242.
104 STAT. 4906
12 u s e 4243.
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 2590. REPRESENTATION.
Notwithstanding sections 516, 518(b), 519, and 547(2) of title 28,
United States Code, private counsel retained under section 2588
may represent the United States in litigation in connection with
legal services furnished pursuant to the contract entered into with
that counsel, subject to the requirements specified in section 2591.
12 u s e 4244.
SEC. 2591. CONTRACT PROVISIONS.
^P***^-
A contract made with a private counsel under section 2588 shall
include—
(1) a provision permitting the Attorney Genersd to terminate
either the contract or the private counsel's representation of the
United States in particular cases if the Attorney General finds
that such action is in the best interests of the United States;
(2) a provision requiring private counsel to transmit monthly
to the Attorney General a report on the services relating to
matters handled pursuant to the contract during the preceding
month and the progress made during that period; and
(3) a provision requiring that the initiation, settlement,
dismissal, or compromise of a clsdm be approved by a duly
appointed officer of the United States.
12 u s e 4245.
SEC. 2592. COUNTERCLAIMS.
Any counterclaim filed in any action brought on behalf of the
United States by private counsel retained under section 2588 may
not be asserted unless the counterclaim has been served directly on
the Attorney General and the United States Attorney for the judicial district in which, or embracing the place in which, the action
is pending. Such service shall be made in accordance with the rules
of procedure of the court in which the action on behalf of the United
States is pending.
12 u s e 4246.
SEC. 2593. AWARDS OF COSTS AND FEES TO PREVAILING PLAINTIFF.
When the United States, through private counsel retained under
this chapter, prevails in any civil action, the court, in its discretion,
may allow the United States reasonable attorney's fees and other
expenses of litigation as part of the costs.
12 u s e 4247.
SEC. 2594. PROMULGATION OF REGULATIONS.
The Attorney General may promulgate any rules, regulations, or
guidelines that, in the Attorney General's judgment, are necessary
and appropriate to the effective administration of this chapter.
Subtitle I—Technical and Miscellaneous
Amendments
SEC. 2595. TECHNICAL AMENDMENTS TO TITLE 18, UNITED STATES CODE,
RELATING TO REFERENCES TO BANKING INSTITUTIONS AND
AGENCIES.
(a) I N GENERAL.—
(1) THEFT, EMBEZZLEMENT, OR MISAPPUCATION BY BANK OFFICER
OR EMPLOYEE.—Section 656 of title 18, United States Code, is
amended—
(A) by inserting "depositorv institution holding company," before "national b a n k ' the 1st place such term
appears in the 1st sentence;
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4907
(B) by inserting "or holding company" after "such bank"
each place such term appears in the 1st paragraph; and
(C) by adding at the end of the 2d paragraph the following
new sentence: "For purposes of this section, the term
'depository institution holding company' has the meaning
given such term in section 3 of the Federal Deposit Insurance Act.".
(2) LENDING, CREDIT, AND INSURANCE INSTITUTIONS.—Section
•
657 of title 18, United States Code, is amended—
(A) by striking "Home Owiiers' Loan Corporation," and
inserting "Office of Thrift Supervision, the Resolution
Trust Corporation, any Federal home loan bank, the Federal Housing Finance Board,"; and
(B) by striking "institution the accounts of which are
insured by the Federal Savings and Loan Insurance Cor;
poration" and inserting "institution, other than an insured
"^
bank (as defined in section 656), the accounts of which are
insured by the Federal Deposit Insurance Corporation".
(3) BANK ENTRIES, REPORTS, AND TRANSACTIONS.—Section 1005
of title 18, United States Code, is amended—
(A) by inserting "or company" after "such bank" each
place such term appears in the 1st paragraph;
(B) by striking "bank or savings and loan" and inserting
"depository institution"; and
(C) by adding at the end of the 6th undesignated paragraph the following new sentence: "For purposes of this
section, the term 'depository institution holding company'
has the meaning given such term in section 3(wXl) of the
Federal Deposit Insurance Act.".
(4) FEDERAL CREDIT INSTITUTION ENTRIES, REPORTS, AND TRANS-
ACTIONS.—Section 1006 of title 18, United States Code, is
amended—
(A) by striking "Home Owners' Loan Corporation," and
inserting "Office of Thrift Supervision, any Federal home
loan bank, the Federal Housing Finance Board, the Resolution Trust Corporation,"; and
(B) by striking "institution the accounts of which are
insured by the Federal Savings and Loan Insurance Corporation" and inserting "institution, other than an insured
hank (as defined in section 656), the accounts of which are
insured by the Federal Deposit Insurance Corporation".
(5) LOANS AND CREDIT APPUCATIONS GENERALLY; RENEWALS
>_j, AND DISCOUNTS.—Section 1014 of title 18, United States Code, is
amended—
(A) by striking "the Federal Home Loan Bank System,"
and inserting "the Office of Thrift Supervision, any Federal
%
home loan bank, the Federal Housing Finance Board,"; and
(B) by inserting a comma after "Resolution Trust
Corporation".
(b) INDICTMENTS AND INFORMATION DISMISSED BEFORE PERIOD OF
LIMITATIONS.—Section 3289 of title 18, United States Code, is
amended by striking "or, in the event of an appeal, within 60 days of
the date the dismissal of the indictment or information becomes
final," where such term appears and inserting such term after
"expiration of the applicable statute of limitations,".
«
104 STAT. 4908
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 2596. MISCELLANEOUS TECHNICAL AMENDMENTS.
(a) CEASE AND DESIST AUTHORITY.—Section 8(b) of the
Federal
Deposit Insurance Act (12 U.S.C. 1818(b)) is amended—
(1) in paragraph (6), by inserting "or remedy" after "to take
affirmative action to correct"; and
(2) in paragraph (4), by striking "subsections (c), (d), (h), (i), (k),
(1), (m), and (n) and inserting "subsections (c) through (s) and
subsection (u)".
(b) TEMPORARY ORDERS.—Section 8(c)(1) of the Federal Deposit
Insurance Act (12 U.S.C. 1818(c)(1)) is amended—
(1) by inserting "or remedy" after "to take affirmative action
to prevent"; and
(2) by striking "(b)(6)(B)" and inserting "(b)(6)".
(c) RIGHT TO FINANCIAL PRIVACY.—Section 1101(6)(B) of the Right
to Financial Privacy Act of 1978 (12 U.S.C. 3401(6)(B)) by striking
"3(fKl)" and inserting "4(f)(1)".
(d) VIOLATIONS TO WHICH CIVIL MONEY PENALTIES APPLIES.—Sec-
12 use 1833a.
,
tion 951(c)(1) of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 is amended—
(1) by inserting "287,1001,1032," before "1341;"; and
(2) by adding at the end thereof the following new flush
sentence:
"This section shall apply to violations occurring on or after August
10,1984."
SEC. 2597. AMENDMENTS TO INCLUDE VARIOUS ENTITIES WHICH
ENGAGE IN INTERNATIONAL BANKING BUSINESS WITHIN
THE UNITED STATES WITHIN THE SCOPE OF FINANCIAL
CRIME PROVISIONS.
(a) DEFINITION OF FINANCIAL INSTITUTION.—Section 20 of title 18,
United States Code, is amended—
(1) by striking the period at the end of paragraph (6) and
inserting a semicolon; and
(2) by adding at the end the following new paragraphs:
"(7) a Federal Reserve bank or a member bank of the Federal
Reserve System;
"(8) an organization operating under section 25 or section
25(a) of the Federal Reserve Act; or
"(9) a branch or agency of a foreign bank (as such terms are
defined in paragraphs (1) and (3) of section 1(b) of the Inter•' national Banking Act of 1978).".
(b) OFFER OF LOAN OR GRATUITY TO BANK EXAMINER.—Section 212
'
of title 18, United States Code, is amended—
(1) in the 1st undesignated paragraph—
(A) by striking "System or the deposits of which" and
inserting "System, or the deposits of which";
(B) by inserting "or which is a branch or agency of a
foreign bank (as such terms are defined in paragraphs (1)
and (3) of section 1(b) of the International Banking Act of
.
1978), or which is an organization operating under section
25 or section 25(a) of the Federal Reserve Act," after "deposits of which are insured by the Federal Deposit Insurance Corporation,"; and
(C) by inserting "branch, agency, organization," after
"who examines or has authority to examine such bank,";
and
(2) in the 2d undesignated paragraph—
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4909
(A) by striking "System or insured" and inserting
"System, insured"; and
(B) by inserting "branches or agencies of foreign banks
(as such terms are defined in paragraphs (1) and (3) of
section 1(b) of the International Banking Act of 1978),
organizations operating under section 25 or section 25(a) of
the Federal Reserve Act," after "financial institutions,".
(c) ACCEPTANCE OF LOAN OR GRATUITY BY BANK EXAMINER.—
Section 213 of title 18, United States Code, is amended—
(1) by striking "System or financial institutions the deposits of
which" and inserting "System, financial institutions the deposits of which";
(2) by inserting "which are branches or agencies of foreign
banks (as such terms are defined in paragraphs (1) and (3) of
section 1(b) of the International Banking Act of 1978), or which
are organizations operating under section 25 or section 25(a) of
the Federal Reserve Act," after "deposits of which are insured
by the Federal Deposit Insurance Corporation,";
(3) by inserting "branch, agency, after "accepts a loan or
gratuity from any bank,".
(d) CUSTODIANS, GENERALLY, MISUSING PUBLIC FUNDS.—Section
648 of title 18, United States Code, is amended by inserting ",
including any branch or agency of a foreign bank (as such terms are
defined in paragraphs (1) and (3) of section 1(b) of the International
Banking Act of 1978)," after "or deposits in any bank".
(e) THEFT BY EXAMINER.—Section 655 of title 18, United States
Code, is amended—
(1) in the 1st undesignated paragraph—
(A) by striking "System or which is insured" and inserting "System, which is insured";
(B) by inserting "which is a branch or agency of a foreign
bank (as such terms are defined in paragraphs (1) and (3) of
!
section 1(b) of the International Banking Act of 1978), or
which is an organization operating under section 25 or
section 25(a) of the Federal Reserve Act," after "by the
Federal Deposit Insurance Corporation,"; and
(C) by inserting "branch, agency, or organization," after
"premises of such bank,"; and
(2) in the 2d undesignated paragraph—
(A) by striking "System or banks the deposits of which"
and inserting "System, banks the deposits of which"; and
(B) by inserting "branches or agencies of foreign banks
(as such terms are defined in paragraphs (1) and (3) of
section 1(b) of the International Banking Act of 1978), or
organizations operating under section 25 or section 25(a) of
the Federal Reserve Act," after "are insured by the Federal
Deposit Insurance Corporation,".
(f)
THEFT, EMBEZZLEMENT, OR MISAPPUCATION BY BANK OFFICER
OR EMPLOYEE.—Section 656 of title 18, United States Code (as
amended by section 2104(b) of this subtitle) is amended—
(1) in the 1st undesignated paragraph—
(A) by striking "national bank, or insured bank" and
inserting "national bank, insured bank, branch or agency of
a foreign bank, or organization operating under section 25
or section 25(a) of the Federal Reserve Act,";
(B) by inserting "insured bank, branch, agency, or
organization" after "receiver of a national bank,";
104 STAT. 4910
PUBLIC LAW 101-647—NOV. 29, 1990
(C) by inserting ", branch, agency, or organization" after
"misapplies any of the moneys, funds or credits of such
bank";
(D) by inserting "branch, agency, or organization," after
"custody or care of such bank, ; and
(2) in the 2d undesignated paragraph—
(A) bv striking "and" after "one of the Federal Reserve
banks;'; and
(B) by inserting before the period the following: "; and the
term 'branch or agency of a foreign bank' means a branch
or agency described in section 20(9) of this title".
(g) CERTIFICATION OF CHECKS.—Section 1004 of title 18, United
States Code, is amended—
(1) by striking "or" after "Federal Reserve bank" and inserting a comma;
(2) by inserting "insured bank (as defined in section 3(h) of the
Federal Deposit Insurance Act), branch or agency of a foreign
bank (as such terms are defined in paragraphs (1) and (3) of
section 1(b) of the International Banking Act of 1978), or
organization operating under section 25 or section 25(a) of the
Federal Reserve Act,' after "member bank of the Federal Reserve System,"; and
(3) by inserting ", branch, agency, or organization," after "has
been regularly deposited in the bank".
(h) BANK ENTRIES, REPORTS, AND TRANSACTIONS.—Section 1005 of
title 18, United States Code (as smiended by section 2104(d) of this
subtitle) is amended—
(1) in the 1st undesignated paragraph—
(A) by striking "national bank or insured bank" and
inserting "national bank, insured bank, branch or agency of
a foreign bank, or organization operating under section 25
or section 25(a) of the Federal Reserve Act,"; and
(B) by inserting ", branch, agency, or organization" after
"of such bank" each place such term appears;
(2) in the 3d undesignated paragraph, by striking "bank or
company" each place such term appears and inserting "bank,
company, branch, gigency, or organization"; and
(3) in the last undesignated paragraph—
(A) by striking and" after "one of the Federal Reserve
banks;'; and
(B) by inserting before the period the following: "; and the
term 'branch or agency of a foreign bank' means a branch
or agency described in section 20(9) of this title".
(i) FALSE STATEMENTS IN LOAN, CREDIT, AND CROP INSURANCE
APPUCATIONS.—Section 1014 of title 18, United States Code (as
amended by section 2104(g) of this subtitle) is amended by inserting
"a branch or agency of a foreign bank (as such terms are defined in
paragraphs (1) and (3) of section 1(b) of the International Banking
Act of 1978), or an organization operating under section 25 or section
25(a) of the Federal Reserve Act," after "or the National Credit
Union Administration Board".
(j) FRAUD AND RELATED ACTIVITY IN CONNECTION WITH COMPUT-
ERS.—Section 1030(eX4) of title 18, United States Code, is amended—
(1) by striking "and" at the end of subparagraph (F);
(2) by striking the period at the end of subparagraph (G) and
inserting a semicolon; and
(3) by adding at the end the following new subparagraphs:
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4911
"(H) a branch or agency of a foreign bank (as such terms
are defined in paragraphs (1) and (3) of section 1(b) of the
International Banking Act of 1978); and
"(I) an organization operating under section 25 or section
25(a) of the Federal Reserve Act.",
(k)
DISCLOSURE OF INFORMATION FROM A BANK EXAMINATION
REPORT.—Section 1906 of title 18, United States Code, is amended—
(1) by striking "System, or bank insured" and inserting
"System, any bank insured";
(2) by inserting ", any branch or agency of a foreign bank (as
such terms are defined in paragraphs (1) and (3) of section 1(b) of
the International Banking Act of 1978), or any organization
operating under section 25 or section 25(a) of the Federal Reserve Act," after "by the Federal Deposit Insurance
Corporation";
(3) by inserting "branch, agency, or organization," after
"proper officers of such bank,";
(4) by inserting "or a Federal branch or Federal agency (as
such terms are defined in paragraphs (5) and (6) of section 1(b) of
the International Banking Act of 1978)" after "national bank";
(5) by inserting ", an uninsured State branch or State agency
(as such terms are defined in paragraphs (11) and (12) of section
1(b) of the International Banking Act of 1978), or an organization operating under section 25 or section 25(a) of the Federal
Reserve Act" after "as to a State member bank";
(6) by inserting ", including any insured branch (as defined in
section 3(s) of the Federal Deposit Insurance Act)," after "any
other insured bank"; and
(7) by inserting "or organization" after "board of directors of
such bank".
(1) BANK ROBBERY AND INCIDENTAL CRIMES.—Section 2113(f) of title
18, United States Code, is amended by inserting "including a branch
or agency of a foreign bank (as such terms are defined in paragraphs
(1) and (3) of section 1(b) of the International Banking Act of 1978),"
after "operating under the laws of the United States,'.
TITLE XXVI—LICIT OPIUM IMPORTS
SEC. 2601. UNITED STATES POLICY REGARDING IMPORTATION OF NARCOTIC RAW M A T E R I A L .
India.
Turkey.
(a) REVIEW REQUIRED.—The President shall conduct a review of
United States narcotics raw material policy to determine the advisability of continued reliance on the "80-20 rule" (21 C.F.R. sec.
1312.13) by which at least 80 percent of United States imports of
narcotics raw material must come from India and Turkey.
(b) AGENCIES TO B E INVOLVED.—This review shall include information and views from the Department of State, the Administrator of
the Drug Enforcement Administration, and the Secretary of the
Department of Health and Human Services, the Secretary of Commerce and any other agencies the President determines appropriate.
(c) NATURE AND CONTENTS.—This review shall include—
(1) a report on the extent of the diversion taking place from Reports,
the licit to the illicit market in India from the farm gate
through the stockpile;
(2) an evaluation of the efforts being made by the Government
of India to stop diversion from the licit to the illicit market, to
104 STAT. 4912
President.
PUBLIC LAW 101-647—NOV. 29, 1990
limit its stockpile of opium gum, and to limit and regulate the
amount of land and number of farmers devoted to poppy cultivation, and the success or failure of these efforts;
(3) a description of the steps the President has taken to
encourage these actions on the part of the Indian government,
what further steps are contemplated and what action will be
taken if Indian action proves ineffective;
(4) an assessment of whether continued reliance on the 80-20
rule serves to encourage these actions, an assessment of what
circumstances would make continued reliance on the rule unacceptable to the President, and proposals for executive or
legislative modification of the rule under those circumstances;
(5) an assessment of the feasibility of India converting from
the opium gum to the concentrated poppy straw method of
opium production;
(6) an assessment of the effects on United States supplies of
narcotic raw material in the absence of 80-20; £md
(7) an evaluation of the potential for market manipulation
under the 80-20 rule.
(d) REPORT TO CONGRESS.—The President shall report the results of
this review to Congress not later than April 1,1991.
TITLE XXVII—SENTENCING FOR
METHAMPHETAMINE OFFENSES
28 u s e 994 note.
SEC. 2701. SENTENCING COMMISSION GUIDELINES.
The United States Sentencing Commission is instructed to amend
the existing guidelines for offenses involving smokable crystal methamphetamine under section 401(b) of the Controlled Substances Act
(21 U.S.C 841(b)) so that convictions for offenses involving smokable
crystal methamphetamine will be sissigned an offense level under
the guidelines which is two levels above that which would have been
assigned to the same offense involving other forms of methamphetamine.
TITLE XXVIII—DRUG ENFORCEMENT
GRANTS
SEC. 2801. BASE ALLOCATION FOR DRUG ENFORCEMENT GRANTS AND
IMPROVING THE EFFECTIVENESS OF COURT PROCESS.
BASE ALLOCATION FOR DRUG ENFORCEMENT GRANT.—Paragraph
42 u s e 3793.
Appropriation
authorization.
(5) of section 1001(a) of part J of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 is amended to read as follows:
"(5) There are authorized to be appropriated $900,000,000 for fiscal
year 1991 and such sums as may be necessary for fiscal vear 1992 to
carry out the programs under parts D and E of this title.'.
TITLE XXIX—PRISONS
SEC. 2901. REPORT WITH RESPECT TO FEDERAL PRISON INDUSTRIES.
Section 4124 of title 18, United States Code, is amended—
(1) in the first paragraph by inserting "(a)" before 'The'
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4913
(2) in the second paragraph by inserting "Ot))" before "Disputes"; and
(3) by adding at the end the following:
"(c) Each Federal department, Eigency, and institution subject to
the requirements of subsection (a) shall separately report to the
General Services Administration all of its acquisitions of products
and services from Federal Prison Industries, and that reported
information shall be entered in the Federal Procurement Data
System referred to in section 6(dX4) of the Office of Federal Procurement Policy Act. Each report published by the Federal Procurement
Data System that contains the information collected by the System
shall include a statement to accompany the information reported by
the department, agency, or institution under the preceding sentence
as follows: 'Under current law, sales by Federal Prison Industries
are considered intragovernmental transfers. The purpose of reporting sales by Federal Prison Industries is to provide a complete
overview of acquisitions by the Federal Government during the
reporting period.'.
"(d) Within 90 days after the date of the enactment of this Government
subsection, Federal Prison Industries shall publish a catalog of all publications,
products and services which it offers for sale. This catalog shall be
updated periodically to the extent necessary to ensure that the
information in the catalog is complete and accurate.".
SEC. 2902. PRERELEASE CUSTODY.
(a) IN GENERAL.—Section 3624(c) of title 18, United States Code, is
amended by inserting after the first sentence the following: "The
authority provided by this subsection may be used to place a prisoner in home confinement.".
(b) EFFECTIVE DATE.—Section 3624(c) of title 18, United States 18USC3624
Code, £is amended by this section, shall apply with respect to all ^°*^inmates, regardless of the date of their offense.
SEC. 2903. DRUG TREATMENT FOR PRISONERS.
Section 3621(b) of title 18, United States Code, is amended by
adding at the end the following: "The Bureau shall, to the extent
practicable, make available appropriate substance abuse treatment
for each prisoner the Bureau determines has a treatable condition of
substance addiction or abuse.".
SEC. 2904. FUNCTIONAL LITERACY REQUIREMENT FOR ALL INDIVIDUALS
IN FEDERAL CORRECTIONAL INSTITUTIONS.
Section 3624 of title 18, United States Code, is amended by adding
at the end the following:
"(f) MANDATORY FUNCTIONAL LITERACY REQUIREMENT.—
"(1) The Attorney General shall direct the Bureau of Prisons
to have in effect a mandatory functional literacy program for
all mentally capable inmates who are not functionally literate
in each Federal correctional institution within 6 months from
the date of the enactment of this Act.
"(2) Each mandatory functional literacy program shall include a requirement that each inmate participate in such program for a mandatory period sufficient to provide the inmate
with an adequate opportunity to achieve functional literacy,
and appropriate incentives which lead to successful completion
of such programs shall be developed and implemented.
104 STAT. 4914
Reports.
18 u s e 4121
PUBLIC LAW 101-647—NOV. 29, 1990
"(3) As used in this section, the term 'functional literacy'
means—
"(A) an eighth grade equivalence in reading and mathematics on a nationally recognized standardized test;
"(B) functional competency or literacy on a nationally
recognized criterion-referenced test; or
"(C) a combination of subjjaragraphs (A) and (B).
"(4) Non-English speaking inmates shall be required to
participate in an English-As-A-Second-Language program until
they function at the equivalence of the eighth grade on a
nationally recognized educational achievement test.
"(5) The Chief Executive Officer of each institution shall have
authority to grant waivers for good cause as determined and
documented on an individual basis.
"(6) A report shall be provided to Congress on an annual basis
summarizing the results of this program, including the number
of inmate participants, the number successfully completing the
program, the number who do not successfully complete the
program, and the reasons for failure to successfully complete
the program.".
SEC. 2905. MANDATORY WORK REQUIREMENT FOR ALL PRISONERS.
(a) I N GENERAL.—(1) It is the policy of the Federal Government
that convicted inmates confined in Federal prisons, jails, and other
detention facilities shall work. The type of work in which they will
be involved shall be dictated by appropriate security considerations
and by the health of the prisoner involved.
(2) A Federal prisoner may be excused from the requirement to
work only as necessitated by—
(A) security considerations;
(B) disciplinary action;
(C) medical certification of disability such as would make it
impracticable for prison officials to arrange useful work for the
prisoner to perform; or
(D) a need for the prisoner to work less than a full work
schedule in order to participate in literacy training, drug rehabilitation, or similar programs in addition to the work
program.
SEC. 2906. EXPANSION OF THE PRIVATE SECTOR/PRISON INDUSTRY
ENHANCEMENT CERTIFICATION PROGRAM.
Section 1761(c) of title 18, United States Code, is amended—
(1) by redesignating paragraphs (1), (2), and (3) as paragraphs
(2), (3), and (4), respectively;
(2) by striking the matter preceding paragraph (2), as redesignated by paragraph (1) of this section, and inserting the
following:
"(c) In addition to the exceptions set forth in subsection (b) of this
section, this chapter shall not apply to goods, wares, or merchandise
mginufactured, produced, or mined by convicts or prisoners who—
"(1) are participating in—one of not more than 50 non-Federal
prison work pilot projects designated by the Director of the
Bureau of Justice Assistance; and"; and
(3) in paragraph (2), as redesignated by paragraph (1) of this
section, by amending subparagraph (B) to read as follows:
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4915
"(B) reasonable charges for room and board, as determined by regulations issued by the chief State correctional
officer, in the case of a State prisoner.".
SEC. 2907. COST SAVING MEASURES.
tn;
•
18 USC 4042
The Director of the Federal Bureau of Prisons (referred to as the
"Director") shall, to the extent practicable, take such measures as
are appropriate to cut costs of construction. Such measures may
include reducing expenditures for amenities including, for example,
color television or pool tables.
SEC. 2908. REPORT BY SECRETARY OF LABOR.
18 USC1761
The Secretary of Labor shall submit to the Congress not later
than March 1, 1991, and not less often than annually thereafter,
reports which describe in detail the extent and manner of compliance by State Prison Industry Enhancement Certification programs
with the requirements set forth in 18 U.S.C. 1761(c).
TITLE XXX—SHOCK INCARCERATION
SEC. 3001. SHOCK INCARCERATION PROGRAM.
(a) I N GENERAL,—Chapter 303 of title 18, United States Code, is
amended by adding at the end the following:
"§ 4046. Shock incarceration program
< ,
"(a) The Bureau of Prisons may place in a shock incarceration
program any person who is sentenced to a term of imprisonment of
more than 12, but not more than 30, months, if such person consents
to that placement.
"(b) For such initial portion of the term of imprisonment as the
Bureau of Prisons may determine, not to exceed 6 months, an
inmate in the shock incarceration program shall be required to—
"(1) adhere to a highly regimented schedule that provides the
strict discipline, physical training, hard labor, drill, and ceremony characteristic of military basic training; and
"(2) participate in appropriate job training and educational
programs (including literacy programs) and drug, alcohol, and
other counseling programs.
"(c) An inmate who in the judgment of the Director of the Bureau
of Prisons has successfully completed the required period of shock
incarceration shall remain in the custody of the Bureau for such
period (not to exceed the remainder of the prison term otherwise
required by law to be served by that inmate), and under such
conditions, as the Bureau deems appropriate.".
(b) CLERICAL AMENDMENT.—The table of sections at the beginning
of chapter 303 of title 18, United States Code, is amended by adding
at the end the following:
^
.
"4046. Shock incarceration program.".
SEC. 3002. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for fiscal year 1990 and
each fiscal year thereafter such sums as may be necessary to carry
out the shock incarceration program established under the amendments made by this Act.
- * "
• . v^..
18 USC 4046
:^
104 STAT. 4916
Criminal
SoSon
Act of 1990.
11 u s e 101 note.
'
PUBLIC LAW 101-647—NOV. 29, 1990
TITLE XXXI—BANKRUPTCY AND
RESTITUTION
SEC. 3101. SHORT TITLE.
This title may be cited as the "Criminal Victims Protection Act of
1990".
SEC. 3102. NONDISCHARGEABILITY OF CERTAIN DEBTS ARISING FROM
UNLAWFUL DRIVING WHILE INTOXICATED OR IMPAIRED.
(a) AMENDMENT TO CHAPTER 5.—Section 523(aX9) of title 11,
United States Code, is amended to read as follows:
"(9) for death or personal injury caused by the debtor's operation of a motor vehicle if such operation was unlawful because
the debtor was intoxicated from using alcohol, a drug, or another substance; or".
OJ) AMENDMENT TO CHAPTER 13.—Section 1328(a)(2) of title 11,
United States Code, is amended by inserting "or 523(a)(9)" after
"523(aX5)".
SEC. 3103. NONDISCHARGEABILITY OF CERTAIN DEBTS FOR RESTITUTION IMPOSED FOR COMMITTING CRIMES.
?; Section 1328(a) of title 11, United States Code, is amended—
(1) in paragraph (1) by striking "or" at the end,
(2) in paragraph (2) by striking the period at the end and
inserting "; or", and
(3) by adding at the end the following:
"(3) for restitution included in a sentence on the debtor's
conviction of a crime.".
11 u s e 523 note.
SEC. 3104. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.
(a) EFFECTIVE DATE.—This title and the amendments made by this
title shall take effect on the date of the enactment of this Act.
(b) APPUCATION OF AMENDMENTS.—The amendments made by this
title shall not apply with respect to cases commenced under title 11
of the United States Code before the date of the enactment of this
Act.
TITLE XXXII—MISCELLANEOUS
28 u s e 509 note.
SEC. 3201. AUTHORIZATION OF APPROPRIATIONS FOR HUMANITARIAN
EXPENSES.
(a) FEDERAL BUREAU OF INVESTIGATION.—For each fiscal year
beginning after September 30, 1990, there is authorized to be appropriated for the Federal Bureau of Investigation $25,000, to be expended in the discretion of the Director of the Federal Bureau of
Investigation to pay humanitarian expenses incurred—
(1) by an employee of the Bureau as a result of serious illness,
serious injury, or death occurring while on official business; or
(2) by any member of the immediate family of such employee,
incident to the serioiis illness, serious injury, or death of such
employee occurring while on official business.
(b) DRUG ENFORCEMENT ADMINISTRATION.—For each fiscal year
beginning after September 30, 1990, there is authorized to be appropriated for the Drug Enforcement Administration $25,000„ to be
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4917
expended at the discretion of the Administrator of the Drug Enforcement Administration to pay humanitarian expenses incurred—
(1) by an employee of the Administration as a result of serious
illness, serious injury, or death occurring while on official business; or
(2) by any member of the immediate family of such employee,
incident to the serious illness, serious injury, or death of such
employee occurring while on official business.
SEC. 3202. BANNING OF ISOPROPAL NITRITE AND OTHER NITRITES.
15 USC 2057b.
(a) I N GENERAL.—Except as provided in subsection (b), volatile
alkyl nitrite shall be considered a banned hazardous product under
section 8 of the Consumer Product Safety Act (15 U.S.C. 2057).
(b) LAWFUL PURPOSES.—For the purposes of section 8 of the
Consumer Product Safety Act, it shall not be unlawful for any
person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States volatile alkyl nitrites for
any commercial purpose or any other purpose approved under the
Federal Food, Drug, and Cosmetic Act.
(c) DEFINITIONS.—For purposes of this section, the term "commercial purpose" means any commercial purpose other than for the
production of consumer products containing volatile alkyl nitrites
that may be used for inhaling or otherwise introducing volatile alkyl
nitrites into the human body for euphoric or physical effects.
(d) EFFECTIVE DATE.—This section shall take effect 90 days after
the date of the enactment of this Act.
TITLE XXXIII—MISCELLANEOUS
PROVISIONS
SEC. 3301. UNDERCOVER OPERATIONS OF INTERNAL REVENUE SERVICE.
(a) EXTENSION OF PROGRAM.—Paragraph (3) of section 7601(c) of
the Anti-Drug Abuse Act of 1988 (relating to effective date) is 26 USC 7608
amended by striking "1989" and "1990" and inserting "1991" and note.
"1992", respectively.
OJ) GAO STUDY.—
«
(1) I N GENERAL.—The Comptroller General of the United
States shall conduct a study of undercover investigative operations of the Internal Revenue Service which were conducted
using any authority provided in subsection (c) of section 7608 of
the Internal Revenue Code of 1986. The study shall include an
evaluation of—
(A) the use of the proceeds of such operations,
(B) the results of such operations, and
(C) the financial audits conducted by the Internal Revenue Service under such subsection.
(2) REPORT.—Not later than July 1, 1991, the Comptroller
General shall submit to the Committee on Ways and Means of
the House of Representatives and the Committee on Finance of
the Senate the results of the study required in paragraph (1).
SEC. 3302. DISCLOSURE OF RETURNS ON CERTAIN CASH TRANSACTIONS.
(a) EXTENSION OF PROGRAM.—Paragraph (3) of section 7601(b) of
the Anti-Drug Abuse Act of 1988 (relating to effective date) is 26 USC 6103
amended by striking "2-year period" inserting "4-year period".
^ote.
104 STAT. 4918
PUBLIC LAW 101-647—NOV. 29, 1990
(b) GAO STUDY.—
(1) I N GENERAL.—The Comptroller Greneral of the United
States shall conduct a study of the disclosure of returns to
Federal agencies under paragraph (8) of section 6103(i) of the
Internal Revenue Code of 1986. The study shall include an
evaluation of—
(A) the Federal agencies requesting disclosure under such
paragraph,
(B) the use of the information so disclosed, and
(C) the effect of the use of such information on the
administration of Federal criminal statutes.
(2) REPORT.—Not later than July 1, 1991, the Comptroller
General shall submit to the Committee on Ways and Means of
the House of Representatives and the Committee on Finance of
the Senate the results of the study required in paragraph (1).
SEC. 3303. FELONY CLASSIFICATION FOR FAILURE TO FILE RETURN ON
CERTAIN CASH TRANSACTIONS.
26 use 7203.
(a) IN GENERAL.—The last sentence of section 7203 of the Internal
Revenue Code of 1986 (relating to willful failure to file return, etc.)
is amended by striking "by substituting" and inserting "by
substituting 'felony' for 'misdemeanor' and".
(b) GAO STUDY.—
26 use 7203
"°*®26 u s e 6103
(1) I N GENERAL.—The Comptroller General of the United
States shall conduct a study of the criminal penalties established under section 7203 of the Internal Revenue Code of 1986
for violations of section 60501 of such Code. The study shall
include an evaluation of—
(A) the number of cases in which such penalties have
been sought for such violations, and
(B) any change in the effectiveness of such penalties by
reason of the amendment made by subsection (a).
(2) REPORT.—Not later than July 1, 1991, the Comptroller
General shall submit to the Committee on Ways and Means of
the House of Representatives and the Committee on Finance of
the Senate the results of the study required in paragraph (1).
(c) EFFECTIVE DATE.—The amendment made by subsection (a) shall
apply to actions, and failures to act, occurring after the date of the
enactment of this Act.
SEC. 3304. CONFIDENTIALITY OF TAX RETURN INFORMATION.
(a) IN GENERAL.—Notwithstanding any other provision of this Act,
no commission established by this Act shall have access to any
return or return information, except to the extent authorized by
section 6103 of the Internal Revenue Code of 1986.
Qa) DEFINITIONS.—For purposes of this section, the terms "return"
and "return information" have the respective meanings given such
terms by section 610303) of the Internal Revenue Code of 1986.
42 use 3721
TITLE X X X I V — N A T I O N A L COMMISSION
TO S U P P O R T L A W E N F O R C E M E N T
SEC. 3401. CONGRESSIONAL FINDINGS.
The Congress finds that—
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4919
(1) law enforcement officers risk their lives daily to protect
citizens, for modest rewards and too little recognition;
(2) a significant shift has occurred in the problems that law
enforcement officers face without a corresponding change in the
support from the Federal Government;
(3) law enforcement officers are on the front line in the war
against drugs and crime;
(4) the rate of violent crime continues to increase along with
the increase in drug use;
(5) a large percenteige of individuals arrested test positive for
drug usage;
(6) the Presidential Commission on Law Enforcement and the
Administration of Justice of 1965 focused attention on many
issues affecting law enforcement, and a review 25 years later
would help to evaluate current problems, including drug-related
crime, violence, racial conflict, and decreased funding; and
(7) a comprehensive study of law enforcement issues, including the role of the Federal Government in supporting law
enforcement officers, working conditions, and responsibility for
crime control would assist in redefining the relationships between the Federal Government, the public, and law enforcement officials.
SEC. 3402. ESTABLISHMENT.
There is hereby established the National Commission to Support
Law Enforcement (hereafter in this title referred to as the
"Commission").
SEC. 3403. DUTIES.
(a) I N GENERAL.—The Commission shall study and include in the
report made under section 3407 recommendations for changes
regarding law enforcement agencies and law enforcement issues on
the Federal, State, and local levels, including the following:
(1) FUNDING.—The sufficiency of funding, including a review
of grant programs at the Federal level.
(2) EMPLOYMENT.—The conditions of law enforcement
emplo3mient.
(3) INFORMATION.—The effectiveness of information-sharing
systems, intelligence, infrastructure, and procedures among law
enforcement agencies of Federal, State, and local governments.
(4) RESEARCH AND TRAINING.—The status of law enforcement
research and education and training.
(5) EQUIPMENT AND RESOURCES.—The adequacy of equipment,
physical resources, and human resources.
(6) COOPERATION.—The cooperation among Federal, State, and
local law enforcement agencies.
(7) RESPONSIBIUTY.—The responsibility of governments and
law enforcement Eigencies in solving the crime problem.
(8) IMPACT.—The impact of the criminal justice system,
including court schedules and prison overcrowding, on law
enforcement.
OJ) CONSULTATION.—The Commission shall conduct surveys and
consult with focus groups of law enforcement officers, local officials,
and community leaders across the Nation to obtain information and
seek advice on important law enforcement issues.
v^ .
104 STAT. 4920
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 3404. MEMBERSHIP.
(a) NUMBER AND APPOINTMENT.—The Commission shall be composed of 19 members as follows:
(1) 5 individuals from national law enforcement organizations
representing law enforcement officers, appointed jointly by the
Speaker of the House of Representatives and the majority
leader of the Senate.
(2) 5 individuals from national law enforcement organizations
representing law enforcement management, appointed jointly
by the Speaker of the House of Representatives and the majority leader of the Senate.
(3) 2 individuals with academic expertise regarding law
enforcement issues, appointed jointly by the Speaker of the
House of Representatives and the majority leader of the Senate.
(4) 2 Members of the House of Representatives, appointed
jointly by the Speaker and the minority leader of the House of
Representatives.
(5) 2 Members of the Senate, appointed jointly by the majority
leader and the minority leader of the Senate.
(6) 1 individual involved in Federal law enforcement from the
Department of the Treasury, appointed by the President.
(7) 1 individual from the Department of Justice, appointed by
the President.
(8) The Comptroller General of the United States, who shall
serve as the chairperson of the Commission.
(b) COMPENSATION.—
(1) IN GENERAL.—Members of the Commission shall receive no
additional pay, allowances, or benefits by reason of service on
the Commission.
(2) TRAVEL EXPENSES.—Each member of the Commission shall
receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5,
United States Code.
SEC. 3405. EXPERTS AND CONSULTANTS.
(a) EXPERTS AND CONSULTANTS.—The Commission may procure
temporary and intermittent services under section 3109(b) of title 5,
United States Code.
(b) STAFF OF FEDERAL AGENCIES.—Upon request of the Commis-
sion, the head of any Federal agency is authorized to detail, on a
reimbursable basis, any of the personnel of that agency to the
Commission to assist the Commission in carrying out its duties
under this title.
(c) ADMINISTRATIVE SUPPORT.—The Administrator of General
Services shall provide to the Commission, on a reimbursable basis,
administrative support services as the Commission may request.
SEC. 3406. POWERS OF COMMISSION.
(a) HEARINGS.—The Commission may, for purposes of this title,
hold hearings, sit and act at the times and places, take testimony,
and receive evidence, as the Commission considers appropriate.
(b) DELEGATION OF AUTHORITY.—Any member or agent of the
Commission may, if authorized by the Commission, take any action
the Commission is authorized to take by this section.
(c) INFORMATION.—The Commission may secure directly from any
Federal agency information necessary to enable it to carry out this
title. Upon request of the chairperson of the Commission, the head
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4921
of an agency shall furnish the information to the Commission to the
extent permitted by law.
(d) GIFTS AND DONATIONS.—The Commission may accept, use, and
dispose of gifts or donations of services or property.
(e) MAILS.—The Commission may use the United States mails in
the same manner and under the same conditions as other Federal
agencies.
SEC. 3407. REPORT.
Not later than the expiration of the 18-month period beginning on
the date of the enactment of this title, the Commission shall submit
to the Congress a report containing the findings of the Commission
and specific proposals for legislation and administrative actions that
the Commission has determined to be appropriate.
SEC. 3408. TERMINATION.
The Commission shall cease to exist upon the expiration of the 60day period beginning on the date on which the Commission submits
its report under section 3407.
TITLE XXXV—TECHNICAL AND MINOR
SUBSTANTIVE AMENDMENTS
SEC. 3501. MODIFICATION OF APPROVAL REQUIREMENTS FOR GOVERNMENT SENTENCE APPEALS.
Section 374200) of title 18, United States Code, is amended—
(1) by striking ", with the personal approval of the Attorney
General or the Solicitor General"; and
(2) by adding at the end the following: "The Government may
not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a
deputy solicitor general designated by the Solicitor General.".
SEC. 3502. PENALTY FOR CERTAIN ACCESSORY AFTER THE FACT
OFFENSES.
Section 3 of title 18, United States Code, is amended by striking
"10 years" and inserting in lieu thereof "15 years".
SEC. 3503. DELETION OF REQUIREMENT FOR SOLICITOR GENERAL APPROVAL OF APPEAL TO A DISTRICT COURT FROM A SENTENCE IMPOSED BY A MAGISTRATE.
Section 3742(g) of title 18, United States Code, is amended by
inserting "(except for the requirement of approval by the Attorney
General or the Solicitor General in the case of a Government
appeal)" after "and this section shall apply".
SEC. 3504. CORRECTION OF TABLE OF SECTIONS FOR CHAPTER 1.
The item relating to section 17 in the table of sections at the
beginning of chapter 1 of title 18, United States Code, is amended by
striking "Defense" and inserting "defense".
SEC. 3505. CORRECTION TO SECTION 12.
Section 12 of title 18, United States Code, is amended by striking
"every officer and employee of that Service, whether he has taken
the oath of office" and inserting "every officer and employee of that
104 STAT. 4922
PUBLIC LAW 101-647—NOV. 29, 1990
Service, whether or not such officer or employee has taken the oath
of office".
SEC. 3506. CORRECTION OF TABLE OF SECTIONS FOR CHAPTER 3.
\
The table of sections at the beginning of chapter 3 of title 18,
United States Code, is amended—
(1) in the item relating to section 47, by inserting "; pollution
of watering holes" after "burros"; and
(2) by striking the items related to sections 42 through 44 and
inserting the following:
"42. Importation or shipment of injurious mammals, birds, fish (including moUusks
and Crustacea), amphibia, and reptiles; permits, specimens for museums;
regulations.".
SEC. 3507. CORRECTION TO SECTION 114.
Section 114 of title 18, United States Code, is amended by striking
"and imprisoned" and inserting "or imprisoned".
SEC. 3508. CORRECTION TO SECTION 115.
Section 115 of title 18, United States Code, is amended by striking
"The Central" and inserting "the Central".
SEC. 3509. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 11.
The table of sections at the beginning of chapter 11 of title 18,
United States Code, is amended—
(1) in the item relating to section 203, by striking "of Members" and inserting "to Members"; and
(2) in the item relating to section 204, by striking "Court of
Claims" and inserting "United States Claims Court or United
States Court of Appeals for the Federal Circuit".
SEC. 3510. CROSS REFERENCE UPDATE FOR SECTION 209.
Subsection (d) of section 209 of title 18, United States Code, is
amended by striking "Government Employees Training Act" and all
that follows through the end of such subsection and inserting "chapter 41 of title 5.".
SEC. 3511. CORRECTION TO SECTION 219.
Section 219(c) of title 18, United States Code, is amended by
striking "Governments" and inserting "Government".
SEC. 3512. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 23.
^
The table of sections at the beginning of chapter 23 of title 18,
United States Code, is amended—
(1) by striking the item relating to section 434; and
(2) in the item relating to section 437, by striking "Indian"
and all that follows through "supplies" and inserting "Federal
employees contracting or trading with Indians.".
SEC. 3513. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 25.
The table of sections at the beginning of chapter 25 of title 18,
United States Code, is amended—
(1) in the item relating to section 491, by striking "used" and
all that follows through "coins" and inserting "or paper used as
money.";
(2) in the item relating to section 496, by striking "entry
certificates" and inserting "matters"; and
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4923
(3) in the item relating to section 501, by inserting ", posts^e
meter stamps," after "stamps".
SEC. 3514. MARGIN CORRECTION IN SECTION 510.
Subsection (a) of section 510 of title 18, United States Code, is
gimended—
(1) by inserting a semicolon after "or signature" in paragraph
(2); and
(2) so that the matter beginning with "shall be fined" and all
that follows through the end of such subsection is flush against
the left margin.
SEC. 3515. CORRECTIONS TO SECTION 513.
Section 513(cX3) of title 18, United States Code, is amended—
(1) by striking "(15 U.S.C. 1693(c))"; and
(2) by inserting a comma after "profit-sharing agreement".
SEC. 3516. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 29.
The table of sections at the beginning of chapter 29 of title 18,
United States Code, is amended—
(1) in the item relating to section 603, by striking "Place of
solicitation" and inserting "Making political contributions";
and
(2) in the item relating to section 607, by striking "Making
political contributions" and inserting "Place of solicitation'.
SEC. 3517. CORRECTION OF HEADING OF SECTION 665.
(a) The heading of section 665 of title 18, United States Code, is
amended by striking the colons and inserting semicolons.
(b) Section 665(c) of title 18, United States C!ode, is amended by
striking "Any person whoever" and inserting "Whoever".
SEC. 3518. PUNCTUATION CORRECTION TO HEADING FOR CHAPTER 33.
The heading at the beginning of chapter 33 of title 18, United
States Code, is amended by inserting a comma after "insignia".
SEC. 3519. REDESIGNATION OF SECOND SECTION 798.
(a) GENERALLY.—The second section 798 of title 18, United States
Code, is redesignated as section 798A.
(b) TABLE OF SECTIONS.—The item relating to the second section
798 in the table of sections at the beginning of chapter 37 of title 18,
United States Code, is amended by striking "798" and inserting
"798A".
(c) CROSS REFERENCE CONFORMING AMENDMENT.—Section 14 of
title 18, United States Code, is amended by striking "798" the first
place it appears and all that follows through "799" gind inserting
^'798, 798A, 799".
SEC. 3520. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 40.
The item relating to section 843 in the table of sections at the
beginning of chapter 40 of title 18, United States Code, is amended
by striking "Licensing" and inserting "Licenses".
SEC. 3521. CORRECTION TO SECTION 842.
Section 842 of title 18, United States Code, is amended—
(1) in subsection (dX5), by striking the period and inserting ";
or"; and
104 STAT. 4924
PUBLIC LAW 101-647—NOV. 29, 1990
(2) in subsection (i)(3), by striking the period and inserting ";
or .
SEC. 3522. CORRECTION TO SECTION 844.
Section 844 of title 18, United States Code, is amended by striking
the comma that immediately follows a comma.
SEC. 3523. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 44.
The item relating to section 928 in the table of sections at the
beginning of chapter 44 of title 18, United States Code, is amended
by striking "clause".
SEC. 3524. CORRECTION TO SECTION 922.
Section 922(b)(1) is amended by striking the period at the end and
inserting a semicolon.
SEC. 3525. CORRECTION TO SECTION 923.
Section 923(a)(3)(B) is amended by inserting a comma after
"devices".
SEC. 3526. AMENDMENTS RELATING TO THE UNDETECTABLE FIREARMS
ACT OF 1988.
(a) REDESIGNATION IN TITLE 18.—Section 924 of title 18, United
States Code, is amended by redesignating the second subsection (f)
and subsection (g) as subsections (g) and (h), respectively.
(b) REDESIGNATION IN ORIGINAL ACT.—Section 2(0(2)(B) of
18 use 924.
the
Undetectable Firearms Act of 1988 is amended by inserting "and
subsections (g) and (h) of such section are hereby redesignated as
subsections (f) and (g), respectively" before the semicolon.
SEC. 3527. ELIMINATION OF REDUNDANT WORDS.
Section 924(c)(1) of title 18, United States Code, is amended by
striking "imprisonment for" the 4th place it appears.
SEC. 3528. INSERTION OF MISSING PARENTHESES.
Section 924(a)(1) is amended by striking " 3 " and inserting "(3)".
SEC. 3529. ADDITIONAL CORRECTIONS TO SECTION 924.
Section 924 of title 18, United States Code, is amended—
(1) in subsection (a)(2)—
(A) by striking "subsections" and inserting "subsection";
and
(B) by inserting a comma after "years".
(2) in subsection (e)(2)(A)(ii), by striking "and"; and
(3) in subsection (e)(2)(B)(ii), by striking the period and inserting "; and".
SEC. 3530. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 45.
The table of sections at the beginning of chapter 45 of title 18,
United States Code, is amended by striking the item relating to
section 968.
SEC. 3531. CORRECTION TO SECTION 981.
Section 981(d) of title 18, United States Code, is amended by
adding a period at the end.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4925
SEC. 3532. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 47.
The item relating to section 1031 in the table of sections at the
beginning of chapter 47 of title 18, United States Code, is amended
by inserting a period after "1031".
SEC. 3533. CORRECTION OF CROSS REFERENCE IN SECTION 1030.
Section 1030 of title 18, United States Code, is amended by striking "paragraph r" and inserting "paragraph y".
SEC. 3534. ELIMINATION OF SUPERFLUOUS PUNCTUATION IN SECTION
1113.
Section 1113 of title 18, United States Code, is amended by striking the final period.
SEC. 3535. CAPITALIZATION AND AGENCY REFERENCE CORRECTIONS IN
SECTION 1114.
Section 1114 of title 18, United States Code, is amended—
(1) by striking "secret service" and inserting "Secret Service";
(2) by striking "any officer or employee of the Department of
Health, Education, and Welfare," and inserting "any officer or
employee of the Department of Education, the Department of
Health and Human Services,"; and
(3) by striking "the Federal Savings and Loan Insurance
Corporation,".
SEC. 3536. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 53.
The table of sections at the beginning of chapter 53 of title 18,
United States Code, is amended by striking the item relating to
section 1157.
SEC. 3537. CORRECTION TO SECTION 1168.
Section 1168(a) of title 18, United States Code, is amended by
striking "and be imprisoned for" and inserting "or imprisoned".
SEC. 3538. CROSS REFERENCE CORRECTION IN SECTION 1201.
Section 1201(aX3) of title 18, United States Code, is amended—
(1) by striking "101(36)" and inserting "101(38)"; and
(2) by striking ", as amended (49 U.S.C. 1301(36))".
SEC. 3539. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 57.
The table of sections at the beginning of chapter 57 of title 18,
United States Code, is amended by striking the item relating to
section 1232.
SEC. 3540. CORRECTION OF HEADING OF SECTION 1262.
The heading of section 1262 of title 18, United States Code, is
amended by striking "state" and inserting "State".
SEC. 3541. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 63.
The item relating to section 1342 in the table of sections at the
beginning of chapter 63 of title 18, United States Code, is amended
by striking "and" and inserting "or".
SEC. 3542. CORRECTION TO SECTION 1345.
Section 1345 of title 18, United States C!ode, is amended by inserting a comma after "of this title".
104 STAT. 4926
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 3543. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 65.
The item relating to section 1366 in the table of sections at the
beginning of chapter 65 of title 18, United States Code, is amended
by inserting a period after "1366".
SEC. 3544. CORRECTION OF QUOTATION MARK.
Section 1365(g)(1)(A) of title 18, United States Code, is amended by
inserting a r open quotation mark before "device".
SEC. 3545. CORRECTION OF CROSS REFERENCE.
Section 1366(c) of title 18, United States Code, is amended by
striking "49 U.S.C. 1671" and inserting "section 2 of the Natural
Gas Pipeline Safety Act of 1968".
SEC. 3546. ELIMINATION OF EXECUTED CLERICAL AMENDMENT.
Section 1366 of title 18, United States Code, is amended by striking subsection (d).
SEC. 3547. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 67.
The table of sections at the beginning of chapter 67 of title 18,
United States Code, is amended by striking the item relating to
section 1383.
SEC. 3548. CORRECTION TO SECTION 1466.
Section 1466(b) of title 18, United States Code, is amended—
(1) by striking "this subsection" and inserting "this section";
and
(2) by striking "subsection (b)" and inserting "this
subsection".
SEC. 3549. CROSS REFERENCE CORRECTION TO SECTION 1467.
Section 1467(h)(4) of title 18, United States Code, is amended by
striking "in accordance" and all that follows through "United States
Code" and inserting "under section 616 of the Tariff Act of 1930".
SEC. 3550. CORRECTION TO SECTION 1546.
Section 1546(a) of title 18, United States Code, is amended by
striking "Shall be fined not more than in accordance with this title"
and inserting "Shall be fined under this title".
SEC. 3551. CORRECTION TO SECTION 1716A.
Section 1716A(a) of title 18, United States Code, is amended by
striking "shall be under this title" and inserting "shall be fined
under this title or".
SEC. 3552. CORRECTION TO HEADING OF SECTION 1717.
(a) GENERALLY.—The heading of section 1717 of title 18, United
States Code, is amended by striking "; opening letters".
(b) CONFORMING AMENDMENT.—The item relating to section 1717
in the table of sections at the beginning of chapter 83 of title 18,
United States Code, is amended by striking "; opening letters".
SEC. 3553. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 84.
The table of sections at the beginning of chapter 84 of title 18,
United States Code, is amended by adding at the end the following:
"1752. Temporary residences and offices of the President and others.".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4927
SEC. 3554. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 91.
The table of sections at the beginning of chapter 91 of title 18,
United States Code, is amended by striking the item relating to
section 1862.
SEC. 3555. CORRECTION TO SECTION 1864.
Section 1864 of title 18, United States Code, is amended—
(1) by striking "and" at the end of subsection (d)(1)(D); and
(2) in subsection (d)(2)(E), by striking the period at the end and
inserting "; and".
SEC. 3556. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 93.
The table of sections at the beginning of chapter 93 of title 18,
United States Code, is amended—
(1) in the item relating to section 1906, by striking "by bank
examiner" and inserting "from a bank examination report";
and
(2) by striking the item relating to section 1914.
SEC. 3557. CORRECTIONS TO SECTION 1956.
Section 1956 of title 18, United States Code, is amended—
(1) in subsection (c)(7)(A), by striking "the Currency and Foreign Transactions Reporting Act" and inserting "subchapter II
of chapter 53 of title 31";
(2) in subsection (c)(7)(D)—
(A) by striking "or section 2113" and inserting "section
2113";
(B) by striking "theft) of this title," and inserting "theft),
or"; and
(C) by inserting "of this title" after "2319 (relating to
cop)n"ight infringement)";
(D) by striking "paraphenalia" and inserting "paraphernsdia"; and
(E) by striking the final period.
SEC. 3558. CORRECTION TO SECTION 1958.
Section 1958(b) of title 18, United States Code, is amended by
striking "1952B" and inserting "1959".
SEC. 3559. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 96.
The item relating to section 1962 in the table of sections at the
beginning of chapter 96 of title 18, United States Code, is amended
by striking "racketeering".
SEC. 3560. CORRECTION TO SECTION 196L
Section 1961(1) of title 18, United States Code, is amended—
(1) by striking "section 1029 (relative" and inserting "section
1029 (relating"; and
(2) by striking "sections 2251 through 2252 (relating to sexual
exploitation of children),".
SEC. 3561. CORRECTION TO SECTION 1963.
Section 1963(a) of title 18, United States Code, is amended by
striking "or both." and inserting "or both".
SEC. 3562. CORRECTION OF HEADING OF SECTION 2114.
The heading of section 2114 of title 18, United States Code, is
amended by inserting a comma after "money".
104 STAT. 4928
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 3563. PUNCTUATION CORRECTION TO SECTION 2251(a).
Section 2251(a) of title 18, United States Code, is amended by
striking "in,," and inserting "in,".
SEC. 3564. CORRECTIONS TO SECTION 2253.
Section 2253 of title 18, United States Code, is amended—
(1) in subsection (a), by striking "sections 2251" and inserting
- "section 2251"; and
(2) in subsection (h)(4), by striking "in accordance" and all
that follows through "United States Code" and inserting "under
section 616 of the Tariff Act of 1930".
SEC. 3565. CORRECTIONS TO SECTION 2254.
Section 2254 of title 18, United States Code, is amended—
(1) in subsection (a), by striking "sections 2251" each place it
appears and inserting "section 2251";
(2) in subsection (e), by inserting "INAPPLICABIUTY OF CERTAIN
SECTIONS.—" after "(e)"; and
(3) in subsection (f)—
(A) by striking "subchapter" and inserting "section"; and
(B) in paragraph (1), by striking "pursuant to section 1616
of title 19" and inserting "under section 616 of the Tariff
Act of 1930".
SEC. 3566. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 111.
The item relating to section 2271 in the table of sections at the
beginning of chapter 111 of title 18, United States Code, is amended
by striking "vessel" and inserting "vessels".
SEC. 3567. CORRECTION OF HEADING OF SECTION 2318.
The heading of section 2318 of title 18, United States Code, is
amended by striking the comma.
SEC. 3568. CROSS REFERENCE CORRECTIONS IN SECTION 2516.
Section 2516(j) of title 18, United States Code, is amended by
striking "any violation of section 1679a(cX2) (relating to destruction
of a natural gas pipeline) or subsection (i) or (n) of section 1472
(relating to aircraft piracy) of title 49, of the United States Code"
and inserting "any violation of section 11(c)(2) of the Natural Gas
Pipeline Safety Act of 1968 (relating to destruction of a natural gas
pipeline) or section 902(i) or (n) of the Federal Aviation Act of 1958
(relating to aircraft piracy)".
SEC. 3569. CORRECTIONS TO SECTION 3013.
Section 3013 of title 18, United States Code, is amended—
(1) in subsection (aXl)(B)(i), by striking "a infraction" and
inserting "an infraction"; and
(2) in subsection (a)(l)(B)(iii), by striking the period at the end
and inserting a semicolon.
SEC. 3570. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 203.
The table of sections at the beginning of chapter 203 of title 18,
United States Code, is amended by striking the item relating to
section 3054.
SEC. 3571. CORRECTION TO SECTION 3058.
Section 3058 of title 18, United States Code, is amended by striking "beligerent" and inserting "belligerent".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4929
SEC. 3572. CORRECTION TO SECTION 3077.
Section 3077 of title 18, United States Code, is amended—
(1) in paragraph (4), by striking the comma before the close
quotation mark and inserting a comma after that mark;
(2) in each of paragraphs (1), (2), (3), and (5), by striking the
period at the end and inserting a semicolon; and
(3) in paragraph (6), by striking the period at the end and
inserting "; and".
SEC. 3573. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 205.
The table of sections at the beginning of chapter 205 of title 18,
United States Code, is amended—
(1) by striking the item relating to section 3112; and
(2) by striking "3117" the last place it appears and inserting
"3118".
SEC. 3574. REDESIGNATION OF DUPLICATE SECTION 3117.
Section 3117 of title 18, United States Code, that relates to
implied consent for certain tests, is redesignated as section 3118.
SEC. 3575. CORRECTION TO SECTION 3124.
Section 3124(b) of title 18, United States Code, is amended by
striking "subsection 3123(b)" and inserting "section 3123(b)".
SEC. 3576. CLARIFYING REENACTMENT OF PORTION OF SECTION 3154.
Paragraph (1) of section 3154 of title 18, United States Code, is
amended by striking "community" and all that follows through the
end of such paragraph and inserting "community, and, where appropriate, include a recommendation as to whether such individual
should be released or detained and, if release is recommended,
recommend appropriate conditions of release.".
SEC. 3577. PUNCTUATION CORRECTION TO SECTION 3165.
Section 3165(eX2) of title 18, United States Code, is amended by
striking "twelve-calendar month" and inserting "twelve-calendarmonth .
SEC. 3578. SPELLING CORRECTION TO SECTION 3166.
Section 3166(b)(8) of title 18, United States Code, is amended by
striking "extention" and inserting "extension".
SEC. 3579. STYLE CORRECTION TO SECTION 3170.
Subsections (a) and (b) of section 3170 of title 18, United States
Code, are each amended by striking "(c)" and inserting "3166(c)" in
lieu thereof.
SEC. 3580. CORRECTION TO SECTION 3289.
Section 3289 of title 18, United States C!ode, is amended by inserting a comma after "information" the second place it appears.
SEC. 3581. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 224.
The item relating to section 3526 in the table of sections at the
beginning of chapter 224 of title 18, United States Code, is amended
by inserting "; reimbursement of expenses" after "governments".
SEC. 3582. CORRECTION TO SECTION 3521.
Section 3521 of title 18, United States Code, is amended—
^
'
104 STAT. 4930
PUBLIC LAW 101-647—NOV. 29, 1990 - ^
(1) in the final sentence of subsection Ok>Xl), by inserting "(G)"
after "subparagraph"; and
(2) in subsection (d)(3), by inserting "the" before "Civil Rights
Division".
SEC. 3583. CORRECTION TO SECTION 3562.
Section 3562(b)(2) of title 18, United States Code, is amended by
inserting "of the Federal Rules of Criminal Procedure" after "rule
35".
SEC. 3584. CORRECTION TO SECTION 3563.
Section 3563 of title 18, United States Code, is amended—
(1) in subsection (a), by striking "defendent" and inserting
"defendant"; and
(2) in subsection (b)(3)—
(A) by striking "pursuant to the provisions of section 3663
and 3664" and inserting "under sections 3663 and 3664";
and
(B) by inserting "section" before "3663(a)".
SEC. 3585. CORRECTION TO SECTION 3565.
Section 3565(a)(1) of title 18, United States Code, is amended by
striking "of modifying" and inserting "or modifjdng".
SEC. 3586. CORRECTION OF TABLE OF SECTIONS FOR SUBCHAPTER C OF
CHAPTER 227.
f
The table of sections at the beginning of subchapter C of chapter
227 of title 18, United States Code, is amended—
(1) in the item relating to section 3572, by inserting "and
related matters" after "fines"; and
(2) in the item relating to section 3573, by striking "revision"
and inserting "remission".
SEC. 3587. CORRECTION TO SECTION 3572.
Section 3572(c)(2) of title 18, United States Code, is amended by
inserting "of the Federal Rules of Criminal Procedure" after "rule
35".
SEC. 3588. CORRECTION TO SECTION 3582.
Section 3582(bX2) of title 18, United States Code, is amended by
inserting "of the Federal Rules of Criminal Procedure" after "rule
35".
SEC. 3589. CORRECTION TO SECTION 3583.
Section 3583 of title 18, United States Code, is amended—
(1) in subsection (d)(2), by inserting a comma after
"3553(a)(2)(B)";
(2) ip subsection (e)—
(A) by striking "or" at the end of paragraph (2);
(B) by striking the period at the end of paragraph (3) and
inserting "; or"; and
(C) by redesignating paragraph (5) as paragraph (4).
SEC. 3590. CORRECTION OF TABLE OF SECTIONS FOR SUBCHAPTER A OF
CHAPTER 229.
The item relating to section 3607 in the table of sections at the
beginning of subchapter A of chapter 229 of title 18, United States
Code, is amended by striking "possessor" and inserting "possessors".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4931
SEC. 3591. CORRECTION TO SECTION 3611.
Section 3611 of title 18, United States Code, is amended by striking "604(aX17)" and inserting "604(aX18)".
SEC. 3592. CORRECTION TO SECTION 3612.
Section 3612(a) of title 18, United States Code, is amended by
striking "604(aX17)" each place it appears and inserting "604(aX18)".
SEC. 3593. CORRECTION TO SECTION 3613.
Section 3613(c) is eimended by striking the period before the final
quotation mark end inserting a period sifter such mark.
SEC. 3594. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 232.
The item relating to section 3669 in the table of sections at the
beginning of chapter 232 of title 18, United States Code, is gmiended
by striking "Conveyance" and inserting "Conveyances".
SEC. 3595. CROSS REFERENCE UPDATE FOR SECTION 3663.
Section 3663(fK4) of title 18, United States Code, is amended by
striking "604(aX17)" and inserting "604(aX18)".
SEC. 3596. CROSS REFERENCE UPDATE FOR SECTION 3664.
Section 3664(a) of title 18, United States Code, is amended by
striking "3579" and inserting "3663".
SEC. 3597. CORRECTION TO TABLE OF CHAPTERS FOR PART III.
The table of chapters for part III of title 18, United States Code, is
amended—
(1) by inserting after the item relating to chapter 305 the
following:
• ,
"306. Transfer to or from foreign countries
4100";
and
(2) by inserting after the item relating to chapter 317 the
following:
"319. National Institute of Corrections
4351".
SEC. 3598. CROSS REFERENCE CORRECTION TO SECTION 4109.
Section 4109(a) of title 18, United States Code, is amended—
(1) by striking "the Criminal Justice Act (18 U.S.C. 3006A)"
and inserting "section 3006A of this title"; and
(2) by striking "the Criminal Justice Act (18 U.S.C. 3006(a))"
and inserting "section 3006A of this title".
SEC. 3599. CORRECTION TO SECTION 4013.
Section 4013 of title 18, United States Code, is amended by striking "(a)".
SEC. 3599A. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 307.
The item relating to section 4126 in the table of sections at the
beginning of chapter 307 of title 18, United States (Dode, is amended
by striking "fund" gmd inserting "Fund".
SEC. 3599B. CORRECTION TO HEADING OF SECTION 4106A.
The heading at the beginning of section 4106A of title 18, United
States Code, is amended by inserting " o f before "offenders" the
second place it appears.
104 STAT. 4932
PUBLIC LAW 101-647—NOV. 29, 1990
SEC. 3599C. CORRECTION TO SECTION 4106A.
Section 4106A(b)(lXC) of title 18, United States Code, is amended
by adding a period at the end.
SEC. 3599D. CORRECTION TO SECTION 4246.
Section 4246(g) of title 18, United States Code, is amended by
striking "subchapter" and inserting "chapter".
SEC. 3599E. CORRECTION TO SECTION 4285.
Section 4285 of title 18, United States Code, is amended by striking "exced" and inserting "exceed".
SEC. 3599F. CORRECTION TO SECTION 4352.
Section 4352(c) of title 18, United States Code, is amended by
striking "this shall" and inserting "this chapter shall".
SEC. 3599G. CORRECTION TO SECTION 5032.
The 4th paragraph of section 5032 of title 18, United States Code,
is amended by striking "offenses set forth in this subsection" and
inserting "offenses set forth in this paragraph".
SEC. 3599H. CORRECTION TO TABLE OF SECTIONS FOR CHAPTER 403.
The item relating to section 5042 in the table of sections at the
beginning of chapter 403 of title 18, United States Code, is amended
by striking "Probation" and inserting "probation".
SEC. 35991. DEFINITIONS FOR CONTROLLED SUBSTANCES ACT.
Section 102(32)(A) of the Controlled Substances Act (21 U.S.C
802(32)(A)) is amended by striking "stimulent" each place it appears
and inserting "stimulant".
SEC. 3599J. SECTION 1010 OF THE CONTROLLED SUBSTANCES IMPORT AND
EXPORT ACT.
Section 1010(b)(2) of the Controlled Substances Import and Export
Act (21 U.S.C. 960(b)(2)) is amended by striking "suspervised" each
place it appears and inserting "supervised".
SEC. 3599K. SECTION 401 OF THE CONTROLLED SUBSTANCES ACT.
Sections 401(b)(l)(A)(ii)(IV) and 401(b)(l)(B)(ii)(IV) of the Controlled
Substances Act (21 U.S.C. 841(b)(l)(A)(ii)(IV) and 841(b)(l)(B)(ii)(IV))
are each amended by striking "any of the substance" and inserting
"any of the substances".
SEC. 3599L. SECTIONS 405, 405A, and 405B OF THE CONTROLLED SUBSTANCES ACT.
Sections 405(b), 405A(b), and 405B(c) of the Controlled Substances
Act (which are redesignated by this Act) (21 U.S.C. 845(b), 845a03),
Ante, p. 4827. and 845b(c)) are each amended by striking "have become final" and
inserting "has become final".
SEC. 3599M. SECTION 510 OF THE CONTROLLED SUBSTANCES ACT.
Section 510(b)(3) of the Controlled Substances Act (21 U.S.C.
880(b)(3)) is amended by striking "paragraph (5)" and inserting
"paragraph (4)".
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4933
TITLE XXXVI—FEDERAL DEBT
^^o^""'
COLLECTION
5"?99o"''''^''
Courts.
SEC. 3601. This title may be cited as the "Federal Debt <:k)llection 28 USC l note.
Procedures Act of 1990".
Subtitle A—Debt Collection Procedures
SEC. 3611, Title 28 of the United States Code is amended by
inserting after chapter 175 the following:
"CHAPTER 176~FEDERAL DEBT COLLECTION
PROCEDURE
"Subchapter
"A. Definitions and general provisions
"B. Prejudgment remedies
"C. Postjudgments remedies
"D. Fraudulent transfers
3001
3101
3201
3301
"SUBCHAPTER A—DEFINITIONS AND GENERAL
PROVISIONS
"Sec.
"3001.
"3002.
"3003.
"3004.
"3005.
"3006.
"3007.
"3008.
"3009.
"3010.
"3011.
"3012.
"3013.
"3014.
"3015.
Applicability of chapter.
Definitions.
Rules of construction.
Service of process; enforcement; notice.
Application of chapter to judgments.
Affidavit requirements.
Perishable personal property.
Proceedings before United States magistrates.
United States marshals' authority to designate keeper.
Co-owned property.
Assessment of surcharge on a debt.
Joinder of additional defendant.
Modification or protective order; supervision of enforcement.
Exempt property.
Discovery as to debtor's financial condition.
"§ 3001. Applicability of chapter
"(a) IN GENERAL.—Except as provided in subsection (b), the chapter provides the exclusive civil procedures for the United States—
"(1) to recover a judgment on a debt; or
"(2) to obtain, before judgment on a claim for a debt, a remedy
in connection with such claim.
"(b) LIMITATION.—To the extent that another Federal law specifies
procedures for recovering on a claim or a judgment for a debt
arising under such law, those procedures shall apply to such claim
or judgment to the extent those procedures are inconsistent with
this chapter.
"(c) AMOUNTS OWING OTHER THAN DEBTS.—This chapter shall not
apply with respect to an amount owing that is not a debt or to a
claim for an amount owing that is not a debt.
"§ 3002. Definitions
"As used in this chapter:
"(1)'Counsel for the United States'means—
, r
104 STAT. 4934
PUBLIC LAW 101-647—NOV. 29, 1990
"(A) a United States attorney, an assistant United States
attorney designated to act on behalf of the United States
attorney, or an attorney with the United States Department of Justice or with a Federal agency who has litigation
authority; and
"(B) any private attorney authorized by contract made in
accordance with section 3718 of title 31 to conduct litigation
for collection of debts on behalf of the United States.
"(2) 'Court' means any court created by the Congress of the
United States, excluding the United States Tax Court.
"(3) 'Debt' means—
"(A) an amount that is owing to the United States on
account of a direct loan, or loan insured or guaranteed, by
the United States; or
"(B) an amount that is owing to the United States on
account of a fee, duty, lease, rent, service, sale of real or
personal property, overpa5mient, fine, assessment, penalty,
restitution, damages, interest, tax, bail bond forfeiture, reimbursement, recovery of a cost incurred by the United
States, or other source of indebtedness to the United States,
but that is not owing under the terms of a contract originally entered into by only persons other than the United
States;
and includes any amount owing to the United States for the
benefit of an Indian tribe or individual Indian, but excludes any
amount to which the United States is entitled under section
3011(a).
"(4) 'Debtor' means a person who is liable for a debt or against
whom there is a claim for a debt.
"(5) 'Disposable earnings' means that part of earnings remaining after all deductions required by law have been withheld.
'(6) 'Earnings' means compensation paid or payable for personal services, whether denominated £is wages, salary, commission, bonus, or otherwise, and includes periodic payments
pursuant to a pension or retirement program.
"(7) 'Garnishee' means a person (other than the debtor) who
has, or is reasonably thought to have, possession, custody, or
control of any property in which the debtor has a substantial
nonexempt interest, including any obligation due the debtor or
to become due the debtor, and against whom a garnishment
under section 3104 or 3205 is issued by a court.
"(8) 'Judgment' means a judgment, order, or decree entered in
favor of the United States in a court and arising from a civil or
criminal proceeding regarding a debt.
"(9) 'Nonexempt disposable earnings' means 25 percent of
disposable earnings, subject to section 303 of the Consumer
Credit Protection Act.
"(10) 'Person' includes a natural person (including an individual Indian), a corporation, a partnership, an unincorporated
association, a trust, or an estate, or any other public or private
entity, including a State or local government or an Indian tribe.
"(11) 'Prejudgment remedy' means the remedy of attachment,
receivership, garnishment, or sequestration authorized by this
chapter to be granted before judgment on the merits of a claim
for a debt.
"(12) 'Property' includes any present or future interest,
whether legal or equitable, in real, personal (including choses in
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4935
action), or mixed property, tangible or intangible, vested or
contingent, wherever located and however held (including
community property and property held in trust (including
spendthrift and pension trusts)), but excludes—
"(A) property held in trust by the United States for the
benefit of an Indian tribe or individual Indian; and
"(B) Indian lands subject to restrictions against alienation imposed by the United States.
"(13) 'Security agreement' means an agreement that creates
or provides for a lien.
"(14) 'State' means any of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas, or any territory or possession
of the United States.
"(15) 'United States' means—
"(A) a Federal corporation;
"(B) an agency, department, commission, board, or other
entity of the United States; or
"(C) an instrumentality of the United States.
"(16) 'United States marshal' means a United States marshal,
a deputy marshal, or an official of the United States Marshals
Service designated under section 564.
"§ 3003. Rules of construction
"(a) TERMS.—For purposes of this chapter—
"(1) the terms 'includes' and 'including' are not limiting;
"(2) the term 'or' is not exclusive; and
"(3) the singular includes the plural.
"(b) EFFECT ON RIGHTS OF THE UNITED STATES.—This chapter shall
not be construed to curtail or limit the right of the United States
under any other Federal law or any State law—
"(1) to collect taxes or to collect any other amount collectible
in the same manner as a tsix;
"(2) to collect any fine, penalty, assessment, restitution, or
forfeiture arising in a criminal case;
"(3) to appoint or seek the appointment of a receiver; or
"(4) to enforce a security agreement.
"(c) EFFECT ON OTHER LAWS.—This chapter shall not be construed
to supersede or modify the operation of—
"(1) title 11;
"(2) admiralty law;
"(3) section 3713 of title 31;
"(4) section 303 of the Consumer Credit Protection Act (15
U.S.C. 1673);
"(5) a statute of limitation applicable to a criminal
proceeding;
"(6) the common law or statutory rights to set-off or
recoupment;
"(7) any Federal law authorizing, or any inherent authority of
a court to provide, injunctive relief;
"(8) the authority of a court—
"(A) to impose a sanction under the Federal Rules of Civil
Procedure;
"(B) to appoint a receiver to effectuate its order; or
"(C) to exercise the power of contempt under any Federal
law;
39-194 O - 91 - 18 : QL 3 Part 6
104 STAT. 4936
PUBLIC LAW 101-647—NOV. 29, 1990
"(9) any law authorizing the United States to obtain partition,
or to recover possession, of property in which the United States
holds title; or
"(10) any provision of any other chapter of this title, except to
the extent such provision is inconsistent with this chapter.
"(d) PREEMPTION.—This chapter shall preempt State law to the
extent such law is inconsistent with a provision of this chapter.
"(e) EFFECT ON RIGHTS OF THE UNITED STATES UNDER FOREIGN AND
INTERNATIONAL LAW.—This chapter shall not be construed to curtail
or limit the rights of the United States under foreign law, under a
treaty or an international agreement, or otherwise under international law.
"(f)
APPLICABIUTY OF FEDERAL RULES OF CIVIL PROCEDURE.—
Except as provided otherwise in this chapter, the Federal Rules of
Civil Procedure shall apply with respect to actions and proceedings
under this chapter.
"§ 3004. Service of process; enforcement; notice
"(a) MANNER OF SERVICE.—A complaint, notice, writ, or other
process required to be served in an action or proceeding under this
chapter shall be served in accordance with the Federal Rules of Civil
Procedure unless otherwise provided in this chapter.
"(b) NATIONWIDE ENFORCEMENT.—(1) Except as provided in paragraph (2)—
"(A) any writ, order, judgment, or other process, including a
summons and complaint, filed under this chapter may be served
in any State; and
"(B) such writ, order, or judgment may be enforced by the
court issuing the writ, order, or process, regardless of where the
person is served with the writ, order, or process.
"(2) If the debtor so requests, within 20 days after receiving the
notice described in section 3101(d) or 3202(b), the action or proceeding in which the writ, order, or judgment was issued shall be
transferred to the district court for the district in which the debtor
resides.
"(c) NOTICE AND OTHER PROCESS.—At such time as counsel for the
United States considers appropriate, but not later than the time a
prejudgment or postjudgment remedy is put into effect under this
chapter, counsel for the United States shall exercise reasonable
diligence to serve on the debtor and any person who the United
States believes, after exercising due diligence, has possession, custody, or control of the property, a copy of the application for such
remedy, the order granting such remedy, and the notice required by
section 3101(d) or 3202(b).
"§ 3005. Application of chapter to judgments
"This chapter shall not apply with respect to a judgment on a debt
if such judgment is entered more than 10 years before the effective
date of this chapter.
"§ 3006. Affidavit requirements
"Any affidavit required of the United States by this chapter may
be made on information and belief, if reliable and reasonably necessary, establishing with particularity, to the court's satisfaction,
facts supporting the claim of the United States.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4937
"§ 3007. Perishable personal property
"(a) AUTHORITY TO SELL.—If at any time during any action or
proceeding under this chapter the court determines on its own
initiative or upon motion of any party, that any seized or detained
personal property is likely to perish, waste, or be destroyed, or
otherwise substantially depreciate in value during the pendency of
the proceeding, the court shall order a commercially reasonable sale
of such property.
"(b) DEPOSIT OF SALE PROCEEDS.—Within 5 days after such sale,
the proceeds shall be deposited with the clerk of the court, accompanied by a statement in writing and signed by the United States
marshal, to be filed in the action or proceeding, stating the time and
place of sale, the name of the purchaser, the amount received, and
an itemized account of expenses.
"(c) PRESUMPTION.—For purposes of liability on the part of the
United States, there shall be a presumption that the price paid at a
sale under subsection (a) is the fair market value of the property or
portion.
"§ 3008. Proceedings before United States magistrates
"A district court of the United States may assign its duties in
proceedings under this chapter to a United States magistrate to the
extent not inconsistent with the Constitution and laws of the United
States.
"§ 3009. United States marshals' authority to designate keeper
"Whenever a United States marshal is authorized to seize property pursuant to this chapter, the United States marshal may
designate another person or Federal agency to hold for safekeeping
such property seized.
"§ 3010. Co-owned property
"(a) LIMITATION.—The remedies available to the United States
under this chapter may be enforced against property which is coowned by a debtor and any other person only to the extent allowed
by the law of the State where the property is located. This section
shall not be construed to limit any right or interest of a debtor or coowner in a retirement system for Federal military or civilian
personnel established by the United States or any agency thereof or
in a qualified retirement arrangement.
"(b) DEFINITIONS.—For purposes of subsection (a)—
"(1) the term 'retirement system for Federal military or
civilian personnel' means a pension or annuity system for
Federal military or civilian personnel of more than one agency,
or for some or all of such personnel of a single agency, established by statute or by regulation pursuant to statutory authority; and
"(2) the term 'qualified retirement arrangement' means a
plan qualified under section 401(a), 403(a), or 409 of the Internal
Revenue Code of 1986 or a plan that is subject to the requirements of section 205 of the Employee Retirement Income Security Act of 1974.
"§ 3011. Assessment of surcharge on a debt
"(a) SURCHARGE AUTHORIZED.—In an action or proceeding under
subchapter B or C, and subject to subsection (b), the United States is
104 STAT. 4938
PUBLIC LAW 101-647—NOV. 29, 1990
entitled to recover a surcharge of 10 percent of the amount of the
debt in connection with the recovery of the debt, to cover the cost of
processing and handling the litigation and enforcement under this
chapter of the claim for such debt.
"(b) LIMITATION.—Subsection (a) shall not apply if—
"(1) the United States receives an attorney's fee in connection
with the enforcement of the claim; or
"(2) the law pursuant to which the action on the claim is
based provides any other amount to cover such costs.
"§ 3012. Joinder of additional defendant
"The United States or the debtor may join as an additional
defendant in an action or proceeding under this chapter any person
reasonably believed to owe money (including money owed on account of a requirement to provide goods or services pursuant to a
loan or loan guarantee extended under Federal law) to the debtor
arising out of the transaction or occurrence giving rise to a debt.
"§ 3013. Modincation or protective order; supervision of enforcement
"The court may at any time on its own initiative or the motion of
any interested person, and after such notice as it may require, make
an order denying, limiting, conditioning, regulating, extending, or
modifying the use of any enforcement procedure under this chapter.
"§ 3014. Exempt property
"(a) ELECTION TO EXEMPT PROPERTY.—An individual debtor may,
in an action or proceeding under this chapter, elect to exempt
property listed in either paragraph (1) or, in the alternative, paragraph (2). If such action or proceeding is against debtors who are
husband and wife, one debtor may not elect to exempt property
listed in paragraph (1) and the other debtor elect to exempt property
listed in paragraph (2). If the debtors cannot agree on the alternative to be elected, they shall be deemed to elect paragraph (1).
Such property is either—
"(1) property that is specified in section 522(d) of title 11, as
amended from time to time; or
"(2XA) any property that is exempt under Federal law, other
than paragraph (1), or State or local law that is applicable on
the date of the filing of the application for a remedy under this
chapter at the place in which the debtor's domicile has been
located for the 180 days immediately preceding the date of the
filing of such application, or for a longer portion of such 180-day
period than in any other place; and
"(B) any interest in property in which the debtor had, immediately before the filing of such application, an interest as a
tenant by the entirety or joint tenant, or an interest in a
community estate, to the extent that such interest is exempt
from process under applicable nonbankruptcy law.
"(b) EFFECT ON ASSERTION AND MANNER OF DETERMINATION.—
"(1) STATEMENT.—A court may order the debtor to file a
statement with regard to any claimed exemption. A copy of such
statement shall be served on counsel for the United States. Such
statement shall be under oath and shall describe each item of
property for which exemption is claimed, the value and the
basis for such valuation, and the nature of the debtor's ownership interest.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4939
"(2) HEARING.—The United States or the debtor, by application to the court in which an action or proceeding under this
chapter is pending, may request a hearing on the applicability
of any exemption claimed by the debtor. The court shall determine the extent (if any) to which the exemption applies. Unless
it is reasonably evident that the exemption applies, the debtor
shall bear the burden of persuasion.
"(3) STAY OF DISPOSITION.—Assertion of an exemption shall
prevent the United States from selling or otherwise disposing of
the property for which such exemption is claimed until the
court determines whether the debtor has a substantial
nonexempt interest in such property. The United States may
not take possession of, dispose of, sell, or otherwise interfere
with the debtor's normal use and enjoyment of an interest in
property the United States knows or has reason to know is
exempt.
"(c) DEBTORS IN JOINT CASES.—Subject to the limitation in subsection (a), this section shall apply separately with respect to each
debtor in a joint case.
"§ 3015. Discovery as to debtor's flnancial condition
"(a) I N GENERAL.—Except as provided in subsection (b), in an
action or proceeding under subchapter B or C, the United States
may have discovery regarding the financial condition of the debtor
in the manner in which discovery is authorized by the Federal Rules
of Civil Procedure in an action on a claim for a debt.
"(b) LIMITATION.—Subsection (a) shall not apply with respect to an
action or proceeding under subchapter B unless there is a reasonable likelihood that the debt involved exceeds $50,000.
"SUBCHAPTER B—PREJUDGMENT REMEDIES
"Sec.
"3101.
"3102.
"3103.
"3104.
"3105.
Prejudgment remedies.
Attachment.
Receivership.
Garnishment.
Sequestration.
-,. .,.
"§ 3101. Prejudgment remedies
"(a) APPUCATION.—(1) The United States may, in a proceeding in
conjunction with the complaint or at any time after the filing of a
civil action on a claim for a debt, make application under oath to a
court to issue any prejudgment remedy.
"(2) Such application shall be filed with the court and shall set
forth the factual and legal basis for each prejudgment remedy
sought.
"(3) Such application shall—
"(A) state that the debtor against whom the prejudgment
remedy is sought shall be afforded an opportunity for a hearing;
and
"(B) set forth with particularity that all statutory requirements under this chapter for the issuance of the prejudgment
remedy sought have been satisfied.
"(b) GROUNDS.—Subject to section 3102, 3103, 3104, or 3105, a
prejudgment remedy may be granted by any court if the United
States shows reasonable cause to believe that—
"(1) the debtor—
104 STAT. 4940
PUBLIC LAW 101-647—NOV. 29, 1990
"(A) is about to leave the jurisdiction of the United States
with the effect of hindering, delaying, or defrauding the
United States in its effort to recover a debt;
"(B) has or is about to assign, dispose, remove, conceal, ill
treat, waste, or destroy property with the effect of hindering, delaying, or defrauding the United States;
"(C) has or is about to convert the debtor's property into
money, securities, or evidence of debt in a manner prejudicial to the United States with the effect of hindering,
dela5dng, or defrauding the United States; or
"(D) has evaded service of process by concealing himself
or has temporarily withdrawn from the jurisdiction of the
United States with the effect of hindering, delaying, or
defrauding the United States; or
"(2) a prejudgment remedy is required to obtain jurisdiction
within the United States and the prejudgment remedy sought
will result in obtaining such jurisdiction.
"(c) AFFIDAVIT.—(1) The application under subsection (a) shall
include an affidavit establishing with particularity to the court's
satisfaction facts supporting the probable validity of the claim for a
debt and the right of the United States to recover what is demanded
in the application.
"(2) The affidavit shall state—
"(A) specifically the amount of the debt claimed by the United
States and any interest or costs attributable to such debt;
"(B) one or more of the grounds specified in subsection (b); and
"(C) the requirements of section 3102(b), 3103(a), 3104(a), or
3105(b), as the case may be.
"(3) No bond is required of the United States.
"(d) NOTICE AND HEARING.—(1) On filing an application by the
United States as provided in this section, the counsel for the United
States shall prepare, and the clerk shall issue, a notice for service on
the debtor against whom the prejudgment remedy is sought and on
any other person whom the United States reasonably believes, after
exercising due diligence, has possession, custody, or control of property affected by such remedy. Three copies of the notice shall be
served on each such person. The form and content of such notice
shall be approved jointly by a majority of the chief judges of the
Federal districts in the State in which the court is located and shall
be in substantially the following form:
" 'NOTICE
" 'You are hereby notified that this [property] is being taken by
the United States Government ("the Government"), which says that
[name of debtor] owes it a debt of $ [amount] for [reason for debt]
and has filed a lawsuit to collect this debt. The Government says it
must take this property at this time because [recite the pertinent
ground or grounds from section 3101(b)]. The Government wants to
make sure [name of debtor] will pay if the court determines that this
money is owed.
" 'In addition, you are hereby notified that there are exemptions
under the law which may protect some of this property from being
taken by the Government if [name of debtor] can show that the
exemptions apply. Below is a summary of the major exemptions
which apply in most situations in the State of [State where property
is located]:
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4941
"'[A statement summarizing in plain and understandable English the election available with respect to such
State under section 3014 and the types of property that may
be exempted under each of the alternatives specified in
paragraphs (1) and (2) of section 3014(a), and a statement
that different property may be so exempted with respect to
the State in which the debtor resides.]
" I f you are [name of debtor] and you disagree with the reason the
Government gives for taking your property now, or if you think you
do not owe the money to the Government that it says you do, or if
you think the property the Government is taking qualifies under
one of the above exemptions, you have a right to ask the court to
return your property to you.
" 'If you want a hearing, you must promptly notify the court. You
must make your request in writing, and either mail it or deliver it in
person to the clerk of the court at [address]. If you wish, you may use
this notice to request the hearing by checking the box below and
mailing this notice to the court clerk. You must also send a copy of
your request to the Government at [address], so the Government will
know you want a hearing. The hearing will take place within 5 days
after the clerk receives your request, if you ask for it to take place
that quickly, or as soon after that as possible.
" 'At the hearing you may explain to the judge why you think you
do not owe the money to the Government, why you disagree with the
reason the Government says it must take your property at this time,
or why you believe the property the Government has taken is
exempt or belongs to someone else. You may make any or all of
these explanations as you see fit.
" 'If you think you live outside the Federal judicial district in
which the court is located, you may request, not later than 20 days
after you receive this notice, that this proceeding to take your
property be transferred by the court to the Federal judicial district
in which you reside. You must make your request in writing, and
either mail it or deliver it in person to the clerk of the court at
[address]. You must also send a copy of your request to the Government at [address], so the Government will know you want the
proceeding to be transferred.
" 'Be sure to keep a copy of this notice for your own records. If you
have any questions about your rights or about this procedure, you
should contact a lawyer, an office of public legal assistance, or the
clerk of the court. The clerk is not permitted to give legal advice, but
can refer you to other sources of information.'.
"(2) By requesting, at any time before judgment on the claim for a
debt, the court to hold a hearing, the debtor may move to quash the
order granting such remedy. The court shall hold a hearing on such
motion as soon as practicable, or, if requested by the debtor, within 5
days after receiving the request for a hearing or as soon thereafter
as possible. The issues at such hearing shall be limited to—
"(A) the probable validity of the claim for the debt for which
such remedy was granted and of any defense or claim of exemption asserted by such person;
"(B) compliance with any statutory requirement for the issuance of the prejudgment remedy granted;
"(C) the existence of any ground set forth in subsection (b);
- and
"(D) the inadequacy of alternative remedies (if any) to protect
the interests of the United States.
104 STAT. 4942
PUBLIC LAW 101-647—NOV. 29, 1990
"(e) ISSUANCE OF WRIT.—On the court's determination that the
requirements of subsections (a), (b), and (c) have been met, the court
shall issue all process sufficient to put into effect the prejudgment
remedy sought.
"§ 3102. Attachment
"(a) PROPERTY SUBJECT TO ATTACHMENT.—(1) Any property in
the
possession, custody, or control of the debtor and in which the debtor
has a substantial nonexempt interest, except earnings, may be
attached pursuant to a writ of attachment in an action or proceeding against a debtor on a claim for a debt and may be held as
security to satisfy such judgment, and interest and costs, as the
United States may recover on such claim.
"(2) The value of property attached shall not exceed the amount
by which the sum of the amount of the debt claimed by the United
States and the amount of interest and costs reasonably likely to be
assessed against the debtor by the court exceeds the aggregate value
of the nonexempt interest of the debtor in any—
"(A) property securing the debt; and
"(B) property garnished or in receivership, or income sequestered, under this subchapter.
"(b) AvAiLABiuTY OF ATTACHMENT.—If the requirements of section
3101 are satisfied, a court shall issue a writ authorizing the United
States to attach property in which the debtor has a substantial
nonexempt interest, as security for such judgment (and interest and
costs) as the United States may recover on a claim for a debt—
"(1) in an action on a contract, express or implied, against the
debtor for payment of money, only if the United States shows
reasonable cause to believe that—
"(A) the contract is not fully secured by real or personal
property; or
"(B) the value of the original security is substantially
diminished, without any act of the United States or the
person to whom the security was given, below the amount
of the debt;
"(2) in an action against the debtor for damages in tort;
"(3) if the debtor resides outside the jurisdiction of the United
States; or
"(4) in an action to recover a fine, penalty, or tax.
"(c) ISSUANCE OF WRIT; CONTENTS.—(1) Subject to subsections (a)
and Ob), a writ of attachment shall be issued by the court directing
the United States marshal of the district where property described
in subsection (a) is located to attach the property.
"(2) Several writs of attachment may be issued at the same time,
or in succession, and sent to different judicial districts until sufficient property is attached.
"(3) The writ of attachment shall contain—
"(A) the date of the issuance of the writ;
"(B) the identity of the court, the docket number of the action,
and the identity of the cause of action;
"(C) the name and last known address of the debtor;
"(D) the amount to be secured by the attachment; and
"(E) a reasonable description of the property to be attached.
"(d) LEVY OF ATTACHMENT.—(1) The United States marshal receiving the writ shall proceed without delay to levy upon the property
specified for attachment if found within the district. The marshal
may not sell property unless ordered by the court.
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4943
"(2) In performing the levy, the United States marshal may enter
any property owned, occupied, or controlled by the debtor, except
that the marshal may not enter a residence or other building unless
the writ expressly authorizes the marshal to do so or upon specific
order of the court.
"(3) Levy on real property is made by entering the property and
posting the writ and notice of levy in a conspicuous place upon the
property.
"(4) Levy on personal property is made by taking possession of it.
Levy on personal property not easily taken into possession or which
cannot be taken into possession without great inconvenience or
expense may be made by affixing a copy of the writ and notice of
levy on it or in a conspicuous place in the vicinity of it describing in
the notice of levy the property by quantity and with sufficient detail
to identify the property levied on.
"(5) The United States marshal shall file a copy of the notice of
levy in the same manner as provided for judgments in section
3201(aXl). The United States marshal shall serve a copy of the writ
and notice of levy on—
"(A) the debtor against whom the writ is issued; and
"(B) the person who has possession of the property subject to
the writ;
in the same manner that a summons is served in a civil action and
make the return thereof.
"(e) RETURN OF WRIT; DUTIES OF MARSHAL; FURTHER RETURN.—(1)
A United States marshal executing a writ of attachment shall
return the writ with the marshal's action endorsed thereon or
attached thereto and signed by the marshal, to the court from which
it was issued, within 5 days after the date of the levy.
"(2) The return shall describe the property attached with sufficient certainty to identify it and shall state the location where it was
attached, the date and time it was attached, and the disposition
made of the property. If no property was attached, the return shall
so state.
"(3) If the property levied on is claimed, replevied under subsection (j)(2), or sold under section 3007 after the return, the United
States marshal shall immediately make a further return to the
clerk of the court showing the disposition of the property.
"(4) If personal property is replevied, the United States marshal
shall deliver the replevin bond to the clerk of the court to be filed in
the action.
"(f) LEVY OF ATTACHMENT AS LIEN ON PROPERTY; SATISFACTION OF
LIEN.—(1) A levy on property under a writ of attachment under this
section creates a lien in favor of the United States on the property
or, in the case of pershable property sold under section 3007, on' the
proceeds of the sale.
"(2) Such lien shall be ranked ahead of any other security interests perfected after the later of the time of levy and the time a
copy of the notice of levy is filed under subsection (d)(5).
"(3) Such lien shall arise from the time of levy and shall continue
until a judgment in the action is obtained or denied, or the action is
otherwise dismissed. The death of the debtor whose property is
attached does not terminate the attachment lien. Upon issuance of a
judgment in the action and registration under this chapter, the
judgment lien so created relates back to the time of levy.
"(g) REDUCTION OR DISSOLUTION OF ATTACHMENT.—(1) If an excessive or unreasonable attachment is made, the debtor may submit a
104 STAT. 4944
PUBLIC LAW 101-647—NOV. 29, 1990
motion to the court for a reduction of the amount of the attachment
or its dissolution. Notice of such motion shall be served on the
United States.
"(2) The court shall order a part of the property to be released, if
after a hearing the court finds that the amount of the attachment is
excessive or unreasonable or if the attachment is for an amount
larger than the sum of the liquidated or ascertainable amount of the
debt and the amount of interest and costs likely to be taxed.
"(3) The court shall dissolve the attachment if the amount of the
debt is unliquidated and unascertainable by calculation.
"(4) If any property claimed to be exempt is levied on, the debtor
may, at any time after such levy, request that the court vacate such
levy. If it appears to the court that the property so levied upon is
exempt, the court shall order the levy vacated and the property
returned to the debtor.
"(h) REPLEVIN OF ATTACHED PROPERTY BY DEBTOR; BOND.—If at-
tached property is not sold before judgment, the debtor may replevy
such property or any part thereof by giving a bond approved by
counsel for the United States or the court and payable to the United
States in double the reasonable value of the property to be replevied
or double the value of the claim, whichever is less.
"(i) PRESERVATION OF PERSONAL PROPERTY UNDER ATTACHMENT.—
If personal property in custody of the United States marshal under a
writ of attachment is not replevied, claimed, or sold, the court may
make such order for its preservation or use as appears to be in the
interest of the parties,
"(j) JUDGMENT AND DISPOSITION OF ATTACHED PROPERTY.—
"(1) JUDGMENT FOR THE UNITED STATES.—On entry
of judgment for the United States, the court shall order the proceeds of
personal property sold pursuant to section 3007 to be applied to
the satisfaction of the judgment, and shall order the sale of any
remaining personal property and any real property levied on to
the extent necessary to satisfy the judgment.
"(2) JUDGMENT FOR THE UNITED STATES WHEN PERSONAL PROP-
ERTY REPLEVIED.—With respect to personal property under
attachment that is replevied, the judgment which may be entered shall be eigainst the debtor against whom the writ of
attachment is issued and also against the sureties on the
debtor's replevin bond for the value of the property.
"(3) RESTORATION OF PROPERTY AND EXONERATION OF REPLEVIN
BOND.—If the attachment is vacated or if the judgment on the
claim for the debt is for the person against whom the writ
attachment is issued, the court shall order the property, or
proceeds of perishable property sold under section 3007, restored to the debtor and shall exonerate any replevin bond.
"§ 3103. Receivership
"(a) APPOINTMENT OF A RECEIVER.—If the requirements of section
3101 are satisfied, a court may appoint a receiver for property in
which the debtor has a substantial nonexempt interest if the United
States shows reasonable cause to believe that there is a substantial
danger that the property will be removed from the jurisdiction of
the court, lost, concealed, materially injured or damaged, or
mismanaged.
"0>) POWERS OF RECEIVER.—(1) The appointing court may authorize a receiver—
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4945
"(A) to take possession of real and personal property and sue
for, collect, and sell obligations upon such conditions and for
such purposes as the court shall direct; and
"(B) to administer, collect, improve, lease, repair or sell pursuant to section 3007 such real and personal property as the court
shall direct.
A receiver appointed to manage residential or commercial property
shall have demonstrable expertise in the management of these types
of property.
"(2) Unless expressly authorized by order of the court, a receiver
shall have no power to employ attorneys, accountants, appraisers,
auctioneers, or other professional persons.
"(c) DURATION OF RECEIVERSHIP.—A receivership shall not continue past the entry of judgment, or the conclusion of an appeal of
such judgment, unless the court orders it continued under section
3203(e) or unless the court otherwise directs its continuation.
"(d) ACCOUNTS; REQUIREMENT TO REPORT.—A receiver shall keep Records,
written accounts itemizing receipts and expenditures, describing the
property and naming the depository of receivership funds. The
receiver's accounts shall be open to inspection by any person having
an apparent interest in the property. The receiver shall file reports
at regular intervals as directed by the court and shall serve the
debtor and the United States with a copy thereof.
"(e) MODIFICATION OF POWERS; REMOVAL.—On motion of the receiver or on its own initiative, the court which appointed the
receiver may remove the receiver or modify the receiver's powers at
any time.
"(f) PRIORITY.—If more than one court appoints a receiver for
particular property, the receiver first qualifying under law shall be
entitled to take possession, control, or custody of the property.
"(g) COMPENSATION OF RECEIVERS.—(1) A receiver is entitled to
such commissions, not exceeding 5 percent of the sums received and
disbursed by him, as the court allows unless the court otherwise
directs.
"(2) If, at the termination of a receivership, there are no funds in
the hands of a receiver, the court may fix the compensation of the
receiver in accordance with the services rendered and may direct
the party who moved for the appointment of the receiver to pay such
compensation in addition to the necessary expenditures incurred by
the receiver which remain unpaid.
"(3) At the termination of a receivership, the receiver shall file a
final accounting of the receipts and disbursements and apply for
compensation setting forth the amount sought and the services
rendered by the receiver.
"§ 3104. Garnishment
"(a) IN GENERAL.—If the requirements of section 3101 are satisfied, a court may issue a writ of garnishment against property
(excluding earnings) in which the debtor has a substantial
nonexempt interest and which is in the possession, custody, or
control of a person other than the debtor in order to satisfy a claim
for a debt. Co-owned property shall be subject to garnishment to the
same extent £is co-owned property is subject to garnishment under
the law of the State in which such property is located. A court may
issue simultaneous separate writs of garnishment to several
garnishees. A writ of garnishment issued under this subsection shall
104 STAT. 4946
PUBLIC LAW 101-647—NOV. 29, 1990
be continuing and shall terminate only as provided in section
3205(c)(10).
"(b) WRIT.—(1) Subsections (b)(2) and (c) of section 3205 shall apply
with respect to garnishment under this section, except that for
purposes of this section—
"(A) earnings of the debtor shall not be subject to garnishment; and
"(B) a reference in such subsections to a judgment debtor
shall be deemed to be a reference to a debtor.
"(2) The United States shall include in its application for a writ of
garnishment—
"(A) the amount of the claim asserted by the United States for
a debt; and
"(B) the date the writ is issued.
"(c) LIMITATION.—The value of property garnished shall not
exceed the amount by which the sum of the amount of the debt
claimed by the United States and the amount of interest and costs
reasonably likely to be assessed against the debtor by the court
exceeds the aggregate value of the nonexempt interest of the debtor
in any—
"(1) property securing the debt; and
"(2) property attached or in receivership, or income sequestered, under this subchapter.
"§ 3105. Sequestration
"(a) PROPERTY SUBJECT TO SEQUESTRATION.—(1) Any income from
property in which the debtor has a substantial nonexempt interest
may be sequestered pursuant to a writ of sequestration in an action
or proceeding against a debtor on a claim for a debt and may be held
as security to satisfy such judgment, and interest and costs, as the
United States may recover on such claim.
"(2) The amount of income sequestered shall not exceed the
amount by which the sum of the amount of the debt claimed by the
United States and the amount of interest and costs reasonably likely
to be assessed against the debtor by the court exceeds the aggregate
value of the nonexempt interest of the debtor in any—
"(A) property securing the debt; and
"(B) property attached, garnished, or in receivership under
this subchapter.
"(b) AVAILABILITY OF SEQUESTRATION.—If the requirements of section 3101 are satisfied, a court shall issue a writ authorizing the
United States to sequester income from property in which the
debtor has a substantial nonexempt interest, £is security for such
judgment (and interest and costs) as the United States may recover
on a claim for a debt—
"(1) in an action on a contract, express or implied, against the
debtor for pasmient of money, only if the United States shows
reasonable cause to believe that—
"(A) the contract is not fully secured by real or personal
property; or
"(B) the value of the original security is substantially
diminished, without any act of the United States or the
person to whom the security was given, below the amount
of the debt;
"(2) in an action against the debtor for damages in tort;
"(3) if the debtor resides outside the jurisdiction of the United
States; or
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4947
"(4) in an action to recover a fine, penalty, or tax.
"(c) ISSUANCE OF WRIT; CONTENTS.—(1) Subject to subsections (a)
and Ot)), a writ of sequestration shall be issued by the court directing
the United States marshal of the district where income described in
subsection (a) is located to sequester the income.
"(2) Several writs of sequestration may be issued at the same time,
or in succession, and sent to different judicial districts until sufficient income is sequestered.
"(3) The writ of sequestration shall contain—
"(A) the date of the issuance of the writ;
"(B) the identity of the court, the docket number of the action,
and the identity of the cause of action;
"(C) the name and last known address of the debtor;
"(D) the amount to be secured by the sequestration; and
"(E) a reasonable description of the income to be sequestered.
"(d) EXECUTION OF WRIT.—(1) The United States marshal receiving
the writ shall proceed without delay to execute the writ.
"(2) The United States marshal shall file a copy of the notice of
sequestration in the same manner as provided for judgments in
section 3201(a)(1). The United States marshal shall serve a copy of
the writ and notice of sequestration on—
"(A) the debtor against whom the writ is issued; and
"(B) the person who has possession of the income subject to
the writ;
in the same manner that a summons is served in a civil action and
make the return thereof.
"(e) DEPOSIT OF SEQUESTERED INCOME.—A person who has possession of the income subject to a writ of sequestration shall deposit
such income with the clerk of the court, accompanied by a statement
in writing stating the person's name, the name of the debtor, the
amount of such income, the property from which such income is
produced, and the period during which such income is produced.
"(f) RETURN OF WRIT; DUTIES OF MARSHAL; FURTHER RETURN.—(1)
A United States marshal executing a writ of sequestration shall
return the writ with the marshal's action endorsed thereon or
attached thereto and signed by the marshal, to the court from which
it was issued, within 5 days after the date of the execution.
"(2) The return shall describe the income sequestered with sufficient certainty to identify it and shall state the location where it was
sequestered, and the date and time it was sequestered. If no income
was sequestered, the return shall so state.
"(3) If sequestered income is claimed after the return, the United
States marshal shall immediately make a further return to the
clerk of the court showing the disposition of the income.
"(g)
REDUCTION OR DISSOLUTION OF SEQUESTRATION.—(1) If
an
excessive or unreasonable sequestration is made, the debtor may
submit a motion to the court for a reduction of the amount of the
sequestration or its dissolution. Notice of such motion shall be
served on the United States.
"(2) The court shall order a part of the income to be released, if
after a hearing the court finds that the amount of the sequestration
is excessive or unreasonable or if the sequestration is for an amount
larger than the sum of the liquidated or ascertainable amount of the
debt and the amount of interest and costs likely to be taxed.
"(3) The court shedl dissolve the sequestration if the amount of the
debt is unliquidated and unascertainable by calculation.
104 STAT. 4948
P U B U C LAW 101-647—NOV. 29, 1990
"(h)
PRESERVATION OF INCOME UNDER SEQUESTER.—If personal
property in custody of the United States marshal under a writ of
sequestration is not claimed, the court may make such order for its
preservation or use as appears to be in the interest of the parties.
"(i) JUDGMENT AND DISPOSITION OF SEQUESTERED INCOME.—
"(1) JUDGMENT FOR THE UNITED STATES.—On entry of
judgment for the United States, the court shall order the sequestered income to be applied to the satisfaction of the judgment.
"(2) RESTORATION OF INCOME.—If the sequestration is vacated
or if the judgment on the claim for the debt is for the person
against whom the writ of sequestration is issued, the court shall
order the income restored to the debtor.
"SUBCHAPTER C—POSTJUDGMENT REMEDIES
"Sec.
"3201.
"3202.
"3203.
"3204.
"3205.
"3206.
Judgment liens.
Enforcement of judgments.
Execution.
Installment payment order. ^
Garnishment.
Discharge.
"§ 3201. Judgment liens
"(a) CREATION.—A judgment in a civil action shall create a lien on
all real property of a judgment debtor on filing a certified copy of
the abstract of the judgment in the manner in which a notice of tax
lien would be filed under paragraphs (1) and (2) of section 6323(f) of
the Internal Revenue Code of 1986. A lien created under this
paragraph is for the amount necessary to satisfy the judgment,
including costs and interest.
"(b) PRIORITY OF LIEN.—A lien created under subsection (a) shall
have priority over any other lien or encumbrance which is perfected
later in time.
"(c) DURATION OF LIEN; RENEWAL.—(1) Except as provided in
paragraph (2), a lien created under subsection (a) is effective, unless
satisfied, for a period of 20 years.
"(2) Such lien may be renewed for one additional period of 20
years upon filing a notice of renewal in the same manner as the
judgment is filed and shall relate back to the date the judgment is
filed if—
"(A) the notice of renewal is filed before the expiration of the
20-year period to prevent the expiration of the lien; and
(B) the court approves the renewal of such lien under this
paragraph.
"(d) RELEASE OF JUDGMENT LIEN.—A judgment lien shall be released on the filing of a satisfaction of judgment or release of lien in
the same manner as the judgment is filed to obtain the lien.
"(e) EFFECT OF LIEN ON ELIGIBIUTY FOR FEDERAL GRANTS, LOANS
OR PROGRAMS.—A debtor who has a judgment lien against the
debtor's property for a debt to the United States shall not be eligible
to receive any grant or loan which is made, insured, guaranteed, or
financed directly or indirectly by the United States or to receive
funds directly from the Federal Government in any program, except
funds to which the debtor is entitled as beneficiary, until the
judgment is paid in full or otherwise satisfied. The agency of the
United States that is responsible for such grants and loans may
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4949
promulgate regulations to allow for waiver of this restriction on
eligibility for such grants, loans, and funds.
"(f) SALE OF PROPERTY SUBJECT TO JUDGMENT LIEN.—(1) On proper
application to a court, the court may order the United States to sell,
in accordance with sections 2001 and 2002, any real property subject
to a judgment lien in effect under this section.
"(2) This subsection shall not preclude the United States from
using an execution sale pursuant to section 3203(g) to sell real
property subject to a judgment lien.
"§ 3202. Enforcement of judgments
"(a) ENFORCEMENT REMEDIES.—A judgment may be enforced by
any of the remedies set forth in this subchapter. A court may issue
other writs pursuant to section 1651 of title 28, United States Code,
as necessary to support such remedies, subject to rule 81(b) of the
Federal Rules of Civil Procedure.
"(b) NOTICE.—On the commencement by the United States of an
action or proceeding under this subchapter to obtain a remedy, the
counsel for the United States shall prepare, and clerk of the court
shall issue, a notice in substantially the following form:
" 'NOTICE
" 'You are hereby notified that this [property] is being taken by
the United States Government, which has a court judgment in [case
docket number and jurisdiction of court] of $[amount] for [reason of
debt].
" 'In addition, you are hereby notified that there are exemptions
under the law which may protect some of this property from being
taken by the United States Government if [name of judgment
debtor] can show that the exemptions apply. Below is a summary of
the major exemptions which apply in most situations in the State of
[State where property is located]:
" '[A statement summarizing in plain and understandable English the election available with respect to such
State under section 3014 and the types of property that may
be exempted under each of the alternatives specified in
paragraphs (1) and (2) of section 3014(a) and a statement
that different property may be so exempted with respect to
the State in which the debtor resides.]
" 'If you are [name of judgment debtor], you have a right to ask
the court to return your property to you if you think the property
the Government is taking qualifies under one of the above exemptions [For a default judgment:] or if you think you do not owe the
money to the United States Government that it says you do.
" 'If you want a hearing, you must notify the court within 20 days
after you receive this notice. You must make your request in
writing, and either mail it or deliver it in person to the clerk of the
court at [address]. If you wish, you may use this notice to request the
hearing by checking the box below and mailing this notice to the
court clerk. You must also send a copy of your request to the
Government at [address], so the Government will know you want a
hearing. The hearing will take place within 5 days after the clerk
receives your request, if you ask for it to take place that quickly, or
as soon after that as possible.
" 'At the hearing you may explain to the judge why you believe
the property the Government has taken is exempt [For a default
104 STAT. 4950
PUBLIC LAW 101-647—NOV. 29, 1990
judgment:] or why you think you do not owe the money to the
Government. [For a writ of execution:] If you do not request a
hearing within 20 days of receiving this notice, your [property] may
be sold at public auction and the payment used toward the money
you owe the Government.
" 'If you think you live outside the Federal judicial district in
which the court is located, you may request, not later than 20 days
after your receive this notice, that this proceeding to take your
property be transferred by the court to the Federal judicial district
in which you reside. You must make your request in writing, and
either mail it or deliver it in person to the clerk of the court at
[address]. You must also send a copy of your request to the Government at [address], so the Government will know you want the
proceeding to be transferred.
" 'Be sure to keep a copy of this notice for your own records. If you
have any questions about your rights or about this procedure, you
should contact a lawyer, an office of public legal assistance, or the
clerk of the court. The clerk is not permitted to give legal advice, but
can refer you to other sources of information.'.
"(c) SERVICE.—A copy of the notice and a copy of the application
for granting a remedy under this subchapter shall be served by
counsel for the United States on the judgment debtor against whom
such remedy is sought and on each person whom the United States,
after diligent inquiry, has reasonable cause to believe has an interest in property to which the remedy is directed.
"(d) HEARING.—By requesting, within 20 days after receiving the
notice described in section 3202(b), the court to hold a hearing, the
judgment debtor may move to quash the order granting such
remedy. The court that issued such order shall hold a hearing on
such motion as soon as practicable, or, if so requested by the
judgment debtor, within 5 days after receiving the request or as soon
thereafter as possible. The issues at such hearing shall be limited—
"(1) to the probable validity of any claim of exemption by the
judgment debtor;
"(2) to compliance with any statutory requirement for the
issuance of the postjudgment remedy granted; and
"(3) if the judgment is by default and only to the extent that
the Constitution or another law of the United States provides a
right to a hearing on the issue, to—
"(A) the probable validity of the claim for the debt which
is merged in the judgment; and
"(B) the existence of good cause for setting aside such
judgment.
This subparagraph shall not be construed to afford the judgment debtor the right to more than one such hearing except to
the extent that the Constitution or another law of the United
States provides a right to more than one such hearing.
"(e) SALE OF PROPERTY.—The property of a judgment debtor which
is subject to sale to satisfy the judgment may be sold by judicial sale,
pursuant to sections 2001, 2002, and 2004 or by execution sale
pursuant to section 3203(g). If a hearing is requested pursuant to
subsection (d), property with respect to which the request relates
shall not be sold before such hearing.
"§ 3203. Execution
"(a) PROPERTY SUBJECT TO EXECUTION.—All property in which the
judgment debtor has a substantial nonexempt interest shall be
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4951
subject to levy pursuant to a writ of execution. The debtor's earnings
shall not be subject to execution while in the possession, custody, or
control of the debtor's employer. Co-owned property shall be subject
to execution to the extent such property is subject to execution
under the law of the State in which it is located.
"(b) CREATION OF EXECUTION LIEN.—A lien shall be created in
favor of the United States on all property levied on under a writ of
execution and shall date from the time of the levy. Such lien shall
have priority over all subsequent liens and shall be for the aggregate amount of the judgment, costs, and interest. The execution lien
on any real property as to which the United States has a judgment
lien shall relate back to the judgment lien date.
"(c) WRIT OF EXECUTION.—
"(1) ISSUANCE.—On written application of counsel for the
United States, the court may issue a writ of execution. Multiple
writs may issue simultaneously, and successive writs may issue
before the return date of a writ previously issued.
"(2) FORM OF WRIT.—
"(A) GENERAL CONTENTS.—A
writ of execution shall
specify the date that the judgment is entered, the court in
which it is entered, the amount of the judgment if for
money, the amount of the costs, the amount of interest due,
the sum due as of the date the writ is issued, the rate of
postjudgment interest, the name of the judgment debtor,
and the judgment debtor's last known address.
"(B) ADDITIONAL CONTENTS.—(i) Except as provided in
clauses (ii) and (iii), the writ shall direct the United States
marshal to satisfy the judgment by lev5dng on and selling
property in which the judgment debtor has a substantial
nonexempt interest, but not to exceed property reasonably
equivalent in value to the aggregate amount of the judgment, costs, and interest.
"(ii) A writ of execution issued on a judgment for the
delivery to the United States of the possession of personal
property, or for the delivery of the possession of real property, shall particularly describe the property, and shall
require the marshal to deliver the possession of the property to the United States.
"(iii) A writ of execution on a judgment for the recovery
of personal property or its value shall direct the marshal, in
case a delivery of the specific property cannot be had, to
levy and collect such value out of any property in which the
judgment debtor has a substantial nonexempt interest.
"(d) LEVY OF EXECUTION.—
"(1) IN GENERAL.—Levy on property pursuant to a writ of
execution issued under this section shall be made in the same
manner as levy on property is made pursuant to a writ of
attachment issued under section 3102(d).
"(2) DEATH OF JUDGMENT DEBTOR.—The death of the judgment
debtor after a writ of execution is issued stays the execution
proceedings, but any lien acquired by levy of the writ shall be
recognized and enforced by the court for the district in which
the estate of the deceased is located. The execution lien may be
enforced—
"(A) against the executor, administfator, or personal representative of the estate of the deceased; or
104 STAT. 4952
PUBLIC LAW 101-647—NOV. 29, 1990
"(B) if there be none, against the deceased's property
coming to the heirs or devisees or at their option against
cash in their possession, but only to the extent of the value
of the property coming to them.
"(3) RECORDS OF UNITED STATES MARSHAL.—(A) A United
States marshal receiving a writ of execution shall endorse
thereon the exact hour and date of receipt.
"(B) The United States marshal shall make a written record
of every levy, specify the property on which levy is made, the
date on which levy is made, and the marshal's costs, expenses,
and fees.
"(C) The United States marshal shall make a written return
to the court on each writ of execution stating concisely what is
done pursuant to the writ and shall deliver a copy to counsel for
the United States who requests the writ. The writ shall be
returned not more than—
"(i) 90 days after the date of issuance if levy is not made;
or
"(ii) 10 days after the date of sale of property on which
levy is made.
"(e) APPOINTMENT OF RECEIVER.—Pending the levy of execution,
the court may appoint a receiver to manage property described in
such writ if there is a substantial danger that the property will be
removed from the jurisdiction of the court, lost, materially injured
or damaged, or mismanaged.
"(f) REPLEVY; REDEMPTION.—
"(1) BEFORE EXECUTION SALE.—(A)
Before execution sale, the
United States marshal may return property to the judgment
debtor any personal property taken in execution, on—
"(i) satisfaction of the judgment, interest, and costs, and
any costs incurred in connection with scheduling the sale;
or
"(ii) receipt from the judgment debtor of a bond—
"(I) payable to the United States, with 2 or more good
and sufficient sureties to be approved by the marshal,
conditioned on the delivery of the property to the
marshal at the time and place named in the bond to be
sold under subsection (g); or
"(II) for the payment to the marshal of a fair value
thereof which shall be stated in the bond.
"(B) A judgment debtor who sells or disposes of property
replevied under subparagraph (A) shall pay the United States
marshal the stipulated value of such property.
"(C) If the judgment debtor fails to deliver such property to
the United States marshal pursuant to the terms of the delivery
described in subparagraph (A)(ii)(I) and fails to pay the United
States marshal the stipulated value of such property, the
United States marshal shall endorse the bond 'forfeited' and
return it to the court from which the writ of execution issued. If
the judgment is not fully satisfied, the court shall issue a writ of
execution against the judgment debtor and the sureties on the
bond for the amount due, not exceeding the stipulated value of
the property, on which execution no delivery bond shall be
taken, which instruction shall be endorsed on the writ.
"(2) AFTER EXECUTION SALE.—The judgment debtor shall not
be entitled to redeem the property after the execution sale.
"(g) EXECUTION SALE.—
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4953
"(1) GENERAL PROCEDURES.—An execution sale under this section shall be conducted in a commercially reasonable manner—
"(A) SALE OF REAL PROPERTY.—
"(i) IN GENERAL.—(I) Except as provided in clause (ii),
real property, or any interest therein, shall be sold,
after the expiration of the 90-day period beginning on
the date of levy under subsection (d), for cash at public
auction at the courthouse of the county, parish, or city
in which the greater part of the property is located or
on the premises or some parcel thereof.
"(II) The court may order the sale of any real property after the expiration of the 30-day period beginning
on the date of levy under subsection (d) if the court
determines that such property is likely to perish, waste,
be destroyed, or otherwise substantially depreciate in
value during the 90-day period beginning on the date of
levy.
"(Ill) The time and place of sale of real property, or
any interest therein, under execution shall be advertised by the United States marshal, by publication of
notice, once a week for at least 3 weeks prior to the
sale, in at least one newspaper of general circulation in
the county or parish where the property is located. The
first publication shall appear not less than 25 days
preceding the day of sale. The notice shall contain a
statement of the authority by which the sale is to be
made, the time of levy, the time and place of sale, and a
brief description of the property to be sold, sufficient to
identify the property (such as a street address for
urban property and the survey identification and location for rural property), but it shall not be necessary for
the notice to contain field notes. Such property shall be
open for inspection and appraisal, subject to the judgment debtor's reasonable objections, for a reasonable
period before the day of sale.
"(IV) The United States marshal shall serve written
notice of public sale by personal delivery, or certified or
registered mail, to each person whom the marshal has
reasonable cause to believe, after a title search is conducted by the United States, has an interest in property under execution, including lienholders, co-owners,
and tenants, at least 25 days before the day of sale, to
the last known address of each such person.
"(ii) SALE OF CITY LOTS.—If the real property consists
of several lots, tracts, or parcels in a city or town, each
lot, tract, or parcel shall be offered for sale separately,
unless not susceptible to separate sale because of the
character of improvements.
"(iii) SALE OF RURAL PROPERTY.—If the real property
is not located in a city or town, the judgment debtor
may—
"(I) divide the property into lots of not less than
50 acres or in such greater or lesser amounts as
ordered by the court;
"(II) furnish a survey of such prepared by a
registered surveyor; and
104 STAT. 4954
PUBLIC LAW 101-647—NOV. 29, 1990
"(III) designate the order in which those lots
shall be sold.
When a sufficient number of lots are sold to satisfy the
amount of the execution and costs of sale, the marshal
shall stop the sale.
"(B) SALE OF PERSONAL PROPERTY.—(i) Personal property
levied on shall be offered for sale on the premises where it
is located at the time of levy, at the courthouse of the
county, parish or city wherein it is located, or at another
location if ordered by the court. Personal property susceptible of being exhibited shall not be sold unless it is present
and subject to the view of those attending the sale unless—
"(I) the property consists of shares of stock in corporations;
"(II) by reason of the nature of the property, it is
impractical to exhibit it; or
(III) the debtor's interest in the property does not
include the right to the exclusive possession.
"(iiXD Except as provided in subclause (II), personal property, or any interest therein, shall be sold after the expiration of the 30-day period beginning on the date of levy
under subsection (d).
"(II) The court may order the sale of any personal property before the expiration of such 30-day period if the court
determines that such property is likely to perish, waste, be
destroyed, or otherwise substantially depreciate in value
during such 30-day period.
"(iii) Notice of the time and place of the sale of personal
property shall be given by the United States marshal by
posting notice thereof for not less than 10 days successively
immediately before the day of sale at the courthouse of any
county, parish, or city, and at the place where the sale is to
be made.
"(iv) The United States marshal shall serve written
notice of public sale by personal delivery, or registered or
certified mail at their last known addresses, on the judgment debtor and other persons who the marshal has reasonable cause to believe, after diligent inquiry, have a substantial interest in the property.
"(2) POSTPONEMENT OF SALE.—The United States marshal may
postpone an execution sale from time to time by continuing the
required posting or publication of notice until the date to which
the sale is postponed, and appending, at the foot of each such
notice of a current copy of the following:
" 'The above sale is postponed until the
day of
, 1 9 , at
o clock
.M.,
, United
States Marshal for the District of
.by
, Deputy, dated
.*.
"(3) SALE PROCEDURES.—
"(A) BIDDING REQUIREMENTS.—A
bidder at an execution
sale of property, may be required by the United States
marshal to make a cash deposit of as much as 20 percent of
the sale price proposed before the bid is accepted.
"(B) RESALE OF PROPERTY.—If the terms of the sale are not
complied with by the successful bidder, the United States
marshal shall proceed to sell the property again on the
same day if there is sufficient time. If there is insufficient
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4955
time, the marshal shall schedule and notice a subsequent
sale of the property as provided in paragraphs (1) and (2).
(4) RIGHTS AND UABILITIES OF PURCHASERS.—
"(A) TRANSFER OF TITLE AFTER SALE.—
"(i) If property is sold under this subsection and the
successful bidder complies with the terms of the sale,
the United States marshal shall execute and deliver all
documents necessary to transfer to the successful
bidder, without warranty, all the rights, titles, interests, and claims of the judgment debtor in the property.
"(ii) If the successful bidder dies before execution and
delivery of the documents needed to transfer ownership, the United States marshal shall execute and deliver them to the successful bidder's estate. Such delivery to the estate shall have the same effect as if
accomplished during the lifetime of the purchaser.
"(B) PURCHASER CONSIDERED INNOCENT PURCHASER WITH-
OUT NOTICE.—The purchaser of property sold under execution shall be deemed to be an innocent purchgiser without
notice if the purchaser would have been considered an
innocent purchaser without notice had the sale been made
voluntarily and in person by the judgment debtor.
"(C) LIABILITY OF SUCCESSFUL BIDDER WHO FAILS TO COM-
PLY.—A successful bidder at an execution sale who fails to
comply with the terms of the sale shall forfeit to the United
States the cash deposit or, at the election of the United
States, shall be liable to the United States, on a subsequent
sale of the property, for all net losses incurred by the United
States as a result of such failure.
"(h) DISPOSITION OF PROCEEDS; FURTHER LEVY.—
"(1) DISTRIBUTION OF SALE PROCEEDS.—(A) The United States
marshal shall first deliver to the judgment debtor such amounts
to which the judgment debtor is entitled from the sale of
partially exempt property.
"(B) The United States marshal shall next deduct from the
proceeds of an execution sale of property an amount equal to
the reasonable expenses incurred in making the levy of execution and in keeping and maintaining the property.
"(C) Except as provided in subparagraph (D), the United
States marshal shall deliver the balance of the proceeds to the
counsel for the United States as soon as practicable.
"(D) If more proceeds are received from the execution sale
than is necessary to satisfy the executions held by the United
States marshal, the marshal shall pay the surplus to the judgment debtor.
"(2) FURTHER LEVY IF EXECUTION NOT SATISFIED.—If the proceeds of the execution sale of the property levied on are insufficient to satisfy the execution, the United States marshal shall
proceed on the same writ of execution to levy other property of
the judgment debtor.
"§ 3204. Installment payment order
"(a) AUTHORITY TO ISSUE ORDER.—Subject to subsection (c), if it is
shown that the judgment debtor—
104 STAT. 4956
PUBLIC LAW 101-647—NOV. 29, 1990
"(1) is receiving or will receive substantial nonexempt disposable earnings from self employment that are not subject to
garnishment; or
"(2) is diverting or concealing substantial earnings from any
source, or property received in lieu of earnings;
then upon motion of the United States and notice to the judgment
debtor, the court may, if appropriate, order that the judgment
debtor make specified installment payments to the United States.
Notice of the motion shall be served on the judgment debtor in the
same manner as a summons or by registered or certified mail,
return receipt requested. In fixing the amount of the payments, the
court shall take into consideration after a hearing, the income,
resources, and reasonable requirements of the judgment debtor and
the judgment debtor's dependents, any other payments to be made
in satisfaction of judgments against the judgment debtor, and the
amount due on the judgment in favor of the United States.
"(b) MODIFICATION OF ORDER.—On motion of the United States or
the judgment debtor, and upon a showing that the judgment
debtor's financial circumstances have changed or that assets not
previously disclosed by the judgment debtor have been discovered,
the court may modify the amount of payments, alter their frequency, or require full payment.
"(c) LIMITATION.—(1) An order may not be issued under subsection
(a), and if so issued shall have no force or effect, against a judgment
debtor with respect to whom there is in effect a writ of garnishment
of earnings issued under this chapter and based on the same debt.
"(2) An order may not be issued under subsection (a) with respect
to any earnings of the debtor except nonexempt disposable earnings.
"§ 3205. Garnishment
"(a) IN GENERAL.—A court may issue a writ of garnishment
against property (including nonexempt disposable earnings) in
which the debtor has a substantial nonexempt interest and which is
in the possession, custody, or control of a person other than the
debtor, in order to satisfy the judgment against the debtor. Co-owned
property shall be subject to garnishment to the same extent as coowned property is subject to garnishment under the law of the State
in which such property is located. A court may issue simultaneous
separate writs of garnishment to several garnishees. A writ of
garnishment issued under this subsection shall be continuing and
shall terminate only as provided in subsection (c)(10).
"(b) WRIT.—
"(1) GENERAL REQUIREMENTS.—The
United States shall include in its application for a writ of garnishment—
"(A) the judgment debtor's name, social security number
(if known), and last known address;
"(B) the nature and amount of the debt owed and the
facts that not less than 30 days has elapsed since demand
on the debtor for payment of the debt was made and the
judgment debtor has not paid the amount due; and
"(C) that the garnishee is believed to have possession of
property (including nonexempt disposable earnings) in
which the debtor has a substantial nonexempt interest.
"(2) PROPER GARNISHEE FOR PARTICULAR PROPERTY.—
"(A) If the property consists of a right to or share in the
stock of an association or corporation, or interests or profits
therein, for which a certificate of stock or other negotiable
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4957
instrument is not outstanding, the corporation, or the president or treasurer of the association shall be the garnishee.
"(B) If the property consists of an interest in a partnership interest, any partner other than the debtor shall be the
garnishee on behalf of the partnership.
"(C) If the property or a debt is evidenced by a negotiable
instrument for the payment of money, a negotiable document of title or a certificate of stock of an association or
corporation, the instrument, document, or certificate shall
be treated as property capable of delivery and the person
holding it shall be the garnishee, except that—
"(i) subject to clause (ii), in the case of a security
which is transferable in the manner set forth in State
law, the entity that carries on its books an account in
the name of the debtor in which is reflected such
security shall be the garnishee; and
"(ii) notwithstanding clause (i), the pledgee shall be
the garnishee if such security is pledged.
"(c) PROCEDURES APPUCABLE TO WRIT.—
"(1) COURT DETERMINATION.—If the court
determines that the
requirements of this section are satisfied, the court shall issue
an appropriate writ of garnishment.
"(2) FORM OF WRIT.—The writ shall state—
"(A) The nature and amount of the debt, and any cost and
interest owed with respect to the debt.
"(B) The name and address of the garnishee.
"(C) The name and address of counsel for the United
States.
"(D) The last known address of the judgment debtor.
"(E) That the garnishee shall answer the writ within 10
days of service of the writ.
"(F) That the garnishee shall withhold and retain any
property in which the debtor has a substantial nonexempt
interest and for which the garnishee is or may become
indebted to the judgment debtor pending further order of
the court.
"(3) SERVICE OF WRIT.—The United States shall serve the
garnishee and the judgment debtor with a copy of the writ of
garnishment and shall certify to the court that this service was
made. The writ shall be accompanied by—
"(A) an instruction explaining the requirement that the
garnishee submit a written answer to the writ; and
"(B) instructions to the judgment debtor for objecting to
the answer of the garnishee and for obtaining a hearing on
the objections.
"(4) ANSWER OF THE GARNISHEE.—In its written answer to the
writ of garnishment, the garnishee shall state under oath—
"(A) whether the garnishee has custody, control or possession of such property;
"(B) a description of such property and the value of such
interest;
"(C) a description of any previous garnishments to which
such property is subject and the extent to which any
remaining property is not exempt; and
"(D) the amount of the debt the garnishee anticipates
owing to the judgment debtor in the future and whether the
104 STAT. 4958
PUBLIC LAW 101-647—NOV. 29, 1990
period for payment will be weekly or another specified
period.
The garnishee shall file the original answer with the court
issuing the writ and serve a copy on the debtor and counsel for
the United States.
"(5) OBJECTIONS TO ANSWER.—Within 20 days after receipt of
the answer, the judgment debtor or the United States may file a
written objection to the answer and request a hearing. The
party objecting shall state the grounds for the objection and
bear the burden of proving such grounds. A copy of the objection
and request for a hearing shall be served on the garnishee and
all other parties. The court shall hold a hearing within 10 days
after the date the request is received by the court, or as soon
thereafter as is practicable, and give notice of the hearing date
to all the parties.
"(6) GARNISHEE'S FAILURE TO ANSWER OR PAY.—If a garnishee
fails to answer the writ of garnishment or to withhold property
in accordance with the writ, the United States may petition the
court for an order requiring the garnishee to appear before the
court to answer the writ and to so withhold property before the
appearance date. If the garnishee fails to appear, or appears and
fails to show good cause why the garnishee failed to comply with
the writ, the court shall enter judgment against the garnishee
for the value of the judgment debtor's nonexempt interest in
such property (including nonexempt disposable earnings). The
court may award a reasonable attorney's fee to the United
States and against the garnishee if the writ is not answered
within the time specified therein and a petition requiring the
garnishee to appear is filed as provided in this section.
"(7) DISPOSITION ORDER.—After the garnishee files an answer
and if no hearing is requested within the required time period,
the court shall promptly enter an order directing the garnishee
as to the disposition of the judgment debtor's nonexempt interest in such property. If a hearing is timely requested, the
order shall be entered within 5 days after the hearing, or as
soon thereafter as is practicable.
"(8) PRIORITIES.—Judicial orders and garnishments for the
support of a person shall have priority over a writ of garnishment issued under this section. As to any other writ of garnishment or levy, a garnishment issued under this section shall
have priority over writs which are issued later in time.
"(9) ACCOUNTING.—(A) While a writ of garnishment is in
effect under this section, the United States shall give an annual
accounting on the garnishment to the judgment debtor and the
garnishee.
"(B) Within 10 days after the garnishment terminates, the
United States shall give a cumulative written accounting to the
judgment debtor and garnishee of all property it receives under
a writ of garnishment. Within 10 days after such accounting is
received, the judgment debtor or garnishee may file a written
objection to the accounting and a request for hearing. The party
objecting shall state grounds for the objection. The court shall
hold a hearing on the objection within 10 days after the court
receives the request for a hearing, or as soon thereafter as is
practicable.
"(10) TERMINATION OF GARNISHMENT.—A garnishment under
this chapter is terminated only by—
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4959
"(A) a court order quashing the writ of garnishment;
"(B) exhaustion of property in the possesion, custody, or
control of the garnishee in which the debtor has a substantial nonexempt interest (including nonexempt disposable
earnings), unless the garnishee reinstates or reemploys the
judgment debtor within 90 days after the judgment debtor's
dismissal or resignation; or
"(C) satisfaction of the debt with respect to which the writ
is issued,
"§ 3206. Discharge
"A person who pursuant to an execution or order issued under
this chapter by a court pays or delivers to the United States, a
United States marshal, or a receiver, money or other personal
property in which a judgment debtor has or will have an interest, or
so pays a debt such person owes the judgment debtor, is discharged
from such debt to the judgment debtor to the extent of the payment
or delivery.
"SUBCHAPTER D—FRAUDULENT TRANSFERS INVOLVING
DEBTS
"Sec.
"3301.
"3302.
"3303.
"3304.
"3305.
"3306.
"3307.
"3308.
Definitions.
Insolvency.
Value for a transfer or obligation.
Transfer fraudulent as to a debt to the United States.
When transfer is made or obligation is incurred.
Remedies of the United States.
Defenses, liability and protection of transferee.
Supplementary provision.
•
"§ 3301. Definitions
"As used in this subchapter:
"(1)'Affiliate'means—
"(A) a person who directly or indirectly owns, controls, or
holds with power to vote, 20 percent or more of the
outstanding voting securities of the debtor, other than a
person who holds the securities—
"(i) as a fiduciary or agent without sole discretionary
power to vote the securities; or
"(ii) solely to secure a debt, if the person has not
exercised the power to vote;
"(B) a corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor or a
person who directly or indirectly owns, controls, or holds
with power to vote, 20 percent or more of the outstanding
voting securities of the debtor, other than the person who
holds securities—
"(i) as a fiduciary or agent without sole power to vote
the securities; or
"(ii) solely to secure a debt, if the person has not in
fact exercised the power to vote;
"(C) a person whose business is operated by the debtor
under a lease or other agreement, or a person substantially
all of whose assets are controlled by the debtor; or
104 STAT. 4960
PUBLIC LAW 101-647—NOV. 29, 1990
"(D) a person who operates the debtor's business under a
lease or other agreement or controls substantially all of the
debtor's assets.
"(2) 'Asset' means property of a debtor, but does not include—
"(A) property to the extent it is encumbered by a valid
lien;
"(B) property to the extent it is generally exempt under
nonbankruptcy law; or
"(C) an interest in real property held in tenancy by the
entirety, or as part of a community estate, to extent such
interest is not subject to process by the United States
holding a claim against only one tenant or co-owner.
"(3) 'Claim' means a right to payment, whether or not the
right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured.
"(4) 'Creditor' means a person who has a claim.
"(5) 'Insider' includes—
"(A) if the debtor is an individual—
"(i) a relative of the debtor or of a general partner of
the debtor;
"(ii) a partnership in which the debtor is a general
partner;
"(iii) a general partner in a partnership described in
clause (ii); or
"(iv) a corporation of which the debtor is a director,
officer, or person in control;
"(B) if the debtor is a corporation—
"(i) a director of the debtor;
"(ii) an officer of the debtor;
"(iii) a person in control of the debtor;
"(iv) a partnership in which the debtor is a general
partner;
"(v) a general partner in a partnership described in
clause (iv); or
"(vi) a relative of a general partner, director, officer,
or person in control of the debtor;
"(C) if the debtor is a partnership—
"(i) a general partner in the debtor;
"(ii) a relative of a general partner in, a general
partner of, or a person in control of the debtor;
"(iii) another partnership in which the debtor is a
general partner;
"(iv) a general partner in a partnership described in
clause (iii); or
"(v) a person in control of the debtor.
"(D) an affiliate, or an insider of an affiliate as if the
affiliate were the debtor; and
"(E) a managing agent of the debtor,
"(4) 'Lien' means a charge against or an interest in property
to secure payment of a debt and includes a security interest
created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common law lien, or a statutory
lien.
"(5) 'Relative' means an individual related, by consanguinity
or adoption, within the third degree as determined by the
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4961
common law, a spouse, or an individual so related to a spouse
within the third degree as so determined.
"(6) 'Transfer' means every mode, direct or indirect, absolute
or conditional, voluntary or involuntary, of disposing of or
parting with an asset or an interest in an asset, and includes
pajonent of money, release, lease, and creation of a lien or other
encumbrance.
"(7) 'Valid lien' means a lien that is effective against the
holder of a judicial lien subsequently obtained in legal or equitable proceeding.
"§ 3302. Insolvency
"(a) IN GENERAL.—Except as provided in subsection (c), a debtor is
insolvent if the sum of the debtor's debts is greater than all of the
debtor's assets at a fair valuation.
"(b) PRESUMPTION.—A debtor who is generally not paying debts as
they become due is presumed to be insolvent.
"(c) CALCULATION.—A partnership is insolvent under subsection
(a) if the sum of the partnership's debts is greater than the aggregate, at a fair valuation, of—
"(1) all of the partnership's assets; and
"(2) the sum of the excess of the value of each general
partner's non-partnership assets over the partner's non-partnership debts.
"(d) ASSETS.—For purposes of this section, assets do not include
property that is transferred, concealed, or removed with' intent to
hinder, delay, or defraud creditors or that has been transferred in a
manner making the transfer voidable under this subchapter.
"(e) DEBTS.—For purposes of this section, debts do not include an
obligation to the extent such obligation is secured by a valid lien on
property of the debtor not included as an asset.
"§ 3303. Value for transfer or obligation
"(a) TRANSACTION.—Value is given for a transfer or an obligation
if, in exchange for the transfer or obligation, property is transferred
or an antecedent debt is secured or satisfied, but value does not
include an unperformed promise made otherwise than in the ordinary course of the promisor's business to furnish support to the
debtor or another person.
"(b) REASONABLY EQUIVALENT VALUE.—For the purposes of sections 3304 and 3307, a person gives a reasonably equivalent value if
the person acquires an interest of the debtor in an asset pursuant to
a regularly conducted, noncollusive foreclosure sale or execution of
a power of sale for the acquisition or disposition of such interest
upon default under a mortgage, deed of trust, or security agreement.
"(c) PRESENT VALUE.—A transfer is made for present value if the
exchange between the debtor and the transferee is intended by them
to be contemporaneous and is in fact substantially contemporaneous.
"§ 3304. Transfer fraudulent as to a debt to the United States
"(a) DEBT ARISING BEFORE TRANSFER.—Except as provided in section 3307, a transfer made or obligation incurred by a debtor is
fraudulent as to a debt to the United States which arises before the
transfer is made or the obligation is incurred if—
104 STAT. 4962
PUBLIC LAW 101-647—NOV. 29, 1990
"(IXA) the debtor makes the transfer or incurs the obligation
without receiving a reasonably equivalent value in exchange for
the transfer or obligation; and
"(B) the debtor is insolvent at that time or the debtor becomes
insolvent as a result of the transfer or obligation; or
"(2)(A) the transfer was made to an insider for an antecedent
debt, the debtor was insolvent at the time; and
"(B) the insider had reasonable cause to believe that the
debtor WEIS insolvent.
"(b)
TRANSFERS WITHOUT REGARD TO DATE OF JUDGMENT,—(1)
Except as provided in section 3307, a transfer made or obligation
incurred by a debtor is fraudulent as to a debt to the United States,
whether such debt arises before or after the transfer is made or the
obligation is incurred, if the debtor makes the transfer or incurs the
obligation—
"(A) with actual intent to hinder, delay, or defraud a creditor;
or
"(B) without receiving a reasonably equivalent value in exchange for the transfer or obligation if the debtor—
"(i) was engaged or was about to engage in a business or a
transaction for which the remaining assets of the debtor
were unreasonably small in relation to the business or
transaction; or
"(ii) intended to incur, or believed or reasonably should
have believed that he would incur, debts beyond his ability
to pay as they became due.
"(2) In determining actual intent under paragraph (1), consideration may be given, among other factors, to whether—
"(A) the transfer or obligation was to an insider;
"(B) the debtor retained possession or control of the property
transferred after the transfer;
"(C) the transfer or obligation was disclosed or concealed;
"(D) before the transfer was made or obligation was incurred,
the debtor had been sued or threatened with suit;
"(E) the transfer was of substantially all the debtor's assets;
"(F) the debtor absconded;
"(G) the debtor removed or concealed assets;
"(H) the value of the consideration received by the debtor was
reasonably equivalent to the value of the asset transferred or
the amount of the obligation incurred;
"(I) the debtor was insolvent or became insolvent shortly after
the transfer was made or the obligation was incurred;
"(J) the transfer occurred shortly before or shortly after a
substantial debt was incurred; and
"(K) the debtor transferred the essential assets of the business
to a lienor who transferred the assets to an insider of the debtor.
"§ 3305. When transfer is made or obligation is incurred
"For the purposes of this subchapter:
"(1) A transfer is made—
"(A) with respect to an asset that is real property (other
than a fixture, but including the interest of a seller or
purchaser under a contract for the sale of the asset), when
the transfer is so far perfected that a good-faith purchaser
of the asset from the debtor against whom applicable law
permits the transfer to be perfected cannot acquire an
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4963
interest in the asset that is superior to the interest of the
transferee; and
"(B) with respect to an asset that is not real property or
that is a fixture, when the transfer is so far perfected that a
creditor on a simple contract cannot acquire, otherwise
than under this subchapter, a judicial lien that is superior
to the interest of the transferee.
"(2) If applicable law permits the transfer to be perfected as
approved in paragraph (1) and the transfer is not so perfected
before the commencement of an action or proceeding for relief
under this subchapter, the transfer is deemed made immediately before the commencement of the action or proceeding.
"(3) If applicable law does not permit the transfer to be
perfected as provided in paragraph (1), the transfer is made
when it becomes effective between the debtor and the
transferee.
"(4) A transfer is not made until the debtor has acquired
rights in the asset transferred.
"(5) An obligation is incurred—
"(A) if oral, when it becomes effective between the parties; or
"(B) if evidenced by a writing executed by the obligor,
when such writing is delivered to or for the benefit of the
obligee.
"§ 3306. Remedies of the United States
"(a) I N GENERAL.—In an action or proceeding under this subchapter for relief against a transfer or obligation, the United States,
subject to section 3307 and to applicable principles of equity and in
accordance with the Federal Rules of Civil Procedure, may obtain—
"(1) avoidance of the transfer or obligation to the extent
necessary to satisfy the debt to the United States;
"(2) a remedy under this chapter against the asset transferred
or other property of the transferee; or
"(3) any other relief the circumstances may require.
"(b) LIMITATION.—A claim for relief with respect to a fraudulent
transfer or obligation under this subchapter is extinguished unless
action is brought—
"(1) under section 3304(b)(lXA) within 6 years after the transfer was made or the obligation was incurred or, if later, within 2
years after the transfer or obligation w£is or could reasonably
have been discovered by the claimant;
"(2) under subsection (a)(1) or (b)(1)(B) of section 3304 within 6
years after the transfer was made or the obligation was incurred; or
"(3) under section 3304(a)(2) within 2 years after the transfer
was made or the obligation was incurred.
"§ 3307. Defenses, liability, and protection of transferee
"(a) GOOD FAITH TRANSFER.—A transfer or obligation is not void-
able under section 3304(b) with respect to a person who took in good
faith and for a reasonably equivalent value or against any transferee or obligee subsequent to such person.
"(b) LIMITATION.—Except as provided in subsection (d), to the
extent a transfer is voidable in an action or proceeding by the
United States under section 3306(aXl), the United States may recover judgment for the value of the asset transferred, but not to
104 STAT. 4964
PUBLIC LAW 101-647—NOV. 29, 1990
exceed the judgment on a debt. The judgment may be entered
against—
"(1) the first transferee of the asset or the person for whose
benefit the transfer was made; or
"(2) any subsequent transferee, other than a good faith transferee who took for value or any subsequent transferee of such
good-faith transferee.
"(c) VALUE OF ASSET.—For purposes of subsection (b), the value of
the asset is the value of the asset at the time of the transfer, subject
to adjustment as the equities may require.
"(d) RIGHTS OF GOOD FAITH TRANSFEREES AND OBLIGEES.—Notwith-
standing voidability of a transfer or an obligation under this subchapter, a good-faith transferee or obligee is entitled, to the extent
of the value given the debtor for the transfer or obligation, to—
"(1) a lien on or a right to retain any interest in the asset
transferred;
"(2) enforcement of any obligation incurred; or
"(3) a reduction in the amount of the liability on the
judgment.
"(e) EXCEPTIONS.—A transfer is not voidable under section 3304(a)
or section 3304(b)(2) if the transfer results from—
"(1) termination of a lease upon default by the debtor when
the termination is pursuant to the lease and applicable law; or
"(2) enforcement of a security interest in compliance with
article 9 of the Uniform Commercial Code or its equivalent in
effect in the State where the property is located.
"(f) LIMITATION OF VOIDABILITY.—A transfer is not voidable under
section 3304(a)(2)—
"(1) to the extent the insider gives new value to or for the
benefit of the debtor after the transfer is made unless the new
value is secured by a valid lien;
"(2) if made in the ordinary course of business or financial
affairs of the debtor and the insider; or
"(3) if made pursuant to a good-faith effort to rehabilitate the
debtor and the transfer secured both present value given for
that purpose and an antecedent debt of the debtor.
"§ 3308. Supplementary provision
"Except as provided in this subchapter, the principles of law and
equity, including the law merchant and the law relating to principal
and agent, estoppel, laches, fraud, misrepresentation, duress, coercion, mistake, insolvency, or other validating or invalidating cause
shall apply to actions and proceedings under this subchapter.".
Sec. 3302. The table of chapters for part VI of title 28, United
States Code, is amended by adding at the end the following:
"176. Federal Debt Ck)llection Procedures".
Subtitle B—Amendments to Other Provisions
of Law
SEC. 3621. Section 523(a)(8) of title 11, United States Code, is
amended—
(1) by striking "for an educational" and all that follows
through "unless , and inserting the following: "for an educational benefit overpayment or loan made, insured or guaran-
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4965
teed by a governmental unit, or made under any program
funded in whole or in part by a governmental unit or nonprofit
institution, or for an obligation to repay funds received as an
educational benefit, scholarship or stipend, unless"; £ind
(2) by amending subparagraph (A) to read as follows:
"(A) such loan, benefit, scholarship, or stipend overpayment first became due more than 7 years (exclusive of any
applicable suspension of the repayment period) before the
date of the filing of the petition; or".
SEC. 3622. Section 3142(cXlXBXxi) of title 18, United States Code,
is amended to read as follows:
"(xi) execute an agreement to forfeit upon failing to
appear as required, property of a sufficient unencumbered
value, including money, as is reasonably necessary to
assure the appearance of the person as required, and shall
provide the court with proof of ownership and the value of
the property along with information regarding existing
encumbrances as the judicial office may require;".
SEC. 3623. Section 3142(cXlXBXxii) of title 18, United States Code,
is amended to read as follows:
"(xii) execute a bail bond with solvent sureties; who will
execute an agreement to forfeit in such amount as is
reasonably necessary to assure appearance of the person as
required and shall provide the court with information
regarding the value of the assets and liabilities of the
surety if other than an approved surety and the nature and
extent of encumbrances against the surety's property; such
surety shall have a net worth which shall have sufficient
unencumbered value to pay the amount of the bail bond;".
SEC. 3624. Section 3142(gX4) of title 18, United States Code, is
amended by—
(1) striking out "(cX2XK)" and inserting in lieu thererof
"(cXlXBXxi)"; and
(2) striking out "(cX2XL)" and inserting in lieu thereof
"(cXlXBXxii)".
SEC. 3625. Section 3552(d) of title 18, United States Code, is
amended by adding at the end the following: "The court shall Reports,
provide a copy of the presentence report to the attorney for the
Government to use in collecting an assessment, criminal fine, forfeiture or restitution imposed.".
SEC. 3626. (a) Section 550 of title 28, United States Code, is
amended—
/
(1) in the heading by striking "and messengers" and inserting
", messengers, and private process servers"; and
(2) by striking "and messengers on" and inserting ", messengers, and private process servers on".
(b) The table of sections of chapter 35 of title 28, United States
Code, is amended by striking the item relating to section 550 and
inserting the following:
"550. Clerical assistants, messengers, and private process servers.".
SEC. 3627. Section 1962 of title 28, United States Code, is amended
by inserting after the first sentence the following: "This section does
not apply to judgments entered in favor of the United States,".
SEC. 3628. Section 1963 of title 28, United States Code, is amended
by inserting after the first sentence the following: "Such a judgment
104 STAT. 4966
PUBLIC LAW 101-647—NOV. 29, 1990
entered in favor of the United States may be so registered any time
after judgment is entered.".
SEC. 3629. (a) Chapter 129 of title 28, United States Code, is
amended by adding at the end thereof the following:
"§ 2044. Payment of Hne with bond money
Courts.
"On motion of the United States attorney, the court shall order
any money belonging to and deposited by or on behalf of the
defendant with the court for the purposes of a criminal appearance
bail bond (trial or appeal) to be held and paid over to the United
States attorney to be applied to the payment of any assessment, fine,
restitution, or penalty imposed upon the defendant. The court shall
not release any money deposited for bond purposes after a plea or a
verdict of the defendant's guilt has been entered and before sentencing except upon a showing that an assessment, fine, restitution or
penalty cannot be imposed for the offense the defendant committed
or that the defendant would suffer an undue hardship. This section
shall not apply to any third party surety.".
(b) The table of sections for chapter 29 of title 28, United States
Code, is amended by adding at the end thereof the following:
"2044. Payment of fine with bond money.".
SEC. 3630. Section 2410(c)
amended by adding at the end
United States is a bidder at
amount determined to be due
sales.".
of title 28, United States Code, is
the following: "In any case where the
the judicial sale, it may credit the
it against the amount it bids at such
Subtitle C—Miscellaneous
Effective dates.
SEC. 3631. (a) Except £is provided in subsection (b), this Act and the
28 u s e 3001
amendments made by this Act shall take effect 180 days after the
note.
date of the enactment of this Act.
(b)(1) The amendments made by title I of this Act shall apply with
respect to actions pending on the effective date of this Act in any
court on—
(A) a claim for a debt; or
(B) a judgment for a debt.
(2) All notices, writs, orders, and judgments in effect in such
actions shall continue in effect until superseded or modified in an
action under chapter 176 of title 28 of the United States Code, as
added by title I of this Act.
(3) For purposes of this subsection—
(A) the term "court" means a Federal, State, or local court,
and
(B) the term "debt" has the meaning given such term in
section and 3002(3) of such chapter.
TITLE XXXVII—NATIONAL CHILD
SEARCH ASSISTANCE ACT OF 1990
42 u s e 5779. SEC. 3701. REPORTING REQUIREMENT.
(a) IN GENERAL.—Each Federal, State, and local law enforcement
agency shall report each case of a missing child under the age of 18
PUBLIC LAW 101-647—NOV. 29, 1990
104 STAT. 4967
reported to such agency to the National Crime Information Center
of the Department of Justice.
(b) GUIDELINES.—The Attorney General may establish guidelines
for the collection of such reports including procedures for carrying
out the purposes of this Act.
(c) ANNUAL SUMMARY.—The Attorney General shall publish an
annual statistical summary of the reports received under this title.
SEC. 3702. STATE REQUIREMENTS.
42 USC 5780.
Each State reporting under the provisions of this title shall—
(1) ensure that no law enforcement agency within the State
establishes or maintains any policy that requires the observance
of any waiting period before accepting a missing child or unidentified person report;
(2) provide that each such report and all necessary and available information, which, with respect to each missing child
report, shall include—
(A) the name, date of birth, sex, race, height, weight, and
eye and hair color of the child;
(B) the date and location of the last known contact with
the child; and
(C) the category under which the child is reported
missing;
is entered immediately into the State law enforcement system
and the National Crime Information Center computer networks
and made available to the Missing Children Information
Clearinghouse within the State or other agency designated
within the State to receive such reports; and
(3) provide that after receiving reports as provided in paragraph (2), the law enforcement agency that entered the report
into the National Crime Information Center shall—
(A) no later than 60 days after the original entry of the Records,
record into the State law enforcement system and National
Crime Information Center computer networks, verify and
update such record with any additional information, including, where available, medical and dental records;
(B) institute or assist with appropriate search and investigative procedures; and
(C) maintain close liaison with the National Center for
Missing and Exploited Children for the exchange of
39-194 O - 91 - 19 : QL 3 Part 6
104 STAT. 4968
PUBLIC LAW 101-647—NOV. 29, 1990
information and technical assistance in the missing children cases.
Approved November 29, 1990.
LEGISLATIVE HISTORY—S. 3266 (H.R. 5269):
HOUSE REPORTS: No. 101-681, Pt. 1 (Ctomm. on the Judiciary) and Ft. 2 (Ctomm. on
Ways and Means) both accompanjdng H.R. 5269.
CONGRESSIONAL RECORD, Vol. 136 (1990):
Oct. 3-5, H.R. 5269 considered and passed House.
Oct. 23, considered and passed Senate, amended.
Oct 27, S. 3266 consideried and passed Senate and House.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 26 (1990):
Nov. 29, Presidential statement.
@FedFRASER