Friday, February 25, 2011

Overcriminalized.com Legislative Update

From Overcriminalized.com:

Table of Contents




New:



H.R. 685: Checkpoint Images Protection Act of 2011

H.R. 675: Strengthening Medicare Anti-Fraud Measures Act

S. 401: Public Corruption Prosecution Improvements Act of 2011

S. 370:

S. 350: Environmental Crimes Enforcement Act of 2011

S. 319: Pharmaceutical Market Access and Drug Safety Act of 2011

S. Amendment 85:



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H.R. 685: Checkpoint Images Protection Act of 2011



Sponsor: Jackson-Lee (D - TX)



Official Title: To amend title 18, United States Code, to criminalize the unauthorized recording and distribution of security screening images of individuals created by advanced imaging technology utilized by the Transportation Security Administration or other Federal authority, require the Transportation Security Administration to disable image retention capabilities of advanced imaging technology, and for other purposes.



Status:

2/14/2011: Introduced in House

2/14/2011: Referred to House Judiciary Committee

2/14/2011: Referred to House Homeland Security Committee

2/16/2011: Referred to House Transportation Security Subcommittee



Commentary: This bill is similar in substance to Senate Amendment 58 that has been proposed for S. 223, the FAA Air Transportation Modernization and Safety Improvement Act. H.R. 685 would make it a criminal violation for an unauthorized individual to "knowingly" photograph, record, or distribute any images produced using "advanced imaging technology during the screening of an individual at an airport, or upon entry into any building owned or operated by the Federal Government." A narrow exception to this prohibition is provided for the use or distribution of protected images in conjunction with a criminal investigation or prosecution or in an investigation related to foreign intelligence or a threat to national security. Violators of this amendment's prohibition would be subject to criminal sanctions of up to one year imprisonment, fines under Title 18 of the U.S. Code, or both.





H.R. 675: Strengthening Medicare Anti-Fraud Measures Act



Sponsor: Herger (R - CA)



Official Title: To amend title XI of the Social Security Act to expand the permissive exclusion from participation in Federal health care programs to individuals and entities affiliated with sanctioned entities.



Status:

2/11/2011: Introduced in House

2/11/2011: Referred to House Energy and Commerce Committee

2/11/2011: Referred to House Ways and Means Committee

2/11/2011: Referred to House Budget Committee



Commentary: Section 1320a-7 of Title 42, U.S. Code, sets forth the bases on which the Secretary of Health and Human Services "shall" (subsection (a)) and "may" (subsection (b)) exclude persons and entities from participation in federal health care programs. This bill would clarify 42 U.S.C. § 1320a-7(b)(15), which extends any exclusion to include any individual who controls a sanctioned entity. As amended, the exclusion would extend to any individual who has an ownership or control interest in a sanctioned entity or an affiliate of a sanctioned entity and who knew or should have known of the conduct that forms the basis for exclusion. Section 1320a-7a(i)(7) of Title 42 defines "should know" to include "deliberate ignorance" of and "reckless disregard" for the truth but states that "no proof of specific intent to defraud is required." As amended, the exclusion would also extend to an officer or managing employee of the entity. An entity or individual threatened with exclusion is entitled to notice and a hearing before the sanction is imposed.





S. 401: Public Corruption Prosecution Improvements Act of 2011



Sponsor: Leahy (D - VT)



Official Title: A bill to help Federal prosecutors and investigators combat public corruption by strengthening and clarifying the law.



Status:

2/17/2011: Introduced in Senate

2/17/2011: Referred to Senate Judiciary Committee



Commentary: This bill is substantively similar to S. 49 from the 111th Congress, which Senator Leahy also sponsored. Like the earlier bill, S. 401 seeks to implement a massive number of changes to various federal criminal statutes. Changes of note include the following: (1) extending the statute of limitations to six years for certain "serious public corruption offenses"; (2) modifying the federal mail and wire fraud statutes to apply to schemes to obtain "any other thing of value" in addition to the current law's "money or property"; (3) amending 18 U.S.C. § 666(a) to lower the applicable monetary threshold from its current $5000 level to a $1000 level and increase the applicable criminal penalty from up to 10 years imprisonment to up to 15 years imprisonment; (4) increasing the maximum penalty for violations of 18 U.S.C. § 641 from a maximum of 10 years imprisonment to a maximum of 15 years imprisonment; (5) increasing the maximum penalty for violations of 18 U.S.C. 201(b) from a maximum of 15 years imprisonment to a maximum of 20 years imprisonment; (6) increasing the maximum penalties for a variety of public corruption related offenses (including 18 U.S.C. §§ 600, 601(a), 602(a), 606, 607(a)(2), and 610); (7) adding bribery, theft, and embezzlement of public funds to the predicates for RICO; (8) adding additional wiretap predicates to 18 U.S.C. § 2516(1)(c); (9) clarifying the language of the federal illegal gratuities statute (18 U.S.C. 201(a)); and (10) expanding venue for perjury and obstruction of justice proceedings.





S. 370:



Sponsor: Casey (D - PA)



Official Title: A bill to require contractors to notify small business concerns that have been included in offers relating to contracts let by Federal agencies, and for other purposes.



Status:

2/16/2011: Introduced in Senate

2/16/2011: Referred to Senate Small Business and Entrepreneurship Committee



Commentary: This bill would amend Section 8(d) of the Small Business Act (15 U.S.C. 637(d)) to require that an offeror who is awarded a government contract with a Federal agency notify all small business concerns of their inclusion as potential subcontractors in the offer at issue. S. 370 would require any offeror that "intends to identify a small business concern as a potential subcontractor in the offer relating to the contract" to (1) notify the small business concern that the offeror intends to identify them as a potential subcontractor in the offer, and (2) include with the offer a written acknowledgment by the small business concern that the notice has been received. Violations of this provision would initially be punishable by a fine equivalent to 20 percent of the value of the contract at issue. Repeat violations would be punishable by a fine equal to 50 percent of the value of the contract at issue or by debarment from contracting with the United States government for a period of one year. Three-time violators of the provisions of S. 370 would be subject to permanent debarment from contracting with the United States government.





S. 350: Environmental Crimes Enforcement Act of 2011



Sponsor: Leahy (D - VT)



Official Title: A bill to require restitution for victims of criminal violations of the Federal Water Pollution Control Act, and for other purposes.



Status:

2/15/2011: Introduced in Senate

2/15/2011: Referred to Senate Judiciary Committee



Commentary: Section 3663A of Title 18, U.S. Code, mandates that those convicted of certain crimes pay restitution to the victims of those crimes. This bill, which is substantively similar to S. 3466 from the 111th Congress, would add a wide range of conduct prohibited by the Federal Water Pollution Control Act, commonly known as the Clean Water Act, to the list of crimes for which restitution must be ordered as part of the sentence. Because restitution would be mandatory, federal courts would not have the discretionary authority to decide in any case that justice does not require or is contrary to ordering restitution. Under 33 U.S.C 3319(c), any person who "negligently" or "knowingly" violates a number of provisions of the Clean Water Act can be prosecuted. In addition, any person who "knowingly" violates any of those provisions and "who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury" is subject to increased punishment.





S. 319: Pharmaceutical Market Access and Drug Safety Act of 2011



Sponsor: Snowe (R - ME)



Official Title: A bill to amend the Federal Food, Drug, and Cosmetic Act with respect to the importation of prescription drugs, and for other purposes.



Status:

2/10/2011: Introduced in Senate

2/10/2011: Referred to Senate Health, Education, Labor and Pensions Committee



Commentary: This bill is nearly identical to S. 525 from the 111th Congress, which was introduced by Senator Dorgan (D-ND), and would allow the importation of prescription drugs by wholesalers and pharmacies that register with the Department of Health and Human Services. S. 319 would also create a criminal offense for the importation of drugs in "knowing" violation of a vast array of regulations issued under the Food and Drug Act, including violations of any registration requirement, falsifications of any record required to be kept or provided to the government, and violations of any other regulatory condition concerning drug importation. Violations would be punishable by up to 10 years imprisonment, criminal fines under Title 18 of the U.S. Code, or both.





S. Amendment 85:



Sponsor: Nelson (D - NE)



Official Title:



Status:

2/14/2011: Introduced in Senate



Commentary: This amendment is proposed as a modification to Senate Amendment 58 for S. 223, the FAA Air Transportation Modernization and Safety Improvement Act. S. Amendment 58 would add a criminal penalty to the bill for the unauthorized recording and distribution of any images produced using "advanced imaging technology during the screening of an individual at an airport, or upon entry into any building owned or operated by the Federal Government." S. Amendment 85 would maintain that proposed penalty, but would slightly alter the available exceptions to the prohibition, allowing for the use or distribution of protected images during the course of authorized intelligence activities, Federal, State, or local criminal investigations or prosecutions, or other lawful activities by Federal, State, or local authorities, including training for intelligence or law enforcement purposes. As with S. Amendment 58, violators of S. Amendment 85's prohibition would be subject to criminal sanctions of up to one year imprisonment, fines under Title 18 of the U.S. Code, or both.

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