Senate Report 117-33 — To Enhance Protections of Native American Tangible Cultural Heritage
Summary
Senate Report 117–33, 1st Session, Calendar No. 109, from the Committee on Indian Affairs on S. 1471, a bill to enhance protections of Native American tangible cultural heritage, ordered to be printed July 28, 2021. The Committee reports favorably without amendment and recommends that the bill do pass. The report states that the purpose of S. 1471 is to provide a framework to prevent the export of Native American cultural items for sale in foreign countries and to repatriate such items. It states that S. 1471 increases the maximum penalty for trafficking such items, and its section-by-section analysis refers to the Safeguard Tribal Objects of Patrimony Act of 2021.
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“Senate Report 117-33 — To Enhance Protections of Native American Tangible Cultural Heritage.”
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Calendar No. 109
117TH CONGRESS REPORT
" SENATE !
1st Session 117–33
TO ENHANCE PROTECTIONS OF NATIVE AMERICAN TAN-
GIBLE CULTURAL HERITAGE, AND FOR OTHER PUR-
POSES
JULY 28, 2021.—Ordered to be printed
Mr. SCHATZ, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 1471]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the bill,
(S. 1471) to enhance protections of Native American tangible cul-
tural heritage, and for other purposes, having considered the same,
reports favorably thereon without amendment and recommends
that the bill do pass.
PURPOSE
The purpose of S. 1471 is to provide a framework to prevent the
export of Native American cultural items, held in violation of cur-
rent federal laws, for sale in foreign countries; to repatriate such
items from individuals and organizations in possession thereof; and
to improve coordination between federal agencies, Indian Tribes,
and Native Hawaiian Organizations seeking to prevent the export,
sale, and repatriation of such items. To this end, S. 1471 increases
the maximum penalty for trafficking items of Native American cul-
tural heritage in violation of current federal law. S. 1471 also es-
tablishes an interagency working group and a Native working
group of Indian Tribes and Native Hawaiian organizations to en-
sure smooth implementation of the law and consistent communica-
tion between all relevant stakeholders.
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19–010
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NEED FOR LEGISLATION
The federal government has a unique and sacred duty to Indian
Tribes and Native Hawaiians to assist in the protection of cultural
heritage that is essential to preserving cultural, social, and reli-
gious traditions within their communities. S. 1471 provides explicit
restrictions on the export of Native American cultural items in
order to help curb illegal trafficking and sale of such items. With-
out such restrictions, a sophisticated and lucrative international
black market trade in Native cultural heritage will continue to
thrive and Native communities in the United States will continue
to suffer.
For generations, Native American cultural items, including an-
cestral human remains, funerary objects, sacred objects, and ob-
jects of cultural patrimony, have been looted and sold, often in art
auctions, to collectors in the United States and abroad. Although
such items are traded and sold as art, in Native communities they
are irreplaceable pieces of cultural heritage and indispensable to
the preservation, continuation, and in some cases, revitalization of
cultural and religious practices and traditions.
Since the passage of the Native American Graves Protection and
Repatriation Act (NAGPRA) over 30 years ago, there has been in-
creasing awareness among the public, and within the federal gov-
ernment, regarding the profound impact the loss of cultural herit-
age to international art markets has on Native communities. S.
1471 would ensure Native American cultural heritage items ob-
tained in violation of existing federal law are not exported to for-
eign markets, and that cultural items discovered outside of the
United States have a pathway to be returned to their home com-
munity and cultural context.
The theft of certain enumerated Native American cultural herit-
age items is a violation of either NAGPRA, the Archaeological Re-
sources Protection Act (ARPA), or both.1 S. 1471 builds upon
NAGPRA and ARPA by (1) filling an existing gap in federal legisla-
tion that prevents the trafficking and exportation of Native Amer-
ican cultural items and tangible cultural property from the United
States for sale in foreign markets; (2) creating a mechanism for the
voluntary return of cultural items to Native communities; and (3)
improving the coordination between and among Native Americans,
federal agencies, and international partners engaged in repatri-
ation.
BACKGROUND
The ARPA addresses the taking of archaeological resources from
federal and Indian lands through regulation of excavation permit-
ting of archaeological resources on public and Indian lands.2 ARPA
requires that before the federal land manager issues a permit for
excavation on Indian lands, for example, the consent of the Tribe
must be obtained. As part of this process, if activities may result
in the harm to, or destruction of, any cultural or religious site, the
federal land manager must provide notice to any potentially af-
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1 The Native American Graves Protection and Repatriation Act, Pub. L. 101–601, 104 Stat.
3048 (1990) (codified at 25 U.S.C. §§ 3001 et seq.); Archaeological Resources Protection Act of
1979, Pub. L. 96–95, 93 Stat. 721 (1979) (codified as amended at 16 U.S.C. §§ 470aa et seq.).
2 16 U.S.C. § 470cc.
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fected Indian Tribe.3 Applicants are also directed that a permit to
excavate on Indian lands shall include any terms and conditions re-
quested by the Tribe.4 Further, ARPA imposes civil and criminal
penalties on the domestic transport, excavation, transportation,
sale, exchange, removal, or damage archaeological resources, as de-
fined in the Act, without such permit.5
NAGPRA addresses the need for Native Americans to repatriate
ancestral remains, sacred objects, objects of cultural patrimony,
and funerary objects from federal agencies and federally funded in-
stitutions. It also protects those items whether intentionally or in-
advertently discovered on federal or tribal lands.6 In this regard,
NAGPRA was intended to address the rights of lineal descendants,
Indian Tribes, and Native Hawaiians to these cultural items, pro-
vide additional protections to Native American burial sites, and ad-
dress trade in funerary and sacred items taken from tribal and fed-
eral lands.7 To do this, NAGPRA established a process for identi-
fying 8 and repatriating 9 important cultural items and ancestral re-
mains.
The enactment of both ARPA and NAGPRA were milestones in
the federal effort to curb a variety of domestic threats to Native
American cultural items, including theft, trafficking, and sale. Al-
though these laws have created layers of protection in the United
States, Indian Tribes and tribal advocacy groups have identified
key shortcomings, notably the inability to prevent export of these
items for sale in international markets. Two particular incidents
involving the international sale and attempted sale of Native
American cultural items illustrate this particular shortcoming.
In 2013, the Hopi, Pueblo, and Apache Tribes discovered that
several Katsinam, commonly known as Katchinas, were to be sold
at the EVE Auction House in Paris, France. Katsinam are ‘‘friends’’
of utmost importance to these Tribes’ cultural, social, and religious
practices. The Tribes attempted to use diplomacy and the French
legal system to repatriate the items, but both efforts failed and the
auction proceeded. It was only because these items were purchased
by anonymous private parties that many of the Katsinam were ulti-
mately returned to their homelands. Similarly, the attempted sale
of the ‘‘Acoma Shield,’’ also at the EVE Auction House, caused
great harm to the Pueblo of Acoma. The Shield is a sacred, ceremo-
nial item important to Acoma religious societies.10 Pueblo leaders
assert that the ‘‘Shield’’ was stolen in a 1970s during a home rob-
bery on Acoma lands. Decades later, in 2016, the shield surfaced
at the EVE Auction House when it was scheduled for sale. Due to
lack of legal recourse available to the Tribe, broad-scale diplomatic
pleas from Indian tribes, executive branch officials, and members
of Congress resulted in the EVE Auction House withdrawing the
Shield from sale. Conversations between the consignor of the
Shield and the Tribe ultimately led to its return to Acoma Pueblo.
3 16 U.S.C. § 470cc(c).
4 16 U.S.C. § 470cc(g)(2).
5 16 U.S.C. § 470ee.
6 ANAGPRA, supra n. 1.
7 S. Rep No. 101–473, at 3, 5 (1990).
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8 25 U.S.C. § 3003.
9 25 U.S.C. § 3005.
10 Legislative Hearing to Receive Testimony on S. 465 and S. 1400, 115 (2017) (Statement of
the Honorable Kurt Riley, Governor of the Pueblo of Acoma).
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Native American cultural items are vital to the continued exist-
ence and maintenance of Tribal cultural, religious, and social sur-
vival and continuance. The theft, trafficking, and illegal sale of
these items has and continues to cause enormous harm to Native
communities within the United States. The bill, S. 1471, contains
measures that will address omissions in existing federal laws, pro-
vide needed protections against these activities, and improve agen-
cy coordination while meeting the federal government’s trust re-
sponsibility.
LEGISLATIVE HISTORY
In the 114th Congress, Senators Heinrich, Flake, and Udall in-
troduced the ‘‘Safeguard Tribal Objects of Patrimony Act of 2016’’
(i.e. S. 3127). The Committee held an Oversight hearing on ‘‘The
Theft, Illegal Possession, Sale, Transfer and Export of Tribal Cul-
tural Items,’’ on October 18, 2016. No further hearings were held,
and the Committee did not consider the bill prior to adjournment
of the 114th Congress. Representatives Ben Ray Luján and
Michelle Lujan Grisham introduced H.R. 5854, the House com-
panion to S. 3127. The bill was referred to the House Judiciary
Subcommittee on Crime, Terrorism, Homeland Security, and Inves-
tigations. No further action on the bill took place prior to adjourn-
ment.
In the 115th Congress, Senators Heinrich, Flake, McCain,
Schatz, Daines, Tester, Murkowski, and Udall introduced S. 1400,
the ‘‘Safeguard Tribal Objects of Patrimony Act of 2017.’’ On No-
vember, 8, 2017, the Committee held a legislative hearing to re-
ceive testimony on the bill. On May 16, 2018, the Committee or-
dered the bill reported favorably without amendment. No further
action on the bill took place prior to adjournment.
In the 116th Congress, Senators Heinrich, Murkowski, Baldwin,
Daines, Schatz, McSally, Lankford, and Udall introduced the bill,
S. 2165. On June 24, 2020, the Committee held a legislative hear-
ing to receive testimony on the bill. On July 29, 2020, the Com-
mittee ordered the bill reported favorably, with an amendment in
the nature of a substitute, offered by Senator Udall, on behalf of
Senator Heinrich. On December 18, 2020, S. 2165 passed the U.S.
Senate with an amendment from Senator Udall by unanimous con-
sent. The bill was sent to the House of Representatives and held
at the desk. No further action was taken.
Senator Udall’s amendment incorporated the concerns the Com-
mittee received in hearing testimony, as well as extensive feedback
and technical assistance from the U.S. Departments of the Interior,
State, Homeland Security, and Justice. Among other things, the
substitute amendment added language noting that, in the event an
item is found not to have a certification upon export, it will be de-
tained and referred to the Secretary of the Interior to determine
whether the item qualifies as an ‘‘Item Prohibited from Export.’’
Should an item be deemed prohibited from trafficking under fed-
eral law (i.e. NAGPRA or ARPA), that law alone will trigger the
repatriation process that applies until the item is returned to the
appropriate Indian Tribe. The amendment created an exemption in
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the definition of ‘‘Item Requiring Export Certification’’ that allows
Indian Tribes with a cultural affiliation to an item to issue certifi-
cates authorizing exportation, thereby allowing the exporter to
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avoid the federal certification process entirely. Lastly, the amend-
ment authorized $3,000,000 in funding for each of the fiscal years
2021 through 2026 to carry out the provisions in the bill.
In the 117th Congress, Senators Heinrich, Murkowski, Cortez
Masto, Crapo, Luján, Daines, Sinema, Rounds, Rosen, Lankford,
Baldwin, and Sullivan introduced the bill, S. 1471. On May 26,
2021, the Committee held a business meeting to consider the bill
and ordered the bill reported favorably without amendment. Rep-
resentatives Leger Fernandez, Young, Davids, Cole, Pingree, Mast,
Radewagen, and Bass introduced H.R. 2930, the House companion
bill to S. 1471. The bill was referred to the House Judiciary Com-
mittee, Committee on Foreign Affairs, and the Natural Resources
Subcommittee for Indigenous Peoples of the United States. On May
20, 2021, the Subcommittee held a hearing to receive testimony on
the bill. No further action has been taken since that time.
SECTION-BY-SECTION ANALYSIS OF S. 1471 AS ORDERED REPORTED
Section 1. Short title
This section sets forth the title of the bill as the Safeguard Tribal
Objects of Patrimony Act of 2021.
Section 2. Purpose
This section sets forth the purpose of the bill, most notably the
following:
• To increase the maximum penalty for actions taken in vio-
lation of federal law;
• To stop the export, and facilitate the international repatri-
ation, of cultural items prohibited from being trafficked by fed-
eral law;
• To establish a federal framework in order to support the
voluntary return by individuals and organizations of items of
tangible cultural heritage;
• To establish an interagency working group to ensure com-
munication between federal agencies to successfully implement
the bill; and
• To establish a Native working group of Indian Tribes and
Native Hawaiian organizations to assist in the implementation
of this Act.
Section 3. Definitions
This section sets forth the definitions to be used in the bill.
Section 4. Enhanced NAGPRA penalties
This section increases penalties for illegal trafficking in cultural
items, in violation of NAGPRA, with the goal of aiding in deter-
rence and encouraging prosecution of illegal transportation, sale, or
profit of ancestral human remains and cultural items.
Section 5. Export prohibitions; Export certification system; Inter-
national agreements
This section explicitly prohibits the export, or attempted export,
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of Native American cultural items already prohibited from being
trafficked under existing federal law. Section 5 also creates an ac-
companying export certification system and confirms the authority
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of the President to retrieve items from other countries under an ex-
isting 1970 international treaty. This authority will help prevent
the export of federally-protected Native American cultural items,
and will facilitate their repatriation from abroad. Other countries
are often unable to provide aid to Indian Tribes without an explicit
export prohibition and accompanying export certification system.
Subsection (a) prohibits the export of cultural items trafficked in
violation of NAGPRA, and Native American archaeological re-
sources, the trafficking in which is prohibited by the ARPA. Section
(a) creates a criminal penalty for such export, or attempted export,
when a person knew, or reasonably should have known, the item
was illegally taken, possessed, or sold. It also authorizes detention,
forfeiture, and repatriation to the appropriate Indian Tribe or Na-
tive Hawaiian organization.
Subsection (b) prohibits export of a cultural item (defined under
NAGPRA), or a Native American archaeological resources (defined
under ARPA), without an export certification obtained from the De-
partment of the Interior. This subsection also states that cultural
items, and Native American archaeological resources, may receive
an export certification when (1) they are not under ongoing federal
investigation, (2) are not covered by NAGPRA or ARPA’s trafficking
prohibitions, and (3) their export would not otherwise be unlawful.
Subsection (b) also requires exporters to submit applications to
the Department of the Interior, and self-attest that an item is not
prohibited from trafficking under NAGPRA or ARPA is sufficient
evidence to support the application. It authorizes civil penalties for
the export or attempted export of a cultural item without an export
certification, as well as detention, and, when found to be covered
by NAGPRA or ARPA’s trafficking prohibitions, authorizes for-
feiture and repatriation. This subsection also prohibits the prosecu-
tion of an individual attempting to export a cultural item without
a permit if that person, in accordance with Section 6, voluntarily
returns, or directs the return of, a cultural item prior to the com-
mencement of a federal investigation into the attempted export.
Subsection (c) reaffirms the authority of the President to enter
into agreements with other countries regarding Native American
cultural heritage items. The U.S. is a signatory to a 1970 inter-
national treaty under which countries may enter into agreements
for the return of cultural property if the requesting country has an
explicit export prohibition and certification system. The U.S. has
enacted a federal statute under which it returns cultural property
to other countries, but has not utilized the treaty to retrieve cul-
tural property originating within its own borders.11 The bill would
allow the U.S. to utilize the mechanisms under the 1970 inter-
national treaty to retrieve Tribal cultural heritage items from
abroad.
Section 6. Voluntary return of Tangible Cultural Heritage
This section creates a voluntary return framework through which
individuals and organizations seeking to voluntarily return ‘‘Tan-
gible Cultural Heritage,’’ as defined in the act, may receive federal
assistance in locating the Indian Tribes or Native Hawaiian organi-
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zations with a cultural affiliation to the items. Tangible cultural
11 19 U.S.C. §§ 2601 et seq.
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heritage includes Native American human remains and culturally,
historically, or archaeologically significant objects, resources, pat-
rimony, or other items that are affiliated with a Native American
culture. Tangible cultural heritage also extends beyond items pro-
tected under existing federal law.
Subsections (a) through (c) call on the Departments of the Inte-
rior, and State, to create the infrastructure to facilitate the vol-
untary return of tangible cultural heritage to Indian Tribes and
Native Hawaiian organizations by individuals and organizations.
Subsection (d) clarifies that there will be no additional penalties
or legal liabilities imposed beyond what is specified in the bill, and
Subsection (e) directs the Department of the Interior to provide the
individual, or organization returning the item, with tax documenta-
tion for a deductible gift.
Subsection (f) mandates that the voluntary return framework is
not applicable to items subject to NAGPRA’s repatriation process
for federal agencies and museums.
Section 7. Interagency working group
Creates an interagency working group consisting of representa-
tives from the Departments of the Interior, Justice, State, and
Homeland Security. The function of the Working Group is to pro-
tect tangible cultural heritage, cultural items, and archaeological
resources; facilitate repatriation of items illegally removed or traf-
ficked in violation of existing federal law; and improve federal im-
plementation of NAGPRA, ARPA, and other relevant federal laws.
Federal agencies currently collaborate without statutory mandate,
but a framework for their ongoing collaboration and mechanisms
by which Indian Tribes and Native Hawaiian organizations can
more easily interact with them are necessary.
Section 8. Native working group
This section creates a Native working group through which rep-
resentatives of Indian Tribes and Native Hawaiian organizations
advise the federal government regarding the sensitive issue of pro-
tection of Tribal cultural items and make requests for federal as-
sistance.
Section 9. Treatment under Freedom of Information Act
This section creates an exemption from disclosure under the
Freedom of Information Act for sensitive information provided
under the bill.
Subsections (a) and (b) exempt from disclosure information sub-
mitted by Indian Tribes or Native Hawaiian organizations pursu-
ant to the bill, and designated as sensitive or private. Also exempt
is information submitted by any person pursuant to the bill that
relates to a Tribal cultural heritage item for which an export cer-
tification is denied. In exempting this information, Indian Tribes
and Native Hawaiian organizations are more likely to provide nec-
essary sensitive information to the federal government, and infor-
mation provided that may otherwise be used to authenticate an
item will not increase that item’s value on the black market.
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Subsection (c) allows an Indian Tribe or Native Hawaiian organi-
zation to request from a federal agency its own information it pro-
vided under the bill.
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Section 10. Regulations
This section directs the Department of the Interior to promulgate
regulations implementing the bill, in consultation with the Depart-
ments of State, Homeland Security, and Justice, and after con-
sultation with Indian Tribes and Native Hawaiian organizations.
Section 11. Authorization of appropriations
This section authorizes $3,000,000 in funding for each of the fis-
cal years 2021 through 2026 to carry out the bill.
COST AND BUDGETARY CONSIDERATIONS
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, July 27, 2021.
Hon. BRIAN SCHATZ,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-
pared the enclosed cost estimate for S. 1471, the Safeguard Tribal
Objects of Patrimony Act of 2021.
If you wish further details on this estimate, we will be pleased
to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
PHILLIP L. SWAGEL,
Director.
Enclosure.
S, 1471, Safeguard Tribal Objects of Patrimony Act of 2021
As ordered reported by the Senate Committee on Indian Affairs on May 26, 2021
By Fiscal Year, Millions of Dollars 2021 2021-2026 2021-2031
Direct Spending (Outlays) 0
Revenues 0
Increase or Decrease (-)
in the Deficit 0
Spending Subject to
Appropriation (Outlays) 0 13 not estimated
Statutory pay-as-you-go
procedures apply? No Mandate Effects
Increases on-budget deficits in any Contains intergovernmental mandate? No
of the four consecutive 10-year No
periods beginning in 2032? Contains prlvate~sector mandate? Yes, Under
Threshold
•=between -$500,000 and $500,000:
S. 1471 would make it a federal crime to export Native American
cultural items, archaeological resources, and objects of antiquity
without proper authorization and would require exporters to obtain
an export certification. Federal agencies would need to convene
working groups to reduce trafficking and encourage repatriation of
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cultural heritage items. The bill also would direct the Department
of the Interior (DOI) and the Department of State to designate liai-
sons to facilitate voluntary returns of unlawfully acquired items.
Insert offset folio 8 here SR33.001
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Those agencies would provide training to tribal organizations, col-
lectors, and dealers concerning the new prohibitions.
S. 1471 would authorize the appropriation of $3 million annually
over the 2021–2026 period to carry out the bill’s requirements.
CBO assumes that the bill will be enacted late in fiscal year 2021
and expects that federal agencies would begin incurring costs in
2022. Based on spending patterns for similar activities, CBO esti-
mates, implementing S. 1471 would cost about $13 million over
that period, assuming appropriation of the authorized amounts.
In addition, S. 1471 would authorize DOI to charge fees to cover
the costs of issuing export certifications. Those fees would be re-
corded as revenues and could be spent without appropriation. CBO
expects the number of applications to be small and that the
amount of fees collected and spent would be insignificant in each
year.
People who violate the bill’s provisions could be subject to crimi-
nal fines. Criminal fines are recorded as revenues, deposited in the
Crime Victims Fund, and later spent without further appropria-
tion. CBO expects that any additional revenues and subsequent di-
rect spending would not be significant because the legislation
would probably affect only a small number of cases.
The costs of the legislation, detailed in Table 1, fall within budg-
et functions 150 (international affairs), 450 (community and re-
gional development), and 750 (administration of justice).
TABLE 1.—ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER S. 1471
By fiscal year, millions of dollars—
2021 2022 2023 2024 2025 2026 2021–2026
Authorization ........................................................ 3 3 3 3 3 3 18
Estimated Outlays ............................................... 0 2 2 3 3 3 13
S. 1471 would impose a private-sector mandate as defined in the
Unfunded Mandates Reform Act (UMRA), by requiring exporters of
eligible Native American cultural items to obtain an export certifi-
cation. According to the Government Accountability Office, fewer
than 1,500 such items were identified at overseas auctions between
2012 and 2017. Using that information, CBO estimates that the
number of affected exporters would be small; thus, the aggregate
cost of the mandate would fall under the threshold established in
UMRA for private-sector mandates ($170 million in 2021, adjusted
annually for inflation).
The CBO staff contacts for this estimate are Jon Sperl (for fed-
eral costs) and Lilia Ledezma (for mandates). The estimate was re-
viewed by H. Samuel Papenfuss, Deputy Director of Budget Anal-
ysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the Sen-
ate requires each report accompanying a bill to evaluate the regu-
latory and paperwork impact that would be incurred in carrying
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out the bill. The Committee believes that S. 1471 will have mini-
mal impact on regulatory or paperwork requirements.
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EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the Execu-
tive Branch regarding S. 1471.
CHANGES IN EXISTING LAW
On February 11, 2021 the Committee unanimously approved a
motion to waive subsection 12 of rule XXVI of the Standing Rules
of the Senate. In the opinion of the Committee, it is necessary to
dispense with subsection 12 of rule XXVI of the Standing Rules of
the Senate to expedite the business of the Senate.
Æ
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