[House Report 115-33]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-33
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VETERANS 2ND AMENDMENT PROTECTION ACT
_______
March 10, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Roe of Tennessee, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1181]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 1181) to amend title 38, United States Code, to
clarify the conditions under which certain persons may be
treated as adjudicated mentally incompetent for certain
purposes, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Subcommittee Consideration....................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
Statement of General Performance Goals and Objectives............ 4
New Budget Authority, Entitlement Authority, and Tax Expenditures 5
Earmarks and Tax and Tariff Benefits............................. 5
Committee Cost Estimate.......................................... 5
Congressional Budget Office Estimate............................. 5
Federal Mandates Statement....................................... 6
Advisory Committee Statement..................................... 6
Constitutional Authority Statement............................... 6
Applicability to Legislative Branch.............................. 6
Statement on Duplication of Federal Programs..................... 6
Disclosure of Directed Rulemaking................................ 6
Section-by-Section Analysis of the Legislation................... 7
Changes in Existing Law Made by the Bill as Reported............. 7
Dissenting Views................................................. 9
Purpose and Summary
H.R. 1181, the ``Veterans Second Amendment Protection
Act,'' was introduced by Representative David P. Roe, M.D., of
Tennessee, Chairman of the Committee on Veterans' Affairs, on
February 16, 2017. This bill would protect veterans' Second
Amendment rights by prohibiting the Secretary from sending the
name of an individual to the Federal Bureau of Investigation
for inclusion on the National Instant Criminal Background Check
System, unless there has been a specific determination by a
judge, magistrate, or other judicial authority that such
individual is a danger to himself or others.
Background and Need for Legislation
If there is evidence that a veteran is unable to manage his
or her veterans' benefits, the Department of Veterans Affairs'
(VA) may appoint a fiduciary. Before appointing a fiduciary, VA
provides notice to the veteran that the Department proposes to
determine that the beneficiary is incompetent and may need a
fiduciary. Additionally, VA notifies the veteran that he or she
has the right to request a hearing. If the veteran does choose
to have a hearing, a VA employee presides over the proceedings.
However, the hearing only reviews evidence that would
inform a judgment about whether a beneficiary is capable of
managing his or her VA benefit payments. The hearing does not
address whether a beneficiary presents a danger to himself/
herself or others, or whether the beneficiary should be
prohibited from purchasing, possessing, or operating a firearm.
Although it may be appropriate for VA to appoint a
fiduciary to help certain veterans with their finances, the
decision has serious unintended consequences for the veteran.
The Brady Act requires federal agencies, upon the request of
the Attorney General, to submit to the Federal Bureau of
Investigation (FBI) information on persons prohibited from
purchasing a firearm.\1\ The Attorney General made such request
of VA in 1998. In response, VA has provided the FBI with
information about VA beneficiaries who are determined to be
mentally incompetent because they are unable to manage their
financial affairs pursuant to 38 C.F.R. 3.353.\2\
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\1\Brady Handgun Violence Prevention Act of 1993 (Brady Act, P.L.
103-159, Sec. 103(e)(1)).
\2\38 C.F.R. Sec. 3.353 provides that ``a person is mentally
incompetent person is one who because of injury or disease lacks the
mental capacity to contract or to manage his or her own affairs,
including disbursement of funds without limitation.''
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Accordingly, after a finding of incompetency, VA sends the
beneficiary's name to the FBI to be added to the National
Instant Criminal Background Check System (NICS).\3\ Thus, the
veteran, who may simply need assistance managing his or her
finances, is prohibited from purchasing or owning a firearm.
Although VA does allow beneficiaries to apply to the Department
for relief from the firearms prohibition, it is a VA employee--
not a judge or magistrate--who determines whether such relief
should be granted.
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\3\Department of Veterans Affairs, M21-1 Adjudication Procedures
Manual, Section III.v.9.B.4.a.
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The Committee notes that VA's decision to report a
beneficiary to the FBI for inclusion on NICS is not considered
a decision on a benefit provided by law. Therefore, VA does not
have a duty to assist the beneficiary with any request for
relief. As such, the burden of proof is on the beneficiary
requesting relief, and if the veteran fails to provide clear
and convincing evidence that he or she is not prone to
violence, VA will deny the request for relief.\4\
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\4\Department of Veterans Affairs, M21-1 Adjudication Procedures
Manual, Section III.v.9.B.4.c. Federal law at 38 U.S.C. Sec. 5103A
requires VA to assist claimants in obtaining evidence necessary to
substantiate their claims for benefits.
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Veterans, who were willing to lay down their lives to
protect our constitutional rights, should not be deprived of
their Second Amendment rights without a proceeding before a
judicial authority. A hearing before a judge or magistrate
would ensure that the veteran's due process rights are
protected before any action is taken that would deprive him or
her of fundamental constitutional rights.
Unfortunately, VA's decision to report the names of
veterans to the FBI reinforces the erroneous perception that
people with mental disabilities are to be feared. VA's goal
should be to make veterans whole and encourage them to return
to their former activities, including those that may involve a
firearm, such as hunting and shooting. Instead, VA is
reinforcing the stereotype that those who suffer from mental
disabilities are by nature, dangerous and may be violent. Even
worse, VA's policy may discourage some veterans from seeking VA
services, such as healthcare or mental health counseling,
because they are concerned that they would lose their Second
Amendment rights.
Furthermore, the Department has not provided any evidence
that individuals who need help managing their finances are more
likely than the general population to be a danger to themselves
or others. Therefore, there is no justification for denying
veterans and VA beneficiaries of their right to due process,
before they are deprived of the rights guaranteed by the Second
Amendment to the Constitution of the United States.
Additionally, some recreational therapy programs have
discovered that hunting trips can be therapeutic for veterans
with physical and psychological disabilities. For example, a
recreational therapy program at the VA Grand Junction Medical
Center in Colorado has been organizing shooting and hunting
trips for veterans who suffer from physical and mental
disabilities.
Accordingly, H.R. 1181 would clarify that in any case
arising out of VA's administration of benefits under title 38
of the United States Code, a VA beneficiary who is deemed
unable to manage his or her finances shall not be considered
adjudicated as a mental defective under the Gun Control Act of
1968 (P.L. 90-618) without the order or finding of a judge,
magistrate, or other judicial authority of competent
jurisdiction that such individual is a danger to himself or
herself or others.
H.R. 1181 is supported by The American Legion; the Veterans
of Foreign Wars of the United States; AMVETS, also known as the
American Veterans; and, the National Rifle Association.
Hearings
There were no Subcommittee or full Committee hearings held
on H.R. 1181.
Subcommittee Consideration
There was no Subcommittee consideration of H.R. 1181.
Committee Consideration
On March 8, 2017, the full Committee met in open markup
session, a quorum being present, and ordered H.R. 1181 reported
favorably to the House of Representatives by voice vote. During
consideration of the bill, the following amendment was
considered:
An amendment offered by Ms. Elizabeth Esty of
Connecticut that would strike all after the enacting
clause and, instead, require the U.S. Government
Accountability Office (GAO) to conduct a study, issue a
report, and make recommendations on the operation of
the NICS list with respect for veterans. Such study
would include an analysis of VA's procedures for
submitting names to NICS; an assessment of how VA's
current practices will be impacted by the changes in
the fiduciary appointment process mandated by the 21st
Century Cures Act; a breakdown by all service-connected
disabilities of veterans whose names have been reported
to the NICS list; and, the number of veterans who have
committed suicide using firearms, even though such
veterans were prohibited from possessing firearms. The
amendment was defeated by voice vote.
A motion by Representative Mike Coffman of Colorado to
report H.R. 1181 favorably to the House of Representatives was
agreed to by voice vote.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, no recorded votes were taken on
amendments or in connection with ordering H.R. 1181, reported
to the House.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are to protect veterans' Second Amendment
rights by prohibiting the Secretary of the Department of
Veterans Affairs from sending the name of an individual to the
Federal Bureau of Investigation for inclusion on the National
Instant Criminal Background Check System, without the finding
or order of a judicial authority of competent jurisdiction that
such individual is a danger to himself or herself or others.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Earmarks and Tax and Tariff Benefits
H.R. 1181 does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own the cost estimate on H.R.
1181 prepared by the Director of the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974.
Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
for H.R. 1181 provided by the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 10, 2017.
Hon. Phil Roe, M.D.,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1181, the Veterans
2nd Amendment Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Keith Hall.
Enclosure.
H.R. 1181--Veterans 2nd Amendment Protection Act
H.R. 1181 would modify an existing requirement that certain
individuals determined to be mentally incompetent by the
Department of Veterans Affairs (VA) be prohibited from
purchasing or possessing legal firearms. CBO expects that
implementing H.R. 1181 would have no significant budgetary
effect.
Under current law, when VA deems individuals to be mentally
incapacitated, mentally incompetent, experiencing an extended
loss of consciousness, or otherwise unable to manage their own
affairs, the department is required to provide that information
to the Department of Justice (DOJ). Such individuals are then
added to the list of those prohibited from purchasing or
possessing firearms. Under H.R. 1181, a judicial authority
would have to determine that veterans are dangerous before VA
would be required to report them to DOJ. CBO expects that such
a requirement would have an insignificant effect on VA's
workload.
Enacting H.R. 1181 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 1181 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1181 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Dwayne M.
Wright. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 1181, prepared by the Director of the
Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
1181.
Constitutional Authority Statement
Pursuant to Article I, section 8 of the United States
Constitution, H.R. 1181 is authorized by Congress' power to
``provide for the common Defense and general Welfare of the
United States.''
Applicability to Legislative Branch
The Committee finds that H.R. 1181 does not relate to the
terms and conditions of employment or access to public services
or accommodations within the meaning of section 102(b)(3) of
the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 1181 establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rulemaking
Pursuant to section 3(i) of H. Res. 5, 115th Cong. (2017),
the Committee estimates that H.R. 1181 contains no directed
rule making that would require the Secretary to prescribe
regulations.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 cites the short title of H.R. 1181, to be the
``Veterans Second Amendment Protection Act.''
Section 2. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes
Section 2(a) would amend chapter 55 of title 38, U.S.C., by
preventing a person who is mentally incapacitated, deemed
mentally incompetent, or experiencing an extended loss of
consciousness from being considered adjudicated as a mental
defective under subsection (d)(4) or (g)(4) of section 922 of
title 18, U.S.C., without the order or finding of a judge,
magistrate, or other judicial authority of competent
jurisdiction that such person is a danger to himself or herself
or others.
Section 2(b) would provide a clerical amendment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
* * * * * * *
CHAPTER 55--MINORS, INCOMPETENTS, AND OTHER WARDS
Sec.
5501. Commitment actions.
* * * * * * *
5501B. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes.
* * * * * * *
Sec. 5501B. Conditions for treatment of certain persons as adjudicated
mentally incompetent for certain purposes
Notwithstanding any determination made by the Secretary under
section 5501A of this title, in any case arising out of the
administration by the Secretary of laws and benefits under this
title, a person who is mentally incapacitated, deemed mentally
incompetent, or experiencing an extended loss of consciousness
shall not be considered adjudicated as a mental defective under
subsection (d)(4) or (g)(4) of section 922 of title 18 without
the order or finding of a judge, magistrate, or other judicial
authority of competent jurisdiction that such person is a
danger to himself or herself or others.
* * * * * * *
DISSENTING VIEWS
We have serious concerns over H.R. 1181. We believe this
legislation, in practice, would instantly remove all
individuals previously determined to be mentally incompetent by
the Department of Veterans Affairs (VA) Secretary from the
National Instant Criminal Background Check System (NICS),
making it easier, not harder, for those veterans in crisis to
obtain firearms. Many of those who will be removed from the
NICS database include veterans with serious mental illnesses
and who are at increased risk of committing suicide by
firearm.\1\ Additionally, the bill seeks to jettison the
carefully crafted bipartisan compromise in the 21st Century
Cures Act\2\ enacted in December 2016 that codified VA
implementation of the bipartisan NICS Improvement Amendments
Act of 2007 (NIAA).\3\ Instead, H.R. 1181 would require the VA
to take a veteran to court to get a determination under a
standard that would be in effect nearly impossible to meet.
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\1\Department of Veterans Affairs Office of Suicide Prevention,
Suicide Among Veterans and Other Americans 2001-2014, August 3, 2016.
Available at http://www.mentalhealth.va.gov/docs/
2016suicidedatareport.pdf.
\2\P.L. 114-255, December 13, 2016; 130 Stat. 1307; codified at 38
U.S.C. Sec. 5501A.
\3\P.L. 110-180, January 8, 2008; 121 Stat. 2559.
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A VA study last year confirmed that 20 veterans and
military service members commit suicide every day.\4\ According
to the VA, 66 percent of suicides committed by veterans are by
firearms.\5\ Under current law and regulations, the name of a
veteran determined by the VA to be ``mentally incompetent'' and
appointed a fiduciary by the VA to manage the veteran's VA
monetary benefits\6\ is provided to the Federal Bureau of
Investigation for inclusion in the NICS.\7\ For a veteran in
crisis or suffering with a mental health condition or suffering
from suicidal ideation, this practice can save a life.
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\4\Department of Veterans Affairs Office of Suicide Prevention,
Suicide Among Veterans and Other Americans 2001-2014, August 3, 2016.
Available at http://www.mentalhealth.va.gov/docs/
2016suicidedatareport.pdf.
\5\VA Suicide Prevention Program, Facts About Veteran Suicide,
July, 2016. Available at https://www.va.gov/opa/publications/
factsheets/Suicide_Prevention_FactSheet_New_VA_
Stats070616_1400.pdf.
\6\38 C.F.R. Sec. 3.353.
\7\The authority for the VA to refer the names of beneficiaries
determined to be incompetent to the FBI for inclusion in the NICS is
described in Department of Veterans Affairs, M21-1 Adjudication
Procedures Manual, Section III.v.9.B.4.a., http://
www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/
#!portal/554400000001018/topic/554400000004049/M21-1-Adjudication-
Procedures-Manual. The Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF), also noted in its final rule implementing the NICS
under the Brady Act that the inclusion of ``mentally incompetent'' in
the definition of ``mental defective'' was wholly consistent with the
legislative history of the 1968 Gun Control Act (Federal Register, vol.
61, no. 174, September 6, 1996, p. 47095) and that VA correctly
interpreted the ATF's definition of ``adjudicated as a mental
defective'' to include persons determined to be ``mentally
incompetent'' and appointed a fiduciary by the VA (Federal Register,
vol. 62, no. 124, June 27, 1997, p. 34634).
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Just last December, in the wake of tragic shootings at
Virginia Polytechnic Institute and State University (Virginia
Tech) in Blacksburg, Virginia in 2007, Sandy Hook Elementary
School in Newtown, Connecticut in April 2013, and mass
shootings in San Bernardino, CA in December 2015 and Orlando,
FL in June 2016, Congress passed the 21st Century Cures Act,
which carefully refined, in a bipartisan and bicameral effort,
legislation to prevent veterans who pose a danger to themselves
and others from obtaining firearms. The 21st Century Cures Act
established a fair process to ensure due process for veterans
deemed ``mentally incompetent'' by the VA and appointed a
fiduciary. It allows veterans to present evidence from a mental
health professional and be represented by counsel at
incompetency hearings.\8\
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\8\P.L. 114-255, December 13, 2016; 130 Stat. 1307; codified at 38
U.S.C. Sec. 5501A.
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Just three months after the passage of the 21st Century
Cures Act, H.R. 1181 would yet again change the standard by
requiring the VA to obtain a court determination that the
veteran is a danger to self or others before the VA could
provide the name of the veteran to the NICS. The language in
H.R. 1181(a) states:
``[A] person who is mentally incapacitated, deemed
mentally incompetent, or experiencing an extended loss
of consciousness shall not be considered adjudicated as
a mental defective under subsection 17(d)(4) or (g)(4)
of section 922 of title 18 without the order or finding
of a judge, magistrate, or other judicial authority of
competent jurisdiction that such person is a danger to
himself or herself or others.''\9\
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\9\H.R. 1181(a).
This appears to apply both prospectively and retroactively,
as the VA Secretary's previous adjudication of a veteran's
mental incompetence in compliance with the NICS Improvement
Amendments Act of 2007\10\ would no longer apply. This would
immediately remove over 174,000 records, allowing easy access
to firearms for many individuals in crisis and suffering from
serious mental illnesses like dementia, schizophrenia, and
long-term severe post-traumatic stress disorder (PTSD).
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\10\P.L. 103-159, Section 103(e). To strengthen the Attorney
General's authority to secure from any department or agency of the U.S.
government information on persons who are prohibited from possessing or
receiving a firearm under federal or state law.
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With enactment of the bipartisan 21st Century Cures Act,
the VA may not make a determination on the mental capacity of a
veteran unless the veteran is provided:
``(1) Notice of the proposed adverse determination
and the supporting evidence.
(2) An opportunity to request a hearing.
(3) An opportunity to present evidence, including an
opinion from a medical professional or other person, on
the capacity of the beneficiary to manage monetary
benefits paid to or for the beneficiary by the
Secretary under this title.
(4) An opportunity to be represented at no expense to
the Government (including by counsel) at any such
hearing and to bring a medical professional or other
person to provide relevant testimony at any such
hearing.''\11\
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\11\P.L. 114-255, December 13, 2016; 130 Stat. 1307; codified at 38
U.S.C. Sec. 5501A.
This requirement ensures veterans with a mental condition
that may require appointment of a fiduciary are given a fair
process before that determination is made, and before their
names are sent to NICS. Additionally, this process does not
remove a veteran's ability to appeal the VA's referral of his
or her name to NICS, even after being appointed a fiduciary.
The issue of veterans' suicide is too important to rush
through this bill without a hearing or proper time to consider
its full implications. We agree that the current practice of
information sharing between the VA and NICS may be over
inclusive and that alternatives should be explored that would
more appropriately balance veterans' Second Amendment rights
with ensuring that veterans who pose a danger to themselves or
to others do not have access to firearms. However, this bill is
not the solution. This bill was not considered through regular
order and was rushed to a full committee markup. This gave us
only 48 hours to review the legislation. This bill has not
received a legislative hearing and has not been marked up in
Subcommittee. No discussion, research, or investigation has
occurred on the issue subsequent to passage of the 21st Century
Cures Act.
This is why we supported an amendment during the full
Committee markup that we believe would have given us an
opportunity to better study the impact of the 21st Century
Cures Act and the VA's existing practices for submitting
records of veterans to NICS. The Government Accountability
Office would conduct a study to give us better data and
information to craft legislation that achieves both goals of
protecting veterans in crisis and protecting veterans' Second
Amendment rights.
Elizabeth H. Esty.
Scott H. Peters.
Mark Takano.
Julia Brownley.
Kathleen M. Rice.
Ann M. Kuster.
[all]