[Pages S128-S241]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. REID (for himself, Mr. Durbin, Mr. Brown of Ohio, Mrs.
Gillibrand, Mr. Coons, Mrs. Boxer, Mr. lautenberg, Mr. Begich,
Mrs. Shaheen, and Mr. Akaka):
S. 1. A bill to strengthen the economic competitiveness of the United
States; to the Committee on Finance.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Competitiveness
Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) eliminate tax loopholes that encourage companies to
ship American jobs overseas;
(2) expand markets for United States exports by enforcing
trade laws, stopping unfair currency manipulation, and
opening up new markets for products made in the United
States;
(3) promote the development of new, innovative products
bearing the inscription ``Made in America'' by creating tax
incentives to support United States industries and funding
research and education programs to support and train workers
in those newly developed areas;
(4) modernize and improve the highways, bridges, and
transit systems of the United States to reduce congestion and
the negative impacts of congestion on productivity and the
communities of the United States;
(5) modernize and upgrade the rail, levees, dams, and ports
of the United States to get commerce flowing farther and
faster;
(6) place computers in classrooms to ensure that all
children in the United States have the tools they need to be
the innovators of tomorrow;
(7) ensure that small businesses and households in the
United States have access to high-speed broadband;
(8) invest in critical new infrastructure, such as a
national energy grid, to reduce energy waste and promote the
use of renewable energy sources; and
(9) streamline regulatory policies that unnecessarily put
the United States at a competitive disadvantage.
______
By Mr. REID (for himself, Mr. Durbin, Mrs. Feinstein, Mr. Brown
of Ohio, Mr. Kerry, Mrs. Gillibrand, Mrs. Boxer, Mr.
Lautenberg, and Mr. Akaka):
S. 2. A bill to help middle class families succeed; to the Committee
on Finance.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Middle Class Success Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) support middle class tax relief;
(2) help families afford the cost of college and improve
opportunities for a secure retirement;
(3) invest in infrastructure and other measures to create
good, well-paying jobs;
(4) help ensure that families have access to affordable
child and elder care;
(5) preserve and improve affordable health care;
(6) ensure that all workers earn enough to meet basic
living standards and do not live in poverty;
(7) ensure that tax dollars do not support companies that
break the law or mistreat their workers;
(8) keep Social Security's promise and block proposals to
privatize the program;
(9) ensure that families have access to a healthy and clean
environment, including access to safe drinking water;
(10) ensure that workers can secure representation without
employer obstruction;
(11) ensure that our streets and communities are safe; and
(12) address the serious housing problems facing many
American families.
______
By Mr. REID (for himself, Mr. Durbin, Mrs. Feinstein, Mr. Brown
of Ohio, Mr. Kerry, Mr. Bennet, Mrs. Gillibrand, Mr. Coons,
Mrs. Boxer, and Mrs. Shaheen):
S. 3. A bill to promote fiscal responsibility and control spending;
to the Committee on Finance.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fiscal Responsibility and
Spending Control Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) address the growing public concern about our rising
national debt and long-term fiscal challenges through a
bipartisan agreement that--
(A) significantly corrects our Nation's long-term fiscal
imbalances and closes the gap between projected revenues and
expenditures;
(B) ensures the economic security of the United States; and
(C) enhances future prosperity and growth for all
Americans;
(2) reduce the Federal deficit and stabilize the national
debt without damaging the economic recovery;
(3) consider deficit reduction proposals recently developed
by leading budget experts, including various members of the
National Commission on Fiscal Responsibility and Reform, and
establish a plan that can attract broad bipartisan support;
(4) ensure that any plan to address our Nation's long-term
fiscal problems is balanced and provides fundamental reform
of the Federal tax code along with prudent controls on
spending;
(5) lower tax rates and raise Federal revenues by
eliminating tax expenditures that only serve special
interests, as well as take aggressive measures to close the
tax gap and stop cheating;
(6) ensure that the Federal tax code fairly distributes the
tax burden and helps American businesses compete in the
global marketplace;
(7) extend the solvency of Social Security for its own sake
and ensure that no savings are used to meet deficit reduction
goals in the remainder of the budget;
(8) achieve savings through the elimination or
consolidation of duplicative Federal programs and activities
while also modernizing Federal procurement practices in order
to reduce waste and leverage better value out of every dollar
spent by the Federal Government; and
(9) reject efforts to exempt tax breaks for millionaires
and special interests from strong pay-as-you-go budgetary
rules.
______
By Mr. REID (for himself, Mr. Bingaman, Mr. Brown of Ohio, Mr.
Durbin, Mr. Kerry, Mr. Bennet, Mrs. Gillibrand, Mr. Coons, Mrs.
Boxer, Mr. Lautenberg, Mrs. Shaheen, and Mr. Akaka):
S. 4. A bill to make America the world's leader in clean energy; to
the Committee on Finance.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 4
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Make America the World's
Leader in Clean Energy Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) promote investment in clean energy jobs and industries;
(2) free the United States from dependence on oil,
especially foreign oil;
(3) reduce costs and pollution by promoting energy
efficiency;
(4) promote clean energy by retooling the infrastructure
and workforce of the United States;
(5) ensure the Federal Government is a leader in reducing
pollution, promoting the use of clean energy sources, and
implementing energy efficient practices;
(6) reduce harmful energy-related air, land, and water
pollution; and
(7) eliminate wasteful tax subsidies that promote
pollution.
______
By Mr. REID (for himself, Mr. Durbin, Mr. Wyden, Mr. Brown of
Ohio, Mr. Bennet, Mrs.
[[Page S129]]
Gillibrand, Mr. Coons, Mr. Inouye, Mrs. Boxer, Mr. Lautenberg,
Mr. Begich, Mrs. Shaheen, and Mr. Akaka):
S. 5. A bill to reform schools and give America's children the tools
they need to succeed; to the Committee on Health, Education, Labor, and
Pensions.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 5
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Reform America's Schools to
Educate the Leaders of the Future Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) ensure that all students have equitable access to a
high-quality, well-rounded education that prepares them to
succeed in college and a career;
(2) fix No Child Left Behind's accountability system while
continuing to focus on the success of all students;
(3) provide States and districts the resources to turn
around our lowest performing schools;
(4) collaborate with teachers to put in place systems to
measure teacher quality and supports to help teachers improve
student achievement; and
(5) promote programs that encourage parent engagement,
community involvement, and youth development.
______
By Mr. REID (for himself, Mr. Durbin, Mr. Leahy, Mrs. Feinstein,
Mr. Brown of Ohio, Mr. Kerry, Mr. Bennet, Mrs. Gillibrand, Mrs.
Boxer, and Mr. Lautenberg):
S. 6. A bill to reform America's broken immigration system; to the
Committee on the Judiciary.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 6
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Reform America's Broken
Immigration System Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) fulfill and strengthen our Nation's commitments
regarding border security;
(2) pass legislation to support our national and economic
security, such as the DREAM Act, which would allow students
who came to America before turning 16 to earn citizenship by
attending college or joining the armed forces, and AgJobs,
which would help to ensure a stable and legal agricultural
workforce and protect the sustainability of the American
agricultural industry;
(3) implement a rational legal immigration system to ensure
that the best and brightest minds of the world can come to
the United States and create jobs for Americans while, at the
same time, safeguarding the rights and wages of American
workers;
(4) require all United States workers to obtain secure,
tamper-proof identification to prevent employers from hiring
people here illegally, and toughen penalties on employers who
break labor and immigration laws;
(5) hold people accountable who are currently here
illegally by requiring them to either earn legal status
through a series of penalties, sanctions, and requirements,
or face immediate deportation; and
(6) adopt practical and fair immigration reforms to help
ensure that families are able to be together.
______
By Mr. REID (for himself, Mr. Durbin, Mr. Brown of Ohio, Mrs.
Gillibrand, Mrs. Boxer, and Mr. Lautenberg):
S. 7. A bill to reform the Federal tax code; to the Committee on
Finance.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 7
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Comprehensive and Fair Tax
Reform Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) simplify and shrink the tax code to reduce burdens on
taxpayers and businesses;
(2) eliminate wasteful tax breaks for special interests and
remove corporate tax loopholes;
(3) get rid of extra tax breaks for millionaires and
billionaires; and
(4) crack down on cheaters and close the tax gap.
______
By Mr. REID (for himself, Mr. Durbin, Mr. Brown of Ohio, Mr.
Bennet, Mrs. Gillibrand, Mr. Coons, Mrs. Boxer, Mr. Lautenberg,
Mr. Begich, and Mr. Akaka):
S. 8. A bill to strengthen America's national security; to the
Committee on Foriegn Relations.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 8
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tough and Smart National
Security Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) ensure that members of the Armed Forces, particularly
those serving in Afghanistan and Iraq, and veterans get the
support they need and deserve;
(2) work with the President to attack al Qaeda and other
terrorist groups with a comprehensive military, intelligence,
homeland security, law enforcement, and diplomatic strategy;
(3) confront the nuclear threat from Iran and North Korea;
(4) enhance the tools of the United States Government for
pursuing key national security interests, including fighting
terrorism, preventing failed states, thwarting global
pandemics, promoting democracy and development, securing
nuclear materials and preventing nuclear proliferation, and
combating narco-trafficking and drug-related violence around
the world, including along our border with Mexico; and
(5) reform cybersecurity policy to prevent cyber attacks on
the United States Government and critical infrastructure,
protect privacy and civil liberties, and implement mechanisms
necessary to avert and respond to catastrophic cyber
incidents.
______
By Mr. REID (for himself, Mr. Durbin, Mr. Wyden, Mr. Brown of
Ohio, Mr. Kerry, Mr. Bennet, Mrs. Gillibrand, Mrs. Boxer, Mr.
Lautenberg, Mr. Begich, and Mr. Akaka):
S. 9. A bill to reform America's political system and eliminate
gridlock that blocks progress; to the Committee on Rules and
Administration.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 9
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Political Reform and
Gridlock Elimination Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) pass the DISCLOSE Act to prevent a corporate takeover
of our elections and ensure that our democracy is open,
transparent, and controlled by the people; and
(2) reform Senate rules and procedures to reduce excessive
obstruction and delay, while protecting the legitimate rights
of individual Senators and the minority.
______
By Mr. REID (for himself, Mr. Durbin, Mr. Brown of Ohio, Mr.
Kerry, Mrs. Gillibrand, Mrs. Boxer, Mr. Lautenberg, Mr. Begich,
and Mr. Akaka):
S. 10. A bill to ensure equity for women and address rising pressures
on American families; to the Committee on Health, Education, Labor, and
Pensions.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 10
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Family Economic Success
Act''.
SEC. 2. SENSE OF THE SENATE.
It is the sense of the Senate that Congress should--
(1) guarantee pay equity for women;
(2) reward companies that promote flexible work
environments for working parents with children, and workers
who are caregivers;
[[Page S130]]
(3) guarantee paid family and medical leave and paid sick
days; and
(4) improve the quality and affordability of child care.
______
By Mrs. HUTCHISON (for herself, Mr. Vitter, Mr. Ensign, Mr.
Johanns, and Mr. Cornyn):
S. 11. A bill to provide permanent tax relief from the marriage
penalty; to the Committee on Finance.
Mrs. HUTCHISON. Mr. President, I am pleased to introduce a bill to
provide permanent tax relief from the marriage penalty--the most
egregious, anti-family provision in the tax code. One of my highest
priorities in the United States Senate has been to relieve American
taxpayers of this punitive burden.
We have made important strides to eliminate this unfair tax and
provide marriage penalty relief by raising the standard deduction and
enlarging the 15 percent tax bracket for married joint filers to twice
that of single filers. Before these provisions were changed, 42 percent
of married couples paid an average penalty of $1,400.
Enacting marriage penalty relief was a giant step for tax fairness,
but it may be fleeting. Even as married couples use the money they now
save to put food on the table and clothes on their children, a tax
increase looms in the future. While I am pleased that relief from the
marriage penalty was included in the recent agreement to extend the
broader tax relief for all Americans, the marriage penalty provisions
will only be in effect through 2012. In 2013, marriage will again be a
taxable event and a significant number of married couples will again
pay more in taxes unless we act decisively. Given the challenges many
families face in making ends meet, we must make sure we do not
backtrack on this important reform.
The benefits of marriage are well established, yet, without marriage
penalty relief, the tax code provides a significant disincentive for
people to walk down the aisle. Marriage is a fundamental institution in
our society and should not be discouraged by the IRS. Children living
in a married household are far less likely to live in poverty or to
suffer from child abuse. Research indicates these children are also
less likely to be depressed or have developmental problems. Scourges
such as adolescent drug use are less common in married families, and
married mothers are less likely to be victims of domestic violence.
We should celebrate marriage, not penalize it. The bill I am offering
would make marriage penalty relief permanent, because marriage should
not be a taxable event. I welcome and appreciate the support of
Senators Ensign, Johanns, Cornyn, and Vitter, who have signed on as
cosponsors, and I call on the Senate to finish the job we started and
make marriage penalty relief permanent today.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 11
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Permanent Marriage Penalty
Relief Act of 2011''.
SEC. 2. REPEAL OF SUNSET ON MARRIAGE PENALTY RELIEF.
Title IX of the Economic Growth and Tax Relief
Reconciliation Act of 2001 (relating to sunset of provisions
of such Act) shall not apply to sections 301, 302, and 303(a)
of such Act (relating to marriage penalty relief).
______
By Mr. REID (for himself, Mrs. Feinstein, Mr. Kerry, Mr. Leahy,
Mr. Levin, Mr. Lieberman, Mr. Rockefeller, and Mr. Bingaman):
S. 21. A bill to secure the United States against cyber attack, to
enhance American competetiveness and create jobs in the information
technology industry, and to protect the identities and sensitive
information of American citizens and businesses; to the Committee on
Homeland Security and Governmental Affairs.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 21
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Cyber Security and American
Cyber Competitiveness Act of 2011''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Malicious state, terrorist, and criminal actors
exploiting vulnerabilities in information and communications
networks and gaps in cyber security pose one of the most
serious and rapidly growing threats to both the national
security and economy of the United States.
(2) With information technology now the backbone of the
United States economy, a critical element of United States
national security infrastructure and defense systems, the
primary foundation of global communications, and a key
enabler of most critical infrastructure, nearly every single
American citizen is touched by cyberspace and is threatened
by cyber attacks.
(3) Malicious actors in cyberspace have already caused
significant damage to the United States Government, the
United States economy, and United States citizens: United
States Government computer networks are probed millions of
times each day; approximately 9,000,000 Americans have their
identities stolen each year; cyber crime costs American
businesses with 500 or more employees an average of
$3,800,000 per year; and intellectual property worth over
$1,000,000,000,000 has already been stolen from American
businesses.
(4) In its 2009 Cyberspace Policy Review, the White House
concluded, ``Ensuring that cyberspace is sufficiently
resilient and trustworthy to support United States goals of
economic growth, civil liberties and privacy protections,
national security, and the continued advancement of
democratic institutions requires making cybersecurity a
national priority.''
(5) An effective solution to the tremendous challenges of
cyber security demands cooperation and integration of effort
across jurisdictions of multiple Federal, State, local, and
tribal government agencies, between the government and the
private sector, and with international allies, as well as
increased public awareness and preparedness among the
American people.
SEC. 3. SENSE OF CONGRESS.
It is the sense of Congress that Congress should enact, and
the President should sign, bipartisan legislation to secure
the United States against cyber attack, to enhance American
competitiveness and create jobs in the information technology
industry, and to protect the identities and sensitive
information of American citizens and businesses by--
(1) enhancing the security and resiliency of United States
Government communications and information networks against
cyber attack by nation-states, terrorists, and cyber
criminals;
(2) incentivizing the private sector to quantify, assess,
and mitigate cyber risks to their communications and
information networks;
(3) promoting investments in the American information
technology sector that create and maintain good, well-paying
jobs in the United States and help to enhance American
economic competitiveness;
(4) improving the capability of the United States
Government to assess cyber risks and prevent, detect, and
robustly respond to cyber attacks against the government and
the military;
(5) improving the capability of the United States
Government and the private sector to assess cyber risk and
prevent, detect, and robustly respond to cyber attacks
against United States critical infrastructure;
(6) preventing and mitigating identity theft and guarding
against abuses or breaches of personally identifiable
information;
(7) enhancing United States diplomatic capacity and
international cooperation to respond to emerging cyber
threats, including promoting security and freedom of access
for communications and information networks around the world
and battling global cyber crime through focused diplomacy;
(8) protecting and increasing the resiliency of United
States' critical infrastructure and assets, including the
electric grid, military assets, the financial sector, and
telecommunications networks against cyber attacks and other
threats and vulnerabilities;
(9) expanding tools and resources for investigating and
prosecuting cyber crimes in an manner that respects privacy
rights and civil liberties and promotes American innovation;
and
(10) maintaining robust protections of the privacy of
American citizens and their on-line activities and
communications.
______
By Mr. LEAHY (for himself, Mr. Hatch, Mr. Grassley, Ms.
Klobuchar, Mr. Sessions, Mr. Kyl, Mr. Lieberman, and Mr.
Coons):
S. 23. A bill to amend title 35, United States Code, to provide for
patent reform; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, the United States of America has long been
the world leader in invention and innovation. That leadership has
propelled our economic growth, but we cannot
[[Page S131]]
remain complacent while expecting to stay on top.
A Newsweek study last year found that only 41 percent of Americans
believe that the United States is staying ahead of China on innovation.
A Thompson Reuters analysis has already predicted that China will
outpace the United States in patent filings this year. China, in fact,
has a specific plan not just to overtake the United States this year in
patent applications, but to more than quadruple its patent filings over
the next 5 years.
That is astonishing, until considering that China has been
modernizing its patent laws and promoting innovation while the United
States has failed to keep pace. It has now been nearly 60 years since
Congress last acted to reform American patent law. We can no longer
wait.
Today, I am reintroducing bipartisan patent reform legislation that
is the culmination of three Congresses worth of bipartisan, bicameral
work, including eight hearings in the Senate alone. The Patent Reform
Act of 2011 is structured on legislation first introduced in the House
by Chairman Smith and Mr. Berman in 2005. The legislation will
accomplish three important goals, which have been at the center of the
patent reform debate: improve the application process by transitioning
to a first-inventor-to-file system; improve the quality of patents
issued by the USPTO by introducing several quality-enhancement
measures; and provide more certainty in litigation.
In many areas that were highly contentious when the patent reform
debate began, the courts have stepped in to act. Their decisions
reflect the concerns heard in Congress that questionable patents are
too easily obtained and too difficult to challenge. The courts have
moved the law in a generally positive direction, more closely aligned
with the text of the statutes.
Most recently, the Federal Circuit aggressively moved to constrain
run-away damage awards, which has plagued the patent system by basing
awards on unreliable numbers, untethered to the reality of licensing
decisions. As the court continues to move in the right direction, it is
more apparent than ever that the gatekeeper compromise on damages we
have worked to reach with Senator Feinstein and others is what is
needed to ensure an award of a reasonable royalty is not artificially
inflated or based on irrelevant factors.
The courts have addressed issues where they can, but in some areas,
only Congress can take the necessary steps. The Patent Reform Act will
both speed the application process and, at the same time, improve
patent quality. It will provide the USPTO with the resources it needs
to work through its application backlog, while also providing for
greater input from third parties to improve the quality of patents
issued and that remain in effect.
High quality patents are the key to our economic growth. They benefit
both patent owners and users, who can be more confident in the validity
of issued patents. Patents of low quality and dubious validity, by
contrast, enable patent trolls and constitute a drag on innovation. Too
many dubious patents also unjustly cast doubt on truly high quality
patents.
The Patent Reform Act provides the tools the USPTO needs to separate
the inventive wheat from the chaff. It will allow our inventors and
innovators to flourish. The Department of Commerce recently issued a
report indicating that these reforms will create jobs without adding to
the deficit. The Obama administration supports these efforts, as do
industries and stakeholders from all sectors of the patent community.
Congressional action can no longer be delayed.
Innovation and economic development are not uniquely Democrat or
Republican objectives, so we worked together to find the proper balance
for America--for our economy, for our inventors, for our consumers.
Thomas Freidman wrote not too long ago in The New York Times that the
country which ``endows its people with more tools and basic research to
invent new goods and services [] is the one that will not just survive
but thrive down the road. . . . We might be able to stimulate our way
back to stability, but we can only invent our way back to prosperity.''
Reforming our patent system will stimulate the American economy
through structural changes, rather than taxpayer dollars. I look
forward to working with all Senators and our counterparts in the House,
who have also made this a bipartisan priority, to ensure that this is
the year we make our patent system reward inventors and provide
certainty to users.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 23
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Patent
Reform Act of 2011''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. First inventor to file.
Sec. 3. Inventor's oath or declaration.
Sec. 4. Damages.
Sec. 5. Post-grant review proceedings.
Sec. 6. Patent Trial and Appeal Board.
Sec. 7. Preissuance submissions by third parties.
Sec. 8. Venue.
Sec. 9. Fee setting authority.
Sec. 10. Supplemental examination.
Sec. 11. Residency of Federal Circuit judges.
Sec. 12. Micro entity defined.
Sec. 13. Funding agreements.
Sec. 14. Tax strategies deemed within the prior art.
Sec. 15. Best mode requirement.
Sec. 16. Technical amendments.
Sec. 17. Effective date; rule of construction.
SEC. 2. FIRST INVENTOR TO FILE.
(a) Definitions.--Section 100 of title 35, United States
Code, is amended by adding at the end the following:
``(f) The term `inventor' means the individual or, if a
joint invention, the individuals collectively who invented or
discovered the subject matter of the invention.
``(g) The terms `joint inventor' and `coinventor' mean any
1 of the individuals who invented or discovered the subject
matter of a joint invention.
``(h) The term `joint research agreement' means a written
contract, grant, or cooperative agreement entered into by 2
or more persons or entities for the performance of
experimental, developmental, or research work in the field of
the claimed invention.
``(i)(1) The term `effective filing date' of a claimed
invention in a patent or application for patent means--
``(A) if subparagraph (B) does not apply, the actual filing
date of the patent or the application for the patent
containing a claim to the invention; or
``(B) the filing date of the earliest application for which
the patent or application is entitled, as to such invention,
to a right of priority under section 119, 365(a), or 365(b)
or to the benefit of an earlier filing date under section
120, 121, or 365(c).
``(2) The effective filing date for a claimed invention in
an application for reissue or reissued patent shall be
determined by deeming the claim to the invention to have been
contained in the patent for which reissue was sought.
``(j) The term `claimed invention' means the subject matter
defined by a claim in a patent or an application for a
patent.''.
(b) Conditions for Patentability.--
(1) In general.--Section 102 of title 35, United States
Code, is amended to read as follows:
``Sec. 102. Conditions for patentability; novelty
``(a) Novelty; Prior Art.--A person shall be entitled to a
patent unless--
``(1) the claimed invention was patented, described in a
printed publication, or in public use, on sale, or otherwise
available to the public before the effective filing date of
the claimed invention; or
``(2) the claimed invention was described in a patent
issued under section 151, or in an application for patent
published or deemed published under section 122(b), in which
the patent or application, as the case may be, names another
inventor and was effectively filed before the effective
filing date of the claimed invention.
``(b) Exceptions.--
``(1) Disclosures made 1 year or less before the effective
filing date of the claimed invention.--A disclosure made 1
year or less before the effective filing date of a claimed
invention shall not be prior art to the claimed invention
under subsection (a)(1) if--
``(A) the disclosure was made by the inventor or joint
inventor or by another who obtained the subject matter
disclosed directly or indirectly from the inventor or a joint
inventor; or
``(B) the subject matter disclosed had, before such
disclosure, been publicly disclosed by the inventor or a
joint inventor or another who obtained the subject matter
disclosed directly or indirectly from the inventor or a joint
inventor.
``(2) Disclosures appearing in applications and patents.--A
disclosure shall not be prior art to a claimed invention
under subsection (a)(2) if--
``(A) the subject matter disclosed was obtained directly or
indirectly from the inventor or a joint inventor;
``(B) the subject matter disclosed had, before such subject
matter was effectively filed
[[Page S132]]
under subsection (a)(2), been publicly disclosed by the
inventor or a joint inventor or another who obtained the
subject matter disclosed directly or indirectly from the
inventor or a joint inventor; or
``(C) the subject matter disclosed and the claimed
invention, not later than the effective filing date of the
claimed invention, were owned by the same person or subject
to an obligation of assignment to the same person.
``(c) Common Ownership Under Joint Research Agreements.--
Subject matter disclosed and a claimed invention shall be
deemed to have been owned by the same person or subject to an
obligation of assignment to the same person in applying the
provisions of subsection (b)(2)(C) if--
``(1) the subject matter disclosed was developed and the
claimed invention was made by, or on behalf of, 1 or more
parties to a joint research agreement that was in effect on
or before the effective filing date of the claimed invention;
``(2) the claimed invention was made as a result of
activities undertaken within the scope of the joint research
agreement; and
``(3) the application for patent for the claimed invention
discloses or is amended to disclose the names of the parties
to the joint research agreement.
``(d) Patents and Published Applications Effective as Prior
Art.--For purposes of determining whether a patent or
application for patent is prior art to a claimed invention
under subsection (a)(2), such patent or application shall be
considered to have been effectively filed, with respect to
any subject matter described in the patent or application--
``(1) if paragraph (2) does not apply, as of the actual
filing date of the patent or the application for patent; or
``(2) if the patent or application for patent is entitled
to claim a right of priority under section 119, 365(a), or
365(b), or to claim the benefit of an earlier filing date
under section 120, 121, or 365(c), based upon 1 or more prior
filed applications for patent, as of the filing date of the
earliest such application that describes the subject
matter.''.
(2) Conforming amendment.--The item relating to section 102
in the table of sections for chapter 10 of title 35, United
States Code, is amended to read as follows:
``102. Conditions for patentability; novelty.''.
(c) Conditions for Patentability; Nonobvious Subject
Matter.--Section 103 of title 35, United States Code, is
amended to read as follows:
``Sec. 103. Conditions for patentability; nonobvious subject
matter
``A patent for a claimed invention may not be obtained,
notwithstanding that the claimed invention is not identically
disclosed as set forth in section 102, if the differences
between the claimed invention and the prior art are such that
the claimed invention as a whole would have been obvious
before the effective filing date of the claimed invention to
a person having ordinary skill in the art to which the
claimed invention pertains. Patentability shall not be
negated by the manner in which the invention was made.''.
(d) Repeal of Requirements for Inventions Made Abroad.--
Section 104 of title 35, United States Code, and the item
relating to that section in the table of sections for chapter
10 of title 35, United States Code, are repealed.
(e) Repeal of Statutory Invention Registration.--
(1) In general.--Section 157 of title 35, United States
Code, and the item relating to that section in the table of
sections for chapter 14 of title 35, United States Code, are
repealed.
(2) Removal of cross references.--Section 111(b)(8) of
title 35, United States Code, is amended by striking
``sections 115, 131, 135, and 157'' and inserting ``sections
131 and 135''.
(3) Effective date.--The amendments made by this subsection
shall take effect 1 year after the date of the enactment of
this Act, and shall apply to any request for a statutory
invention registration filed on or after that date.
(f) Earlier Filing Date for Inventor and Joint Inventor.--
Section 120 of title 35, United States Code, is amended by
striking ``which is filed by an inventor or inventors named''
and inserting ``which names an inventor or joint inventor''.
(g) Conforming Amendments.--
(1) Right of priority.--Section 172 of title 35, United
States Code, is amended by striking ``and the time specified
in section 102(d)''.
(2) Limitation on remedies.--Section 287(c)(4) of title 35,
United States Code, is amended by striking ``the earliest
effective filing date of which is prior to'' and inserting
``which has an effective filing date before''.
(3) International application designating the united
states: effect.--Section 363 of title 35, United States Code,
is amended by striking ``except as otherwise provided in
section 102(e) of this title''.
(4) Publication of international application: effect.--
Section 374 of title 35, United States Code, is amended by
striking ``sections 102(e) and 154(d)'' and inserting
``section 154(d)''.
(5) Patent issued on international application: effect.--
The second sentence of section 375(a) of title 35, United
States Code, is amended by striking ``Subject to section
102(e) of this title, such'' and inserting ``Such''.
(6) Limit on right of priority.--Section 119(a) of title
35, United States Code, is amended by striking ``; but no
patent shall be granted'' and all that follows through ``one
year prior to such filing''.
(7) Inventions made with federal assistance.--Section
202(c) of title 35, United States Code, is amended--
(A) in paragraph (2)--
(i) by striking ``publication, on sale, or public use,''
and all that follows through ``obtained in the United
States'' and inserting ``the 1-year period referred to in
section 102(b) would end before the end of that 2-year
period''; and
(ii) by striking ``the statutory'' and inserting ``that 1-
year''; and
(B) in paragraph (3), by striking ``any statutory bar date
that may occur under this title due to publication, on sale,
or public use'' and inserting ``the expiration of the 1-year
period referred to in section 102(b)''.
(h) Derived Patents.--Section 291 of title 35, United
States Code, is amended to read as follows:
``Sec. 291. Derived patents
``(a) In General.--The owner of a patent may have relief by
civil action against the owner of another patent that claims
the same invention and has an earlier effective filing date
if the invention claimed in such other patent was derived
from the inventor of the invention claimed in the patent
owned by the person seeking relief under this section.
``(b) Filing Limitation.--An action under this section may
only be filed within 1 year after the issuance of the first
patent containing a claim to the allegedly derived invention
and naming an individual alleged to have derived such
invention as the inventor or joint inventor.''.
(i) Derivation Proceedings.--Section 135 of title 35,
United States Code, is amended to read as follows:
``Sec. 135. Derivation proceedings
``(a) Institution of Proceeding.--An applicant for patent
may file a petition to institute a derivation proceeding in
the Office. The petition shall set forth with particularity
the basis for finding that an inventor named in an earlier
application derived the claimed invention from an inventor
named in the petitioner's application and, without
authorization, the earlier application claiming such
invention was filed. Any such petition may only be filed
within 1 year after the first publication of a claim to an
invention that is the same or substantially the same as the
earlier application's claim to the invention, shall be made
under oath, and shall be supported by substantial evidence.
Whenever the Director determines that a petition filed under
this subsection demonstrates that the standards for
instituting a derivation proceeding are met, the Director may
institute a derivation proceeding. The determination by the
Director whether to institute a derivation proceeding shall
be final and nonappealable.
``(b) Determination by Patent Trial and Appeal Board.--In a
derivation proceeding instituted under subsection (a), the
Patent Trial and Appeal Board shall determine whether an
inventor named in the earlier application derived the claimed
invention from an inventor named in the petitioner's
application and, without authorization, the earlier
application claiming such invention was filed. The Director
shall prescribe regulations setting forth standards for the
conduct of derivation proceedings.
``(c) Deferral of Decision.--The Patent Trial and Appeal
Board may defer action on a petition for a derivation
proceeding until 3 months after the date on which the
Director issues a patent that includes the claimed invention
that is the subject of the petition. The Patent Trial and
Appeal Board also may defer action on a petition for a
derivation proceeding, or stay the proceeding after it has
been instituted, until the termination of a proceeding under
chapter 30, 31, or 32 involving the patent of the earlier
applicant.
``(d) Effect of Final Decision.--The final decision of the
Patent Trial and Appeal Board, if adverse to claims in an
application for patent, shall constitute the final refusal by
the Office on those claims. The final decision of the Patent
Trial and Appeal Board, if adverse to claims in a patent,
shall, if no appeal or other review of the decision has been
or can be taken or had, constitute cancellation of those
claims, and notice of such cancellation shall be endorsed on
copies of the patent distributed after such cancellation
``(e) Settlement.--Parties to a proceeding instituted under
subsection (a) may terminate the proceeding by filing a
written statement reflecting the agreement of the parties as
to the correct inventors of the claimed invention in dispute.
Unless the Patent Trial and Appeal Board finds the agreement
to be inconsistent with the evidence of record, if any, it
shall take action consistent with the agreement. Any written
settlement or understanding of the parties shall be filed
with the Director. At the request of a party to the
proceeding, the agreement or understanding shall be treated
as business confidential information, shall be kept separate
from the file of the involved patents or applications, and
shall be made available only to Government agencies on
written request, or to any person on a showing of good cause.
``(f) Arbitration.--Parties to a proceeding instituted
under subsection (a) may, within such time as may be
specified by the Director by regulation, determine such
contest or any aspect thereof by arbitration. Such
arbitration shall be governed by the provisions of title 9,
to the extent such title is not inconsistent with this
section. The parties
[[Page S133]]
shall give notice of any arbitration award to the Director,
and such award shall, as between the parties to the
arbitration, be dispositive of the issues to which it
relates. The arbitration award shall be unenforceable until
such notice is given. Nothing in this subsection shall
preclude the Director from determining the patentability of
the claimed inventions involved in the proceeding.''.
(j) Elimination of References to Interferences.--(1)
Sections 41, 134, 145, 146, 154, 305, and 314 of title 35,
United States Code, are each amended by striking ``Board of
Patent Appeals and Interferences'' each place it appears and
inserting ``Patent Trial and Appeal Board''.
(2)(A) Sections 146 and 154 of title 35, United States
Code, are each amended--
(i) by striking ``an interference'' each place it appears
and inserting ``a derivation proceeding''; and
(ii) by striking ``interference'' each additional place it
appears and inserting ``derivation proceeding''.
(B) The subparagraph heading for section 154(b)(1)(C) of
title 35, United States Code, as amended by this paragraph,
is further amended by--
(i) striking ``or'' and inserting ``of''; and
(ii) striking ``secrecy order'' and inserting ``secrecy
orders''.
(3) The section heading for section 134 of title 35, United
States Code, is amended to read as follows:
``Sec. 134. Appeal to the Patent Trial and Appeal Board''.
(4) The section heading for section 146 of title 35, United
States Code, is amended to read as follows:
``Sec. 146. Civil action in case of derivation proceeding''.
(5) Section 154(b)(1)(C) of title 35, United States Code,
is amended by striking ``interferences'' and inserting
``derivation proceedings''.
(6) The item relating to section 6 in the table of sections
for chapter 1 of title 35, United States Code, is amended to
read as follows:
``6. Patent Trial and Appeal Board.''.
(7) The items relating to sections 134 and 135 in the table
of sections for chapter 12 of title 35, United States Code,
are amended to read as follows:
``134. Appeal to the Patent Trial and Appeal Board.
``135. Derivation proceedings.''.
(8) The item relating to section 146 in the table of
sections for chapter 13 of title 35, United States Code, is
amended to read as follows:
``146. Civil action in case of derivation proceeding.''.
(k) False Marking.--
(1) In general.--Section 292 of title 35, United States
Code, is amended--
(A) in subsection (a), by adding at the end the following:
``Only the United States may sue for the penalty authorized
by this subsection.''; and
(B) by striking subsection (b) and inserting the following:
``(b) Any person who has suffered a competitive injury as a
result of a violation of this section may file a civil action
in a district court of the United States for recovery of
damages adequate to compensate for the injury.''.
(2) Effective date.--The amendments made by this subsection
shall apply to all cases, without exception, pending on or
after the date of the enactment of this Act.
(l) Statute of Limitations.--
(1) In general.--Section 32 of title 35, United States
Code, is amended by inserting between the third and fourth
sentences the following: ``A proceeding under this section
shall be commenced not later than the earlier of either 10
years after the date on which the misconduct forming the
basis for the proceeding occurred, or 1 year after the date
on which the misconduct forming the basis for the proceeding
is made known to an officer or employee of the Office as
prescribed in the regulations established under section
2(b)(2)(D).''.
(2) Report to congress.--The Director shall provide on a
biennial basis to the Judiciary Committees of the Senate and
House of Representatives a report providing a short
description of incidents made known to an officer or employee
of the Office as prescribed in the regulations established
under section 2(b)(2)(D) of title 35, United States Code,
that reflect substantial evidence of misconduct before the
Office but for which the Office was barred from commencing a
proceeding under section 32 of title 35, United States Code,
by the time limitation established by the fourth sentence of
that section.
(3) Effective date.--The amendment made by paragraph (1)
shall apply in all cases in which the time period for
instituting a proceeding under section 32 of title 35, United
State Code, had not lapsed prior to the date of the enactment
of this Act.
(m) Small Business Study.--
(1) Definitions.--In this subsection--
(A) the term ``Chief Counsel'' means the Chief Counsel for
Advocacy of the Small Business Administration;
(B) the term ``General Counsel'' means the General Counsel
of the United States Patent and Trademark Office; and
(C) the term ``small business concern'' has the meaning
given that term under section 3 of the Small Business Act (15
U.S.C. 632).
(2) Study.--
(A) In general.--The Chief Counsel, in consultation with
the General Counsel, shall conduct a study of the effects of
eliminating the use of dates of invention in determining
whether an applicant is entitled to a patent under title 35,
United States Code.
(B) Areas of study.--The study conducted under subparagraph
(A) shall include examination of the effects of eliminating
the use of invention dates, including examining--
(i) how the change would affect the ability of small
business concerns to obtain patents and their costs of
obtaining patents;
(ii) whether the change would create, mitigate, or
exacerbate any disadvantage for applicants for patents that
are small business concerns relative to applicants for
patents that are not small business concerns, and whether the
change would create any advantages for applicants for patents
that are small business concerns relative to applicants for
patents that are not small business concerns;
(iii) the cost savings and other potential benefits to
small business concerns of the change; and
(iv) the feasibility and costs and benefits to small
business concerns of alternative means of determining whether
an applicant is entitled to a patent under title 35, United
States Code.
(3) Report.--Not later than 1 year after the date of
enactment of this Act, the Chief Counsel shall submit to the
Committee on Small Business and Entrepreneurship and the
Committee on the Judiciary of the Senate and the Committee on
Small Business and the Committee on the Judiciary of the
House of Representatives a report regarding the results of
the study under paragraph (2).
(n) Report on Prior User Rights.--
(1) In general.--Not later than 1 year after the date of
the enactment of this Act, the Director shall report, to the
Committee on the Judiciary of the Senate and the Committee on
the Judiciary of the House of Representatives, the findings
and recommendations of the Director on the operation of prior
user rights in selected countries in the industrialized
world. The report shall include the following:
(A) A comparison between patent laws of the United States
and the laws of other industrialized countries, including
members of the European Union and Japan, Canada, and
Australia.
(B) An analysis of the effect of prior user rights on
innovation rates in the selected countries.
(C) An analysis of the correlation, if any, between prior
user rights and start-up enterprises and the ability to
attract venture capital to start new companies.
(D) An analysis of the effect of prior user rights, if any,
on small businesses, universities, and individual inventors.
(E) An analysis of legal and constitutional issues, if any,
that arise from placing trade secret law in patent law.
(F) An analysis of whether the change to a first-to-file
patent system creates a particular need for prior user
rights.
(2) Consultation with other agencies.--In preparing the
report required under paragraph (1), the Director shall
consult with the United States Trade Representative, the
Secretary of State, and the Attorney General.
(o) Effective Date.--
(1) In general.--Except as otherwise provided by this
section, the amendments made by this section shall take
effect on the date that is 18 months after the date of the
enactment of this Act, and shall apply to any application for
patent, and to any patent issuing thereon, that contains or
contained at any time--
(A) a claim to a claimed invention that has an effective
filing date as defined in section 100(i) of title 35, United
States Code, that is 18 months or more after the date of the
enactment of this Act; or
(B) a specific reference under section 120, 121, or 365(c)
of title 35, United States Code, to any patent or application
that contains or contained at any time such a claim.
(2) Interfering patents.--The provisions of sections
102(g), 135, and 291 of title 35, United States Code, in
effect on the day prior to the date of the enactment of this
Act, shall apply to each claim of an application for patent,
and any patent issued thereon, for which the amendments made
by this section also apply, if such application or patent
contains or contained at any time--
(A) a claim to an invention having an effective filing date
as defined in section 100(i) of title 35, United States Code,
earlier than 18 months after the date of the enactment of
this Act; or
(B) a specific reference under section 120, 121, or 365(c)
of title 35, United States Code, to any patent or application
that contains or contained at any time such a claim.
SEC. 3. INVENTOR'S OATH OR DECLARATION.
(a) Inventor's Oath or Declaration.--
(1) In general.--Section 115 of title 35, United States
Code, is amended to read as follows:
``Sec. 115. Inventor's oath or declaration
``(a) Naming the Inventor; Inventor's Oath or
Declaration.--An application for patent that is filed under
section 111(a) or commences the national stage under section
371 shall include, or be amended to include, the name of the
inventor for any invention claimed in the application. Except
as otherwise provided in this section, each individual who is
the inventor or a joint inventor of a claimed invention in an
application for patent shall execute an oath or declaration
in connection with the application.
[[Page S134]]
``(b) Required Statements.--An oath or declaration under
subsection (a) shall contain statements that--
``(1) the application was made or was authorized to be made
by the affiant or declarant; and
``(2) such individual believes himself or herself to be the
original inventor or an original joint inventor of a claimed
invention in the application.
``(c) Additional Requirements.--The Director may specify
additional information relating to the inventor and the
invention that is required to be included in an oath or
declaration under subsection (a).
``(d) Substitute Statement.--
``(1) In general.--In lieu of executing an oath or
declaration under subsection (a), the applicant for patent
may provide a substitute statement under the circumstances
described in paragraph (2) and such additional circumstances
that the Director may specify by regulation.
``(2) Permitted circumstances.--A substitute statement
under paragraph (1) is permitted with respect to any
individual who--
``(A) is unable to file the oath or declaration under
subsection (a) because the individual--
``(i) is deceased;
``(ii) is under legal incapacity; or
``(iii) cannot be found or reached after diligent effort;
or
``(B) is under an obligation to assign the invention but
has refused to make the oath or declaration required under
subsection (a).
``(3) Contents.--A substitute statement under this
subsection shall--
``(A) identify the individual with respect to whom the
statement applies;
``(B) set forth the circumstances representing the
permitted basis for the filing of the substitute statement in
lieu of the oath or declaration under subsection (a); and
``(C) contain any additional information, including any
showing, required by the Director.
``(e) Making Required Statements in Assignment of Record.--
An individual who is under an obligation of assignment of an
application for patent may include the required statements
under subsections (b) and (c) in the assignment executed by
the individual, in lieu of filing such statements separately.
``(f) Time for Filing.--A notice of allowance under section
151 may be provided to an applicant for patent only if the
applicant for patent has filed each required oath or
declaration under subsection (a) or has filed a substitute
statement under subsection (d) or recorded an assignment
meeting the requirements of subsection (e).
``(g) Earlier-filed Application Containing Required
Statements or Substitute Statement.--
``(1) Exception.--The requirements under this section shall
not apply to an individual with respect to an application for
patent in which the individual is named as the inventor or a
joint inventor and who claims the benefit under section 120,
121, or 365(c) of the filing of an earlier-filed application,
if--
``(A) an oath or declaration meeting the requirements of
subsection (a) was executed by the individual and was filed
in connection with the earlier-filed application;
``(B) a substitute statement meeting the requirements of
subsection (d) was filed in the earlier filed application
with respect to the individual; or
``(C) an assignment meeting the requirements of subsection
(e) was executed with respect to the earlier-filed
application by the individual and was recorded in connection
with the earlier-filed application.
``(2) Copies of oaths, declarations, statements, or
assignments.--Notwithstanding paragraph (1), the Director may
require that a copy of the executed oath or declaration, the
substitute statement, or the assignment filed in the earlier-
filed application be included in the later-filed application.
``(h) Supplemental and Corrected Statements; Filing
Additional Statements.--
``(1) In general.--Any person making a statement required
under this section may withdraw, replace, or otherwise
correct the statement at any time. If a change is made in the
naming of the inventor requiring the filing of 1 or more
additional statements under this section, the Director shall
establish regulations under which such additional statements
may be filed.
``(2) Supplemental statements not required.--If an
individual has executed an oath or declaration meeting the
requirements of subsection (a) or an assignment meeting the
requirements of subsection (e) with respect to an application
for patent, the Director may not thereafter require that
individual to make any additional oath, declaration, or other
statement equivalent to those required by this section in
connection with the application for patent or any patent
issuing thereon.
``(3) Savings clause.--No patent shall be invalid or
unenforceable based upon the failure to comply with a
requirement under this section if the failure is remedied as
provided under paragraph (1).
``(i) Acknowledgment of Penalties.--Any declaration or
statement filed pursuant to this section shall contain an
acknowledgment that any willful false statement made in such
declaration or statement is punishable under section 1001 of
title 18 by fine or imprisonment of not more than 5 years, or
both.''.
(2) Relationship to divisional applications.--Section 121
of title 35, United States Code, is amended by striking ``If
a divisional application'' and all that follows through
``inventor.''.
(3) Requirements for nonprovisional applications.--Section
111(a) of title 35, United States Code, is amended--
(A) in paragraph (2)(C), by striking ``by the applicant''
and inserting ``or declaration'';
(B) in the heading for paragraph (3), by inserting ``or
declaration'' after ``and oath''; and
(C) by inserting ``or declaration'' after ``and oath'' each
place it appears.
(4) Conforming amendment.--The item relating to section 115
in the table of sections for chapter 11 of title 35, United
States Code, is amended to read as follows:
``115. Inventor's oath or declaration.''.
(b) Filing by Other Than Inventor.--
(1) In general.--Section 118 of title 35, United States
Code, is amended to read as follows:
``Sec. 118. Filing by other than inventor
``A person to whom the inventor has assigned or is under an
obligation to assign the invention may make an application
for patent. A person who otherwise shows sufficient
proprietary interest in the matter may make an application
for patent on behalf of and as agent for the inventor on
proof of the pertinent facts and a showing that such action
is appropriate to preserve the rights of the parties. If the
Director grants a patent on an application filed under this
section by a person other than the inventor, the patent shall
be granted to the real party in interest and upon such notice
to the inventor as the Director considers to be
sufficient.''.
(2) Conforming amendment.--Section 251 of title 35, United
States Code, is amended in the third undesignated paragraph
by inserting ``or the application for the original patent was
filed by the assignee of the entire interest'' after ``claims
of the original patent''.
(c) Specification.--Section 112 of title 35, United States
Code, is amended--
(1) in the first paragraph--
(A) by striking ``The specification'' and inserting ``(a)
In General.--The specification''; and
(B) by striking ``of carrying out his invention'' and
inserting ``or joint inventor of carrying out the
invention'';
(2) in the second paragraph--
(A) by striking ``The specification'' and inserting ``(b)
Conclusion.--The specification''; and
(B) by striking ``applicant regards as his invention'' and
inserting ``inventor or a joint inventor regards as the
invention'';
(3) in the third paragraph, by striking ``A claim'' and
inserting ``(c) Form.--A claim'';
(4) in the fourth paragraph, by striking ``Subject to the
following paragraph,'' and inserting ``(d) Reference in
Dependent Forms.--Subject to subsection (e),'';
(5) in the fifth paragraph, by striking ``A claim'' and
inserting ``(e) Reference in Multiple Dependent Form.--A
claim''; and
(6) in the last paragraph, by striking ``An element'' and
inserting ``(f) Element in Claim for a Combination.--An
element''.
(d) Conforming Amendments.--
(1) Sections 111(b)(1)(A) is amended by striking ``the
first paragraph of section 112 of this title'' and inserting
``section 112(a)''.
(2) Section 111(b)(2) is amended by striking ``the second
through fifth paragraphs of section 112,'' and inserting
``subsections (b) through (e) of section 112,''.
(e) Effective Date.--The amendments made by this section
shall take effect 1 year after the date of the enactment of
this Act and shall apply to patent applications that are
filed on or after that effective date.
SEC. 4. DAMAGES.
(a) Damages.--Section 284 of title 35, United States Code,
is amended--
(1) by striking ``Upon finding'' and inserting the
following: ``(a) In General.--Upon finding'';
(2) by striking ``fixed by the court'' and all that follows
through ``When the damages'' and inserting the following:
``fixed by the court. When the damages'';
(3) by striking ``shall assess them.'' and all that follows
through ``The court may receive'' and inserting the
following: ``shall assess them. The court may receive''; and
(4) by adding at the end the following:
``(b) Procedure for Determining Damages.--
``(1) In general.--The court shall identify the
methodologies and factors that are relevant to the
determination of damages, and the court or jury shall
consider only those methodologies and factors relevant to
making such determination.
``(2) Disclosure of claims.--By no later than the entry of
the final pretrial order, unless otherwise ordered by the
court, the parties shall state, in writing and with
particularity, the methodologies and factors the parties
propose for instruction to the jury in determining damages
under this section, specifying the relevant underlying legal
and factual bases for their assertions.
``(3) Sufficiency of evidence.--Prior to the introduction
of any evidence concerning the determination of damages, upon
motion of either party or sua sponte, the court shall
consider whether one or more of a party's damages contentions
lacks a legally sufficient evidentiary basis. After providing
a nonmovant the opportunity to be heard, and after any
further proffer of evidence, briefing, or argument that the
court may deem appropriate, the court shall identify on the
record those methodologies and factors as to which there is a
legally sufficient evidentiary basis, and the court or jury
shall
[[Page S135]]
consider only those methodologies and factors in making the
determination of damages under this section. The court shall
only permit the introduction of evidence relating to the
determination of damages that is relevant to the
methodologies and factors that the court determines may be
considered in making the damages determination.
``(c) Sequencing.--Any party may request that a patent-
infringement trial be sequenced so that the trier of fact
decides questions of the patent's infringement and validity
before the issues of damages and willful infringement are
tried to the court or the jury. The court shall grant such a
request absent good cause to reject the request, such as the
absence of issues of significant damages or infringement and
validity. The sequencing of a trial pursuant to this
subsection shall not affect other matters, such as the timing
of discovery. This subsection does not authorize a party to
request that the issues of damages and willful infringement
be tried to a jury different than the one that will decide
questions of the patent's infringement and validity.
``(d) Willful Infringement.--
``(1) In general.--The court may increase damages up to 3
times the amount found or assessed if the court or the jury,
as the case may be, determines that the infringement of the
patent was willful. Increased damages under this subsection
shall not apply to provisional rights under section 154(d).
Infringement is not willful unless the claimant proves by
clear and convincing evidence that the accused infringer's
conduct with respect to the patent was objectively reckless.
An accused infringer's conduct was objectively reckless if
the infringer was acting despite an objectively high
likelihood that his actions constituted infringement of a
valid patent, and this objectively-defined risk was either
known or so obvious that it should have been known to the
accused infringer.
``(2) Pleading standards.--A claimant asserting that a
patent was infringed willfully shall comply with the pleading
requirements set forth under Federal Rule of Civil Procedure
9(b).
``(3) Knowledge alone insufficient.--Infringement of a
patent may not be found to be willful solely on the basis
that the infringer had knowledge of the infringed patent.
``(4) Pre-suit notification.--A claimant seeking to
establish willful infringement may not rely on evidence of
pre-suit notification of infringement unless that
notification identifies with particularity the asserted
patent, identifies the product or process accused, and
explains with particularity, to the extent possible following
a reasonable investigation or inquiry, how the product or
process infringes one or more claims of the patent.
``(5) Close case.--The court shall not increase damages
under this subsection if the court determines that there is a
close case as to infringement, validity, or enforceability.
On the motion of either party, the court shall determine
whether a close case as to infringement, validity, or
enforceability exists, and the court shall explain its
decision. Once the court determines that such a close case
exists, the issue of willful infringement shall not
thereafter be tried to the jury.
``(6) Accrued damages.--If a court or jury finds that the
infringement of patent was willful, the court may increase
only those damages that accrued after the infringement became
willful.''.
(b) Defense to Infringement Based on Earlier Inventor.--
Section 273(b)(6) of title 35, United States Code, is amended
to read as follows:
``(6) Personal defense.--The defense under this section may
be asserted only by the person who performed or caused the
performance of the acts necessary to establish the defense as
well as any other entity that controls, is controlled by, or
is under common control with such person and, except for any
transfer to the patent owner, the right to assert the defense
shall not be licensed or assigned or transferred to another
person except as an ancillary and subordinate part of a good
faith assignment or transfer for other reasons of the entire
enterprise or line of business to which the defense relates.
Notwithstanding the preceding sentence, any person may, on
its own behalf, assert a defense based on the exhaustion of
rights provided under paragraph (3), including any necessary
elements thereof.''.
(c) Virtual Marking.--Section 287(a) of title 35, United
States Code, is amended by inserting ``, or by fixing thereon
the word `patent' or the abbreviation `pat.' together with an
address of a posting on the Internet, accessible to the
public without charge for accessing the address, that
associates the patented article with the number of the
patent'' before ``, or when''.
(d) Advice of Counsel.--Chapter 29 of title 35, United
States Code, is amended by adding at the end the following:
``Sec. 298. Advice of Counsel
``The failure of an infringer to obtain the advice of
counsel with respect to any allegedly infringed patent or the
failure of the infringer to present such advice to the court
or jury may not be used to prove that the accused infringer
willfully infringed the patent or that the infringer intended
to induce infringement of the patent.''.
(e) Effective Date.--The amendments made by this section
shall apply to any civil action commenced on or after the
date of the enactment of this Act.
SEC. 5. POST-GRANT REVIEW PROCEEDINGS.
(a) Inter Partes Review.--Chapter 31 of title 35, United
States Code, is amended to read as follows:
``CHAPTER 31--INTER PARTES REVIEW
``Sec.
``311. Inter partes review.
``312. Petitions.
``313. Preliminary response to petition.
``314. Institution of inter partes review.
``315. Relation to other proceedings or actions.
``316. Conduct of inter partes review.
``317. Settlement.
``318. Decision of the board.
``319. Appeal.
``Sec. 311. Inter partes review
``(a) In General.--Subject to the provisions of this
chapter, a person who is not the patent owner may file with
the Office a petition to institute an inter partes review for
a patent. The Director shall establish, by regulation, fees
to be paid by the person requesting the review, in such
amounts as the Director determines to be reasonable,
considering the aggregate costs of the review.
``(b) Scope.--A petitioner in an inter partes review may
request to cancel as unpatentable 1 or more claims of a
patent only on a ground that could be raised under section
102 or 103 and only on the basis of prior art consisting of
patents or printed publications.
``(c) Filing Deadline.--A petition for inter partes review
shall be filed after the later of either--
``(1) 9 months after the grant of a patent or issuance of a
reissue of a patent; or
``(2) if a post-grant review is instituted under chapter
32, the date of the termination of such post-grant review.
``Sec. 312. Petitions
``(a) Requirements of Petition.--A petition filed under
section 311 may be considered only if--
``(1) the petition is accompanied by payment of the fee
established by the Director under section 311;
``(2) the petition identifies all real parties in interest;
``(3) the petition identifies, in writing and with
particularity, each claim challenged, the grounds on which
the challenge to each claim is based, and the evidence that
supports the grounds for the challenge to each claim,
including--
``(A) copies of patents and printed publications that the
petitioner relies upon in support of the petition; and
``(B) affidavits or declarations of supporting evidence and
opinions, if the petitioner relies on expert opinions;
``(4) the petition provides such other information as the
Director may require by regulation; and
``(5) the petitioner provides copies of any of the
documents required under paragraphs (2), (3), and (4) to the
patent owner or, if applicable, the designated representative
of the patent owner.
``(b) Public Availability.--As soon as practicable after
the receipt of a petition under section 311, the Director
shall make the petition available to the public.
``Sec. 313. Preliminary response to petition
``(a) Preliminary Response.--If an inter partes review
petition is filed under section 311, the patent owner shall
have the right to file a preliminary response within a time
period set by the Director.
``(b) Content of Response.--A preliminary response to a
petition for inter partes review shall set forth reasons why
no inter partes review should be instituted based upon the
failure of the petition to meet any requirement of this
chapter.
``Sec. 314. Institution of inter partes review
``(a) Threshold.--The Director may not authorize an inter
partes review to commence unless the Director determines that
the information presented in the petition filed under section
311 and any response filed under section 313 shows that there
is a reasonable likelihood that the petitioner would prevail
with respect to at least 1 of the claims challenged in the
petition.
``(b) Timing.--The Director shall determine whether to
institute an inter partes review under this chapter within 3
months after receiving a preliminary response under section
313 or, if none is filed, within three months after the
expiration of the time for filing such a response.
``(c) Notice.--The Director shall notify the petitioner and
patent owner, in writing, of the Director's determination
under subsection (a), and shall make such notice available to
the public as soon as is practicable. Such notice shall list
the date on which the review shall commence.
``(d) No Appeal.--The determination by the Director whether
to institute an inter partes review under this section shall
be final and nonappealable.
``Sec. 315. Relation to other proceedings or actions
``(a) Infringer's Action.--An inter partes review may not
be instituted or maintained if the petitioner or real party
in interest has filed a civil action challenging the validity
of a claim of the patent.
``(b) Patent Owner's Action.--An inter partes review may
not be instituted if the petition requesting the proceeding
is filed more than 3 months after the date on which the
petitioner, real party in interest, or his privy is required
to respond to a civil action alleging infringement of the
patent.
``(c) Joinder.--If the Director institutes an inter partes
review, the Director, in his discretion, may join as a party
to that inter
[[Page S136]]
partes review any person who properly files a petition under
section 311 that the Director, after receiving a preliminary
response under section 313 or the expiration of the time for
filing such a response, determines warrants the institution
of an inter partes review under section 314.
``(d) Multiple Proceedings.--Notwithstanding sections
135(a), 251, and 252, and chapter 30, during the pendency of
an inter partes review, if another proceeding or matter
involving the patent is before the Office, the Director may
determine the manner in which the inter partes review or
other proceeding or matter may proceed, including providing
for stay, transfer, consolidation, or termination of any such
matter or proceeding.
``(e) Estoppel.--
``(1) Proceedings before the office.--The petitioner in an
inter partes review under this chapter, or his real party in
interest or privy, may not request or maintain a proceeding
before the Office with respect to a claim on any ground that
the petitioner raised or reasonably could have raised during
an inter partes review of the claim that resulted in a final
written decision under section 318(a).
``(2) Civil actions and other proceedings.--The petitioner
in an inter partes review under this chapter, or his real
party in interest or privy, may not assert either in a civil
action arising in whole or in part under section 1338 of
title 28 or in a proceeding before the International Trade
Commission that a claim in a patent is invalid on any ground
that the petitioner raised or reasonably could have raised
during an inter partes review of the claim that resulted in a
final written decision under section 318(a).
``Sec. 316. Conduct of inter partes review
``(a) Regulations.--The Director shall prescribe
regulations--
``(1) providing that the file of any proceeding under this
chapter shall be made available to the public, except that
any petition or document filed with the intent that it be
sealed shall be accompanied by a motion to seal, and such
petition or document shall be treated as sealed pending the
outcome of the ruling on the motion;
``(2) setting forth the standards for the showing of
sufficient grounds to institute a review under section
314(a);
``(3) establishing procedures for the submission of
supplemental information after the petition is filed;
``(4) in accordance with section 2(b)(2), establishing and
governing inter partes review under this chapter and the
relationship of such review to other proceedings under this
title;
``(5) setting a time period for requesting joinder under
section 315(c);
``(6) setting forth standards and procedures for discovery
of relevant evidence, including that such discovery shall be
limited to--
``(A) the deposition of witnesses submitting affidavits or
declarations; and
``(B) what is otherwise necessary in the interest of
justice;
``(7) prescribing sanctions for abuse of discovery, abuse
of process, or any other improper use of the proceeding, such
as to harass or to cause unnecessary delay or an unnecessary
increase in the cost of the proceeding;
``(8) providing for protective orders governing the
exchange and submission of confidential information;
``(9) allowing the patent owner to file a response to the
petition after an inter partes review has been instituted,
and requiring that the patent owner file with such response,
through affidavits or declarations, any additional factual
evidence and expert opinions on which the patent owner relies
in support of the response;
``(10) setting forth standards and procedures for allowing
the patent owner to move to amend the patent under subsection
(d) to cancel a challenged claim or propose a reasonable
number of substitute claims, and ensuring that any
information submitted by the patent owner in support of any
amendment entered under subsection (d) is made available to
the public as part of the prosecution history of the patent;
``(11) providing either party with the right to an oral
hearing as part of the proceeding; and
``(12) requiring that the final determination in an inter
partes review be issued not later than 1 year after the date
on which the Director notices the institution of a review
under this chapter, except that the Director may, for good
cause shown, extend the 1-year period by not more than 6
months, and may adjust the time periods in this paragraph in
the case of joinder under section 315(c).
``(b) Considerations.--In prescribing regulations under
this section, the Director shall consider the effect of any
such regulation on the economy, the integrity of the patent
system, the efficient administration of the Office, and the
ability of the Office to timely complete proceedings
instituted under this chapter.
``(c) Patent Trial and Appeal Board.--The Patent Trial and
Appeal Board shall, in accordance with section 6, conduct
each proceeding authorized by the Director.
``(d) Amendment of the Patent.--
``(1) In general.--During an inter partes review instituted
under this chapter, the patent owner may file 1 motion to
amend the patent in 1 or more of the following ways:
``(A) Cancel any challenged patent claim.
``(B) For each challenged claim, propose a reasonable
number of substitute claims.
``(2) Additional motions.--Additional motions to amend may
be permitted upon the joint request of the petitioner and the
patent owner to materially advance the settlement of a
proceeding under section 317, or as permitted by regulations
prescribed by the Director.
``(3) Scope of claims.--An amendment under this subsection
may not enlarge the scope of the claims of the patent or
introduce new matter.
``(e) Evidentiary Standards.--In an inter partes review
instituted under this chapter, the petitioner shall have the
burden of proving a proposition of unpatentability by a
preponderance of the evidence.
``Sec. 317. Settlement
``(a) In General.--An inter partes review instituted under
this chapter shall be terminated with respect to any
petitioner upon the joint request of the petitioner and the
patent owner, unless the Office has decided the merits of the
proceeding before the request for termination is filed. If
the inter partes review is terminated with respect to a
petitioner under this section, no estoppel under section
315(e) shall apply to that petitioner. If no petitioner
remains in the inter partes review, the Office may terminate
the review or proceed to a final written decision under
section 318(a).
``(b) Agreements in Writing.--Any agreement or
understanding between the patent owner and a petitioner,
including any collateral agreements referred to in such
agreement or understanding, made in connection with, or in
contemplation of, the termination of an inter partes review
under this section shall be in writing and a true copy of
such agreement or understanding shall be filed in the Office
before the termination of the inter partes review as between
the parties. If any party filing such agreement or
understanding so requests, the copy shall be kept separate
from the file of the inter partes review, and shall be made
available only to Federal Government agencies upon written
request, or to any other person on a showing of good cause.
``Sec. 318. Decision of the board
``(a) Final Written Decision.--If an inter partes review is
instituted and not dismissed under this chapter, the Patent
Trial and Appeal Board shall issue a final written decision
with respect to the patentability of any patent claim
challenged by the petitioner and any new claim added under
section 316(d).
``(b) Certificate.--If the Patent Trial and Appeal Board
issues a final written decision under subsection (a) and the
time for appeal has expired or any appeal has terminated, the
Director shall issue and publish a certificate canceling any
claim of the patent finally determined to be unpatentable,
confirming any claim of the patent determined to be
patentable, and incorporating in the patent by operation of
the certificate any new or amended claim determined to be
patentable.
``Sec. 319. Appeal
``A party dissatisfied with the final written decision of
the Patent Trial and Appeal Board under section 318(a) may
appeal the decision pursuant to sections 141 through 144. Any
party to the inter partes review shall have the right to be a
party to the appeal.''.
(b) Technical and Conforming Amendment.--The table of
chapters for part III of title 35, United States Code, is
amended by striking the item relating to chapter 31 and
inserting the following:
``31. Inter Partes Review 311.''.
(c) Regulations and Effective Date.--
(1) Regulations.--The Director shall, not later than the
date that is 1 year after the date of the enactment of this
Act, issue regulations to carry out chapter 31 of title 35,
United States Code, as amended by subsection (a) of this
section.
(2) Applicability.--
(A) In general.--The amendments made by subsection (a)
shall take effect on the date that is 1 year after the date
of the enactment of this Act and shall apply to all patents
issued before, on, or after the effective date of subsection
(a).
(B) Exception.--The provisions of chapter 31 of title 35,
United States Code, as amended by paragraph (3), shall
continue to apply to requests for inter partes reexamination
that are filed prior to the effective date of subsection (a)
as if subsection (a) had not been enacted.
(C) Graduated implementation.--The Director may impose a
limit on the number of inter partes reviews that may be
instituted during each of the first 4 years following the
effective date of subsection (a), provided that such number
shall in each year be equivalent to or greater than the
number of inter partes reexaminations that are ordered in the
last full fiscal year prior to the effective date of
subsection (a).
(3) Transition.--
(A) In general.--Chapter 31 of title 35, United States
Code, is amended--
(i) in section 312--
(I) in subsection (a)--
(aa) in the first sentence, by striking ``a substantial new
question of patentability affecting any claim of the patent
concerned is raised by the request,'' and inserting ``the
information presented in the request shows that there is a
reasonable likelihood that the requester would prevail with
respect to at least 1 of the claims challenged in the
request,''; and
(bb) in the second sentence, by striking ``The existence of
a substantial new question
[[Page S137]]
of patentability'' and inserting ``A showing that there is a
reasonable likelihood that the requester would prevail with
respect to at least 1 of the claims challenged in the
request''; and
(II) in subsection (c), in the second sentence, by striking
``no substantial new question of patentability has been
raised,'' and inserting ``the showing required by subsection
(a) has not been made,''; and
(ii) in section 313, by striking ``a substantial new
question of patentability affecting a claim of the patent is
raised'' and inserting ``it has been shown that there is a
reasonable likelihood that the requester would prevail with
respect to at least 1 of the claims challenged in the
request''.
(B) Application.--The amendments made by this paragraph
shall apply to requests for inter partes reexamination that
are filed on or after the date of the enactment of this Act,
but prior to the effective date of subsection (a).
(d) Post-grant Review.--Part III of title 35, United States
Code, is amended by adding at the end the following:
``CHAPTER 32--POST-GRANT REVIEW
``Sec.
``321. Post-grant review.
``322. Petitions.
``323. Preliminary response to petition.
``324. Institution of post-grant review.
``325. Relation to other proceedings or actions.
``326. Conduct of post-grant review.
``327. Settlement.
``328. Decision of the board.
``329. Appeal.
``Sec. 321. Post-grant review
``(a) In General.--Subject to the provisions of this
chapter, a person who is not the patent owner may file with
the Office a petition to institute a post-grant review for a
patent. The Director shall establish, by regulation, fees to
be paid by the person requesting the review, in such amounts
as the Director determines to be reasonable, considering the
aggregate costs of the post-grant review.
``(b) Scope.--A petitioner in a post-grant review may
request to cancel as unpatentable 1 or more claims of a
patent on any ground that could be raised under paragraph (2)
or (3) of section 282(b) (relating to invalidity of the
patent or any claim).
``(c) Filing Deadline.--A petition for a post-grant review
shall be filed not later than 9 months after the grant of the
patent or issuance of a reissue patent.
``Sec. 322. Petitions
``(a) Requirements of Petition.--A petition filed under
section 321 may be considered only if--
``(1) the petition is accompanied by payment of the fee
established by the Director under section 321;
``(2) the petition identifies all real parties in interest;
``(3) the petition identifies, in writing and with
particularity, each claim challenged, the grounds on which
the challenge to each claim is based, and the evidence that
supports the grounds for the challenge to each claim,
including--
``(A) copies of patents and printed publications that the
petitioner relies upon in support of the petition; and
``(B) affidavits or declarations of supporting evidence and
opinions, if the petitioner relies on other factual evidence
or on expert opinions;
``(4) the petition provides such other information as the
Director may require by regulation; and
``(5) the petitioner provides copies of any of the
documents required under paragraphs (2), (3), and (4) to the
patent owner or, if applicable, the designated representative
of the patent owner.
``(b) Public Availability.--As soon as practicable after
the receipt of a petition under section 321, the Director
shall make the petition available to the public.
``Sec. 323. Preliminary response to petition
``(a) Preliminary Response.--If a post-grant review
petition is filed under section 321, the patent owner shall
have the right to file a preliminary response within 2 months
of the filing of the petition.
``(b) Content of Response.--A preliminary response to a
petition for post-grant review shall set forth reasons why no
post-grant review should be instituted based upon the failure
of the petition to meet any requirement of this chapter.
``Sec. 324. Institution of post-grant review
``(a) Threshold.--The Director may not authorize a post-
grant review to commence unless the Director determines that
the information presented in the petition, if such
information is not rebutted, would demonstrate that it is
more likely than not that at least 1 of the claims challenged
in the petition is unpatentable.
``(b) Additional Grounds.--The determination required under
subsection (a) may also be satisfied by a showing that the
petition raises a novel or unsettled legal question that is
important to other patents or patent applications.
``(c) Timing.--The Director shall determine whether to
institute a post-grant review under this chapter within 3
months after receiving a preliminary response under section
323 or, if none is filed, the expiration of the time for
filing such a response.
``(d) Notice.--The Director shall notify the petitioner and
patent owner, in writing, of the Director's determination
under subsection (a) or (b), and shall make such notice
available to the public as soon as is practicable. The
Director shall make each notice of the institution of a post-
grant review available to the public. Such notice shall list
the date on which the review shall commence.
``(e) No Appeal.--The determination by the Director whether
to institute a post-grant review under this section shall be
final and nonappealable.
``Sec. 325. Relation to other proceedings or actions
``(a) Infringer's Action.--A post-grant review may not be
instituted or maintained if the petitioner or real party in
interest has filed a civil action challenging the validity of
a claim of the patent.
``(b) Patent Owner's Action.--A post-grant review may not
be instituted if the petition requesting the proceeding is
filed more than 3 months after the date on which the
petitioner, real party in interest, or his privy is required
to respond to a civil action alleging infringement of the
patent.
``(c) Joinder.--If more than 1 petition for a post-grant
review is properly filed against the same patent and the
Director determines that more than 1 of these petitions
warrants the institution of a post-grant review under section
324, the Director may consolidate such reviews into a single
post-grant review.
``(d) Multiple Proceedings.--Notwithstanding sections
135(a), 251, and 252, and chapter 30, during the pendency of
any post-grant review, if another proceeding or matter
involving the patent is before the Office, the Director may
determine the manner in which the post-grant review or other
proceeding or matter may proceed, including providing for
stay, transfer, consolidation, or termination of any such
matter or proceeding. In determining whether to institute or
order a proceeding under this chapter, chapter 30, or chapter
31, the Director may take into account whether, and reject
the petition or request because, the same or substantially
the same prior art or arguments previously were presented to
the Office.
``(e) Estoppel.--
``(1) Proceedings before the office.--The petitioner in a
post-grant review under this chapter, or his real party in
interest or privy, may not request or maintain a proceeding
before the Office with respect to a claim on any ground that
the petitioner raised or reasonably could have raised during
a post-grant review of the claim that resulted in a final
written decision under section 328(a).
``(2) Civil actions and other proceedings.--The petitioner
in a post-grant review under this chapter, or his real party
in interest or privy, may not assert either in a civil action
arising in whole or in part under section 1338 of title 28 or
in a proceeding before the International Trade Commission
that a claim in a patent is invalid on any ground that the
petitioner raised during a post-grant review of the claim
that resulted in a final written decision under section
328(a).
``(f) Preliminary Injunctions.--If a civil action alleging
infringement of a patent is filed within 3 months of the
grant of the patent, the court may not stay its consideration
of the patent owner's motion for a preliminary injunction
against infringement of the patent on the basis that a
petition for post-grant review has been filed or that such a
proceeding has been instituted.
``(g) Reissue Patents.--A post-grant review may not be
instituted if the petition requests cancellation of a claim
in a reissue patent that is identical to or narrower than a
claim in the original patent from which the reissue patent
was issued, and the time limitations in section 321(c) would
bar filing a petition for a post-grant review for such
original patent.
``Sec. 326. Conduct of post-grant review
``(a) Regulations.--The Director shall prescribe
regulations--
``(1) providing that the file of any proceeding under this
chapter shall be made available to the public, except that
any petition or document filed with the intent that it be
sealed shall be accompanied by a motion to seal, and such
petition or document shall be treated as sealed pending the
outcome of the ruling on the motion;
``(2) setting forth the standards for the showing of
sufficient grounds to institute a review under subsections
(a) and (b) of section 324;
``(3) establishing procedures for the submission of
supplemental information after the petition is filed;
``(4) in accordance with section 2(b)(2), establishing and
governing a post-grant review under this chapter and the
relationship of such review to other proceedings under this
title;
``(5) setting forth standards and procedures for discovery
of relevant evidence, including that such discovery shall be
limited to evidence directly related to factual assertions
advanced by either party in the proceeding;
``(6) prescribing sanctions for abuse of discovery, abuse
of process, or any other improper use of the proceeding, such
as to harass or to cause unnecessary delay or an unnecessary
increase in the cost of the proceeding;
``(7) providing for protective orders governing the
exchange and submission of confidential information;
``(8) allowing the patent owner to file a response to the
petition after a post-grant review has been instituted, and
requiring that the patent owner file with such response,
[[Page S138]]
through affidavits or declarations, any additional factual
evidence and expert opinions on which the patent owner relies
in support of the response;
``(9) setting forth standards and procedures for allowing
the patent owner to move to amend the patent under subsection
(d) to cancel a challenged claim or propose a reasonable
number of substitute claims, and ensuring that any
information submitted by the patent owner in support of any
amendment entered under subsection (d) is made available to
the public as part of the prosecution history of the patent;
``(10) providing either party with the right to an oral
hearing as part of the proceeding; and
``(11) requiring that the final determination in any post-
grant review be issued not later than 1 year after the date
on which the Director notices the institution of a proceeding
under this chapter, except that the Director may, for good
cause shown, extend the 1-year period by not more than 6
months, and may adjust the time periods in this paragraph in
the case of joinder under section 325(c).
``(b) Considerations.--In prescribing regulations under
this section, the Director shall consider the effect of any
such regulation on the economy, the integrity of the patent
system, the efficient administration of the Office, and the
ability of the Office to timely complete proceedings
instituted under this chapter.
``(c) Patent Trial and Appeal Board.--The Patent Trial and
Appeal Board shall, in accordance with section 6, conduct
each proceeding authorized by the Director.
``(d) Amendment of the Patent.--
``(1) In general.--During a post-grant review instituted
under this chapter, the patent owner may file 1 motion to
amend the patent in 1 or more of the following ways:
``(A) Cancel any challenged patent claim.
``(B) For each challenged claim, propose a reasonable
number of substitute claims.
``(2) Additional motions.--Additional motions to amend may
be permitted upon the joint request of the petitioner and the
patent owner to materially advance the settlement of a
proceeding under section 327, or upon the request of the
patent owner for good cause shown.
``(3) Scope of claims.--An amendment under this subsection
may not enlarge the scope of the claims of the patent or
introduce new matter.
``(e) Evidentiary Standards.--In a post-grant review
instituted under this chapter, the petitioner shall have the
burden of proving a proposition of unpatentability by a
preponderance of the evidence.
``Sec. 327. Settlement
``(a) In General.--A post-grant review instituted under
this chapter shall be terminated with respect to any
petitioner upon the joint request of the petitioner and the
patent owner, unless the Office has decided the merits of the
proceeding before the request for termination is filed. If
the post-grant review is terminated with respect to a
petitioner under this section, no estoppel under section
325(e) shall apply to that petitioner. If no petitioner
remains in the post-grant review, the Office may terminate
the post-grant review or proceed to a final written decision
under section 328(a).
``(b) Agreements in Writing.--Any agreement or
understanding between the patent owner and a petitioner,
including any collateral agreements referred to in such
agreement or understanding, made in connection with, or in
contemplation of, the termination of a post-grant review
under this section shall be in writing, and a true copy of
such agreement or understanding shall be filed in the Office
before the termination of the post-grant review as between
the parties. If any party filing such agreement or
understanding so requests, the copy shall be kept separate
from the file of the post-grant review, and shall be made
available only to Federal Government agencies upon written
request, or to any other person on a showing of good cause.
``Sec. 328. Decision of the board
``(a) Final Written Decision.--If a post-grant review is
instituted and not dismissed under this chapter, the Patent
Trial and Appeal Board shall issue a final written decision
with respect to the patentability of any patent claim
challenged by the petitioner and any new claim added under
section 326(d).
``(b) Certificate.--If the Patent Trial and Appeal Board
issues a final written decision under subsection (a) and the
time for appeal has expired or any appeal has terminated, the
Director shall issue and publish a certificate canceling any
claim of the patent finally determined to be unpatentable,
confirming any claim of the patent determined to be
patentable, and incorporating in the patent by operation of
the certificate any new or amended claim determined to be
patentable.
``Sec. 329. Appeal
``A party dissatisfied with the final written decision of
the Patent Trial and Appeal Board under section 328(a) may
appeal the decision pursuant to sections 141 through 144. Any
party to the post-grant review shall have the right to be a
party to the appeal.''.
(e) Technical and Conforming Amendment.--The table of
chapters for part III of title 35, United States Code, is
amended by adding at the end the following:
``32. Post-Grant Review........................................ 321.''.
(f) Regulations and Effective Date.--
(1) Regulations.--The Director shall, not later than the
date that is 1 year after the date of the enactment of this
Act, issue regulations to carry out chapter 32 of title 35,
United States Code, as added by subsection (d) of this
section.
(2) Applicability.--The amendments made by subsection (d)
shall take effect on the date that is 1 year after the date
of the enactment of this Act and shall apply only to patents
issued on or after that date. The Director may impose a limit
on the number of post-grant reviews that may be instituted
during each of the 4 years following the effective date of
subsection (d).
(3) Pending interferences.--The Director shall determine
the procedures under which interferences commenced before the
effective date of subsection (d) are to proceed, including
whether any such interference is to be dismissed without
prejudice to the filing of a petition for a post-grant review
under chapter 32 of title 35, United States Code, or is to
proceed as if this Act had not been enacted. The Director
shall include such procedures in regulations issued under
paragraph (1). For purposes of an interference that is
commenced before the effective date of subsection (d), the
Director may deem the Patent Trial and Appeal Board to be the
Board of Patent Appeals and Interferences, and may allow the
Patent Trial and Appeal Board to conduct any further
proceedings in that interference. The authorization to appeal
or have remedy from derivation proceedings in sections 141(d)
and 146 of title 35, United States Code, and the jurisdiction
to entertain appeals from derivation proceedings in section
1295(a)(4)(A) of title 28, United States Code, shall be
deemed to extend to final decisions in interferences that are
commenced before the effective date of subsection (d) and
that are not dismissed pursuant to this paragraph.
(g) Citation of Prior Art and Written Statements.--
(1) In general.--Section 301 of title 35, United States
Code, is amended to read as follows:
``Sec. 301. Citation of prior art and written statements
``(a) In General.--Any person at any time may cite to the
Office in writing--
``(1) prior art consisting of patents or printed
publications which that person believes to have a bearing on
the patentability of any claim of a particular patent; or
``(2) statements of the patent owner filed in a proceeding
before a Federal court or the Office in which the patent
owner took a position on the scope of any claim of a
particular patent.
``(b) Official File.--If the person citing prior art or
written statements pursuant to subsection (a) explains in
writing the pertinence and manner of applying the prior art
or written statements to at least 1 claim of the patent, the
citation of the prior art or written statements and the
explanation thereof shall become a part of the official file
of the patent.
``(c) Additional Information.--A party that submits a
written statement pursuant to subsection (a)(2) shall include
any other documents, pleadings, or evidence from the
proceeding in which the statement was filed that addresses
the written statement.
``(d) Limitations.--A written statement submitted pursuant
to subsection (a)(2), and additional information submitted
pursuant to subsection (c), shall not be considered by the
Office for any purpose other than to determine the proper
meaning of a patent claim in a proceeding that is ordered or
instituted pursuant to section 304, 314, or 324. If any such
written statement or additional information is subject to an
applicable protective order, it shall be redacted to exclude
information that is subject to that order.
``(e) Confidentiality.--Upon the written request of the
person citing prior art or written statements pursuant to
subsection (a), that person's identity shall be excluded from
the patent file and kept confidential.''.
(2) Effective date.--The amendment made by this subsection
shall take effect 1 year after the date of the enactment of
this Act and shall apply to patents issued before, on, or
after that effective date.
(h) Reexamination.--
(1) Determination by director.--
(A) In general.--Section 303(a) of title 35, United States
Code, is amended by striking ``section 301 of this title''
and inserting ``section 301 or 302''.
(B) Effective date.--The amendment made by this paragraph
shall take effect 1 year after the date of the enactment of
this Act and shall apply to patents issued before, on, or
after that effective date.
(2) Appeal.--
(A) In general.--Section 306 of title 35, United States
Code, is amended by striking ``145'' and inserting ``144''.
(B) Effective date.--The amendment made by this paragraph
shall take effect on the date of enactment of this Act and
shall apply to appeals of reexaminations that are pending
before the Board of Patent Appeals and Interferences or the
Patent Trial and Appeal Board on or after the date of the
enactment of this Act.
SEC. 6. PATENT TRIAL AND APPEAL BOARD.
(a) Composition and Duties.--Section 6 of title 35, United
States Code, is amended to read as follows:
``Sec. 6. Patent Trial and Appeal Board
``(a) There shall be in the Office a Patent Trial and
Appeal Board. The Director, the Deputy Director, the
Commissioner for Patents, the Commissioner for Trademarks,
and
[[Page S139]]
the administrative patent judges shall constitute the Patent
Trial and Appeal Board. The administrative patent judges
shall be persons of competent legal knowledge and scientific
ability who are appointed by the Secretary, in consultation
with the Director. Any reference in any Federal law,
Executive order, rule, regulation, or delegation of
authority, or any document of or pertaining to the Board of
Patent Appeals and Interferences is deemed to refer to the
Patent Trial and Appeal Board.
``(b) The Patent Trial and Appeal Board shall--
``(1) on written appeal of an applicant, review adverse
decisions of examiners upon applications for patents pursuant
to section 134(a);
``(2) review appeals of reexaminations pursuant to section
134(b);
``(3) conduct derivation proceedings pursuant to section
135; and
``(4) conduct inter partes reviews and post-grant reviews
pursuant to chapters 31 and 32.
``(c) Each appeal, derivation proceeding, post-grant
review, and inter partes review shall be heard by at least 3
members of the Patent Trial and Appeal Board, who shall be
designated by the Director. Only the Patent Trial and Appeal
Board may grant rehearings.
``(d) The Secretary of Commerce may, in his discretion,
deem the appointment of an administrative patent judge who,
before the date of the enactment of this subsection, held
office pursuant to an appointment by the Director to take
effect on the date on which the Director initially appointed
the administrative patent judge. It shall be a defense to a
challenge to the appointment of an administrative patent
judge on the basis of the judge's having been originally
appointed by the Director that the administrative patent
judge so appointed was acting as a de facto officer.''.
(b) Administrative Appeals.--Section 134 of title 35,
United States Code, is amended--
(1) in subsection (b), by striking ``any reexamination
proceeding'' and inserting ``a reexamination''; and
(2) by striking subsection (c).
(c) Circuit Appeals.--
(1) In general.--Section 141 of title 35, United States
Code, is amended to read as follows:
``Sec. 141. Appeal to the Court of Appeals for the Federal
Circuit
``(a) Examinations.--An applicant who is dissatisfied with
the final decision in an appeal to the Patent Trial and
Appeal Board under section 134(a) may appeal the Board's
decision to the United States Court of Appeals for the
Federal Circuit. By filing such an appeal, the applicant
waives his right to proceed under section 145.
``(b) Reexaminations.--A patent owner who is dissatisfied
with the final decision in an appeal of a reexamination to
the Patent Trial and Appeal Board under section 134(b) may
appeal the Board's decision only to the United States Court
of Appeals for the Federal Circuit.
``(c) Post-grant and Inter Partes Reviews.--A party to a
post-grant or inter partes review who is dissatisfied with
the final written decision of the Patent Trial and Appeal
Board under section 318(a) or 328(a) may appeal the Board's
decision only to the United States Court of Appeals for the
Federal Circuit.
``(d) Derivation Proceedings.--A party to a derivation
proceeding who is dissatisfied with the final decision of the
Patent Trial and Appeal Board on the proceeding may appeal
the decision to the United States Court of Appeals for the
Federal Circuit, but such appeal shall be dismissed if any
adverse party to such derivation proceeding, within 20 days
after the appellant has filed notice of appeal in accordance
with section 142, files notice with the Director that the
party elects to have all further proceedings conducted as
provided in section 146. If the appellant does not, within 30
days after the filing of such notice by the adverse party,
file a civil action under section 146, the Board's decision
shall govern the further proceedings in the case.''.
(2) Jurisdiction.--Section 1295(a)(4)(A) of title 28,
United States Code, is amended to read as follows:
``(A) the Patent Trial and Appeal Board of the United
States Patent and Trademark Office with respect to patent
applications, derivation proceedings, reexaminations, post-
grant reviews, and inter partes reviews at the instance of a
party who exercised his right to participate in a proceeding
before or appeal to the Board, except that an applicant or a
party to a derivation proceeding may also have remedy by
civil action pursuant to section 145 or 146 of title 35. An
appeal under this subparagraph of a decision of the Board
with respect to an application or derivation proceeding shall
waive the right of such applicant or party to proceed under
section 145 or 146 of title 35;''.
(3) Proceedings on appeal.--Section 143 of title 35, United
States Code, is amended--
(A) by striking the third sentence and inserting the
following: ``In an ex parte case, the Director shall submit
to the court in writing the grounds for the decision of the
Patent and Trademark Office, addressing all of the issues
raised in the appeal. The Director shall have the right to
intervene in an appeal from a decision entered by the Patent
Trial and Appeal Board in a derivation proceeding under
section 135 or in an inter partes or post-grant review under
chapter 31 or 32.''; and
(B) by repealing the second of the two identical fourth
sentences.
(d) Effective Date.--The amendments made by this section
shall take effect 1 year after the date of the enactment of
this Act and shall apply to proceedings commenced on or after
that effective date, except that--
(1) the extension of jurisdiction to the United States
Court of Appeals for the Federal Circuit to entertain appeals
of decisions of the Patent Trial and Appeal Board in
reexaminations under the amendment made by subsection (c)(2)
shall be deemed to take effect on the date of enactment of
this Act and shall extend to any decision of the Board of
Patent Appeals and Interferences with respect to a
reexamination that is entered before, on, or after the date
of the enactment of this Act;
(2) the provisions of sections 6, 134, and 141 of title 35,
United States Code, in effect on the day prior to the date of
the enactment of this Act shall continue to apply to inter
partes reexaminations that are requested under section 311
prior to the date that is 1 year after the date of the
enactment of this Act;
(3) the Patent Trial and Appeal Board may be deemed to be
the Board of Patent Appeals and Interferences for purposes of
appeals of inter partes reexaminations that are requested
under section 311 prior to the date that is 1 year after the
date of the enactment of this Act; and
(4) the Director's right under the last sentence of section
143 of title 35, United States Code, as amended by subsection
(c)(3), to intervene in an appeal from a decision entered by
the Patent Trial and Appeal Board shall be deemed to extend
to inter partes reexaminations that are requested under
section 311 prior to the date that is 1 year after the date
of the enactment of this Act.
SEC. 7. PREISSUANCE SUBMISSIONS BY THIRD PARTIES.
(a) In General.--Section 122 of title 35, United States
Code, is amended by adding at the end the following:
``(e) Preissuance Submissions by Third Parties.--
``(1) In general.--Any third party may submit for
consideration and inclusion in the record of a patent
application, any patent, published patent application, or
other printed publication of potential relevance to the
examination of the application, if such submission is made in
writing before the earlier of--
``(A) the date a notice of allowance under section 151 is
given or mailed in the application for patent; or
``(B) the later of--
``(i) 6 months after the date on which the application for
patent is first published under section 122 by the Office, or
``(ii) the date of the first rejection under section 132 of
any claim by the examiner during the examination of the
application for patent.
``(2) Other requirements.--Any submission under paragraph
(1) shall--
``(A) set forth a concise description of the asserted
relevance of each submitted document;
``(B) be accompanied by such fee as the Director may
prescribe; and
``(C) include a statement by the person making such
submission affirming that the submission was made in
compliance with this section.''.
(b) Effective Date.--The amendments made by this section
shall take effect 1 year after the date of the enactment of
this Act and shall apply to patent applications filed before,
on, or after that effective date.
SEC. 8. VENUE.
(a) Change of Venue.--Section 1400 of title 28, Unite
States Code, is amended by adding at the end the following:
``(c) Change of Venue.--For the convenience of parties and
witnesses, in the interest of justice, a district court shall
transfer any civil action arising under any Act of Congress
relating to patents upon a showing that the transferee venue
is clearly more convenient than the venue in which the civil
action is pending.''.
(b) Technical Amendments Relating to Venue.--Sections 32,
145, 146, 154(b)(4)(A), and 293 of title 35, United States
Code, and section 21(b)(4) of the Act entitled ``An Act to
provide for the registration and protection of trademarks
used in commerce, to carry out the provisions of certain
international conventions, and for other purposes'', approved
July 5, 1946 (commonly referred to as the ``Trademark Act of
1946'' or the ``Lanham Act''; 15 U.S.C. 1071(b)(4)), are each
amended by striking ``United States District Court for the
District of Columbia'' each place that term appears and
inserting ``United States District Court for the Eastern
District of Virginia''.
(c) Effective Date.--The amendments made by this section
shall take effect upon the date of the enactment of this Act
and shall apply to civil actions commenced on or after that
date.
SEC. 9. FEE SETTING AUTHORITY.
(a) Fee Setting.--
(1) In general.--The Director shall have authority to set
or adjust by rule any fee established or charged by the
Office under sections 41 and 376 of title 35, United States
Code, or under section 31 of the Trademark Act of 1946 (15
U.S.C. 1113), or any other fee established or charged by the
Office under any other provision of law, notwithstanding the
fee amounts established or charged thereunder, for the filing
or processing of
[[Page S140]]
any submission to, and for all other services performed by or
materials furnished by, the Office, provided that patent and
trademark fee amounts are in the aggregate set to recover the
estimated cost to the Office for processing, activities,
services and materials relating to patents and trademarks,
respectively, including proportionate shares of the
administrative costs of the Office.
(2) Small and micro entities.--The fees established under
paragraph (1) for filing, processing, issuing, and
maintaining patent applications and patents shall be reduced
by 50 percent with respect to their application to any small
entity that qualifies for reduced fees under section 41(h)(1)
of title 35, United States Code, and shall be reduced by 75
percent with respect to their application to any micro entity
as defined in section 123 of that title.
(3) Reduction of fees in certain fiscal years.--In any
fiscal year, the Director--
(A) shall consult with the Patent Public Advisory Committee
and the Trademark Public Advisory Committee on the
advisability of reducing any fees described in paragraph (1);
and
(B) after the consultation required under subparagraph (A),
may reduce such fees.
(4) Role of the public advisory committee.--The Director
shall--
(A) submit to the Patent Public Advisory Committee or the
Trademark Public Advisory Committee, or both, as appropriate,
any proposed fee under paragraph (1) not less than 45 days
before publishing any proposed fee in the Federal Register;
(B) provide the relevant advisory committee described in
subparagraph (A) a 30-day period following the submission of
any proposed fee, on which to deliberate, consider, and
comment on such proposal, and require that--
(i) during such 30-day period, the relevant advisory
committee hold a public hearing related to such proposal; and
(ii) the Director shall assist the relevant advisory
committee in carrying out such public hearing, including by
offering the use of Office resources to notify and promote
the hearing to the public and interested stakeholders;
(C) require the relevant advisory committee to make
available to the public a written report detailing the
comments, advice, and recommendations of the committee
regarding any proposed fee;
(D) consider and analyze any comments, advice, or
recommendations received from the relevant advisory committee
before setting or adjusting any fee; and
(E) notify, through the Chair and Ranking Member of the
Senate and House Judiciary Committees, the Congress of any
final rule setting or adjusting fees under paragraph (1).
(5) Publication in the federal register.--
(A) In general.--Any rules prescribed under this subsection
shall be published in the Federal Register.
(B) Rationale.--Any proposal for a change in fees under
this section shall--
(i) be published in the Federal Register; and
(ii) include, in such publication, the specific rationale
and purpose for the proposal, including the possible
expectations or benefits resulting from the proposed change.
(C) Public comment period.--Following the publication of
any proposed fee in the Federal Register pursuant to
subparagraph (A), the Director shall seek public comment for
a period of not less than 45 days.
(6) Congressional comment period.--Following the
notification described in paragraph (3)(E), Congress shall
have not more than 45 days to consider and comment on any
final rule setting or adjusting fees under paragraph (1). No
fee set or adjusted under paragraph (1) shall be effective
prior to the end of such 45-day comment period.
(7) Rule of construction.--No rules prescribed under this
subsection may diminish--
(A) an applicant's rights under title 35, United States
Code, or the Trademark Act of 1946; or
(B) any rights under a ratified treaty.
(b) Fees for Patent Services.--Division B of Public Law
108-447 is amended in title VIII of the Departments of
Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 2005--
(1) in subsections (a), (b), and (c) of section 801, by--
(A) striking ``During'' and all that follows through ``
2006, subsection'' and inserting ``Subsection''; and
(B) striking ``shall be administered as though that
subsection reads'' and inserting ``is amended to read'';
(2) in subsection (d) of section 801, by striking
``During'' and all that follows through `` 2006, subsection''
and inserting ``Subsection''; and
(3) in subsection (e) of section 801, by--
(A) striking ``During'' and all that follows through
``2006, subsection'' and inserting ``Subsection''; and
(B) striking ``shall be administered as though that
subsection''.
(c) Adjustment of Trademark Fees.----Division B of Public
Law 108-447 is amended in title VIII of the Departments of
Commerce, Justice and State, the Judiciary and Related
Agencies Appropriations Act, 2005, in section 802(a) by
striking ``During fiscal years 2005, 2006 and 2007'', and
inserting ``Until such time as the Director sets or adjusts
the fees otherwise,''.
(d) Effective Date, Applicability, and Transition
Provisions.--Division B of Public Law 108-447 is amended in
title VIII of the Departments of Commerce, Justice and State,
the Judiciary and Related Agencies Appropriations Act, 2005,
in section 803(a) by striking ``and shall apply only with
respect to the remaining portion of fiscal year 2005, 2006
and 2007''.
(e) Statutory Authority.--Section 41(d)(1)(A) of title 35,
United States Code, is amended by striking ``, and the
Director may not increase any such fee thereafter''.
(f) Rule of Construction.--Nothing in this section shall be
construed to affect any other provision of Division B of
Public Law 108-447, including section 801(c) of title VIII of
the Departments of Commerce, Justice and State, the Judiciary
and Related Agencies Appropriations Act, 2005.
(g) Definitions.--In this section, the following
definitions shall apply:
(1) Director.--The term ``Director'' means the Director of
the United States Patent and Trademark Office.
(2) Office.--The term ``Office'' means the United States
Patent and Trademark Office.
(3) Trademark act of 1946.--The term ``Trademark Act of
1946'' means an Act entitled ``Act to provide for the
registration and protection of trademarks used in commerce,
to carry out the provisions of certain international
conventions, and for other purposes'', approved July 5, 1946
(15 U.S.C. 1051 et seq.) (commonly referred to as the
Trademark Act of 1946 or the Lanham Act).
(h) Electronic Filing Incentive.--
(1) In general.--Notwithstanding any other provision of
this section, a fee of $400 shall be established for each
application for an original patent, except for a design,
plant, or provisional application, that is not filed by
electronic means as prescribed by the Director. The fee
established by this subsection shall be reduced 50 percent
for small entities that qualify for reduced fees under
section 41(h)(1) of title 35, United States Code. All fees
paid under this subsection shall be deposited in the Treasury
as an offsetting receipt that shall not be available for
obligation or expenditure.
(2) Effective date.--This subsection shall become effective
60 days after the date of the enactment of this Act.
(i) Effective Date.--Except as provided in subsection (h),
the provisions of this section shall take effect upon the
date of the enactment of this Act.
SEC. 10. SUPPLEMENTAL EXAMINATION.
(a) In General.--Chapter 25 of title 35, United States
Code, is amended by adding at the end the following:
``Sec. 257. Supplemental examinations to consider,
reconsider, or correct information
``(a) In General.--A patent owner may request supplemental
examination of a patent in the Office to consider,
reconsider, or correct information believed to be relevant to
the patent. Within 3 months of the date a request for
supplemental examination meeting the requirements of this
section is received, the Director shall conduct the
supplemental examination and shall conclude such examination
by issuing a certificate indicating whether the information
presented in the request raises a substantial new question of
patentability.
``(b) Reexamination Ordered.--If a substantial new question
of patentability is raised by 1 or more items of information
in the request, the Director shall order reexamination of the
patent. The reexamination shall be conducted according to
procedures established by chapter 30, except that the patent
owner shall not have the right to file a statement pursuant
to section 304. During the reexamination, the Director shall
address each substantial new question of patentability
identified during the supplemental examination,
notwithstanding the limitations therein relating to patents
and printed publication or any other provision of chapter 30.
``(c) Effect.--
``(1) In general.--A patent shall not be held unenforceable
on the basis of conduct relating to information that had not
been considered, was inadequately considered, or was
incorrect in a prior examination of the patent if the
information was considered, reconsidered, or corrected during
a supplemental examination of the patent. The making of a
request under subsection (a), or the absence thereof, shall
not be relevant to enforceability of the patent under section
282.
``(2) Exceptions.--
``(A) Prior allegations.--This subsection shall not apply
to an allegation pled with particularity, or set forth with
particularity in a notice received by the patent owner under
section 505(j)(2)(B)(iv)(II) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 355(j)(2)(B)(iv)(II)), before the
date of a supplemental-examination request under subsection
(a) to consider, reconsider, or correct information forming
the basis for the allegation.
``(B) Patent enforcement actions.--In an action brought
under section 337(a) of the Tariff Act of 1930 (19 U.S.C.
1337(a)), or section 281 of this title, this subsection shall
not apply to any defense raised in the action that is based
upon information that was considered, reconsidered, or
corrected pursuant to a supplemental-examination request
under subsection (a) unless the supplemental examination, and
any reexamination ordered pursuant to the request, are
concluded before the date on which the action is brought.
``(d) Fees and Regulations.--The Director shall, by
regulation, establish fees for the submission of a request
for supplemental examination of a patent, and to consider
each item of information submitted in the request. If
reexamination is ordered pursuant
[[Page S141]]
to subsection (a), fees established and applicable to ex
parte reexamination proceedings under chapter 30 shall be
paid in addition to fees applicable to supplemental
examination. The Director shall promulgate regulations
governing the form, content, and other requirements of
requests for supplemental examination, and establishing
procedures for conducting review of information submitted in
such requests.
``(e) Rule of Construction.--Nothing in this section shall
be construed--
``(1) to preclude the imposition of sanctions based upon
criminal or antitrust laws (including section 1001(a) of
title 18, the first section of the Clayton Act, and section 5
of the Federal Trade Commission Act to the extent that
section relates to unfair methods of competition);
``(2) to limit the authority of the Director to investigate
issues of possible misconduct and impose sanctions for
misconduct in connection with matters or proceedings before
the Office; or
``(3) to limit the authority of the Director to promulgate
regulations under chapter 3 relating to sanctions for
misconduct by representatives practicing before the
Office.''.
(b) Effective Date.--This section shall take effect 1 year
after the date of the enactment of this Act and shall apply
to patents issued before, on, or after that date.
SEC. 11. RESIDENCY OF FEDERAL CIRCUIT JUDGES.
(a) Residency.--The second sentence of section 44(c) of
title 28, United States Code, is repealed.
(b) Facilities.--Section 44 of title 28, United States
Code, is amended by adding at the end the following:
``(e)(1) The Director of the Administrative Office of the
United States Courts shall provide--
``(A) a judge of the Federal judicial circuit who lives
within 50 miles of the District of Columbia with appropriate
facilities and administrative support services in the
District of the District of Columbia; and
``(B) a judge of the Federal judicial circuit who does not
live within 50 miles of the District of Columbia with
appropriate facilities and administrative support services--
``(i) in the district and division in which that judge
resides; or
``(ii) if appropriate facilities are not available in the
district and division in which that judge resides, in the
district and division closest to the residence of that judge
in which such facilities are available, as determined by the
Director.
``(2) Nothing in this subsection may be construed to
authorize or require the construction of new facilities.''.
SEC. 12. MICRO ENTITY DEFINED.
Chapter 11 of title 35, United States Code, is amended by
adding at the end the following new section:
``Sec. 123. Micro entity defined
``(a) In General.--For purposes of this title, the term
`micro entity' means an applicant who makes a certification
under either subsection (b) or (c).
``(b) Unassigned Application.--For an unassigned
application, each applicant shall certify that the
applicant--
``(1) qualifies as a small entity, as defined in
regulations issued by the Director;
``(2) has not been named on 5 or more previously filed
patent applications;
``(3) has not assigned, granted, or conveyed, and is not
under an obligation by contract or law to assign, grant, or
convey, a license or any other ownership interest in the
particular application; and
``(4) does not have a gross income, as defined in section
61(a) of the Internal Revenue Code (26 U.S.C. 61(a)),
exceeding 2.5 times the average gross income, as reported by
the Department of Labor, in the calendar year immediately
preceding the calendar year in which the examination fee is
being paid.
``(c) Assigned Application.--For an assigned application,
each applicant shall certify that the applicant--
``(1) qualifies as a small entity, as defined in
regulations issued by the Director, and meets the
requirements of subsection (b)(4);
``(2) has not been named on 5 or more previously filed
patent applications; and
``(3) has assigned, granted, conveyed, or is under an
obligation by contract or law to assign, grant, or convey, a
license or other ownership interest in the particular
application to an entity that has 5 or fewer employees and
that such entity has a gross income, as defined in section
61(a) of the Internal Revenue Code (26 U.S.C. 61(a)), that
does not exceed 2.5 times the average gross income, as
reported by the Department of Labor, in the calendar year
immediately preceding the calendar year in which the
examination fee is being paid.
``(d) Income Level Adjustment.--The gross income levels
established under subsections (b) and (c) shall be adjusted
by the Director on October 1, 2009, and every year
thereafter, to reflect any fluctuations occurring during the
previous 12 months in the Consumer Price Index, as determined
by the Secretary of Labor.''.
SEC. 13. FUNDING AGREEMENTS.
(a) In General.--Section 202(c)(7)(E)(i) of title 35,
United States Code, is amended--
(1) by striking ``75 percent'' and inserting ``15
percent''; and
(2) by striking ``25 percent'' and inserting ``85
percent''.
(b) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this Act and
shall apply to patents issued before, on, or after that date.
SEC. 14. TAX STRATEGIES DEEMED WITHIN THE PRIOR ART.
(a) In General.--For purposes of evaluating an invention
under section 102 or 103 of title 35, United States Code, any
strategy for reducing, avoiding, or deferring tax liability,
whether known or unknown at the time of the invention or
application for patent, shall be deemed insufficient to
differentiate a claimed invention from the prior art.
(b) Definition.--For purposes of this section, the term
``tax liability'' refers to any liability for a tax under any
Federal, State, or local law, or the law of any foreign
jurisdiction, including any statute, rule, regulation, or
ordinance that levies, imposes, or assesses such tax
liability.
(c) Effective Date; Applicability.--This section shall take
effect on the date of enactment of this Act and shall apply
to any patent application pending and any patent issued on or
after that date.
SEC. 15. BEST MODE REQUIREMENT.
(a) In General.--Section 282 of title 35, United State
Code, is amended in its second undesignated paragraph by
striking paragraph (3) and inserting the following:
``(3) Invalidity of the patent or any claim in suit for
failure to comply with--
``(A) any requirement of section 112, except that the
failure to disclose the best mode shall not be a basis on
which any claim of a patent may be canceled or held invalid
or otherwise unenforceable; or
``(B) any requirement of section 251.''.
(b) Conforming Amendment.--Sections 119(e)(1) and 120 of
title 35, United States Code, are each amended by striking
``the first paragraph of section 112 of this title'' and
inserting ``section 112(a) (other than the requirement to
disclose the best mode)''.
(c) Effective Date.--The amendments made by this section
shall take effect upon the date of the enactment of this Act
and shall apply to proceedings commenced on or after that
date.
SEC. 16. TECHNICAL AMENDMENTS.
(a) Joint Inventions.--Section 116 of title 35, United
States Code, is amended--
(1) in the first paragraph, by striking ``When'' and
inserting ``(a) Joint Inventions.--When'';
(2) in the second paragraph, by striking ``If a joint
inventor'' and inserting ``(b) Omitted Inventor.--If a joint
inventor''; and
(3) in the third paragraph--
(A) by striking ``Whenever'' and inserting ``(c) Correction
of Errors in Application.--Whenever''; and
(B) by striking ``and such error arose without any
deceptive intent on his part,''.
(b) Filing of Application in Foreign Country.--Section 184
of title 35, United States Code, is amended--
(1) in the first paragraph--
(A) by striking ``Except when'' and inserting ``(a) Filing
in Foreign Country.--Except when''; and
(B) by striking ``and without deceptive intent'';
(2) in the second paragraph, by striking ``The term'' and
inserting ``(b) Application.--The term''; and
(3) in the third paragraph, by striking ``The scope'' and
inserting ``(c) Subsequent Modifications, Amendments, and
Supplements.--The scope''.
(c) Filing Without a License.--Section 185 of title 35,
United States Code, is amended by striking ``and without
deceptive intent''.
(d) Reissue of Defective Patents.--Section 251 of title 35,
United States Code, is amended--
(1) in the first paragraph--
(A) by striking ``Whenever'' and inserting ``(a) In
General.--Whenever''; and
(B) by striking ``without any deceptive intention'';
(2) in the second paragraph, by striking ``The Director''
and inserting ``(b) Multiple Reissued Patents.--The
Director'';
(3) in the third paragraph, by striking ``The provisions''
and inserting ``(c) Applicability of This Title.--The
provisions''; and
(4) in the last paragraph, by striking ``No reissued
patent'' and inserting ``(d) Reissue Patent Enlarging Scope
of Claims.--No reissued patent''.
(e) Effect of Reissue.--Section 253 of title 35, United
States Code, is amended--
(1) in the first paragraph, by striking ``Whenever, without
any deceptive intention'' and inserting ``(a) In General.--
Whenever''; and
(2) in the second paragraph, by striking ``in like manner''
and inserting ``(b) Additional Disclaimer or Dedication.--In
the manner set forth in subsection (a),''.
(f) Correction of Named Inventor.--Section 256 of title 35,
United States Code, is amended--
(1) in the first paragraph--
(A) by striking ``Whenever'' and inserting ``(a)
Correction.--Whenever''; and
(B) by striking ``and such error arose without any
deceptive intention on his part''; and
(2) in the second paragraph, by striking ``The error'' and
inserting ``(b) Patent Valid if Error Corrected.--The
error''.
(g) Presumption of Validity.--Section 282 of title 35,
United States Code, is amended--
(1) in the first undesignated paragraph--
(A) by striking ``A patent'' and inserting ``(a) In
General.--A patent''; and
(B) by striking the third sentence;
(2) in the second undesignated paragraph, by striking ``The
following'' and inserting ``(b) Defenses.--The following'';
and
[[Page S142]]
(3) in the third undesignated paragraph, by striking ``In
actions'' and inserting ``(c) Notice of Actions; Actions
During Extension of Patent Term.--In actions''.
(h) Action for Infringement.--Section 288 of title 35,
United States Code, is amended by striking ``, without
deceptive intention,''.
(i) Reviser's Notes.--
(1) Section 3(e)(2) of title 35, United States Code, is
amended by striking ``this Act,'' and inserting ``that
Act,''.
(2) Section 202(b)(3) of title 35, United States Code, is
amended by striking ``the section 203(b)'' and inserting
``section 203(b)''; and
(3) Section 209(d)(1) of title 35, United States Code, is
amended by striking ``nontransferrable'' and inserting
``nontransferable''.
(4) Section 287(c)(2)(G) of title 35, United States Code,
is amended by striking ``any state'' and inserting ``any
State''.
(5) Section 371(b) of title 35, United States Code, is
amended by striking ``of the treaty'' and inserting ``of the
treaty.''.
(j) Unnecessary References.--
(1) In general.--Title 35, United States Code, is amended
by striking ``of this title'' each place that term appears.
(2) Exception.--The amendment made by paragraph (1) shall
not apply to the use of such term in the following sections
of title 35, United States Code:
(A) Section 1(c).
(B) Section 101.
(C) Subsections (a) and (b) of section 105.
(D) The first instance of the use of such term in section
111(b)(8).
(E) Section 157(a).
(F) Section 161.
(G) Section 164.
(H) Section 171.
(I) Section 251(c), as so designated by this section.
(J) Section 261.
(K) Subsections (g) and (h) of section 271.
(L) Section 287(b)(1).
(M) Section 289.
(N) The first instance of the use of such term in section
375(a).
(k) Effective Date.--The amendments made by this section
shall take effect 1 year after the date of the enactment of
this Act and shall apply to proceedings commenced on or after
that effective date.
SEC. 17. EFFECTIVE DATE; RULE OF CONSTRUCTION.
(a) Effective Date.--Except as otherwise provided in this
Act, the provisions of this Act shall take effect 1 year
after the date of the enactment of this Act and shall apply
to any patent issued on or after that effective date.
(b) Continuity of Intent Under the Create Act.--The
enactment of section 102(c) of title 35, United States Code,
under section (2)(b) of this Act is done with the same intent
to promote joint research activities that was expressed,
including in the legislative history, through the enactment
of the Cooperative Research and Technology Enhancement Act of
2004 (Public Law 108-453; the ``CREATE Act''), the amendments
of which are stricken by section 2(c) of this Act. The United
States Patent and Trademark Office shall administer section
102(c) of title 35, United States Code, in a manner
consistent with the legislative history of the CREATE Act
that was relevant to its administration by the United States
Patent and Trademark Office.
Mr. HATCH. Mr. President, I rise to express support for the Patent
Reform Act of 2011, S. 23, introduced today by Senate Judiciary
Committee Chairman Patrick Leahy. Senator Leahy and I, along with a
number of our colleagues, have worked for years to enact much-needed
reform to our Nation's patent system.
Last Congress, the Managers' Amendment to the Patent Reform Act of
2009, S. 515, enjoyed strong bipartisan support for Senate floor
consideration and passage; the momentum undoubtedly will continue under
the leadership of Judiciary Committee Chairman Leahy and Ranking
Minority Member Charles Grassley. Similarly, House Judiciary Committee
Chairman Lamar Smith and Ranking Minority Member John Conyers are true
partners in this important legislation. They share the same desire to
streamline our patent system in a way that will improve the clarity and
quality of patents issued by the U.S. Patent and Trademark Office,
USPTO, which in return will provide greater confidence in their
validity and enforcement.
I have said this before, but it bears repeating: we must ensure that
our patent system is as strong and vibrant as possible, not only to
protect our country's premier position as the world leader in
innovation, but also to secure our economic future. Patents encourage
technological advancement by providing incentives to invent, invest in,
and disclose new technology. Now, more than ever, it is important to
ensure efficiency and increased quality in the issuance of patents.
This in turn will create an environment that fosters entrepreneurship
and the creation of new jobs.
One single deployed patent has positive effects across almost all
sectors of our economy. As a result, properly examined patents,
promptly issued by the USPTO, creates jobs--jobs that are dedicated to
developing and producing new products and services. Unfortunately, the
current USPTO backlog of applications now exceeds 700,000 applications.
The sheer volume of patent applications not only reflects the vibrant,
innovative spirit that has made America a world-wide leader in science,
engineering, and technology, but also represents dynamic economic
growth waiting to be unleashed.
If enacted, the Patent Reform Act of 2011 would move the United
States to a first-inventor-to-file system, which will bring greater
harmony and improve our competiveness. Also, among other things, the
bill would improve the system for administratively challenging the
validity of a patent at the USPTO; improve patent quality; create a
supplemental examination process for patent owners; prevent patents
from being issued on claims for tax strategies; and provide fee-setting
authority for the USPTO Director to ensure the Office is properly
funded.
This bipartisan bill also contains provisions on venue; changes to
the best mode; increased incentives for government laboratories to
commercialize inventions; restrictions on false marking claims, and
removes restrictions on the residency of Federal Circuit judges.
We have been working on this legislation since 2006. Reforming our
patent system is a critical priority whose time has more than come. It
is essential to growing our economy, creating jobs and promoting
innovation in our Nation. I encourage my colleagues to join in this
effort and help move this important legislation forward.
______
By Mrs. SHAHEEN (for herself, Mr. Kirk, and Mr. Durbin):
S. 25. A bill to phase out the Federal sugar program, and for other
purposes; to the Committee on Agriculture, Nutrition, and Forestry.
Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 25
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Stop Unfair Giveaways and
Restrictions Act of 2011'' or ``SUGAR Act of 2011''.
SEC. 2. SUGAR PROGRAM.
(a) In General.--Section 156 of the Federal Agriculture
Improvement and Reform Act of 1996 (7 U.S.C. 7272) is
amended--
(1) in subsection (d), by striking paragraph (1) and
inserting the following:
``(1) Loans.--The Secretary shall carry out this section
through the use of recourse loans.'';
(2) by redesignating subsection (i) as subsection (j);
(3) by inserting after subsection (h) the following:
``(i) Phased Reduction of Loan Rate.--For each of the 2012,
2013, and 2014 crops of sugar beets and sugarcane, the
Secretary shall lower the loan rate for each succeeding crop
in a manner that progressively and uniformly lowers the loan
rate for sugar beets and sugarcane to $0 for the 2015
crop.''; and
(4) in subsection (j) (as redesignated), by striking
``2012'' and inserting ``2014''.
(b) Prospective Repeal.--Effective beginning with the 2015
crop of sugar beets and sugarcane, section 156 of the Federal
Agriculture Improvement and Reform Act of 1996 (7 U.S.C.
7272) is repealed.
SEC. 3. ELIMINATION OF SUGAR PRICE SUPPORT AND PRODUCTION
ADJUSTMENT PROGRAMS.
(a) In General.--Notwithstanding any other provision of
law--
(1) a processor of any of the 2015 or subsequent crops of
sugarcane or sugar beets shall not be eligible for a loan
under any provision of law with respect to the crop; and
(2) the Secretary of Agriculture may not make price support
available, whether in the form of a loan, payment, purchase,
or other operation, for any of the 2015 and subsequent crops
of sugar beets and sugarcane by using the funds of the
Commodity Credit Corporation or other funds available to the
Secretary.
(b) Termination of Marketing Quotas and Allotments.--
(1) In general.--Part VII of subtitle B of title III of the
Agricultural Adjustment Act of 1938 (7 U.S.C. 1359aa et seq.)
is repealed.
(2) Conforming amendment.--Section 344(f)(2) of the
Agricultural Adjustment Act of 1938 (7 U.S.C. 1344(f)(2)) is
amended by striking ``sugar cane for sugar, sugar beets for
sugar,''.
(c) General Powers.--
(1) Section 32 activities.--Section 32 of the Act of August
24, 1935 (7 U.S.C. 612c), is
[[Page S143]]
amended in the second sentence of the first paragraph--
(A) in paragraph (1), by inserting ``(other than sugar
beets and sugarcane)'' after ``commodities''; and
(B) in paragraph (3), by inserting ``(other than sugar
beets and sugarcane)'' after ``commodity''.
(2) Powers of commodity credit corporation.--Section 5(a)
of the Commodity Credit Corporation Charter Act (15 U.S.C.
714c(a)) is amended by inserting ``, sugar beets, and
sugarcane'' after ``tobacco''.
(3) Price support for nonbasic agricultural commodities.--
Section 201(a) of the Agricultural Act of 1949 (7 U.S.C.
1446(a)) is amended by striking ``milk, sugar beets, and
sugarcane'' and inserting ``, and milk''.
(4) Commodity credit corporation storage payments.--Section
167 of the Federal Agriculture Improvement and Reform Act of
1996 (7 U.S.C. 7287) is repealed.
(5) Suspension and repeal of permanent price support
authority.--Section 171(a)(1) of the Federal Agriculture
Improvement and Reform Act of 1996 (7 U.S.C. 7301(a)(1)) is
amended--
(A) by striking subparagraph (E); and
(B) by redesignating subparagraphs (F) through (I) as
subparagraphs (E) through (H), respectively.
(6) Storage facility loans.--Section 1402(c) of the Farm
Security and Rural Investment Act of 2002 (7 U.S.C. 7971) is
repealed.
(7) Feedstock flexibility program for bioenergy
producers.--Effective beginning with the 2013 crop of sugar
beets and sugarcane, section 9010 of the Farm Security and
Rural Investment Act of 2002 (7 U.S.C. 8110) is repealed.
(d) Transition Provisions.--This section and the amendments
made by this section shall not affect the liability of any
person under any provision of law as in effect before the
application of this section and the amendments made by this
section.
SEC. 4. TARIFF-RATE QUOTAS.
(a) Establishment.--Except as provided in subsection (c)
and notwithstanding any other provision of law, not later
than October 1, 2011, the Secretary of Agriculture shall
develop and implement a program to increase the tariff-rate
quotas for raw cane sugar and refined sugars for a quota year
in a manner that ensures--
(1) a robust and competitive sugar processing industry in
the United States; and
(2) an adequate supply of sugar at reasonable prices in the
United States.
(b) Factors.--In determining the tariff-rate quotas
necessary to satisfy the requirements of subsection (a), the
Secretary shall consider the following:
(1) The quantity and quality of sugar that will be subject
to human consumption in the United States during the quota
year.
(2) The quantity and quality of sugar that will be
available from domestic processing of sugarcane, sugar beets,
and in-process beet sugar.
(3) The quantity of sugar that would provide for reasonable
carryover stocks.
(4) The quantity of sugar that will be available from
carryover stocks for human consumption in the United States
during the quota year.
(5) Consistency with the obligations of the United States
under international agreements.
(c) Exemption.--Subsection (a) shall not include specialty
sugar.
(d) Definitions.--In this section, the terms ``quota year''
and ``human consumption'' have the meaning such terms had
under section 359k of the Agricultural Adjustment Act of 1938
(7 U.S.C. 1359kk) (as in effect on the day before the date of
the enactment of this Act).
SEC. 5. APPLICATION.
Except as otherwise provided in this Act, this Act and the
amendments made by this Act shall apply beginning with the
2012 crop of sugar beets and sugarcane.
______
By Mrs. SHAHEEN:
S. 26. A bill to amend the Internal Revenue Code of 1986 to repeal
the percentage depletion allowance for certain hardrock mines, and to
use the resulting revenues from such repeal for deficit reduction; to
the Committee on Finance.
Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 26
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Elimination of Double
Subsidies for the Hardrock Mining Industry Act of 2011''.
SEC. 2. REPEAL OF PERCENTAGE DEPLETION ALLOWANCE FOR CERTAIN
HARDROCK MINES.
(a) In General.--Section 613(a) of the Internal Revenue
Code of 1986 is amended by inserting ``(other than hardrock
mines located on lands subject to the general mining laws or
on land patented under the general mining laws)'' after ``In
the case of the mines''.
(b) General Mining Laws Defined.--Section 613 of the
Internal Revenue Code of 1986 is amended by adding at the end
the following:
``(f) General Mining Laws.--For purposes of subsection (a),
the term `general mining laws' means those Acts which
generally comprise chapters 2, 12A, and 16, and sections 161
and 162 of title 30 of the United States Code.''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2011.
(d) Use of Resulting Revenues for Deficit Reduction.--The
revenues resulting from the amendment made by subsection (a)
shall not be appropriated or otherwise made available for any
fiscal year, resulting in a reduction of the Federal budget
deficit for such fiscal year. If in any fiscal year there is
no Federal budget deficit (determined without regard to such
revenues), such revenues shall be used for reducing the
Federal debt in such manner as the Secretary of the Treasury
considers appropriate.
______
By Mr. KOHL (for himself, Mr. Grassley, Mr. Durbin, Ms. Collins,
Ms. Klobuchar, Mr. Franken, Mr. Brown of Ohio, and Mr.
Sanders):
S. 27. A bill to prohibit brand name drug companies from compensating
generic drug companies to delay the entry of a generic drug into the
market; to the Committee on the Judiciary.
Mr. KOHL. Mr. Chairman, I rise today to introduce the Preserve Access
to Affordable Generics Act. This bipartisan legislation will
dramatically reduce prescription drug costs by preventing one of the
most egregious, anti-consumer tactics ever devised to keep generic
drugs off the market.
This amendment would combat ``pay-for-delay'' agreements between
brand name and generic drug companies which delay entry of low-cost
generic competition. These pay-for-delay agreements are estimated by
the FTC to cost consumers $3.5 billion each year, and are estimated by
the CBO estimates to cost the federal government more than $2.8 billion
over the next decade in higher drug reimbursement payments.
In 2008, $235 billion were spent on prescription drugs in the United
States. Generic drugs play a crucial role in containing rising
prescription drug costs, by offering consumers therapeutically
identical alternatives to brand-name drugs, at a significantly reduced
cost. Studies have shown that generic competition to brand name drugs
can reduce drug prices by as much as 80 percent. However, in recent
years generic entry has frequently been blocked by anti-competitive,
anti-consumer agreements between brand-name and generic drug
manufacturers that limit, delay, or otherwise prevent competition from
generic drugs.
In pay-for-delay agreements, a brand-name drug manufacturer settles
patent litigation by paying off a generic competitor with large amounts
of cash, or other valuable consideration to stay off the market until
expiration--or a time close to expiration--of the brand-name patent.
For example, in 2006, the CEO of Cephalon, which makes the sleep
disorder pill Provigil, praised the deals his company made with four
generic drug-makers to keep generic versions of Provigil off the market
until 2012. ``We were able to get six more years of patent
protection,'' he said. ``That's $4 billion in sales that no one
expected.'' Unfortunately, that $4 billion came from the pockets of
American consumers.
At their core, pay-for-delay agreements permit brand-name drug
companies to pay off competitors not to compete. The brand name drug
company wins because it reaps the profits from eliminating competition.
The generic drug company wins because they get paid millions of dollars
to do nothing more than drop their patent challenge. But consumers and
the American taxpayer loses, to the tune of billions of dollars in
higher drug costs every year.
Agreements between competitors, like these, are the most nefarious
type of antitrust violation. Unfortunately, when the FTC has challenged
``pay-for-delay'' agreements, courts have favored big industry
interests over consumers. Courts have wrongly concluded that this type
of basic antitrust violation is immune from antitrust law because it
involves the settlement of a patent challenge. In other words, it is
permissible for competitors to collude to when it involves a patented
drug and in order to keep lower cost drugs out of consumers' medicine
cabinets. These misguided court rulings are what make passage of our
legislation so vital.
[[Page S144]]
For years, we have seen the use of anticompetitive agreements
increase. From 2000 to 2004, there were twenty settlements of drug
patent litigation, but we saw no pay-for-delay agreements because drug
companies assumed they violated antitrust law. But, these settlements
became all too prevalent following three courts of appeals decisions in
2005 which effectively found them to be per se legal and prevented the
FTC from taking action on behalf of consumers against these
settlements.
In the 2 years following these 2005 court decisions, 28 out of 61
patent settlements had provisions in which the brand name drug company
made payments to the generic manufacturer in exchange for the generic
manufacturer agreeing to delay entry of generic competition. Clearly,
pay-for-delay agreements are not necessary to settle a case because
during that same time, 33 cases settled without delaying entry to
consumers in exchange for a payment.
Last fall, the FTC released a report which found a record 19 pay-for-
delay settlements in fiscal year 2009, the highest ever recorded in a
single year. This report convincingly demonstrates the danger these
deals pose to consumers. Each of these deals will lead to higher drug
costs for millions of consumers. Each of these deals cost the Federal
Government large sums in taxpayer money in higher drug reimbursement
costs. Each of these deals deprive consumers of needed drug
competition. The time for action to stop these anti-consumer,
anticompetitive back room deals is now.
Our legislation passed the Judiciary Committee last Congress with a
strong bipartisan majority. The Judiciary Committee made several
changes to the legislation as it is was introduced in the 111th
Congress, and the legislation I am introducing today includes all of
these changes. I believe the current version of this legislation
represents a well balanced approach to this problem. Under my bill,
these settlement agreements will be presumed to be illegal. However,
the FTC will need to pursue legal action prior to these agreements
being found illegal, and the drug companies will have an opportunity to
convince the Judge why these agreement are not in fact anticompetitive.
If found illegal, the FTC will have the authority to assess civil
penalties up to three times the profits gained by the drug companies.
I believe this measure strikes the right balance. By presuming these
agreements to be illegal, and armed with strong civil penalties, this
bill will deter drug companies from entering into anti-competitive and
anti-consumer ``pay-for-delay'' settlements in the first place. By
giving the drug companies a hearing before a neutral tribunal, the drug
companies will have their day in court to go forward with those
agreements which truly do not harm competition.
The evidence is clear. These ``pay-for-delay'' agreements between
brand name and generic drug companies deny consumers the benefits of
generic drug competition and costs consumers and the Federal Government
billions of dollars. My legislation will give the FTC strong remedies
to prevent these agreements when it concludes they harm competition.
Millions and millions of Americans that struggle to pay their
prescription drug costs and who need low priced generic alternatives
are awaiting action on this amendment. I urge my colleagues support for
the Preserve Access to Affordable Generics Act.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 27
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preserve Access to
Affordable Generics Act''.
SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES.
(a) Findings.--Congress finds the following:
(1) In 1984, the Drug Price Competition and Patent Term
Restoration Act (Public Law 98-417) (referred to in this Act
as the ``1984 Act''), was enacted with the intent of
facilitating the early entry of generic drugs while
preserving incentives for innovation.
(2) Prescription drugs make up 10 percent of the national
health care spending but for the past decade have been one of
the fastest growing segments of health care expenditures.
(3) Until recently, the 1984 Act was successful in
facilitating generic competition to the benefit of consumers
and health care payers - although 67 percent of all
prescriptions dispensed in the United States are generic
drugs, they account for only 20 percent of all expenditures.
(4) Generic drugs cost substantially less than brand name
drugs, with discounts off the brand price sometimes exceeding
90 percent.
(5) Federal dollars currently account for an estimated 30
percent of the $235,000,000,000 spent on prescription drugs
in 2008, and this share is expected to rise to 40 percent by
2018.
(6)(A) In recent years, the intent of the 1984 Act has been
subverted by certain settlement agreements between brand
companies and their potential generic competitors that make
``reverse payments'' which are payments by the brand company
to the generic company.
(B) These settlement agreements have unduly delayed the
marketing of low-cost generic drugs contrary to free
competition, the interests of consumers, and the principles
underlying antitrust law.
(C) Because of the price disparity between brand name and
generic drugs, such agreements are more profitable for both
the brand and generic manufacturers than competition, and
will become increasingly common unless prohibited.
(D) These agreements result in consumers losing the
benefits that the 1984 Act was intended to provide.
(b) Purposes.--The purposes of this Act are--
(1) to enhance competition in the pharmaceutical market by
stopping anticompetitive agreements between brand name and
generic drug manufacturers that limit, delay, or otherwise
prevent competition from generic drugs; and
(2) to support the purpose and intent of antitrust law by
prohibiting anticompetitive practices in the pharmaceutical
industry that harm consumers.
SEC. 3. UNLAWFUL COMPENSATION FOR DELAY.
(a) In General.--The Federal Trade Commission Act (15
U.S.C. 44 et seq.) is amended by--
(1) redesignating section 28 as section 29; and
(2) inserting before section 29, as redesignated, the
following:
``SEC. 28. PRESERVING ACCESS TO AFFORDABLE GENERICS.
``(a) In General.--
``(1) Enforcement proceeding.--The Federal Trade Commission
may initiate a proceeding to enforce the provisions of this
section against the parties to any agreement resolving or
settling, on a final or interim basis, a patent infringement
claim, in connection with the sale of a drug product.
``(2) Presumption.--
``(A) In general.--Subject to subparagraph (B), in such a
proceeding, an agreement shall be presumed to have
anticompetitive effects and be unlawful if--
``(i) an ANDA filer receives anything of value; and
``(ii) the ANDA filer agrees to limit or forego research,
development, manufacturing, marketing, or sales of the ANDA
product for any period of time.
``(B) Exception.--The presumption in subparagraph (A) shall
not apply if the parties to such agreement demonstrate by
clear and convincing evidence that the procompetitive
benefits of the agreement outweigh the anticompetitive
effects of the agreement.
``(b) Competitive Factors.--In determining whether the
settling parties have met their burden under subsection
(a)(2)(B), the fact finder shall consider--
``(1) the length of time remaining until the end of the
life of the relevant patent, compared with the agreed upon
entry date for the ANDA product;
``(2) the value to consumers of the competition from the
ANDA product allowed under the agreement;
``(3) the form and amount of consideration received by the
ANDA filer in the agreement resolving or settling the patent
infringement claim;
``(4) the revenue the ANDA filer would have received by
winning the patent litigation;
``(5) the reduction in the NDA holder's revenues if it had
lost the patent litigation;
``(6) the time period between the date of the agreement
conveying value to the ANDA filer and the date of the
settlement of the patent infringement claim; and
``(7) any other factor that the fact finder, in its
discretion, deems relevant to its determination of
competitive effects under this subsection.
``(c) Limitations.--In determining whether the settling
parties have met their burden under subsection (a)(2)(B), the
fact finder shall not presume--
``(1) that entry would not have occurred until the
expiration of the relevant patent or statutory exclusivity;
or
``(2) that the agreement's provision for entry of the ANDA
product prior to the expiration of the relevant patent or
statutory exclusivity means that the agreement is pro-
competitive, although such evidence may be relevant to the
fact finder's determination under this section.
``(d) Exclusions.--Nothing in this section shall prohibit a
resolution or settlement of a patent infringement claim in
which the consideration granted by the NDA holder to the ANDA
filer as part of the resolution or settlement includes only
one or more of the following:
[[Page S145]]
``(1) The right to market the ANDA product in the United
States prior to the expiration of--
``(A) any patent that is the basis for the patent
infringement claim; or
``(B) any patent right or other statutory exclusivity that
would prevent the marketing of such drug.
``(2) A payment for reasonable litigation expenses not to
exceed $7,500,000.
``(3) A covenant not to sue on any claim that the ANDA
product infringes a United States patent.
``(e) Regulations and Enforcement.--
``(1) Regulations.--The Federal Trade Commission may issue,
in accordance with section 553 of title 5, United States
Code, regulations implementing and interpreting this section.
These regulations may exempt certain types of agreements
described in subsection (a) if the Commission determines such
agreements will further market competition and benefit
consumers. Judicial review of any such regulation shall be in
the United States District Court for the District of Columbia
pursuant to section 706 of title 5, United States Code.
``(2) Enforcement.--A violation of this section shall be
treated as a violation of section 5.
``(3) Judicial review.--Any person, partnership or
corporation that is subject to a final order of the
Commission, issued in an administrative adjudicative
proceeding under the authority of subsection (a)(1), may,
within 30 days of the issuance of such order, petition for
review of such order in the United States Court of Appeals
for the District of Columbia Circuit or the United States
Court of Appeals for the circuit in which the ultimate parent
entity, as defined at 16 C.F.R. 801.1(a)(3), of the NDA
holder is incorporated as of the date that the NDA is filed
with the Secretary of the Food and Drug Administration, or
the United States Court of Appeals for the circuit in which
the ultimate parent entity of the ANDA filer is incorporated
as of the date that the ANDA is filed with the Secretary of
the Food and Drug Administration. In such a review
proceeding, the findings of the Commission as to the facts,
if supported by evidence, shall be conclusive.
``(f) Antitrust Laws.--Nothing in this section shall be
construed to modify, impair or supersede the applicability of
the antitrust laws as defined in subsection (a) of the 1st
section of the Clayton Act (15 U.S.C. 12(a)) and of section 5
of this Act to the extent that section 5 applies to unfair
methods of competition. Nothing in this section shall modify,
impair, limit or supersede the right of an ANDA filer to
assert claims or counterclaims against any person, under the
antitrust laws or other laws relating to unfair competition.
``(g) Penalties.--
``(1) Forfeiture.--Each person, partnership or corporation
that violates or assists in the violation of this section
shall forfeit and pay to the United States a civil penalty
sufficient to deter violations of this section, but in no
event greater than 3 times the value received by the party
that is reasonably attributable to a violation of this
section. If no such value has been received by the NDA
holder, the penalty to the NDA holder shall be shall be
sufficient to deter violations, but in no event greater than
3 times the value given to the ANDA filer reasonably
attributable to the violation of this section. Such penalty
shall accrue to the United States and may be recovered in a
civil action brought by the Federal Trade Commission, in its
own name by any of its attorneys designated by it for such
purpose, in a district court of the United States against any
person, partnership or corporation that violates this
section. In such actions, the United States district courts
are empowered to grant mandatory injunctions and such other
and further equitable relief as they deem appropriate.
``(2) Cease and desist.--
``(A) In general.--If the Commission has issued a cease and
desist order with respect to a person, partnership or
corporation in an administrative adjudicative proceeding
under the authority of subsection (a)(1), an action brought
pursuant to paragraph (1) may be commenced against such
person, partnership or corporation at any time before the
expiration of one year after such order becomes final
pursuant to section 5(g).
``(B) Exception.--In an action under subparagraph (A), the
findings of the Commission as to the material facts in the
administrative adjudicative proceeding with respect to such
person's, partnership's or corporation's violation of this
section shall be conclusive unless--
``(i) the terms of such cease and desist order expressly
provide that the Commission's findings shall not be
conclusive; or
``(ii) the order became final by reason of section 5(g)(1),
in which case such finding shall be conclusive if supported
by evidence.
``(3) Civil penalty.--In determining the amount of the
civil penalty described in this section, the court shall take
into account--
``(A) the nature, circumstances, extent, and gravity of the
violation;
``(B) with respect to the violator, the degree of
culpability, any history of violations, the ability to pay,
any effect on the ability to continue doing business, profits
earned by the NDA holder, compensation received by the ANDA
filer, and the amount of commerce affected; and
``(C) other matters that justice requires.
``(4) Remedies in addition.--Remedies provided in this
subsection are in addition to, and not in lieu of, any other
remedy provided by Federal law. Nothing in this paragraph
shall be construed to affect any authority of the Commission
under any other provision of law.
``(h) Definitions.--In this section:
``(1) Agreement.--The term `agreement' means anything that
would constitute an agreement under section 1 of the Sherman
Act (15 U.S.C. 1) or section 5 of this Act.
``(2) Agreement resolving or settling a patent infringement
claim.--The term `agreement resolving or settling a patent
infringement claim' includes any agreement that is entered
into within 30 days of the resolution or the settlement of
the claim, or any other agreement that is contingent upon,
provides a contingent condition for, or is otherwise related
to the resolution or settlement of the claim.
``(3) ANDA.--The term `ANDA' means an abbreviated new drug
application, as defined under section 505(j) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)).
``(4) ANDA filer.--The term `ANDA filer' means a party who
has filed an ANDA with the Food and Drug Administration.
``(5) ANDA product.--The term `ANDA product' means the
product to be manufactured under the ANDA that is the subject
of the patent infringement claim.
``(6) Drug product.--The term `drug product' means a
finished dosage form (e.g., tablet, capsule, or solution)
that contains a drug substance, generally, but not
necessarily, in association with 1 or more other ingredients,
as defined in section 314.3(b) of title 21, Code of Federal
Regulations.
``(7) NDA.--The term `NDA' means a new drug application, as
defined under section 505(b) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 355(b)).
``(8) NDA holder.--The term `NDA holder' means--
``(A) the party that received FDA approval to market a drug
product pursuant to an NDA;
``(B) a party owning or controlling enforcement of the
patent listed in the Approved Drug Products With Therapeutic
Equivalence Evaluations (commonly known as the `FDA Orange
Book') in connection with the NDA; or
``(C) the predecessors, subsidiaries, divisions, groups,
and affiliates controlled by, controlling, or under common
control with any of the entities described in subparagraphs
(A) and (B) (such control to be presumed by direct or
indirect share ownership of 50 percent or greater), as well
as the licensees, licensors, successors, and assigns of each
of the entities.
``(9) Patent infringement.--The term `patent infringement'
means infringement of any patent or of any filed patent
application, extension, reissue, renewal, division,
continuation, continuation in part, reexamination, patent
term restoration, patents of addition and extensions thereof.
``(10) Patent infringement claim.--The term `patent
infringement claim' means any allegation made to an ANDA
filer, whether or not included in a complaint filed with a
court of law, that its ANDA or ANDA product may infringe any
patent held by, or exclusively licensed to, the NDA holder of
the drug product.
``(11) Statutory exclusivity.--The term `statutory
exclusivity' means those prohibitions on the approval of drug
applications under clauses (ii) through (iv) of section
505(c)(3)(E) (5- and 3-year data exclusivity), section 527
(orphan drug exclusivity), or section 505A (pediatric
exclusivity) of the Federal Food, Drug, and Cosmetic Act .''.
(b) Effective Date.--Section 28 of the Federal Trade
Commission Act, as added by this section, shall apply to all
agreements described in section 28(a)(1) of that Act entered
into after November 15, 2009. Section 28(g) of the Federal
Trade Commission Act, as added by this section, shall not
apply to agreements entered into before the date of enactment
of this Act.
SEC. 4. NOTICE AND CERTIFICATION OF AGREEMENTS.
(a) Notice of All Agreements.--Section 1112(c)(2) of the
Medicare Prescription Drug, Improvement, and Modernization
Act of 2003 (21 U.S.C. 355 note) is amended by--
(1) striking ``the Commission the'' and inserting the
following: ``the Commission--
``(1) the'';
(2) striking the period and inserting ``; and''; and
(3) inserting at the end the following:
``(2) any other agreement the parties enter into within 30
days of entering into an agreement covered by subsection (a)
or (b).''.
(b) Certification of Agreements.--Section 1112 of such Act
is amended by adding at the end the following:
``(d) Certification.--The Chief Executive Officer or the
company official responsible for negotiating any agreement
required to be filed under subsection (a), (b), or (c) shall
execute and file with the Assistant Attorney General and the
Commission a certification as follows: `I declare that the
following is true, correct, and complete to the best of my
knowledge: The materials filed with the Federal Trade
Commission and the Department of Justice under section 1112
of subtitle B of title XI of the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003, with respect to
the agreement referenced in this certification: (1) represent
the complete, final, and exclusive agreement between the
parties; (2) include any ancillary agreements that are
contingent upon, provide a contingent condition for, or are
otherwise related to, the referenced agreement; and (3)
include
[[Page S146]]
written descriptions of any oral agreements, representations,
commitments, or promises between the parties that are
responsive to subsection (a) or (b) of such section 1112 and
have not been reduced to writing.'.''.
SEC. 5. FORFEITURE OF 180-DAY EXCLUSIVITY PERIOD.
Section 505(j)(5)(D)(i)(V) of the Federal Food, Drug and
Cosmetic Act (21 U.S.C. 355(j)(5)(D)(i)(V)) is amended by
inserting ``section 28 of the Federal Trade Commission Act
or'' after ``that the agreement has violated''.
SEC. 6. COMMISSION LITIGATION AUTHORITY.
Section 16(a)(2) of the Federal Trade Commission Act (15
U.S.C. 56(a)(2)) is amended--
(1) in subparagraph (D), by striking ``or'' after the
semicolon;
(2) in subparagraph (E), by inserting ``or'' after the
semicolon; and
(3) inserting after subparagraph (E) the following:
``(F) under section 28;''.
SEC. 7. STATUTE OF LIMITATIONS.
The Commission shall commence any enforcement proceeding
described in section 28 of the Federal Trade Commission Act,
as added by section 3, except for an action described in
section 28(g)(2) of the Federal Trade Commission Act, not
later than 3 years after the date on which the parties to the
agreement file the Notice of Agreement as provided by
sections 1112(c)(2) and (d) of the Medicare Prescription Drug
Improvement and Modernization Act of 2003 (21 U.S.C. 355
note).
SEC. 8. SEVERABILITY.
If any provision of this Act, an amendment made by this
Act, or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the
remainder of this Act, the amendments made by this Act, and
the application of the provisions of such Act or amendments
to any person or circumstance shall not be affected thereby.
______
By Mr. ROCKEFELLER (for himself, Mr. Lautenberg, Mr. Nelson of
Florida, Ms. Klobuchar, Mr. Cardin, and Mr. Harkin):
S. 28. A bill to amend the Communications Act of 1934 to provide
public safety providers an additional 10 megahertz of spectrum to
support a national, interoperable wireless broadband network and
authorize the Federal Communications Commission to hold incentive
auctions to provide funding to support such a network, and for other
purposes; to the Committee on Commerce, Science, and Transportation.
Mr. ROCKEFELLER. Mr. President, I rise today to reintroduce the
Public Safety Spectrum and Wireless Innovation Act.
Radio spectrum is a tremendous resource. It can grow our economy and
put innovative wireless services in the hands of consumers and
businesses. It also can enhance our public safety by fostering
communications between first responders when the unthinkable occurs.
But it is also scarce. That is why we need a forward-thinking spectrum
policy that promotes smart use of our airwaves--and provides public
safety officials with the wireless resources they need to keep us safe.
For all of these reasons, I believe in the Public Safety Spectrum and
Wireless Innovation Act and call on my colleagues to join me and
support it. I commit to them that I am open to their input and will
work tirelessly with the administration, my Senate and House
colleagues, and public safety officials to pass this legislation this
year.
The Public Safety Spectrum and Wireless Innovation Act does two
things.
First, as we approach the tenth anniversary of 9/11, this legislation
will provide public safety officials with an additional 10 megahertz of
spectrum known as the ``D-block.'' This spectrum will at long last,
support a national, interoperable, wireless broadband network that will
help first responders protect us from harm. I believe this is the right
thing to do, because we owe those courageous individuals who wear the
shield the resources they need to do their job.
Second, this legislation will promote smart spectrum policy and
efficient use of our Nation's wireless airwaves. It will do this by
providing the Federal Communications Commission with the authority to
hold voluntary incentive auctions. These auctions will help put
valuable spectrum into the hands of companies that can create
innovative new services for American consumers and businesses. This
proposal will not require the return of spectrum from existing
commercial users, but instead will provide them with a voluntary
opportunity to realize a portion of auction revenues if they wish to
facilitate putting spectrum to new and productive uses. Then the
remaining revenues from these auctions will provide a revenue stream to
assist public safety with the construction and maintenance of their
spectrum network.
Marrying together these ideas--good spectrum policy and the right
resources for our first responders--makes good sense. It is also the
right thing to do. Because the American people deserve to have the best
and most innovative uses of wireless networks anywhere. They deserve to
know our first responders have access to the airwaves they need when
tragedy strikes. So I urge my colleagues to join me and support this
important legislation.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the text
of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 28
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Public
Safety Spectrum and Wireless Innovation Act''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--NATIONWIDE INTEROPERABLE PUBLIC SAFETY BROADBAND NETWORK
Sec. 101. Establishment of network.
Sec. 102. Reallocation of D block to public safety.
Sec. 103. Flexible use of narrowband spectrum.
Sec. 104. Secondary use of public safety spectrum.
Sec. 105. Interoperability.
Sec. 106. Commercial network roaming and priority access.
Sec. 107. Advisory board.
TITLE II--FUNDING
Sec. 201. Establishment of funds.
Sec. 202. Public safety interoperable broadband network construction.
Sec. 203. Public safety interoperable broadband maintenance and
operation.
Sec. 204. Incentive spectrum auction authority.
Sec. 205. Report on efficient use of public safety spectrum.
Sec. 206. GAO report on satellite broadband.
Sec. 207. Access to GSA schedules.
Sec. 208. Federal infrastructure sharing.
Sec. 209. Audits.
Sec. 210. Antidiversion prohibition.
SEC. 2. DEFINITIONS.
In this Act:
(1) 700 mhz band.--The term ``700 MHz band'' means the
portion of the electromagnetic spectrum between the
frequencies from 698 megahertz to 806 megahertz.
(2) 700 mhz d block spectrum.--The term ``700 MHz D block
spectrum'' means the portion of the electromagnetic spectrum
between the frequencies from 758 megahertz to 763 megahertz
and between the frequencies from 788 megahertz to 793
megahertz.
(3) Assistant secretary.--The term ``Assistant Secretary''
means the Assistant Secretary of Commerce for Communications
and Information.
(4) Commmission.--The term ``Commission'' means the Federal
Communications Commission.
(5) Construction fund.--The term ``construction fund''
means the fund established in section 201(a)(1)(A).
(6) Existing public safety broadband spectrum.--The term
``existing public safety broadband spectrum'' means the
portion of the electromagnetic spectrum between the
frequencies from 763 megahertz to 768 megahertz and between
the frequencies from 793 megahertz to 798 megahertz.
(7) Maintenance and operation fund.--The term ``maintenance
and operation fund'' means the fund established in section
201(a)(2)(A).
(8) Narrowband spectrum.--The term ``narrowband spectrum''
means the portion of the electromagnetic spectrum between the
frequencies from 769 megahertz to 775 megahertz and between
the frequencies from 799 megahertz to 805 megahertz.
(9) NTIA.--The term ``NTIA'' means the National
Telecommunications and Information Administration.
TITLE I--NATIONWIDE INTEROPERABLE PUBLIC SAFETY BROADBAND NETWORK
SEC. 101. ESTABLISHMENT OF NETWORK.
(a) In General.--The Commission shall take all actions
necessary to ensure the deployment of a nationwide public
safety interoperable broadband network in the 700 MHz band,
including--
(1) developing and implementing nationwide technical and
operational requirements for the network;
(2) adopting any rules necessary to achieve
interoperability in the network; and
(3) adopting user authentication and encryption
requirements for the network.
[[Page S147]]
(b) Coverage.--The Commission shall ensure that the network
is deployed and interoperable in rural, as well as urban,
areas, including necessary build out of communications
infrastructure in rural areas to accommodate network access
and functionality.
SEC. 102. REALLOCATION OF D BLOCK TO PUBLIC SAFETY.
(a) Reallocation of D Block.--
(1) In general.--The Commission shall reallocate the 700
MHz D block spectrum for use by public safety entities in
accordance with the provisions of this Act.
(2) Spectrum allocation.--Section 337(a) of the
Communications Act of 1934 (47 U.S.C. 337(a)) is amended--
(A) by striking ``24'' in paragraph (1) and inserting
``34''; and
(B) by striking ``36'' in paragraph (2) and inserting
``26''.
(b) Integration With Existing Public Safety Broadband
Spectrum.--The Commission shall--
(1) determine the licensing for the 700 MHz D block
spectrum reallocated under section 337 of the Communications
Act of 1934 47 U.S.C. 337), as amended by subsection (a);
(2) determine how best to integrate the 700 MHz D block
spectrum reallocated with the existing public safety
spectrum; and
(3) determine whether the 20 megahertz of public safety
broadband spectrum should be licensed on a nationwide,
regional, or statewide basis, or some combination thereof, in
accordance with the public interest.
SEC. 103. FLEXIBLE USE OF NARROWBAND SPECTRUM.
The Commission shall allow the narrowband spectrum to be
used in a flexible manner, including usage for public safety
broadband communications, subject to such technical and
interference protection measures as the Commission may
require.
SEC. 104. SECONDARY USE OF PUBLIC SAFETY SPECTRUM.
(a) In General.--Notwithstanding section 337 of the
Communications Act of 1934 (47 U.S.C. 337), the Commission
may authorize any public safety licensee or licensees to
allow access to spectrum licensed to such licensee or
licensees to non-public safety governmental users, commercial
users, utilities, including organizations providing or
operating critical infrastructure, including electric, gas,
and water utilities, and other Federal agencies and
departments.
(b) Limitations and Conditions.--The Commission shall--
(1) authorize the provision of access to such spectrum only
on a secondary basis;
(2) require secondary access agreements to be in writing
and to be submitted to the Commission for review and
approval;
(3) require that the public safety entity retain the right
to use any such spectrum on a primary, preemptible basis;
(4) consider whether it is in the public interest to
require multiple secondary leases per licensee; and
(5) require that all funds received from such secondary
access pursuant to such written agreements be reinvested in
the public safety interoperable broadband network by using
such funds only for constructing, maintaining, improving, or
purchasing equipment to be used in conjunction with the
network, by deposit into the Maintenance and Operation Fund
established by section 201 or otherwise.
SEC. 105. INTEROPERABILITY.
(a) In General.--The Commission shall ensure that the
nationwide public safety broadband network is fully
interoperable on a nationwide basis.
(b) Technical and Operational Rules.--
(1) Insuring interoperability.--The Commission shall
establish technical and operational rules to ensure
nationwide interoperability, including rules that--
(A) establish requirements for nationwide roaming ability
among any licensee, licensees, lessees, and secondary users;
(B) will ensure the safety of State broadband public safety
networks, including requirements for protecting and
monitoring the network to protect against cyber-attack;
(C) will promote competition in the device market for
public safety communications by requiring devices for use on
a public safety network to be--
(i) built to open standards;
(ii) capable of being used by any vendor and across all
public safety systems; and
(iii) backward-compatible with existing second and third
generation commercial networks;
(D) authorize public safety entities to execute
partnerships with other public or private entities to build
or operate the State's public safety broadband network;
(E) encourage public safety entities to utilize, to the
greatest extent possible, existing commercial, State, or
Federal government infrastructure;
(F) will ensure that the interoperability plan includes
integration with 9-1-1 call centers; and
(G) require any licensee or licensees to file annual
reports on--
(i) the status of public safety broadband network
construction and interoperability; and
(ii) the status and deployment of existing public safety
broadband and narrowband systems.
(2) Factors to be considered.--In carrying out paragraph
(1), the Commission shall, at a minimum, consider--
(A) the extent to which particular technologies and user
equipment are, or are likely to be, available in the
commercial marketplace;
(B) the availability of necessary technologies and
equipment on reasonable and non-discriminatory licensing
terms; and
(C) the ability of particular technologies and equipment--
(i) to evolve with technological developments in the
commercial marketplace; and
(ii) to accommodate prioritization for public safety
transmissions.
(c) RFP Standards.--
(1) In general.--The Commission shall establish procedural
and substantive requirements for requests for proposals
related to the nationwide public safety broadband network
that--
(A) require such requests to meet the technical
requirements under subsection (b) that ensure
interoperability of the broadband network to which it relates
and ensure that nothing will interfere with such
interoperability;
(B) limit the authority for issuing such requests to States
or multi-State organizations, except to the extent delegated
to an agency or political subdivision;
(C) will ensure that the request-for-proposals process is
open, transparent, and competitive;
(D) require any such request--
(i) to be issued on a Statewide or multi-State basis and to
be coordinated with the appropriate State chief executive or
the executive's designee;
(ii) to demonstrate that the State has a plan for
interoperability, with provision for both urban and rural
build out; and
(iii) to cover any necessary relocation of incumbent
narrowband operations in the existing public safety broadband
spectrum;
(E) authorize States to issue requests for proposals that
will build on a State broadband network; and
(F) require the term of any contract under the process to
be reasonable and, in any event, for less than the term of
the underlying license.
(2) Model rfps.--The Commission may encourage the use of
the requests-for-proposal model or form developed by the
Government Accountability Office under section 207 of this
Act.
(d) Rural Build Out Requirements.--The Commission shall--
(1) establish rural build out targets for the public safety
broadband network, including targets for States or smaller
areas;
(2) require contracts awarded through the request-for-
proposals process in connection with the network to include
deployment phases with substantial rural coverage milestones
as part of each phase where appropriate; and
(3) in collaboration with the Assistant Secretary, make
funding for each build out phase after the first contingent
on meeting build out targets for the preceding phase to the
extent feasible.
(e) Development and Maintenance of Interoperability,
Security, and Functionality Standards.--The Commission and
through agreements executed with the National Institute of
Standards and Technology, shall develop, maintain, and update
such requirements and standards as may be necessary to ensure
interoperability, security, and functionality.
(f) Authorization of Appropriations.--There are authorized
to be appropriated to the Commission, for use by the
Emergency Response and Interoperability Center in carrying
out its responsibilities under this Act, $5,500,000 for each
of fiscal years 2013 through 2018.
SEC. 106. COMMERCIAL NETWORK ROAMING AND PRIORITY ACCESS.
The Commission may adopt rules, if necessary in the public
interest, to improve the ability of public safety networks to
roam onto commercial networks and to gain priority access to
commercial networks in an emergency if--
(1) the public safety entity equipment is technically
compatible with the commercial network;
(2) the commercial network is reasonably compensated; and
(3) it is consistent with the public interest.
SEC. 107. PUBLIC SAFETY ADVISORY BOARD.
(a) In General.--Not later than 90 days after the date of
enactment of this Act, the Commission shall establish a
public safety advisory board to advise the Commission on--
(1) carrying out its duties under section 101; and
(2) the implementation of improvements to the public safety
interoperable broadband network under that section.
(b) Composition.--The Commission shall determine the
composition of the advisory board, which shall include, at a
minimum, representatives from each of the following:
(1) State, local, and tribal governments.
(2) Public safety organizations.
(3) Providers of commercial mobile service.
(4) Manufacturers of communications equipment.
(c) Reports.--The Commission shall consult with the
advisory board on any study or report on public safety
spectrum.
(d) FACA Inapplicable.--The Federal Advisory Committee Act
(5 U.S.C. App. ) shall not apply to the advisory board.
(e) Termination.--The advisory board shall terminate 10
years after the date of enactment of this Act.
TITLE II--FUNDING
SEC. 201. ESTABLISHMENT OF FUNDS.
(a) In General.--
[[Page S148]]
(1) Construction fund.--
(A) Establishment.--There is established in the Treasury of
the United States a fund to be known as the Public Safety
Interoperable Broadband Network Construction Fund.
(B) Purpose.--The Assistant Secretary shall establish and
administer the grant program under section 202 using the
funds deposited in the Construction Fund.
(C) Credit.--
(i) Borrowing Authority.--The Assistant Secretary may
borrow from the general fund of the Treasury beginning on
October 1, 2011, such sums as may be necessary, but not to
exceed $2,000,000,000, to implement section 202.
(ii) Reimbursement.--The Secretary of the Treasury shall
reimburse the general fund of the Treasury, without interest,
for any amounts borrowed under clause (i) as funds are
deposited into the Construction Fund, but in no case later
than December 31, 2015.
(2) Maintenance and operation fund.--
(A) Establishment.--There is established in the Treasury of
the United States a fund to be known as the Public Safety
Interoperable Broadband Network Maintenance and Operation
Fund.
(B) Purpose.--The Commission shall use the funds deposited
in the Maintenance and Operation Fund to carry out section
203.
(b) Transfer of Funds at Completion of Construction.--The
Secretary of the Treasury shall transfer to the Maintenance
and Operation Fund any funds remaining in the Construction
Fund after the date of the completion of the construction
phase, as determined by the Assistant Secretary.
(c) Transfer of Funds to the Treasury.--The Secretary of
the Treasury shall transfer to the general fund of the
Treasury any funds remaining in the Maintenance and Operation
Fund after the end of the 10-year period that begins after
the date of the completion of the construction phase, as
determined by the Assistant Secretary.
(d) Authorization of Appropriations.--
(1) Construction fund.--There are authorized to be
appropriated to the Assistant Secretary for deposit in the
Construction Fund in and after fiscal year 2013 such sums as
necessary subject to paragraph (3).
(2) Maintenance and operation fund.--There are authorized
to be appropriated to the Commission for deposit in the
Maintenance and Operation Fund in and after fiscal year 2013
such sums as necessary subject to paragraph (3).
(3) Limitation.--The authorization of appropriations under
paragraphs (1) and (2) may not exceed a total of
$11,000,000,000.
SEC. 202. PUBLIC SAFETY INTEROPERABLE BROADBAND NETWORK
CONSTRUCTION.
(a) Construction Grant Program Establishment.--The
Assistant Secretary, in consultation with the Commission,
shall take such action as is necessary to establish a grant
program to assist public safety entities to establish a
nationwide public safety interoperable broadband network in
the 700 MHz band.
(b) Projects.--Grants may be made under this section for
the construction of a public safety interoperable broadband
network, including improvement of existing commercial and
noncommercial networks and facilities and construction of new
infrastructure to meet public safety requirements, as defined
by the Commission, that operate as part of the public safety
interoperable broadband network in the 700 MHz band.
(c) Matching Requirements.--
(1) Federal share.--
(A) In general.--The Federal share of the cost of carrying
out a project under this section may not exceed 80 percent of
the eligible costs of carrying out a project, as determined
by the Assistant Secretary in consultation with the
Commission.
(B) Waiver.--The Assistant Secretary may waive, in whole or
in part, the requirements of subparagraph (A) for good cause
shown if it determines that such a waiver is in the public
interest.
(2) Non-federal share.--The non-Federal share of the cost
of carrying out a project under this section may be provided
through an in-kind contribution.
(d) Requirements.--Not later than 6 months after the date
of enactment of this Act, the Assistant Secretary, in
consultation with the Commission, shall establish grant
program requirements including the following:
(1) Demonstrated compliance with applicable Commission
request-for-proposal and license terms and service rules,
including interoperability and technical rules, construction
requirements, and secondary use rules.
(2) Defining entities that are eligible to receive a grant
under this section.
(3) Defining eligible costs for purposes of subsection
(c)(1).
(4) Determining the scope of network infrastructure
eligible for grant funding under this section.
(5) Prioritizing grants for projects that ensure coverage
in rural as well as urban areas.
SEC. 203. PUBLIC SAFETY INTEROPERABLE BROADBAND MAINTENANCE
AND OPERATION.
(a) Maintenance and Operation Reimbursement Program.--The
Commission shall administer a program through which not more
than 50 percent of maintenance and operational expenses
associated with the public safety interoperable broadband
network may be reimbursed from the Maintenance and Operation
Fund for those expenses that are attributable to the
maintenance, operation, and improvement of the public safety
interoperable broadband network.
(b) Report.--Not later than 7 years after the date of
enactment of this Act, the Commission shall submit to
Congress a report on whether to continue to provide funding
for the Maintenance and Operation Fund after the end of the
10-year period that begins after the date of the completion
of the construction phase, as determined by the Assistant
Secretary.
SEC. 204. AUCTION OF SPECTRUM.
(a) In General.--
(1) Identification of spectrum.--Not later than 1 year
after the date of enactment of this Act, the Assistant
Secretary shall identify, at a minimum, 25 megahertz of
contiguous spectrum at frequencies located between 1675
megahertz and 1710 megahertz, inclusive, to be made available
for immediate reallocation.
(2) Auction.--Not later than January 31, 2014, the
Commission shall conduct the auction of the licenses, by
commencing the bidding, for the following:
(A) The spectrum between the frequencies of 2155 megahertz
and 2180 megahertz, inclusive.
(B) The spectrum identified pursuant to paragraph (1).
(3) Proceeds.--The proceeds (including deposits and up
front payments from successful bidders) from the auction
shall be deposited in the Construction Fund.
(b) Incentive Spectrum Auction Authority.--
(1) In general.--Paragraph (8) of section 309(j) of the
Communications Act of 1934 (47 U.S.C. 309(j)) is amended--
(A) by striking ``(B), (D), and (E),'' in subparagraph (A)
and inserting ``(B), (D), (E), and (F),''; and
(B) by adding at the end thereof the following:
``(F) Incentive auction authority.--
``(i) Authority.--The Commission may If the Commission
determines that it is consistent with the public interest in
utilization of the spectrum for a licensee to relinquish
voluntarily some or all of its licensed spectrum usage rights
in order to permit the assignment of new initial licenses
subject to new service rules, the Commission may disburse to
that licensee a portion of the auction proceeds related to
the new use that the Commission determines, in its
discretion, are attributable to the licensee's relinquished
spectrum usage.
``(ii) Proceeds for funds.--Notwithstanding subparagraph
(A), the proceeds (including deposits and up front payments
from successful bidders) from the use of a competitive
bidding system under this subsection with respect to
relinquished spectrum, after deduction of any amounts
disbursed to the relinquishing licensee, shall be deposited
as follows:
``(I) All proceeds less than or equal to $5,500,000,000
shall be deposited in the Construction Fund and shall be made
available to the Assistant Secretary without further
appropriations.
``(II) Any proceeds exceeding $5,500,000,000 shall be
deposited in the Maintenance and Operation Fund and shall be
made available to the Commission without further
appropriations.
``(III) Any proceeds exceeding $11,000,000,000 shall be
made available, as provided by appropriation Acts, for
growth-enhancing infrastructure projects, including the
NextGen aviation navigation system, development of high-speed
rail transportation, and Smart Grid electrical power
transmission and management technology.''.
(c) Extension of Auction Authority.--Section 309(j)(11) of
the Communications Act of 1934 (47 U.S.C. 309(j)(11)) is
amended by striking ``2012'' and inserting ``2020''.
(d) Limitation.--
(1) In general.--The Commission may not reclaim frequencies
licensed to broadcast television licensees or other
licensees, directly or indirectly, on an involuntary basis
for purposes of section 309(j)(8)(F) of the Communications
Act of 1934.
(2) Rule of construction.--Nothing in this Act or in the
amendments made by this Act shall be construed to permit the
Commission to reclaim frequencies of broadcast television
licensees or any other licensees directly or indirectly on an
involuntary basis for the purpose that section.
SEC. 205. REPORT ON EFFICIENT USE OF PUBLIC SAFETY SPECTRUM.
Not later than 5 years after the date of enactment of this
Act and every 5 years thereafter, the Commission shall
conduct a study and submit a report to the Senate Committee
on Commerce, Science, and Transportation and the House of
Representatives Committee on Energy and Commerce on the
spectrum held by the public safety entities. In the report
the Commission shall--
(1) examine how such spectrum is being used;
(2) provide a recommendation for whether more spectrum
needs to be made available to meet the needs of public safety
entities; and
(3) assess the opportunity for return of any spectrum to
the Commission for auction to commercial providers to provide
revenue to the Treasury of the United States.
SEC. 206. GAO REPORT ON SATELLITE BROADBAND.
Not later than 2 .years after the date of enactment of this
Act, the Comptroller General of the United States shall
conduct a study and submit to Congress a report on the
current and future capabilities of fixed and mobile satellite
broadband to assist public safety entities during an
emergency.
[[Page S149]]
SEC. 207. ACCESS TO GSA SCHEDULES.
The Administrator of General Services shall--
(1) establish rules under which public safety entities may
access and use the rates offered to the General Services
Administration for communications services and devices;
(2) develop and furnish to the Commission a model request-
for-proposals form for public safety use under section 105;
and
(3) develop a procedure under which public safety entities
are authorized to purchase from established GSA schedules.
SEC. 208. FEDERAL INFRASTRUCTURE SHARING.
The Administrator of General Services shall establish rules
to allow any public safety licensee or licensees to have
access to Federal infrastructure to construct and maintain
the public safety interoperable broadband network.
SEC. 209. AUDITS.
(a) In General.--Not later than 3 years after the date of
enactment of this Act, and every 3 years thereafter, the
Comptroller General of the United States shall perform an
audit of the financial statements, records, and accounts of
the--
(1) Public Safety Interoperable Broadband Network
Construction Fund established under section 201(a)(1);
(2) Public Safety Interoperable Broadband Network
Maintenance and Operation Fund established under section
201(a)(2);
(3) construction grant program established under section
202; and
(4) maintenance and operation program established under
section 203.
(b) GAAP.--Each audit required under subsection (a) shall
be conducted in accordance with generally acceptable
accounting procedures.
(c) Report to Congress.--A copy of each audit required
under subsection (a) shall be submitted to the appropriate
committees of Congress.
SEC. 210. ANTIDIVERSION PROHIBITION.
Except as provided in section 309(j)(8)(F)(ii)(III) of the
Communications Act of 1934, as added by this Act, no funds
made available under this Act or any amendment made by this
Act may be used for any purpose other than in support of the
nationwide public safety interoperable broadband network to
be deployed under this Act, including the acquisition,
construction, or reconstruction of infrastructure and
facilities, the purchase of equipment and services, including
hardware, software, and training, in accordance with rules
established by the Commission.
______
By Mr. REID (for Mrs. Feinstein (for herself and Mrs. Boxer)):
S. 29. A bill to establish the Sacramento-San Joaquin Delta National
Heritage Area; to the Committee on Energy and Natural Resources.
Mrs. FEINSTEIN. Mr. President, I rise on behalf of myself and Senator
Boxer to introduce legislation to establish a National Heritage Area in
the California Sacramento-San Joaquin Delta. This legislation will
create the first Heritage Area in California.
I am pleased that I have had the opportunity to work with Senator
Boxer, Representative John Garamendi, and the County Supervisors from
the 5 Delta Counties to prepare this legislation and support their
efforts to fully partner with the State, the Federal agencies, and
other local governments to improve and care for the Delta.
This bill will establish the Sacramento-San Joaquin Delta as a
National Heritage Area.
The Delta Protection Commission, created by California law and
responsible to the citizens of the Delta and California, will manage
the Heritage Area. It will ensure an open and public process, working
with all levels of federal, state, and local government, tribes, local
stakeholders, and private property owners as it develops and implements
the management plan for the Heritage Area. The goal is to conserve and
protect the Delta, its communities, its resources, and its history.
It is also important to understand what this legislation will not do.
It will not affect water rights. It will not affect water contracts. It
will not affect private property.
Nothing in this bill gives any governmental agency any more
regulatory power than it already has, nor does it take away regulatory
from agencies that have it.
In short, this bill does not affect water rights or water contracts,
nor does is impose any additional responsibilities on local government
or residents. Instead, it authorizes Federal assistance to a local
process already required by State law that will elevate the Delta,
providing a means to conserve and protect its valued communities,
resources, and history.
The Sacramento-San Joaquin Delta is the largest estuary on the West
Coast. It is the most extensive inland delta in the world, and a unique
national treasure.
Today, it is a labyrinth of sloughs, wetlands, and deepwater channels
that connect the waters of the high Sierra mountain streams to the
Pacific Ocean through the San Francisco Bay. Its approximately 60
islands are protected by 1,100 miles of levees, and are home to
3,500,000 residents, including 2,500 family farmers. The Delta and its
farmers produce some of the highest quality specialty crops in the
United States.
The Delta offers recreational opportunities to the two million
Californians who visit the Delta each year for boating, fishing,
hunting, visiting historic sites, and viewing wildlife. It provides
habitat for more than 750 species of plants and wildlife. These include
sand hill cranes that migrate to the Delta wetland from places as far
away as Siberia. The Delta also provides habitat for 55 species of
fish, including Chinook salmon--some as large as 60 pounds--that return
each year to travel through the Delta to spawn in the tributaries.
These same waterways also channel fresh water to the Federal and
State-owned pumps in the South Delta that provide water to 23 million
Californians and 3 million acres of irrigated agricultural land
elsewhere in the state.
Before the Delta was reclaimed for farmland in the 19th Century, the
Delta flooded regularly with snow melt each spring, and provided the
rich environment that, by 1492, supported the largest settlement of
Native Americans in North America.
The Delta was the gateway to the gold fields in 1849, after which
Chinese workers built hundreds of miles of levees throughout the
waterways of the Delta to make its rich peat soils available for
farming and to control flooding.
Japanese, Italians, German, Portuguese, Dutch, Greeks, South Asians,
and other immigrants began the farming legacy, and developed
technologies specifically adapted to the unique environment, including
the Caterpillar Tractor, which later contributed to agriculture and
transportation internationally.
Delta communities created a river culture befitting their dependence
on water transport, a culture which has attracted the attention of
authors from Mark Twain and Jack London to Joan Didion.
The Delta is in crisis due to many factors, including invasive
species, urban and agricultural run-off, wastewater discharges,
channelization, dredging, water export operations, and other stressors.
Many of the islands of the Delta are between 10 and 20 feet below sea
level, and the levee system is presently inadequate to provide reliable
flood protection for historic communities, significant habitats,
agricultural enterprises, water resources, transportation and other
infrastructure.
Existing levees have not been engineered to withstand earthquakes.
Should levees fail for any reason, a rush of seawater into the interior
of the Delta could damage the already fragile ecosystem, contaminate
drinking water for many Californians, flood agricultural land, inundate
towns, and damage roads, power lines, and water project infrastructure.
The State of California has been working for decades on a resolution
to the water supply and ecosystem crisis in the State, and has a long
history of partnerships with Federal agencies, working together to
resolve challenges to the Delta's historic communities, ecosystem and
the water it supplies so many Californians.
The Delta Protection Commission, established under state law, has
been tasked by the California State Legislature with providing a forum
for Delta residents to engage in decisions regarding actions to
recognize and enhance the unique cultural, recreational, agricultural
resources, infrastructure and legacy communities of the Delta and to
serve as the facilitating agency for the implementation of a National
Heritage Area in the Delta.
This legislation will complement the broadly supported State Water
Legislation of 2009, which called for a Heritage designation for the
Delta.
This legislation authorizes the creation of the Delta Heritage Area
and federal assistance to the Delta Protection Commission in
implementing the Area. This legislation is just a small part of the
commitment the Federal government must make to the Delta. I look
forward to continuing to work with my colleagues at every level of
[[Page S150]]
government to restore and sustain the ecosystem in the Delta, to
provide for reliable water supply in the State of California, to
recover the native species of the Delta, protect communities in the
Delta from flood risk, ensure economic sustainability in the Delta,
improve water quality in the Delta, and; sustain the unique cultural,
historical, recreational, agricultural and economic values of the
Delta.
The National Heritage Area designation for the Sacramento-San Joaquin
Delta will help local governments develop and implement a plan for a
sustainable future by providing Federal recognition, technical
assistance and small amounts of funding to a community-based process
already underway.
Through the Delta Heritage Area, local communities and citizens will
partner with Federal, State and local governments to collaboratively
work to promote conservation, community revitalization, and economic
development projects.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 29
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sacramento-San Joaquin Delta
National Heritage Area Establishment Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Heritage area.--The term ``Heritage Area'' means the
Sacramento-San Joaquin Delta Heritage Area established by
section 3(a).
(2) Heritage area management plan.--The term ``Heritage
Area management plan'' means the plan developed and adopted
by the management entity under this Act.
(3) Management entity.--The term ``management entity''
means the management entity for the Heritage Area designated
by section 3(d).
(4) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(5) State.--The term ``State'' means the State of
California.
SEC. 3. SACRAMENTO-SAN JOAQUIN DELTA HERITAGE AREA.
(a) Establishment.--There is established the ``Sacramento-
San Joaquin Delta Heritage Area'' in the State.
(b) Boundaries.--The boundaries of the Heritage Area shall
be in the counties of Contra Costa, Sacramento, San Joaquin,
Solano, and Yolo in the State of California, as generally
depicted on the map entitled ``Sacramento-San Joaquin Delta
National Heritage Area Proposed Boundary'', numbered T27/
105,030, and dated September 2010.
(c) Availability of Map.--The map described in subsection
(b) shall be on file and available for public inspection in
the appropriate offices of the National Park Service and the
Delta Protection Commission.
(d) Management Entity.--The management entity for the
Heritage Area shall be the Delta Protection Commission
established by section 29735 of the California Public
Resources Code.
(e) Administration.--
(1) Authorities.--For purposes of carrying out the Heritage
Area management plan, the Secretary, acting through the
management entity, may use amounts made available under this
Act to--
(A) make grants to the State or a political subdivision of
the State, nonprofit organizations, and other persons;
(B) enter into cooperative agreements with, or provide
technical assistance to, the State or a political subdivision
of the State, nonprofit organizations, and other interested
parties;
(C) hire and compensate staff, which shall include
individuals with expertise in natural, cultural, and
historical resources protection, and heritage programming;
(D) obtain money or services from any source including any
that are provided under any other Federal law or program;
(E) contract for goods or services; and
(F) undertake to be a catalyst for any other activity that
furthers the Heritage Area and is consistent with the
approved Heritage Area management plan.
(2) Duties.--The management entity shall--
(A) in accordance with subsection (f), prepare and submit a
Heritage Area management plan to the Secretary;
(B) assist units of local government, regional planning
organizations, and nonprofit organizations in carrying out
the approved Heritage Area management plan by--
(i) carrying out programs and projects that recognize,
protect, and enhance important resource values in the
Heritage Area;
(ii) establishing and maintaining interpretive exhibits and
programs in the Heritage Area;
(iii) developing recreational and educational opportunities
in the Heritage Area;
(iv) increasing public awareness of, and appreciation for,
natural, historical, scenic, and cultural resources of the
Heritage Area;
(v) protecting and restoring historic sites and buildings
in the Heritage Area that are consistent with Heritage Area
themes;
(vi) ensuring that clear, consistent, and appropriate signs
identifying points of public access, and sites of interest
are posted throughout the Heritage Area; and
(vii) promoting a wide range of partnerships among
governments, organizations, and individuals to further the
Heritage Area;
(C) consider the interests of diverse units of government,
businesses, organizations, and individuals in the Heritage
Area in the preparation and implementation of the Heritage
Area management plan;
(D) conduct meetings open to the public at least
semiannually regarding the development and implementation of
the Heritage Area management plan;
(E) for any year that Federal funds have been received
under this Act--
(i) submit an annual report to the Secretary that describes
the activities, expenses, and income of the management entity
(including grants to any other entities during the year that
the report is made);
(ii) make available to the Secretary for audit all records
relating to the expenditure of the funds and any matching
funds;
(iii) require, with respect to all agreements authorizing
expenditure of Federal funds by other organizations, that the
organizations receiving the funds make available to the
Secretary for audit all records concerning the expenditure of
the funds; and
(F) encourage by appropriate means economic viability that
is consistent with the Heritage Area.
(3) Prohibition on the acquisition of real property.--The
management entity shall not use Federal funds made available
under this Act to acquire real property or any interest in
real property.
(4) Cost-sharing requirement.--The Federal share of the
cost of any activity carried out using any assistance made
available under this Act shall be 50 percent.
(f) Heritage Area Management Plan.--
(1) In general.--Not later than 3 years after the date of
enactment of this Act, the management entity shall submit to
the Secretary for approval a proposed Heritage Area
management pla.
(2) Requirements.--The Heritage Area management plan
shall--
(A) incorporate an integrated and cooperative approach to
agricultural resources and activities, flood protection
facilities, and other public infrastructure;
(B) emphasizes the importance of the resources described in
subparagraph (A);
(C) take into consideration State and local plans;
(D) include--
(i) an inventory of--
(I) the resources located in the core area described in
subsection (b); and
(II) any other property in the core area that--
(aa) is related to the themes of the Heritage Area; and
(bb) should be preserved, restored, managed, or maintained
because of the significance of the property;
(ii) comprehensive policies, strategies and recommendations
for conservation, funding, management, and development of the
Heritage Area;
(iii) a description of actions that governments, private
organizations, and individuals have agreed to take to protect
the natural, historical and cultural resources of the
Heritage Area;
(iv) a program of implementation for the Heritage Area
management plan by the management entity that includes a
description of--
(I) actions to facilitate ongoing collaboration among
partners to promote plans for resource protection,
restoration, and construction; and
(II) specific commitments for implementation that have been
made by the management entity or any government,
organization, or individual for the first 5 years of
operation;
(v) the identification of sources of funding for carrying
out the Heritage Area management plan;
(vi) analysis and recommendations for means by which local,
State, and Federal programs, including the role of the
National Park Service in the Heritage Area, may best be
coordinated to carry out this Act; and
(vii) an interpretive plan for the Heritage Area; and
(E) recommend policies and strategies for resource
management that consider and detail the application of
appropriate land and water management techniques, including
the development of intergovernmental and interagency
cooperative agreements to protect the natural, historical,
cultural, educational, scenic, and recreational resources of
the Heritage Area.
(3) Restrictions.--The Heritage Area management plan
submitted under this subsection shall--
(A) ensure participation by appropriate Federal, State,
tribal, and local agencies, including the Delta Stewardship
Council, special districts, natural and historical resource
protection and agricultural organizations, educational
institutions, businesses, recreational organizations,
community residents, and private property owners; and
(B) not be approved until the Secretary has received
certification from the Delta Protection Commission that the
Delta Stewardship Council has reviewed the Heritage Area
management plan for consistency with the plan adopted by the
Delta Stewardship Council pursuant to State law.
[[Page S151]]
(4) Deadline.--If a proposed Heritage Area management plan
is not submitted to the Secretary by the date that is 3 years
after the date of enactment of this Act, the management
entity shall be ineligible to receive additional funding
under this Act until the date that the Secretary receives and
approves the Heritage Area management plan.
(5) Approval or disapproval of heritage area management
plan.--
(A) In general.--Not later than 180 days after the date of
receipt of the Heritage Area management plan under paragraph
(1), the Secretary, in consultation with the State, shall
approve or disapprove the Heritage Area management plan.
(B) Criteria for approval.--In determining whether to
approve the Heritage Area management plan, the Secretary
shall consider whether--
(i) the management entity is representative of the diverse
interests of the Heritage Area, including governments,
natural and historic resource protection organizations,
educational institutions, businesses, and recreational
organizations;
(ii) the management entity has afforded adequate
opportunity, including public hearings, for public and
governmental involvement in the preparation of the Heritage
Area management plan; and
(iii) the resource protection and interpretation strategies
contained in the Heritage Area management plan, if
implemented, would adequately protect the natural,
historical, and cultural resources of the Heritage Area.
(C) Action following disapproval.--If the Secretary
disapproves the Heritage Area management plan under
subparagraph (A), the Secretary shall--
(i) advise the management entity in writing of the reasons
for the disapproval;
(ii) make recommendations for revisions to the Heritage
Area management plan; and
(iii) not later than 180 days after the receipt of any
proposed revision of the Heritage Area management plan from
the management entity, approve or disapprove the proposed
revision.
(D) Amendments.--
(i) In general.--The Secretary shall approve or disapprove
each amendment to the Heritage Area management plan that the
Secretary determines make a substantial change to the
Heritage Area management plan.
(ii) Use of funds.--The management entity shall not use
Federal funds authorized by this Act to carry out any
amendments to the Heritage Area management plan until the
Secretary has approved the amendments.
(g) Relationship to Other Federal Agencies.--
(1) In general.--Nothing in this Act affects the authority
of a Federal agency to provide technical or financial
assistance under any other law.
(2) Consultation and coordination.--The head of any Federal
agency planning to conduct activities that may have an impact
on the Heritage Area is encouraged to consult and coordinate
the activities with the Secretary and the management entity
to the maximum extent practicable.
(3) Other federal agencies.--Nothing in this Act--
(A) modifies, alters, or amends any law or regulation
authorizing a Federal agency to manage Federal land under the
jurisdiction of the Federal agency;
(B) limits the discretion of a Federal land manager to
implement an approved land use plan within the boundaries of
the Heritage Area; or
(C) modifies, alters, or amends any authorized use of
Federal land under the jurisdiction of a Federal agency.
(h) Private Property and Regulatory Protections.--
(1) In general.--Subject to paragraph (2), nothing in this
Act--
(A) abridges the rights of any property owner (whether
public or private), including the right to refrain from
participating in any plan, project, program, or activity
conducted within the Heritage Area;
(B) requires any property owner to permit public access
(including access by Federal, State, or local agencies) to
the property of the property owner, or to modify public
access or use of property of the property owner under any
other Federal, State, or local law;
(C) alters any duly adopted land use regulation, approved
land use plan, or other regulatory authority of any Federal,
State or local agency, or conveys any land use or other
regulatory authority to the management entity;
(D) authorizes or implies the reservation or appropriation
of water or water rights;
(E) diminishes the authority of the State to manage fish
and wildlife, including the regulation of fishing and hunting
within the Heritage Area; or
(F) creates any liability, or affects any liability under
any other law, of any private property owner with respect to
any person injured on the private property.
(2) Opt out.--An owner of private property within the
Heritage Area may opt out of participating in any plan,
project, program, or activity carried out within the Heritage
Area under this Act, if the property owner provides written
notice to the management entity.
(i) Evaluation; Report.--
(1) In general.--Not later than 3 years before the date on
which authority for Federal funding terminates for the
Heritage Area, the Secretary shall--
(A) conduct an evaluation of the accomplishments of the
Heritage Area; and
(B) prepare a report in accordance with paragraph (3).
(2) Evaluation.--An evaluation conducted under paragraph
(1)(A) shall--
(A) assess the progress of the management entity with
respect to--
(i) accomplishing the purposes of this Act for the Heritage
Area; and
(ii) achieving the goals and objectives of the approved
Heritage Area management plan;
(B) analyze the Federal, State, local, and private
investments in the Heritage Area to determine the leverage
and impact of the investments; and
(C) review the management structure, partnership
relationships, and funding of the Heritage Area for purposes
of identifying the critical components for sustainability of
the Heritage Area.
(3) Report.--
(A) In general.--Based on the evaluation conducted under
paragraph (1)(A), the Secretary shall prepare a report that
includes recommendations for the future role of the National
Park Service, if any, with respect to the Heritage Area.
(B) Required analysis.--If the report prepared under
subparagraph (A) recommends that Federal funding for the
Heritage Area be reauthorized, the report shall include an
analysis of--
(i) ways in which Federal funding for the Heritage Area may
be reduced or eliminated; and
(ii) the appropriate time period necessary to achieve the
recommended reduction or elimination.
(C) Submission to congress.--On completion of the report,
the Secretary shall submit the report to--
(i) the Committee on Energy and Natural Resources of the
Senate; and
(ii) the Committee on Natural Resources of the House of
Representatives.
(j) Effect of Designation.--Nothing in this Act--
(1) precludes the management entity from using Federal
funds made available under other laws for the purposes for
which those funds were authorized; or
(2) affects any water rights or contracts.
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There is authorized to be appropriated to
carry out this Act $10,000,000, of which not more than
$1,000,000 may be made available for any fiscal year.
(b) Cost-sharing Requirement.--The Federal share of the
total cost of any activity under this Act shall be determined
by the Secretary, but shall be not more than 50 percent.
(c) Non-Federal Share.--The non-Federal share of the total
cost of any activity under this Act may be in the form of in-
kind contributions of goods or services.
SEC. 5. TERMINATION OF AUTHORITY.
(a) In General.--If a proposed Heritage Area management
plan has not been submitted to the Secretary by the date that
is 5 years after the date of enactment of this Act, the
Heritage Area designation shall be rescinded.
(b) Funding Authority.--The authority of the Secretary to
provide assistance under this Act terminates on the date that
is 15 years after the date of enactment of this Act.
______
By Mr. FRANKEN:
S. 31. A bill to amend part D of title XVIII of the Social Security
Act to authorize the Secretary of Health and Human Services to
negotiate for lower prices for Medicare prescription drugs; to the
Committee on Finance.
Mr. FRANKEN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 31
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Prescription Drug and Health
Improvement Act of 2011''.
SEC. 2. NEGOTIATING FAIR PRICES FOR MEDICARE PRESCRIPTION
DRUGS.
(a) Negotiating Fair Prices.--
(1) In general.--Section 1860D-11 of the Social Security
Act (42 U.S.C. 1395w-111) is amended by striking subsection
(i) (relating to noninterference) and by inserting the
following:
``(i) Authority To Negotiate Prices With Manufacturers.--In
order to ensure that beneficiaries enrolled under
prescription drug plans and MA-PD plans pay the lowest
possible price, the Secretary shall have authority similar to
that of other Federal entities that purchase prescription
drugs in bulk to negotiate contracts with manufacturers of
covered part D drugs, consistent with the requirements and in
furtherance of the goals of providing quality care and
containing costs under this part.''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect on the date of the enactment of this Act.
(b) Biannual Reports to Congress.--Not later than 1 year
after the date of the enactment of this Act, and every 6
months thereafter, the Secretary of Health and Human Services
shall submit to Congress a report on the negotiations
conducted by the Secretary
[[Page S152]]
under section 1860D-11(i) of the Social Security Act (42
U.S.C. 1395w-111(i)), as amended by subsection (a), including
a description of how such negotiations are achieving lower
prices for covered part D drugs (as defined in section 1860D-
2(e) of the Social Security Act (42 U.S.C. 1395w-102(e)) for
Medicare beneficiaries.
______
By Mr. LIEBERMAN (for himself, Mr. Sanders, Mr. Reed, Mrs. Boxer,
Mr. Udall of Colorado, Mr. Harkin, Mr. Bennet, Mr. Kohl, Mr.
Udall of New Mexico, Mr. Cardin, Ms. Cantwell, Mrs. Murray, Mr.
Whitehouse, Mr. Leahy, Mrs. Feinstein, Ms. Klobuchar, Mr.
Kerry, Mr. Durbin, Mr. Wyden, and Mr. Lautenberg):
S. 33. A bill to designate a portion of the Arctic National Wildlife
Refuge as wilderness; to the Committee on Environment and Public Works.
Mr. LIEBERMAN. Mr. President, today, I introduced legislation to
protect the coastal plains region of the Arctic National Wildlife
Refuge from oil and gas exploration and drilling. Every Congress since
the 101st, I have either introduced or been an original cosponsor of
legislation to protect the Refuge, making tomorrow the twelfth time
since 1989 that I will mark my unwavering support for reaffirming the
original intent of the Refuge: to provide habitat for Alaska's
wildlife, by designating 1.5 million acres of the Refuge as Wilderness
to be included in the National Wilderness Preservation System.
I have long believed we have a responsibility to future generations
to preserve the Arctic National Wildlife Refuge, and I have fought to
protect it for as long as I have been in the Senate. The fact is, we do
not have to choose between conservation and exploration when it comes
to our energy future; we can do both simultaneously while moving toward
a sustainable and diverse national energy policy.
The Arctic Refuge is home to 250 species of wildlife. Drilling there
would severely harm its abundant populations of polar bears, caribou,
musk oxen, and snow geese. Beyond that, the amount of commercially
recoverable oil in the Refuge would satisfy only a very small
percentage of our Nation's need at any given time and would have no
appreciable long-tem impact on gasoline prices. The permanent
environmental price we would pay for ravaging the Refuge to drain those
limited resources is simply too high.
I look forward to working with my colleagues to pass this important
legislation.
______
By Mr. WHITEHOUSE (for himself, Mr. Leahy, Mr. Sanders, Mrs.
Boxer, Mr. Durbin, Mr. Brown of Ohio and Mr. Harkin):
S. 45. A bill to amend the Internal Revenue Code of 1986 to provide
for the taxation of income of controlled foreign corporations
attributable for imported property; to the Committee on Finance.
Mr. WHITEHOUSE. Mr. President, from the Recovery Act to the Small
Business Jobs Act, in the previous Congress we passed a number of
substantial pieces of legislation to preserve, protect, and create
American jobs. The Recovery Act alone has supported between 2.7 and 3.7
million jobs, including 12,000 jobs in my home State of Rhode Island.
This was vital in stemming the 700,000-per-month job loss rate we faced
when the previous administration left office. Without the Recovery Act
and the other fiscal stimulus we passed over the past 2 years, the
economy would have been much worse.
While the Recovery Act protected our country from what would have
been a far worse economic meltdown, the employment market is still weak
and families are still hurting. Our national unemployment rate was 9.4
percent in December--an unacceptably high level. And it was higher
still in harder hit States such as Rhode Island, where we have had an
11.5-percent unemployment rate in December. As we begin this new
Congress, our No. 1 priority must remain job retention and creation.
The manufacturing industry has historically been the engine of growth
for the American economy. The manufacturing economy has been especially
important in the industrial Northeast, particularly in my State of
Rhode Island. From Slater Mill in Pawtucket--one of the first water-
powered textile mills in the Nation and the birthplace of the
Industrial Revolution--to high-tech modern submarine production at
Quonset Point, the manufacturing sector has always been central to
Rhode Island's economy.
Unfortunately, as American companies have faced rising production
costs and increased--and very often unfair--competition from foreign
firms, U.S. manufacturing employment has plummeted. According to the
Bureau of Labor Statistics, the number of manufacturing jobs declined
by almost a third over the past decade, from 17.2 million people at
work in 2000 to 11.7 million people at work in 2010. That is 6 million
jobs lost. This decline has been felt most sharply in our old
manufacturing centers, such as Rhode Island. In Rhode Island, the loss
of manufacturing jobs in the past decade has topped 44 percent. The
decline of the manufacturing sector is a primary reason why Rhode
Island has had greater difficulty than most other States in recovering
from the recent recession.
Over and over I have traveled around Rhode Island to meet with local
manufacturers, listening to their frustrations and discussing ideas to
help their businesses grow. During these visits, I have heard one theme
over and over: Unfair foreign competition is killing domestic
industries. One Pawtucket manufacturer I visited last week told me they
recently lost 8 percent of their business to a Chinese competitor. It
is clear to me that if we want to keep manufacturing jobs in this
country and in Rhode Island, we need to level the playing field for our
manufacturing companies with their foreign competitors.
Today I will introduce legislation that will remove one homegrown
incentive to move jobs offshore and help to make competition fairer for
companies straggling to keep their factory doors open at plants here in
the United States. The Offshoring Prevention Act, cosponsored by
Senators Leahy, Sanders, Boxer, Durbin, Brown of Ohio, and Harkin,
would end a perverse tax incentive that actually rewards companies for
shipping jobs overseas. Under current law, an American company that
manufactures goods in Rhode Island or Montana or Maine must pay Federal
income tax on profits in the year the profits are earned. That is
standard tax law. But if that same company moves its factory to another
country, it is permitted to defer the payment of income taxes from that
factory and declare them in a year that is more advantageous--for
example, one in which the company has offsetting tax losses.
If an American company moves a plant offshore, it acquires this tax
deferral advantage. It makes no sense that our Tax Code allows
companies to delay paying income taxes on profits when made through
overseas subsidiaries but charges those profits in the year they are
made at home. My bill will put a stop to this practice on profits
earned on manufactured goods exported to the United States. To put it
simply: Our tax system should not reward companies for eliminating
American jobs.
The Offshoring Prevention Act is based on legislation Senator Byron
Dorgan offered over the past two decades, again and again. We can all
remember Senator Dorgan coming to this floor here with pictures of
iconic American goods, such as York Peppermint Patties, Radio Flyer red
wagons, Fig Newton cookies, and Huffy bicycles, to highlight the fact
that the production of these American classic products had moved to
Mexico, to China, and elsewhere. On dozens, if not hundreds, of
occasions, Senator Dorgan spoke passionately on this floor about the
decline of American manufacturing. I am grateful to his leadership on
this critical issue and for bringing our attention to an unfair tax
advantage that rewards companies for moving manufacturing jobs
overseas.
Last year, a version of Senator Dorgan's bill was included in the
Creating American Jobs and Ending Offshoring Act. While a majority of
this body--53 Senators--voted to begin debate on the bill, we were not
able to overcome a filibuster to have a chance to consider and pass
this legislation. I am sorry we were not able to pass the bill last
year, and I will do my best to bring it up for a vote in this new
Congress.
Mr. President, keeping jobs in America and providing a level playing
field for American manufacturing should
[[Page S153]]
not be a Democratic or a Republican issue. We all serve here in the
Senate to represent the interests of our constituents, and our
constituents want us to keep these good-paying manufacturing jobs in
America. I hope that all of our colleagues will join me in passing the
Offshoring Prevention Act to do just that.
______
By Mr. INOUYE (for himself, Mr. Rockefeller, Mr. Kerry, Ms.
Snowe, and Mr. Nelson of Florida):
S. 46. A bill to reauthorize the Coral Reef Conservation Act of 2000,
and for other purposes; to the Committee on Commerce, Science, and
Transportation.
Mr. INOUYE. Mr. President, I am pleased to introduce the Coral Reef
Conservation Amendments Act, which I also introduced in the 111th
Congress. This critical bill reauthorizes and strengthens the Coral
Reef Conservation Act of 2000, a program that I was pleased to
originally sponsor in the 106th Congress establishing the Coral Reef
Conservation Program at the National Oceanic and Atmospheric
Administration, NOAA.
Coral reefs are among the oldest and most economically and
biologically important ecosystems in the world. They provide habitat
for more than one million diverse aquatic species, a natural barrier
for protection from coastal storms and erosion, and are a potential
source of treatment for many of the world's diseases. From a commerce
perspective, reef-supported tourism is a $30 billion industry
worldwide, and the commercial value of United States fisheries from
coral reefs is more than $100 million.
However, our coral reef ecosystems face many threats including
pollution, climate change and coral bleaching, and overfishing to name
a few. Coral reefs cover only one-tenth of one percent of the ocean
floor, yet provide habitat for more than twenty-five percent of all
marine species.
The original Coral Reef Conservation Act of 2000 recognized the need
to preserve, sustain and restore the condition of these valuable coral
reef ecosystems. The Coral Reef Conservation Amendments Act of 2011
would strengthen NOAA's ability to comprehensively address threats to
coral reefs and empower the agency with tools to ensure that damage to
our coral reef ecosystems is prevented or effectively mitigated. It
also establishes consistent practices for maintaining data, products,
and information, and promotes the widespread availability and
dissemination of that environmental information.
Finally, the bill allows the Secretary to further develop
partnerships with foreign governments and international organizations--
partnerships that are critical not only to the understanding of our
coral reef ecosystems, but also to their protection and restoration.
Thank you and I would urge you to support this important legislation
to continue supporting NOAA's leadership role in coral reef
conservation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 46
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Coral Reef
Conservation Amendments Act of 2011''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendment of Coral Reef Conservation Act of 2000.
Sec. 3. Purposes.
Sec. 4. National coral reef action strategy.
Sec. 5. Coral reef conservation program.
Sec. 6. Coral reef conservation fund.
Sec. 7. Agreements; redesignations.
Sec. 8. Emergency assistance.
Sec. 9. National program.
Sec. 10. Study of trade in corals.
Sec. 11. International coral reef conservation activities.
Sec. 12. Community-based planning grants.
Sec. 13. Vessel grounding inventory.
Sec. 14. Prohibited activities.
Sec. 15. Destruction of coral reefs.
Sec. 16. Enforcement.
Sec. 17. Permits.
Sec. 18. Regional, State, and Territorial coordination.
Sec. 19. Regulations.
Sec. 20. Effectiveness and assessment report.
Sec. 21. Authorization of appropriations.
Sec. 22. Judicial review.
Sec. 23. Definitions.
SEC. 2. AMENDMENT OF CORAL REEF CONSERVATION ACT OF 2000.
Except as otherwise expressly provided, whenever in this
Act an amendment or repeal is expressed in terms of an
amendment to or repeal of a section or other provision, the
reference shall be considered to be made to a section or
other provision of the Coral Reef Conservation Act of 2000
(16 U.S.C. 6401 et seq.).
SEC. 3. PURPOSES.
Section 202 (16 U.S.C. 6401) is amended to read as follows:
``SEC. 202. PURPOSES.
``The purposes of this Act are--
``(1) to preserve, sustain, and restore the condition of
coral reef ecosystems;
``(2) to promote the wise management and sustainable use of
coral reef ecosystems to benefit local communities, the
Nation, and the world;
``(3) to develop sound scientific information on the
condition of coral reef ecosystems and the threats to such
ecosystems;
``(4) to assist in the preservation of coral reef
ecosystems by supporting conservation programs, including
projects that involve affected local communities and
nongovernmental organizations;
``(5) to provide financial resources for those programs and
projects;
``(6) to establish a formal mechanism for collecting and
allocating monetary donations from the private sector to be
used for coral reef conservation projects; and
``(7) to provide mechanisms to prevent and minimize damage
to coral reefs.''.
SEC. 4. NATIONAL CORAL REEF ACTION STRATEGY.
Section 203 (16 U.S.C. 6402) is amended to read as follows:
``(a) In General.--Not later than 180 days after the date
of the enactment of the Coral Reef Conservation Amendments
Act of 2011, the Secretary shall submit to the Senate
Committee on Commerce, Science, and Transportation and to the
House of Representatives Committee on Natural Resources and
publish in the Federal Register a national coral reef
ecosystem action strategy, consistent with the purposes of
this title. The Secretary shall periodically review and
revise the strategy as necessary. In developing this national
strategy, the Secretary may consult the Coral Reef Task Force
established under Executive Order 13089 (June 11, 1998).
``(b) Goals and Objectives.--The action strategy shall
include a statement of goals and objectives as well as an
implementation plan, including a description of the funds
obligated each fiscal year to advance coral reef
conservation. The action strategy and implementation plan
shall include discussion of--
``(1) coastal uses and management, including land-based
sources of pollution;
``(2) climate change;
``(3) water and air quality;
``(4) mapping and information management;
``(5) research, monitoring, and assessment;
``(6) international and regional issues;
``(7) outreach and education;
``(8) local strategies developed by the States or Federal
agencies, including regional fishery management councils; and
``(9) conservation.''.
SEC. 5. CORAL REEF CONSERVATION PROGRAM.
(a) In General.--Section 204 (16 U.S.C. 6403) is amended--
(1) by striking ``Secretary, through the Administrator
and'' in subsection (a) and inserting ``Secretary,'';
(2) by striking subsection (c) and inserting the following:
``(c) Eligibility.--Any natural resource management
authority of a State or other government authority with
jurisdiction over coral reef ecosystems, or whose activities
directly or indirectly affect coral reef ecosystems, or
educational or nongovernmental institutions with demonstrated
expertise in the conservation of coral reef ecosystems, may
submit a coral conservation proposal to the Secretary under
subsection (e).'';
(3) by striking ``Geographic and Biological'' in the
heading for subsection (d) and inserting ``Project'';
(4) by striking paragraph (3) of subsection (d) and
inserting the following:
``(3) Remaining funds shall be awarded for--
``(A) projects (with priority given to community-based
local action strategies) that address emerging priorities or
threats, including international and territorial priorities,
or threats identified by the Secretary; and
``(B) other appropriate projects, as determined by the
Secretary, including monitoring and assessment, research,
pollution reduction, education, and technical support.'';
(5) by striking subsection (g) and inserting the following:
``(g) Criteria for Approval.--The Secretary may not approve
a project proposal under this section unless the project is
consistent with the coral reef action strategy under section
203 and will enhance the conservation of coral reef
ecosystems nationally or internationally by--
``(1) implementing coral conservation programs which
promote sustainable development and ensure effective, long-
term conservation of coral reef ecosystems and biodiversity;
[[Page S154]]
``(2) addressing the conflicts arising from the use of
environments near coral reef ecosystems or from the use of
corals, species associated with coral reef ecosystems, and
coral products;
``(3) enhancing compliance with laws that prohibit or
regulate the taking of coral products or species associated
with coral reef ecosystems or regulate the use and management
of coral reef ecosystems;
``(4) developing sound scientific information on the
condition of coral reef ecosystems or the threats to such
ecosystems and their biodiversity, including factors that
cause coral disease, ocean acidification, and bleaching;
``(5) promoting and assisting the implementation of
cooperative coral reef ecosystem conservation projects that
involve affected local communities, nongovernmental
organizations, or others in the private sector;
``(6) increasing public knowledge and awareness of coral
reef ecosystems and issues regarding their long-term
conservation, including how they function to protect coastal
communities;
``(7) mapping the location, distribution, and biodiversity
of coral reef ecosystems;
``(8) developing and implementing techniques to monitor and
assess the status and condition of coral reef ecosystems and
biodiversity;
``(9) developing and implementing cost-effective methods to
restore degraded coral reef ecosystems and biodiversity;
``(10) responding to, or taking action to help mitigate the
effects of, coral disease, ocean acidification, and bleaching
events;
``(11) promoting activities designed to prevent or minimize
damage to coral reef ecosystems, including the promotion of
ecologically sound navigation and anchorages; or
``(12) promoting and assisting entities to work with local
communities, and all appropriate governmental and
nongovernmental organizations, to support community-based
planning and management initiatives for the protection of
coral reef systems.''; and
(6) by striking ``coral reefs'' in subsection (j) and
inserting ``coral reef ecosystems''.
(b) Conforming Amendments.--Subsections (b), (d), (e), (f),
(h), (i), and (j) of section 204 (16 U.S.C. 6403) are each
amended by striking ``Administrator'' each place it appears
and inserting ``Secretary''.
SEC. 6. CORAL REEF CONSERVATION FUND.
Section 205 (16 U.S.C. 6404) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Fund.--The Secretary may enter into agreements with
nonprofit organizations promoting coral reef ecosystem
conservation by authorizing such organizations to receive,
hold, and administer funds received pursuant to this section.
Such organizations shall invest, reinvest, and otherwise
administer the funds and maintain such funds and any interest
or revenues earned in a separate interest-bearing account
(referred to in section 219(a) as the Fund) established by
such organizations solely to support partnerships between the
public and private sectors that further the purposes of this
title and are consistent with the national coral reef action
strategy under section 203.'';
(2) by striking ``the grant program'' in subsection (c) and
inserting ``any grant program''; and
(3) by striking ``Administrator'' in subsections (c) and
(d) and inserting ``Secretary''.
SEC. 7. AGREEMENTS; REDESIGNATIONS.
The Act (16 U.S.C. 6401 et seq.) is amended--
(1) by redesignating section 206 (16 U.S.C. 6405) as
section 207;
(2) by redesignating section 207 (16 U.S.C. 6406) as
section 208;
(3) by redesignating section 208 (16 U.S.C. 6407) as
section 218;
(4) by redesignating section 209 (16 U.S.C. 6408) as
section 219;
(5) by redesignating section 210 (16 U.S.C. 6409) as
section 221; and
(6) by inserting after section 205 (16 U.S.C. 6404) the
following:
``SEC. 206. AGREEMENTS.
``(a) In General.--The Secretary may execute and perform
such contracts, leases, grants, cooperative agreements, or
other transactions as may be necessary to carry out the
purposes of this title.
``(b) Cooperative Agreements.--In addition to the general
authority provided by subsection (a), the Secretary may enter
into, extend, or renegotiate agreements with universities and
research centers with national or regional coral reef
research institutes to conduct ecological research and
monitoring explicitly aimed at building capacity for more
effective resource management. Pursuant to any such
agreements these institutes shall--
``(1) collaborate directly with governmental resource
management agencies, non-profit organizations, and other
research organizations;
``(2) build capacity within resource management agencies to
establish research priorities, plan interdisciplinary
research projects and make effective use of research results;
and
``(3) conduct public education and awareness programs for
policy makers, resource managers, and the general public on
coral reef ecosystems, best practices for coral reef and
ecosystem management and conservation, their value, and
threats to their sustainability.
``(c) Use of Other Agencies' Resources.--For purposes
related to the conservation, preservation, protection,
restoration, or replacement of coral reefs or coral reef
ecosystems and the enforcement of this title, the Secretary
is authorized to use, with their consent and with or without
reimbursement, the land, services, equipment, personnel, and
facilities of any Department, agency, or instrumentality of
the United States, or of any State, local government, tribal
government, Territory or possession, or of any political
subdivision thereof, or of any foreign government or
international organization.
``(d) Authority To Utilize Grant Funds.--
``(1) Except as provided in paragraph (2), the Secretary
may apply for, accept, and obligate research grant funding
from any Federal source operating competitive grant programs
where such funding furthers the purpose of this title.
``(2) The Secretary may not apply for, accept, or obligate
any grant funding under paragraph (1) for which the granting
agency lacks authority to grant funds to Federal agencies, or
for any purpose or subject to conditions that are prohibited
by law or regulation.
``(3) Appropriated funds may be used to satisfy a
requirement to match grant funds with recipient agency funds,
except that no grant may be accepted that requires a
commitment in advance of appropriations.
``(4) Funds received from grants shall be deposited in the
National Oceanic and Atmospheric Administration account for
the purpose for which the grant was awarded.
``(e) Transfer of Funds.--Under an agreement entered into
pursuant to subsection (a), and subject to the availability
of funds, the Secretary may transfer funds to, and may accept
transfers of funds from, Federal agencies, instrumentalities
and laboratories, State and local governments, Indian tribes
(as defined in section 4 of the Indian Self-Determination and
Educational Assistance Act (25 U.S.C. 450(b)), organizations
and associations representing Native Americans, native
Hawaiians, and Native Pacific Islanders, educational
institutions, nonprofit organizations, commercial
organizations, and other public and private persons or
entities, except that no more than 5 percent of funds
appropriated to carry out this section may be transferred.
The 5 percent limitation shall not apply to section 204 or
section 210.''.
SEC. 8. EMERGENCY ASSISTANCE.
Section 207 (formerly 16 U.S.C. 6405), as redesignated by
section 7 of this Act, is amended to read as follows:
``SEC. 207. EMERGENCY ASSISTANCE.
``The Secretary, in cooperation with the Federal Emergency
Management Agency, as appropriate, may provide assistance to
any State, local, or territorial government agency with
jurisdiction over coral reef ecosystems to address any
unforeseen or disaster-related circumstance pertaining to
coral reef ecosystems.''.
SEC. 9. NATIONAL PROGRAM.
Section 208 (formerly 16 U.S.C. 6406), as redesignated by
section 7 of this Act, is amended to read as follows:
``SEC. 208. NATIONAL PROGRAM.
``(a) In General.--Subject to the availability of
appropriations, the Secretary may conduct activities,
including with local, State, regional, or international
programs and partners, as appropriate, to conserve coral reef
ecosystems, that are consistent with this title, the National
Marine Sanctuaries Act, the Coastal Zone Management Act of
1972, the Magnuson-Stevens Fishery Conservation and
Management Act, the Endangered Species Act of 1973, and the
Marine Mammal Protection Act of 1972.
``(b) Authorized Activities.--Activities authorized under
subsection (a) include--
``(1) mapping, monitoring, assessment, restoration,
socioeconomic and scientific research that benefit the
understanding, sustainable use, biodiversity, and long-term
conservation of coral reef ecosystems;
``(2) enhancing public awareness, education, understanding,
and appreciation of coral reef ecosystems;
``(3) removing, and providing assistance to States in
removing, abandoned fishing gear, marine debris, and
abandoned vessels from coral reef ecosystems to conserve
living marine resources;
``(4) responding to incidents and events that threaten and
damage coral reef ecosystems;
``(5) conservation and management of coral reef ecosystems;
``(6) centrally archiving, managing, and distributing data
sets and providing coral reef ecosystem assessments and
services to the general public with local, regional, or
international programs and partners; and
``(7) activities designed to prevent or minimize damage to
coral reef ecosystems, including those activities described
in section 212 of this title.
``(c) Data Archive, Access, and Availability.--The
Secretary, in coordination with similar efforts at other
Departments and agencies shall provide for the long-term
stewardship of environmental data, products, and information
via data processing, storage, and archive facilities pursuant
to this title. The Secretary may--
``(1) archive environmental data collected by Federal,
State, local agencies, and tribal organizations and federally
funded research;
``(2) promote widespread availability and dissemination of
environmental data and information through full and open
access and exchange to the greatest extent possible,
including in electronic format on the Internet;
[[Page S155]]
``(3) develop standards, protocols, and procedures for
sharing Federal data with State and local government programs
and the private sector or academia; and
``(4) develop metadata standards for coral reef ecosystems
in accordance with Federal Geographic Data Committee
guidelines.
``(d) Emergency Response, Stabilization, and Restoration.--
``(1) Establishment of account.--The Secretary shall
establish an account (to be called the Emergency Response,
Stabilization, and Restoration Account) in the Damage
Assessment Restoration Revolving Fund established by the
Department of Commerce Appropriations Act, 1991 (33 U.S.C.
2706 note), for implementation of this subsection for
emergency actions. Amounts appropriated for the Account under
section 219, and funds authorized by sections
213(d)(1)(C)(ii) and 214(f)(3)(B), shall be deposited into
the Account and made available for use by the Secretary as
specified in sections 213 and 214.
``(2) Deposit and investment of certain funds.-- Any
amounts received by the United States pursuant to sections
213(d)(1)(C)(ii) and 212(f)(3)(B) shall be deposited into the
Emergency Response, Stabilization and Restoration Account
established under paragraph (1). The Secretary of Commerce
may request the Secretary of the Treasury to invest such
portion of the Damage Assessment Restoration Revolving Fund
as is not, in the judgment of the Secretary of Commerce,
required to meet the current needs of the fund. Such
investments shall be made by the Secretary of the Treasury in
public debt securities, with maturities suitable to the needs
of the fund, as determined by the Secretary of Commerce and
bearing interest at rates determined by the Secretary of the
Treasury, taking into consideration current market yields on
outstanding marketable obligations of the United States of
comparable maturity. Interest earned by such investments
shall be available for use by the Secretary without further
appropriation and remain available until expended.''.
SEC. 10. STUDY OF TRADE IN CORALS.
(a) In General.--The Secretary of Commerce, in consultation
with the Secretary of the Interior, shall conduct a study on
the economic, social, and environmental values and impacts of
the United States market in corals and coral products.
(b) Contents.--The study shall--
(1) assess the economic and other values of the United
States market in coral and coral products, including import
and export trade;
(2) identify primary coral species used in the coral and
coral product trade and locations of wild harvest;
(3) assess the environmental impacts associated with wild
harvest of coral;
(4) assess the effectiveness of current public and private
programs aimed at promoting conservation in the coral and
coral product trade;
(5) identify economic and other incentives for coral reef
conservation as part of the coral and coral product trade;
and
(6) identify additional actions, if necessary, to ensure
that the United States market in coral and coral products
does not contribute to the degradation of coral reef
ecosystems.
(c) Report.--Not later than 30 months after the date of
enactment of this Act, the Secretary shall submit to the
Senate Committee on Commerce, Science, and Transportation and
the House of Representatives Committee on Natural Resources a
report of the study.
(d) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary to carry out this section
$100,000.
SEC. 11. INTERNATIONAL CORAL REEF CONSERVATION ACTIVITIES.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 208, as redesignated by section 7 of this Act,
the following:
``SEC. 209. INTERNATIONAL CORAL REEF CONSERVATION ACTIVITIES.
``(a) International Coral Reef Conservation Activities.--
``(1) In general.--The Secretary shall carry out
international coral reef conservation activities consistent
with the purposes of this Act with respect to coral reef
ecosystems in waters outside the United States jurisdiction.
The Secretary shall develop and implement an international
coral reef ecosystem strategy pursuant to subsection (b).
``(2) Coordination.--In carrying out this subsection, the
Secretary shall consult with the Secretary of State, the
Administrator of the Agency for International Development,
the Secretary of the Interior, and other relevant Federal
agencies, and relevant United States stakeholders, and shall
take into account coral reef ecosystem conservation
initiatives of other nations, international agreements, and
intergovernmental and nongovernmental organizations so as to
provide effective cooperation and efficiencies in
international coral reef conservation. The Secretary may
consult with the Coral Reef Task Force in carrying out this
subsection.
``(b) International Coral Reef Ecosystem Strategy.--
``(1) In general.--Not later than 1 year after the date of
enactment of the Coral Reef Conservation Amendments Act of
2011, the Secretary shall submit to the Senate Committee on
Commerce, Science, and Transportation and the House of
Representatives Committee on Natural Resources, and publish
in the Federal Register, an international coral reef
ecosystem strategy, consistent with the purposes of this Act
and the national strategy required pursuant to section
203(a). The Secretary shall periodically review and revise
this strategy as necessary.
``(2) Contents.--The strategy developed by the Secretary
under paragraph (1) shall--
``(A) identify coral reef ecosystems throughout the world
that are of high value for United States marine resources,
that support high-seas resources of importance to the United
States such as fisheries, or that support other interests of
the United States;
``(B) summarize existing activities by Federal agencies and
entities described in subsection (a)(2) to address the
conservation of coral reef ecosystems identified pursuant to
subparagraph (A);
``(C) establish goals, objectives, and specific targets for
conservation of priority international coral reef ecosystems;
``(D) describe appropriate activities to achieve the goals
and targets for international coral reef conservation, in
particular those that leverage activities already conducted
under this Act;
``(E) develop a plan to coordinate implementation of the
strategy with entities described in subsection (a)(2) in
order to leverage current activities under this Act and other
conservation efforts globally;
``(F) identify appropriate partnerships, grants, or other
funding and technical assistance mechanisms to carry out the
strategy; and
``(G) develop criteria for prioritizing partnerships under
subsection (c).
``(c) International Coral Reef Ecosystem Partnerships.--
``(1) In general.--The Secretary shall establish an
international coral reef ecosystem partnership program to
provide support, including funding and technical assistance,
for activities that implement the strategy developed pursuant
to subsection (b).
``(2) Mechanisms.--The Secretary shall provide such support
through existing authorities, working in collaboration with
the entities described in subsection (a)(2).
``(3) Agreements.--The Secretary may execute and perform
such contracts, leases, grants, cooperative agreements, or
other transactions as may be necessary to carry out the
purposes of this section.
``(4) Transfer of funds.--To implement this section and
subject to the availability of funds, the Secretary may
transfer funds to a foreign government or international
organization, and may accept transfers of funds from such
entities, except that no more than 5 percent of funds
appropriated to carry out this section may be transferred.
``(5) Criteria for approval.--The Secretary may not approve
a partnership proposal under this section unless the
partnership is consistent with the international coral reef
conservation strategy developed pursuant to subsection (b),
and meets the criteria specified in that strategy.''.
SEC. 12. COMMUNITY-BASED PLANNING GRANTS.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 209, as added by section 11 of this Act, the
following:
``SEC. 210. COMMUNITY-BASED PLANNING GRANTS.
``(a) In General.--The Secretary may make grants to
entities that have received grants under section 204 to
provide additional funds to such entities to work with local
communities and through appropriate Federal and State
entities to prepare and implement plans for the increased
protection of coral reef areas identified by the community
and scientific experts as high priorities for focused
attention. The plans shall--
``(1) support attainment of 1 or more of the criteria
described in section 204(g);
``(2) be developed at the community level;
``(3) utilize watershed-based approaches;
``(4) provide for coordination with Federal and State
experts and managers; and
``(5) build upon local approaches, strategies, or models,
including traditional or island-based resource management
concepts.
``(b) Terms and Conditions.--The provisions of subsections
(b), (d), (f), and (h) of section 204 apply to grants under
subsection (a), except that, for the purpose of applying
section 204(b)(1) to grants under this section, `75 percent'
shall be substituted for `50 percent'.''.
SEC. 13. VESSEL GROUNDING INVENTORY.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 210, as added by section 12 of this Act, the
following:
``SEC. 211. VESSEL GROUNDING INVENTORY.
``(a) In General.--The Secretary may maintain an inventory
of all vessel grounding incidents involving coral reefs,
including a description of--
``(1) the impacts to affected coral reef ecosystems;
``(2) vessel and ownership information, if available;
``(3) the estimated cost of removal, mitigation, or
restoration;
``(4) the response action taken by the owner, the
Secretary, the Commandant of the Coast Guard, or other
Federal or State agency representatives;
``(5) the status of the response action, including the
dates of vessel removal and mitigation or restoration and any
actions taken to prevent future grounding incidents; and
``(6) recommendations for additional navigational aids or
other mechanisms for preventing future grounding incidents.
``(b) Identification of At-Risk Reefs.--The Secretary may--
``(1) use information from any inventory maintained under
subsection (a) or any other available information source to
identify
[[Page S156]]
coral reef ecosystems that have a high incidence of vessel
impacts, including groundings and anchor damage;
``(2) identify appropriate measures, including the
acquisition and placement of aids to navigation, moorings,
designated anchorage areas, fixed anchors and other devices,
to reduce the likelihood of such impacts; and
``(3) develop a strategy and timetable to implement such
measures, including cooperative actions with other government
agencies and non-governmental partners.''.
SEC. 14. PROHIBITED ACTIVITIES.
(a) In General.--The Act (16 U.S.C. 6401 et seq.) is
amended by inserting after section 211, as added by section
13 of this Act, the following:
``SEC. 212. PROHIBITED ACTIVITIES AND SCOPE OF PROHIBITIONS.
``(a) Provisions as Complementary.--The provisions of this
section are in addition to, and shall not affect the
operation of, other Federal, State, or local laws or
regulations providing protection to coral reef ecosystems.
``(b) Destruction, Loss, Taking, or Injury.--
``(1) In general.--Except as provided in paragraph (2), it
is unlawful for any person to destroy, take, cause the loss
of, or injure any coral reef or any component thereof.
``(2) Exceptions.--The destruction, loss, taking, or injury
of a coral reef or any component thereof is not unlawful if
it--
``(A) was caused by the use of fishing gear used in a
manner permitted under the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1801 et seq.) or
other Federal or State law;
``(B) was caused by an activity that is authorized or
allowed by Federal or State law (including lawful discharges
from vessels, such as graywater, cooling water, engine
exhaust, ballast water, or sewage from marine sanitation
devices), unless the destruction, loss, or injury resulted
from actions such as vessel groundings, vessel scrapings,
anchor damage, excavation not authorized by Federal or State
permit, or other similar activities;
``(C) was the necessary result of bona fide marine
scientific research (including marine scientific research
activities approved by Federal, State, or local permits),
other than excessive sampling or collecting, or actions such
as vessel groundings, vessel scrapings, anchor damage,
excavation, or other similar activities;
``(D) was caused by a Federal Government agency--
``(i) during--
``(I) an emergency that posed an unacceptable threat to
human health or safety or to the marine environment;
``(II) an emergency that posed a threat to national
security; or
``(III) an activity necessary for law enforcement or search
and rescue; and
could not reasonably be avoided; or
``(E) was caused by an action taken by the master of the
vessel in an emergency situation to ensure the safety of the
vessel or to save a life at sea.
``(c) Interference With Enforcement.--It is unlawful for
any person to interfere with the enforcement of this title
by--
``(1) refusing to permit any officer authorized to enforce
this title to board a vessel (other than a vessel operated by
the Department of Defense or United States Coast Guard)
subject to such person's control for the purposes of
conducting any search or inspection in connection with the
enforcement of this title;
``(2) resisting, opposing, impeding, intimidating,
harassing, bribing, interfering with, or forcibly assaulting
any person authorized by the Secretary to implement this
title or any such authorized officer in the conduct of any
search or inspection performed under this title; or
``(3) submitting false information to the Secretary or any
officer authorized to enforce this title in connection with
any search or inspection conducted under this title.
``(d) Violations of Title, Permit, or Regulation.--It is
unlawful for any person to violate any provision of this
title, any permit issued pursuant to this title, or any
regulation promulgated pursuant to this title.
``(e) Possession and Distribution.--It is unlawful for any
person to possess, sell, deliver, carry, transport, or ship
by any means any coral taken in violation of this title.''.
(b) Emergency Action Regulations.--The Secretary of
Commerce shall initiate a rulemaking proceeding to prescribe
the circumstances and conditions under which the exception in
section 212(b)(2)(E) of the Coral Reef Conservation Act of
2000, as amended by subsection (a), applies and shall issue a
final rule pursuant to that rulemaking as soon as practicable
but not later than 1 year after the date of enactment of this
Act. Nothing in this subsection shall be construed to require
the issuance of such regulations before the exception
provided by that section is in effect.
SEC. 15. DESTRUCTION OF CORAL REEFS.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 212, as added by section 14 of this Act, the
following:
``SEC. 213. DESTRUCTION, LOSS, OR TAKING OF, OR INJURY TO,
CORAL REEFS.
``(a) Liability.--
``(1) Liability to the united states.--Except as provided
in subsection (f), all persons who engage in an activity that
is prohibited under subsections (b) or (d) of section 212, or
create an imminent risk thereof, are liable, jointly and
severally, to the United States for an amount equal to the
sum of--
``(A) response costs and damages resulting from the
destruction, loss, taking, or injury, or imminent risk
thereof, including damages resulting from the response
actions;
``(B) costs of seizure, forfeiture, storage, and disposal
arising from liability under this section; and
``(C) interest on that amount calculated in the manner
described in section 1005 of the Oil Pollution Act of 1990
(33 U.S.C. 2705).
``(2) Liability in rem.--
``(A) Any vessel used in an activity that is prohibited
under subsection (b) or (d) of section 212, or creates an
imminent risk thereof, shall be liable in rem to the United
States for an amount equal to the sum of--
``(i) response costs and damages resulting from such
destruction, loss, or injury, or imminent risk thereof,
including damages resulting from the response actions;
``(ii) costs of seizure, forfeiture, storage, and disposal
arising from liability under this section; and
``(iii) interest on that amount calculated in the manner
described in section 1005 of the Oil Pollution Act of 1990
(33 U.S.C. 2705).
``(B) The amount of liability shall constitute a maritime
lien on the vessel and may be recovered in an action in rem
in any district court of the United States that has
jurisdiction over the vessel.
``(3) Defenses.--A person or vessel is not liable under
this subsection if that person or vessel establishes that the
destruction, loss, taking, or injury was caused solely by an
act of God, an act of war, or an act or omission of a third
party (other than an employee or agent of the defendant or
one whose act or omission occurs in connection with a
contractual relationship, existing directly or indirectly
with the defendant), and the person or master of the vessel
acted with due care.
``(4) No Limit to liability.--Nothing in sections 30501
through 30512 or section 30706 of title 46, United States
Code, shall limit liability to any person under this title.
``(b) Response Actions and Damage Assessment.--
``(1) Response actions.--The Secretary may undertake or
authorize all necessary actions to prevent or minimize the
destruction, loss, or taking of, or injury to, coral reefs,
or components thereof, or to minimize the risk or imminent
risk of such destruction, loss, or injury.
``(2) Damage assessment.--
``(A) The Secretary shall assess damages (as defined in
section 221(8)) to coral reefs and shall consult with State
officials regarding response and damage assessment actions
undertaken for coral reefs within State waters.
``(B) There shall be no double recovery under this chapter
for coral reef damages, including the cost of damage
assessment, for the same incident.
``(c) Commencement of Civil Action for Response Costs and
Damages.--
``(1) Commencement.--The Attorney General, upon the request
of the Secretary, may commence a civil action against any
person or vessel that may be liable under subsection (a) of
this section for response costs, seizure, forfeiture,
storage, or disposal costs, and damages, and interest on that
amount calculated in the manner described in section 1005 of
the Oil Pollution Act of 1990 (33 U.S.C. 2705). The
Secretary, acting as trustee for coral reefs for the United
States, shall submit a request for such an action to the
Attorney General whenever a person or vessel may be liable
for such costs or damages.
``(2) Venue in civil actions.--A civil action under this
title may be brought in the United States district court for
any district in which--
``(A) the defendant is located, resides, or is doing
business, in the case of an action against a person;
``(B) the vessel is located, in the case of an action
against a vessel;
``(C) the destruction, loss, or taking of, or injury to a
coral reef, or component thereof, occurred or in which there
is an imminent risk of such destruction, loss, or injury; or
``(D) where some or all of the coral reef or component
thereof that is the subject of the action is not within the
territory covered by any United States district court, such
action may be brought either in the United States district
court for the district closest to the location where the
destruction, loss, injury, or risk of injury occurred, or in
the United States District Court for the District of
Columbia.
``(d) Use of Recovered Amounts.--
``(1) In general.--Any costs, including response costs and
damages recovered by the Secretary under this section shall--
``(A) be deposited into an account or accounts in the
Damage Assessment Restoration Revolving Fund established by
the Department of Commerce Appropriations Act, 1991 (33
U.S.C. 2706 note), or the Natural Resource Damage Assessment
and Restoration Fund established by the Department of the
Interior and Related Agencies Appropriations Act, 1992 (43
U.S.C. 1474b), as appropriate given the location of the
violation;
``(B) be available for use by the Secretary without further
appropriation and remain available until expended; and
``(C) be for use, as the Secretary considers appropriate--
``(i) to reimburse the Secretary or any other Federal or
State agency that conducted activities under subsection (a)
or (b) of this section for costs incurred in conducting the
activity;
[[Page S157]]
``(ii) to be transferred to the Emergency Response,
Stabilization and Restoration Account established under
section 208(d) to reimburse that account for amounts used for
authorized emergency actions; and
``(iii) after reimbursement of such costs, to restore,
replace, or acquire the equivalent of any coral reefs, or
components thereof, including the reasonable costs of
monitoring, or to minimize or prevent threats of equivalent
injury to, or destruction of coral reefs, or components
thereof.
``(2) Restoration considerations.--In development of
restoration alternatives under paragraph (1)(C), the
Secretary shall consider State and territorial preferences
and, if appropriate, shall prioritize restoration projects
with geographic and ecological linkages to the injured
resources.
``(e) Statute of Limitations.--An action for response costs
or damages under subsection (c) shall be barred unless the
complaint is filed within 3 years after the date on which the
Secretary completes a damage assessment and restoration plan
for the coral reefs, or components thereof, to which the
action relates.
``(f) Federal Government Activities.--In the event of
threatened or actual destruction of, loss of, or injury to a
coral reef or component thereof resulting from an incident
caused by a component of any Department or agency of the
United States Government, the cognizant Department or agency
shall satisfy its obligations under this section by promptly,
in coordination with the Secretary, taking appropriate
actions to respond to and mitigate the harm and restoring or
replacing the coral reef or components thereof and
reimbursing the Secretary for all assessment costs.
``(g) Uniformed Service Officers and Employees.--No officer
or employee of a uniformed service (as defined in section 101
of title 10, United States Code) shall be held liable under
this section, either in such officer's or employee's personal
or official capacity, for any violation of section 212
occurring during the performance of the officer's or
employee's official governmental duties.
``(h) Contract Employees.--No contract employee of a
uniformed service (as so defined), serving as vessel master
or crew member, shall be liable under this section for any
violation of section 212 if that contract employee--
``(1) is acting as a contract employee of a uniformed
service under the terms of an operating contract for a vessel
owned by a uniformed service, or a time charter for pre-
positioned vessels, special mission vessels, or vessels
exclusively transporting military supplies and materials; and
``(2) is engaged in an action or actions over which such
employee has been given no discretion (e.g., anchoring or
mooring at one or more designated anchorages or buoys, or
executing specific operational elements of a special mission
activity), as determined by the uniformed service controlling
the contract.''.
SEC. 16. ENFORCEMENT.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 213, as added by section 15 of this Act, the
following:
``SEC. 214. ENFORCEMENT.
``(a) In General.--The Secretary shall conduct enforcement
activities to carry out this title.
``(b) Powers of Authorized Officers.--
``(1) In general.--Any person who is authorized to enforce
this title may--
``(A) board, search, inspect, and seize any vessel or other
conveyance suspected of being used to violate this title, any
regulation promulgated under this title, or any permit issued
under this title, and any equipment, stores, and cargo of
such vessel, except that such authority shall not exist with
respect to vessels owned or time chartered by a uniformed
service (as defined in section 101 of title 10, United States
Code) as warships or naval auxiliaries;
``(B) seize wherever found any component of coral reef
taken or retained in violation of this title, any regulation
promulgated under this title, or any permit issued under this
title;
``(C) seize any evidence of a violation of this title, any
regulation promulgated under this title, or any permit issued
under this title;
``(D) execute any warrant or other process issued by any
court of competent jurisdiction;
``(E) exercise any other lawful authority; and
``(F) arrest any person, if there is reasonable cause to
believe that such person has committed an act prohibited by
section 212.
``(2) Naval auxiliary defined.--In this subsection, the
term `naval auxiliary' means a vessel, other than a warship,
that is owned by or under the exclusive control of a
uniformed service and used at the time of the destruction,
take, loss or injury for government, non-commercial service,
including combat logistics force vessels, pre-positioned
vessels, special mission vessels, or vessels exclusively used
to transport military supplies and materials.
``(c) Civil Enforcement and Permit Sanctions.--
``(1) Civil administrative penalty.--Any person subject to
the jurisdiction of the United States who violates this title
or any regulation promulgated or permit issued hereunder,
shall be liable to the United States for a civil
administrative penalty of not more than $200,000 for each
such violation, to be assessed by the Secretary. Each day of
a continuing violation shall constitute a separate violation.
In determining the amount of civil administrative penalty,
the Secretary shall take into account the nature,
circumstances, extent, and gravity of the prohibited acts
committed and, with respect to the violator, the degree of
culpability, and any history of prior violations, and such
other matters as justice may require. In assessing such
penalty, the Secretary may also consider information related
to the ability of the violator to pay.
``(2) Permit sanctions.--For any person subject to the
jurisdiction of the United States who has been issued or has
applied for a permit under this title, and who violates this
title or any regulation or permit issued under this title,
the Secretary may deny, suspend, amend, or revoke in whole or
in part any such permit. For any person who has failed to pay
or defaulted on a payment agreement of any civil penalty or
criminal fine or liability assessed pursuant to any natural
resource law administered by the Secretary, the Secretary may
deny, suspend, amend or revoke in whole or in part any permit
issued or applied for under this title.
``(3) Imposition of civil judicial penalties.--Any person
who violates any provision of this title, any regulation
promulgated or permit issued thereunder, shall be subject to
a civil judicial penalty not to exceed $250,000 for each such
violation. Each day of a continuing violation shall
constitute a separate violation. The Attorney General, upon
the request of the Secretary, may commence a civil action in
an appropriate district court of the United States, and such
court shall have jurisdiction to award civil penalties and
such other relief as justice may require. In determining the
amount of a civil penalty, the court shall take into account
the nature, circumstances, extent, and gravity of the
prohibited acts committed and, with respect to the violator,
the degree of culpability, any history of prior violations,
and such other matters as justice may require. In imposing
such penalty, the district court may also consider
information related to the ability of the violator to pay.
``(4) Notice.--No penalty or permit sanction shall be
assessed under this subsection until after the person charged
has been given notice and an opportunity for a hearing.
``(5) In rem jurisdiction.--A vessel used in violating this
title, any regulation promulgated under this title, or any
permit issued under this title, shall be liable in rem for
any civil penalty assessed for such violation. Such penalty
shall constitute a maritime lien on the vessel and may be
recovered in an action in rem in the district court of the
United States having jurisdiction over the vessel.
``(6) Collection of penalties.--If any person fails to pay
an assessment of a civil penalty under this section after it
has become a final and unappealable order, or after the
appropriate court has entered final judgment in favor of the
Secretary, the Secretary shall refer the matter to the
Attorney General, who shall recover the amount assessed in
any appropriate district court of the United States (plus
interest at current prevailing rates from the date of the
final order). In such action, the validity and
appropriateness of the final order imposing the civil penalty
shall not be subject to review. Any person who fails to pay,
on a timely basis, the amount of an assessment of a civil
penalty shall be required to pay, in addition to such amount
and interest, attorney's fees and costs for collection
proceedings and a quarterly nonpayment penalty for each
quarter during which such failure to pay persists. Such
nonpayment penalty shall be in an amount equal to 20 percent
of the aggregate amount of such person's penalties and
nonpayment penalties that are unpaid as of the beginning of
such quarter.
``(7) Compromise or other action by Secretary.--The
Secretary may compromise, modify, or remit, with or without
conditions, any civil administrative penalty or permit
sanction which is or may be imposed under this section and
that has not been referred to the Attorney General for
further enforcement action.
``(8) Jurisidiction.--The several district courts of the
United States shall have jurisdiction over any actions
brought by the United States arising under this section. For
the purpose of this section, American Samoa shall be included
within the judicial district of the District Court of the
United States for the District of Hawaii. Each violation
shall be a separate offense and the offense shall be deemed
to have been committed not only in the district where the
violation first occurred, but also in any other district as
authorized by law.
``(d) Forfeiture.--
``(1) Criminal forfeiture.--A person who is convicted of an
offense in violation of this title shall forfeit to the
United States--
``(A) any property, real or personal, constituting or
traceable to the gross proceeds taken, obtained, or retained,
in connection with or as a result of the offense, including,
without limitation, any coral reef or coral reef component
(or the fair market value thereof); and
``(B) any property, real or personal, used or intended to
be used, in any manner, to commit or facilitate the
commission of the offense, including, without limitation, any
vessel (including the vessel's equipment, stores, catch and
cargo), vehicle, aircraft, or other means of transportation.
Pursuant to section 2461(c) of title 28, United States Code,
the provisions of section 413 of
[[Page S158]]
the Controlled Substances Act (21 U.S.C. 853) other than
subsection (d) thereof shall apply to criminal forfeitures
under this section.
``(2) Civil forfeiture.--The property set forth below shall
be subject to forfeiture to the United States in accordance
with the provisions of chapter 46 of title 18, United States
Code, and no property right shall exist in it:
``(A) Any property, real or personal, constituting or
traceable to the gross proceeds taken, obtained, or retained,
in connection with or as a result of a violation of this
title, including, without limitation, any coral reef or coral
reef component (or the fair market value thereof).
``(B) Any property, real or personal, used or intended to
be used, in any manner, to commit or facilitate the
commission of a violation of this title, including, without
limitation, any vessel (including the vessel's equipment,
stores, catch and cargo), vehicle, aircraft, or other means
of transportation.
``(3) Application of the customs laws.--All provisions of
law relating to seizure, summary judgment, and judicial
forfeiture and condemnation for violation of the customs
laws, the disposition of the property forfeited or condemned
or the proceeds from the sale thereof, the remission or
mitigation of such forfeitures, and the compromise of claims
shall apply to seizures and forfeitures incurred, or alleged
to have been incurred, under the provisions of this title,
insofar as applicable and not inconsistent with the
provisions hereof. For seizures and forfeitures of property
under this section by the Secretary, such duties as are
imposed upon the customs officer or any other person with
respect to the seizure and forfeiture of property under the
customs law may be performed by such officers as are
designated by the Secretary or, upon request of the
Secretary, by any other agency that has authority to manage
and dispose of seized property.
``(4) Presumption.--For the purposes of this section there
is a rebuttable presumption that all coral reefs, or
components thereof, found on board a vessel that is used or
seized in connection with a violation of this title or of any
regulation promulgated under this title were taken, obtained,
or retained in violation of this title or of a regulation
promulgated under this title.
``(e) Payment of Storage, Care, and Other Costs.--Any
person assessed a civil penalty for a violation of this title
or of any regulation promulgated under this title and any
claimant in a forfeiture action brought for such a violation,
shall be liable for the reasonable costs incurred by the
Secretary in storage, care, and maintenance of any property
seized in connection with the violation.
``(f) Expenditures.--
``(1) Notwithstanding section 3302 of title 31, United
States Code, or section 311 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1861), amounts
received by the United States as civil penalties under
subsection (c) of this section, forfeitures of property under
subsection (d) of this section, and costs imposed under
subsection (e) of this section, shall--
``(A) be placed into an account;
``(B) be available for use by the Secretary without further
appropriation; and
``(C) remain available until expended.
``(2) Amounts received under this section for forfeitures
under subsection (d) and costs imposed under subsection (e)
shall be used to pay the reasonable and necessary costs
incurred by the Secretary to provide temporary storage, care,
maintenance, and disposal of any property seized in
connection with a violation of this title or any regulation
promulgated under this title.
``(3) Amounts received under this section as civil
penalties under subsection (c) of this section and any
amounts remaining after the operation of paragraph (2) of
this subsection shall--
``(A) be used to stabilize, restore, or otherwise manage
the coral reef with respect to which the violation occurred
that resulted in the penalty or forfeiture;
``(B) be transferred to the Emergency Response,
Stabilization, and Restoration Account established under
section 208(d) or an account described in section 213(d)(1)
of this title, to reimburse such account for amounts used for
authorized emergency actions;
``(C) be used to conduct monitoring and enforcement
activities;
``(D) be used to conduct research on techniques to
stabilize and restore coral reefs;
``(E) be used to conduct activities that prevent or reduce
the likelihood of future damage to coral reefs;
``(F) be used to stabilize, restore or otherwise manage any
other coral reef; or
``(G) be used to pay a reward to any person who furnishes
information leading to an assessment of a civil penalty, or
to a forfeiture of property, for a violation of this title or
any regulation promulgated under this title.
``(g) Criminal Enforcement.--
``(1) Any person (other than a foreign government or any
entity of such government) who knowingly commits any act
prohibited by section 212(c) of this title shall be
imprisoned for not more than 5 years and shall be fined not
more than $500,000 for individuals or $1,000,000 for an
organization; except that if in the commission of any such
offense the individual uses a dangerous weapon, engages in
conduct that causes bodily injury to any officer authorized
to enforce the provisions of this title, or places any such
officer in fear of imminent bodily injury, the maximum term
of imprisonment is not more than 10 years.
``(2) Any person (other than a foreign government or any
entity of such government) who knowingly violates subsection
(b), (d), or (e) of section 212 shall be fined under title
18, United States Code, or imprisoned not more than 5 years
or both.
``(3) Any person (other than a foreign government or any
entity of such government) who violates subsection (b), (d),
or (e) of section 212, and who, in the exercise of due care
should know that such person's conduct violates subsection
(b), (d), or (e) of section 212, shall be fined under title
18, United States Code, or imprisoned not more than 1 year,
or both.
``(4) The several district courts of the United States
shall have jurisdiction over any actions brought by the
United States arising under this subsection. For the purpose
of this subsection, American Samoa shall be included within
the judicial district of the District Court of the United
States for the District of Hawaii. Each violation shall be a
separate offense and the offense shall be deemed to have been
committed not only in the district where the violation first
occurred, but also in any other district as authorized by
law. Any offenses not committed in any district are subject
to the venue provisions of section 3238 of title 18, United
States Code.
``(h) Subpoenas.--In the case of any investigation or
hearing under this section or any other natural resource
statute administered by the National Oceanic and Atmospheric
Administration which is determined on the record in
accordance with the procedures provided for under section 554
of title 5, United States Code, the Secretary may issue
subpoenas for the attendance and testimony of witnesses and
the production of relevant papers, books, electronic files,
and documents, and may administer oaths.
``(i) Coast Guard Authority Not Limited.--Nothing in this
section shall be considered to limit the authority of the
Coast Guard to enforce this or any other Federal law under
section 89 of title 14, United States Code.
``(j) Injunctive Relief.--
``(1) If the Secretary determines that there is an imminent
risk of destruction or loss of or injury to a coral reef, or
that there has been actual destruction or loss of, or injury
to, a coral reef which may give rise to liability under
section 213 of this title, the Attorney General, upon request
of the Secretary, shall seek to obtain such relief as may be
necessary to abate such risk or actual destruction, loss, or
injury, or to restore or replace the coral reef, or both. The
district courts of the Unites States shall have jurisdiction
in such a case to order such relief as the public interest
and the equities of the case may require.
``(2) Upon the request of the Secretary, the Attorney
General may seek to enjoin any person who is alleged to be in
violation of any provision of this title, or any regulation
or permit issued under this title, and the district courts
shall have jurisdiction to grant such relief.
``(k) Area of Application and Enforceability.--The area of
application and enforceability of this title includes the
internal waters of the United States, the territorial sea of
the United States, as described in Presidential Proclamation
5928 of December 27, 1988, the Exclusive Economic Zone of the
United States as described in Presidential Proclamation 5030
of March 10, 1983, and the continental shelf, consistent with
international law.
``(l) Nationwide Service of Process.--In any action by the
United States under this title, process may be served in any
district where the defendant is found, resides, transacts
business, or has appointed an agent for the service of
process, and for civil cases may also be served in a place
not within the United States in accordance with rule 4 of the
Federal Rules of Civil Procedure.
``(m) Venue in Civil Actions.--A civil action under this
title may be brought in the United States district court for
any district in which--
``(1) the defendant is located, resides, or is doing
business, in the case of an action against a person;
``(2) the vessel is located, in the case of an action
against a vessel;
``(3) the destruction of, loss of, or injury to a coral
reef, or component thereof, occurred or in which there is an
imminent risk of such destruction, loss, or injury; or
``(4) where some or all of the coral reef or component
thereof that is the subject of the action is not within the
territory covered by any United States district court, such
action may be brought either in the United States district
court for the district closest to the location where the
destruction, loss, injury, or risk of injury occurred, or in
the United States District Court for the District of
Columbia.
``(n) Uniformed Service Officers and Employees.--No officer
or employee of a uniformed service (as defined in section 101
of title 10, United States Code) shall be held liable under
this section, either in such officer's or employee's personal
or official capacity, for any violation of section 212
occurring during the performance of the officer's or
employee's official governmental duties.
``(o) Contract Employees.--No contract employee of a
uniformed service (as so defined), serving as vessel master
or crew member, shall be liable under this section for any
violation of section 212 if that contract employee--
[[Page S159]]
``(1) is acting as a contract employee of a uniformed
service under the terms of an operating contract for a vessel
owned by a uniformed service, or a time charter for pre-
positioned vessels, special mission vessels, or vessels
exclusively transporting military supplies and materials; and
``(2) is engaged in an action or actions over which such
employee has been given no discretion (e.g., anchoring or
mooring at one or more designated anchorages or buoys, or
executing specific operational elements of a special mission
activity), as determined by the uniformed service controlling
the contract.''.
SEC. 17. PERMITS.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 214, as added by section 16 of this Act, the
following:
``SEC. 215. PERMITS.
``(a) In General.--The Secretary may allow for the conduct
of--
``(1) bona fide research, and
``(2) activities that would otherwise be prohibited by this
title or regulations issued thereunder,
through issuance of coral reef conservation permits in
accordance with regulations issued under this title.
``(b) Limitation of Non-Research Activities.--The Secretary
may not issue a permit for activities other than for bona
fide research unless the Secretary finds--
``(1) the activity proposed to be conducted is compatible
with one or more of the purposes in section 202(b) of this
title;
``(2) the activity conforms to the provisions of all other
laws and regulations applicable to the area for which such
permit is to be issued; and
``(3) there is no practicable alternative to conducting the
activity in a manner that destroys, causes the loss of, or
injures any coral reef or any component thereof.
``(c) Terms and Conditions.--The Secretary may place any
terms and conditions on a permit issued under this section
that the Secretary deems reasonable.
``(d) Fees.--
``(1) Assessment and collection.--Subject to regulations
issued under this title, the Secretary may assess and collect
fees as specified in this subsection.
``(2) Amount.--Any fee assessed shall be equal to the sum
of--
``(A) all costs incurred, or expected to be incurred, by
the Secretary in processing the permit application, including
indirect costs; and
``(B) if the permit is approved, all costs incurred, or
expected to be incurred, by the Secretary as a direct result
of the conduct of the activity for which the permit is
issued, including costs of monitoring the conduct of the
activity and educating the public about the activity and
coral reef resources related to the activity.
``(3) Use of fees.--Amounts collected by the Secretary in
the form of fees under this section shall be collected and
available for use only to the extent provided in advance in
appropriations Acts and may be used by the Secretary for
issuing and administering permits under this section.
``(4) Waiver or reduction of fees.--For any fee assessed
under paragraph (2) of this subsection, the Secretary may--
``(A) accept in-kind contributions in lieu of a fee; or
``(B) waive or reduce the fee.
``(e) Fishing.--Nothing in this section shall be considered
to require a person to obtain a permit under this section for
the conduct of any fishing activities not prohibited by this
title or regulations issued thereunder.''.
SEC. 18. REGIONAL, STATE, AND TERRITORIAL COORDINATION.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 215, as added by section 17 of this Act, the
following:
``SEC. 216. REGIONAL, STATE, AND TERRITORIAL COORDINATION.
``(a) Regional Coordination.--The Secretary and other
Federal members of the Coral Reef Task Force shall work in
coordination and collaboration with other Federal agencies,
States, and United States territorial governments to
implement the strategies developed under section 203,
including regional and local strategies, to address multiple
threats to coral reefs and coral reef ecosystems.
``(b) Response and Restoration Activities.--The Secretary
shall enter into written agreements with any States in which
coral reefs are located regarding the manner in which
response and restoration activities will be conducted within
the affected State's waters. Nothing in this subsection shall
be construed to limit Federal response and restoration
activity authority before any such agreement is final.
``(c) Cooperative Enforcement Agreements.--All cooperative
enforcement agreements in place between the Secretary and
States affected by this title shall be updated to include
enforcement of this title where appropriate.''.
SEC. 19. REGULATIONS.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 216, as added by section 18, the following:
``SEC. 217. REGULATIONS.
``The Secretary may issue such regulations as are necessary
and appropriate to carry out the purposes of this title. This
title and any regulations promulgated under this title shall
be applied in accordance with international law. No
restrictions shall apply to or be enforced against a person
who is not a citizen, national, or resident alien of the
United States (including foreign flag vessels) unless in
accordance with international law.''.
SEC. 20. EFFECTIVENESS AND ASSESSMENT REPORT.
Section 218 (formerly 16 U.S.C. 6407), as redesignated by
section 7 of this Act, is amended to read as follows:
``SEC. 218. EFFECTIVENESS AND ASSESSMENT REPORT.
``(a) Effectiveness Report.--Not later than March 1, 2010,
and every 3 years thereafter, the Secretary shall submit to
the Senate Committee on Commerce, Science, and Transportation
and the House of Representatives Committee on Natural
Resources a report describing all activities undertaken to
implement the strategy, including--
``(1) a description of the funds obligated by each
participating Federal agency to advance coral reef
conservation during each of the 3 fiscal years next preceding
the fiscal year in which the report is submitted;
``(2) a description of Federal interagency and cooperative
efforts with States and United States territories to prevent
or address overharvesting, coastal runoff, or other
anthropogenic impacts on coral reefs, including projects
undertaken with the Department of Interior, Department of
Agriculture, the Environmental Protection Agency, and the
United States Army Corps of Engineers;
``(3) a summary of the information contained in the vessel
grounding inventory established under section 210, including
additional authorization or funding, needed for response and
removal of such vessels; and
``(4) a description of Federal disaster response actions
taken pursuant to the National Response Plan to address
damage to coral reefs and coral reef ecosystems.
``(b) Assessment Report.--Not later than March 1, 2013, and
every 5 years thereafter, the Secretary will submit to the
Senate Committee on Commerce, Science, and Transportation and
the House of Representatives Committee on Natural Resources
an assessment of the conditions of U.S. coral reefs,
accomplishments under this Act, and the effectiveness of
management actions to address threats to coral reefs.''.
SEC. 21. AUTHORIZATION OF APPROPRIATIONS.
Section 219 (formerly 16 U.S.C. 6408), as redesignated by
section 7 of this Act, is amended--
(1) by striking ``$16,000,000 for each of fiscal years
2001, 2002, 2003, and 2004,'' in subsection (a) and inserting
``$34,000,000 for fiscal year 2012, $36,000,000 for fiscal
year 2013, $38,000,000 for fiscal year 2014, and $40,000,000
for each of fiscal years 2015 through 2016, of which no less
than 24 percent per year (for each of fiscal years 2012
through 2016) shall be used for the grant program under
section 204, no less than 6 percent shall be used for Fishery
Management Councils, and up to 10 percent per year shall be
used for the Fund established under section 205(a),'';
(2) by striking ``$1,000,000'' in subsection (b) and
inserting ``$2,000,000'';
(3) by striking subsection (c) and inserting the following:
``(c) Community-Based Planning Grants.--There are
authorized to be appropriated to the Secretary to carry out
section 210 $10,000,000 for fiscal years 2012 through 2016,
to remain available until expended.''; and
(4) by striking subsection (d) and inserting the following:
``(d) International Coral Reef Conservation Program.--There
are authorized to be appropriated to the Secretary to carry
out section 209 $8,000,000 for each of fiscal years 2012
through 2016, to remain available until expended.''.
SEC. 22. JUDICIAL REVIEW.
The Act (16 U.S.C. 6401 et seq.) is amended by inserting
after section 219, as redesignated by section 7 of this Act,
the following:
``SEC. 220. JUDICIAL REVIEW.
``(a) In General.--Chapter 7 of title 5, United States
Code, is not applicable to any action taken by the Secretary
under this title, except that--
``(1) review of any final agency action of the Secretary
taken pursuant to sections 214(c)(1) and 214(c)(2) may be had
only by the filing of a complaint by an interested person in
the United States District Court for the appropriate
district; any such complaint must be filed within 30 days of
the date such final agency action is taken; and
``(2) review of any final agency action of the Secretary
taken pursuant to section 215 may be had by the filing of a
petition for review by an interested person in the Circuit
Court of Appeals of the United States for the federal
judicial district in which such person resides or transact
business which is directly affected by the action taken; such
petition shall be filed within 120 days from the date such
final agency action is taken.
``(b) No Review in Enforcement Proceedings.--Final agency
action with respect to which review could have been obtained
under subsection (a)(2) shall not be subject to judicial
review in any civil or criminal proceeding for enforcement.
``(c) Cost of Litigation.--In any judicial proceeding under
subsection (a), the court may award costs of litigation
(including reasonable attorney and expert witness fees) to
any prevailing party whenever it determines that such award
is appropriate.''.
SEC. 23. DEFINITIONS.
Section 221 (formerly 16 U.S.C. 6409), as redesignated by
section 7 of this Act, is amended to read as follows:
[[Page S160]]
``SEC. 221. DEFINITIONS.
``In this title:
``(1) Biodiversity.--The term `biodiversity' means the
variability among living organisms from all sources
including, inter alia, terrestrial, marine, and other aquatic
ecosystems and the ecological complexes of which they are
part, including diversity within species, between species,
and of ecosystems.
``(2) Bona fide research.--The term `bona fide research'
means scientific research on corals, the results of which are
likely--
``(A) to be eligible for publication in a referred
scientific journal;
``(B) to contribute to the basic knowledge of coral biology
or ecology; or
``(C) to identify, evaluate, or resolve conservation
problems.
``(3) Coral.--The term `coral' means species of the phylum
Cnidaria, including--
``(A) all species of the orders Antipatharia (black
corals), Scleractinia (stony corals), Gorgonacea (horny
corals), Stolonifera (organpipe corals and others),
Alcyonacea (soft corals), and Helioporacea (blue coral) of
the class Anthozoa; and
``(B) all species of the families Milleporidea (fire
corals) and Stylasteridae (stylasterid hydrocorals) of the
class Hydrozoa.
``(4) Coral reef.--The term `coral reef' means limestone
structures composed in whole or in part of living corals, as
described in paragraph (3), their skeletal remains, or both,
and including other corals, associated sessile invertebrates
and plants, and associated seagrasses.
``(5) Coral reef component.--The term `coral reef
component' means any part of a coral reef, including
individual living or dead corals, associated sessile
invertebrates and plants, and any adjacent or associated
seagrasses.
``(6) Coral reef ecosystem.--The term `coral reef
ecosystem' means the system of coral reefs and geographically
associated species, habitats, and environment, including any
adjacent or associated mangroves and seagrass habitats, and
the processes that control its dynamics.
``(7) Coral products.--The term `coral products' means any
living or dead specimens, parts, or derivatives, or any
product containing specimens, parts, or derivatives, of any
species referred to in paragraph (3).
``(8) Damages.--The term `damages' includes--
``(A) compensation for--
``(i) the cost of replacing, restoring, or acquiring the
equivalent of the coral reef, or component thereof; and
``(ii) the lost services of, or the value of the lost use
of, the coral reef or component thereof, or the cost of
activities to minimize or prevent threats of, equivalent
injury to, or destruction of coral reefs or components
thereof, pending restoration or replacement or the
acquisition of an equivalent coral reef or component thereof;
``(B) the reasonable cost of damage assessments under
section 213;
``(C) the reasonable costs incurred by the Secretary in
implementing section 208(d);
``(D) the reasonable cost of monitoring appropriate to the
injured, restored, or replaced resources;
``(E) the reasonable cost of curation, conservation and
loss of contextual information of any coral encrusted
archaeological, historical, and cultural resource;
``(F) the cost of legal actions under section 213,
undertaken by the United States, associated with the
destruction or loss of, or injury to, a coral reef or
component thereof, including the costs of attorney time and
expert witness fees; and
``(G) the indirect costs associated with the costs listed
in subparagraphs (A) through (F) of this paragraph.
``(9) Emergency actions.--The term `emergency actions'
means all necessary actions to prevent or minimize the
additional destruction or loss of, or injury to, coral reefs
or components thereof, or to minimize the risk of such
additional destruction, loss, or injury.
``(10) Exclusive economic zone.--The term `Exclusive
Economic Zone' means the waters of the Exclusive Economic
Zone of the United States under Presidential Proclamation
5030, dated March 10, 1983.
``(11) Person.--The term `person' means any individual,
private or public corporation, partnership, trust,
institution, association, or any other public or private
entity, whether foreign or domestic, private person or
entity, or any officer, employee, agent, Department, agency,
or instrumentality of the Federal Government, of any State or
local unit of government, or of any foreign government.
``(12) Response costs.--The term `response costs' means the
costs of actions taken or authorized by the Secretary to
minimize destruction or loss of, or injury to, a coral reef,
or component thereof, or to minimize the imminent risks of
such destruction, loss, or injury, including costs related to
seizure, forfeiture, storage, or disposal arising from
liability under section 213.
``(13) Secretary.--The term `Secretary' means--
``(A) for purposes of sections 201 through 211, sections
218 through 220 (except as otherwise provided in subparagraph
(B)), and the other paragraphs of this section, the Secretary
of Commerce, acting through the Administrator of the National
Oceanic and Atmospheric Administration; and
``(B) for purposes of sections 212 through 220--
``(i) the Secretary of the Interior for any coral reef or
component thereof located in (I) the National Wildlife Refuge
System, (II) the National Park System, and (III) the waters
surrounding Wake Island under the jurisdiction of the
Secretary of the Interior, as set forth in Executive Order
11048 (27 Fed. Reg. 8851 (September 4, 1962)); or
``(ii) the Secretary of Commerce for any coral reef or
component thereof located in any area not described in clause
(i).
``(14) Service.--The term `service' means functions,
ecological or otherwise, performed by a coral reef or
component thereof.
``(15) State.--The term `State' means any State of the
United States that contains a coral reef ecosystem within its
seaward boundaries, American Samoa, Guam, the Northern
Mariana Islands, Puerto Rico, and the Virgin Islands, and any
other territory or possession of the United States, or
separate sovereign in free association with the United
States, that contains a coral reef ecosystem within its
seaward boundaries.
``(16) Territorial sea.--The term `Territorial Sea' means
the waters of the Territorial Sea of the United States under
Presidential Proclamation 5928, dated December 27, 1988.''.
______
By Mr. INOUYE (for himself, Mr. Reed, and Mr. Begich):
S. 48. A bill to amend the Public Health Service Act to provide for
the participation of pharmacists in National Health Services Corps
programs, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. INOUYE. Mr. President, today I rise to recognize the need for
inclusion of pharmacists in the National Health Services Corps, NHSC,
student loan repayment program. It is imperative that our Nation focus
its efforts on increased access to affordable, high quality healthcare
for our Nation's underserved communities. Today's pharmacist graduates
with a professional doctorate degree. My home State of Hawaii is home
to our only school of pharmacy program located at the University of
Hawaii at Hilo and this year will mark the school's very first
graduating class. Pharmacists are vital to our intent of increasing
access to patient-centered, team-based healthcare for all individuals.
They collaborate with providers across the continuum of care to improve
medication-use related outcomes, provides access to prevention and
wellness screening that, among others, can reduce tobacco use and
increase immunization rates all of which support provider effectiveness
and organizational efficiencies. The integration of the pharmacist
across the continuum of care helps increase access to primary and
preventive care and allows for better management of chronic disease.
Pharmacists support prescribers by focusing on the management of
medications preventing adverse events that lead to avoidable emergency
room visits and hospital admissions. This collaborative effort among
healthcare providers helps improve clinical and economic outcomes and
increases patient satisfaction with their care.
The current approach of recruiting and retaining primary care
practitioners may limit access to robust patient-centered, team-based
care by patients in underserved communities. Today over 88 percent of
pharmacy students borrow over $107,000 to help them pay for their
education. The incorporation of comprehensive pharmacy services in
these particular communities is a primary objective of the Health
Resources and Services Administration patient-safety and clinical
pharmacy services collaborative. Making pharmacists eligible to
participate in NHSC loan repayment program will ensure that the
reorganization of our healthcare system envisioned in legislation,
federal action, and community-based models all benefit from patient-
centered, team-based models of care that integrate comprehensive
pharmacy services.
I urge you to consider the benefits of including pharmacists in the
NHSC student loan repayment program.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 48
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Pharmacist Student Loan
Repayment Eligibility Act of 2011''.
[[Page S161]]
SEC. 2. NATIONAL HEALTH SERVICE CORPS; PARTICIPATION OF
PHARMACISTS IN LOAN REPAYMENT PROGRAM.
(a) National Health Service Corps.--Section 331(b) of the
Public Health Service Act (42 U.S.C. 254d(b)) is amended--
(1) in paragraph (1), by striking ``nursing and other
schools of the health professions,'' and inserting ``nursing,
pharmacy, and other schools of the health professions,''; and
(2) in paragraph (2), by striking ``and physician
assistants who have an interest and a commitment to providing
primary health care,'' and inserting ``physician assistants,
and pharmacists who have an interest and commitment to
providing primary health care,''.
(b) National Health Service Corps Loan Repayment Program.--
Section 338B of the Public Health Service Act (42 U.S.C.
254l-1) is amended--
(1) in subsection (a)(1), by striking ``and physician
assistants'' and inserting ``physician assistants, and
pharmacists''; and
(2) in subsection (b)(1)--
(A) in subparagraph (A), by striking ``dentistry, or
another health profession,'' and inserting ``dentistry,
pharmacy, or another health profession,''; and
(B) in subparagraph (C)(ii), by striking ``dentistry, or
other health profession'' and inserting ``dentistry,
pharmacy, or other health profession''.
(c) Corps Personnel.--Section 333(e) of the Public Health
Service Act (42 U.S.C. 254f(e)) is amended by striking
``dentistry, or any other health profession'' and inserting
``dentistry, pharmacy, or any other health profession''.
______
By Mr. KOHL (for himself, Mr. Vitter, Mr. Leahy, Mr. Hatch, Ms.
Klobuchar, Mr. Franken, and Mr. Tester):
S. 49. A bill to amend the Federal antitrust laws to provide expanded
coverage and to eliminate exemptions from such laws that are contrary
to the public interest with respect to railroads; to the Committee on
the Judiciary.
Mr. KOHL. Mr. President, I rise today to introduce legislation
essential to restoring competition to the nation's crucial freight
railroad sector. Freight railroads are essential to shipping a myriad
of vital goods, everything from coal used to generate electricity to
grain used for basic foodstuffs. But for decades the freight railroads
have been insulated from the normal rules of competition followed by
almost all other parts of our economy by an outmoded and unwarranted
antitrust exemption. So today I am introducing, along with my
colleagues, the Railroad Antitrust Enforcement Act of 2011. This
bipartisan legislation will eliminate the obsolete antitrust exemptions
that protect freight railroads from competition. This legislation is
identical to the legislation that was reported out of the Judiciary
Committee in the last Congress by a unanimous 15-0 vote.
Our legislation will eliminate unwarranted and outmoded antitrust
exemptions that protect freight railroads from competition and result
in higher prices to millions of consumers every day. Consolidation in
the railroad industry in recent years has resulted in only four Class I
railroads providing nearly 90 percent of the Nation's freight rail
transportation, as measured by revenue. The harmful result of this
industry concentration for railroad shippers is well documented. A 2006
General Accounting Office Report found that shippers in many geographic
areas ``may be paying excessive rates due to a lack of competition in
these markets.'' These unjustified cost increases cause consumers to
suffer higher electricity bills because a utility must pay for the high
cost of transporting coal, result in higher prices for goods produced
by manufacturers who rely on railroads to transport raw materials, and
reduce earnings for American farmers who ship their products by rail
and raise food prices paid by consumers.
A recent staff report, issued September 15, 2010, of the Committee on
Commerce, Science, and Transportation also makes clear how railroads
have benefited from the unique combination of deregulation and large-
scale antitrust immunity, to the detriment of rail shippers and
consumers. This Report--titled ``The Current State of the Class I
Freight Rail Industry''--stated that ``[t]he four Class I railroads
that today dominate the U.S. rail shipping market are achieving returns
on revenue and operating ratios that rank them among the most
profitable businesses in the U.S. economy.'' The four largest railroads
nearly doubled their collective profit margins in the last decade to 13
percent ranking the railroad industry the fifth most profitable
industry as ranking by Fortune magazine.
Increased concentration and lack of antitrust scrutiny have had clear
price effects--according to the Commerce Committee Report, since 2004,
``Class I railroads have been raising prices by an average of 5 percent
a year above inflation.'' The recent Commerce Committee Report
concluded that ``Class I freight railroads have regained the pricing
power they lacked in the 1980s, and are now some of the most highly
profitable businesses in the U.S. economy.'' Given the industry's
concentration and pricing power, the case for full fledged application
of the antitrust laws is plain.
The ill-effects of railroad industry consolidation are exemplified in
the case of ``captive shippers''--industries served by only one
railroad. Over the past several years, these captive shippers have
faced spiking rail rates. They are the victims of monopolistic
practices and price gouging by the single railroad that serves them,
price increases which they are forced to pass along into the price of
their products, and ultimately, to consumers. And in many cases, the
ordinary protections of antitrust law are unavailable to these captive
shippers--instead, the railroads are protected by a series of outmoded
exemptions from the normal rules of antitrust law to which all other
industries must abide.
These unwarranted antitrust exemptions have put the American consumer
at risk, and in Wisconsin, victims of a lack of railroad competition
abound. From Dairyland Power Cooperative in La Crosse to Wolf River
Lumber in New London, companies in my state are feeling the crunch of
years of railroad consolidation. To help offset a 93 percent increase
in shipping rates in 2006, Dairyland Power Cooperative had to raise
electricity rates by 20 percent. The reliability, efficiency, and
affordability of freight rail have all declined, and Wisconsin
consumers feel the pinch.
And similar stories exist across the country. We held a hearing at
the Antitrust Subcommittee in the 110th Congress which detailed
numerous instances of anti-competitive conduct by the dominant freight
railroads and at which railroad shippers testified as to the need to
repeal the outmoded and unwarranted antitrust exemptions which left
them without remedies. Dozens of organizations, unions and trade groups
affected by monopolistic railroad conduct endorsed the Railroad
Antitrust Enforcement Act in the last Congress. Supporters of the
legislation include 20 state Attorneys General, the National
Association of Regulatory Utility Commissioners, NARUC, the Consumers
Federation of America, Consumers Union, the American Farm Bureau
Federation, American Chemistry Council, the American Corn Growers
Association, the American Forest and Paper Association, the American
Public Power Association, and the American Bar Association Antitrust
Section.
The current antitrust exemptions protect a wide range of railroad
industry conduct from scrutiny by governmental antitrust enforcers.
Railroad mergers and acquisitions are exempt from antitrust law and are
reviewed solely by the Surface Transportation Board. Railroads that
engage in collective ratemaking are also exempt from antitrust law.
Railroads subject to the regulation of the Surface Transportation Board
are also exempt from private antitrust lawsuits seeking the termination
of anti-competitive practices via injunctive relief. Our bill will
eliminate these exemptions.
No good reason exists for them. While railroad legislation in recent
decades--including most notably the Staggers Rail Act of 1980--
deregulated much railroad rate setting from the oversight of the
Surface Transportation Board, these obsolete antitrust exemptions
remained in place, insulating a consolidating industry from obeying the
rules of fair competition. And there is no reason to treat railroads
any differently from dozens of other regulated industries in our
economy that are fully subject to antitrust law--whether the
telecommunications sector regulated by the FCC, or the aviation
industry regulation by the Department of Transportation, just name just
two examples.
Our bill will bring railroad mergers and acquisitions under the
purview of
[[Page S162]]
the Clayton Act, allowing the federal government, state attorneys
general and private parties to file suit to enjoin anti-competitive
mergers and acquisitions. It will restore the review of these mergers
to the agencies where they belong--the Justice Department's Antitrust
Division and the Federal Trade Commission. It will eliminate the
exemption that prevents FTC's scrutiny of railroad common carriers. It
will eliminate the antitrust exemption for railroad collective
ratemaking. It will allow state attorneys general and other private
parties to sue railroads for treble damages and injunctive relief for
violations of the antitrust laws, including collusion that leads to
excessive and unreasonable rates. This legislation will force railroads
to play by the rules of free competition like all other businesses.
Significantly, our bill will not affect in way the jurisdiction of
the Surface Transportation Board to regulate freight railroads. It will
in no way limit or alter the authority of the STB; the STB will
continue to exercise full jurisdiction over the railroad industry.
In sum, by clearing out this thicket of outmoded antitrust
exemptions, railroads will be subject to the same laws as the rest of
the economy. Government antitrust enforcers will finally have the tools
to prevent anti-competitive transactions and practices by railroads.
Likewise, private parties will be able to utilize the antitrust laws to
deter anti-competitive conduct and to seek redress for their injuries.
It is time to put an end to the abusive practices of the Nation's
freight railroads. On the Antitrust Subcommittee, we have seen that in
industry after industry, vigorous application of our Nation's antitrust
laws is the best way to eliminate barriers to competition, to end
monopolistic behavior, to keep prices low and quality of service high.
The railroad industry is no different. All those who rely on railroads
to ship their products--whether it is an electric utility for its coal,
a farmer to ship grain, or a factory to acquire its raw materials or
ship out its finished product--deserve the full application of the
antitrust laws to end the anti-competitive abuses all too prevalent in
this industry today. I urge my colleagues support the Railroad
Antitrust Enforcement Act of 2011.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 49
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Railroad Antitrust
Enforcement Act of 2011''.
SEC. 2. INJUNCTIONS AGAINST RAILROAD COMMON CARRIERS.
The proviso in section 16 of the Clayton Act (15 U.S.C. 26)
ending with ``Code.'' is amended to read as follows:
``Provided, That nothing herein contained shall be construed
to entitle any person, firm, corporation, or association,
except the United States, to bring suit for injunctive relief
against any common carrier that is not a railroad subject to
the jurisdiction of the Surface Transportation Board under
subtitle IV of title 49, United States Code.''.
SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS.
The sixth undesignated paragraph of section 7 of the
Clayton Act (15 U.S.C. 18) is amended to read as follows:
``Nothing contained in this section shall apply to
transactions duly consummated pursuant to authority given by
the Secretary of Transportation, Federal Power Commission,
Surface Transportation Board (except for transactions
described in section 11321 of that title), the Securities and
Exchange Commission in the exercise of its jurisdiction under
section 10 (of the Public Utility Holding Company Act of
1935), the United States Maritime Commission, or the
Secretary of Agriculture under any statutory provision
vesting such power in the Commission, Board, or Secretary.''.
SEC. 4. LIMITATION OF PRIMARY JURISDICTION.
The Clayton Act is amended by adding at the end thereof the
following:
``Sec. 29. In any civil action against a common carrier
railroad under section 4, 4C, 15, or 16 of this Act, the
district court shall not be required to defer to the primary
jurisdiction of the Surface Transportation Board.''.
SEC. 5. FEDERAL TRADE COMMISSION ENFORCEMENT.
(a) Clayton Act.--Section 11(a) of the Clayton Act (15
U.S.C. 21(a)) is amended by striking ``subject to
jurisdiction'' and all that follows through the first
semicolon and inserting ``subject to jurisdiction under
subtitle IV of title 49, United States Code (except for
agreements described in section 10706 of that title and
transactions described in section 11321 of that title);''.
(b) FTC Act.--Section 5(a)(2) of the Federal Trade
Commission Act (15 U.S.C. 45(a)(2)) is amended by striking
``common carriers subject'' and inserting ``common carriers,
except for railroads, subject''.
SEC. 6. EXPANSION OF TREBLE DAMAGES TO RAIL COMMON CARRIERS.
Section 4 of the Clayton Act (15 U.S.C. 15) is amended by--
(1) redesignating subsections (b) and (c) as subsections
(c) and (d), respectively; and
(2) inserting after subsection (a) the following:
``(b) Subsection (a) shall apply to a common carrier by
railroad subject to the jurisdiction of the Surface
Transportation Board under subtitle IV of title 49, United
States Code, without regard to whether such railroads have
filed rates or whether a complaint challenging a rate has
been filed.''.
SEC. 7. TERMINATION OF EXEMPTIONS IN TITLE 49.
(a) In General.--Section 10706 of title 49, United States
Code, is amended--
(1) in subsection (a)--
(A) in paragraph (2)(A), by striking ``, and the Sherman
Act (15 U.S.C. 1 et seq.),'' and all that follows through
``or carrying out the agreement'' in the third sentence;
(B) in paragraph (4)--
(i) by striking the second sentence; and
(ii) by striking ``However, the'' in the third sentence and
inserting ``The''; and
(C) in paragraph (5)(A), by striking ``, and the antitrust
laws set forth in paragraph (2) of this subsection do not
apply to parties and other persons with respect to making or
carrying out the agreement''; and
(2) by striking subsection (e) and inserting the following:
``(e) Application of Antitrust Laws.--
``(1) In general.--Nothing in this section exempts a
proposed agreement described in subsection (a) from the
application of the Sherman Act (15 U.S.C. 1 et seq.), the
Clayton Act (15 U.S.C. 12, 14 et seq.), the Federal Trade
Commission Act (15 U.S.C. 41 et seq.), section 73 or 74 of
the Wilson Tariff Act (15 U.S.C. 8 and 9), or the Act of June
19, 1936 (15 U.S.C. 13, 13a, 13b, 21a).
``(2) Antitrust analysis to consider impact.--In reviewing
any such proposed agreement for the purpose of any provision
of law described in paragraph (1), the Board shall take into
account, among any other considerations, the impact of the
proposed agreement on shippers, on consumers, and on affected
communities.''.
(b) Combinations.--Section 11321 of title 49, United States
Code, is amended--
(1) in subsection (a)--
(A) by striking ``The authority'' in the first sentence and
inserting ``Except as provided in sections 4 (15 U.S.C. 15),
4C (15 U.S.C. 15c), section 15 (15 U.S.C. 25), and section 16
(15 U.S.C. 26) of the Clayton Act (15 U.S.C. 21(a)), the
authority''; and
(B) by striking ``is exempt from the antitrust laws and
from all other law,'' in the third sentence and inserting
``is exempt from all other law (except the antitrust laws
referred to in subsection (c)),''; and
(2) by adding at the end the following:
``(c) Application of Antitrust Laws.--
``(1) In general.--Nothing in this section exempts a
transaction described in subsection (a) from the application
of the Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act (15
U.S.C. 12, 14 et seq.), the Federal Trade Commission Act (15
U.S.C. 41 et seq.), section 73 or 74 of the Wilson Tariff Act
(15 U.S.C. 8-9), or the Act of June 19, 1936 (15 U.S.C. 13,
13a, 13b, 21a). The preceding sentence shall not apply to any
transaction relating to the pooling of railroad cars approved
by the Surface Transportation Board or its predecessor agency
pursuant to section 11322 of title 49, United States Code.
``(2) Antitrust analysis to consider impact.--In reviewing
any such transaction for the purpose of any provision of law
described in paragraph (1), the Board shall take into
account, among any other considerations, the impact of the
transaction on shippers and on affected communities.''.
(c) Conforming Amendments.--
(1) The heading for section 10706 of title 49, United
States Code, is amended to read as follows: ``Rate
agreements''.
(2) The item relating to such section in the chapter
analysis at the beginning of chapter 107 of such title is
amended to read as follows:
``10706. Rate agreements.''.
SEC. 8. EFFECTIVE DATE.
(a) In General.--Subject to the provisions of subsection
(b), this Act shall take effect on the date of enactment of
this Act.
(b) Conditions.--
(1) Previous conduct.--A civil action under section 4, 15,
or 16 of the Clayton Act (15 U.S.C. 15, 25, 26) or complaint
under section 5 of the Federal Trade Commission Act (15
U.S.C. 45) may not be filed with respect to any conduct or
activity that occurred prior to the date of enactment of this
Act that was previously exempted from the antitrust laws as
defined in section 1 of the Clayton Act (15 U.S.C. 12) by
orders of the Interstate Commerce Commission or the Surface
Transportation Board issued pursuant to law.
(2) Grace period.--A civil action or complaint described in
paragraph (1) may not be filed earlier than 180 days after
the date of enactment of this Act with respect to any
previously exempted conduct or activity or
[[Page S163]]
previously exempted agreement that is continued subsequent to
the date of enactment of this Act.
______
By Mr. INOUYE (for himself, Ms. Snowe, and Mr. Vitter):
S. 50. A bill to strengthen Federal consumer product safety programs
and activities with respect to commercially-marketed seafood by
directing the Secretary of Commerce to coordinate with the Federal
Trade Commission and other appropriate Federal agencies to strengthen
and coordinate those programs and activities; to the Committee on
Commerce, Science, and Transportation.
Mr. INOUYE. I am pleased to introduce my Commercial Seafood Consumer
Protection Act, Seafood Safety Act. The Seafood Safety Act will
strengthen the partnership between the Secretary of Commerce, the
Secretary of Health and Human Services, HHS, the Secretary of the
Department of Homeland Security, DHS, the Federal Trade Commission,
FTC, and other appropriate Federal agencies, to coordinate Federal
activities for ensuring that commercially distributed seafood in the
United States meets the food quality and safety requirements of Federal
law. The bill provides for no new jurisdiction and does not alter any
existing jurisdiction given to FDA or any other agency. The bill does
not include any authorization of appropriations, but seeks only to
strengthen existing partnerships and share information.
The bill remains largely unchanged since I first introduced it in the
110th Congress, but this version, like the one I introduced in the
111th, incorporates the FTC as an additional partner since they have
broad existing authority for consumer and interstate commerce fraud
issues.
Specifically, the bill requires the Secretaries of Commerce, HHS,
DHS, and the FTC to enter into agreements as necessary to strengthen
cooperation on seafood safety, seafood labeling, and seafood fraud.
Those agreements must address seafood testing and inspection; data
standardization for seafood names; data coordination for the
exportation, transportation, sale, harvest, or trade of seafood;
seafood labeling compliance assurance; and information-sharing for
observed non-compliance. The bill also increases the number of
laboratories certified to inspection standards of the FDA and allows
the Secretary of Commerce to increase the number and capacity of NOAA
laboratories responsible for seafood safety testing. It allows for an
increase in the percentage of seafood import shipments tested and
inspected to improve detection of violations. Finally, the bill allows
the Secretary of HHS to refuse entry of seafood imports from countries
with known violations, and also allows the Secretary to permit
individual seafood shipments from recognized and properly certified
exporters.
For the safety of the American people, I remain committed to the
Seafood Safety Act and look forward to continuing to work to ensure its
passage.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 50
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Commercial Seafood Consumer
Protection Act''.
SEC. 2. COMMERCIALLY-MARKETED SEAFOOD CONSUMER PROTECTION
SAFETY NET.
(a) In General.--The Secretary of Commerce shall, in
coordination with the Federal Trade Commission and other
appropriate Federal agencies, and consistent with the
international obligations of the United States, strengthen
Federal consumer protection activities for ensuring that
commercially-distributed seafood in the United States meets
the food quality and safety requirements of applicable
Federal laws.
(b) Interagency Agreements.--
(1) In general.--Within 180 days after the date of
enactment of this Act, the Secretary and other appropriate
Federal agencies shall execute memoranda of understanding or
other agreements to strengthen interagency cooperation on
seafood safety, seafood labeling, and seafood fraud.
(2) Scope of agreements.--The agreements shall include
provisions, as appropriate for each such agreement, for--
(A) cooperative arrangements for examining and testing
seafood imports that leverage the resources, capabilities,
and authorities of each party to the agreement;
(B) coordination of inspections of foreign facilities to
increase the percentage of imported seafood and seafood
facilities inspected;
(C) standardizing data on seafood names, inspection
records, and laboratory testing to improve interagency
coordination;
(D) coordination of the collection, storage, analysis, and
dissemination of all applicable information, intelligence,
and data related to the importation, exportation,
transportation, sale, harvest, processing, or trade of
seafood in order to detect and investigate violations under
applicable Federal laws, and to carry out the provisions of
this Act;
(E) developing a process for expediting imports of seafood
into the United States from foreign countries and exporters
that consistently adhere to the highest standards for
ensuring seafood safety;
(F) coordination to track shipments of seafood in the
distribution chain within the United States;
(G) enhancing labeling requirements and methods of assuring
compliance with such requirements to clearly identity species
and prevent fraudulent practices;
(H) a process by which officers and employees of the
National Oceanic and Atmospheric Administration may be
commissioned by the head of any other appropriate Federal
agency to conduct or participate in seafood examinations and
investigations under applicable Federal laws administered by
such other agency;
(I) the sharing of information concerning observed non-
compliance with United States seafood requirements
domestically and in foreign countries and new regulatory
decisions and policies that may affect regulatory outcomes;
(J) conducting joint training on subjects that affect and
strengthen seafood inspection effectiveness by Federal
authorities;
(K) sharing, to the maximum extent allowable by law, all
applicable information, intelligence, and data related to the
importation, exportation, transportation, sale, harvest,
processing, or trade of seafood in order to detect and
investigate violations under applicable Federal laws, or
otherwise to carry out the provisions of this Act; and
(L) outreach to private testing laboratories, seafood
industries, and the public on Federal efforts to enhance
seafood safety and compliance with labeling requirements,
including education on Federal requirements for seafood
safety and labeling and information on how these entities can
work with appropriate Federal agencies to enhance and improve
seafood inspection and assist in detecting and preventing
seafood fraud and mislabeling.
(3) Annual reports on implementation of agreements.--The
Secretary, the Chairman of the Federal Trade Commission, and
the heads of other appropriate Federal agencies that are
parties to agreements executed under paragraph (1) shall
submit, jointly or severally, an annual report to the
Congress concerning--
(A) specific efforts taken pursuant to the agreements;
(B) the budget and personnel necessary to strengthen
seafood safety and labeling and prevent seafood fraud; and
(C) any additional authorities necessary to improve seafood
safety and labeling and prevent seafood fraud.
(c) Marketing, Labeling, and Fraud Report.--Within 1 year
after the date of enactment of this Act, the Secretary and
the Chairman of the Federal Trade Commission shall submit a
joint report to the Congress on consumer protection and
enforcement efforts with respect to seafood marketing and
labeling in the United States. The report shall include--
(1) findings with respect to the scope of seafood fraud and
deception in the United States market and its impact on
consumers;
(2) information on how the National Oceanic and Atmospheric
Administration and the Federal Trade Commission can work
together more effectively to address fraud and unfair or
deceptive acts or practices with respect to seafood;
(3) detailed information on the enforcement and consumer
outreach activities undertaken by the National Oceanic and
Atmospheric Administration and the Federal Trade Commission
during the preceding year pursuant to this Act; and
(4) an examination of the scope of unfair or deceptive acts
or practices in the United States market with respect to
foods other than seafood and whether additional enforcement
authority or activity is warranted.
(d) NOAA Seafood Inspection and Marking Coordination.--
(1) Deceptive marketing and fraud.--The National Oceanic
and Atmospheric Administration shall report deceptive seafood
marketing and fraud to the Federal Trade Commission pursuant
to an agreement under subsection (b).
(2) Application with existing agreements.--Nothing in this
Act shall be construed to impede, minimize, or otherwise
affect any agreement or agreements regarding cooperation and
information sharing in the inspection of fish and fishery
products and establishments between the Department of
Commerce and the Department of Health and Human Services in
effect on the date of enactment of this Act. Within 6 months
after the date of enactment of this Act, the Secretary of
Commerce and the Secretary of Health and Human Services shall
submit a joint report to the Congress on implementation of
any such agreement or agreements, including the extent to
which the Food and
[[Page S164]]
Drug Administration has taken into consideration information
resulting from inspections conducted by the Department of
Commerce in making risk-based determinations such as the
establishment of inspection priorities for domestic and
foreign facilities and the examination and testing of
imported seafood.
(3) Coordination with sea grant program.--The Administrator
of the National Oceanic and Atmospheric Administration shall
ensure that the NOAA Seafood Inspection Program is
coordinated with the Sea Grant Program to provide outreach to
States, consumers, and the seafood industry on seafood
testing, seafood labeling, and seafood substitution, and
strategies to combat mislabeling and fraud.
SEC. 3. CERTIFIED LABORATORIES.
Within 180 days after the date of enactment of this Act,
the Secretary, in consultation with the Secretary of Health
and Human Services, shall increase the number of laboratories
certified to the standards of the Food and Drug
Administration in the United States and in countries that
export seafood to the United States for the purpose of
analyzing seafood and ensuring that the laboratories,
including Federal, State, and private facilities, comply with
applicable Federal laws. Within 1 year after the date of
enactment of this Act, the Secretary of Commerce shall
publish in the Federal Register a list of certified
laboratories. The Secretary shall update and publish the list
no less frequently than annually.
SEC. 4. NOAA LABORATORIES.
In any fiscal year beginning after the date of enactment of
this Act, the Secretary may increase the number and capacity
of laboratories operated by the National Oceanic and
Atmospheric Administration involved in carrying out testing
and other activities under this Act to the extent that the
Secretary determines that increased laboratory capacity is
necessary to carry out the provisions of this Act and as
provided for in appropriations Acts.
SEC. 5. CONTAMINATED SEAFOOD.
(a) Refusal of Entry.--The Secretary of Health and Human
Services may issue an order refusing admission into the
United States of all imports of seafood or seafood products
originating from a country or exporter if the Secretary
determines that shipments of such seafood or seafood products
do not meet the requirements established under applicable
Federal law.
(b) Increased Testing.--If the Secretary of Health and
Human Services determines that seafood imports originating
from a country may not meet the requirements of Federal law,
and determines that there is a lack of adequate certified
laboratories to provide for the entry of shipments pursuant
to section 3, then the Secretary may order an increase in the
percentage of shipments tested of seafood originating from
such country to improve detection of potential violations of
such requirements.
(c) Allowance of Individual Shipments from Exporting
Country or Exporter.--Notwithstanding an order under
subsection (a) with respect to seafood originating from a
country or exporter, the Secretary may permit individual
shipments of seafood originating in that country or from that
exporter to be admitted into the United States if--
(1) the exporter presents evidence from a laboratory
certified by the Secretary that a shipment of seafood meets
the requirements of applicable Federal laws; and
(2) the Secretary, or other agent of a Federal agency
authorized to conduct inspections of seafood, has inspected
the shipment and has found that the shipment and the
conditions of manufacturing meet the requirements of
applicable Federal laws.
(d) Cancellation of Order.--The Secretary may cancel an
order under subsection (a) with respect to seafood exported
from a country or exporter if all shipments into the United
States under subsection (c) of seafood originating in that
country or from that exporter more than 1 year after the date
on which the Secretary issued the order have been found,
under the procedures described in subsection (c), to meet the
requirements of Federal law. If the Secretary determines that
an exporter has failed to comply with the requirements of an
order under subsection (a), the 1-year period in the
preceding sentence shall run from the date of that
determination rather than the date on which the order was
issued.
(e) Effect.--This section shall be in addition to, and
shall have no effect on, the authority of the Secretary of
Health and Human Services under the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301 et seq.) with respect to seafood,
seafood products, or any other product.
SEC. 6. INSPECTION TEAMS.
(a) Inspection of Foreign Sites.--The Secretary, in
cooperation with the Secretary of Health and Human Services,
may send 1 or more inspectors to a country or exporter from
which seafood exported to the United States originates. The
inspection team shall assess practices and processes being
used in connection with the farming, cultivation, harvesting,
preparation for market, or transportation of such seafood and
may provide technical assistance related to the requirements
established under applicable Federal laws to address seafood
fraud and safety. The inspection team shall prepare a report
for the Secretary of Commerce with its findings. The
Secretary of Commerce shall make a copy of the report
available to the country or exporter that is the subject of
the report and provide a 30-day period during which the
country or exporter may provide a rebuttal or other comments
on the findings to the Secretary.
(b) Distribution and Use of Report.--The Secretary shall
provide the report to the Secretary of Health and Human
Services as information for consideration in making risk-
based determinations such as the establishment of inspection
priorities of domestic and foreign facilities and the
examination and testing of imported seafood. The Secretary
shall provide the report to the Executive Director of the
Federal Trade Commission for consideration in making
recommendations to the Chairman of the Federal Trade
Commission regarding consumer protection to prevent fraud,
deception, and unfair business practices in the marketplace.
SEC. 7. SEAFOOD IDENTIFICATION.
(a) Standarized List of Names for Seafood.--The Secretary
and the Secretary of Health and Human Services shall initial
a joint rulemaking proceeding to develop and make public a
list of standardized names for seafood identification
purposes at distribution, marketing, and consumer retail
stages. The list of standardized names shall take into
account taxonomy, current labeling regulations, international
law and custom, market value, and naming precedence for all
commercially-distributed seafood distributed in interstate
commerce in the United States and may not include names,
whether similar to existing or commonly used names for
species, that are likely to confuse or mislead consumers.
(b) Publication of List.--The list of standardized names
shall be made available to the public on Department of Health
and Human Services and the Department of Commerce websites,
shall be open to public review and comment, and shall be
updated annually.
SEC. 8. DEFINITIONS.
In this Act:
(1) Applicable federal laws.--The term ``applicable laws
and regulations'' means Federal statutes, regulations, and
international agreements pertaining to the importation,
exportation, transportation, sale, harvest, processing, or
trade of seafood, including the Magnuson-Stevens Fishery
Conservation and Management Act, section 801 of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 381), section 203 of
the Food Allergen Labeling and Consumer Protection Act of
2004 (21 U.S.C. 374a), and the Seafood Hazard Analysis and
Critical Control Point regulations in part 123 of title 21,
Code of Federal Regulations.
(2) Appropriate federal agencies.--The term ``appropriate
Federal agencies'' includes the Department of Health and
Human Services, the Federal Food and Drug Administration, the
Department of Homeland Security, and the Department of
Agriculture.
(3) Secretary.--The term ``Secretary'' means the Secretary
of Commerce.
______
By Mr. INOUYE (for himself, Mr. Rockefeller, Mr. Kerry, Ms.
Snowe, and Ms. Cantwell):
S. 52. A bill to establish uniform administrative and enforcement
procedures and penalties for the enforcement of the High Seas Driftnet
Fishing Moratorium Protection Act and similar statutes, and for other
purposes; to the Committee on Commerce, Science, and Transportation.
Mr. INOUYE. Mr. President, I am pleased to introduce the
International Fisheries Stewardship and Enforcement Act, which I also
introduced in the 111th. This bill would harmonize the enforcement
provisions of the U.S. statutes for implementing international
fisheries agreements to strengthen international fisheries enforcement.
Specifically it would grant the National Oceanic and Atmospheric
Administration, NOAA, and the U.S. Coast Guard authority to implement
international fisheries laws, expand their authorities in carrying out
investigations and enforcement activities, and establish interference
with investigations as a prohibited act. It would also amend the
enforcement provisions of statutes for implementing international
fisheries agreements to conform to the Magnuson-Stevens Fishery
Conservation and Management Act, while increasing both civil and
criminal penalties for violating international fisheries laws.
The bill also authorizes the Secretary of Commerce to maintain and
make public a list of vessels engaged in illegal, unregulated, and
unreported, IUU, fishing and authorize appropriate action against
listed vessels, which will hopefully allow for strong strides in our
fight against illegal activity.
Finally, by creating an International Cooperation and Assistance
Program that will provide assistance for international capacity
building efforts, training, outreach, and education, it is my hope that
we are able to more-successfully combat IUU fishing and promote
international marine conservation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
[[Page S165]]
There be no objection, the text of the bill was ordered to be printed
in the Record, as follows:
S. 52
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``International Fisheries Stewardship and Enforcement Act''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Title I--Administration and Enforcement of certain fishery and related
statutes.
Sec. 101. Authority of the Secretary to enforce statutes.
Sec. 102. Conforming, minor, and technical amendments.
Sec. 103. Illegal, unreported, or unregulated fishing.
Sec. 104. Liability.
Title II--Law Enforcement and International Operations
Sec. 201. International fisheries enforcement program.
Sec. 202. International cooperation and assistance program.
Title III--Miscellaneous Amendments
Sec. 301. Atlantic Tunas Convention Act of 1975.
Sec. 302. Data Sharing.
Sec. 303. Permits under the High Seas Fishing Compliance Act of 1995.
Sec. 304. Committee on Scientific Cooperation for Pacific Salmon
Agreement.
Sec. 305. Reauthorizations.
Title IV--Implementation of Antigua Convention
Sec. 401. Short title.
Sec. 402. Amendment of the Tuna Conventions Act of 1950.
Sec. 403. Definitions.
Sec. 404. Commissioners; number, appointment, and qualifications.
Sec. 405. General advisory committee and scientific advisory
subcommittee.
Sec. 406. Rulemaking.
Sec. 407. Prohibited acts.
Sec. 408. Enforcement.
Sec. 409. Reduction of bycatch.
Sec. 410. Repeal of Eastern Pacific Tuna Licensing Act of 1984.
TITLE I--ADMINISTRATION AND ENFORCEMENT OF CERTAIN FISHERY AND RELATED
STATUTES.
SEC. 101. AUTHORITY OF THE SECRETARY TO ENFORCE STATUTES.
(a) In General.--
(1) Enforcement of statutes.--The Secretary of Commerce and
the Secretary of the department in which the Coast Guard is
operating shall enforce the statutes to which this section
applies in accordance with the provisions of this section.
(2) Utilization of nondepartmental resources.--The
Secretary may, by agreement, on a reimbursable basis or
otherwise, utilize the personnel services, equipment
(including aircraft and vessels), and facilities of any other
Federal agency, including all elements of the Department of
Defense, and of any State agency, in carrying out this
section.
(3) Statutes to which applicable.--This section applies
to--
(A) the High Seas Driftnet Fishing Moratorium Protection
Act (16 U.S.C. 1826d et seq.);
(B) the Pacific Salmon Treaty Act of 1985 (16 U.S.C. 3631
et seq.);
(C) the Dolphin Protection Consumer Information Act (16
U.S.C. 1385);
(D) the Tuna Conventions Act of 1950 (16 U.S.C. 951 et
seq.);
(E) the North Pacific Anadromous Stocks Act of 1992 (16
U.S.C. 5001 et seq.);
(F) the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et
seq.);
(G) the Antarctic Marine Living Resources Convention Act of
1984 (16 U.S.C. 2431 et seq.);
(H) the Atlantic Tunas Convention Act of 1975 (16 U.S.C.
971 et seq.);
(I) the Northwest Atlantic Fisheries Convention Act of 1995
(16 U.S.C. 5601 et seq.);
(J) the Western and Central Pacific Fisheries Convention
Implementation Act (16 U.S.C. 6901 et seq.);
(K) the Northern Pacific Halibut Act of 1982 (16 U.S.C. 773
et seq.);
(L) any other Act in pari materia, so designated by the
Secretary after notice and an opportunity for a hearing; and
(M) the Antigua Convention Implementing Act of 2011.
(b) Administration and Enforcement.--The Secretary shall
prevent any person from violating any Act to which this
section applies in the same manner, by the same means, and
with the same jurisdiction, powers, and duties as though
sections 307 through 311 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1857 through 1861)
were incorporated into and made a part of each such Act.
Except as provided in subsection (c), any person that
violates any Act to which this section applies is subject to
the penalties, and entitled to the privileges and immunities,
provided in the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq.) in the same manner
and by the same means as though sections 307 through 311 of
that Act were incorporated into and made a part of each such
Act.
(c) Special Rules.--
(1) In general.--Notwithstanding the incorporation by
reference of certain sections of the Magnuson-Stevens Fishery
Conservation and Management Act under subsection (b), if
there is a conflict between a provision of this subsection
and the corresponding provision of any section of the
Magnuson-Stevens Fishery Conservation and Management Act so
incorporated, the provision of this subsection shall apply.
(2) Civil administrative enforcement.--The amount of the
civil penalty for a violation of any Act to which this
section applies shall not exceed $250,000 for each violation.
Each day of a continuing violation shall constitute a
separate violation.
(3) Civil judicial enforcement.--The Attorney General, upon
the request of the Secretary, may commence a civil action in
an appropriate district court of the United States to enforce
this Act and any Act to which this section applies, and such
court shall have jurisdiction to award civil penalties or
such other relief as justice may require, including a
permanent or temporary injunction. The amount of the civil
penalty for a violation of any Act to which this section
applies shall not exceed $250,000 for each violation. Each
day of a continuing violation shall constitute a separate
violation. In determining the amount of a civil penalty, the
court shall take into account the nature, circumstances,
extent, and gravity of the prohibited acts committed and,
with respect to the violator, the degree of culpability, any
history of prior violations and such other matters as justice
may require. In imposing such penalty, the district court may
also consider information related to the ability of the
violator to pay.
(4) Criminal fines and penalties.--
(A) Individuals.--In the case of an individual, any offense
described in subsection (e)(2), (3), (4), (5), or (6) is
punishable by a fine of not more than $500,000, imprisonment
for not more than 5 years, or both. If, in the commission of
such offense, an individual uses a dangerous weapon, engages
in conduct that causes bodily injury to any officer
authorized to enforce the provisions of this Act, or places
any such officer in fear of imminent bodily injury the
maximum term of imprisonment is 10 years.
(B) Other persons.--In the case of any other person, any
offense described in subsection (e)(2), (3), (4), (5), or (6)
is punishable by a fine of not more than $1,000,000.
(5) Other criminal violations.--Any person (other than a
foreign government or any entity of such government) who
knowingly violates any provision of subsection (e) of this
section, or any provision of any regulation promulgated
pursuant to this Act, is guilty of a criminal offense
punishable--
(A) in the case of an individual, by a fine of not more
than $500,000, imprisonment for not more than 5 years, or
both; and
(B) in the case of any other person, by a fine of not more
than $1,000,000.
(6) Criminal forfeitures.--
(A) In general.--A person found guilty of an offense
described in subsection (e), or who is convicted of a
criminal violation of any Act to which this section applies,
shall forfeit to the United States--
(i) any property, real or personal, constituting or
traceable to the gross proceeds obtained, or retained, as a
result of the offense including any marine species (or the
fair market value thereof) taken or retained in connection
with or as a result of the offense; and
(ii) any property, real or personal, used or intended to be
used to commit or to facilitate the commission of the
offense, including any shoreside facility, including its
conveyances, structure, equipment, furniture, appurtenances,
stores, and cargo.
(B) Procedure.--Pursuant to section 2461(c) of title 28,
United States Code, the provisions of section 413 of the
Controlled Substances Act (21 U.S.C. 853), other than
subsection (d) thereof, shall apply to criminal forfeitures
under this section.
(7) Additional enforcement authority.--In addition to the
powers of officers authorized pursuant to subsection (b), any
officer who is authorized by the Secretary, or the head of
any Federal or State agency that has entered into an
agreement with the Secretary under subsection (a) to enforce
the provisions of any Act to which this section applies may,
with the same jurisdiction, powers, and duties as though
section 311 of the Magnuson-Stevens fishery Conservation and
Management Act (16 U.S.C. 1861) were incorporated into and
made a part of each such Act--
(A) search or inspect any facility or conveyance used or
employed in, or which reasonably appears to be used or
employed in, the storage, processing, transport, or trade of
fish or fish products;
(B) inspect records pertaining to the storage, processing,
transport, or trade of fish or fish products;
(C) detain, for a period of up to 14 days, any shipment of
fish or fish product imported into, landed on, introduced
into, exported from, or transported within the jurisdiction
of the United States, or, if such fish or fish product is
deemed to be perishable, sell and retain the proceeds
therefrom for a period of up to 14 days; and
(D) make an arrest, in accordance with any guidelines which
may be issued by the Attorney General, for any offense under
the laws of the United States committed in the person's
presence, or for the commission of any felony under the laws
of the United States, if the person has reasonable grounds to
believe that the person to be arrested has committed
[[Page S166]]
or is committing a felony; may search and seize, in
accordance with any guidelines which may be issued by the
Attorney General and may execute and serve any subpoena,
arrest warrant, search warrant issued in accordance with rule
41 of the Federal Rules of Criminal Procedure, or other
warrant or civil or criminal process issued by any officer or
court of competent jurisdiction.
(8) Subpoenas.--In addition to any subpoena authority
pursuant to subsection (b), the Secretary may, for the
purposes of conducting any investigation under this section,
or any other statute administered by the Secretary, issue
subpoenas for the production of relevant papers, photographs,
records, books, and documents in any form, including those in
electronic, electrical, or magnetic form.
(d) District Court Jurisdiction.--The several district
courts of the United States shall have jurisdiction over any
actions arising under this section. For the purpose of this
section, American Samoa shall be included within the judicial
district of the District Court of the United States for the
District of Hawaii. Each violation shall be a separate
offense and the offense shall be deemed to have been
committed not only in the district where the violation first
occurred, but also in any other district as authorized by
law. Any offenses not committed in any district are subject
to the venue provisions of section 3238 of title 18, United
States Code.
(e) Prohibited Acts.--It is unlawful for any person--
(1) to violate any provision of this section or any Act to
which this section applies or any regulation promulgated
thereunder;
(2) to refuse to permit any authorized enforcement officer
to board, search, or inspect a vessel, conveyance, or
shoreside facility that is subject to the person's control
for purposes of conducting any search, investigation, or
inspection in connection with the enforcement of this section
or any Act to which this section applies or any regulation
promulgated thereunder;
(3) to forcibly assault, resist, oppose, impede,
intimidate, or interfere with any such authorized officer in
the conduct of any search, investigation, or inspection
described in paragraph (2);
(4) to resist a lawful arrest for any act prohibited by
this section or any Act to which this section applies;
(5) to interfere with, delay, or prevent, by any means, the
apprehension, arrest, or detection of another person, knowing
that such person has committed any act prohibited by this
section or any Act to which this section applies;
(6) to forcibly assault, resist, oppose, impede,
intimidate, sexually harass, bribe, or interfere with any
observer on a vessel under this section or any Act to which
this section applies, or any data collector employed by or
under contract to the National Marine Fisheries Service to
carry out responsibilities under this section or any Act to
which this section applies;
(7) to import, export, transport, sell, receive, acquire,
or purchase in interstate or foreign commerce any fish or
fish product taken, possessed, transported, or sold in
violation of any treaty or binding conservation measure
adopted pursuant to an international agreement or
organization to which the United States is a party; or
(8) to make or submit any false record, account, or label
for, or any false identification of, any fish or fish product
(including false identification of the species, harvesting
vessel or nation, or the location where harvested) which has
been, or is intended to be imported, exported, transported,
sold, offered for sale, purchased, or received in interstate
or foreign commerce.
(f) Regulations.--The Secretary may promulgate such
regulations, in accordance with section 553 of title 5,
United States Code, as may be necessary to carry out this
section or any Act to which this section applies.
SEC. 102. CONFORMING, MINOR, AND TECHNICAL AMENDMENTS.
(a) High Seas Driftnet Fishing Moratorium Protection Act.--
(1) Section 606 of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826g) is amended--
(A) by inserting ``(a) Detecting, Monitoring, and
Preventing Violations.--'' before ``The President''; and
(B) by adding at the end thereof the following:
``(b) Enforcement.--This Act shall be enforced under
section 101 of the International Fisheries Stewardship and
Enforcement Act.''.
(2) Section 607(2) of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826h(2)) is amended by
striking ``whose vessels'' and inserting ``that''.
(3) Section 609(a) of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826j(a)) is amended to
read as follows:
``(a) Identification.--
``(1) In general.--The Secretary shall identify, and list
in the report under section 607, a nation if that nation is
engaged, or has been engaged at any time during the preceding
3 years, in illegal, unreported, or unregulated fishing and--
``(A) such fishing undermines the effectiveness of measures
required under the relevant international fishery management
organization;
``(B) the relevant international fishery management
organization has failed to implement effective measures to
end the illegal, unreported, or unregulated fishing activity
by vessels of that nation, or the nation is not a party to,
or does not maintain cooperating status with, such
organization; or
``(C) there is no international fishery management
organization with a mandate to regulate the fishing activity
in question.
``(2) Other identifying activities.--The Secretary shall
also identify, and list in the report under section 607, a
nation if--
``(A) it is violating, or has violated at any time during
the preceding 3 years, conservation and management measures
required under an international fishery management agreement
to which the United States is a party and the violations
undermine the effectiveness of such measures, taking into
account the factors described in paragraph (1); or
``(B) it is failing, or has failed at any time during the
preceding 3 years, to effectively address or regulate
illegal, unreported, or unregulated fishing in areas
described in paragraph (1)(C).
``(3) Treatment of certain entities as if they were
nations.--Where the provisions of this Act apply to the act,
or failure to act, of a nation, they shall also be
applicable, as appropriate, to any other entity that is
competent to enter into an international fishery management
agreement.''.
(4) Section 609(d)(1) of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826j(d)(1)) is amended
by striking ``of its fishing vessels'' each place it appears.
(5) Section 609(d)(2) of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826j(d)(2)) is
amended--
(A) by striking ``procedure for certification,'' and
inserting ``procedure,'';
(B) by striking ``basis of fish'' and inserting ``basis,
for allowing importation of fish''; and
(C) by striking ``harvesting nation not certified under
paragraph (1)'' and inserting ``nation issued a negative
certification under paragraph (1)''.
(6) Section 610(a)(1) of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826k(a)(1)) is
amended--
(A) by striking ``calendar year'' and inserting ``3
years''; and
(B) by striking ``practices;'' and inserting ``practices--
''.
(b) Dolphin Protection Consumer Information Act.--Section
901 of the Dolphin Protection Consumer Information Act (16
U.S.C. 1385) is amended--
(1) by adding at the end of subsection (d) the following:
``(4) It is a violation of section 101 of the International
Fisheries Stewardship and Enforcement Act for any person to
assault, resist, oppose, impede, intimidate, or interfere
with and authorized officer in the conduct of any search,
investigation or inspection under this Act.''; and
(2) by striking subsection (e) and inserting the following:
``(e) Enforcement.--This Act shall be enforced under
section 101 of the International Fisheries Stewardship and
Enforcement Act.''.
(c) Tuna Conventions Act of 1950.--Section 8 of the Tuna
Conventions Act of 1950 (16 U.S.C. 957) is amended--
(1) by striking ``regulations.'' in subsection (a) and
inserting ``regulation or for any person to make or submit
any false record, account, or label for, or any false
identification of, any fish or fish product (including the
false identification of species, harvesting vessel or nation
or the location where harvested) which has been, or is
intended to be imported, exported, transported, sold, offered
for sale, purchased, or received in interstate or foreign
commerce.'';
(2) by striking subsection (d) and inserting the following:
``(d) It shall be unlawful for any person--
``(1) to refuse to permit any officer authorized to enforce
the provisions of this Act to board a fishing vessel subject
to such person's control for purposes of conducting any
search, investigation, or inspection in connection with the
enforcement of this Act or any regulation promulgation or
permit issued under this Act;
``(2) to forcibly assault, resist, oppose, impede,
intimidate, or interfere with any such authorized officer in
the conduct of any search, investigation or inspection
described in paragraph (1);
``(3) to resist a lawful arrest for any act prohibited by
this section; or
``(4) to interfere with, delay, or prevent, by any means,
the apprehension or arrest of another person, knowing that
such other person has committed any act prohibited by this
section.'';
(3) by striking subsections (e) through (g) and
redesignating subsection (h) as subsection (f); and
(4) by inserting after subsection (d) the following:
``(e) Enforcement.--This section shall be enforced under
section 101 of the International Fisheries Stewardship and
Enforcement Act.''.
(d) Northern Pacific Anadromous Stocks Act of 1992.--
(1) Unlawful activities.--Section 810 of the Northern
Pacific Anadromous Stocks Act of 1992 (16 U.S.C. 5009) is
amended--
(A) by striking ``purchases'' in paragraph (5) and
inserting ``purposes'';
(B) by striking ``search or inspection'' in paragraph (5)
and inserting ``search, investigation, or inspection'';
(C) by striking ``search or inspection'' in paragraph (6)
and inserting ``search, investigation, or inspection'';
[[Page S167]]
(D) by striking ``or'' after the semicolon in paragraph
(8);
(E) by striking ``title.'' in paragraph (9) and inserting
``title; or''; and
(F) by adding at the end thereof the following:
``(10) for any person to make or submit any false record,
account, or label for, or any false identification of, any
fish or fish product (including false identification of the
species, harvesting vessel or nation, or the location where
harvested) which has been, or is intended to be imported,
exported, transported, sold, offered for sale, purchased, or
received in interstate or foreign commerce.''.
(2) Administration and Enforcement.--Section 811 of the
Northern Pacific Anadromous Stocks Act of 1992 (16 U.S.C.
5010) is amended to read as follows:
``SEC. 811. ADMINISTRATION AND ENFORCEMENT.
``This Act shall be enforced under section 101 of the
International Fisheries Stewardship and Enforcement Act.''.
(e) Pacific Salmon Treaty Act of 1985.--Section 8 of the
Pacific Salmon Treaty Act of 1985 (16 U.S.C. 3637) is
amended--
(1) by striking ``search or inspection'' in subsection
(a)(2) and inserting ``search, investigation, or
inspection'';
(2) by striking ``search or inspection'' in subsection
(a)(3) and inserting ``search, investigation, or
inspection'';
(3) by striking ``or'' after the semicolon in subsection
(a)(5);
(4) by striking ``section.'' in subsection (a)(6) and
inserting ``section; or'';
(5) by adding at the end of subsection (a) the following:
``(7) for any person to make or submit any false record,
account, or label for, or any false identification of, any
fish or fish product (including false identification of the
species, harvesting vessel or nation, or the location where
harvested) which has been, or is intended to be imported,
exported, transported, sold, offered for sale, purchased, or
received in interstate or foreign commerce.''; and
(6) by striking subsections (b) through (f) and inserting
the following:
``(b) Administration and Enforcement.--This Act shall be
enforced under section 101 of the International Fisheries
Stewardship and Enforcement Act.''.
(f) South Pacific Tuna Act of 1988.--
(1) Prohibited acts.--Section 5(a) of the South Pacific
Tuna Act of 1988 (16 U.S.C. 973c(a)) is amended--
(A) by striking ``search or inspection'' in paragraph (8)
and inserting ``search, investigation, or inspection'';
(B) by striking ``search or inspection'' in paragraph
(10)(A) and inserting ``search, investigation, or
inspection'';
(C) by striking ``or'' after the semicolon in paragraph
(12);
(D) by striking `` retained.'' in paragraph (13) and
inserting ``retained; or''; and
(E) by adding at the end thereof the following:
``(14) for any person to make or submit any false record,
account, or label for, or any false identification of, any
fish or fish product (including false identification of the
species, harvesting vessel or nation, or the location where
harvested) which has been, or is intended to be imported,
exported, transported, sold, offered for sale, purchased, or
received in interstate or foreign commerce.''.
(2) Administration and enforcement.--The South Pacific Tuna
Act of 1988 (16 U.S.C. 973 et seq.) is amended by striking
sections 7 and 8 (16 U.S.C. 973e and 973f) and inserting the
following:
``SEC. 7. ADMINISTRATION AND ENFORCEMENT.
``This Act shall be enforced under section 101 of the
International Fisheries Stewardship and Enforcement Act.''.
(g) Antarctic Marine Living Resources Convention Act of
1984.--
(1) Unlawful activities.--Section 306 of the Antarctic
Marine Living Resources Convention Act (16 U.S.C. 2435) is
amended--
(A) by striking ``which he knows, or reasonably should have
known, was'' in paragraph (3);
(B) by striking ``search or inspection'' in paragraph (4)
and inserting ``search, investigation, or inspection'';
(C) by striking ``search or inspection'' in paragraph (5)
and inserting ``search, investigation, or inspection'';
(D) by striking ``or'' after the semicolon in paragraph
(6);
(E) by striking ``section.'' in paragraph (7) and inserting
``section; or''; and
(F) by adding at the end thereof the following:
``(8) to make or submit any false record, account, or label
for, or any false identification of, any fish or fish product
(including false identification of the species, harvesting
vessel or nation, or the location where harvested) which has
been, or is intended to be imported, exported, transported,
sold, offered for sale, purchased, or received in interstate
or foreign commerce.''.
(2) Regulations.--Section 307 of the Antarctic Marine
Living Resources Convention Act (16 U.S.C. 2436) is amended
by inserting after ``title.'' the following:
``Notwithstanding the provisions of subsections (b), (c), and
(d) of section 553 of title 5, United States Code, the
Secretary of Commerce may publish in the Federal Register a
final rule to implement conservation measures, described in
section 305(a) of this Act, that are in effect for 12 months
or less, adopted by the Commission, and not objected to by
the United States within the time period allotted under
Article IX of the Convention. Upon publication in the Federal
Register, such conservation measures shall be in force with
respect to the United States.''.
(3) Penalties and Enforcement.--The Antarctic Marine Living
Resources Convention Act (16 U.S.C. 2431 et seq.) is
amended--
(A) by striking sections 308 and 309 (16 U.S.C. 2437 and
2438);
(B) by striking subsection (b), (c), and (d) of section 310
(16 U.S.C. 2439) and redesignating subsection (e) as
subsection (c); and
(C) by inserting after subsection (a) the following:
``(b) Administration and Enforcement.--This title shall be
enforced under section 101 of the International Fisheries
Stewardship and Enforcement Act.''.
(h) Atlantic Tunas Convention Act of 1975.--
(1) Violations.--Section 7 of the Atlantic Tunas Convention
Act of 1975 (16 U.S.C. 971e) is amended--
(A) by striking subsections (e) and (f) and redesignating
subsection (g) as subsection (f); and
(B) by inserting after subsection (d) the following:
``(e) Mislabeling.--It shall be unlawful for any person to
make or submit any false record, account, or label for, or
any false identification of, any fish or fish product
(including the false identification of the species,
harvesting vessel or nation, or the location where harvested)
which has been, or is intended to be, imported, exported,
transported, sold, offered for sale, purchased or received in
interstate or foreign commerce.''.
(2) Enforcement.--Section 8 of the Atlantic Tunas
Convention Act of 1975 (16 U.S.C. 971f) is amended--
(A) by striking subsections (a) and (c);
(B) by striking ``(b) International Enforcement.--'' in
subsection (b) and inserting ``This Act shall be enforced
under section 101 of the International Fisheries Stewardship
and Enforcement Act.''; and
(C) by striking ``shall have the authority to carry out the
enforcement activities specified in section 8(a) of this
Act'' each place it appears and inserting ``shall enforce
this Act''.
(i) Northwest Atlantic Fisheries Convention Act of 1995.--
Section 207 of the Northwest Atlantic Fisheries Convention
Act of 1995 (16 U.S.C. 5606) is amended--
(1) by striking ``AND PENALTIES.'' in the section caption
and inserting ``AND ENFORCEMENT.'';
(2) by striking ``search or inspection'' in subsection
(a)(2) and inserting ``search, investigation, or
inspection'';
(3) by striking ``search or inspection'' in subsection
(a)(3) and inserting ``search, investigation, or
inspection'';
(4) by striking ``or'' after the semicolon in subsection
(a)(5);
(5) by striking ``section.'' in subsection (a)(6) and
inserting ``section ; or'';
(6) by adding at the end of subsection (a) the following:
``(7) to make or submit any false record, account, or label
for, or any false identification of, any fish or fish product
(including false identification of the species, harvesting
vessel or nation, or the location where harvested) which has
been, or is intended to be imported, exported, transported,
sold, offered for sale, purchased, or received in interstate
or foreign commerce.''; and
(7) by striking subsection (b) through (f) and inserting
the following:
``(b) Administration and Enforcement.--This title shall be
enforced under section 101 of the International Fisheries
Stewardship and Enforcement Act.''.
(j) Western and Central Pacific Fisheries Convention
Implementation Act.--
(1) Adminstration and enforcement.--Section 506(c) of the
Western and Central Pacific Fisheries Convention
Implementation Act (16 U.S.C. 6905(c)) is amended to read as
follows:
``(c) Administration and Enforcement.--This title shall be
enforced under section 101 of the International Fisheries
Stewardship and Enforcement Act.''.
(2) Prohibited acts.--Section 507(a) of the Western and
Central Pacific Fisheries Convention Implementation Act (16
U.S.C. 6906(a)) is amended--
(A) by striking ``suspension, on'' in paragraph (2) and
inserting ``suspension of'';
(B) by striking ``title.'' in paragraph (14) and inserting
``title; or''; and
(C) by adding at the end thereof the following:
``(15) to make or submit any false record, account, or
label for, or any false identification of, any fish or fish
product (including false identification of the species,
harvesting vessel or nation, or the location where harvested)
which has been, or is intended to be imported, exported,
transported, sold, offered for sale, purchased, or received
in interstate or foreign commerce.''.
(k) Northern Pacific Halibut Act of 1982.--
(1) Prohibited acts.--Section 7 of the Northern Pacific
Halibut Act of 1982 (16 U.S.C. 773e) is amended--
(A) by redesignating subdivisions (a) and (b) as paragraphs
(1) and (2), respectively, and subdivisions (1) through (6)
of paragraph (1), as redesignated, as subparagraphs (A)
through (F);
(B) by striking ``search or inspection'' in paragraph
(1)(B), as redesignated, and inserting ``search,
investigation, or inspection'';
(C) by striking ``search or inspection'' in paragraph
(1)(C), as redesignated, and inserting ``search,
investigation, or inspection'';
[[Page S168]]
(D) by striking ``or'' after the semicolon in paragraph
(1)(E), as redesignated;
(E) by striking ``section.'' in paragraph (1)(F), as
redesignated, and inserting ``section;''; and
(F) by adding at the end of paragraph (1), as redesignated,
the following:
``(G) to make or submit any false record, account, or label
for, or any false identification of, any fish or fish product
(including false identification of the species, harvesting
vessel or nation, or the location where harvested) which has
been, or is intended to be imported, exported, transported,
sold, offered for sale, purchased, or received in interstate
or foreign commerce.''.
(2) Administration and enforcement.--The Northern Pacific
Halibut Act of 1982 (16 U.S.C. 773 et seq.) is amended--
(A) by striking sections 3, 9, and 10 (16 U.S.C. 773f,
773g, and 773h); and
(B) by striking subsections (b) through (f) of section 11
(16 U.S.C. 773i) and inserting the following:
``(b) Administration and Enforcement.--This Act shall be
enforced under section 101 of the International Fisheries
Stewardship and Enforcement Act.''.
SEC. 103. ILLEGAL, UNREPORTED, OR UNREGULATED FISHING.
(a) In General.--Section 608 of the High Seas Driftnet
Fishing Moratorium Protection Act (16 U.S.C. 1826i), as
amended by section 302(a) of this Act, is further amended by
adding at the end thereof the following:
``(c) Vessels and Vessel Owners Engaged in Illegal,
Unreported, or Unregulated Fishing.--The Secretary may--
``(1) develop, maintain, and make public a list of vessels
and vessel owners engaged in illegal, unreported, or
unregulated fishing, including vessels or vessel owners
identified by an international fishery management
organization or arrangement made pursuant to an international
fishery agreement, whether or not the United States is a
party to such organization or arrangement;
``(2) take appropriate action against listed vessels and
vessel owners, including action against fish, fish parts, or
fish products from such vessels, in accordance with
applicable United States law and consistent with applicable
international law, including principles, rights, and
obligations established in applicable international fishery
management and trade agreements; and
``(3) provide notification to the public of vessels and
vessel owners identified by international fishery management
organizations or arrangements made pursuant to an
international fishery agreement as having been engaged in
illegal, unreported, or unregulated fishing, as well as any
measures adopted by such organizations or arrangements to
address illegal, unreported, or unregulated fishing.
``(d) Restrictions on Port Access or Use.--Action taken by
the Secretary under subsection (c)(2) that includes measures
to restrict use of or access to ports or port services shall
apply to all ports of the United States and its territories.
``(e) Regulations.--The Secretary may promulgate
regulations to implement subsections (c) and (d).''.
(b) Additional Measures.--
(1) Amendment of the high seas driftnet fishing moratorium
protection act.--
(A) Section 609(d)(3) of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826j(d)(3)) is amended
by striking ``that has not been certified by the Secretary
under this subsection, or'' in subparagraph (A)(i).
(B) Section 610(c)(5) of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826k(c)(5)) is amended
by striking ``that has not been certified by the Secretary
under this subsection, or''.
(2) Amendment of the high seas driftnet fisheries
enforcement act.--
(A) Section 101 of the High Seas Driftnet Fisheries
Enforcement Act (16 U.S.C. 1826a) is amended--
(i) by striking subsection (a)(2) and inserting the
following:
``(2) Denial of port privileges.--The Secretary of the
Treasury shall, in accordance with recognized principles of
international law--
``(A) withhold or revoke the clearance required by section
60105 of title 46, United States Code, for--
``(i) any large-scale driftnet fishing vessel that is
documented under the law of the United States or of a nation
included on a list published under paragraph (1); or
``(ii) any fishing vessel of a nation that receives a
negative certification under section 609(d) or 610(c) of the
High Seas Driftnet Fishing Moratorium Protection Act (16
U.S.C. 1826j(d) or 1826k(c)); and
``(B) deny entry of that vessel to any place in the United
States and to the navigable waters of the United States,
except for the purpose of inspecting the vessel, conducting
an investigation, or taking other appropriate enforcement
action.'';
(ii) by striking ``or illegal, unreported, or unregulated
fishing'' each place it appears in subsection (b)(1) and (2);
(iii) by striking ``or'' after the semicolon in subsection
(b)(3)(A)(i);
(iv) by striking ``nation.'' in subsection (b)(3)(A)(ii)
and inserting ``nation; or'';
(v) by adding at the end of subsection (b)(3)(A) the
following:
``(iii) upon receipt of notification of a negative
certification under section 609(d)(1) or 610(c)(1) of the
High Seas Driftnet Fishing Moratorium Protection Act (16
U.S.C. 1826j(d)(1) or 1826k(c)(1)).'';
(vi) by inserting ``or after issuing a negative
certification under section 609(d)(1) or 610(c)(1) of the
High Seas Driftnet Fishing Moratorium Protection Act (16
U.S.C. 1826j(d)(1) or 1826k(c)(1),'' after ``paragraph (1),''
in subsection (b)(4)(A); and
(vii) by striking subsection (b)(4)(A)(i) and inserting the
following:
``(i) any prohibition established under paragraph (3) is
insufficient to cause that nation--
``(I) to terminate large-scale driftnet fishing conducted
by its nationals and vessels beyond the exclusive economic
zone of any nation;
``(II) to address illegal, unreported, or unregulated
fishing activities for which a nation has been identified
under section 609 of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826j); or
``(III) to address bycatch of a protected living marine
resource for which a nation has been identified under section
610 of such Act (16 U.S.C. 1826k); or''.
(B) Section 102 of the High Seas Driftnet Fisheries
Enforcement Act (16 U.S.C. 1826b) is amended by striking
``such nation has terminated large-scale driftnet fishing or
illegal, unreported, or unregulated fishing by its nationals
and vessels beyond the exclusive economic zone of any
nation.'' and inserting ``such nation has--
``(1) terminated large-scale driftnet fishing by its
nationals and vessels beyond the exclusive economic zone of
any nation;
``(2) addressed illegal, unreported, or unregulated fishing
activities for which a nation has been identified under
section 609 of the High Seas Driftnet Fishing Moratorium
Protection Act (16 U.S.C. 1826j); or
``(3) addressed bycatch of a protected living marine
resource for which a nation has been identified under section
610 of that Act (16 U.S.C. 1826k).''.
SEC. 104. LIABILITY.
Any claims arising from the actions of any officer,
authorized by the Secretary to enforce the provisions of this
Act or any Act to which this Act applies, taken pursuant to
any scheme for at-sea boarding and inspection authorized
under any international agreement to which the United States
is a party may be pursued under chapter 171 of title 28,
United States Code, or such other legal authority as may be
pertinent.
TITLE II--LAW ENFORCEMENT AND INTERNATIONAL OPERATIONS.
SEC. 201. INTERNATIONAL FISHERIES ENFORCEMENT PROGRAM.
(a) Establishment.--
(1) In general.--Within 12 months after the date of the
enactment of this Act, the Secretary shall, subject to the
availability of appropriations, establish an International
Fisheries Enforcement Program within the Office of Law
Enforcement of the National Marine Fisheries Service.
(2) Purpose.--The Program shall be an interagency program
established and administered by the Secretary in coordination
with the heads of other departments and agencies for the
purpose of detecting and investigating illegal, unreported,
or unregulated fishing activity and enforcing the provisions
of this Act.
(3) Staff.--The Program shall be staffed with
representation from the Coast Guard, Customs and Border
Protection, the Food and Drug Administration, and any other
department or agency determined by the Secretary to be
appropriate and necessary to detect and investigate illegal,
unreported, or unregulated fishing activity and enforce the
provisions of this Act.
(b) Program Actions.--
(1) Staffing and other resources.--At the request of the
Secretary, the heads of other departments and agencies
providing staff for the Program shall--
(A) by agreement, on a reimbursable basis or otherwise,
participate in staffing the Program;
(B) by agreement, on a reimbursable basis or otherwise,
share personnel, services, equipment (including aircraft and
vessels), and facilities with the Program; and
(C) to the extent possible, and consistent with other
applicable law, extend the enforcement authorities provided
by their enabling legislation to the other departments and
agencies participating in the Program for the purposes of
conducting joint operations to detect and investigate
illegal, unreported or unregulated fishing activity and
enforcing the provisions of this Act.
(2) Budget.--The Secretary and the heads of other
departments and agencies providing staff for the Program,
may, at their discretion, develop interagency plans and
budgets and engage in interagency financing for such
purposes.
(3) 5-year plan.--Within 180 days after the date on which
the Program is established under subsection (a), the
Secretary shall develop a 5-year strategic plan for guiding
interagency and intergovernmental international fisheries
enforcement efforts to carry out the provisions of this Act.
The Secretary shall update the plan periodically as
necessary, but at least once every 5 years.
(4) Cooperative activities.--The Secretary, in coordination
with the heads of other departments and agencies providing
staff for the Program, may--
(A) create and participate in task forces, committees, or
other working groups with other Federal, State or local
governments as well as with the governments of other nations
for the purposes of detecting and investigating illegal,
unreported, or unregulated fishing activity and carrying out
the provisions of this Act; and
[[Page S169]]
(B) enter into agreements with other Federal, State, or
local governments as well as with the governments of other
nations, on a reimbursable basis or otherwise, for such
purposes.
(c) Powers of Authorized Officers.--Notwithstanding any
other provision of law, while operating under an agreement
with the Secretary entered into under section 101 of this
Act, and conducting joint operations as part of the Program
for the purposes of detecting and investigating illegal,
unreported or unregulated fishing activity and enforcing the
provisions of this Act, authorized officers shall have the
powers and authority provided in that section.
(d) Information collection, maintenance and use.--
(1) In general.--The Secretary and the heads of other
departments and agencies providing staff for the Program
shall, to the maximum extent allowable by law, share all
applicable information, intelligence and data, related to the
harvest, transportation or trade of fish and fish product in
order to detect and investigate illegal, unreported, or
unregulated fishing activity and to carry out the provisions
of this Act.
(2) Coordination of data.--The Secretary, through the
Program, shall coordinate the collection, storage, analysis,
and dissemination of all applicable information,
intelligence, and data related to the harvest,
transportation, or trade of fish and fish product collected
or maintained by the member agencies of the Program.
(3) Confidentiality.--The Secretary, through the Program,
shall ensure the protection and confidentiality required by
law for information, intelligence, and data related to the
harvest, transportation, or trade of fish and fish product
obtained by the Program.
(4) Data standardization.--The Secretary and the heads of
other departments and agencies providing staff for the
Program shall, to the maximum extent practicable, develop
data standardization for fisheries related data for Program
agencies and with international fisheries enforcement
databases as appropriate.
(5) Assistance from intelligence community.--Upon request
of the Secretary, elements of the intelligence community (as
defined in section 3(4) of the National Security Act of 1947
(50 U.S.C. 401a(4))) shall collect information related to
illegal, unreported, or unregulated fishing activity outside
the United States about individuals who are not United States
persons (as defined in section 105A(c)(2) of such Act (50
U.S.C. 403-5a(c)(2))). Such elements of the intelligence
community shall collect and share such information with the
Secretary through the Program for law enforcement purposes in
order to detect and investigate illegal, unreported, or
unregulated fishing activities and to carry out the
provisions of this Act. All collection and sharing of
information shall be in accordance with the National Security
Act of 1947 (50 U.S.C. 401 et seq.).
(6) Information sharing.--The Secretary, through the
Program, shall have authority to share fisheries-related data
with other Federal or State government agency, foreign
government, the Food and Agriculture Organization of the
United Nations, or the secretariat or equivalent of an
international fisheries management organization or
arrangement made pursuant to an international fishery
agreement, if--
(A) such governments, organizations, or arrangements have
policies and procedures to safeguard such information from
unintended or unauthorized disclosure; and
(B) the exchange of information is necessary--
(i) to ensure compliance with any law or regulation
enforced or administered by the Secretary;
(ii) to administer or enforce treaties to which the United
States is a party;
(iii) to administer or enforce binding conservation
measures adopted by any international organization or
arrangement to which the United States is a party;
(iv) to assist in investigative, judicial, or
administrative enforcement proceedings in the United States;
or
(v) to assist in any fisheries or living marine resource
related law enforcement action undertaken by a law
enforcement agency of a foreign government, or in relation to
a legal proceeding undertaken by a foreign government.
(e) Authorization of Appropriations.--There are authorized
to be appropriated $30,000,000 to the Secretary for each of
fiscal years 2012 through 2017 to carry out this section.
SEC. 202. INTERNATIONAL COOPERATION AND ASSISTANCE PROGRAM.
(a) International Cooperation and Assistance Program.--The
Secretary may establish an international cooperation and
assistance program, including grants, to provide assistance
for international capacity building efforts.
(b) Authorized Activities.--In carrying out the program,
the Secretary may--
(1) provide funding and technical expertise to other
nations to assist them in addressing illegal, unreported, or
unregulated fishing activities;
(2) provide funding and technical expertise to other
nations to assist them in reducing the loss and environmental
impacts of derelict fishing gears, reducing the bycatch of
living marine resources, and promoting international marine
resource conservation;
(3) provide funding, technical expertise, and training, in
cooperation with the International Fisheries Enforcement
Program under section 201 of this Act, to other nations to
aid them in building capacity for enhanced fisheries
management, fisheries monitoring, catch and trade tracking
activities, enforcement, and international marine resource
conservation;
(4) establish partnerships with other Federal agencies, as
appropriate, to ensure that fisheries development assistance
to other nations is directed toward projects that promote
sustainable fisheries; and
(5) conduct outreach and education efforts in order to
promote public and private sector awareness of international
fisheries sustainability issues, including the need to combat
illegal, unreported, or unregulated fishing activity and to
promote international marine resource conservation.
(c) Guidelines.--The Secretary may establish guidelines
necessary to implement the program.
(d) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary $5,000,000 for each of
fiscal years 2012 through 2017 to carry out this section. -
TITLE III--MISCELLANEOUS AMENDMENTS
SEC. 301. ATLANTIC TUNAS CONVENTION ACT OF 1975.
(a) Elimination of Annual Report.--Section 11 of the
Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971j) is
repealed.
(b) Certain Regulations.--Section 971d(c)(2) of the
Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971d(c)(2))
is amended--
(1) by inserting ``(A)'' after ``(2)'';
(2) by striking ``(A) submission'' and inserting ``the
presentation'';
(3) by striking ``arguments, and (B) oral presentation at a
public hearing. Such'' and inserting ``written or oral
statements at a public hearing. After consideration of such
presentations, the ''; and
(4) by adding at the end thereof the following:
``(B) The Secretary may issue final regulations to
implement Commission recommendations referred to in paragraph
(1) of this subsection concerning trade restrictive measures
against nations or fishing entities without regard to the
requirements of subparagraph (A) of this paragraph and
subsections (b) and (c) of section 553 of title 5, United
States Code.''.
SEC. 302. DATA SHARING.
(a) High Seas Driftnet Fishing Moratorium Protection Act.--
Section 608 of the High Seas Driftnet Fishing Moratorium
Protection Act (16 U.S.C. 1826i) is amended--
(1) by inserting ``(a) In General.--'' before ``The
Secretary,'';
(2) by striking ``organizations'' the first place it
appears and inserting, ``organizations, or arrangements made
pursuant to an international fishery agreement (as defined in
section 3(24) of the Magnuson-Stevens Fishery Conservation
and Management Act),'';
(3) by striking ``and'' after the semicolon in paragraph
(2)(C);
(4) by striking ``territories.'' in paragraph (3) and
inserting ``territories; and''; and
(5) by adding at the end thereof the following:
``(4) urging other nations, through the regional fishery
management organizations of which the United States is a
member, bilaterally and otherwise to seek and foster the
sharing of accurate, relevant, and timely information--
``(A) to improve the scientific understanding of marine
ecosystems;
``(B) to improve fisheries management decisions;
``(C) to promote the conservation of protected living
marine resources;
``(D) to combat illegal, unreported, and unregulated
fishing; and
``(E) to improve compliance with conservation and
management measures in international waters.
``(b) Information Sharing.--In carrying out this section,
the Secretary may disclose, as necessary and appropriate,
information to the Food and Agriculture Organization of the
United Nations, international fishery management
organizations (as so defined), or arrangements made pursuant
to an international fishery agreement, if such organizations
or arrangements have policies and procedures to safeguard
such information from unintended or unauthorized
disclosure.''.
(b) Conforming Amendment.--Section 402(b)(1) of the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1881a(b)(1)) is amended--
(1) by striking ``or'' after the semicolon in subparagraph
(G);
(2) by redesignating subparagraph (H) as subparagraph (J);
and
(3) by inserting after subparagraph (G) the following:
``(H) to the Food and Agriculture Organization of the
United Nations, international fishery management
organizations, or arrangements made pursuant to an
international fishery agreement as provided for in the High
Seas Driftnet Fishing Moratorium Protection Act (16 U.S.C.
1826i(b));
``(I) to any other Federal or State government agency,
foreign government, the Food and Agriculture Organization of
the United Nations, or the secretariat or equivalent of an
international fisheries management organization or
arrangement made pursuant to an international fishery
agreement, as provided in section 201(d)(6) of the
International
[[Page S170]]
Fisheries Stewardship and Enforcement Act; or''.
SEC. 303. PERMITS UNDER THE HIGH SEAS FISHING COMPLIANCE ACT
OF 1995.
Section 104(f) of the High Seas Fishing Compliance Act (16
U.S.C. 5503(f)) is amended to read as follows:
``(f) Validity.--A permit issued under this section is void
if--
``(1) 1 or more permits or authorizations required for a
vessel to fish, in addition to a permit issued under this
section, expire, are revoked, or are suspended; or
``(2) the vessel is no longer eligible for United States
documentation, such documentation is revoked or denied, or
the vessel is deleted from such documentation.''.
SEC. 304. COMMITTEE ON SCIENTIFIC COOPERATION FOR PACIFIC
SALMON AGREEMENT.
Section 11 of the Pacific Salmon Treaty Act of 1985 (16
U.S.C. 3640) is amended by redesignating subsections (c) and
(d) as subsections (d) and (e), respectively, and inserting
after subsection (b) the following:
``(c) Scientific Cooperation Committee.--Members of the
Committee on Scientific Cooperation who are not State or
Federal employees shall receive compensation at a rate
equivalent to the rate payable for level IV of the Executive
Schedule under section 5315 of title 5, United States Code,
when engaged in actual performance of duties for the
Commission.''.
SEC. 305. REAUTHORIZATIONS.
(a) International Dolphin Conservation Program.--Section
304(c)(1) of the Marine Mammal Protection Act (16 U.S.C.
1414a(c)(1)) is amended by adding at the end thereof the
following:
``(E) $1,000,000 for each of fiscal years 2009 through
2013.''.
(b) Pacific Salmon Treaty Act of 1985.--Section 16(d)(2)(A)
of the Pacific Salmon Treaty Act of 1985 (16 U.S.C.
3645(d)(2)(A)) is amended by striking ``and 2009,'' and
inserting ``2009, 2010, 2011, 2012, and 2013,''.
(c) South Pacific Tuna Act of 1988.--Section 20(a) of the
South Pacific Tuna Act of 1988 (16 U.S.C. 973r(a)) is amended
by striking ``1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999,
2000, 2001, and 2002,'' each place it appears and inserting
``2009 through 2013''.
TITLE IV--IMPLEMENTATION OF THE ANTIGUA CONVENTION
SEC. 401. SHORT TITLE.
This title may be cited as the ``Antigua Convention
Implementing Act of 2011''.
SEC. 402. AMENDMENT OF THE TUNA CONVENTIONS ACT OF 1950.
Except as otherwise expressly provided, whenever in this
title an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the
reference shall be considered to be made to a section or
other provision of the Tuna Conventions Act of 1950 (16
U.S.C. 951 et seq.).
SEC. 403. DEFINITIONS.
Section 2 (16 U.S.C. 951) is amended to read as follows:
``SEC. 2. DEFINITIONS.
``In this Act:
``(1) Antigua convention.--The term `Antigua Convention'
means the Convention for the Strengthening of the Inter-
American Tropical Tuna Commission Established by the 1949
Convention Between the United States of America and the
Republic of Costa Rica, signed at Washington, November 14,
2003.
``(2) Commission.--The term `Commission' means the Inter-
American Tropical Tuna Commission provided for by the
Convention.
``(3) Convention.--The term `Convention' means--
``(A) the Convention for the Establishment of an Inter-
American Tropical Tuna Commission, signed at Washington, May
31, 1949, by the United States of America and the Republic of
Costa Rica;
``(B) the Antigua Convention, upon its entry into force for
the United States, and any amendments thereto that are in
force for the United States; or
``(C) both such Conventions, as the context requires.
``(4) Import.--The term `import' means to land on, bring
into, or introduce into, or attempt to land on, bring into,
or introduce into, any place subject to the jurisdiction of
the United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of
the customs laws of the United States.
``(5) Person.--The term `person' means an individual,
partnership, corporation, or association subject to the
jurisdiction of the United States.
``(6) United states.--The term `United States' includes all
areas under the sovereignty of the United States.
``(7) U.S. commissioners.--The term `U.S. commissioners'
means the members of the commission.
``(8) U.S. section.--The term `U.S. section' means the U.S.
Commissioners to the Commission and a designee of the
Secretary of State.''.
SEC. 404. COMMISSIONERS; NUMBER, APPOINTMENT, AND
QUALIFICATIONS.
Section 3 (16 U.S.C. 952) is amended to read as follows:
``SEC. 3. COMMISSIONERS.
``(a) Commissoners.--The United States shall be represented
on the Commission by 5 United States Commissioners. The
President shall appoint individuals to serve on the
Commission at the pleasure of the President. In making the
appointments, the President shall select Commissioners from
among individuals who are knowledgeable or experienced
concerning highly migratory fish stocks in the eastern
tropical Pacific Ocean, one of whom shall be an officer or
employee of the Department of Commerce, one of whom shall be
the chairman or a member of the Western Pacific Fishery
Management Council, and one of whom shall be the chairman or
a member of the Pacific Fishery Management Council. Not more
than 2 Commissioners may be appointed who reside in a State
other than a State whose vessels maintain a substantial
fishery in the area of the Convention.
``(b) Alternate Commissioners.--The Secretary of State, in
consultation with the Secretary, may designate from time to
time and for periods of time deemed appropriate Alternate
United States Commissioners to the Commission. Any Alternate
United States Commissioner may exercise, at any meeting of
the Commission or of the General Advisory Committee or
Scientific Advisory Subcommittee established pursuant to
section 4(b), all powers and duties of a United States
Commissioner in the absence of any Commissioner appointed
pursuant to subsection (a) of this section for whatever
reason. The number of such Alternate United States
Commissioners that may be designated for any such meeting
shall be limited to the number of United States Commissioners
appointed pursuant to subsection (a) of this section who will
not be present at such meeting.
``(c) Administrative Matters.--
``(1) Employment status.--Individuals serving as such
Commissioners, other than officers or employees of the United
States Government, shall not be considered Federal employees
except for the purposes of injury compensation or tort claims
liability as provided in chapter 81 of title 5, United States
Code, and chapter 171 of title 28, United States Code.
``(2) Compensation.--The United States Commissioners or
Alternate Commissioners, although officers of the United
States while so serving, shall receive no compensation for
their services as such Commissioners or Alternate
Commissioners.
``(3) Travel expenses.--
``(A) The Secretary of State shall pay the necessary travel
expenses of United States Commissioners and Alternate United
States Commissioners to meetings of the IATTC and other
meetings the Secretary deems necessary to fulfill their
duties, in accordance with the Federal Travel Regulations and
sections 5701, 5702, 5704 through 5708, and 5731 of title 5,
United States Code.
``(B) The Secretary may reimburse the Secretary of State
for amounts expended by the Secretary of State under this
subsection.''.
SEC. 405. GENERAL ADVISORY COMMITTEE AND SCIENTIFIC ADVISORY
SUBCOMMITTEE.
Section 4 (16 U.S.C. 953) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) General Advisory Committee.--
``(1) Appointments; public participation; compensation.--
``(A) The Secretary, in consultation with the Secretary of
State, shall appoint a General Advisory Committee which shall
consist of not more than 25 individuals who shall be
representative of the various groups concerned with the
fisheries covered by the Convention, including
nongovernmental conservation organizations, providing to the
maximum extent practicable an equitable balance among such
groups. Members of the General Advisory Committee will be
eligible to participate as members of the U.S. delegation to
the Commission and its working groups to the extent the
Commission rules and space for delegations allow.
``(B) The chair of the Pacific Fishery Management Council's
Advisory Subpanel for Highly Migratory Fisheries and the
chair of the Western Pacific Fishery Management Council's
Advisory Committee shall be members of the General Advisory
Committee by virtue of their positions in those Councils;
``(C) Each member of the General Advisory Committee
appointed under subparagraph (A) shall serve for a term of 3
years and is eligible for reappointment.
``(D) The General Advisory Committee shall be invited to
attend all non-executive meetings of the United States
Section and at such meetings shall be given opportunity to
examine and to be heard on all proposed programs of
investigation, reports, recommendations, and regulations of
the Commission.
``(E) The General Advisory Committee shall determine its
organization, and prescribe its practices and procedures for
carrying out its functions under this chapter, the Magnuson-
Stevens Fishery Conservation and Management Act (16 U.S.C.
1801 et seq.), and the Convention. The General Advisory
Committee shall publish and make available to the public a
statement of its organization, practices and procedures.
Meetings of the General Advisory Committee, except when in
executive session, shall be open to the public, and prior
notice of meetings shall be made public in timely fashion.
The General Advisory Committee shall not be subject to the
Federal Advisory Committee Act (5 U.S.C. App.).
``(2) Information sharing.--The Secretary and the Secretary
of State shall furnish the General Advisory Committee with
relevant information concerning fisheries and international
fishery agreements.
``(3) Administrative matters.--
[[Page S171]]
``(A) The Secretary shall provide to the General Advisory
Committee in a timely manner such administrative and
technical support services as are necessary for its effective
functioning.
``(B) Individuals appointed to serve as a member of the
General Advisory Committee--
``(i) shall serve without pay, but while away from their
homes or regular places of business to attend meetings of the
General Advisory Committee shall be allowed travel expenses,
including per diem in lieu of subsistence, in the same manner
as persons employed intermittently in the Government service
are allowed expenses under section 5703 of title 5, United
States Code; and
``(ii) shall not be considered Federal employees except for
the purposes of injury compensation or tort claims liability
as provided in chapter 81 of title 5, United States Code, and
chapter 171 of title 28, United States Code.''; and
(2) by striking so much of subsection (b) as precedes
paragraph (2) and inserting the following:
``(b) Scientific Advisory Committee.--(1) The Secretary, in
consultation with the Secretary of State, shall appoint a
Scientific Advisory Subcommittee of not less than 5 nor more
than 15 qualified scientists with balanced representation
from the public and private sectors, including
nongovernmental conservation organizations.''.
SEC. 406. RULEMAKING.
Section 6 (16 U.S.C. 955) is amended--
(1) by striking the section caption and inserting the
following:
``SEC. 6. RULEMAKING.'' ; and
(2) by striking subsections (a) and (b) and inserting the
following:
``(a) Regulations.--The Secretary, in consultation with the
Secretary of State and, with respect to enforcement measures,
the Secretary of the Department in which the Coast Guard is
operating, may promulgate such regulations as may be
necessary to carry out the United States international
obligations under the Convention and this Act, including
recommendations and decisions adopted by the Commission. In
cases where the Secretary has discretion in the
implementation of one or more measures adopted by the
Commission that would govern fisheries under the authority of
a Regional Fishery Management Council, the Secretary may, to
the extent practicable within the implementation schedule of
the Convention and any recommendations and decisions adopted
by the Commission, promulgate such regulations in accordance
with the procedures established by the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1801 et
seq.).
``(b) Jurisdiction.--The Secretary may promulgate
regulations applicable to all vessels and persons subject to
the jurisdiction of the United States, including United
States flag vessels wherever they may be operating, on such
date as the Secretary shall prescribe.''.
SEC. 407. PROHIBITED ACTS.
Section 8 (16 U.S.C. 957) is amended to read as follows:
``SEC. 8. PROHIBITED ACTS.
``It is unlawful for any person--
``(1) to violate any provision of this chapter or any
regulation or permit issued pursuant to this Act;
``(2) to use any fishing vessel to engage in fishing after
the revocation, or during the period of suspension, of an
applicable permit issued pursuant to this Act;
``(3) to refuse to permit any officer authorized to enforce
the provisions of this Act (as provided for in section 10) to
board a fishing vessel subject to such person's control for
the purposes of conducting any search, investigation or
inspection in connection with the enforcement of this Act or
any regulation, permit, or the Convention;
``(4) to forcibly assault, resist, oppose, impede,
intimidate, sexually harass, bribe, or interfere with any
such authorized officer in the conduct of any search,
investigations or inspection in connection with the
enforcement of this Act or any regulation, permit, or the
Convention;
``(5) to resist a lawful arrest for any act prohibited by
this Act;
``(6) to ship, transport, offer for sale, sell, purchase,
import, export, or have custody, control, or possession of,
any fish taken or retained in violation of this Act or any
regulation, permit, or agreement referred to in paragraph (1)
or (2);
``(7) to interfere with, delay, or prevent, by any means,
the apprehension or arrest of another person, knowing that
such other person has committed any act prohibited by this
section;
``(8) to knowingly and willfully submit to the Secretary
false information regarding any matter that the Secretary is
considering in the course of carrying out this Act;
``(9) to forcibly assault, resist, oppose, impede,
intimidate, sexually harass, bribe, or interfere with any
observer on a vessel under this Act, or any data collector
employed by the National Marine Fisheries Service or under
contract to any person to carry out responsibilities under
this Act;
``(10) to engage in fishing in violation of any regulation
adopted pursuant to section 6(c) of this Act;
``(11) to ship, transport, purchase, sell, offer for sale,
import, export, or have in custody, possession, or control
any fish taken or retained in violation of such regulations;
``(12) to fail to make, keep, or furnish any catch returns,
statistical records, or other reports as are required by
regulations adopted pursuant to this Act to be made, kept, or
furnished;
``(13) to fail to stop a vessel upon being hailed and
instructed to stop by a duly authorized official of the
United States;
``(14) to import, in violation of any regulation adopted
pursuant to section 6(c) of this Act, any fish in any form of
those species subject to regulation pursuant to a
recommendation, resolution, or decision of the Commission, or
any tuna in any form not under regulation but under
investigation by the Commission, during the period such fish
have been denied entry in accordance with the provisions of
section 6(c) of this Act, unless such person provides such
proof as the Secretary of Commerce may require that a fish
described in this paragraph offered for entry into the United
States is not ineligible for such entry under the terms of
section 6(c) of this Act.''.
SEC. 408. ENFORCEMENT.
Section 10 (16 U.S.C. 959) is amended to read as follows:
``SEC. 10. ENFORCEMENT.
``This Act shall be enforced under section 101 of the
International Fisheries Stewardship and Enforcement Act.''.
SEC. 409. REDUCTION OF BYCATCH.
Section 15 (16 U.S.C. 962) is amended by striking
``vessel'' and inserting ``vessels''.
SEC. 410. REPEAL OF EASTERN PACIFIC TUNA LICENSING ACT OF
1984.
The Eastern Pacific Tuna Licensing Act of 1984 (16 U.S.C.
972 et seq.) is repealed.
______
By Mr. INOUYE:
S. 57. A bill to amend the Internal Revenue Code of 1986 to modify
the application of the tonnage tax on certain vessels; to the Committee
on Finance.
Mr. INOUYE. Mr. President, foreign registered ships now carry 97
percent of the imports and exports moving in United States
international trade. These foreign vessels are held to lower standards
than United States registered ships, and are virtually untaxed. Their
costs of operation are, therefore, lower than United States ship
operating costs, which explains their 97 percent market share.
Seven years ago, in order to help level the playing field for United
States-flag ships that compete in international trade, Congress
enacted, under the American Jobs Creation Act of 2004, Public Law 108-
357, Subchapter R, a ``tonnage tax'' that is based on the tonnage of a
vessel, rather than taxing international income at a 35 percent
corporate income tax rate. However, during the House and Senate
conference, language was included, which states that a United States
vessel cannot use the tonnage tax on international income if that
vessel also operates in United States domestic commerce for more than
30 days per year.
This 30-day limitation dramatically limits the availability of the
tonnage tax for those United States ships that operate in both domestic
and international trade and, accordingly, severely hinders their
competitiveness in foreign commerce. It is important to recognize that
ships operating in United States domestic trade already have
significant cost disadvantages. Specifically, they are built in higher
priced United States shipyards; do not receive Maritime Security
Payments, even when operated in international trade; and are owned by
United States-based American corporations. The inability of these
domestic operators to use the tonnage tax for their international
service is a further, unnecessary burden on their competitive position
in foreign commerce.
When windows of opportunity present themselves in international
trade, American tax policy and maritime policy should facilitate the
participation of these American-built ships. Instead, the 30-day limit
makes them ineligible to use the tonnage tax, and further handicaps
American vessels when competing for international cargo. Denying the
tonnage tax to coastwise qualified ships further stymies the operation
of American built ships in international commerce, and further
exacerbates America's 97 percent reliance on foreign ships to carry its
international cargo.
These concerns were of sufficient importance that in December 2006
Congress repealed the 30-day limit on domestic trading--but only for
approximately 50 ships operating in the Great Lakes. These ships
primarily operate in domestic trade on the Great Lakes, but also carry
cargo between the United States and Canada in international trade,
Section 415 of P.L. 109-432, the Tax Relief and Health Care Act of
2006.
The identifiable universe of remaining ships other than the Great
Lakes
[[Page S172]]
ships that operate in domestic trade, but that may also operate
temporarily in international trade, totals 13 United States flag
vessels. These 13 ships normally operate in domestic trades that
involve Washington, Oregon, California, Hawaii, Alaska, Florida,
Mississippi, and Louisiana. In the interest of providing tax equity to
the United States corporations that own and operate these 13 vessels,
my bill would repeal the tonnage tax 30-day limit on domestic
operations and enable these vessels to utilize the tonnage tax on their
international income so they receive the same treatment as other United
States flag international operations. I stress that, under my bill,
these ships will continue to pay the normal 35 percent United States
corporate tax rate on their domestic income.
Repeal of the tonnage tax's 30-day limit on domestic operations is a
necessary step toward providing tax equity between United States flag
and foreign flag vessels. I strongly urge the tax writing committees of
the U.S. Congress to give this legislation their expedited
consideration and approval.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 57
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. MODIFICATION OF THE APPLICATION OF THE TONNAGE TAX
ON VESSELS OPERATING IN THE DUAL UNITED STATES
DOMESTIC AND FOREIGN TRADES.
(a) In General.--Subsection (f) of section 1355 of the
Internal Revenue Code of 1986 (relating to definitions and
special rules) is amended to read as follows:
``(f) Effect of Operating a Qualifying Vessel in the Dual
United States Domestic and Foreign Trades.--For purposes of
this subchapter--
``(1) an electing corporation shall be treated as
continuing to use a qualifying vessel in the United States
foreign trade during any period of use in the United States
domestic trade, and
``(2) gross income from such United States domestic trade
shall not be excluded under section 1357(a), but shall not be
taken into account for purposes of section 1353(b)(1)(B) or
for purposes of section 1356 in connection with the
application of section 1357 or 1358.''.
(b) Regulatory Authority for Allocation of Credits, Income,
and Deductions.--Section 1358 of the Internal Revenue Code of
1986 (relating to allocation of credits, income, and
deductions) is amended--
(1) by striking ``in accordance with this subsection'' in
subsection (c) and inserting ``to the extent provided in such
regulations as may be prescribed by the Secretary'', and
(2) by adding at the end the following new subsection:
``(d) Regulations.--The Secretary shall prescribe
regulations consistent with the provisions of this subchapter
for the purpose of allocating gross income, deductions, and
credits between or among qualifying shipping activities and
other activities of a taxpayer.''.
(c) Conforming Amendments.--
(1) Section 1355(a)(4) of the Internal Revenue Code of 1986
is amended by striking ``exclusively''.
(2) Section 1355(b)(1)(B) of such Code is amended by
striking ``as a qualifying vessel'' and inserting ``in the
transportation of goods or passengers''.
(3) Section 1355 of such Code is amended--
(A) by striking subsection (g), and
(B) by redesignating subsection (h) as subsection (g).
(d) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after the date of the
enactment of this Act.
______
By Mr. INOUYE:
S. 59. A bill to treat certain hospital support organizations as
qualified organizations for purposes of determining acquisition
indebtedness; to the Committee on Finance.
Mr. INOUYE. Mr. President, the legislation I am reintroducing today
will extend to qualified teaching hospital support organizations the
existing debt-financed safe harbor rule. Congress enacted that rule to
support the public service activities of tax-exempt schools,
universities, pension funds, and consortia of such institutions. Our
teaching hospitals require similar support.
As a result, for-profit hospitals are moving from older areas to
affluent locations where residents can afford to pay for treatment.
These private hospitals typically have no mandate for community
service. In contrast, non-profit hospitals must fulfill a community
service requirement. They must stretch their resources to provide
increased charitable care, update their facilities, and maintain
skilled staffing resulting in closures of non-profit hospitals due to
this financial strain.
The problem is particularly severe for teaching hospitals. Non-profit
hospitals provide nearly all the postgraduate medical education in the
United States. Post-graduate medical instruction is by nature not
profitable. Instruction in the treatment of mental disorders and trauma
is especially costly.
Despite their financial problem, the Nation's non-profit hospitals
strive to deliver a very high level of service. A study in the December
2006 issue of Archives of International Medicine had surveyed
hospital's quality of care in four areas of treatment. It found that
non-profit hospitals consistently outperformed for-profit hospitals.
The study also found that teaching hospitals had a higher level of
performance in treatment and diagnosis, and that investments in
technology and staffing leads to better care. In addition, it
recommended that alternative payments and sources of payments be
considered to finance these improvements.
The success and financial constraints of non-profit teaching
hospitals is evident in work of the Queen's Health Systems in my State.
This 151-year-old organization maintains the largest, private,
nonprofit hospital in Hawaii. The Queen's Health Systems serve as the
primary clinical teaching facility for the University of Hawaii's
medical residency program in medicine, general surgery, orthopedic
surgery, pathology, psychiatry, and is a clinical teaching facility for
obstetrics-gynecology. It conducts educational and training programs
for nurses and allied health personnel. The Queen's Health Systems
operate the only trauma unit as well as the chief behavioral health
program in the State. It maintains clinics throughout Hawaii, health
programs, for Native Hawaiians, and a small hospital in the rural,
economically depressed island of Molokai. Furthermore, the Queen's
Health Systems annually provides millions of dollars in uncompensated
health services. To help pay for these community benefits, the Queen's
Health Systems, as other nonprofit teaching hospitals, relies
significantly on income from its endowment.
In the past, the Congress has allowed tax-exempt schools, colleges,
universities, and pension funds to invest their endowment in real
estate so as to better meet their financial needs. Under the tax code,
these organizations can incur debt for real estate investments without
triggering the tax on unrelated business activities.
If the Queen's Health Systems were part of a university, it could
borrow without incurring an unrelated business income tax. Not being
part of a university, however, a teaching hospital and its support
organization run into the tax code's debt financing prohibition. Non-
profit teaching hospitals have the same if not more pressing needs as
that of universities, schools, and pension trusts. The same safe harbor
rule should be extended to teaching hospitals.
My bill would allow the support organizations for qualified teaching
hospitals to engage in limited borrowing to enhance their endowment
income. The proposal for teaching hospitals is actually more restricted
than current law for schools, universities and pension trusts. Under
safeguards developed by the Joint Committee on Taxation staff, a
support organization for a teaching hospital cannot buy and develop
land on a commercial basis. The proposal is tied directly to the
organization endowment. The staff's revenue estimates show that the
provision with its general application will help a number of teaching
hospitals.
The U.S. Senate has several times before acted favorably on this
proposal. The Senate adopted a similar provision in H.R. 1836, the
Economic Growth and Tax Relief Act of 2001. The House conferees on that
bill, however, objected that the provision was unrelated to the bill's
focus on individual tax relief and the conference deleted the provision
from the final legislation. Subsequently, the Finance Committee
included the provision in H.R. 7, the CARE Act of 2002, and in S. 476,
the CARE Act of 2003, which the Senate passed. In a previous Congress'
S. 6, the
[[Page S173]]
Marriage, Opportunity, Relief, and Empowerment Act of 2005, which the
Senate leadership introduced, also included the proposal.
As the Senate Finance Committee's hearings show, substantial health
needs would go unmet if not for our charitable hospitals. It is time
for the Congress to assist the Nation's teaching hospitals in their
charitable, educational service.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 59
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TREATMENT OF CERTAIN HOSPITAL SUPPORT
ORGANIZATIONS AS QUALIFIED ORGANIZATIONS FOR
PURPOSES OF DETERMINING ACQUISITION
INDEBTEDNESS.
(a) In General.--Subparagraph (C) of section 514(c)(9) of
the Internal Revenue Code of 1986 (relating to real property
acquired by a qualified organization) is amended by striking
``or'' at the end of clause (iii), by striking the period at
the end of clause (iv) and inserting ``; or'', and by adding
at the end the following new clause:
``(v) a qualified hospital support organization (as defined
in subparagraph (I)).''.
(b) Qualified Hospital Support Organizations.--Paragraph
(9) of section 514(c) of the Internal Revenue Code of 1986 is
amended by adding at the end the following new subparagraph:
``(I) Qualified hospital support organizations.--For
purposes of subparagraph (C)(iv), the term `qualified
hospital support organization' means, with respect to any
eligible indebtedness (including any qualified refinancing of
such eligible indebtedness), a support organization (as
defined in section 509(a)(3)) which supports a hospital
described in section 119(d)(4)(B) and with respect to which--
``(i) more than half of its assets (by value) at any time
since its organization--
``(I) were acquired, directly or indirectly, by
testamentary gift or devise, and
``(II) consisted of real property, and
``(ii) the fair market value of the organization's real
estate acquired, directly or indirectly, by gift or devise,
exceeded 25 percent of the fair market value of all
investment assets held by the organization immediately prior
to the time that the eligible indebtedness was incurred.
For purposes of this subparagraph, the term `eligible
indebtedness' means indebtedness secured by real property
acquired by the organization, directly or indirectly, by gift
or devise, the proceeds of which are used exclusively to
acquire any leasehold interest in such real property or for
improvements on, or repairs to, such real property. A
determination under clauses (i) and (ii) of this subparagraph
shall be made each time such an eligible indebtedness (or the
qualified refinancing of such an eligible indebtedness) is
incurred. For purposes of this subparagraph, a refinancing of
such an eligible indebtedness shall be considered qualified
if such refinancing does not exceed the amount of the
refinanced eligible indebtedness immediately before the
refinancing.''.
(c) Effective Date.--The amendments made by this section
shall apply to indebtedness incurred on or after the date of
the enactment of this Act.
______
By Mr. INOUYE:
S. 60. A bill to provide relief to the Pottawatomi Nation in Canada
for settlement of certain claims against the United States; to the
Committee on the Judiciary.
Mr. INOUYE. Mr. President, nearly 16 years ago I stood before you to
introduce a bill ``to provide an opportunity for the Pottawatomi Nation
in Canada to have the merits of their claims against the United States
determined by the United States Court of Federal Claims.''
That bill was introduced as Senate Resolution 223, which referred the
Pottawatomi's claim to the Chief Judge of the U.S. Court of Federal
Claims and required the Chief Judge to report back to the Senate and
provide sufficient findings of fact and conclusions of law to enable
the Congress to determine whether the claim of the Pottawatomi Nation
in Canada is legal or equitable in nature, and the amount of damages,
if any, which may be legally or equitably due from the United States.
Over a decade ago, the Chief Judge of the Court of Federal Claims
reported back that the Pottawatomi Nation in Canada has a legitimate
and credible legal claim. Thereafter, by settlement stipulation, the
United States has taken the position that it would be ``fair, just and
equitable'' to settle the claims of the
ottawatomi Nation in Canada for the sum of $1,830,000. This
settlement amount was reached by the parties after seven years of
extensive, fact-intensive litigation. Independently, the court
concluded that the settlement amount is ``not a gratuity'' and that the
``settlement was predicated on a credible legal claim.'' Pottawatomi
Nation in Canada, et al. v. United States, Cong. Ref. 94-1037X at 28,
Ct. Fed. Cl., September 15, 2000, Report of Hearing Officer.
The bill I introduce today is to authorize the appropriation of those
funds that the United States has concluded would be ``fair, just and
equitable'' to satisfy this legal claim. If enacted, this bill will
finally achieve a measure of justice for a tribal nation that has for
far too long been denied.
For the information of our colleagues, this is the historical
background that informs the underlying legal claim of the Canadian
Pottawatomi.
The members of the Pottawatomi Nation in Canada are one of the
descendant groups--successors-in-interest--of the historical
Pottawatomi Nation and their claim originates in the latter part of the
18th century. The historical Pottawatomi Nation was aboriginal to the
United States. They occupied and possessed a vast expanse in what is
now the States of Ohio, Michigan, Indiana, Illinois, and Wisconsin.
From 1795 to 1833, the United States annexed most of the traditional
land of the Pottawatomi Nation through a series of treaties of
cession--many of these cessions were made under extreme duress and the
threat of military action. In exchange, the Pottawatomi were repeatedly
made promises that the remainder of their lands would be secure and, in
addition, that the United States would pay certain annuities to the
Pottawatomi.
In 1829, the United States formally adopted a Federal the policy of
removal; an effort to remove all Indian tribes from their traditional
lands east of the Mississippi River to the west. As part of that
effort, the government increasingly pressured the Pottawatomi to cede
the remainder of their traditional lands, some five million acres in
and around the city of Chicago, and remove their nation west. For
years, the Pottawatomi steadfastly refused to cede the remainder of
their tribal territory. Then in 1833, the United States, pressed by
settlers seeking more land, sent a Treaty Commission to the Pottawatomi
with orders to extract a cession of the remaining lands. The Treaty
Commissioners spent 2 weeks using extraordinarily coercive tactics--
including threats of war--in an attempt to get the Pottawatomi to agree
to cede their territory. Finally, those Pottawatomi who were present
relented and on September 26, 1933, they ceded their remaining tribal
estate through what would be known as the Treaty of Chicago. Seventy-
seven members of the Pottawatomi Nation signed the Treaty of Chicago.
Members of the ``Wisconsin Band'' were not present and did not assent
to the cession.
In exchange for their land, the Treaty of Chicago provided that the
United States would give to the Pottawatomi 5 million acres of
comparable land in what is now Missouri. The Pottawatomi were familiar
with the Missouri land, aware that it was similar to their homeland.
However, the Senate refused to ratify that negotiated agreement and
unilaterally switched the land to five million acres in Iowa. The
Treaty Commissioners were sent back to acquire Pottawatomi assent to
the Iowa land. All but seven of the original 77 signatories refused to
accept the change even with promises that if they were dissatisfied
``justice would be done.''
Nevertheless, the Treaty of Chicago was ratified as amended by the
Senate in 1834. Subsequently, the Pottawatomi sent a delegation to
evaluate the land in Iowa. The delegation reported back that the land
was ``not fit for snakes to live on.''
While some Pottawatomi moved westward, many of the Pottawatomi,
particularly the Wisconsin Band, whose leaders never agreed to the
Treaty, refused to do so. By 1836, the United States began to
forcefully remove Pottawatomi who remained in the east with devastating
consequences. As is true with many other American Indian tribes, the
forced removal westward came at great human cost. Many of the
Pottawatomi were forcefully removed
[[Page S174]]
by mercenaries who were paid on a per capita basis government contract.
Over one-half of the Indians removed by these means died en route.
Those who reached Iowa were almost immediately removed further to
inhospitable parts of Kansas against their will and without their
consent.
After learning of these conditions, many of the Pottawatomi,
including most of the Wisconsin Band, vigorously resisted forced
removal. To avoid Federal troops and mercenaries, much of the Wisconsin
Band ultimately found it necessary to flee to Canada. They were often
pursued to the border by government troops, government-paid mercenaries
or both. Official files of the Canadian and United States governments
disclose that many Pottawatomi were forced to leave their homes without
their horses or any of their possessions other than the clothes on
their backs.
By the late 1830s, the government refused payment of annuities to any
Pottawatomi groups that had not removed west. In the 1860s, members of
the Wisconsin Band--those still in their traditional territory and
those forced to flee to Canada--petitioned Congress for the payment of
their treaty annuities promised under the Treaty of Chicago and all
other cession treaties. By the Act of June 25, 1864, 13 Stat. 172,
Congress declared that the Wisconsin Band did not forfeit their
annuities by not removing and directed that the share of the
Pottawatomi Indians who had refused to relocate to the west should be
retained for their use in the United States Treasury. H.R. Rep. No.
470, 64th Cong., p. 5, as quoted on page 3 of memo dated October 7,
1949. Nevertheless, much of the money was never paid to the Wisconsin
Band.
In 1903, the Wisconsin Band--most of whom now resided in three areas,
the States of Michigan and Wisconsin and the Province of Ontario--
petitioned the Senate once again to pay them their fair portion of
annuities as required by the law and treaties, Sen. Doc. No. 185, 57th
Cong., 2d Sess. By the act of June 21, 1906, 34 Stat. 380, Congress
directed the Secretary of the Interior to investigate claims made by
the Wisconsin Band and establish a roll of the Wisconsin Band
Pottawatomi that still remained in the east. In addition, Congress
ordered the Secretary to determine ``the [Wisconsin Bands]
proportionate shares of the annuities, trust funds, and other moneys
paid to or expended for the tribe to which they belong in which the
claimant Indians have not shared, [and] the amount of such monies
retained in the Treasury of the United States to the credit of the
clamant Indians as directed the provision of the Act of June 25,
1864.''
In order to carry out the 1906 Act, the Secretary of Interior
directed Dr. W.M. Wooster to conduct an enumeration of Wisconsin Band
Pottawatomi in both the United States and Canada. Dr. Wooster
documented 2,007 Wisconsin Pottawatomi: 457 in Wisconsin and Michigan
and 1,550 in Canada. He also concluded that the proportionate share of
annuities for the Pottawatomi in Wisconsin and Michigan was $477,339
and that the proportionate share of annuities due the Pottawatomi
Nation in Canada was $1,517,226. Congress thereafter enacted a series
of appropriation Acts from June 30, 1913 to May 29, 1928 to satisfy
most of the money owed to those Wisconsin Band Pottawatomi residing in
the United States. However, the Wisconsin Band Pottawatomi who resided
in Canada were never paid their share of the tribal funds.
Since that time, the Pottawatomi Nation in Canada has diligently and
continuously sought to enforce their treaty rights, although until this
Congressional reference, they had never been provided their day in
court. In 1910, the United States and Great Britain entered into an
agreement for the purpose of dealing with claims between both
countries, including claims of Indian tribes within their respective
jurisdictions, by creating the Pecuniary Claims Tribunal. From 1910 to
1938, the Pottawatomi Nation in Canada diligently sought to have their
claim heard in this international forum. Overlooked for more pressing
international matters of the period, including the intervention of
World War I, the Pottawatomi then came to the U.S. Congress for redress
of their claim.
In 1946, the Congress waived its sovereign immunity and established
the Indian Claims Commission for the purpose of granting tribes their
long-delayed day in court. The Indian Claims Commission Act, ICCA,
granted the Commission jurisdiction over claims such as the type
involved here. In 1948, the Wisconsin Band Pottawatomi from both sides
of the border brought suit together in the Indian Claims Commission for
recovery of damages. Hannahville Indian Community v. U.S., No. 28 (Ind.
Cl. Comm. Filed May 4, 1948). Unfortunately, the Indian Claims
Commission dismissed Pottawatomi Nation in Canada's part of the claim
ruling that the Commission had no jurisdiction to consider claims of
Indians living outside territorial limits of the United States.
Hannahville Indian Community v. U.S., 115 Ct. Cl. 823, 1950. The claim
of the Wisconsin Band residing in the United States that was filed in
the Indian Claims Commission was finally decided in favor of the
Wisconsin Band by the U.S. Claims Court in 1983. Hannahville Indian
Community v. United States, 4 Ct. Cl. 445, 1983. The Court of Claims
concluded that the Wisconsin Band was owed a member's proportionate
share of unpaid annuities from 1838 through 1907 due under various
treaties, including the Treaty of Chicago and entered judgment for the
American Wisconsin Band Pottawatomi for any monies not paid. Still the
Pottawatomi Nation in Canada was excluded because of the jurisdictional
limits of the ICCA.
Undaunted, the Pottawatomi Nation in Canada came to the Senate, and
after careful consideration, we finally gave them their long-awaited
day in court through the Congressional reference process. The court has
now reported back to us that their claim is meritorious and that the
payment that this bill would make constitutes a ``fair, just and
equitable'' resolution to this claim.
The Pottawatomi Nation in Canada has sought justice for over 150
years. They have done all that we asked in order to establish their
claim. Now it is time for us to finally live up to the promise our
government made so many years ago. It will not correct all the wrongs
of the past, but it is a demonstration that this government is willing
to admit when it has left an unfulfilled obligation, and that the
United States is willing to do what we can to see that justice, so long
delayed, is not now denied.
Finally, I would just note that the claim of the Pottawatomi Nation
in Canada is supported through specific resolutions by the National
Congress of American Indians, the oldest, largest and most-
representative tribal organization here in the United States, the
Assembly of First Nations, which includes all recognized tribal
entities in Canada, and each and every of the Pottawatomi tribal groups
that remain in the United States today.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 60
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SETTLEMENT OF CERTAIN CLAIMS.
(a) Authorization for Payment.--Notwithstanding any other
provision of law, subject to subsection (b), the Secretary of
the Treasury shall pay to the Pottawatomi Nation in Canada
$1,830,000 from amounts appropriated under section 1304 of
title 31, United States Code.
(b) Payment in Accordance With Stipulation for
Recommendation of Settlement.--The payment under subsection
(a) shall--
(1) be made in accordance with the terms and conditions of
the Stipulation for Recommendation of Settlement dated May
22, 2000, entered into between the Pottawatomi Nation in
Canada and the United States (referred to in this section as
the ``Stipulation for Recommendation of Settlement''); and
(2) be included in the report of the Chief Judge of the
United States Court of Federal Claims regarding Congressional
Reference No. 94-1037X, submitted to the Senate on January 4,
2001, in accordance with sections 1492 and 2509 of title 28,
United States Code.
(c) Full Satisfaction of Claims.--The payment under
subsection (a) shall be in full satisfaction of all claims of
the Pottawatomi Nation in Canada against the United States
that are referred to or described in the Stipulation for
Recommendation of Settlement.
(d) Nonapplicability.--Notwithstanding any other provision
of law, the Indian Tribal Judgment Funds Use or Distribution
Act (25 U.S.C. 1401 et seq.) does not apply to the payment
under subsection (a).
______
By Mr. INOUYE (for himself, Ms. Murkowski, and Mr. Begich):
[[Page S175]]
S. 61. A bill to establish a Native American Economic Advisory
Council, and for other purposes; to the Committee on Indian Affairs.
Mr. INOUYE. Mr. President, I rise to introduce a bill that would
establish a Native American Economic Advisory Council. This Council's
primary duties would be to consult, coordinate, and make
recommendations to Federal agencies for the purpose of improving the
substandard economic conditions that exist in our Native communities.
Currently, there is no Council, and despite the Federal Government's
``trust'' relationship with Native American tribes, Native Americans
themselves continue to rank lowest in quality of life standings. As a
nation we need to preserve our Native communities as they are rich with
cultural significance and living history.
Native communities are considered ``emerging economies'' that have
stalled because of the current economic situation. This bill is an
attempt to keep these communities moving by educating, empowering, and
encouraging our future Native American leaders to create sustainable
economic growth programs in their own communities.
In Hawaii, the cost of living ranges from 30 percent to 60 percent
higher than the national average. We have to start planning for
economic stability in the future and this bill provides an opportunity
to do so. I look forward to working with my colleagues on reinvesting
in our Nation's future.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 61
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Native American Economic
Advisory Council Act of 2011''.
SEC. 2. FINDINGS.
Congress finds--
(1) the United States has a special political and legal
relationship and responsibility to promote the welfare of the
Native American people of the United States;
(2) evaluations of indicators and criteria of social well-
being, education, health, unemployment, housing, income,
rates of poverty, justice systems, and nutrition by agencies
of government and others have consistently found that Native
American communities rank below other groups of United States
citizens and many are at or near the bottom in those
evaluations;
(3) Native Americans, like other people in the United
States, have been hit hard by the deepest recession of the
United States economy in over 50 years, causing a significant
decline in employment and economic activity across the United
States;
(4) Native American communities have been described as
``emerging economies'' and consequently have been stalled in
the efforts of the communities to build sustainable growing
economies for the people of the communities and are being
adversely affected faster than the rest of the United States;
(5) economic stimulus programs to help Native American
communities generate jobs and stronger economic performance
will require United States financial and tax incentives to
increase both local and expanded investment that is tailored
to the unique needs and circumstances of Native American
communities;
(6) the impacts of the ongoing recession and the near
collapse of the financial and banking systems require a
review of assumptions about the future, the need for new
growth strategies, and a focus on laying the groundwork for
economic success in the 21st century;
(7) there is a continuing need for direct economic
stimulus, including needs for improving rural infrastructure
and alternative energy in rural and Native American
communities of the United States and providing Native
Americans leaders with the tools to create jobs and improve
economic conditions;
(8) in light of the role of Native American communities as
emerging markets within the United States, there are
opportunities and needs that should be addressed, including
consideration of United States support for the pooling of
resources to create an Indigenous Sovereign Wealth Fund that
is similar to those Funds created around the world to
diversify revenue streams, attract more resources, invest
more wisely, and create jobs;
(9) Native Americans should be participants when major
economic decisions are made that affect the property, lives,
and future of Native Americans; and
(10) Native Americans should fully participate in
rebuilding Native American communities and have necessary
tools and resources.
SEC. 3. PURPOSE.
The purpose of this Act is to authorize and establish a
Native American Economic Advisory Council to consult,
coordinate with, and make recommendations to the Executive
Office of the President, Cabinet officers, and Federal
agencies--
(1) to improve the focus, effectiveness, and delivery of
Federal economic aid and development programs to Native
Americans and, as a result, improve substandard economic
conditions in Native American communities;
(2) to build and expand on the capacity of leaders in
Native American organizations and communities to take
positive and innovative steps--
(A) to create jobs;
(B) to establish stable and profitable business
enterprises;
(C) to enhance economic conditions; and
(D) to use Native American-owned resources for the benefit
of members; and
(3) to achieve the long-term goal of improving the quality
of Native American life and living conditions and access to
basic public services to the levels enjoyed by the average
citizen and community of the United States by the year 2025.
SEC. 4. ESTABLISHMENT OF NATIVE AMERICAN ECONOMIC ADVISORY
COUNCIL.
(a) In General.--There is established a Native American
Economic Advisory Council (referred to in this Act as the
``Council'') to advise and assist the Executive Office of the
President and Federal agencies to ensure that Native
Americans (including Native American members, communities and
organizations) have--
(1) the means and capacity to generate and benefit from
economic stimulus and growth; and
(2) fair access to, and reasonable opportunities to
participate in, Federal economic development and job growth
programs.
(b) Members.--
(1) In general.--The Council shall consist of 5 members
appointed by the President.
(2) Initial appointments.--Not later than 180 days after
the date of enactment of this Act, the President shall
appoint the initial members of the Council.
(3) Composition.--Of the members of the Council--
(A) 1 member shall be an Alaska Native;
(B) 1 member shall be a Hawaiian Native; and
(C) 3 members shall represent American Native groups and
organizations from other States.
(4) Chairperson.--The President shall designate 1 of the
members of the Council to serve as Chairperson.
(c) Experience.--Each member of the Council shall be a
Native American who, as a result of work experience,
training, and attainment, is well qualified--
(1) to identify, analyze, and understand the attributes and
background of successful business enterprises and economic
programs in Native American communities and cultures;
(2) to appraise the economic development programs and
activities of Federal agencies in the context of the goals
and purposes of this Act; and
(3) to recommend programs, policies, and needed program
modifications to improve access to and effectiveness in the
delivery of economic development programs in Native American
communities.
(d) Vacancies.--A vacancy on the Council--
(1) shall not affect the authority of the Commission; and
(2) shall be filled in the same manner as the initial
appointments to the Council.
(e) Expenses.--Each Member of the Council shall be allowed
travel expenses, including per diem in lieu of subsistence,
at the rate authorized for employees of agencies under
subchapter I of chapter 57 of title 5, United States Code,
while away from the homes or regular places of business of
the employees in the performance of services for the Council.
(f) Staff.--
(1) In general.--The Council may, without regard to the
civil service laws (including regulations), appoint and
terminate an executive director and such other staff as are
necessary to enable the Council to perform the duties
required under this Act.
(2) Compensation.--
(A) In general.--Subject to subparagraph (B), the Council
may fix the compensation of the executive director and other
personnel without regard to the provisions of chapter 51 and
subchapter III of chapter 53 of title 5, United States Code,
relating to classification of positions and General Schedule
pay rates.
(B) Maximum amount.--The rate of pay for the executive
director and other personnel of the Council shall not exceed
the rate payable for level V of the Executive Schedule under
section 5316 of title 5, United States Code.
(g) Detail of Employees.--
(1) In general.--An employee of the Federal Government may
be detailed to the Council without reimbursement.
(2) Civil service status.--The detail of an employee shall
be without interruption or loss of civil service status or
privilege.
(h) Temporary Services.--The Council may procure temporary
and intermittent services in accordance with section 3109(b)
of title 5, United States Code, at rates for individuals that
do not exceed the daily equivalent of the annual rate of
basic pay prescribed for level V of the Executive Schedule
under section 5316 of that title.
(i) Administrative Services.--The Secretary of Commerce
shall provide necessary office space and administrative
services for the Council (including staff of the Council).
[[Page S176]]
SEC. 5. DUTIES.
(a) In General.--The Council shall advise and make
recommendations to Federal agencies on--
(1) proposing sustainable economic growth and poverty
reduction policies in a manner that promotes self-
determination, self-sufficiency, and independence in urban
and remote Native American communities while preserving the
traditional cultural values of those communities;
(2) ensuring that Native Americans (including Native
American communities and organizations) have equal access to
Federal economic aid, training, and assistance programs;
(3) developing economic growth strategies, finance, and tax
policies that will enable Native American organizations to
stimulate the local economies of Native Americans and create
meaningful new jobs in Native American communities;
(4) increasing the effectiveness of Federal programs to
address the economic, employment, medical, and social needs
of Native American communities;
(5) administering Federal economic development assistance
programs with an understanding of the unique needs of Native
American communities with the objectives of--
(A) making Native American leaders knowledgeable about best
business practices and successful economic and job growth
strategies;
(B) promoting investment and economic growth and reducing
unemployment and poverty in Native American communities;
(C) enhancing governance, entrepreneurship, and self-
determination in Native American communities; and
(D) fostering demonstrations of transformational changes in
economic conditions in remote Native American communities
through the use of innovative technology, targeted
investments, and the use of Native American-owned natural and
scenic resources;
(6) improving the effectiveness of economic development
assistance programs through the integration and coordination
of assistance to Native American communities;
(7) recommending educational and business training programs
for Native Americans that increase the capacity of Native
Americans for economic well-being and to further the purposes
of this Act; and
(8) initiating proposals, as needed, for fellowship and
mentoring programs to meet the economic development needs of
Native American communities.
(b) Additional Duties.--The Council shall--
(1) prepare a compilation of successful business
enterprises and joint ventures conducted by Native American
organizations, including tribal enterprises and the
commercial ventures of Native Corporations (as defined in
section 102 of the Alaska National Interest Lands
Conservation Act (16 U.S.C. 3102)) in the State of Alaska;
and
(2) periodically sponsor and arrange conferences and
training workshops on Native American business activities,
including providing mentors, resource people, and speakers to
address financing, management, marketing, resource
development, and best business practices in Native American
business enterprises.
SEC. 6. ASSESSMENT OF IMPACTS OF LEGISLATIVE PROPOSALS ON
NATIVE AMERICAN ECONOMIC PROSPECTS AND
OPPORTUNITY.
In preparing and communicating the comments and
recommendations of the President on proposed legislation to
committees and leadership of Congress, the Director of the
Office of Management and Budget and the head of a Federal
agency shall include an assessment of the impacts of the
proposed legislation on the economic and employment prospects
and opportunities provided in the proposed legislation to
improve the quality of living conditions of Native American
communities, organizations, and members to the levels enjoyed
by most people of the United States.
SEC. 7. REPORTS.
The Council shall--
(1) prepare periodic reports on the activities of the
Council; and
(2) make the reports available to--
(A) Native American communities, organizations, and
members;
(B) the General Services Administration;
(C) the Office of Management and Budget;
(D) the Domestic Policy Council;
(E) the National Economic Council;
(F) the Council of Economic Advisers;
(G) the Secretary of the Treasury;
(H) the Secretary of Commerce;
(I) the Secretary of Labor;
(J) the Secretary of the Interior;
(K) the Secretary of Energy; and
(L) members of the public.
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
Act such sums as are necessary.
______
By Mr. INOUYE:
S. 62. A bill to amend the Federal Deposit Insurance Act to modify
requirements relating to the location of bank branches on Indian
reservations, and for other purposes; to the Committee on Banking,
Housing, and Urban Affairs.
Mr. INOUYE. Mr. President, I rise to introduce a bill that would
provide authority for the establishment of branch banking facilities on
Indian reservations so that the Federally-chartered Native American
Bank could enable access to financial services to Indian tribes and
their citizens.
Many years ago, as part of my service as Chairman of the Senate
Indian Affairs Committee, I met with tribal leaders to discuss the
challenges of economic development in Indian country. At that time, I
suggested that they might give consideration to a means by which tribal
governments could pool their resources and thereby provide the capital
that other tribal governments could employ on a short-term loan basis
to undertake reservation-based projects that held the potential of
stimulating economic growth in their tribal communities.
The tribal leaders with whom I met were very interested in this idea,
and in the ensuing years, went forward and established the Native
American Bank--which is headquartered in Denver--but continues to
manage its first affiliated bank on the Blackfeet Indian Reservation in
Montana.
As my colleagues know, there are few financial institutions located
either on or near Indian reservations, and sadly, there is evidence
that some financial institutions have found it apparently necessary to
either charge very high rates that they associate with the risk of
doing business in Indian country, or to deny financial assistance
altogether.
The Native American Bank has stepped into that latter void and has
been providing meaningful financial services to tribal governments and
their citizens for a number of years.
This bill contains amendments to the McFadden Act that have been
carefully sculpted to address only this narrow expansion of capacity on
the part of financial institutions serving Indian country.
Mr. President I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 62
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Reservation Bank
Branch Act of 2009''.
SEC. 2. REGULATIONS GOVERNING INSURED DEPOSITORY
INSTITUTIONS.
Section 18(d) of the Federal Deposit Insurance Act (12
U.S.C. 1828(d)) is amended by adding at the end the
following:
``(5) Election by indian tribes to permit branching of
banks on indian reservations.--
``(A) Definitions.--In this paragraph, the following
definitions shall apply:
``(i) De novo branch.--The term `de novo branch' means a
branch of a State bank that--
``(I) is originally established by the State bank as a
branch; and
``(II) does not become a branch of the State bank as a
result of--
``(aa) the acquisition by the State bank of an insured
depository institution (or a branch of an insured depository
institution); or
``(bb) the conversion, merger, or consolidation of any such
institution or branch.
``(ii) Home state.--
``(I) In general.--The term `home State' means the State in
which the main office of a State bank is located.
``(II) Branches on indian reservations.--The term `home
State' with respect to a State bank, the main office of which
is located within the boundaries of an Indian reservation (in
a case in which State law permits the chartering of such a
main office on an Indian reservation), means--
``(aa) the State in which the Indian reservation is
located; or
``(bb) for an Indian reservation that is located in more
than 1 State, the State in which the portion of the Indian
reservation containing the main office of the State bank is
located.
``(iii) Host reservation.--The term `host reservation',
with respect to a bank, means an Indian reservation located
in a State other than the home State of the bank in which the
bank maintains, or seeks to establish and maintain, a branch.
``(iv) Indian reservation.--
``(I) In general.--The term `Indian reservation' means land
subject to the jurisdiction of an Indian tribe.
``(II) Inclusions.--The term `Indian reservation'
includes--
``(aa) any public domain Indian allotment;
``(bb) any land area located within the outer geographic
boundaries recognized as an Indian reservation by a Federal
treaty, Federal regulation, decision or order of the Bureau
of Indian Affairs or any successor agency thereto, or statute
in force with respect to a federally recognized tribal
nation;
``(cc) any former Indian reservation in the State of
Oklahoma; and
[[Page S177]]
``(dd) any land held by a Native village, Native group,
Regional Corporation, or Village Corporation under the Alaska
Native Claims Settlement Act (43 U.S.C. 1601 et seq.).
``(v) Indian tribe.--The term `Indian tribe' has the same
meaning as in section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b).
``(vi) Tribal government.--
``(I) In general.--The term `tribal government' means the
business council, tribal council, or similar legislative or
governing body of an Indian tribe--
``(aa) the members of which are representatives elected by
the members of the Indian tribe; and
``(bb) that is empowered to enact laws applicable within
the Indian reservation of the Indian tribe.
``(II) Multitribal reservations.--The term `tribal
government', with respect to an Indian reservation within the
boundaries of which are located more than 1 Indian tribe,
each of which has a separate council, means a joint business
council or similar intertribal governing council that
includes representatives of each applicable Indian tribe.
``(III) Inclusion.--The term `tribal government' includes a
governing body of any Regional Corporation or Village
Corporation (as defined in section 3 of the Alaska Native
Claims Settlement Act (43 U.S.C. 1602)).
``(B) Approval by corporation.--Subject to subparagraph
(C), in addition to any other authority under this section to
approve an application to establish a branch within the
boundaries of an Indian reservation, the Corporation may
approve an application of a State bank to establish and
operate a de novo branch within the boundaries of 1 or more
Indian reservations (regardless of whether the Indian
reservations are located within the home State of the State
bank), if there is in effect within the host reservation a
law enacted by the tribal government of the host reservation
that--
``(i) applies with equal effect to all banks located within
the host reservation; and
``(ii) specifically permits any in-State or out-of-State
bank to establish within the host reservation a de novo
branch.
``(C) Conditions.--
``(i) Establishment.--An application by a State bank to
establish and operate a de novo branch within a host
reservation shall not be subject to the requirements and
conditions applicable to an application for an interstate
merger transaction under paragraphs (1), (3), and (4) of
section 44(b).
``(ii) Operation.--Subsections (c) and (d)(2) of section 44
shall not apply with respect to a branch of a State bank that
is established and operated pursuant to an application
approved under this paragraph.
``(iii) Prohibition.--
``(I) In general.--Except as provided in subclause (II), no
State nonmember bank that establishes or operates a branch on
1 or more Indian reservations solely pursuant to paragraph
(5) may establish any additional branch outside of such
Indian reservation in any State in which the Indian
reservation is located.
``(II) Exception.--Subclause (I) shall not apply if a State
nonmember bank described in that subclause would be permitted
to establish and operate an additional branch under any other
provision of this section, without regard to the
establishment or operation by the State nonmember bank of a
branch on the subject Indian reservation.''.
SEC. 3. BRANCH BANKS.
Section 5155 of the Revised Statutes of the United States
(12 U.S.C. 36) is amended by inserting after subsection (g)
the following:
``(h) Election by Indian Tribes To Permit Branching of
National Banks on Indian Reservations.--
``(1) Definitions.--In this subsection, the following
definitions shall apply:
``(A) De novo branch.--The term `de novo branch' means a
branch of a national bank that--
``(i) is originally established by the national bank as a
branch; and
``(ii) does not become a branch of the national bank as a
result of--
``(I) the acquisition by the national bank of an insured
depository institution (or a branch of an insured depository
institution); or
``(II) the conversion, merger, or consolidation of any such
institution or branch.
``(B) Home state.--
``(i) In general.--The term `home State' means the State in
which the main office of a national bank is located.
``(ii) Branches on indian reservations.--The term `home
State', with respect to a national bank, the main office of
which is located within the boundaries of an Indian
reservation, means--
``(I) the State in which the Indian reservation is located;
or
``(II) for an Indian reservation that is located in more
than 1 State, the State in which the portion of the Indian
reservation containing the main office of the national bank
is located.
``(C) Host reservation.--The term `host reservation', with
respect to a national bank, means an Indian reservation
located in a State other than the home State of the bank in
which the bank maintains, or seeks to establish and maintain,
a branch.
``(D) Indian reservation.--
``(i) In general.--The term `Indian reservation' means land
subject to the jurisdiction of an Indian tribe.
``(ii) Inclusions.--The term `Indian reservation'
includes--
``(I) any public domain Indian allotment;
``(II) any land area located within the outer geographic
boundaries recognized as an Indian reservation by a Federal
treaty, Federal regulation, decision or order of the Bureau
of Indian Affairs or any successor agency thereto, or statute
in force with respect to a federally recognized tribal
nation;
``(III) any former Indian reservation in the State of
Oklahoma; and
``(IV) any land held by a Native village, Native group,
Regional Corporation, or Village Corporation under the Alaska
Native Claims Settlement Act (43 U.S.C. 1601 et seq.).
``(E) Indian tribe.--The term `Indian tribe' has the same
meaning as in section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b).
``(F) Tribal government.--
``(i) In general.--The term `tribal government' means the
business council, tribal council, or similar legislative or
governing body of an Indian tribe--
``(I) the members of which are representatives elected by
the members of the Indian tribe; and
``(II) that is empowered to enact laws applicable within
the Indian reservation of the Indian tribe.
``(ii) Multitribal reservations.--The term `tribal
government', with respect to an Indian reservation within the
boundaries of which are located more than 1 Indian tribe,
each of which has a separate council, means a joint business
council or similar intertribal governing council that
includes representatives of each applicable Indian tribe.
``(iii) Inclusion.--The term `tribal government' includes a
governing body of any Regional Corporation or Village
Corporation (as defined in section 3 of the Alaska Native
Claims Settlement Act (43 U.S.C. 1602)).
``(2) Approval by comptroller.--Subject to paragraph (3),
in addition to any other authority under this section to
approve an application to establish a national bank branch
within the boundaries of an Indian reservation, the
Comptroller may approve an application of a national bank to
establish and operate a de novo branch within the boundaries
of an Indian reservation (regardless of whether the Indian
reservation is located within the home State of the national
bank), if there is in effect within the host reservation a
law enacted by the tribal government of the host reservation
that--
``(A) applies with equal effect to all banks located within
the host reservation; and
``(B) specifically permits any in-State or out-of-State
bank to establish within the host reservation a de novo
branch.
``(3) Conditions.--
``(A) Establishment.--An application by a national bank to
establish and operate a de novo branch within a host
reservation shall not be subject to the requirements and
conditions applicable to an application for an interstate
merger transaction under paragraphs (1), (3), and (4) of
section 44(b) of the Federal Deposit Insurance Act (12 U.S.C.
1831u(b)).
``(B) Operation.--Subsections (c) and (d)(2) of section 44
of that Act (12 U.S.C. 1831u) shall not apply with respect to
a branch of a national bank that is established and operated
pursuant to an application approved under this subsection.
``(C) Prohibition.--
``(i) In general.--Except as provided in clause (ii), no
national bank that establishes or operates a branch on 1 or
more Indian reservations solely pursuant to subsection (h)
may establish any additional branch outside of such Indian
reservation in the State in which the Indian reservation is
located.
``(ii) Exception.--Clause (i) shall not apply if a national
bank described in that clause would be permitted to establish
and operate an additional branch under any other provision of
this section or other applicable law, without regard to the
establishment or operation by the national bank of a branch
on the subject Indian reservation.''.
______
By Mr. INOUYE.
S. 63. A bill to require the Secretary of the Army to determine the
validity of the claims of certain Filipinos that they performed
military service on behalf of the United States during World War II; to
the Committee on Veterans' Affairs.
Mr. INOUYE. Mr. President, I am reintroducing legislation today that
would direct the Secretary of the Army to determine whether certain
nationals of the Philippine Islands performed military service on
behalf of the United States during World War II.
Our Filipino veterans fought side by side with Americans and
sacrificed their lives on behalf of the United States. This legislation
would confirm the validity of their claims and further allow qualified
individuals the opportunity to apply for military and veterans benefits
that, I believe, they are entitled to. As this population becomes
older, it is important for our Nation to extend its firm commitment to
the Filipino veterans and their families who participated in making us
the great Nation that we are today.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
[[Page S178]]
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 63
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. DETERMINATIONS BY THE SECRETARY OF THE ARMY.
(a) In General.--Upon the written application of any person
who is a national of the Philippine Islands, the Secretary of
the Army shall determine whether such person performed any
military service in the Philippine Islands in aid of the
Armed Forces of the United States during World War II which
qualifies such person to receive any military, veterans', or
other benefits under the laws of the United States.
(b) Information to Be Considered.--In making a
determination for the purpose of subsection (a), the
Secretary shall consider all information and evidence
(relating to service referred to in subsection (a)) that is
available to the Secretary, including information and
evidence submitted by the applicant, if any.
SEC. 2. CERTIFICATE OF SERVICE.
(a) Issuance of Certificate of Service.--The Secretary of
the Army shall issue a certificate of service to each person
determined by the Secretary to have performed military
service described in section 1(a).
(b) Effect of Certificate of Service.--A certificate of
service issued to any person under subsection (a) shall, for
the purpose of any law of the United States, conclusively
establish the period, nature, and character of the military
service described in the certificate.
SEC. 3. APPLICATIONS BY SURVIVORS.
An application submitted by a surviving spouse, child, or
parent of a deceased person described in section 1(a) shall
be treated as an application submitted by such person.
SEC. 4. LIMITATION PERIOD.
The Secretary of the Army may not consider for the purpose
of this Act any application received by the Secretary more
than two years after the date of the enactment of this Act.
SEC. 5. PROSPECTIVE APPLICATION OF DETERMINATIONS BY THE
SECRETARY OF THE ARMY.
No benefits shall accrue to any person for any period
before the date of the enactment of this Act as a result of
the enactment of this Act.
SEC. 6. REGULATIONS.
The Secretary of the Army shall prescribe regulations to
carry out sections 1, 3, and 4.
SEC. 7. RESPONSIBILITIES OF THE SECRETARY OF VETERANS
AFFAIRS.
Any entitlement of a person to receive veterans' benefits
by reason of this Act shall be administered by the Department
of Veterans Affairs pursuant to regulations prescribed by the
Secretary of Veterans Affairs.
SEC. 8. DEFINITION.
In this Act, the term ``World War II'' means the period
beginning on December 7, 1941, and ending on December 31,
1946.
______
By Mr. INOUYE.
S. 64. A bill to establish a fact-finding Commission to extend the
study of a prior Commission to investigate and determine facts and
circumstances surrounding the relocation, internment, and deportation
to Axis countries of Latin Americans of Japanese descent from December
1941 thorugh February 1948, and the impact of those actions by the
United States, and to recommend appropriate remedies, and for other
purposes; to the Committee on Homeland Security and Governmental
Affairs.
Mr. INOUYE. Mr. President, I rise today in support of the Commission
on Wartime Relocation and Internment of Latin Americans of Japanese
Descent Act.
The story of U.S. citizens taken from their homes on the west coast
and confined in camps is a story that was made known after a fact-
finding study by a Commission that Congress authorized in 1980. That
study was followed by a formal apology by President Reagan and a bill
for reparations. Far less known, and indeed, I myself did not initially
know, is the story of Latin Americans of Japanese descent taken from
their homes in Latin America, stripped of their passports, brought to
the U.S., and interned in American camps.
This is a story about the U.S. government's act of reaching its arm
across international borders, into a community that did not pose an
immediate threat to our Nation, in order to use them, devoid of
passports or any other proof of citizenship, for exchange with
Americans with Japan. Between the years 1941 and 1945, our Government,
with the help of Latin American officials, arbitrarily arrested persons
of Japanese descent from streets, homes, and workplaces. Approximately
2,300 undocumented persons were brought to camp sites in the U.S.,
where they were held under armed watch, and then held in reserve for
prisoner exchange. Those used in an exchange were sent to Japan, a
foreign country that many had never set foot on since their ancestors'
immigration to Latin America.
Despite their involuntary arrival, Latin American internees of
Japanese descent were considered by the Immigration and Naturalization
Service as illegal entrants. By the end of the war, some Japanese Latin
Americans had been sent to Japan. Those who were not used in a prisoner
exchange were cast out into a new and English-speaking country, and
subject to deportation proceedings. Some returned to Latin America.
Others remained in the U.S., because their country of origin in Latin
America refused their re-entry, because they were unable to present a
passport.
When I first learned of the wartime experiences of Japanese Latin
Americans, it seemed unbelievable, but indeed, it happened. It is a
part of our national history, and it is a part of the living histories
of the many families whose lives are forever tied to internment camps
in our country.
The outline of this story was sketched out in a book published by the
Commission on Wartime Relocation and Internment of Civilians formed in
1980. This Commission had set out to learn about Japanese Americans.
Towards the close of their investigations, the Commissioners stumbled
upon this extraordinary effort by the U.S. Government to relocate,
intern, and deport Japanese persons formerly living in Latin America.
Because this finding surfaced late in its study, the Commission was
unable to fully uncover the facts, but found them significant enough to
include in its published study, urging a deeper investigation.
I rise today to introduce the Commission on Wartime Relocation and
Internment of Latin Americans of Japanese Descent Act, which would
establish a fact-finding Commission to extend the study of the 1980
Commission. This Commission's task would be to determine facts
surrounding the U.S. government's actions in regards to Japanese Latin
Americans subject to a program of relocation, internment, and
deportation. I believe that examining this extraordinary program would
give finality to, and complete the account of Federal actions to detain
and intern civilians of Japanese ancestry.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 64
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Commission on Wartime
Relocation and Internment of Latin Americans of Japanese
Descent Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Based on a preliminary study published in
December 1982 by the Commission on Wartime Relocation and
Internment of Civilians, Congress finds the following:
(1) During World War II, the United States--
(A) expanded its internment program and national security
investigations to conduct the program and investigations in
Latin America; and
(B) financed relocation to the United States, and
internment, of approximately 2,300 Latin Americans of
Japanese descent, for the purpose of exchanging the Latin
Americans of Japanese descent for United States citizens held
by Axis countries.
(2) Approximately 2,300 men, women, and children of
Japanese descent from 13 Latin American countries were held
in the custody of the Department of State in internment camps
operated by the Immigration and Naturalization Service from
1941 through 1948.
(3) Those men, women, and children either--
(A) were arrested without a warrant, hearing, or indictment
by local police, and sent to the United States for
internment; or
(B) in some cases involving women and children, voluntarily
entered internment camps to remain with their arrested
husbands, fathers, and other male relatives.
(4) Passports held by individuals who were Latin Americans
of Japanese descent were routinely confiscated before the
individuals arrived in the United States, and the Department
of State ordered United States consuls in Latin American
countries to refuse to issue visas to the individuals prior
to departure.
(5) Despite their involuntary arrival, Latin American
internees of Japanese descent were
[[Page S179]]
considered to be and treated as illegal entrants by the
Immigration and Naturalization Service. Thus, the internees
became illegal aliens in United States custody who were
subject to deportation proceedings for immediate removal from
the United States. In some cases, Latin American internees of
Japanese descent were deported to Axis countries to enable
the United States to conduct prisoner exchanges.
(6) Approximately 2,300 men, women, and children of
Japanese descent were relocated from their homes in Latin
America, detained in internment camps in the United States,
and in some cases, deported to Axis countries to enable the
United States to conduct prisoner exchanges.
(7) The Commission on Wartime Relocation and Internment of
Civilians studied Federal actions conducted pursuant to
Executive Order 9066 (relating to authorizing the Secretary
of War to prescribe military areas). Although the United
States program of interning Latin Americans of Japanese
descent was not conducted pursuant to Executive Order 9066,
an examination of that extraordinary program is necessary to
establish a complete account of Federal actions to detain and
intern civilians of enemy or foreign nationality,
particularly of Japanese descent. Although historical
documents relating to the program exist in distant archives,
the Commission on Wartime Relocation and Internment of
Civilians did not research those documents.
(8) Latin American internees of Japanese descent were a
group not covered by the Civil Liberties Act of 1988 (50
U.S.C. App. 1989b et seq.), which formally apologized and
provided compensation payments to former Japanese Americans
interned pursuant to Executive Order 9066.
(b) Purpose.--The purpose of this Act is to establish a
fact-finding Commission to extend the study of the Commission
on Wartime Relocation and Internment of Civilians to
investigate and determine facts and circumstances surrounding
the relocation, internment, and deportation to Axis countries
of Latin Americans of Japanese descent from December 1941
through February 1948, and the impact of those actions by the
United States, and to recommend appropriate remedies, if any,
based on preliminary findings by the original Commission and
new discoveries.
SEC. 3. ESTABLISHMENT OF THE COMMISSION.
(a) In General.--There is established the Commission on
Wartime Relocation and Internment of Latin Americans of
Japanese descent (referred to in this Act as the
``Commission'').
(b) Composition.--The Commission shall be composed of 9
members, who shall be appointed not later than 60 days after
the date of enactment of this Act, of whom--
(1) 3 members shall be appointed by the President;
(2) 3 members shall be appointed by the Speaker of the
House of Representatives, on the joint recommendation of the
majority leader of the House of Representatives and the
minority leader of the House of Representatives; and
(3) 3 members shall be appointed by the President pro
tempore of the Senate, on the joint recommendation of the
majority leader of the Senate and the minority leader of the
Senate.
(c) Period of Appointment; Vacancies.--Members shall be
appointed for the life of the Commission. A vacancy in the
Commission shall not affect its powers, but shall be filled
in the same manner as the original appointment was made.
(d) Meetings.--
(1) First meeting.--The President shall call the first
meeting of the Commission not later than the later of--
(A) 60 days after the date of enactment of this Act; or
(B) 30 days after the date of enactment of legislation
making appropriations to carry out this Act.
(2) Subsequent meetings.--Except as provided in paragraph
(1), the Commission shall meet at the call of the
Chairperson.
(e) Quorum.--Five members of the Commission shall
constitute a quorum, but a lesser number of members may hold
hearings.
(f) Chairperson and Vice Chairperson.--The Commission shall
elect a Chairperson and Vice Chairperson from among its
members. The Chairperson and Vice Chairperson shall serve for
the life of the Commission.
SEC. 4. DUTIES OF THE COMMISSION.
(a) In General.--The Commission shall--
(1) extend the study of the Commission on Wartime
Relocation and Internment of Civilians, established by the
Commission on Wartime Relocation and Internment of Civilians
Act--
(A) to investigate and determine facts and circumstances
surrounding the United States' relocation, internment, and
deportation to Axis countries of Latin Americans of Japanese
descent from December 1941 through February 1948, and the
impact of those actions by the United States; and
(B) in investigating those facts and circumstances, to
review directives of the United States Armed Forces and the
Department of State requiring the relocation, detention in
internment camps, and deportation to Axis countries of Latin
Americans of Japanese descent; and
(2) recommend appropriate remedies, if any, based on
preliminary findings by the original Commission and new
discoveries.
(b) Report.--Not later than 1 year after the date of the
first meeting of the Commission pursuant to section 3(d)(1),
the Commission shall submit a written report to Congress,
which shall contain findings resulting from the investigation
conducted under subsection (a)(1) and recommendations
described in subsection (a)(2).
SEC. 5. POWERS OF THE COMMISSION.
(a) Hearings.--The Commission or, at its direction, any
subcommittee or member of the Commission, may, for the
purpose of carrying out this Act--
(1) hold such public hearings in such cities and countries,
sit and act at such times and places, take such testimony,
receive such evidence, and administer such oaths as the
Commission or such subcommittee or member considers
advisable; and
(2) require, by subpoena or otherwise, the attendance and
testimony of such witnesses and the production of such books,
records, correspondence, memoranda, papers, documents, tapes,
and materials as the Commission or such subcommittee or
member considers advisable.
(b) Issuance and Enforcement of Subpoenas.--
(1) Issuance.--Subpoenas issued under subsection (a) shall
bear the signature of the Chairperson of the Commission and
shall be served by any person or class of persons designated
by the Chairperson for that purpose.
(2) Enforcement.--In the case of contumacy or failure to
obey a subpoena issued under subsection (a), the United
States district court for the judicial district in which the
subpoenaed person resides, is served, or may be found may
issue an order requiring such person to appear at any
designated place to testify or to produce documentary or
other evidence. Any failure to obey the order of the court
may be punished by the court as a contempt of that court.
(c) Witness Allowances and Fees.--Section 1821 of title 28,
United States Code, shall apply to witnesses requested or
subpoenaed to appear at any hearing of the Commission. The
per diem and mileage allowances for witnesses shall be paid
from funds available to pay the expenses of the Commission.
(d) Information From Federal Agencies.--The Commission may
secure directly from any Federal department or agency such
information as the Commission considers necessary to perform
its duties. Upon request of the Chairperson of the
Commission, the head of such department or agency shall
furnish such information to the Commission.
(e) Postal Services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
SEC. 6. PERSONNEL AND ADMINISTRATIVE PROVISIONS.
(a) Compensation of Members.--Each member of the Commission
who is not an officer or employee of the Federal Government
shall be compensated at a rate equal to the daily equivalent
of the annual rate of basic pay prescribed for level IV of
the Executive Schedule under section 5315 of title 5, United
States Code, for each day (including travel time) during
which such member is engaged in the performance of the duties
of the Commission. All members of the Commission who are
officers or employees of the United States shall serve
without compensation in addition to that received for their
services as officers or employees of the United States.
(b) Travel Expenses.--The members of the Commission shall
be allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(c) Staff.--
(1) In general.--The Chairperson of the Commission may,
without regard to the civil service laws and regulations,
appoint and terminate the employment of such personnel as may
be necessary to enable the Commission to perform its duties.
(2) Compensation.--The Chairperson of the Commission may
fix the compensation of the personnel without regard to
chapter 51 and subchapter III of chapter 53 of title 5,
United States Code, relating to classification of positions
and General Schedule pay rates, except that the rate of pay
for the personnel may not exceed the rate payable for level V
of the Executive Schedule under section 5316 of such title.
(d) Detail of Government Employees.--Any Federal Government
employee may be detailed to the Commission without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
(e) Procurement of Temporary and Intermittent Services.--
The Chairperson of the Commission may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code, at rates for individuals that do not
exceed the daily equivalent of the annual rate of basic pay
prescribed for level V of the Executive Schedule under
section 5316 of such title.
(f) Other Administrative Matters.--The Commission may--
(1) enter into agreements with the Administrator of General
Services to procure necessary financial and administrative
services;
(2) enter into contracts to procure supplies, services, and
property; and
(3) enter into contracts with Federal, State, or local
agencies, or private institutions or organizations, for the
conduct of research or surveys, the preparation of reports,
[[Page S180]]
and other activities necessary to enable the Commission to
perform its duties.
SEC. 7. TERMINATION.
The Commission shall terminate 90 days after the date on
which the Commission submits its report to Congress under
section 4(b).
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated
such sums as may be necessary to carry out this Act.
(b) Availability.--Any sums appropriated under the
authorization contained in this section shall remain
available, without fiscal year limitation, until expended.
______
By Mr. INOUYE.
S. 65. A bill to reauthorize the programs of the Department of
Housing and Urban Development for housing assistances for Native
Hawaiians; to the Committee on Indian Affairs.
Mr. INOUYE. Mr. President, I rise to introduce a bill to reauthorize
Title VIII of the Native American Housing Assistance and Self-
Determination Act. Title VIII provides authority for the appropriation
of funds for the construction of low-income housing for Native
Hawaiians and further provides authority for access to loan guarantees
associated with the construction of housing to serve Native Hawaiians.
Three studies have documented the acute housing needs of Native
Hawaiians--which include the highest rates of overcrowding and
homelessness in the State of Hawaii. Those same studies indicate that
inadequate housing rates for Native Hawaiians are amongst the highest
in the Nation.
The reauthorization of Title VIII will support the continuation of
efforts to assure that the native people of Hawaii may one day have
access to housing opportunities that are comparable to those now
enjoyed by other Americans.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 65
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Hawaiian Homeownership
Opportunity Act of 2011''.
SEC. 2. AUTHORIZATION OF APPROPRIATIONS FOR HOUSING
ASSISTANCE.
Section 824 of the Native American Housing Assistance and
Self-Determination Act of 1996 (25 U.S.C. 4243) is amended by
striking ``fiscal years'' and all that follows and inserting
the following: ``fiscal years 2011, 2012, 2013, 2014, and
2015.''.
SEC. 3. LOAN GUARANTEES FOR NATIVE HAWAIIAN HOUSING.
Section 184A of the Housing and Community Development Act
of 1992 (12 U.S.C. 1715z-13b) is amended--
(1) in subsection (b), by striking ``or as a result of a
lack of access to private financial markets'';
(2) in subsection (c), by striking paragraph (2) and
inserting the following:
``(2) Eligible housing.--The loan will be used to
construct, acquire, refinance, or rehabilitate 1- to 4-family
dwellings that are--
``(A) standard housing; and
``(B) located on Hawaiian Home Lands.''; and
(3) in subsection (j)(7), by striking ``fiscal years'' and
all that follows through the end of the paragraph and
inserting the following: ``fiscal years 2011, 2012, 2013,
2014, and 2015.''.
SEC. 4. ELIGIBILITY OF DEPARTMENT OF HAWAIIAN HOME LANDS FOR
TITLE VI LOAN GUARANTEES.
Title VI of the Native American Housing Assistance and
Self-Determination Act of 1996 (25 U.S.C. 4191 et seq.) is
amended--
(1) in the title heading, by inserting ``AND NATIVE
HAWAIIAN'' after ``TRIBAL'';
(2) in section 601 (25 U.S.C. 4191)--
(A) in subsection (a)--
(i) by striking ``or tribally designated housing entities
with tribal approval'' and inserting ``, by tribally
designated housing entities with tribal approval, or by the
Department of Hawaiian Home Lands,''; and
(ii) by inserting ``or 810, as applicable,'' after
``section 202'' ; and
(B) in subsection (c), by inserting ``or title VIII, as
applicable'' before the period at the end;
(3) in section 602 (25 U.S.C. 4192)--
(A) in subsection (a)--
(i) in the matter preceding paragraph (1), by striking ``or
housing entity'' and inserting ``, housing entity, or
Department of Hawaiian Home Lands''; and
(ii) in paragraph (3)--
(I) by inserting ``or Department'' after ``tribe'';
(II) by inserting ``or title VIII, as applicable,'' after
``title I''; and
(III) by inserting ``or 811(b), as applicable'' before the
semicolon at the end; and
(B) in subsection (b)(2), by striking ``or housing entity''
and inserting ``, housing entity, or the Department of
Hawaiian Home Lands'';
(4) in the first sentence of section 603 (25 U.S.C. 4193),
by striking ``or housing entity'' and inserting ``, housing
entity, or the Department of Hawaiian Home Lands''; and
(5) in section 605(b) (25 U.S.C. 4195(b)), by striking
``2009 through 2013'' and inserting ``2011 through 2015''.
______
By Mr. INOUYE:
S. 67. A bill to amend title 10, United States Code, to permit former
members of the Armed Forces who have a service-connected disability
rated as total to travel on military aircraft in the same manner and to
the same extent as retired members of the Armed Forces are entitled to
travel on such aircraft; to the Committee on Armed Services.
Mr. INOUYE. Mr. President, today I am reintroducing a bill which is
of great importance to a group of patriotic Americans. This legislation
is designed to end space-available travel privileges on military
aircraft to those who have been totally disabled in the service of our
country.
Currently, retired members of the Armed Services are permitted to
travel on a space-available basis on non-scheduled military flights
within the continental United States, and on scheduled overseas flights
operated by the Military Airlift Command. My bill would provide the
same benefits for veterans with 100 percent service-connected
disabilities.
We owe these heroic men and women who have given so much to our
country a debt of gratitude. Of course, we can never repay them for the
sacrifices they have made on behalf of our Nation, but we can surely
try to make their lives more pleasant and fulfilling. One way in which
we can help is to extend military travel privileges to these
distinguished American veterans. I have received numerous letters from
all over the country attesting to the importance attached to this issue
by veterans. Therefore, I ask that my colleagues show their concern and
join me in saying ``thank you'' by supporting this legislation.
Mr. President, I ask unanimous consent that the text of my bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 67
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TRAVEL ON MILITARY AIRCRAFT OF CERTAIN DISABLED
FORMER MEMBERS OF THE ARMED FORCES.
(a) In General.--Chapter 53 of title 10, United States
Code, is amended by inserting after section 1060b the
following new section:
``Sec. 1060c. Travel on military aircraft: certain disabled
former members of the armed forces
``The Secretary of Defense shall permit any former member
of the armed forces who is entitled to compensation under the
laws administered by the Secretary of Veterans Affairs for a
service-connected disability rated as total to travel, in the
same manner and to the same extent as retired members of the
armed forces, on unscheduled military flights within the
continental United States and on scheduled overseas flights
operated by the Air Mobility Command. The Secretary of
Defense shall permit such travel on a space-available
basis.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 53 of such title is amended by inserting
after the item relating to section 1060b the following new
item:
``1060c. Travel on military aircraft: certain disabled former members
of the armed forces.''.
______
By Mr. INOUYE:
S. 68. A bill to amend title 10, United States Code, to authorize
certain disabled former prisoners of war to use Department of Defense
commissary and exchange stores; to the Committee on Armed Services.
Mr. INOUYE. Mr. President, today I am reintroducing legislation to
enable those former prisoners of war who have been separated honorably
from their respective services and who have been rated as having a 30
percent service-connected disability to have the use of both the
military commissary and post exchange privileges. While I realize it is
impossible to adequately compensate one who has endured long periods of
incarceration at the hands of our Nation's enemies, I do feel this
gesture is both meaningful and important to those concerned because it
serves as a reminder that our nation has not forgotten their
sacrifices.
Mr. President, I ask unanimous consent that the text of my bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
[[Page S181]]
S. 68
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. USE OF COMMISSARY AND EXCHANGE STORES BY CERTAIN
DISABLED FORMER PRISONERS OF WAR.
(a) In General.--Chapter 54 of title 10, United States
Code, is amended by inserting after section 1064 the
following new section:
``Sec. 1064a. Use of commissary and exchange stores: certain
disabled former prisoners of war
``(a) In General.--Under regulations prescribed by the
Secretary of Defense, former prisoners of war described in
subsection (b) may use commissary and exchange stores.
``(b) Covered Individuals.--Subsection (a) applies to any
former prisoner of war who--
``(1) separated from active duty in the armed forces under
honorable conditions; and
``(2) has a service-connected disability rated by the
Secretary of Veterans Affairs at 30 percent or more.
``(c) Definitions.--In this section:
``(1) The term `former prisoner of war' has the meaning
given that term in section 101(32) of title 38.
``(2) The term `service-connected' has the meaning given
that term in section 101(16) of title 38.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 54 of such title is amended by inserting
after the item relating to section 1064 the following new
item:
``1064a. Use of commissary and exchange stores: certain disabled former
prisoners of war.''.
______
By Mr. TESTER:
S. 69. A bill to amend the Consumer Product Safety Improvement Act of
2008 to exclude secondary sales, repair services, and certain vehicles
from the ban on lead in children's products, and for other purposes; to
the Committee on Commerce, Science, and Transportation.
Mr. TESTER. Mr. President, I rise today to introduce the Common Sense
in Consumer Product Safety Act of 2011 on behalf of the folks across
America who are outdoor enthusiasts and budding sportsman and women.
This bill will bring a common sense approach to restrictions we place
upon access to children's products.
In 2008, in response to the high lead paint content found in a number
of toys and products intended for children, the Congress passed
legislation to limit children's access to these dangerous products.
Many of these products were imports from China and other places where
consumer protection is weak or non-existent. I supported this
legislation, as did 78 of my colleagues.
Any product sold that is intended to be used by children up to the
age of 12 must be tested and certified to not contain more than the
allowable level of lead. However, it became clear that the Consumer
Product Safety Improvement Act has had some unintended consequences.
While the goal is admirable, it is important to inject a little
common sense into the process. I want our kids and grandkids to be safe
and protected from harmful toys, but we all know that most kids who are
past the teething stage do not chew on their toys. It is important to
strike a balance--to enact responsible safety requirements while at the
same time recognizing that overzealous restrictions can interfere with
a way of life enjoyed by not just Montanans, but outdoor enthusiasts
across America.
As Chairman of the Congressional Sportsmen's Caucus, I am proud to
stand up for Montana's outdoor heritage at every chance. The consumer
protection law goes too far and limits younger Montanans' opportunities
to participate in those traditions.
My bill will protect small businesses and allow families safer access
to the outdoors.
The consumer protection law covers all products intended for the use
of children through the age of 12. This includes ATVs, dirt bikes and
other vehicles built specifically for the use of older kids and adults.
However, because of the way the vehicles are built, parts that may
include lead are not exclusively internal components and therefore
don't pass the inaccessibility standard required by law. As a result of
this requirement, a number of ATV sales and retail establishments have
halted the sale of all ATVs for kids. In an abundance of caution, they
have also refused to repair any equipment intended for kids use.
I have heard from many Montanans--consumers and retail sales people
alike--expressing their concern about the impact of the legislation
upon outdoor motor sports. A few years ago I worked with the Consumer
Product Safety Commission to successfully provide a two year waiver for
child-sized motorized vehicles. However, that stay of enforcement
expires this May. Therefore today, I am reintroducing this bill to
provide a permanent exception for vehicles intended to be used by
children between the ages of 6 and 12.
In addition to manufacturers and merchants, thrift stores, and other
retail establishments are also implicated because of the wide-reaching
scope of the legislation. It is possible that even holding a yard sale
can lead folks astray from the new law. Therefore, my bill also removes
liability for lead paint content in any product that is repaired or is
resold by thrift stores, flea markets or at yard sales. The liability
in place at the time of primary sale of these products is sufficient
and it could cripple the profitability of the secondary merchants if
they were to be liable for testing the products they resell or repair.
In this tough economy, second-hand resellers simply can't afford the
third-party testing requirement put in place by the bill. At the same
time, more and more of Montana's families are finding their budgets
tighten and are relying upon thrift and resale stores for toys,
children's clothing and other household goods. I want to make sure that
laws intended to keep our kids safe end up doing more harm than good.
This a very important bill, bringing a dose of common sense to the
very important goal of protecting our kids from lead paint and other
substances that will harm their health. I urge my colleagues to join me
in this effort.
______
By Mr. INOUYE:
S. 70. A bill to restore the traditional day of observance of
Memorial Day, and for other purposes; to the Committee on the
Judiciary.
Mr. INOUYE. Mr. President, in our effort to accommodate many
Americans by making Memorial Day the last Monday in May, we have lost
sight of the significance of this day to our nation. My bill would
restore Memorial Day to May 30 and authorize our flag to fly at half
mast on that day. In addition, this legislation would authorize the
President to issue a proclamation designating Memorial Day and Veterans
Day as days for prayer and ceremonies. This legislation would help
restore the recognition our veterans deserve for the sacrifices they
have made on behalf of our Nation.
Mr. President, I ask unanimous consent that the text of my bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 70
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. RESTORATION OF TRADITIONAL DAY OF OBSERVANCE OF
MEMORIAL DAY.
(a) Designation of Legal Public Holiday.--Section 6103(a)
of title 5, United States Code, is amended by striking
``Memorial Day, the last Monday in May.'' and inserting the
following:
``Memorial Day, May 30.''.
(b) Observances and Ceremonies.--Section 116 of title 36,
United States Code, is amended--
(1) in subsection (a), by striking ``The last Monday in
May'' and inserting ``May 30''; and
(2) in subsection (b)--
(A) by striking ``and'' at the end of paragraph (3);
(B) by redesignating paragraph (4) as paragraph (5); and
(C) by inserting after paragraph (3) the following:
``(4) calling on the people of the United States to observe
Memorial Day as a day of ceremonies to show respect for
United States veterans of wars and other military conflicts;
and''.
(c) Display of Flag.--
(1) Time and occasions for flag display.--Section 6(d) of
title 4, United States Code, is amended by striking ``the
last Monday in May;'' and inserting ``May 30;''.
(2) National league of families pow/mia flag.--Section
902(c)(1)(B) of title 36, United States Code, is amended by
striking ``the last Monday in May'' and inserting ``May 30''.
______
By Ms. CANTWELL (for herself and Mr. Franken):
S. 74. A bill to preserve the free and open nature of the Internet,
expand the benefits of broadband, and promote
[[Page S182]]
universally available and affordable broadband service; to the
Committee on Commerce, Science, and Transportation.
Ms. CANTWELL. Mr. President, I rise today to introduce legislation
that will preserve the free and open Internet that has led to the
growth of broadband.
The broadband Internet is integral to U.S. job creation, economic
growth, education, civic engagement, and innovation.
The network design principles fostering the development of the
broadband Internet to date, an end-to-end design, layered architecture,
and open standards, promotes innovation at the edge of the network and
gives end users choice and control of their online activities.
These network design principles have led to the network neutrality of
the Internet, where there are no paid-for premium fast lanes and best-
effort slow lanes.
Today, broadband providers have access to technology and an economic
incentive to favor their own or affiliated services, content, and
applications; and discriminate against other providers of services
content, and applications.
If our Nation is to achieve the ambitious broadband goals put forward
in the National Broadband Plan, the U.S. needs a clear Federal policy
that preserves the historically free and open nature of the Internet.
The policy must apply to all broadband Internet access service
providers regardless of the means by which they reach the end user.
As you know, the FCC released its net neutrality rules last fall.
I consider the Commission's actions to be completely within the
bounds of its authority.
The Chevron deference courts give agencies is rather broad.
A quick read of the 2005 U.S. Supreme Court's Brand X decision tells
you all you need to know.
Former FCC Chairman Powell was very creative in his approach to
deregulating broadband over cable modem in 2002.
As you remember, one of the most conservative justices on the Supreme
Court, Justice Scalia, voted against the FCC action saying more or less
that what Chairman Powell did was an overreach.
Even so, the final decision was six to three in favor of the FCC.
That is how broad the Chevron deference is.
And because of the meticulous way Chairman Genachowski conducted the
Commission's process, in the end, I am confident the court system will
uphold its actions.
My issue with the Commission's net neutrality rules is that I do not
think the Chairman was bold enough.
The Commission should have issued one set of rules that covered
broadband delivered over wireline, wireless, or some combination of the
two. Everyone realizes that the future of broadband is wireless. And
with the rollout of 4-G wireless services, that future is with us now.
The Commission should not have kept open the door for any pay-for-
priority schemes. It will lead to a tiered Internet, where broadband
Internet service providers have the incentive to create artificial
bandwidth shortages to maximize profits, rather than invest in new
capacity.
The Commission also needed to get the definitions of broadband and
reasonable network management right. One was too broad and one too
narrow. The wording in definitions is negotiated over fiercely because,
if not crafted properly, it can lead to loopholes that severely
undercut the effectiveness of the rules.
More fundamentally, the Commission should have reclassified broadband
Internet access into Title II of the communications act and forebear
from regulation all of the elements more appropriate to Title I. It
would have taken the Commission a lot more time and resources, but
getting net neutrality right is that important, because this is the
foundation that all broadband rules and regulations will be built on
going forward.
It is surprising that as weak as these rules are they have stirred up
so much vitriol.
I know this body will be taking up this matter another day.
My legislation puts in statute strong net neutrality protections,
takes steps to promote broadband adoption, and provides consumer
protection for broadband end users.
First I want to acknowledge the leadership of our former colleague
Senator Dorgan on this issue.
The bill builds on what we started working together on last fall.
It also borrows some of the good ideas of Mr. Markey and Ms. Eshoo in
the House.
At a high level my legislation creates a new section in Title II of
the Communications Act that codifies the six new neutrality principles
in the FCC's November 2009 notice of proposed rulemaking for preserving
the open Internet.
My legislation adds a few things to the FCC's list. For example, my
legislation also prohibits broadband operators from requiring content,
service, or application providers from paying for prioritized delivery
of their IP packets; more commonly referred to as pay-for priority. It
also requires broadband providers to interconnect with middle-mile
broadband providers on just and reasonable terms and conditions.
All of this is subject to reasonable network management as defined.
And it applies to all broadband Internet platforms--wireline and
wireless.
My legislation takes several steps to promote the adoption of
broadband, steps such as requiring broadband providers to provide
service upon reasonable request by an end user; and requiring broadband
providers to offer standalone broadband at reasonable rates, terms and
conditions.
My legislation increases consumer protections because all charges,
practices, classifications, regulations, for and in connection with the
broadband Internet access service must be just and reasonable.
My legislation directs the FCC to come up with enforcement
mechanisms. End users, who include individuals, businesses of all
sizes, non-for-profit organization, and others, can file a complaint
either at the FCC or at a U.S. District Court, but not both.
Additionally, State Attorneys General can file on behalf of their
residents and seek either to enforce the act or to seek civil
penalties.
My legislation supports continued broadband investment, innovation,
and jobs.
Let me explain.
First innovation. With the Internet's end-to-end design, innovation
is at the edge of the network in the hands of the end users. New ideas
for online content, application, and services do not need the
permission of the centralized network operator to become successful.
Without net neutrality protections, I foresee situations arising that
will chill innovation.
For example, if a broadband provider has a partnership with company A
to provide end users a certain on-line service, and new company B comes
up with a better value proposition for providing that same on-line
service, how many believe that the broadband provider will allow
company B get access to its end users with the same bandwidth or
quality-of-service assurances, particularly if Company A gives a
portion of its revenues from that on-line service to the broadband
provider.
Experience has taught me that the most promising path to developing
an innovation into a new on-line product or service is hard to predict,
if one can do it at all. If broadband Internet access service provider
end up on the critical path for successful commercialization of on-line
innovations, the path to success will be all the much harder. The
language in my bill tries to prevent these types of situations from
happening.
This leads to my second point, the chilling of investment without
effective net neutrality rules.
Take the situation where an early stage online company is seeking
venture capital investments. The first question any responsible VC will
ask is whether the following list of large broadband providers are on-
board with the online product or service. Because if there is a
situation, as in my example on innovation, where the large broadband
provider has a partnership with the early stage companies' entrenched
competitor, it is going to be difficult, if not impossible to raise
funds. Basically, the blessing of broadband providers will become
essential to obtaining VC investment of any magnitude. How to get large
broadband
[[Page S183]]
providers on board will become a key part of every business plan.
Broadband providers would then become gatekeepers to online innovation
and investment.
Broadband investment can also be chilled a second way. The logical
extension of pay-for-priority is a tiered Internet with premium fast
lanes and best effort slow lanes. With a tiered Internet, it becomes
more profitable to create an artificial bandwidth shortage rather than
in investing to increase broadband capacity of the local network.
The reason is that it is easier to adjust pricing policies than
forecast the optimum level of investment and be able to finance it at
favorable rates. Recall the Internet bubble about a decade ago. That is
why I believe that if pay-for-priority exists, it will ultimately lead
to a lower level of broadband investment that would occur otherwise.
I agree with the need for broadband providers to upgrade the quality
of their network and increase the available bandwidth to meet the
anticipated market demand. If end users want more bandwidth or quality-
of-service assurances they should be willing to pay for it. It is that
simple. I have no issue with allowing broadband providers explore
different pricing options for consumers. My bill doesn't prevent that.
Third jobs. Since the advent of the broadband age, there have been
more high-value-added, high-paying jobs created by companies operating
at the edge of the network than companies at the center of the network.
And because of chilled investment and other restrictions, without net
neutrality rules, I believe we will experience a lower rate of growth
of broadband-enabled jobs.
Let me close by saying that I bring a unique perspective to the
policy discussion over net neutrality by virtue of working in the tech
industry during the dial-up age and early years of broadband.
To put things in perspective, the ideas and language that became the
Telecommunications Act of 1996 was coming together around the time
Netscape 1.0 was being introduced commercially.
Whether intentionally or unintentionally, that 1996 Telecom Act
accelerated the roll out of broadband, even though the word Internet
appeared less then one dozen times. It set the wheels in motion by
allowing local competition to the offspring of Ma Bell, allowing
telecom companies to offer video programming, and allowing cable
companies to offer telecom service.
Cable companies responded to this competitive threat, and that from
the satellite TV companies due to the Satellite Home Viewing Act, by
making infrastructure investments that allowed them to offer new
broadband service over cable modem.
Competitive Local Exchange Carriers, taking advantage of their new
ability to line share and access unbundled network elements, also saw
the competitive benefits of offering broadband service.
The traditional telecom companies, well, at the time they seemed
focused on trying to reassemble Ma Bell and having us all buy an extra,
dedicated landline or two for dial up service.
Eventually, the competitive pressure did drive them to make the
necessary investment to offer broadband.
The business models for delivering broadband Internet access differed
than that of dial-up. In their heyday, ISPs such as AOL, CompuServe,
and Prodigy did not own their own infrastructure; they leased telecom
transmission capacity from third parties telecom companies. With
broadband, for a number of reasons, there came the much greater
vertical integration of the ISP and transmission capacity.
Looking back, broadband over cable modem flourished under Title II
through 2002, until the FCC deregulated it. Similarly, broadband over
landlines flourished under Title II through 2005, until Chairman
Martin's deregulated it in the wake of the Brand X decision.
As Senator Dorgan used to say, having broadband under Title II
ensured that there was a broadband cop on the beat.
If there were functioning local markets for broadband services,
consumers would have true choices, and I might think differently about
the need for legislation. Unfortunately end users in most communities
have a limited number of choices at best when it comes to broadband
Internet access services.
At its most basic, that is why we need to return that broadband cop
to the beat. My bill will do that, and do that without regulating the
Internet.
It will achieve the regulatory certainty industry seems to clamoring
for by having the net neutrality protection in statute rather than left
to agency rule and the politics of each succeeding administration.
I don't claim that this bill is a perfect bill. It lays down a marker
for where we should start the discussion.
Given the complexity of the Internet ecosystem, any legislation will
have to be worked through by the Commerce Committee. There are always
details, details, and more details with respect to business models and
usage cases that need to be considered. For these reasons I recognize
that the Commission will need some flexibility in implementing the
statute and I believe my language will provide them with just enough.
My bill will preserve an open and free Internet, allow for
broadband's continued growth, and the economic growth and jobs that it
will create.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 74
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Internet Freedom, Broadband
Promotion, and Consumer Protection Act of 2011''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Two-way communications networks constitute basic
infrastructure that is as essential to our national economy
as roads and electricity.
(2) The broadband Internet constitutes the most important
two-way communications infrastructure of our time.
(3) Access to the broadband Internet is critical for job
creation, economic growth, and technological innovation.
(4) Access to the broadband Internet creates opportunity
for more direct civic engagement, increased educational
attainment, and enables free speech.
(5) The network design principles fostering the development
of the broadband Internet to date, an end-to-end design,
layered architecture, and open standards, promotes innovation
at the edge of the network and gives end users choice and
control of their online activities.
(6) These network design principles have led to the network
neutrality of the Internet, where there are no paid for
premium fast lanes and best effort slow lanes.
(7) According to the Federal Communications Commission in
2009, technologies now allow network operators to distinguish
different classes of Internet traffic, to offer different
qualities-of-service, and to charge different prices to each
class of Internet traffic.
(8) Broadband Internet access service providers have an
economic interest to discriminate in favor of their own or
affiliated services, content, and applications and against
other providers of such services, content, and applications.
(9) Broadband Internet access service providers have an
economic interest in, and the ability to adopt, pay-for-
priority schemes to the detriment of job creation, economic
growth, innovation, and consumer protections.
(10) The market for broadband today demonstrates
substantial obstacles to effective competition, to the
protection of users, and to the continued viability of a free
and open Internet.
(11) These obstacles impede the universal deployment and
adoption of broadband, impede meeting the goals set forth in
the National Broadband Plan, and perpetuate a digital divide.
(12) The United States needs clear Federal policy that
preserves the historically free and open nature of the
Internet, expands the benefits of broadband, and promotes
universally available and affordable broadband service that
does not chill innovation or speech within the content,
applications, and services available online.
(13) The Federal policy to ensure that the Internet remains
free and open must apply equally to all broadband Internet
access services, regardless of whether those services use
wire, radio, or some combination of those means to reach the
end user.
SEC. 3. INTERNET FREEDOM.
Title II of the Communications Act of 1934 (47 U.S.C. 201
et seq.) is amended by adding at the end the following:
``SEC. 280. INTERNET FREEDOM AND BROADBAND PROMOTION.
``(a) Purposes.--The purposes of this section are--
``(1) to promote increased availability and adoption of
broadband for all Americans;
[[Page S184]]
``(2) to promote consumer choice and competition among
broadband Internet access service providers and among
providers of lawful content, applications, and services; and
``(3) to protect consumers, innovators and entrepreneurs
from harmful, discriminatory, or anti-competitive behavior by
providers of broadband Internet access service.
``(b) Broadband Internet Access Service and Charges.--
``(1) It shall be the duty of every broadband Internet
access service provider to furnish such broadband Internet
access service to end users upon reasonable request.
``(2) Broadband Internet access service providers shall not
require end users to purchase voice grade telephone service,
commercial mobile radio voice services, or multichannel-video
programming distribution services or other specialized
services as a condition on the purchase of any broadband
Internet access service.
``(3) All charges, practices, classifications, and
regulations for and in connection with broadband Internet
access service shall be just and reasonable.
``(4) If a broadband Internet access service provider
allows its end users to request quality-of-service assurances
for the transmission of Internet protocol packets associated
with its own applications, services, or content or that of
its affiliates, then--
``(A) the broadband Internet access service provider shall
permit such assurances for all Internet Protocol packets
chosen by the end user, without regard to the content,
applications, or services involved; and
``(B) any quality-of-service assurance shall not block,
interfere with, or degrade, any other end user's access to
the content, applications, and services of their choice.
``(c) Ensuring Open Access to the Broadband Internet.--A
broadband Internet access service provider may not unjustly
or unreasonably--
``(1) block, interfere with, or degrade an end user's
ability to access, use, send, post, receive, or offer lawful
content (including fair use), applications, or services of
the user's choice;
``(2) block, interfere with, or degrade an end user's
ability to connect and use the end user's choice of legal
devices that do not harm the network;
``(3) prevent or interfere with competition among network,
applications, service or content providers;
``(4) engage in discrimination against any lawful Internet
content, application, service, or service provider with
respect to network management practices, network performance
characteristics, or commercial terms and conditions;
``(5) give preference to affiliated content, applications,
or services with respect to network management practices,
network performance characteristics, or commercial terms and
conditions;
``(6) charge a content, application, or service provider
for access to the broadband Internet access service
providers' end users based on differing levels of quality of
service or prioritized delivery of Internet protocol packets;
``(7) prioritize among or between content, applications,
and services, or among or between different types of content,
applications, and services unless the end user requests to
have such prioritization;
``(8) install or utilize network features, functions, or
capabilities that prevent or interfere with compliance with
the requirements of this section; or
``(9) refuse to interconnect on just and reasonable terms
and conditions.
``(d) Reasonable Network Management.--
``(1) In general.--Nothing in this section shall prohibit a
broadband Internet access service provider from engaging in
reasonable network management.
``(2) Reasonableness presumption.--For purposes of this
section, a network management practice is presumed to be
reasonable for a broadband Internet access service provider
only if it is--
``(A) essential for a legitimate network management purpose
assuring the operation of the network;
``(B) appropriate for achieving the stated purpose;
``(C) narrowly tailored; and
``(D) among the least restrictive, least discriminatory,
and least constricting of consumer choice available.
``(3) Factors to be considered.--In determining whether a
network management practice is reasonable, the Commission
shall take into account the particular network architecture
and any technology and operational limitations of the
broadband Internet access service provider.
``(4) Limitation.--A network management practice may not be
considered to be a reasonable network management if the
broadband Internet access service provider charges content,
applications, or other online service providers for differing
levels of quality of service or prioritized delivery of
Internet Protocol packets.
``(e) Other Regulated Services.--This section shall not be
construed to prevent broadband Internet access service
providers from offering interconnected Voice over Internet
Protocol (VoIP) services or multichannel-video programming
distribution services regulated under title VI of this Act on
transmission capacity also used by broadband Internet access
services.
``(f) Transparency.--
``(1) In general.--A provider of broadband Internet access
service--
``(A) shall disclose publicly on its external website and
at the point of sale accurate information regarding the
network management practices, network performance, and
commercial terms of its broadband Internet access service in
plain language sufficient for end users to make informed
choices regarding use of such services, and for content,
application, service, and device providers to develop,
market, and maintain Internet offerings; and
``(B) shall disclose publicly on its external website and
at the point of sale any other practices that affect
communications between a user and a content, application, or
service provider in the ordinary, routine use of such
broadband service.
``(2) Exemptions.--The Commission may exempt certain kinds
of information from disclosure on the grounds that it is
competitively sensitive or could compromise network
security.Within 90 days after the date of enactment of the
Internet Freedom, Broadband Promotion, and Consumer
Protection Act of 2011, the Commission shall conclude a
rulemaking proceeding to implement this subsection.
``(g) Stand-Alone Internet Access Service.--
``(1) In general.--Within 180 days after the date of
enactment of the Internet Freedom, Broadband Promotion, and
Consumer Protection Act of 2011, the Commission shall
promulgate rules to ensure that broadband Internet access
providers do not require the purchase of voice grade
telephone service, commercial mobile radio voice services, or
multichannel-video programming distribution services as a
condition of purchasing any broadband Internet access
service, and that the rates, terms, and conditions for
providing such service are just and reasonable.
``(2) Report.--In the report required by section 706 of the
Telecommunications Act of 1996 (47 U.S.C. 1302), the
Commission shall collect information on the availability,
promotion, average speed, and average pricing of stand-alone
broadband Internet access service offered by broadband
Internet access providers.
``(3) Eligibility to access any universal service fund for
broadband.--If the Commission establishes a universal service
fund for broadband Internet services, only broadband Internet
access service providers that offer stand-alone broadband
service shall be eligible to participate in the fund.
``(h) Enforcement, Liability, and Recovery of Damages.--
``(1) Expedited complaint process.--Within 180 days after
the date of enactment of the Internet Freedom, Broadband
Promotion, and Consumer Protection Act of 2011, the
Commission shall prescribe rules to permit any aggrieved
person to file a complaint with the Commission concerning a
violation of subsections (b), (c), or (g) of this section,
and establish enforcement and expedited adjudicatory review
procedures including the resolution of complaints not later
than 90 days after such complaint was filed, except for good
cause shown.
``(2) Libility of broadband Internet access service
providers for damages.--If a broadband Internet access
service provider does, or causes or permits to be done, any
act, matter, or thing that is prohibited under this section,
or fails to do any act, matter, or thing required by this
section to be done, the provider shall be liable to the
person or persons injured thereby for the full amount of
damages sustained in consequence of any such violation of the
provisions of this section, together with a reasonable
counsel or attorney's fee, as determined by the Commission.
``(3) Venue.--Any person claiming to be damaged by any
broadband Internet access provider subject to the provisions
of this section may either make a complaint to the Commission
as provided for in paragraph (1), or may bring suit for the
recovery of the damages in a district court of the United
States that meets applicable requirements relating to venue
under section 1391 of title 28, United States Code. A
claimant may not bring an action in a Federal district court
if the claimant has filed a complaint with the Commission
under paragraph (1) with respect to the same violation.
``(i) Enforcement by States.--
``(1) In general.--The chief legal officer of a State, or
any other State officer authorized by law to bring actions on
behalf of the residents of a State, may bring a civil action,
as parens patriae, on behalf of the residents of that State
in an appropriate district court of the United States to
enforce this section or to impose civil penalties for
violation of this section, whenever the chief legal officer
or other State officer has reason to believe that the
interests of the residents of the State have been or are
being threatened or adversely affected by a violation of this
section.
``(2) Notice.--The chief legal officer or other State
officer shall serve written notice on the Commission of any
civil action under paragraph (1) prior to initiating such
civil action. The notice shall include a copy of the
complaint to be filed to initiate such civil action, except
that if it is not feasible for the State to provide such
prior notice, the State shall provide such notice immediately
upon instituting such civil action.
``(3) Authority to intervene.--Upon receiving the notice
required by paragraph (2), the Commission shall have the
right--
``(A) to intervene in the action;
[[Page S185]]
``(B) upon so intervening, to be heard on all matters
arising therein; and
``(C) to file petitions for appeal.
``(4) Rule of construction.--For purposes of bringing any
civil action under paragraph (1), nothing in this subsection
shall prevent the chief legal officer or other State officer
from exercising the powers conferred on that officer by the
laws of such State to conduct investigations or to administer
oaths or affirmations or to compel the attendance of
witnesses or the production of documentary and other evidence
``(5) Venue; service of process.--
``(A) Venue.--An action brought under paragraph (1) shall
be brought in a district court of the United States that
meets applicable requirements relating to venue under section
1391 of title 28, United States Code.
``(B) Service of process.--In an action brought under
paragraph (1)--
``(i) process may be served without regard to the
territorial limits of the district or of the State in which
the action is instituted; and
``(ii) a person who participated in an alleged violation
that is being litigated in the civil action may be joined in
the civil action without regard to the residence of the
person.
``(j) Commission Authority.--The Commission may perform any
and all acts, make such rules and regulations and issue such
orders, not inconsistent with this section, as may be
necessary to implement the purposes of this section.
``(k) Other Laws and Considerations.--
``(1) Nothing in this section supersedes any obligation or
authorization a provider or broadband Internet access service
may have to address the needs of emergency communications or
law enforcement, public safety, or national security
authorities, consistent with or as permitted by applicable
law, or limits the provider's ability to do so.
``(2) Nothing in this section authorizes a provider of
broadband Internet access service to address copyright
infringement or other unlawful activity of providers,
subscribers, or users, beyond its obligations under the
Digital Millennium Copyright Act (17 U.S.C. 101 note), the
amendments made by that Act, and consistent other applicable
laws.
``(l) Studies.--Within one-year after the date of enactment
of this Act the Government Accountability Office shall
complete and submit reports to the Senate Committee on
Commerce, Science, and Transportation, and the House
Committee on Energy and Commerce, on the evolution of
commercial and other arrangements by which broadband Internet
access service providers interconnect to Internet backbone
providers and intermediary networks, and assess whether, as
the volume and mix of Internet Protocol traffic requested by
and transported to and from the customers of broadband
Internet access service providers has changed over time,
there is a market failure with respect to the existing market
mechanisms of transit contracts and non-settlement peering
agreements.
``(m) Definitions.--In this section:
``(1) Affiliated.--The term `affiliated' includes--
``(A) a person that (directly or indirectly) owns or
controls, is owned or controlled by, or is under common
ownership or control with another person; and
``(B) a person that has a contract or other arrangement
with a content, application, or service provider relating to
access to or distribution of such content, application or
services over the Internet.
``(2) Broadband internet access.--The term `broadband
Internet access'--
``(A) means the ability for an end user to transmit and
receive data to the Internet using Internet Protocol at peak
download data transfer rates in excess of 200 kilobits per
second, through an always-on connection; but
``(B) does not include dial-up access requiring an end user
to initiate a call across the public switched telephone
network to establish a connection.
``(3) Broadband internet access service.--The term
`broadband Internet access service' means any communications
service by wire or radio that provides broadband Internet
access directly to the public, or to such classes of users as
to be effectively available directly to the public.
``(4) Broadband internet access service provider.--The term
`broadband Internet access service provider' means a person
or entity that operates or resells and controls any facility
used to provide an Internet access service directly to the
public, whether provided for a fee or for free, and whether
provided via wire or radio, except when such service is
offered as an incidendal component of a noncommunications
contractual relationship.
``(5) End user.--The term `end user' means any person who,
by way of a broadband service, takes and utilizes Internet
services, whether provided for a fee, in exchange for an
explicit benefit, or for free.''.
``(6) Internet.--The term `Internet' means a system of
interconnected networks that use the Internet Protocol for
communications with resources or endpoints reachable,
directly or through a proxy, via a globally unique Internet
address assigned by the Internet Assigned Numbers Authority
or any successor or designee; or any technology the
Commission shall find to be functionally equivalent.
``(7) Interconnected voice over internet protocol (voip)
service.--The term `Interconnected VoIP service' means a
service that enables real-time, two-way voice communications;
requires a broadband connection from the user's location;
requires Internet protocol compatible customer premises
equipment; and permits users generally to receive calls that
originate on the public switched telephone network and to
terminate calls to the public switched telephone network
subject to section 9.3 of the Commission's regulations (47
C.F.R. 9.3).
______
By Mr. KOHL (for himself, Mrs. Feinstein, Mr. Durbin, Mr.
Whitehouse, Ms. Klobuchar, Mr. Franken, and Mr. Wyden):
S. 75. A bill to restore the rule that agreements between
manufacturers and retailers, distributors, or wholesalers to set the
minimum price below which the manufacturer's product or service cannot
be sold violates the Sherman Act; to the Committee on the Judiciary.
Mr. KOHL. Mr. President, I rise today to introduce legislation
essential to consumers receiving the best prices on every product from
electronics to clothing to groceries. My bill, the Discount Pricing
Consumer Protection Act, will restore the nearly century old rule that
it is illegal under antitrust law for a manufacturer to set a minimum
price below which a retailer cannot sell the manufacturer's product, a
practice known as ``resale price maintenance'' or ``vertical price
fixing.'' This bill wil ensure that consumers can obtain discount
prices at the very time they need them the most.
In June 2007, overturning a 96-year-old precedent, a narrow 5-4
Supreme Court majority in the Leegin case turned the Sherman Act on its
head to overturn this basic rule of the marketplace which has served
consumers well for nearly a century. My bill--identical to legislation
I introduced in the last two Congresses--will correct this
misinterpretation of antitrust law and restore the per se ban on
vertical price fixing. My bill has been endorsed by the National
Association of Attorneys General, 38 state attorneys general, as well
as numerous antitrust experts, including former FTC Chairman Pitofsky
and former FTC Commissioner Harbour, and the leading consumer groups,
including Consumers Union, the Consumers Federation of America, and the
American Antitrust Institute. This legislation passed the Judiciary
Committee last year.
The reasons for this legislation are compelling. Allowing
manufacturers to set minimum retail prices will threaten the very
existence of discounting and discount stores, and lead to higher prices
for consumers. For nearly a century the rule against vertical price
fixing permitted discounters to sell goods at the most competitive
price. Many credit this rule with the rise of today's low price,
discount retail giants--stores like Target, Best Buy, Walmart, and the
internet sites Amazon and EBay, which offer consumers a wide array of
highly desired products at discount prices.
Ample evidence exists of the pernicious effect of allowing vertical
price fixing. For nearly 40 years until 1975 when Congress passed the
Consumer Goods Pricing Act, Federal law permitted States to enact so-
called ``fair trade'' laws legalizing vertical price fixing. Studies
the Department of Justice conducted in the late 1960s indicated that
prices were between 18-27 percent higher in the States that allowed
vertical price fixing than the States that had not passed such ``fair
trade'' laws, costing consumers at least $2.1 billion per year at that
time.
Given the tremendous economic growth in the intervening decades, the
likely harm to consumers if vertical price fixing were permitted is
even greater today. In his dissenting opinion in the Leegin case,
Justice Breyer estimated that if only 10 percent of manufacturers
engaged in vertical price fixing, the volume of commerce affected today
would be $300 billion, translating into retail bills that would average
$750 to $1,000 higher for the average family of four every year.
The experience of the last three years since the Leegin decision has
begun to confirm our fears regarding the dangers from permitting
vertical price fixing. The Wall Street Journal has reported that more
than 5,000 companies have implemented minimum pricing policies. A new
business--known as ``internet monitors''--has materialized for
companies that scour the Internet in search of retailers selling
products at a bargain. When such bargain sellers are detected, the
manufacturer is alerted so that they can demand the seller
[[Page S186]]
end its discounting. There have been many reports of everything from
consumer electronics and video games to baby products and toys, rental
cars and bicycles being subject to minimum retail pricing policies.
Defenders of the Leegin decision argue that today's giant retailers
such as Wal-Mart, Best Buy or Target can ``take care of themselves''
and have sufficient market power to fight manufacturer efforts to
impose retail prices. Whatever the merits of that argument, I am
particularly worried about the effect of this new rule permitting
minimum vertical price fixing on the next generation of discount
retailers. If new discount retailers can be prevented from selling
products at a discount at the behest of an established retailer worried
about the competition, we will imperil an essential element of retail
competition so beneficial to consumers.
In overturning the per se ban on vertical price fixing, the Supreme
Court in Leegin announced this practice should instead be evaluated
under what is known as the ``rule of reason.'' Under the rule of
reason, a business practice is illegal only if it imposes an
``unreasonable'' restraint on competition. The burden is on the party
challenging the practice to prove in court that the anti-competitive
effects of the practice outweigh its justifications. In the words of
the Supreme Court, the party challenging the practice must establish
the restraint's ``history, nature and effect.'' Whether the businesses
involved possess market power ``is a further, significant
consideration'' under the rule of reason.
In short, establishing that any specific example of vertical price
fixing violates the rule of reason is an onerous and difficult burden
for a plaintiff in an antitrust case. Parties complaining about
vertical price fixing are likely to be small discount stores or
consumers with limited resources to engage in lengthy and complicated
antitrust litigation. These plaintiffs are unlikely to possess the
facts and complicated economic evidence necessary to make the extensive
showing necessary to prove a case under the ``rule of reason.'' In the
words of former FTC Commissioner Pamela Jones Harbour, applying the
rule of reason to vertical price fixing ``is a virtual euphemism for
per se legality.''
Our Antitrust Subcommittee conducted two extensive hearings into the
Leegin decision and the likely effects of abolishing the ban on
vertical price fixing in the last two Congresses. Both former FTC
Chairman Robert Pitofsky and former FTC Commissioner Harbour strongly
endorsed restoring the ban on vertical price fixing. Marcy Syms, CEO of
the Syms discount clothing stores, and a senior executive of the
Burlington Coat Factory discount chain testified as well, both citing
the likely dangers to the ability of discounters such as Syms to
survive after abolition of the rule against vertical price fixing. Ms.
Syms also stated that ``it would be very unlikely for her to bring an
antitrust suit'' challenging vertical price fixing under the rule of
reason because her company ``would not have the resources, knowledge or
a strong enough position in the market place to make such action
prudent.'' Our examination of this issue has produced compelling
evidence for the continued necessity of a ban on vertical price fixing
to protect discounting and low prices for consumers.
The Discount Pricing Consumer Protection Act will accomplish this
goal. My legislation is quite simple and direct. It would simply add
one sentence to Section 1 of the Sherman Act--the basic provision
addressing combinations in restraint of trade--a statement that any
agreement with a retailer, wholesaler or distributor setting a price
below which a product or service cannot be sold violates the law. No
balancing or protracted legal proceedings will be necessary. Should a
manufacturer enter into such an agreement it will unquestionably
violate antitrust law. The uncertainty and legal impediments to
antitrust enforcement of vertical price fixing will be replaced by
simple and clear legal rule--a legal rule that will promote low prices
and discount competition to the benefit of consumers every day.
In the last few decades, millions of consumers have benefited from an
explosion of retail competition from new large discounters in virtually
every product, from clothing to electronics to groceries, in both ``big
box'' stores and on the Internet. Our legislation will correct the
Supreme Court's abrupt change to antitrust law, and will ensure that
today's vibrant competitive retail marketplace and the savings gained
by American consumers from discounting will not be jeopardized by the
abolition of the ban on vertical price fixing. I urge my colleagues to
support this bill.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 75
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Discount Pricing Consumer
Protection Act''.
SEC. 2. STATEMENT OF FINDINGS AND DECLARATION OF PURPOSES.
(a) Findings.--Congress finds the following:
(1) From 1911 in the Dr. Miles decision until June 2007 in
the Leegin decision, the Supreme Court had ruled that the
Sherman Act forbid in all circumstances the practice of a
manufacturer setting a minimum price below which any
retailer, wholesaler or distributor could not sell the
manufacturer's product (the practice of ``resale price
maintenance'' or ``vertical price fixing'').
(2) The rule of per se illegality forbidding resale price
maintenance promoted price competition and the practice of
discounting all to the substantial benefit of consumers and
the health of the economy.
(3) Many economic studies showed that the rule against
resale price maintenance led to lower prices and promoted
consumer welfare.
(4) Abandoning the rule against resale price maintenance
will likely lead to higher prices paid by consumers and
substantially harms the ability of discount retail stores to
compete. For 40 years prior to 1975, Federal law permitted
states to enact so-called ``fair trade'' laws allowing
vertical price fixing. Studies conducted by the Department of
Justice in the late 1960s indicated that retail prices were
between 18 and 27 percent higher in states that allowed
vertical price fixing than those that did not. Likewise, a
1983 study by the Bureau of Economics of the Federal Trade
Commission found that, in most cases, resale price
maintenance increased the prices of products sold.
(5) The 5-4 decision of the Supreme Court majority in
Leegin incorrectly interpreted the Sherman Act and improperly
disregarded 96 years of antitrust law precedent in
overturning the per se rule against resale price maintenance.
(b) Purposes.--The purposes of this Act are--
(1) to correct the Supreme Court's mistaken interpretation
of the Sherman Act in the Leegin decision; and
(2) to restore the rule that agreements between
manufacturers and retailers, distributors or wholesalers to
set the minimum price below which the manufacturer's product
or service cannot be sold violates the Sherman Act.
SEC. 3. PROHIBITION ON VERTICAL PRICE FIXING.
(a) Amendment to the Sherman Act.--Section 1 of the Sherman
Act (15 U.S.C. 1) is amended by adding after the first
sentence the following: ``Any contract, combination,
conspiracy or agreement setting a minimum price below which a
product or service cannot be sold by a retailer, wholesaler,
or distributor shall violate this Act.''.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect 90 days after the date of enactment of this
Act.
______
By Mrs. HUTCHISON (for herself, Mr. Begich, Mr. Barrasso, Mr.
Cornyn, Mr. Alexander, and Mr. Thune):
S. 80. A bill to provide a permanent deduction for State and local
general sales taxes; to the Committee on Finance.
Mrs. HUTCHISON. Mr. President, I am pleased to introduce a bill to
permanently correct an injustice in the tax code that has harmed
citizens in many States of this great Nation.
State and local governments have various alternatives for raising
revenue. Some levy income taxes, some use sales taxes, and others use a
combination of the two. The citizens who pay State and local income
taxes have been able to offset some of their Federal income taxes by
receiving a deduction for those State and local income taxes. Before
1986, taxpayers also had the ability to deduct their sales taxes.
The philosophy behind these deductions is simple: people should not
have to pay taxes on their taxes. The money that people must give to
one level of government should not also be taxed by another level of
government.
Unfortunately, citizens of some States were treated differently after
[[Page S187]]
1986 when the deduction for State and local sales taxes was eliminated.
This discriminated against those living in States, such as my home
State of Texas, with no income taxes. It is important to remember the
lack of an income tax does not mean citizens in these States do not pay
State taxes; revenues are simply collected differently.
It is unfair to give citizens from some States a deduction for the
revenue they provide their State and local governments, while not doing
the same for citizens from other States. Federal tax law should not
treat people differently on the basis of State residence and differing
tax collection methods, and it should not provide an incentive for
States to establish income taxes over sales taxes.
This discrepancy has a significant impact on Texas. According to the
Texas Comptroller, extending the deduction would save Texans a
projected $1.2 billion a year, or an average of $520 per filer claiming
the deduction. The Texas Comptroller also estimates continuing the
deduction is associated with 15,700 to 25,700 Texas jobs and $1.1
billion to $1.4 billion in gross state product.
Recognizing the inequity in the tax code, Congress reinstated the
sales tax deduction in 2004 and authorized it for 2 years. Congress
further extended the sales tax deduction in 2006 and 2008,
respectively. On January 1, 2010, however, the sales tax deduction
expired, and, for much of this past year, many Americans once again
faced the prospect of paying Federal income taxes on their State and
local sales taxes.
Fortunately, under the recent agreement to extend the broader tax
relief for all Americans, Congress staved off the return of the sales
tax deduction by extending it for 2 years, retroactive to January 1,
2010. However, this deduction is only in effect through 2011, and we
must act to prevent the inequity from returning.
The legislation I am offering today will fix this problem for good by
making the State and local sales tax deduction permanent. This will
permanently end the discrimination suffered by my fellow Texans and
citizens of other States who do not have the option of an income tax
deduction.
This legislation is about reestablishing equity to the tax code and
defending the important principle of eliminating taxes on taxes. I hope
my fellow Senators will support this effort and pass this legislation,
and I appreciate the backing of Senators Barrasso, Begich, Cornyn,
Alexander, Enzi and Thune who have already signed on as co-sponsors.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 80
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PERMANENT EXTENSION OF DEDUCTION FOR STATE AND
LOCAL GENERAL SALES TAXES.
(a) In General.--Subparagraph (I) of section 164(b)(5) of
the Internal Revenue Code of 1986, as amended by section 722
of the Tax Relief, Unemployment Insurance Reauthorization,
and Job Creation Act of 2010, is amended by striking ``, and
before January 1, 2012''.
(b) Effective Date.--The amendment made by this section
shall apply to taxable years beginning after December 31,
2011.
______
By Mr. REID (for Mrs. Feinstein (for herself and Mrs. Boxer):-
S. 97. A bill to amend the Federal Water Pollution Control Act to
establish a grant program to support the restoration of San Francisco
Bay; to the Committee on Environment and Public Works.
Mr. REID for Mrs. FEINSTEIN. Mr. President, I rise on behalf of
myself and Senator Boxer to introduce legislation to further the
restoration of the San Francisco Bay.
There are many areas in the country in which restoration is done, and
I am pleased to introduce an authorization for restoration work in the
San Francisco Bay with Senator Boxer, Chairwoman of the Senate
Environment and Public Works Committee. Companion legislation will also
be introduced in the U.S. House of Representatives by Congresswoman
Jackie Speier.
As Chair of the Appropriations Subcommittee on Interior, Environment,
and Related Agencies, I secured $17 million in Federal funding for
ecosystem restoration and water quality work in the San Francisco Bay
in the last three years. I also secured $15 million since 2006 for the
Fish and Wildlife Service to restore salt ponds to tidal wetlands in
the Bay.
It is necessary to ensure that these funds continue to be
appropriated and are spent on the most important projects for the
ecosystem and public benefit.
To that end, this legislation will prioritize funding for projects
that will protect and restore vital estuarine habitat for migratory
waterfowl, shorebirds, and wildlife; improve and restore water quality
and rearing habitat for fish; and ensure public benefits.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 97
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``San Francisco Bay
Restoration Act''.
SEC. 2. SAN FRANCISCO BAY RESTORATION GRANT PROGRAM.
Title I of the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.) is amended by adding at the end the
following:
``SEC. 123. SAN FRANCISCO BAY RESTORATION GRANT PROGRAM.
``(a) Definitions.--In this section:
``(1) Annual priority list.--The term `annual priority
list' means the annual priority list compiled under
subsection (b).
``(2) Comprehensive plan.--The term `comprehensive plan'
means--
``(A) the comprehensive conservation and management plan
approved under section 320 for the San Francisco Bay estuary;
and
``(B) any amendments to that plan.
``(3) Estuary partnership.--The term `Estuary Partnership'
means the San Francisco Estuary Partnership, the entity that
is designated as the management conference under section 320.
``(b) Annual Priority List.--
``(1) In general.--After providing public notice, the
Administrator shall annually compile a priority list
identifying and prioritizing the activities, projects, and
studies intended to be funded with the amounts made available
under subsection (c).
``(2) Inclusions.--The annual priority list compiled under
paragraph (1) shall include--
``(A) activities, projects, or studies, including
restoration projects and habitat improvement for fish,
waterfowl, and wildlife, that advance the goals and
objectives of the approved comprehensive plan;
``(B) information on the activities, projects, programs, or
studies specified under subparagraph (A), including a
description of--
``(i) the identities of the financial assistance
recipients; and
``(ii) the communities to be served; and
``(C) the criteria and methods established by the
Administrator for selection of activities, projects, and
studies.
``(3) Consultation.--In developing the priority list under
paragraph (1), the Administrator shall consult with and
consider the recommendations of--
``(A) the Estuary Partnership;
``(B) the State of California and affected local
governments in the San Francisco Bay estuary watershed; and
``(C) any other relevant stakeholder involved with the
protection and restoration of the San Francisco Bay estuary
that the Administrator determines to be appropriate.
``(c) Grant Program.--
``(1) In general.--Pursuant to section 320, the
Administrator may provide funding through cooperative
agreements, grants, or other means to State and local
agencies, special districts, and public or nonprofit
agencies, institutions, and organizations, including the
Estuary Partnership, for activities, studies, or projects
identified on the annual priority list.
``(2) Maximum amount of grants; non-federal share.--
``(A) Maximum amount of grants.--Amounts provided to any
individual or entity under this section for a fiscal year
shall not exceed an amount equal to 75 percent of the total
cost of any eligible activities that are to be carried out
using those amounts.
``(B) Non-federal share.--The non-Federal share of the
total cost of any eligible activities that are carried out
using amounts provided under this section shall be--
``(i) not less than 25 percent; and
``(ii) provided from non-Federal sources.
``(d) Funding.--
``(1) Authorization of appropriations.--There are
authorized to be appropriated to the Administrator to carry
out this section such sums as are necessary for each of
fiscal years 2012 through 2021.
``(2) Administrative expenses.--Of the amount made
available to carry out this section for a fiscal year, the
Administrator
[[Page S188]]
shall use not more than 5 percent to pay administrative
expenses incurred in carrying out this section.
``(3) Relationship to other funding.--Nothing in this
section limits the eligibility of the Estuary Partnership to
receive funding under section 320(g).
``(4) Prohibition.--No amounts made available under
subsection (c) may be used for the administration of a
management conference under section 320.''.
______
By Mr. BINGAMAN (for himself and Ms. Murkowski):
S. 99. A bill to promote the production of molybdenum-99 in the
United States for medical isotope production, and to condition and
phase out the export of highly enriched uranium for the production of
medical isotopes; to the Committee on Energy and Natural Resources.
Mr. BINGAMAN. Mr. President, today I am introducing the American
Medical Isotopes Production Act of 2011. The purpose of the bill is to
provide certainty in developing a domestic supply of molybdenum-99,
which is used to produce technetium-99m, one of the most widely used
medical isotopes in the United States. Right now we import all of our
molybdenum-99 from outside the United States, primarily Canada and the
Netherlands, from reactors that are old and that will most likely be
shut down within the next 10 years. In addition, this bill moves us
away from using highly enriched bomb-grade uranium targets to those
that are low-enriched; that is, that are less than 20 percent in the
fissile isotope uranium-235. I think this is a very important
nonproliferation goal because the world is currently in discussion with
Iran on replacing fuel and targets from their medical isotopes reactor;
we should lead by example in dealing in this area with countries like
Iran that can now enrich nuclear fuel.
The Committee on Energy and Natural Resources held a very detailed
hearing on this topic last Congress. The bill we reported unanimously
had a wide body of support among the medical isotopes and non-
proliferation communities. I am attaching several letters from the last
Congress as evidence of the wide support for this bill.
The new bill that I am introducing today is identical to the bill
reported by the Committee in the last Congress, H.R. 3276, as amended.
There are only two differences between this bill and the one from the
last Congress. The authorization level has been lowered by $20 million
to account for the fact that we are in fiscal year 2011 and not fiscal
year 2010, and technical PAYGO language has been added.
Mr. President, I ask unanimous consent that the text of the bill and
letters of support be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 99
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Medical Isotopes
Production Act of 2011''.
SEC. 2. IMPROVING THE RELIABILITY OF DOMESTIC MEDICAL ISOTOPE
SUPPLY.
(a) Medical Isotope Development Projects.--
(1) In general.--The Secretary of Energy shall establish a
technology-neutral program--
(A) to evaluate and support projects for the production in
the United States, without the use of highly enriched
uranium, of significant quantities of molybdenum-99 for
medical uses;
(B) to be carried out in cooperation with non-Federal
entities; and
(C) the costs of which shall be shared in accordance with
section 988 of the Energy Policy Act of 2005 (42 U.S.C.
16352).
(2) Criteria.--Projects shall be judged against the
following primary criteria:
(A) The length of time necessary for the proposed project
to begin production of molybdenum-99 for medical uses within
the United States.
(B) The capability of the proposed project to produce a
significant percentage of United States demand for
molybdenum-99 for medical uses.
(C) The cost of the proposed project.
(3) Exemption.--An existing reactor fueled with highly
enriched uranium shall not be disqualified from the program
if the Secretary of Energy determines that--
(A) there is no alternative nuclear reactor fuel, enriched
in the isotope U-235 to less than 20 percent, that can be
used in that reactor;
(B) the reactor operator has provided assurances that,
whenever an alternative nuclear reactor fuel, enriched in the
isotope U-235 to less than 20 percent, can be used in that
reactor, it will use that alternative in lieu of highly
enriched uranium; and
(C) the reactor operator has provided a current report on
the status of its efforts to convert the reactor to an
alternative nuclear reactor fuel enriched in the isotope U-
235 to less than 20 percent, and an anticipated schedule for
completion of conversion.
(4) Public participation and review.--The Secretary of
Energy shall--
(A) develop a program plan and annually update the program
plan through public workshops; and
(B) use the Nuclear Science Advisory Committee to conduct
annual reviews of the progress made in achieving the program
goals.
(5) Authorization of appropriations.--There are authorized
to be appropriated to the Secretary of Energy for carrying
out the program under paragraph (1) $143,000,000 for the
period encompassing fiscal years 2011 through 2014.
(b) Development Assistance.--The Secretary of Energy shall
establish a program to provide assistance for--
(1) the development of fuels, targets, and processes for
domestic molybdenum-99 production that do not use highly
enriched uranium; and
(2) commercial operations using the fuels, targets, and
processes described in paragraph (1).
(c) Uranium Lease and Take Back.--The Secretary of Energy
shall establish a program to make low enriched uranium
available, through lease contracts, for irradiation for the
production of molybdenum-99 for medical uses. The lease
contracts shall provide for the Secretary to retain
responsibility for the final disposition of radioactive waste
created by the irradiation, processing, or purification of
leased uranium. The lease contracts shall also provide for
compensation in cash amounts equivalent to prevailing market
rates for the sale of comparable uranium products and for
compensation in cash amounts equivalent to the net present
value of the cost to the Federal Government for the final
disposition of such radioactive waste, provided that the
discount rate used to determine the net present value of such
costs shall be no greater than the average interest rate on
marketable Treasury securities. The Secretary shall not
barter or otherwise sell or transfer uranium in any form in
exchange for services related to final disposition of the
radioactive waste from such leased uranium.
SEC. 3. EXPORTS.
Section 134 of the Atomic Energy Act of 1954 (42 U.S.C.
2160d) is amended by striking subsections b. and c. and
inserting in lieu thereof the following:
``b. Effective 7 years after the date of enactment of the
American Medical Isotopes Production Act of 2011, the
Commission may not issue a license for the export of highly
enriched uranium from the United States for the purposes of
medical isotope production.
``c. The period referred to in subsection b. may be
extended for no more than 6 years if, no earlier than 6 years
after the date of enactment of the American Medical Isotopes
Production Act of 2011, the Secretary of Energy certifies to
the Committee on Energy and Commerce of the House of
Representatives and the Committee on Energy and Natural
Resources of the Senate that--
``(1) there is insufficient global supply of molybdenum-99
produced without the use of highly enriched uranium available
to satisfy the domestic United States market; and
``(2) the export of United States-origin highly enriched
uranium for the purposes of medical isotope production is the
most effective temporary means to increase the supply of
molybdenum-99 to the domestic United States market.
``d. To ensure public review and comment, the development
of the certification described in subsection c. shall be
carried out through announcement in the Federal Register.
``e. At any time after the restriction of export licenses
provided for in subsection b. becomes effective, if there is
a critical shortage in the supply of molybdenum-99 available
to satisfy the domestic United States medical isotope needs,
the restriction of export licenses may be suspended for a
period of no more than 12 months, if--
``(1) the Secretary of Energy certifies to the Congress
that the export of United States-origin highly enriched
uranium for the purposes of medical isotope production is the
only effective temporary means to increase the supply of
molybdenum-99 necessary to meet United States medical isotope
needs during that period; and
``(2) the Congress enacts a Joint Resolution approving the
temporary suspension of the restriction of export licenses.
``f. As used in this section--
``(1) the term `alternative nuclear reactor fuel or target'
means a nuclear reactor fuel or target which is enriched to
less than 20 percent in the isotope U-235;
``(2) the term `highly enriched uranium' means uranium
enriched to 20 percent or more in the isotope U-235;
``(3) a fuel or target `can be used' in a nuclear research
or test reactor if--
``(A) the fuel or target has been qualified by the Reduced
Enrichment Research and Test Reactor Program of the
Department of Energy; and
``(B) use of the fuel or target will permit the large
majority of ongoing and planned experiments and isotope
production to be conducted in the reactor without a large
percentage increase in the total cost of operating the
reactor; and
[[Page S189]]
``(4) the term `medical isotope' includes molybdenum-99,
iodine-131, xenon-133, and other radioactive materials used
to produce a radiopharmaceutical for diagnostic, therapeutic
procedures or for research and development.''.
SEC. 4. REPORT ON DISPOSITION OF EXPORTS.
Not later than 1 year after the date of the enactment of
this Act, the Chairman of the Nuclear Regulatory Commission,
after consulting with other relevant agencies, shall submit
to the Congress a report detailing the current disposition of
previous United States exports of highly enriched uranium,
including--
(1) their location;
(2) whether they are irradiated;
(3) whether they have been used for the purpose stated in
their export license;
(4) whether they have been used for an alternative purpose
and, if so, whether such alternative purpose has been
explicitly approved by the Commission;
(5) the year of export, and reimportation, if applicable;
(6) their current physical and chemical forms; and
(7) whether they are being stored in a manner which
adequately protects against theft and unauthorized access.
SEC. 5. DOMESTIC MEDICAL ISOTOPE PRODUCTION.
(a) In General.--Chapter 10 of the Atomic Energy Act of
1954 (42 U.S.C. 2131 et seq.) is amended by adding at the end
the following new section:
``Sec. 112. Domestic Medical Isotope Production.-- a. The
Commission may issue a license, or grant an amendment to an
existing license, for the use in the United States of highly
enriched uranium as a target for medical isotope production
in a nuclear reactor, only if, in addition to any other
requirement of this Act--
``(1) the Commission determines that--
``(A) there is no alternative medical isotope production
target, enriched in the isotope U-235 to less than 20
percent, that can be used in that reactor; and
``(B) the proposed recipient of the medical isotope
production target has provided assurances that, whenever an
alternative medical isotope production target can be used in
that reactor, it will use that alternative in lieu of highly
enriched uranium; and
``(2) the Secretary of Energy has certified that the United
States Government is actively supporting the development of
an alternative medical isotope production target that can be
used in that reactor.
``b. As used in this section--
``(1) the term `alternative medical isotope production
target' means a nuclear reactor target which is enriched to
less than 20 percent of the isotope U-235;
``(2) a target `can be used' in a nuclear research or test
reactor if--
``(A) the target has been qualified by the Reduced
Enrichment Research and Test Reactor Program of the
Department of Energy; and
``(B) use of the target will permit the large majority of
ongoing and planned experiments and isotope production to be
conducted in the reactor without a large percentage increase
in the total cost of operating the reactor;
``(3) the term `highly enriched uranium' means uranium
enriched to 20 percent or more in the isotope U-235; and
``(4) the term `medical isotope' includes molybdenum-99,
iodine-131, xenon-133, and other radioactive materials used
to produce a radiopharmaceutical for diagnostic, therapeutic
procedures or for research and development.''.
(b) Table of Contents.--The table of contents for the
Atomic Energy Act of 1954 is amended by inserting the
following new item at the end of the items relating to
chapter 10 of title I:
``Sec. 112. Domestic medical isotope production.''.
SEC. 6. ANNUAL DEPARTMENT OF ENERGY REPORTS.
The Secretary of Energy shall report to Congress no later
than one year after the date of enactment of this Act, and
annually thereafter for 5 years, on Department of Energy
actions to support the production in the United States,
without the use of highly enriched uranium, of molybdenum-99
for medical uses. These reports shall include the following:
(1) For medical isotope development projects--
(A) the names of any recipients of Department of Energy
support under section 2 of this Act;
(B) the amount of Department of Energy funding committed to
each project;
(C) the milestones expected to be reached for each project
during the year for which support is provided;
(D) how each project is expected to support the increased
production of molybdenum-99 for medical uses;
(E) the findings of the evaluation of projects under
section 2(a)(2) of this Act; and
(F) the ultimate use of any Department of Energy funds used
to support projects under section 2 of this Act.
(2) A description of actions taken in the previous year by
the Secretary of Energy to ensure the safe disposition of
radioactive waste from used molybdenum-99 targets.
SEC. 7. NATIONAL ACADEMY OF SCIENCES REPORT.
The Secretary of Energy shall enter into an arrangement
with the National Academy of Sciences to conduct a study of
the state of molybdenum-99 production and utilization, to be
provided to the Congress not later than 5 years after the
date of enactment of this Act. This report shall include the
following:
(1) For molybdenum-99 production--
(A) a list of all facilities in the world producing
molybdenum-99 for medical uses, including an indication of
whether these facilities use highly enriched uranium in any
way;
(B) a review of international production of molybdenum-99
over the previous 5 years, including--
(i) whether any new production was brought online;
(ii) whether any facilities halted production unexpectedly;
and
(iii) whether any facilities used for production were
decommissioned or otherwise permanently removed from service;
and
(C) an assessment of progress made in the previous 5 years
toward establishing domestic production of molybdenum-99 for
medical uses, including the extent to which other medical
isotopes that have been produced with molybdenum-99, such as
iodine-131 and xenon-133, are being used for medical
purposes.
(2) An assessment of the progress made by the Department of
Energy and others to eliminate all worldwide use of highly
enriched uranium in reactor fuel, reactor targets, and
medical isotope production facilities.
SEC. 8. DEFINITIONS.
In this Act the following definitions apply:
(1) Highly enriched uranium.--The term ``highly enriched
uranium'' means uranium enriched to 20 percent or greater in
the isotope U-235.
(2) Low enriched uranium.--The term ``low enriched
uranium'' means uranium enriched to less than 20 percent in
the isotope U-235.
SEC. 9. BUDGETARY EFFECTS.
The budgetary effects of this Act, for the purpose of
complying with the Statutory Pay-As-You-Go-Act of 2010, shall
be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act,
submitted for printing in the Congressional Record by the
Chairman of the Senate Budget Committee, provided that such
statement has been submitted prior to the vote on passage.
____
SNM,
July 21, 2010.
Hon. Harry Reid,
Senate Majority Leader, U.S. Senate, U.S. Capitol, S-221,
Washington, DC.
Hon. Jeff Bingaman,
Chairman, Senate Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Hon. Mitch McConnell,
Senate Minority Leader, U.S. Senate, U.S. Capitol, S-231,
Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Senate Committee on Energy and Natural
Resources, U.S. Senate, Washington, DC.
Dear Majority Leader Reid, Minority Leader McConnell,
Chairman Bingaman, and Ranking Member Murkowski: The Society
of Nuclear Medicine (SNM), a leading, multidisciplinary
international scientific and professional organization with
more than 17,000 physician, technologist, and scientist
members dedicated to promoting the science, technology, and
practical applications of molecular imaging and nuclear
medicine, respectfully requests that the Senate to take up
and pass the American Medical Isotopes Production Act of 2009
(H.R. 3276) as a stand-alone bill or as an amendment to an
appropriate legislative vehicle. Recent disruptions in the
international supply of Molybdenum-99 (Mo-99) have
highlighted the urgent need to ensure a domestic supply for
the U.S. H.R. 3276 would help to ensure a domestic supply of
Mo-99 over the long term and curtail the use of highly-
enriched uranium (HEU) in radionuclide production as a non-
proliferation strategy to deter terrorism.
As you know, the House of Representatives approved this
bill by an overwhelming vote of 400--17 on November 5, 2009
and the Senate Energy and Natural Resources Committee
reported this bill favorably with amendments on January 28,
2010. SNM believes that rapid passage of this legislation is
essential to ensure Americans' access to vital medical
radionuclides and give patients timely access to appropriate
heart and cancer testing.
Molybdenum-99 (Mo-99) decays into Technetium-99m (Tc-99m),
which is used in approximately 16 million nuclear medicine
procedures each year in the U.S. Tc-99m is used in the
detection and staging of cancer, detection of heart disease,
detection of thyroid disease, study of brain and kidney
function, and imaging of stress fractures. In addition to
pinpointing the underlying cause of disease, physicians can
actually see how a disease is affecting other functions in
the body. Imaging with Tc-99m is an important part of patient
care. SNM, along with thousands of nuclear medicine
physicians in the U.S., has, over the course of the last two
years, been disturbed about supply interruptions of Mo-99
from foreign vendors and the lack of a reliable supplier of
Mo-99 in the U.S. Due to these recent shutdowns in Canada,
numerous nuclear medicine professionals across the country
have delayed or had to cancel imaging procedures. Because Mo-
99 is produced through the fission of uranium and has a half-
life of 66 hours, it cannot be produced and then stored for
long periods of time. Unlike traditional pharmaceuticals,
which are dispensed by pharmacists or sold over-the-
[[Page S190]]
counter, nuclear reactors produce radioactive isotopes that
are processed and provided to hospitals and other nuclear
medicine facilities based on demand. Any disruption to the
supply chain can wreak havoc on patient access to important
medical imaging procedures.
In order to ensure that patient needs are not compromised,
a continuous reliable supply of medical radioisotopes is
essential.
Currently there are no facilities in the U.S. that are
dedicated to manufacturing Mo-99 for Mo-99/Tc-99m generators.
The United States must develop domestic capabilities to
produce Mo-99 and not rely solely on foreign suppliers. The
legislation encourages domestic production of Mo-99 for
medical isotopes without HEU in two different ways. First, it
would facilitate the operation of new facilities by granting
the government the ability ``to retain responsibility for the
final disposition of radioactive waste'' under uranium-lease
agreements. The Department of Energy (DoE) does not currently
have this ability and cannot assume the responsibility for
domestic producers' radioactive waste. The bill also
authorizes government cost-sharing which would subsidize
construction of production facilities. Without the multi-year
authorization that is included in H.R. 3276, investments in
domestic productive facilities will be prohibitively
uncertain.
There is significant support for passing this piece of
legislation, which has been endorsed by a variety of
organizations. Further, at a House Energy and Environment
Subcommittee on September 9, 2009, Parrish Staples, the U.S.
official who oversees medical isotope production at DoE's
National Nuclear Security Administration (NNSA) testified as
follows:
``NNSA is working on several Cooperative Agreements to
potential commercial Mo-99 producers, whose projects are in
the most advanced stages of development, accelerating their
efforts to begin producing Mo-99 in quantities adequate to
the U.S. medical community's demand by the end of 2013. . . .
The American Medical Isotopes Production Act of 2009 is
crucial to ensuring the success of these efforts to
accelerate development of a domestic supply of Mo-99 with the
use of HEU.
At the subsequent Senate hearing, Dr. Staples stated:
``Currently, we are working or we would intend to work that
we would develop four independent technologies, each capable
of supplying up to 50 percent of the U.S. demand. Obviously,
in theory, that means that if each of these are successful,
we could supply the global requirement for this isotope''--
roughly twice the U.S. domestic demand. In other words, under
the legislation, the projected U.S. domestic production
capacity could satisfy US demand prior to the cutoff of HEU
exports, even if only half of the four main projects
succeeded.''
Passage of this legislation is necessary to help address
the future needs of patients by promoting the production of
Mo-99 in the United States. We thank you for your efforts and
look forward to continuing to work with you on this important
issue. Should you have any further questions, please contact
Cindy Tomlinson, Associate Director, Health Policy and
Regulatory Affairs at either ctomlinson@snm.org or
703.326.1187.
Sincerely,
Dominique Delbeke,
President.
____
Health Physics Society,
November 30, 2009.
Hon. Jeff Bingaman, Chair
Hon. Lisa Murkowski, Ranking Member
Energy and Natural Resources Committee, U.S. Senate,
Washington, DC.
Dear Senators Bingaman and Murkowski: On behalf of the
Health Physics Society (HPS), I urge the Senate Energy and
Natural Resources Committee to give full support to and take
timely action on H.R. 3276, the ``American Medical Isotope
Production Act of 2009.''
The Health Physics Society, a nonprofit scientific
organization of approximately 5000 radiation safety
professionals, has joined with eight other professional
organizations in a coalition to address two concerns of
national importance: (1) an inherent need for reliable
domestic suppliers of Molybdenum-99 (Mo-99); and, (2) efforts
to curtail the use of high-enriched uranium (HEU) in
radionuclide production as a non-proliferation strategy and
to deter terrorism. A discussion of these concerns with
recommendations for action by the United States is contained
in a white paper by the coalition of professional
organizations titled ``Reliable Domestic & Global Supplier of
Molybdenum-99 (Mo-99) and Switch from Highly Enriched Uranium
(HEU) to Low-Enriched Uranium (LEU) to Produce Mo-99.'' The
white paper is accessible at <a href='http://hps.org/documents/
isotopes_white-paper_multiorganization.pdf'>http://hps.org/documents/
isotopes_white-paper_multiorganization.pdf</a>.
A national effort to address these concerns requires (1) a
commitment by the administration to have a coordinated inter-
agency program with the specific responsibility to achieve
reliable domestic independence in the production of Mo-99,
(2) continued appropriations by Congress to provide the
financial investment needed by the administration's program,
and (3) support of the Congress through authorizing
legislation that will serve as the basis for the continuation
of the administration's program until its goals are achieved.
The Obama administration has made a commitment to achieve
domestic independence in the production of Mo-99. The HPS
believes the initiative being led by the National Nuclear
Security Administration through the Global Threat Reduction
Initiative with oversight and interagency coordination by the
Office of Science and Technology Policy has the capability to
achieve the establishment of a reliable domestic production
of Mo-99 within the next ten years. The Congress has
appropriated sufficient support for fiscal year 2010. The
remaining task is to obtain congressional support through
authorizing legislation that will serve as the support and
basis for the administration's program into the future.
The HPS believes H.R. 3276 provides the needed
congressional support for the administration's program.
We understand there may be some concern about the
provisions in H.R. 3276 for imposing a ban on export of HEU
at a fixed time in the future. HPS's interest in the issue of
domestic production of radioisotopes is related to the
radiation safety implications of the issue, including the
implications of exporting HEU for this purpose. In 2005, the
HPS did not support the inclusion of an HEU export ban
provision in the Energy Policy Act of 2005. The HPS felt that
the controls under which HEU was exported were rigorous
enough to make the export acceptably safe when compared to
the prospect of not having a supply of Mo-99. This position
was influenced by the lack of any administration program or
congressional support for a program dedicated to the domestic
production of radioisotopes. The HPS still considers the
controls for export of HEU for production of radioisotopes to
be rigorous enough to make the risk of diversion for
terrorism, or other malicious use of the HEU to be
speculative. However, we feel that with appropriate
congressional support, the initiative to establish reliable
domestic production of Mo-99 will be successful within the
next ten years, making the need to export HEU unnecessary.
Therefore, we feel the export ban provisions will prove to be
extraneous and, therefore, do not form a basis for not
supporting H.R. 3276.
I hope this letter is helpful in your considered
deliberation of action on H.R. 3276. Please do not hesitate
to contact me if you have any questions about this letter or
HPS support for H.R. 3276.
Sincerely,
Howard W. Dickson.
____
February 23, 2010.
Hon. Jeff Bingaman,
Chairman,
Washington, DC.
Hon. Lisa Murkowski,
Ranking Member,
Washington, DC.
Dear Chairman Bingaman and Ranking Member Murkowski: As a
coalition made up of the Society of Nuclear Medicine (SNM),
American Association of Physicists in Medicine (AAPM),
American College of Radiology (ACR), American Nuclear Society
(ANS), American Society of Nuclear Cardiology (ASNC),
American Society for Radiation Oncology (ASTRO), Health
Physics Society (HPS), Nuclear Energy Institute (NEI),
Academy of Molecular Imaging (AMI), the non-proliferation
community, Union of Concerned Scientists (UCS), National
Association of Nuclear Pharmacies (NANP) and the Council on
Radionuclides and Radiopharmaceuticals (CORAR), we ask that
you support the timely passage of H.R. 3276, the American
Medical Isotope Production Act of 2009. The Senate Energy and
Natural Resources Committee held a hearing on the bill
December 3, 2009, and unanimously approved the bill with an
amendment on December 16, 2009. We understand it is currently
on the Senate calendar but we are asking for your assistance
in bringing this legislation forward for action by the
Senate.
H.R. 3276 is urgently needed legislation that would provide
the U.S. Department of Energy the authority to aid in the
domestic development of essential medical isotope production.
H.R. 3276 is intended to help ensure that U.S. patients have
a stable and reliable supply of diagnostic and therapeutic
medical isotopes within the next ten years, while converting
the production process to avoid highly enriched uranium
(HEU), in keeping with U.S. non-proliferation policy.
The legislation would facilitate the adequate production of
isotopes without HEU prior to the restriction of HEU exports.
In the unexpected event that conversion were delayed, the
legislation provides for a waiver to permit continued HEU
exports to avoid a ``critical shortage'' of isotopes. The
legislation thus ensures both the supply of isotopes and the
timely phase out of HEU exports.
Moreover, as you may know, on November 5, 2009, the House
passed H.R. 3276 by a vote of 400-17. Sponsored by
Representative Edward Markey (D-Mass.) and Representative
Fred Upton (R-Mich.), the Act is balanced, bipartisan
legislation that addresses the current shortfall in the
availability of critical medical isotopes that has had a high
negative impact on patients in the U.S.
Molybdenum-99 (Mo-99) is a critical medical radioisotope
whose decay product Technetium-99m (Tc-99m) is used in more
than 16 million nuclear medicine procedures annually across
the nation. Physicians who use Tc-99m for the diagnosis of
common cancers, heart and other diseases, fully rely upon a
steady and predictable supply. The very
[[Page S191]]
short six-hour half-life of Tc-99m, while beneficial to
patients and health care professionals, precludes any efforts
to maintain an inventory. In addition, the domestic supply of
Mo-99 (to produce Tc-99m-generators) is entirely dependent
upon aging foreign reactors that have faced extended
shutdowns for repair and maintenance.
As a consequence, the U.S. supply has been repeatedly and
significantly disrupted. Many patients who need imaging with
Tc-99m-based radiopharmaceuticals are now facing lengthy
delays in the availability of nuclear medicine imaging, or
being forced to resort to alternative diagnostic and
therapeutic procedures that may involve the potential of more
invasive procedures (with possible higher clinical risks to
patients), greater radiation dosage, lower accuracy, and
higher costs.
Additionally, the reliance on foreign reactors for the
supply of Mo-99 requires the U.S. to ship highly enriched
uranium, material of interest for use in nuclear terrorism,
out of the country. Domestic production of Mo-99 will
eliminate the risk that this nuclear material can be diverted
for terrorists' use, thus increasing the effectiveness of the
U.S. program for non-proliferation of nuclear materials.
The coalition believes the initiative being led by the
National Nuclear Security Administration through the Global
Threat Reduction Initiative with oversight and interagency
coordination by the Office of Science and Technology Policy
has the capability to achieve the establishment of a reliable
domestic production of Mo-99 within the next ten years. The
Congress has appropriated sufficient support for fiscal year
2010. The remaining task is to obtain congressional support
through authorizing legislation that will serve as the
support and basis for the administration's program into the
future.
In order to avoid compromising patient care and increasing
medical costs, a continuous and reliable supply of medical
radioisotopes is clearly essential. It is also critical that
domestic production capability for Mo-99 be developed. H.R.
3276 provides the needed support to accelerate the process of
conversion so that the industry can move even more
aggressively in this direction and be able to meet the time
frame highlighted in this bill.
Senator, we hope you will join the patients, physicians,
nuclear non-proliferation community, radioisotope
manufacturers, and our coalition of professional
organizations to quickly enact H.R. 3276. We would welcome
the opportunity to answer any question you or your staff may
have about the bill or the medical isotope industry. Thank
you.
Sincerely,
Michael M. Graham, MD, President, SNM; Michael G. Herman,
Ph.D., FAAPM, FACMP, President, The American
Association of Physicists in Medicine, AAPM; James H.
Thrall, MD, FACR, Chair, Board of Chancellors, American
College of Radiology, ACR; Thomas Sanders, PhD,
President, American Nuclear Society, ANS; Mylan C.
Cohen, MD, MPH, President, American Society of Nuclear
Cardiology, ASNC; Laura Thevenot, CAE, Chief Executive
Officer, American Society for Radiation Oncology,
ASTRO; Howard W. Dickson, CHP, President, Health
Physics Society, HPS; Marvin S. Fertel, President and
Chief Executive Officer, Nuclear Energy Institute, NEI;
Timothy McCarthy, President, Academy of Molecular
Imaging, AMI; Alan J. Kuperman, Ph.D., Director,
Nuclear Proliferation Prevention Program, University of
Texas at Austin; Edwin S. Lyman, Senior Staff
Scientist, Union of Concerned Scientists; Jeff
Norenberg, PharmD, Executive Director, National
Association of Nuclear Pharmacies, NANP; Franklin B.
Yeager, Chairman, Council on Radionuclides &
Radiopharmaceuticals, CORAR.
______
By Ms. COLLINS (for herself, Mr. Leahy, and Ms. Snowe):
S. 112. A bill to authorize the application of State law with respect
to vehicle weight limitations on the Interstate Highway System in the
States of Maine and Vermont; to the Committee on Environment and Public
Works.
Ms. COLLINS. Mr. President, improving public safety, growing our
economy, increasing energy independence, and protecting the environment
have always been among my top priorities as a Senator. Today, the very
first bill I am introducing in this new Congress will advance all of
those goals by allowing the heaviest trucks to travel on our Federal
interstate highways in Maine rather than being forced to use secondary
roads and downtown streets.
I am delighted to have the senior Senator from Vermont, Patrick
Leahy, as my Democratic cosponsor, and my good friend and colleague
from Maine, Olympia Snowe, also as an original cosponsor. Vermont has
the same problem as we do in Maine. Thus the bill I am introducing
applies to our two States.
In 2009, I authored a law to establish a 1-year pilot project that
allowed trucks weighing up to 100,000 pounds to travel on Maine's
Federal interstates--I-95, 195, 295, and 395. According to the results
of a preliminary study by the Maine Department of Transportation, this
pilot project, which ran until mid-December of last year, helped to
preserve and create jobs by allowing Maine's businesses to receive raw
materials and to ship their products more economically.
Also important, the pilot program improved safety, saved energy, and
reduced carbon emissions. Let me give a specific example. On a trip
from Hampden to Houlton, ME, the benefits are obvious. A truck
traveling on I-95 rather than on Route 2 avoids more than 270
intersections, 9 school crossings, 30 traffic lights, and 86
crosswalks. In addition, the driver also saves more than $30 on fuel.
Given the cost of diesel, it is probably even higher than that now.
Additionally, 50 minutes is saved by traveling on Interstate 95 rather
than on the secondary road of Route 2.
Unfortunately, despite the clear success of this pilot project and
the strong support of the administration and many of my colleagues in
the Senate, the House of Representatives failed to include my provision
making the pilot permanent in the Federal funding bill. As a result,
for both Maine and Vermont, the program expired on December 17 and the
heavy trucks are once again unable to use our most modern, safe, and
efficient highways.
It is important to emphasize that our legislation does not increase
the size or the weight of trucks in our States. Maine law already
allows trucks weighing up to 100,000 pounds to operate on State and
municipal roads. Heavy trucks already operate on some 22,500 miles of
non-Interstate roads in Maine, in addition to the approximately 167
miles of the Maine turnpike. But the nearly 260 miles of non-turnpike
interstates that are the major economic corridors in my State are off
limits. This simply makes no sense.
Furthermore, trucks weighing up to 100,000 pounds are already
permitted on many Federal interstates in New Hampshire, Massachusetts,
New York, and the neighboring provinces in Canada. So that puts Maine
and Vermont at a distinct competitive disadvantage. All around us, the
States and our Canadian counterparts allow the heavier trucks to use
the Federal interstates, but unfortunately Maine and Vermont have been
excluded. That is why my friend from Vermont, Senator Leahy, has joined
me in this effort to help provide a level playing field for our States.
Here are a few more important points about our bill.
The 100,000-pound trucks are no larger or wider than 80,000-pound
trucks. This change would remove an estimated 7.8 million truck miles
from our local roads and streets. Increasing the truck payloads by 35
percent would reduce the overall number of trucks needed. In addition
to saving fuel by traveling fewer miles, the steady pace of interstate
driving improves the fuel economy of trucks by 14 to 21 percent. And
the Maine Department of Transportation's engineers say they are
confident our interstate bridges are safe and can handle the additional
weight in the State of Maine.
Countless Maine small business owners have told me how this change
would improve their competitiveness. For example, at a recent press
conference, Keith Van Scotter discussed the savings his company accrued
under the pilot project. Under the pilot project, his company Lincoln
Paper and Tissue was able to save 1.1 million billable truck miles, a
28 percent decrease from the year before. These savings are the
equivalent of the company being 220 miles closer to its primary market.
Also, the owner-operator of a logging business in Penobscot County said
that being able to transport his pulpwood to the mill on I-95 rather
than on secondary roads would save his company at least 118 gallons of
fuel each week. That benefits not only this small business but also our
Nation as we seek to reduce our overall fuel consumption and reduce
carbon emissions.
The pilot program has also made a dramatic improvement for some of
our communities. According to the Maine DOT, before the pilot program
began last December of 2009, more than 200 heavy trucks heading north
on Route 201 crawled through downtown Vassalboro a small town of about
4,000--each day even though I-95 runs
[[Page S192]]
parallel just a few miles away. During the span of the pilot program,
the number of northbound trucks on Route 201 decreased by roughly 90
percent. These trucks were using the interstate where they belong.
I will tell you that since the pilot project expired, so many of my
constituents have talked to me about the return of these heavy trucks
to the residential neighborhoods in which they live, to downtown
Portland, Orono, Brewer, Freeport, and other towns throughout our
State. The fact is, this kind of road congestion caused by diverting
these heavy trucks into downtowns and along secondary roads can lead to
tragedy. A study conducted by a nationally recognized traffic
consulting firm found that the crash rate of semitrailer trucks on
Maine's secondary roads were 7 to 10 times higher than on the turnpike.
It estimated that allowing these trucks to stay on the interstates
could result in three fewer fatal crashes each year. Public safety
agencies in Maine, including the Maine State Police, have long
supported my efforts to bring about this change. In fact, Bangor's
police chief joined me at a press conference last week where he spoke
eloquently about the safety implications for downtown Bangor.
In 2010, as a result of this pilot project, people throughout our
State saw their roads less congested, our States safer, our air
cleaner, and, most important, our businesses more competitive. That is
why I am so committed to ensuring that these improvements are allowed
to continue and are made permanent.
This legislation simply is common sense. It will benefit our economy
as well as lower fuel costs and make our roads safer for most tourists
and pedestrians. Most important, we now have the concrete evidence from
this pilot project showing why this bill should become law.
I am grateful for the support and leadership of my colleague from
Vermont and the steadfast support from Maine's senior Senator as well.
I urge its swift passage. This is the highest priority I have for the
State of Maine this year.
Mr. President, I ask unanimous consent to have printed in the Record
a number of letters I have received endorsing this bill. These letters
are from the Maine Motor Transport Association, the City of Bangor's
chief of police, the Professional Logging Contractors, the Northeast
Region for the Forestry Resources Association, and from a well-known
trucking firm in Maine, H.O. Bouchard.
In addition, I expect to have a letter from the Governor of Maine
later today that I will also ask unanimous consent to have printed in
the Record.
____
Maine Motor Transport Association,
Augusta, Maine, January 21, 2011.
Hon. Susan Collins,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
Dear Senator Collins: Your introduction of the bill to
permanently increase the truck weight limit on Maine highways
comes as great news for the trucking industry, for shippers
and consumers who rely on efficient transportation of goods
and for the people of our state who utilize these roads. We
have heard from many of our members who were thrilled to
operate on the entire interstate system in Maine under the
recently-expired pilot project, as well as hearing from
citizens who live along the previously traveled truck routes
who were happy to have them off Maine's secondary roads. Your
support for this common sense solution has been tremendous
and we very much appreciate your continued efforts to educate
your peers in the Senate.
As you know, when Federal Highway froze interstate weight
limits in 1998 and allowed the Maine Turnpike and southern
portions of 1-95 to be grandfathered, there was much concern
about the same things that concern some people from other
states now--safety and the impact on our infrastructure.
Results in Maine have shown these concerns were unnecessary
as there is ample proof of the improved safety and
infrastructure costs and all we ask is for Maine to close the
donut hole that puts us at a competitive disadvantage with
our neighbors all around us. New Hampshire, Massachusetts and
Canada already have permanently higher weight limits on their
entire interstate system which put our businesses at a
disadvantage, a fact not lost on the hundreds of small
trucking companies hauling raw materials to the few mills
still left in this state. A strong argument can be made that
this is an economic development issue with many jobs at stake
for the mills that rely on efficient transportation with both
their inbound freight and the outbound movement of goods to
markets outside Maine.
Your proposal to allow for a more productive vehicle
configuration makes sense for both state and federal roads.
More efficient configurations mean fewer trucks on the road.
Fewer trucks on the road reduce engine emissions and promote
fuel conservation, all while lessening our dependence on
foreign oil. The whole notion that heavier trucks will use
more fuel and pollute more is inherently false, especially
since it would take approximately three trucks operating at
80,000 pounds to replace two trucks operating at 100,000
pounds to haul the same amount of freight.
In fact, a study by the American Transportation Research
Institute (ATRI) commissioned by the Maine DOT found that the
fuel efficiency of these rigs would improve up to 21 percent
by allowing state weight limits on the entire highway system
and emissions would decrease from 6 to 11 percent.
Extrapolating their findings over an entire week resulted in
savings of as much as 675 gallons of fuel, up to 6.8 metric
tons of CO2 and almost 94 grams of Particulate Matter. Yes,
that's each week and only from trucks shifting from Route 9
to 1-95 once the weight limit exemption pilot project went
into effect. This efficiency has gone away now that the pilot
project has expired.
Safety, however, is the most important reason to embrace
this pilot project and we are proud that the safety record of
the trucking industry continues to improve. Federal Highway
Administration statistics tracking truck-involved crashes has
shown consistent improvement by the trucking industry, with
current crash rates at the lowest levels since the U.S.
Department of Transportation began tracking large truck
safety records in 1975. Not resting on our accomplishments,
the trucking industry is actively working on ways we can
improve highway safety by improving driver performance with
rigorous licensing and training, focusing on equipment
improvements and by giving carriers access to the proper
tools that are critical for them to fulfill their
responsibility to the safety of the motoring public.
Allowing these trucks to use the safer interstate system
would also decrease the interactions with other vehicles and
pedestrians if they are able to avoid secondary roads and
having to go past driveways and through towns to deliver
their goods that move the Maine economy. A four lane divided
highway with all traffic going in the same direction at
relatively the same speed has been statistically proven to be
the safer road for all vehicles--not just trucks.
It's hard to find a topic that garners widespread and
bipartisan support these days when partisan bickering and
political polarization are the norm. This issue is not only
strongly supported by groups you would expect like the
trucking, oil dealers and forest products industries, but it
also finds support from the Maine Legislature,
municipalities, the Maine DOT, Maine Department of Public
Safety as well as the Maine State Police and many local and
regional chambers of commerce. We all may not see eye-to-eye
on every public policy issue, but we are in lock step on this
one.
There may never be a better opportunity than now to enact a
permanent solution relative to vehicle productivity. The
Maine Motor Transport Association, our members and our
partner trade associations will work diligently to provide
you with additional statistics and information as they become
available. Your work on this issue, especially getting the
pilot project implemented last year, has not gone unnoticed
by our members and we continue to appreciate your efforts to
address it in your recently proposed bill.
If Maine is going to be able to compete in a regional and
global economy, it is essential that we encourage efficient,
effective and safe transportation solutions such as the one
you have proposed. Thank you.
Sincerely,
Brian D. Parke,
President and CEO.
____
City of Bangor, Maine,
Police Department,
January 24, 2011.
Hon. Susan Collins,
Dirkson Senate Office Building,
Washington, DC.
Dear Senator Collins: First and foremost, thank you again
for being a champion for the effort to increase the truck
weight limits on Maine's interstate highways. Without your
diligence and dedication to this extremely important matter,
any further progress to correct the inconceivable injustice
of the current law would be most assuredly abandoned for the
foreseeable future. Your legislation, which would allow
trucks weighing up to 100,000 pounds on all of Maine's
Interstate highways, would correct this injustice once and
for all.
I would like to reiterate what I have previously stated
regarding the present law that forces trucks weighing over
80,000 pounds off Maine's interstate highways. These trucks
do not belong on Maine's city streets and secondary roads,
just as they do not belong on those of New Hampshire,
Massachusetts, and New York. I, along with other Maine chiefs
of police across the state, believe that these trucks pose a
significant risk to the safety of citizens as they travel
upon the populated city streets and narrow and winding rural
roads of Maine's cities and towns. We have seen, first hand,
the dangers these trucks pose to Maine citizens as they
travel on our secondary roads. The constant changing of
speeds and their repeated starts and stops cause regular
disruption to the flow of local traffic, and their presence
have resulted in traffic accidents and tragedies.
[[Page S193]]
During the winter months, Maine's secondary roads become much
narrower, rural roads are more slippery, and speed limits are
reduced, thereby increasing the danger to pedestrians and
other drivers. No matter how experienced the truck driver may
be, they cannot stop these trucks on a dime; they cannot
anticipate every situation that can occur in heavily
populated areas; and they cannot prevent the shifting of
their heavy loads from occurring.
It is important to do everything possible to insure safety
for the public. Therefore, I offer my utmost support for your
legislation that will keep these heavy loads on Maine's
interstate highways where they belong. I continue to
encourage you and others, like Senator Leahy of Vermont, to
continue your efforts to keep these 100,000 pound trucks on
interstate highways, and off our local streets and rural
roads.
Sincerely,
Ronald K. Gastia,
Chief of Police.
____
Professional Logging Contractors,
New Gloucester, ME, January 24, 2011.
Hon. Susan Collins,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
Dear Senator Collins: I am writing to express the
Professional Logging Contractors of Maine's full support for
your proposed legislation to permanently allow trucks
weighing up to 100,000 pounds to use federal Interstate
highways in Maine and Vermont.
Our logger members rely on trucks to deliver their logs,
chips and biomass to market. We are surrounded by states and
provinces which allow higher Interstate truck weights,
putting loggers in rural Maine at a significant competitive
disadvantage. Many of our members are small business owners
for whom the increased costs of being forced to make longer,
less efficient trips on secondary roads could make the
difference between profitability and unprofitability. This
could lead some business owners to exit the market place,
costing jobs and placing an additional strain on wood
supplies.
Interstate highways are designed and built to handle higher
truck weights and wherever possible trucks should be able to
utilize this system, taking unnecessary traffic off of state
and local highways and out of our communities. PLC of Maine
believes each state should have the right to adjust the
weight limits on Interstates within its borders to meet the
needs of its people.
Last year's pilot project in Maine, allowing 100,000 pound
trucks to access Interstate highways, was tremendously
successful. The loss of the pilot in December was a real blow
to our loggers, the forest products industry, and our rural
communities as well.
Restoring the terms of the pilot is one action Congress can
take that would immediately benefit industry and the public,
without imposing new burdens on taxpayers. The benefits of
the increased weight limits are clear:
Safety--Fewer miles travelled, on safer roads, with reduced
contact with pedestrians, automobiles, rail crossings and
school zones;
Environmental--Reduced fuel consumption, reduced emissions
from start and stops; and
Economic--Reduced secondary road and bridge wear, improved
truck efficiency for loggers.
Please let me know if there is anything the Professional
Logging Contractors of Maine can do to promote your
legislation. Thank you again for your continued support for
Maine's loggers.
Sincerely,
Michael A. Beardsley,
Executive Director.
____
Forest Resources
Association, Inc.,
Holden, ME, January 21, 2011.
Hon. Susan Collins,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
Dear Senator Collins: I am writing to express the Forest
Resources Association's full support for your proposed
legislation which would permanently allow trucks weighing up
to 100,000 pounds to use federal Interstate highways in Maine
and Vermont.
Our members--forest landowners, loggers, truckers, wood-
using mills, and associated businesses, as well as our
families and neighbors--all rely on safe and efficient
transportation of goods and services by truck for our
livelihoods.
Our industry relies on trucks to deliver raw materials from
the forest to our mills and shipment of finished product to
market. We are surrounded by states and provinces which allow
higher Interstate truck weights, putting our industry in
rural Maine at a significant disadvantage.
The federal Interstate system is designed and built to
handle these loads, as are Maine highways and wherever
possible trucks should be able to utilize this system, taking
unnecessary traffic off of state and local highways and out
of communities. FRA believes that, within reasonable
guidelines, each state should have the right to adjust weight
limits on Interstates within its borders to conform with its
needs.
By all accounts, last year's pilot project in Maine and
Vermont allowing these trucks to access Interstate highways
was tremendously successful. Attached is a Forest Resources
Association Technical Release presenting testimony on the
pilot's benefits. The loss of the pilot in December was a
real blow to our industry and rural communities.
Restoring the terms of the pilot is one action Congress can
take which immediately benefits both industry and the public
without imposing new burdens on taxpayers. The benefits are
clear:
Safety Benefits--Fewer miles travelled, on safer roads,
with fewer exposures.
Environmental Benefits--Reduced fuel usage, reduced
emissions.
Economic Benefits--Reduced wear on secondary roads,
improved efficiency for haulers.
Please let me know if there is anything FRA can do to
promote your legislation--and thanks again for your continued
support for Maine's forest products community .
Sincerely,
Joel Swanton,
Region Manager.
____
H.O. Bouchard
Transportation Services,
Hampden, ME, January 21, 2011.
Hon. Susan Collins,
Dirkson Senate Office Building,
Washington, DC.
Dear Senator Collins: I am writing on behalf of H.O.
Bouchard in favor of allowing trucks weighing up to 100,000
pounds gross vehicle weight on Interstates in Maine. We are a
major motor carrier in Maine whose fleet is made up of 6-axle
units transporting heavy bulk products throughout Maine,
Canada, New Hampshire, Massachusetts, Rhode Island and New
York. These products include: cement powder, liquid asphalt,
fuel oil, road salt, raw forest products, chemicals, logs and
machinery. We have done this safely for 27 years.
I ask that you help those who are not from this area to
understand that the whole New England area (with the
exception of Vermont), New York and Canada allow up to at
least 99,000 pounds on 6 axle combination units. New York
allows more than 100,000 pounds and Canada allows more than
109,000 lbs. on 6 axles. The only areas that do not are a
very small slice of Maine that is Interstates 95, 295, 395
and interstates in Vermont. Presently the freight moves on 6
axle units, but on secondary roads. Commerce to and from
Bangor to Aroostook County must travel on secondary Route 2,
rather than 1-95, which runs parallel. To go the same
distance takes 50 minutes longer at a cost of approximately
$70.00 more. This is multiplied by hundreds of trips daily of
fuels, logs, lumber and many other consumer commodities. This
commercial traffic is very noticeable in all of the small
towns where the trucks must constantly stop and start for RR
crossings, crosswalks, school buses and emergency vehicles.
That same truck traffic was not even noticeable when it was
on the interstate, a road that can handle much more traffic
with ease. We have paid for the best roads and cannot use
them.
The future of our nation must include increased
transportation productivity to keep from clogging highways
and slowing the economic recovery. Using 2 trucks to haul the
freight of 3 is a simple, safe, cost effective way to
accomplish this. Your proposal to allow 6-axle vehicles
weighing up to 100,000 pounds to use the interstate system in
Maine and Vermont (99,000) is all benefit at no cost. It is
simply good business.
Thank you for your support in helping with this important
legislation.
Sincerely,
Brian Bouchard,
President.
Mr. LEAHY. Mr. President, I rise today with my good friends and
neighbors from New England--Senators Susan Collins and Olympia Snowe
from Maine--to introduce a bill that would allow Vermont and Maine to
set the appropriate truck-weight standards on the interstates in their
states.
For too long, Vermont and Maine have been at a competitive
disadvantage while our next-door neighbors in New York, New Hampshire,
Massachusetts, and Quebec have enjoyed the economic benefits that come
with higher highway truck weight limits. Due to these restrictions, the
heaviest truck traffic in Vermont and Maine must travel over smaller
and narrower roadways, creating significant safety concerns for
pedestrians and motorists and putting pressure on our already
overburdened secondary roads and bridges.
That is why Senator Collins and I included language in the 2010
transportation funding bill to implement pilot programs that allowed
heavier trucks on interstates in Vermont and Maine for one year and
studied the impacts of this policy change on highway safety, bridge and
road durability, commerce, truck volumes, and energy use in Vermont.
During the past year I have heard from a number of Vermont truckers,
business owners, and state and local officials who support extending
the pilot program because of the economic and safety benefits they saw
when the trucks were on the Interstates. Most importantly, many
Vermonters reported a significant reduction of heavy truck traffic in
our downtowns and villages.
Unfortunately, last month the leadership on the other side of the
aisle
[[Page S194]]
blocked consideration of an omnibus budget bill that included a
provision Senator Collins and I authored to extend the Vermont and
Maine truck weight pilot programs for another year. This sudden and
senseless reversal of a previous commitment to support the bill led to
the end of the Vermont and Maine pilot programs in December.
As a result the heaviest trucks in our states have been forced to
divert back to secondary roads--and the negative economic impact of
these trucks is once again being felt in downtowns and villages
throughout Vermont and Maine.
I am pleased to join with Senators Collins and Snowe in introducing
this bipartisan bill today. It will stop overweight trucks from having
to rumble through our historic villages and downtowns, and it will
better protect our citizens and our ailing transportation
infrastructure.
I appreciate the support this legislation has received from the State
of Vermont, the Vermont League of Cities and Towns, the Vermont Truck
and Bus Association, the Vermont Petroleum Association, the Vermont
Fuel Dealers Association, and many individual businesses and
municipalities throughout Vermont.
______
By Mr. LEAHY:
S. 132. A bill to establish an Office of Forensic Science and a
Forensic Science Board, to strengthen and promote confidence in the
criminal justice system by ensuring consistency and scientific validity
in forensic testing, and for other purposes; to the Committee on the
Judiciary.
Mr. LEAHY. Mr. President, I am proud today to introduce the Criminal
Justice and Forensic Science Reform Act of 2011. This legislation is an
important first step toward guaranteeing the effectiveness and
scientific integrity of forensic evidence used in criminal cases, and
in ensuring that Americans can have faith in their criminal justice
system.
In March of 2009, the Senate Judiciary Committee began its
examination of serious issues concerning forensic science, which is at
the heart of our criminal justice system. The Committee has studied the
problem exhaustively, and has worked with a wide array of experts and
stakeholders. The legislation I introduce today is a product of this
process. It seeks to strengthen our confidence in the criminal justice
system, and the evidence it relies upon, by ensuring that forensic
evidence and testimony is accurate, credible, and scientifically
grounded.
The National Academy of Science published a report in February 2009
asserting that the field of forensic science has significant problems
that urgently need to be addressed. The report suggested that basic
research establishing the scientific validity of many forensic science
disciplines has never been done in a comprehensive way. It suggested
that the forensic sciences lack uniform and unassailable standards
governing the accreditation of laboratories, the certification of
forensic practitioners, and the testing and analysis of evidence.
The National Academy of Science's report was an urgent call to
action. It has been hailed and widely cited since its release. It has
also been criticized by many. I did not view the Academy's report as
the final word on this issue, but rather as the starting point for a
searching review of the state of forensic science in this country.
Last Congress, the Judiciary Committee held two hearings on the
issue. Committee members and staff spent countless hours talking to
prosecutors, defense attorneys, law enforcement officers, judges,
forensic practitioners, academic experts, and many, many others to
learn as much as we could about what is happening in the forensic
sciences and what needs to be done.
As this effort has progressed, I have been disturbed to learn about
still more cases in which innocent people may have been convicted, and
perhaps even executed, in part due to faulty forensic evidence. It is a
double tragedy when an innocent person is convicted. An innocent person
suffers, and a guilty person remains free, leaving us all less safe. We
must do everything we can to avoid that untenable outcome.
At the same time, through the course of this inquiry, it has become
abundantly clear that the men and women who test and analyze forensic
evidence do tremendous work that is vital to our criminal justice
system. I remember their important contributions and hard work from my
days as a prosecutor, when some of the forensic disciplines we have now
did not even exist. Their work is even more important today, and we
need to strengthen the field of forensics--and the justice system's
confidence in it--so that their hard work can be consistently relied
upon, as it should be.
It is beyond question that everyone recognizes the need for forensic
evidence that is accurate and reliable. Prosecutors and law enforcement
officers want evidence that can be relied upon to determine guilt and
prove it beyond a reasonable doubt in a court of law. Defense attorneys
want strong evidence that can be used to exclude innocent people from
suspicion. Forensic science practitioners want their work to have as
much certainty as possible and to be given deserved deference. All
scientists and all attorneys who care about these issues want the
science that is admitted as evidence in the courtroom to match the
science that is proven through rigorous testing and research in the
laboratory.
There is also general agreement that the forensic sciences can be
improved through strong and unassailable research to test and establish
the validity of the forensic disciplines, as well as the application of
consistent and regular standards in the field. There is a dire need for
well managed and appropriately directed funding for research,
development, training, and technical assistance. It is a good
investment, as it will lead to fewer trials and appeals, and will
reduce crime by ensuring that those who commit serious offenses are
promptly captured and convicted.
There is also broad consensus that all forensic laboratories should
be required to meet rigorous accreditation standards and that forensic
practitioners should be required to obtain meaningful certification.
The bill I introduce today seeks to address these widely recognized
needs. It requires that all forensic science laboratories that receive
Federal funding or Federal business be accredited according to rigorous
standards. It requires all relevant personnel who perform forensic work
for any laboratory or agency that gets Federal money to become
certified in their fields, which will mean meeting basic proficiency,
education, and training requirements.
The bill sets up a rigorous process to determine the most serious
needs for research to establish the basic validity of the forensic
disciplines, and establishes grant programs to provide for peer-
reviewed scientific research to answer fundamental questions and
promote innovation. It also sets up a process for this research to lead
to appropriate standards and best practices in each discipline. The
bill funds research into new technologies and techniques that will
allow forensic testing to be done more quickly, more efficiently, and
more accurately. I believe these are proposals that will be widely
supported by those on all sides of this issue.
There have been of course some areas of disagreement, particularly as
to who should oversee these vital reforms to the field of forensics.
Some have argued that, because the purpose of forensic science is
primarily to produce evidence to be used in the investigation and
prosecution of criminal cases, it is vital that those regulating and
evaluating forensics must have expertise in criminal justice. They have
said that at the Federal level, the Department of Justice is the
natural place for an office to examine and oversee the forensic
sciences and have emphasized the need for forensic science
practitioners to have substantial input in evaluating research and
standards.
Others have argued that, for forensic science to truly engender our
trust and confidence, its validity must be established by independent
scientific research, and standards must be determined by scientists
with no possible conflict of interest. They have argued for protections
to ensure independent scientific decision making, as well as the
significant involvement of Federal scientific agencies.
[[Page S195]]
I find both of these arguments persuasive. I know firsthand the
importance of understanding how the criminal justice system works when
evaluating the needs and practices in forensic science. I also
understand that it is absolutely essential that forensic science be
grounded in independent scientific research in order to avoid any
question of convictions being based on faulty forensic work.
This legislation attempts to address both of these concerns with a
hybrid structure that ensures both criminal justice expertise and
scientific independence. It establishes an Office of Forensic Science
in the Office of the Deputy Attorney General within the Department of
Justice. That office will have a Director who will make all final
decisions about research priorities, standards, and structure and who
will implement and enforce the systems set up by the legislation.
It also establishes a Forensic Science Board composed of forensic and
academic scientists, prosecutors and defense attorneys, and other key
stakeholders. The Board will have a careful balance, and a majority of
its members will be scientists. It will recommend all research
priorities and standards and other key definitions and structures
before the Director of the Office of Forensic Science makes a decision.
The bill will include important protections to encourage the Director
to defer to the recommendations of the Board and to ensure that he or
she explains to Congress and to the public, with opportunities for
comment, any decision to disregard the Board's recommendations.
The bill also establishes committees of scientists to examine each
individual forensic science discipline to determine research needs and
standards. It includes protections to ensure that the committees'
recommendations receive significant deference, and the committees will
be overseen by the National Institute of Standards and Technology,
NIST, a respected scientific agency. NIST will also implement grant
programs for research into the forensic sciences premised on the
research priorities established by the Forensic Science Board and the
Office of Forensic Science. The National Science Foundation will help
to ensure that the grant programs are run properly, with rigorous
scientific peer review and without any bias.
This bill aims to carefully balance the competing considerations that
are so important to getting a review of forensics right. It also
capitalizes on existing expertise and structures, rather than calling
for the creation of a costly new agency. It seeks to proceed modestly
and cost effectively, with ample oversight, checks, and controls. I am
committed to exploring ways to use existing resources so that this
urgent work will not negatively impact the budget. Ultimately,
improvements in the forensic sciences will save money, reduce the
number of costly appeals, shorten investigations and trials, and help
to eliminate wrongful imprisonments.
I understand that sweeping forensic reform and criminal justice
reform legislation not only should, but must, be bipartisan. There is
no reason for a partisan divide on this issue; fixing this problem does
not advance the interests of only prosecutors or defendants, or of
Democrats or Republicans, but the interests of justice. I have worked
closely with interested Republican Senators on this vital issue. I will
continue to work diligently with Senators on both sides of the aisle to
ensure that this becomes the consensus bipartisan legislation that it
ought to be. I hope many will cosponsor this legislation, and work with
me to ensure its passage.
I want to thank the forensic science practitioners, experts,
advocates, law enforcement personnel, judges, and so many others whose
input forms the basis for this legislation. Your passion for this issue
and for getting it right gives me confidence that we will work together
successfully to make much needed progress.
I hope all Senators will join me in advancing this important
legislation to bolster confidence in the forensic sciences and the
criminal justice system.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 132
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Criminal
Justice and Forensic Science Reform Act of 2011''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Purpose.
TITLE I--STRUCTURE AND OVERSIGHT
Sec. 101. Office of Forensic Science.
Sec. 102. Forensic Science Board.
Sec. 103. Committees.
Sec. 104. Authorization of appropriations.
TITLE II--ACCREDITATION OF FORENSIC SCIENCE LABORATORIES
Sec. 201. Accreditation of forensic science laboratories.
Sec. 202. Standards for laboratory accreditation.
Sec. 203. Administration and enforcement of accreditation program.
TITLE III--CERTIFICATION OF FORENSIC SCIENCE PERSONNEL
Sec. 301. Definitions.
Sec. 302. Certification of forensic science personnel.
Sec. 303. Standards for certification.
Sec. 304. Administration and review of certification program.
Sec. 305. Grants and technical assistance.
TITLE IV--RESEARCH
Sec. 401. Research strategy and priorities.
Sec. 402. Research grants.
Sec. 403. Oversight and review.
Sec. 404. Public-private collaboration.
TITLE V--STANDARDS AND BEST PRACTICES
Sec. 501. Development of standards and best practices.
Sec. 502. Establishment and dissemination of standards and best
practices.
Sec. 503. Review and oversight.
TITLE VI--ADDITIONAL RESPONSIBILITIES OF THE OFFICE OF FORENSIC SCIENCE
AND THE FORENSIC SCIENCE BOARD
Sec. 601. Forensic science training and education for judges,
attorneys, and law enforcement personnel.
Sec. 602. Educational programs in the forensic sciences.
Sec. 603. Medical-legal death examination.
Sec. 604. Inter-governmental coordination.
Sec. 605. Anonymous reporting.
Sec. 606. Interoperability of databases and technologies.
Sec. 607. Code of ethics.
SEC. 2. DEFINITIONS.
In this Act--
(1) the term ``Board'' means the Forensic Science Board
established under section 102(a);
(2) the term ``Committee'' means a committee established
under section 103(a)(2);
(3) the term ``Deputy Director'' means the Deputy Director
of the Office;
(4) the term ``Director'' means the Director of the Office;
(5) the term ``forensic science discipline'' shall have the
meaning given that term by the Director in accordance with
section 102(h);
(6) the term ``forensic science laboratory'' shall have the
meaning given that term by the Director in accordance with
section 201(c);
(7) the term ``Office'' means the Office of Forensic
Science established under section 101(a); and
(8) the term ``relevant personnel'' shall have the meaning
given that term by the Director in accordance with section
301(b).
SEC. 3. PURPOSE.
The purpose of this Act is to strengthen and promote
confidence in the criminal justice system by promoting
standards and best practices and ensuring consistency,
scientific validity, and accuracy with respect to forensic
testing, analysis, identification, and comparisons, the
results of which may be interpreted, presented, or otherwise
used during the course of a criminal investigation or
criminal court proceeding.
TITLE I--STRUCTURE AND OVERSIGHT
SEC. 101. OFFICE OF FORENSIC SCIENCE.
(a) In General.--There is established an Office of Forensic
Science within the Office of the Deputy Attorney General in
the Department of Justice.
(b) Officers and Staff.--
(1) In general.--The Office shall include--
(A) a Director, who shall be appointed by the Attorney
General;
(B) a Deputy Director, who shall be--
(i) an employee of the National Institute of Standards and
Technology;
(ii) selected by the Director of the National Institute of
Standards and Technology; and
(iii) detailed to the Office on a reimbursable basis;
(C) such additional staff detailed on a reimbursable basis
from the National Institute of Standards and Technology as
the Deputy Director, in consultation with the Director and
subject to the approval of the Director of the National
Institute of Standards and Technology, determines
appropriate; and
(D) such other officers and staff as the Deputy Attorney
General, the Director, and the Deputy Director determine
appropriate.
(2) Deadline.--Not later than 180 days after the date of
enactment of this Act, the
[[Page S196]]
initial appointments, selections, and detailing under
paragraph (1) shall be made.
(c) Vacancy.--In the event of a vacancy in the position of
Director--
(1) the Attorney General shall designate an acting
Director; and
(2) during any period of vacancy before designation of an
acting Director, the Deputy Attorney General shall serve as
acting Director.
(d) Liaison.--The Director of the National Science
Foundation, in consultation with the Director and the Deputy
Director, shall designate a liaison at the National Science
Foundation to facilitate communication between the Office and
the National Science Foundation.
(e) Duties and Authority.--
(1) In general.--The Office shall--
(A) assist the Board in carrying out all the functions of
the Board under this Act and such other related functions as
are necessary to perform the functions; and
(B) evaluate and act upon the recommendations of the Board
in accordance with paragraph (4).
(2) Specific responsibilities.--The Director, in
consultation with the Deputy Director, shall--
(A) establish, implement, and enforce accreditation and
certification standards under titles II and III;
(B) establish a comprehensive strategy for scientific
research in the forensic sciences under title IV;
(C) establish and implement standards and best practices
for forensic science disciplines under title V;
(D) define the term ``forensic science discipline'' for the
purposes of this Act in accordance with section 102(h);
(E) establish and maintain a list of forensic science
disciplines in accordance with section 102(h);
(F) establish Committees in accordance with section 103;
(G) define the term ``forensic science laboratory'' for the
purposes of this Act in accordance with section 201(c); and
(H) perform all other functions of the Office under this
Act and such other related functions as are necessary to
perform the functions of the Office described in this Act.
(3) Additional responsibilities of deputy director.--The
Deputy Director, in consultation with the Director of the
National Institute of Standards and Technology, shall
oversee--
(A) the implementation of any standard, protocol,
definition, or other material established or amended based on
a recommendation by a Committee; and
(B) the work of the Committees.
(4) Consideration of recommendations.--
(A) In general.--Upon receiving a recommendation from the
Board, the Director shall--
(i) give substantial deference to the recommendation; and
(ii) not later than 90 days after the date on which the
Director receives the recommendation, determine whether to
adopt, modify, or reject the recommendation.
(B) Modification.--
(i) In general.--If the Director determines to
substantially modify a recommendation under subparagraph (A),
the Director shall immediately notify the Board of the
proposed modification.
(ii) Board recommendation.--Not later than 30 days after
the date on which the Director provides notice to the Board
under clause (i), the Board shall submit to the Director a
recommendation on whether the proposed modification should be
adopted.
(iii) Acceptance of modification.--If the Board recommends
that a proposed modification should be adopted under clause
(ii), the Director may implement the modified recommendation.
(iv) Rejection of modification.--If the Board recommends
that a proposed modification should not be adopted under
clause (ii), the Director shall, not later than 10 days after
the date on which the Board makes the recommendation--
(I) provide notice and an explanation of the modification
proposed to the Committee on the Judiciary and the Committee
on Commerce, Science, and Transportation of the Senate and
the Committee on the Judiciary and the Committee on Science
and Technology of the House of Representatives; and
(II) begin a rulemaking on the record after opportunity for
an agency hearing.
(C) Rejection.--Not later than 30 days after the date on
which the Director determines to reject a recommendation
under subparagraph (A), the Director shall--
(i) provide notice and an explanation of the decision to
the Committee on the Judiciary and the Committee on Commerce,
Science, and Transportation of the Senate and the Committee
on the Judiciary and the Committee on Science and Technology
of the House of Representatives; and
(ii) begin a rulemaking on the record after opportunity for
an agency hearing.
(f) Website.--The Director shall--
(1) establish a website that is publicly accessible; and
(2) publish recommendations of the Board and all standards,
protocols, definitions, and other materials established, or
amended, by the Director under this Act on the website.
SEC. 102. FORENSIC SCIENCE BOARD.
(a) In General.--There is established a Forensic Science
Board to serve as an advisory board regarding forensic
science in order to strengthen and promote confidence in the
criminal justice system by promoting standards and best
practices and ensuring consistency, scientific validity, and
accuracy with respect to forensic testing, analysis,
identification, and comparisons, the results of which may be
interpreted, presented, or otherwise used during the course
of a criminal investigation or criminal court proceeding.
(b) Appointment.--
(1) In general.--The Board shall be composed of 19 members,
who shall--
(A) be appointed by the President not later than 180 days
after the date of enactment of this Act; and
(B) come from professional communities that have expertise
relevant to and significant interest in the field of forensic
science.
(2) Consideration and consultation.--In making an
appointment under paragraph (1), the President shall--
(A) consider the need for the Board to exercise independent
scientific judgment;
(B) consider, among other factors, recommendations from
leading scientific organizations and leading professional
organizations in the field of forensic science and other
relevant fields; and
(C) consult with the Chairman and Ranking Member of the--
(i) Committee on the Judiciary and the Committee on
Commerce, Science, and Transportation of the Senate; and
(ii) the Committee on the Judiciary and the Committee on
Science and Technology of the House of Representatives.
(3) Requirements.--The Board shall include--
(A) not fewer than 10 members who have comprehensive
scientific backgrounds, of which--
(i) not fewer than 5 members have extensive experience or
background in scientific research; and
(ii) not fewer than 5 members have extensive experience or
background in forensic science; and
(B) not fewer than 1 member from each category described in
paragraph (4).
(4) Categories.--The categories described in this paragraph
are--
(A) judges;
(B) Federal Government officials;
(C) State and local government officials;
(D) prosecutors;
(E) law enforcement officers;
(F) criminal defense attorneys;
(G) organizations that represent people who may have been
wrongly convicted;
(H) practitioners in forensic laboratories;
(I) physicians with relevant expertise; and
(J) State laboratory directors.
(5) Fulfillment of multiple requirements.--An individual
may fulfill more than 1 requirement described in paragraph
(3) or (4).
(6) Ex officio members.--The Director and the Deputy
Director shall serve as ex officio and nonvoting members of
the Board.
(c) Terms.--
(1) In general.--A member of the Board shall be appointed
for a term of 6 years.
(2) Exception.--Of the members first appointed to the
Board--
(A) 6 members shall serve a term of 2 years;
(B) 6 members shall serve a term of 4 years; and
(C) 7 members shall serve a term of 6 years.
(3) Renewable term.--A member of the Board may be appointed
for not more than a total of 2 terms, including an initial
term described in paragraph (2).
(4) Vacancies.--
(A) In general.--In the event of a vacancy, the President
may appoint a member to fill the remainder of the term.
(B) Additional term.--A member appointed under subparagraph
(A) may be reappointed for 1 additional term.
(5) Holdovers.--If a successor has not been appointed at
the conclusion of the term of a member of the Board, the
member of the Board may continue to serve until--
(A) a successor is appointed; or
(B) the member of the Board is reappointed.
(d) Responsibilities.--The Board shall--
(1) make recommendations to the Director relating to
research priorities and needs, accreditation and
certification standards, standards and protocols for forensic
science disciplines, and any other issue consistent with this
Act;
(2) monitor and evaluate--
(A) the administration of accreditation, certification, and
research programs and procedures established under this Act;
and
(B) the operation of the Committees;
(3) review and update, as appropriate, any recommendations
made under paragraph (1); and
(4) perform all other functions of the Board under this Act
and such other related functions as are necessary to perform
the functions of the Board.
(e) Consultation.--The Board shall consult as appropriate
with the Deputy Attorney General, the Director of the
National Institute of Standards and Technology, the Director
of the National Science Foundation, the Director of the
National Institute of Justice, the Director of the Centers
for Disease Control and Prevention, senior officials from
other relevant Federal agencies, and relevant officials of
State and local government.
(f) Meetings.--
(1) In general.--The Board shall hold not fewer than 4
meetings of the full Board each year.
(2) Requirements.--
(A) Notice.--The Board shall provide public notice of any
meeting of the Board a reasonable period in advance of the
meeting.
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(B) Open meetings.--A meeting of the Board shall be open to
the public.
(C) Quorum.--A majority of the members of the Board shall
be present for a quorum to conduct business.
(g) Votes.--
(1) In general.--Decisions of the Board shall be made by an
affirmative vote of not less than \2/3\ of the members of the
Board voting.
(2) Voting procedures.--
(A) Recorded.--All votes of the Board shall be recorded.
(B) Remote and proxy voting.--If necessary, a member of the
Board may cast a vote--
(i) over the phone or through electronic mail or other
electronic means if the vote is scheduled to take place
during a time other than a full meeting of the Board; and
(ii) over the phone or by proxy if the vote is scheduled to
take place during a full meeting of the Board.
(h) Definition of Forensic Science Discipline.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act, the Board shall--
(A) develop a recommended definition of the term ``forensic
science discipline'' for purposes of this Act, which shall
encompass disciplines with a sufficient scientific basis that
involve forensic testing, analysis, identification, or
comparisons, the results of which may be interpreted,
presented, or otherwise used during the course of a criminal
investigation or criminal court proceeding;
(B) develop a recommended list of forensic science
disciplines for purposes of this Act; and
(C) submit the recommended definition and proposed list of
forensic science disciplines to the Director.
(2) Consideration.--In developing a recommended list of
forensic science disciplines under paragraph (1)(B), the
Board shall consider each field from which courts in criminal
cases hear forensic testimony or admit forensic evidence.
(3) Exclusion from list.--If the Board recommends that a
field should not be included on the list submitted under
paragraph (1) because the field has insufficient scientific
basis on the date of the recommendation of the Board, the
Board shall publish an explanation of the recommendation,
which--
(A) shall be published on the website of the Board; and
(B) may include a finding that a field could be recognized
as a forensic science discipline, based on additional
research.
(4) Establishment.--After the Director receives the
recommendation of the Board under paragraph (1), the Director
shall, in accordance with section 101(e)(4), establish a
definition for the term ``forensic science discipline'', and
shall establish a list of forensic science disciplines.
(5) Annual evaluation.--On an annual basis, the Board
shall--
(A) evaluate--
(i) whether any field should be added to the list of
forensic science disciplines established under paragraph (4);
and
(ii) whether any field on the list of forensic science
disciplines established under paragraph (4) should be
modified or removed; and
(B) submit the evaluation conducted under subparagraph (A),
including any recommendations, to the Director.
(i) Staff.--
(1) In general.--The Board may, without regard to the civil
service laws and regulations, appoint and terminate an
executive director and such other additional personnel as may
be necessary to enable the Board to perform the duties of the
Board.
(2) Compensation.--The Board may fix the compensation of
the executive director and other personnel appointed under
paragraph (1) without regard to the provisions of chapter 51
and subchapter III of chapter 53 of title 5, United States
Code, relating to classification of positions and General
Schedule pay rates, except that the rate of pay for the
executive director and other personnel may not exceed the
rate payable for level V of the Executive Schedule under
section 5316 of such title.
(3) Personnel as federal employees.--
(A) In general.--Any personnel of the Board who are
employees shall be employees under section 2105 of title 5,
United States Code, for purposes of chapters 63, 81, 83, 84,
24 85, 87, 89, 89A, 89B, and 90 of that title.
(B) Members of the board.--Subparagraph (A) shall not be
construed to apply to members of the Board.
(4) Procurement of temporary and intermittent services.--
The Board may procure temporary and intermittent services
under section 3109(b) of title 5, United States Code, at
rates for individuals which do not exceed the daily
equivalent of the annual rate of basic pay prescribed for
level V of the Executive Schedule under section 5316 of such
title.
(5) Voluntary services.--Notwithstanding section 1342 of
title 31, United States Code, the Board may accept and use
voluntary and uncompensated services for the Board as the
Board determines necessary.
(j) Reports to Congress.--Not later than 2 years after the
date of enactment of this Act, and every 2 years thereafter,
the Board shall submit to Congress a report describing the
work of the Board and the work of each Committee, which shall
include a description of any recommendations, decisions, and
other significant materials generated during the 2-year
period.
(k) Applicability of the Federal Advisory Committee Act.--
(1) In general.--Subject to paragraphs (2) and (3), the
Federal Advisory Committee Act (5 U.S.C. App.) shall apply to
the Board.
(2) Termination provision.----Section 14(a)(2) of the
Federal Advisory Committee Act (5 U.S.C. App.) shall not
apply to the Board.
(3) Compensation of members.--Members of the Board shall
serve without compensation for services performed for the
Board.
(4) Travel expenses.--The members of the Board shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Board.
(5) Designated federal officer.--In accordance with the
Federal Advisory Committee Act (5 U.S.C. App.), the Director
shall--
(A) serve as the designated Federal officer; and
(B) designate a committee management officer for the Board.
SEC. 103. COMMITTEES.
(a) Establishment and Maintenance of Committees.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act, the Board shall issue recommendations
to the Director relating to--
(A) the number of Committees that shall be established to
examine research needs, standards and best practices, and
certification standards for the forensic science disciplines,
which shall be--
(i) not fewer than 1; and
(ii) sufficient to allow the Committees to function
effectively;
(B) the scope of responsibility for each Committee
recommended to be established, which shall ensure that each
forensic science discipline is addressed by a Committee;
(C) what the relationship should be between the Committees
and any scientific working group or technical working group
that has a similar scope of responsibility; and
(D) whether any Committee should consider any field not
recognized as a forensic science discipline for the purpose
of determining whether there is research that could be
conducted and used to form the basis for establishing the
field as a forensic science discipline.
(2) Establishment.--After the Director receives the
recommendations of the Board under paragraph (1), the
Director, in coordination with the Deputy Director, shall--
(A) in accordance with section 101(e)(4), establish--
(i) Committees to examine research needs, standards, and
best practices, and certification standards for the forensic
science disciplines, which shall be not fewer than 1; and
(ii) a clear scope of responsibility for each Committee;
and
(B) publish a list of the Committees and the scope of
responsibility for each Committee on the website for the
Office.
(3) Annual evaluation.--The Board, on an annual basis,
shall--
(A) evaluate--
(i) whether any new Committees should be established;
(ii) whether the scope of responsibility for any Committee
should be modified; and
(iii) whether any Committee should be discontinued;
(B) submit any recommendations relating to the evaluation
conducted under subparagraph (A) to the Director and Deputy
Director.
(4) Updates.--Upon receipt of any recommendations from the
Board under paragraph (3), the Director shall, in accordance
with section 101(e)(4), determine whether to establish,
modify the scope of, or discontinue any Committee.
(b) Membership.--
(1) In general.--Each Committee shall--
(A) consist of not more than 21 members--
(i) each of whom shall be a scientist with knowledge
relevant to a forensic science discipline addressed by the
Committee; and
(ii) not less than 50 percent of whom shall have extensive
experience or background in scientific research;
(B) have a number of members who have extensive experience
or background in the forensic sciences sufficient to ensure
that the Committee has an adequate understanding of the
factors and needs unique to the forensic sciences; and
(C) have a membership that represents a variety of
scientific disciplines, including the forensic sciences.
(2) Definition.--In this subsection, the term ``scientist''
includes--
(A) a statistician with a scientific background; and
(B) a physician with expertise in forensic sciences.
(c) Appointment.--
(1) In general.--The Deputy Director, in consultation with
the Board, shall appoint the members of each Committee.
(2) Consideration.--In appointing members to a Committee
under paragraph (1), the Deputy Director shall consider--
(A) the importance of analysis from scientists with
academic backgrounds; and
(B) the importance of input from experienced forensic
practitioners.
(3) Vacancies.--In the event of a vacancy, the Deputy
Director, in consultation with
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the Board, may appoint a member to fill the remainder of the
term.
(4) Holdovers.--If a successor has not been appointed at
the conclusion of the term of a member of the Committee, the
member of the Committee may continue to serve until--
(A) a successor is appointed; or
(B) the member of the Committee is reappointed.
(d) Terms.--A member of a Committee shall serve for
renewable terms of 4 years.
(e) Support and Oversight.--
(1) In general.--The National Institute of Standards and
Technology shall provide support and staff for each Committee
as needed.
(2) Duties and oversight.--The Deputy Director shall--
(A) perform periodic oversight of each Committee; and
(B) report any concerns about the performance or
functioning of a Committee to the Board and the Director.
(3) Failure to comply.--If a Committee fails to produce
recommendations within the time periods required under this
Act, the Deputy Director and the Director of the National
Institute of Standards and Technology shall work with the
Committee to assist the Committee in producing the required
recommendations in a timely manner.
(f) Duties.--
(1) In general.--A Committee shall have the duties and
responsibilities set out in this Act, and shall perform any
other functions determined appropriate by the Board and the
Deputy Director.
(2) Committee decisions and recommendations.--
(A) In general.--A Committee shall submit recommendations
and all recommended standards, protocols, or other materials
developed by the Committee to the Board for evaluation.
(B) Prohibition of modification of decisions and
recommendations.--Any recommendations of a Committee and any
recommended standards, protocols, or other materials
developed by a Committee may be approved or disapproved by
the Board, but may not be modified by the Board.
(C) Approval of decisions and recommendations.--If the
Board approves a recommendation or recommended standard,
protocol, or other material submitted by a Committee under
subparagraph (A), the Board shall submit the recommendation
or recommended standard, protocol, or other material as a
recommendation of the Board, to the Director and Deputy
Director for consideration in accordance with section
101(e)(4).
(D) Disapproval of decisions and recommendations.--If the
Board disapproves of any recommendation of a Committee or
recommended standard, protocol, or other material developed
by a Committee--
(i) the Board shall provide in writing the reason for the
disapproval of the recommendation or recommended standard,
protocol, or other material;
(ii) the Committee shall withdraw the recommendation or
recommended standard, protocol, or other material developed
by the Committee; and
(iii) the Committee may submit a revised recommendation or
recommended standard, protocol, or other material.
(g) Meetings.--
(1) In general.--A Committee shall hold not fewer than 4
meetings of the full Committee each year.
(2) Requirements.--
(A) Notice.--A Committee shall provide public notice of any
meeting of the Committee a reasonable period in advance of
the meeting.
(B) Open meetings.--A meeting of a Committee shall be open
to the public.
(C) Quorum.--A majority of members of a Committee shall be
present for a quorum to conduct business.
(h) Votes.--
(1) In general.--Decisions of a Committee shall be made by
an affirmative vote of not less than \2/3\ of the members of
the Committee voting.
(2) Voting procedures.--
(A) Recorded.--All votes taken by a Committee shall be
recorded.
(B) Remote and proxy voting.--If necessary, a member of the
Committee may cast a vote--
(i) over the phone or through electronic mail if the vote
is scheduled to take place during a time other than a full
meeting of the Committee; and
(ii) over the phone or by proxy if the vote is scheduled to
take place during a full meeting of the Committee.
(i) Applicability of the Federal Advisory Committee Act.--
(1) In general.--The Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to a Committee.
(2) Compensation of members.--Members of a Committee shall
serve without compensation for services performed for the
Committee.
(3) Travel expenses.--The members of a Committee shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Committee.
SEC. 104. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated--
(1) $15,000,000 for each of fiscal years 2012 through 2016
for the operation and staffing of the Office;
(2) $5,000,000 for each of fiscal years 2012 through 2016
for the operation and staffing of the Board;
(3) $15,000,000 for each of fiscal years 2012 through 2016
for the operation and staffing of the Committees; and
(4) $5,000,000 for each of fiscal years 2012 through 2016
to the National Institute of Standards and Technology for the
oversight, support, and staffing of the Committees.
TITLE II--ACCREDITATION OF FORENSIC SCIENCE LABORATORIES
SEC. 201. ACCREDITATION OF FORENSIC SCIENCE LABORATORIES.
(a) In General.--On and after the date established under
subsection (b)(2)(D), a forensic science laboratory may not
receive, directly or indirectly, any Federal funds, unless
the Director has verified that the laboratory has been
accredited in accordance with the standards and procedures
established under this title.
(b) Procedures for Accreditation.--
(1) Recommendations.--Not later than 3 years after the date
of enactment of this Act, the Board shall submit to the
Director--
(A) recommended procedures for the accreditation of
forensic science laboratories that are consistent with the
recommended standards and criteria developed by the Board
under section 202;
(B) recommended procedures for the periodic review and
updating of the accreditation status of forensic science
laboratories;
(C) recommended procedures for the Director to verify that
laboratories have been accredited in accordance with the
standards and procedures established under this title, which
shall include procedures to implement, administer, and
coordinate enforcement of the program for the accreditation
of forensic science laboratories; and
(D) a recommendation regarding the date by which forensic
science laboratories should--
(i) begin the process of laboratory accreditation; and
(ii) obtain verification of laboratory accreditation to be
eligible to receive Federal funds.
(2) Establishment.--After the Director receives the
recommendations of the Board under paragraph (1), the
Director shall, in accordance with section 101(e)(4),
establish--
(A) procedures for the accreditation of a forensic science
laboratory;
(B) procedures for the Director to verify that laboratories
have been accredited in accordance with the standards and
procedures established under this title;
(C) the date by which a forensic science laboratory shall
begin the process of accreditation; and
(D) the date by which a forensic science laboratory shall
obtain verification of laboratory accreditation to be
eligible to receive Federal funds.
(c) Definition.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Board shall recommend to the
Director a definition of the term ``forensic science
laboratory'' for purposes of this Act, which shall include
any laboratory that conducts forensic testing, analysis,
identification, or comparisons, the results of which may be
interpreted, presented, or otherwise used during the course
of a criminal investigation or criminal court proceeding.
(2) Establishment.--After the Director receives the
recommendation of the Board under paragraph (1), the Director
shall, in accordance with section 101(e)(4), establish a
definition for the term ``forensic science laboratory''.
(d) Applicability to Federal Agencies.--On and after the
date established by the Director under subsection (b)(2)(D),
a Federal agency may not use any forensic science laboratory
during the course of a criminal investigation or criminal
court proceeding unless the forensic science laboratory meets
the standards of accreditation and certification established
by the Office under this Act.
SEC. 202. STANDARDS FOR LABORATORY ACCREDITATION.
(a) Standards.--
(1) Recommendations.--Not later than 18 months after the
date of enactment of this Act, the Board shall, in
consultation with qualified professional organizations,
submit to the Director recommendations regarding standards
for the accreditation of forensic science laboratories,
including quality assurance standards, to ensure the quality,
integrity, and accuracy of any testing, analysis,
identification, or comparisons performed by a forensic
science laboratory for use during the course of a criminal
investigation or criminal court proceeding.
(2) Establishment.--After the Director receives the
recommendations of the Board under paragraph (1), the
Director shall, in accordance with section 101(e)(4),
establish standards for the accreditation of forensic science
laboratories.
(3) Requirements.--In recommending or establishing
standards under paragraph (1) or (2) the Board and the
Director shall--
(A) consider--
(i) whether any relevant national accreditation standards
that were in effect before the date of enactment of this Act
would be sufficient for the accreditation of forensic science
laboratories under this Act; and
(ii) whether any relevant national accreditation standards
that were in effect before the date of enactment of this Act
would be sufficient for the accreditation of forensic science
laboratories under this Act with supplemental standards; and
(B) include--
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(i) educational and training requirements for relevant
laboratory personnel;
(ii) proficiency and competency testing requirements for
relevant laboratory personnel; and
(iii) maintenance and auditing requirements for accredited
forensic science laboratories.
(b) Review of Standards.--
(1) In general.--Not less frequently than once every 5
years--
(A) the Board shall--
(i) review the scope and effectiveness of the accreditation
standards established under subsection (a);
(ii) submit recommendations to the Director relating to
whether, and if so, how to update the standards as necessary
to--
(I) account for developments in relevant scientific
research and technological advances;
(II) ensure adherence to the standards and best practices
established under title V; and
(III) address any other issue identified during the course
of the review conducted under clause (i); and
(B) the Director shall, as necessary and in accordance with
section 101(e)(4), update the accreditation standards
established under subsection (a).
(2) Procedures for open and transparent review of
standards.--The Director, in consultation with the Board,
shall establish procedures to ensure that the process for
developing, reviewing, and updating accreditation standards
under this section--
(A) is open and transparent to the public; and
(B) includes an opportunity for the public to comment on
proposed standards with sufficient prior notice.
SEC. 203. ADMINISTRATION AND ENFORCEMENT OF ACCREDITATION
PROGRAM.
(a) Administration and Enforcement of Accreditation
Program.--
(1) In general.--The Director shall determine whether a
forensic science laboratory is eligible to receive, directly
or indirectly, Federal funds under section 201(a).
(2) Administration.--
(A) In general.--The Director may identify 1 or more
qualified accrediting entities with experience and expertise
relevant to the accreditation of forensic science
laboratories, the accreditation of a forensic science
laboratory by which shall constitute accreditation for
purposes of section 201(a).
(B) Oversight.--The Director shall periodically reevaluate
whether accreditation by a qualified accrediting entity
identified under subparagraph (A) is adequate to ensure
compliance with the standards and procedures established
under this title.
(C) Reporting.--The Director shall provide regular reports
to the Board regarding the accreditation of forensic science
laboratories by qualified accrediting entities identified
under subparagraph (A) and reevaluations of accreditation by
qualified accrediting entities under subparagraph (B), which
shall be published on the website of the Office.
(b) Review of Eligibility.--Not less frequently than once
every 5 years, the Director shall evaluate whether a forensic
science laboratory that has been determined to be eligible to
receive Federal funds under section 201(a) remains eligible
to receive Federal funds, including whether any accreditation
of the forensic science laboratory by a qualified accrediting
entity identified under subparagraph (A) is still in effect.
(c) Website.--The Director shall develop and maintain on
the website of the Office an updated list of--
(1) the forensic science laboratories that are eligible for
Federal funds under section 201(a);
(2) the forensic science laboratories that have been
determined to be ineligible to receive Federal funds under
section 201(a); and
(3) the forensic science laboratories that are awaiting a
determination regarding eligibility to receive Federal funds
under section 201(a).
TITLE III--CERTIFICATION OF FORENSIC SCIENCE PERSONNEL
SEC. 301. DEFINITIONS.
(a) Covered Entity.--In this title, the term ``covered
entity'' means an entity that--
(1) is not a forensic science laboratory; and
(2) conducts forensic testing, analysis, identification, or
comparisons, the results of which may be interpreted,
presented, or otherwise used during the course of a criminal
investigation or criminal court proceeding.
(b) Relevant Personnel.--
(1) Recommendation.--Not later than 1 year after the date
of enactment of this Act, the Board shall submit to the
Director a recommended definition of the term ``relevant
personnel'', which shall include individuals who--
(A) conduct forensic testing, analysis, identification, or
comparisons, the results of which may be interpreted,
presented, or otherwise used during the course of a criminal
investigation or criminal court proceeding; or
(B) testify about evidence prepared by an individual
described in paragraph (A).
(2) Definition.--After the Director receives the
recommendation of the Board under paragraph (1), the Director
shall, in accordance with section 101(e)(4), define the term
``relevant personnel'' for purposes of this title.
SEC. 302. CERTIFICATION OF FORENSIC SCIENCE PERSONNEL.
Except as provided in section 304(c)(2), on and after the
date established under section 304(c)(1), a forensic science
laboratory or covered entity may not receive, directly or
indirectly, any Federal funds, unless all relevant personnel
of the forensic science laboratory or covered entity are
certified under this title.
SEC. 303. STANDARDS FOR CERTIFICATION.
(a) Recommended Standards.--
(1) In general.--Not later than 2 years after the date on
which all members of a Committee have been appointed, the
Committee shall make recommendations to the Board relating to
standards for the certification of relevant personnel in each
forensic science discipline addressed by the Committee.
(2) Requirements.--In developing recommended standards
under paragraph (1), a Committee shall--
(A) consult with qualified professional organizations;
(B) consider relevant certification standards and best
practices developed by qualified professional or scientific
organizations;
(C) consider any standards or best practices established
under title V; and
(D) consider--
(i) whether certain minimum standards should be established
for the education and training of relevant personnel;
(ii) whether there should be an alternative process to
enable relevant personnel who were hired before the date
established under section 304(c)(1), to obtain
certifications, including--
(I) testing that demonstrates proficiency in a specific
forensic science discipline that is equal to or greater than
the level of proficiency required by the standards for
certification; and
(II) a waiver of certain educational and training
requirements;
(iii) whether and under what conditions relevant personnel
should be allowed to perform an activity described in
subparagraph (A) or (B) of section 301(b)(1) for a forensic
science laboratory or covered entity while the individual
obtains the training and education required for certification
under the standards developed under this title; and
(iv) whether certification by recognized and relevant
medical boards should be sufficient for relevant personnel to
meet the standards developed under this title.
(b) Approval or Denial of Recommendations.--The Board shall
approve or deny any recommendation submitted by a Committee
under subsection (a) in accordance with section 103(f)(2).
(c) Establishment of Standards.--After the Director
receives recommendations from the Board under subsection (b),
the Director shall, in accordance with section 101(e)(4),
establish standards for the certification of relevant
personnel.
(d) Review of Standards.--
(1) In general.--Not less frequently than once every 5
years, a Committee shall--
(A) review the standards for certification established
under subsection (c) for each forensic science discipline
within the responsibility of the Committee; and
(B) submit to the Board recommendations regarding updates,
if any, to the standards for certification as necessary--
(i) to account for developments in relevant scientific
research, technological advances, or changes in the law; and
(ii) to ensure adherence to the uniform standards and best
practices established under title V.
(2) Board review.--Not later than 180 days after the date
on which a Committee submits recommendations under paragraph
(1)(B), the Board shall, in accordance with section
103(f)(2)--
(A) consider the recommendations; and
(B) submit to the Director recommendations of uniform
standards and best practices for each forensic science
discipline.
(3) Updates.--After the Director receives recommendations
from the Board under paragraph (2), the Director shall, in
accordance with section 101(e)(4), update the standards for
certification of relevant personnel.
(e) Public Comment.--The Director, in consultation with the
Board, shall establish procedures to ensure that the process
for establishing, reviewing, and updating standards for
certification of relevant personnel under this section--
(1) is open and transparent to the public; and
(2) includes an opportunity for the public to comment on
proposed standards with sufficient prior notice.
SEC. 304. ADMINISTRATION AND REVIEW OF CERTIFICATION PROGRAM.
(a) In General.--
(1) Determination.--The Director shall determine whether a
forensic science laboratory or covered entity is eligible to
receive, directly or indirectly, Federal funds under section
302.
(2) Procedures.--Not later than 1 year after the date of
enactment of this Act, the Director shall establish policies
and procedures to implement, administer, and coordinate
enforcement of the certification requirements established
under this title, including requiring the periodic
recertification of relevant personnel.
(b) Administration.--
(1) In general.--After consultation with the Board, the
Director may identify 1 or more qualified professional
organizations with experience and expertise relevant to the
certification of individuals in a particular forensic science
discipline, the certification of an individual by which shall
constitute certification for purposes of section 302.
(2) Oversight.--The Director shall periodically reevaluate
whether certification by a
[[Page S200]]
qualified professional organizations identified under
paragraph (1) is adequate to ensure compliance with the
standards established under this title.
(3) Reporting.--The Director shall provide regular reports
to the Board regarding the certification of relevant
personnel by qualified professional organizations identified
under paragraph (1) and reevaluations of certification by
qualified professional organizations under paragraph (2),
which shall be published on the website of the Office.
(c) Implementation of Certification Requirements.--
(1) In general.--After consultation with the Board, the
Director shall establish the date on which forensic science
laboratories and covered entities shall be in compliance with
the certification requirements of this title.
(2) Gradual implementation.--The Director shall, in
consultation with the Board and each Committee, establish
policies and procedures to enable the gradual implementation
of the certification requirements that--
(A) include a reasonable schedule to allow relevant
personnel to obtain certifications; and
(B) allow for partial compliance with the requirements of
section 302 for a reasonable period of time after the date
established under paragraph (1).
(d) Review of Certification Requirements.--The Director
shall establish policies and procedures for the periodic
review of the implementation, administration, and enforcement
of the certification requirements established under this
title.
SEC. 305. GRANTS AND TECHNICAL ASSISTANCE.
(a) In General.--The Director of the National Institute of
Justice, in consultation with the Director, may make grants
and provide technical assistance to forensic science
laboratories and other entities subject to the requirements
under this title and title II to ensure that forensic science
laboratories and covered entities are able to effectively
fulfill the responsibilities of the laboratories or entities
during the process of--
(1) seeking accreditation under title II; and
(2) obtaining certifications for relevant personnel under
this title.
(b) Authorization of Appropriations.--
(1) In general.--There is authorized to be appropriated
$10,000,000 for each of fiscal years 2012 through 2016 to the
National Institute of Justice for the grant program and
technical assistance described in subsection (a).
(2) Requirement.--Not less than 75 percent of funds
appropriated pursuant to paragraph (1) shall be used for
grants under this section.
(c) Report.--The Director of the National Institute of
Justice shall, on an annual basis, submit to the Board and
the Director a report that describes--
(1) the application process for grants under this section;
(2) each grant made under this section during the fiscal
year before the fiscal year in which the report is submitted;
and
(3) as appropriate, the status and results of any grants
previously described in a report submitted under this
subsection.
TITLE IV--RESEARCH
SEC. 401. RESEARCH STRATEGY AND PRIORITIES.
(a) Comprehensive Research Strategy and Agenda.--
(1) Recommendation.--Not later than 18 months after the
date of enactment of this Act, the Board shall recommend to
the Director a comprehensive strategy for fostering and
improving peer-reviewed scientific research relating to the
forensic science disciplines, including research addressing
issues of accuracy, reliability, and validity in the forensic
science disciplines.
(2) Establishment.--After the Director receives
recommendations from the Board under paragraph (1), the
Director shall, in accordance with section 101(e)(4),
establish a comprehensive strategy for fostering and
improving peer-reviewed scientific research relating to the
forensic science disciplines.
(3) Review.--
(A) Board review.--Not less frequently than once every 5
years, the Board shall--
(i) review the comprehensive strategy established under
paragraph (2); and
(ii) recommend any necessary updates to the comprehensive
strategy.
(B) Updates.--After the Director receives recommendations
from the Board under subparagraph (A), the Director shall, in
accordance with section 101(e)(4), update the comprehensive
strategy as necessary and appropriate.
(b) Research Funding Priorities.--
(1) Recommendation.--Not later than 18 months after the
date of enactment of this Act, the Board shall recommend to
the Director a list of priorities for forensic science
research funding.
(2) Establishment.--After the Director receives the list
from the Board under paragraph (1), the Director shall, in
accordance with section 101(e)(4), establish a list of
priorities for forensic science research funding.
(3) Review.--Not less frequently than once every 2 years,
the Board shall--
(A) review--
(i) the list of priorities established under paragraph (2);
and
(ii) the findings of the relevant Committees made under
subsection (c); and
(B) recommend any necessary updates to the list of
priorities, incorporating, as appropriate, the findings of
the Committees under subsection (c).
(4) Updates.--After the Director receives the
recommendations under paragraph (3), the Director shall, in
accordance with section 101(e)(4), update as necessary the
list of research funding priorities.
(c) Evaluation of Research Needs.--Not later than 2 years
after the date on which all members of a Committee have been
appointed under section 103, and periodically thereafter, the
Committee shall--
(1) examine and evaluate the scientific research in each
forensic science discipline within the responsibility of the
Committee;
(2) conduct comprehensive surveys of scientific research
relating to each forensic science discipline within the
responsibility of the Committee;
(3) examine the research needs in each forensic science
discipline within the responsibility of the Committee and
identify key areas in which further scientific research is
needed; and
(4) develop and submit to the Board a list of research
needs and priorities.
(d) Consideration.--In developing the initial research
strategy, research priorities, and surveys required under
this section, the Board and the Director shall consider any
findings, surveys, and analyses relating to research in
forensic science disciplines, including those made by the
Subcommittee on Forensic Science of the National Science and
Technology Council.
SEC. 402. RESEARCH GRANTS.
(a) Competitive Grants.--
(1) Definition.--In this subsection, the term ``eligible
entity'' means--
(A) a nonprofit academic or research institution; and
(B) any other entity designated by the Director of the
National Institute of Standards and Technology.
(2) Peer-review research grants.--
(A) In general.--The Director of the National Institute of
Standards and Technology may, on a competitive basis, make
grants to eligible entities to conduct peer-reviewed
scientific research.
(B) Consideration.--In making grants under this paragraph,
the Director of the National Institute of Standards and
Technology shall--
(i) ensure that grants made under this paragraph are for
peer-reviewed scientific research in areas that are
consistent with the research priorities established by the
Director under section 401(b); and
(ii) take into consideration the research needs identified
by the Committees under section 401(c).
(3) Development of new technologies.--The Director of the
National Institute of Standards and Technology may, on a
competitive basis, make grants to eligible entities to
conduct peer-reviewed scientific research to develop new
technologies and processes to increase the efficiency,
effectiveness, and accuracy of forensic testing procedures.
(4) Coordination with director.--In making grants under
this subsection, the Director of the National Institute of
Standards and Technology shall--
(A) coordinate with the Director; and
(B) consider the plan established under section 404.
(5) Coordination with the national science foundation.--The
Director of the National Institute of Standards and
Technology shall consult and coordinate with the National
Science Foundation to ensure--
(A) the integrity of the process for reviewing funding
proposals and awarding grants under this subsection; and
(B) that the grant-making process is not subject to any
undue bias or influence.
(b) Report.--
(1) In general.--
(A) Submission.--The Director of the National Institute of
Standards and Technology shall, on an annual basis, submit to
the Board and the Director a report that describes--
(i) the application process for grants under this section;
(ii) each grant made under this section in the fiscal year
before the report is submitted; and
(iii) as appropriate, the status and results of grants
previously described in a report submitted under this
subsection.
(B) Publication.--The Director shall publish the report
submitted under subparagraph (A) on the website of the
Office.
(2) Evaluation.--The Board and the Director shall evaluate
each report submitted under paragraph (1) and consider the
information provided in each report in reviewing the research
strategy and priorities established under section 401.
(c) Authorization of Appropriations.--There are authorized
to be appropriated--
(1) $75,000,000 to the National Institute of Standards and
Technology for each of fiscal years 2012 through 2016 for
grants under subsection (a)(2); and
(2) $15,000,000 to the National Institute of Standards and
Technology for each of fiscal years 2012 through 2016 for
grants under subsection (a)(3).
SEC. 403. OVERSIGHT AND REVIEW.
(a) Reports.--Not later than 3 years after the date on
which the first grant is awarded under paragraph (2) or (3)
of section 402(a), and not later than 2 years after the date
on which the first report under this subsection is submitted,
the Inspector General of the Department of Justice, in
coordination with the Inspector General of the Department of
Commerce, shall submit to Congress a report on the
administration and effectiveness of the grant programs
described in section 402(a).
[[Page S201]]
(b) Requirements.--Each report submitted under this section
shall evaluate--
(1) whether any undue biases or influences affected the
integrity of the solicitation, award, or administration of
research grants; and
(2) whether there was any unnecessary duplication, waste,
fraud, or abuse in the grant-making process.
SEC. 404. PUBLIC-PRIVATE COLLABORATION.
(a) Recommendation.--Not later than 2 years after the date
of enactment of this Act, the Board shall submit to the
Director a recommended plan for encouraging collaboration
among universities, nonprofit research institutions, State
and local forensic science laboratories, private forensic
science laboratories, private corporations, and the Federal
Government to develop and perform cost-effective and reliable
research in the forensic sciences, consistent with the
research priorities established under section 401(b)(2).
(b) Requirements.--The plan recommended under subsection
(a) shall include--
(1) incentives for nongovernmental entities to invest
significant resources into conducting necessary research in
the forensic sciences;
(2) procedures for ensuring the research described in
paragraph (1) will be conducted with sufficient scientific
rigor that the research can be relied upon by--
(A) the Committees in developing standards under this Act;
and
(B) forensic science personnel; and
(3) clearly defined requirements for disclosure of the
sources of funding by nongovernmental entities for forensic
science research conducted in collaboration with governmental
entities and safeguards to prevent conflicts of interest or
undue bias or influence.
(c) Establishment and Implementation.--After receiving the
recommended plan of the Board under subsection (a), the
Director shall establish, in accordance with section
101(e)(4), and implement a plan for encouraging collaboration
among universities, nonprofit research institutions, State
and local forensic science laboratories, private forensic
science laboratories, private corporations, and the Federal
Government to develop and perform cost-effective and reliable
research in the forensic sciences, consistent with the
research priorities established under section 401(b)(2).
(d) Oversight.--The Director, in consultation with the
Board, shall periodically evaluate and, as necessary, update
the plan established under subsection (c).
TITLE V--STANDARDS AND BEST PRACTICES
SEC. 501. DEVELOPMENT OF STANDARDS AND BEST PRACTICES.
(a) Committee Recommendations.--
(1) In general.--Not later than 2 years after the date on
which all members of a Committee have been appointed under
section 103, the Committee shall develop and recommend to the
Board uniform standards and best practices for each forensic
science discipline addressed by the Committee, including--
(A) standard protocols;
(B) quality assurance standards; and
(C) standard terminology for use in reporting, including
reports of identifications, analyses, or comparisons of
forensic evidence that may be used during a criminal
investigation or criminal court proceeding.
(2) Requirements.--In developing the uniform standards and
best practices under paragraph (1), a Committee shall--
(A) as appropriate, consult with qualified professional
organizations; and
(B) develop uniform standards and best practices that are
designed to ensure the quality and scientific integrity of
data, results, conclusions, analyses, and reports that are
generated for use in the criminal justice system.
(b) Board Recommendations.--Not later than 180 days after
the date on which a Committee submits recommended uniform
standards and best practices under subsection (a), the Board
shall, in accordance with section 103(f)(2)--
(1) consider the recommendations; and
(2) submit to the Director recommendations of uniform
standards and best practices.
SEC. 502. ESTABLISHMENT AND DISSEMINATION OF STANDARDS AND
BEST PRACTICES.
(a) In General.--After the Board submits uniform standards
or best practices for a forensic science discipline under
section 501(b), the Director shall, in accordance with
section 101(e)(4), establish and disseminate uniform
standards and best practices for the forensic science
discipline.
(b) Publication.--The Director shall publish the uniform
standards and best practices established under subsection (a)
on the website of the Office.
SEC. 503. REVIEW AND OVERSIGHT.
(a) Review by Committees.--
(1) In general.--Not less frequently than once every 3
years, each Committee shall review and, as necessary,
recommend to the Board updates to the uniform standards and
best practices established under section 502 for each
forensic science discipline within the responsibility of the
Committee.
(2) Considerations.--In reviewing, and developing
recommended updates to, the uniform standards and best
practices under paragraph (1), a Committee shall consider--
(A) input from qualified professional organizations;
(B) research published after the date on which the uniform
standards and best practices were established, including
research conducted under title IV; and
(C) any changes to relevant law made after the date on
which the uniform standards and best practices were
established.
(b) Board Recommendations.--Not later than 180 days after
the date on which a Committee submits recommended updates to
the uniform standards and best practices under subsection
(a), the Board shall, in accordance with section 103(f)(2)--
(1) consider the recommendations; and
(2) recommend to the Director any updates, as necessary, to
the uniform standards and best practices established under
section 502.
(c) Updates.--After the Director receives recommended
updates, if any, under subsection (b), the Director shall, in
accordance with section 101(e)(4), update and disseminate the
uniform standards and best practices for each forensic
science discipline as necessary.
(d) Procedures.--The Director, in consultation with the
Board, shall establish procedures to ensure that the process
for developing, reviewing, and updating the uniform standards
and best practices--
(1) is open and transparent to the public; and
(2) includes an opportunity for the public to comment on
proposed standards with sufficient prior notice.
TITLE VI--ADDITIONAL RESPONSIBILITIES OF THE OFFICE OF FORENSIC SCIENCE
AND THE FORENSIC SCIENCE BOARD
SEC. 601. FORENSIC SCIENCE TRAINING AND EDUCATION FOR JUDGES,
ATTORNEYS, AND LAW ENFORCEMENT PERSONNEL.
(a) In General.--
(1) Recommendation.--Not later than 2 years after the date
of enactment of this Act, the Board shall submit to the
Director a recommended plan for--
(A) supporting the education and training of judges,
attorneys, and law enforcement personnel in the forensic
sciences and fundamental scientific principles, which shall
include education on the competent use and evaluation of
forensic science evidence; and
(B) developing a standardized curriculum for education and
training described in subparagraph (A).
(2) Establishment.--Upon receipt of the recommendation from
the Board under paragraph (1), the Director shall establish,
in accordance with section 101(e)(4), and implement a plan
for--
(A) supporting the education and training of judges,
attorneys, and law enforcement personnel in the forensic
sciences and fundamental scientific principles, which shall
include education on the competent use and evaluation of
forensic science evidence; and
(B) developing a standardized curriculum for education and
training described in subparagraph (A).
(3) Oversight.--The Director, in consultation with the
Board, shall periodically evaluate and, as necessary, update
the plan established under paragraph (2).
(b) Grant Program.--
(1) In general.--The Director of the National Institute of
Justice may, in consultation with the Director--
(A) provide technical assistance directly or indirectly to
judges, attorneys, and law enforcement personnel in the
forensic sciences and fundamental scientific principles,
including the competent use and evaluation of forensic
science evidence; and
(B) make grants to States and units of local government and
nonprofit organizations or institutions to provide training
to judges, attorneys, and law enforcement personnel about the
forensic sciences and fundamental scientific principles,
including the competent use and evaluation of forensic
science evidence.
(2) Requirement.--On and after the date on which the
Director establishes the plan for supporting the education
and training of judges, attorneys, and law enforcement
personnel in the forensic sciences and fundamental scientific
principles under subsection (a)(2), the Director of the
National Institute of Justice shall administer the grant
program described in paragraph (1) in accordance with the
plan.
(3) Authorization of appropriations.--
(A) In general.--There is authorized to be appropriated to
the Director of the National Institute of Justice $10,000,000
for each of fiscal years 2012 through 2016 for grants and
technical assistance under this subsection.
(B) Requirement.--Not less than 75 percent of the funds
appropriated pursuant to this paragraph shall be used for
grants under this subsection.
SEC. 602. EDUCATIONAL PROGRAMS IN THE FORENSIC SCIENCES.
(a) Recommendations.--Not later than 3 years after the date
of enactment of this Act, the Board shall submit to the
Director--
(1) a recommended plan for supporting the development of
undergraduate and graduate educational programs in the
forensic science disciplines and related fields; and
(2) recommendations as to whether the development of
standards or requirements for educational programs in the
forensic science disciplines and related fields is
appropriate.
(b) Establishment and Implementation.--Upon receipt of the
recommendation from the Board under subsection (a), the
Director shall establish, in accordance with section
101(e)(4), and implement--
[[Page S202]]
(1) a plan for supporting the development of undergraduate
and graduate educational programs in the forensic science
disciplines and related fields; and
(2) any standards or requirements for education programs in
the forensic science disciplines and related fields
determined by the Director to be appropriate.
(c) Oversight.--The Director, in consultation with the
Board, shall--
(1) oversee the implementation of any standards or
requirements established under subsection (b); and
(2) periodically evaluate and, as necessary, update the
plan, standards, or requirements established under subsection
(b).
SEC. 603. MEDICAL-LEGAL DEATH EXAMINATION.
(a) Recommendations.--Not later than 3 years after the date
of enactment of this Act, the Board shall submit to the
Director--
(1) a recommended plan to encourage the Federal Government
and State and local governments to implement systems to
ensure that qualified individuals perform medical-legal death
examinations and to encourage qualified individuals to enter
the field of medical-legal death examination; and
(2) recommendations on whether and how the requirements,
standards and regulations established under this Act should
apply to individuals who perform medical-legal death
examinations.
(b) Establishment and Implementation.--Upon receipt of the
recommendations from the Board under subsection (a), the
Director shall establish, in accordance with section
101(e)(4), and implement--
(1) a plan to encourage the Federal Government and State
and local governments to implement systems to ensure that
qualified individuals perform medical-legal death
examinations and to encourage qualified individuals to enter
the field of medical-legal death examination; and
(2) any specific or additional standards or requirements
for individuals who perform medical-death examinations
determined by the Director to be appropriate.
(c) Oversight.--The Director, in consultation with the
Board, shall--
(1) oversee the implementation of any standards or
requirements established under subsection (b)(2); and
(2) periodically evaluate and, as necessary, update the
plan, standards, and requirements established under
subsection (b).
SEC. 604. INTER-GOVERNMENTAL COORDINATION.
The Board and the Director shall regularly--
(1) coordinate with relevant Federal agencies, including
the National Science Foundation, the Department of Defense,
and the National Institutes of Health, as appropriate, to
make efficient and appropriate use of research expertise and
funding; and
(2) coordinate with the Department of Homeland Security and
other relevant Federal agencies to determine ways in which
the forensic science disciplines may assist in homeland
security and emergency preparedness.
SEC. 605. ANONYMOUS REPORTING.
Not later than 3 years after the date of enactment of this
Act, the Director shall develop a system for any individual
to provide information relating to compliance, or lack of
compliance, with the requirements, standards, and regulations
established under this Act, which may include a hotline or
website that has appropriate guarantees of anonymity and
confidentiality and protections for whistleblowers.
SEC. 606. INTEROPERABILITY OF DATABASES AND TECHNOLOGIES.
(a) Recommendations.--Not later than 3 years after the date
of enactment of this Act, the Board shall submit to the
Director a recommended plan to require interoperability among
databases and technologies in each of the forensic science
disciplines among all levels of Government, in all States,
and with the private sector
(b) Establishment and Implementation.--Upon receipt of the
recommendation from the Board under subsection (a), the
Director shall establish, in accordance with section
101(e)(4), and implement a plan to encourage interoperability
among databases and technologies in each of the forensic
science disciplines among all levels of Government, in all
States, and with the private sector.
(c) Oversight.--The Director, in consultation with the
Board, shall evaluate and, as necessary, update the plan
established under subsection (b).
SEC. 607. CODE OF ETHICS.
(a) Recommendations.--
(1) In general.--Not later than 3 years after the date of
enactment of this Act, the Board shall submit to the Director
a recommended code of ethics for the forensic science
disciplines.
(2) Requirements.--In developing a recommended code of
ethics under paragraph (1), the Board shall--
(A) consult with relevant qualified professional
organizations; and
(B) consider any recommendations relating to a code of
ethics or code of professional responsibility developed by
the Subcommittee on Forensic Science of the National Science
and Technology Council.
(b) Establishment and Incorporation.--Upon receipt of the
recommendation from the Board under subsection (a), the
Director shall--
(1) in accordance with section 101(e)(4), establish a code
of ethics for the forensic science disciplines; and
(2) as appropriate, incorporate the code of ethics into the
standards for accreditation of forensic science laboratories
and certification of relevant personnel established under
this Act.
(c) Oversight.--The Director, in consultation with the
Board, shall periodically evaluate and, as necessary, update
the code of ethics established under subsection (b).
______
By Mr. BINGAMAN (for himself and Mr. Udall of New Mexico):
S. 134. A bill to authorize the Mescalero Apache Tribe to lease
adjudicated water rights; to the Committee on Indian Affairs.
Mr. BINGAMAN. Mr. President, today I am introducing a bill entitled
the Mescalero Apache Tribe Leasing Authorization Act to allow the
Mescalero Apache Tribe in New Mexico to lease certain adjudicated water
rights to other communities in need of water. My colleague Senator Tom
Udall is co-sponsoring this measure and I am looking forward to working
with him on this issue.
As competition for limited water supplies increases and water
supplies become more uncertain as a result of a changing climate, more
flexibility in water management strategies is essential. This bill will
enable the Mescalero Apache Tribe to lease certain unused water rights
adjudicated to the Tribe to other communities in New Mexico that have
significant water needs. Through this bill, communities including the
Village of Ruidoso, the Village of Cloudcroft and the City of
Alamogordo would be able to negotiate with the Mescalero Apache Tribe
to lease water through a process overseen by the New Mexico State
Engineer. These mutually beneficial transactions will provide
additional water to communities in times of need and will provide
economic benefits to the Tribe. Allowing these types of transactions to
occur will also help to strengthen the relationship between Indian and
non-Indian communities that co-exist in many parts of New Mexico.
This bill will greatly benefit the Mescalero Apache Tribe and its
surrounding neighbors and it is my hope that my colleagues will
ultimately support its enactment.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 134
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mescalero Apache Tribe
Leasing Authorization Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Adjudicated water rights.--The term ``adjudicated water
rights'' means water rights that were adjudicated to the
Tribe in State v. Lewis, 116 N.M. 194, 861 P. 2d 235 (1993).
(2) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(3) State.--The term ``State'' means the State of New
Mexico.
(4) Tribe.--The term ``Tribe'' means the Mescalero Apache
Tribe.
SEC. 3. AUTHORIZATION TO LEASE ADJUDICATED WATER RIGHTS.
(a) In General.--Notwithstanding any other provision of
law, subject to subsections (b) and (c), the Tribe may lease,
enter into a contract with respect to, or otherwise transfer
to another party, for another purpose, or to another place of
use in the State, all or any portion of the adjudicated water
rights.
(b) State Law.--In carrying out any action under subsection
(a), the Tribe shall comply with all laws (including
regulations) of the State with respect to the leasing or
transfer of water rights.
(c) Alienation; Maximum Term.--
(1) Alienation.--The Tribe shall not permanently alienate
any adjudicated water rights.
(2) Maximum term.--The term of any water use lease,
contract, or other agreement under this section (including a
renewal of such an agreement) shall be not more than 99
years.
(d) Liability.--The Secretary shall not be liable to the
Tribe or any other person for any loss or other detriment
resulting from a lease, contract, or other arrangement
entered into pursuant to this section.
(e) Purchases or Grants of Land From Indians.--The
authorization provided by this Act for the leasing,
contracting, and transfer of the adjudicated water rights
shall be considered to satisfy any requirement for
authorization of the action by treaty or convention imposed
by section 2116 of the Revised Statutes (25 U.S.C. 177).
(f) Prohibition on Forfeiture.--The nonuse of all or any
portion of the adjudicated water rights by a lessee or
contractor shall not result in the forfeiture, abandonment,
relinquishment, or other loss of all or any portion of the
adjudicated water rights.
[[Page S203]]
______
By Mr. REID (for Mrs. Feinstein (for herself, Mr. Schumer, Mr.
Kerry, Mr. Sanders, and Mr. Franken)):
S. 136. A bill to establish requirements with respect to bisphenol A;
to the Committee on Health, Education, Labor, and Pensions.
Mrs. FEINSTEIN. Mr. President, today I am introducing the ``Ban
Poisonous Additives Act of 2011,'' a bill that would ban the chemical
Bisphenol A, known as BPA, from all children's feeding products. I
thank my cosponsors Senators Schumer, Kerry, Sanders, and Franken for
their support.
I vowed in the last Congress not to give up, and this is why I am
introducing a bill that bans the use of BPA in baby bottles, sippy
cups, infant formula, and baby food containers: the products used to
provide food and beverages to the most vulnerable.
I have a deep, abiding concern regarding the presence of toxins and
chemicals in the daily lives of Americans. BPA is an endocrine
disruptor, which means that it interferes with the way hormones work in
the body.
The evidence against BPA is mounting, especially its harmful effects
on babies and children who are still developing.
I believe we have an obligation to safeguard babies and children from
unnecessary exposure to this chemical that is linked to so many health
problems.
Over 200 scientific studies show that even at low doses, BPA is
linked to serious health problems including: Cancer, Diabetes, Heart
Disease, Early puberty, Behavioral problems, Obesity.
This chemical is so widespread it has been found in 93 percent of
Americans.
Babies and children are particularly at risk to the exposure of BPA
because when they are developing, any small change can cause dramatic
consequences.
It may not surprise you that the chemical industry continues to
insist that BPA is not harmful. According to at least one study, there
is reason to be skeptical about research coming from chemical
companies.
In 2006, the journal Environmental Research published an article
comparing the results of government funded studies on BPA to BPA
studies funded by industry.
The difference is glaring.
Ninety-two percent of the government funded studies found that
exposure to BPA caused health problems.
Overwhelmingly, government studies found harm. None of the industry
funded studies identified health problems as a result of BPA exposure.
Not one.
Clearly, serious questions are raised about the validity of the
chemical industry's studies. The results also illustrate why our
nation's regulatory agencies should not and cannot solely rely on
chemical companies to conduct research on their own products.
The fact that so many adverse health effects are linked to this
chemical, the fact that this chemical is so present in our bodies, and
the fact that babies are more at risk from its harmful effects leads me
to believe that there is no good reason to expose our children to BPA.
This is why we are introducing legislation that protects all babies
across the country, no matter which state they happen to live.
This bill will ensure that parents no longer have to wonder whether
products they buy for their babies and children will harm them now or
later in life.
This bill: Bans the use of BPA in baby bottles and sippy cups within
6 months; Bans the use of BPA in baby food within 1 year; Bans the use
of BPA in infant formula within 18 months; Requires that the FDA issue
a revised safety assessment on BPA by December 1, 2012; and Includes a
savings clause to allow states to enact their own legislation.
This bill makes sense. It's a reasonable step forward to protecting
our children's health.
Major manufacturers are already phasing out BPA from their food and
beverage products for children.
Food and beverage products for children all have safe, alternative,
BPA-free packaging available right now.
Major baby food and formula manufacturers offer BPA-free alternatives
including: Nestle's GOOD START, Similac powdered infant formula,
Enfamil powdered infant formula, Nestle liquid formula, and Similac
liquid formula.
At least 14 manufacturers of baby bottles either offer some BPA-free
alternatives or have completely banned its use. They are: Avent, Born
Free, Disney First Years, Dr. Brown's, Evenflo, Gerber, Green to Grow,
Klean Kanteen, Medala, Munchkin, Nuby Sippy Cups, Playtex, Think Baby,
and Weil Baby.
Many major retailers have taken action and sell BPA-free baby bottles
and cups: CVS, Kmart, Kroger, Rite Aid, Safeway, Sears, Toys ``R'' Us
and Babies ``R'' Us, Wal-Mart, Wegmans, and Whole Foods.
Eight states have already enacted laws banning BPA from children's
products: Connecticut, Maryland, Massachusetts, Minnesota, New York,
Vermont, Washington, and Wisconsin.
Other countries have already moved forward to restrict this chemical.
Canada declared BPA a toxic substance, and banned it from all baby
bottles and sippy cups. Denmark and France have national bans on BPA in
certain children's products.
The European Commission banned BPA from baby bottles, protecting
consumers in the European Union.
Clearly, the problem has been recognized and steps are being taken by
countries, states, companies, and retailers to remove this harmful
chemical.
Let me briefly explain what BPA is.
BPA is a synthetic estrogen. As I stated previously, it is a hormone
disruptor and interferes with how hormones work in the body. This
chemical is used in thousands of consumer products to harden plastics,
line tin cans, and make CDs. It is even used to coat airline tickets,
grocery store receipts, and to make dental sealants.
It is one of the most pervasive chemicals in modern life. And, as
with so many other chemicals in consumer products, BPA has been added
to our products without us knowing whether it was safe or not.
Alternatives exist because there is growing concern about the harmful
effects of BPA. The chemical industry continues to try to quiet
criticism by reassuring consumers that BPA is safe.
I don't buy it.
As I previously stated, over 200 scientific studies show that
exposure to BPA, particularly during prenatal development and early
infancy, are linked to a wide range of adverse health effects in later
life.
Because of their smaller size and stage of development, babies and
children are particularly at risk from the harmful health effects of
BPA.
These serious effects include: increased risk of breast and prostate
cancer; genital abnormalities in males; infertility in men; sexual
dysfunction; early puberty in girls; metabolic disorders such as
insulin resistant Type 2 diabetes and obesity; and behavioral problems
such as attention deficit hyperactivity disorder, ADHD.
It continues to astound me how, even with this extensive list of
potentially serious health effects, we continue to allow this chemical
to be put in our products.
Moreover, additional science continues to be released, confirming the
potential for BPA to cause severe problems:
Recently, the University of California, San Francisco published a
small scale study finding that human exposure to BPA may compromise the
quality of a woman's eggs retrieved for in vitro fertilization, IVF.
A study of over 200 Chinese factory workers found evidence that high
levels of BPA exposure to adversely affect sperm quality in humans.
Researchers at the University of Nebraska Medical Center recently
published a study concluding that BPA has biochemical properties
similar to human carcinogens.
I want to underscore the importance and the urgency of withdrawing
BPA from these children's products.
Well-known and respected organizations and Federal agencies also have
expressed concern about BPA:
The President's Cancer Panel Annual Report released in April 2010
concluded that there is growing evidence of a link between BPA and
several diseases, such as cancer.
The Panel recommended using BPA-free containers to limit chemical
exposure.
A 2008 study by the American Medical Association suggested links
between exposure to BPA and diabetes,
[[Page S204]]
heart disease and liver problems in humans.
The National Health and Nutrition Examination Survey (NHANES) linked
BPA in high concentrations to cardiovascular disease, and Type II
diabetes.
Given these conclusions, it is critical we act now to protect the
most vulnerable, our infants and toddlers from this chemical.
Children receive no benefit by having a baby bottle or cup coated
with BPA.
In the last Congress, I vowed not to give up in my fight to ban BPA.
After working hard for many months to reach an agreement with Senator
Enzi on a more limited ban, I was sincerely disappointed that this
agreement was blocked by the chemical industry from being included in
the food safety bill.
I want to reiterate the importance of this legislation. I strongly
believe we need to take action on this.
I don't think we can take a chance with our children's health.
BPA has been linked to developmental disorders, cancer,
cardiovascular complications, and diabetes by credible scientific
bodies. The evidence that BPA is unacceptably dangerous is mounting.
Yet it remains in thousands of household and food products.
This is a reasonable, common sense bill.
Now, the time comes again for this body to take a stand and move
forward to protect the health of America's children.
I urge my colleagues to join me in supporting my legislation, the Ban
Poisonous Additives Act of 2011.
I look forward to working with my colleagues on this important issue.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 136
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ban Poisonous Additives Act
of 2011''.
SEC. 2. REQUIREMENTS WITH RESPECT TO BISPHENOL A.
(a) Ban on Use of Bisphenol A in Food and Beverage
Containers for Children.--
(1) Baby food; unfilled baby bottles and cups.--Section 402
of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342)
is amended by adding at the end the following:
``(j)(1) If it is a food intended for children 3 years of
age or younger, the container of which (including the lining
of such container) is composed, in whole or in part, of
bisphenol A.
``(2) If it is a baby bottle or cup that is composed, in
whole or in part, of bisphenol A.''.
(2) Definition.--Section 201 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321) is amended by adding at the end
the following:
``(rr) Baby Bottle or Cup.--For purposes of section 402(j),
the term `baby bottle or cup' means a bottle or cup that--
``(1) is intended to aid in the feeding or providing of
drink to children 3 years of age or younger; and
``(2) does not contain a food when such bottle or cup is
sold or distributed at retail.''.
(3) Effective dates.--
(A) Baby food.--Section 402(j)(1) of the Federal Food,
Drug, and Cosmetic Act, as added by paragraph (1), shall take
effect 1 year after the date of enactment of this Act.
(B) Unfilled baby bottles and cups.--Section 402(j)(2) of
the Federal Food, Drug, and Cosmetic Act, as added by
paragraph (1), shall take effect 180 days after the date of
enactment of this Act.
(b) Ban on Use of Bisphenol A in Infant Formula
Containers.--
(1) In general.--Section 412(a) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 350a(a)) is amended--
(A) in paragraph (2), by striking ``, or'' and inserting
``,'';
(B) in paragraph (3), by striking the period at the end and
inserting ``, or''; and
(C) by adding at the end the following:
``(4) the container of such infant formula (including the
lining of such container and, in the case of infant formula
powder, excluding packaging on the outside of the container
that does not come into contact with the infant formula
powder) is composed, in whole or in part, of bisphenol A.''.
(2) Effective date.--The amendments made by paragraph (1)
shall take effect 18 months after the date of enactment of
this Act.
(c) Regulation of Other Containers Composed of Bisphenol
A.--
(1) Safety assessment of products composed of bpa.--Not
later than December 1, 2012, the Secretary of Health and
Human Services (referred to in this Act as the ``Secretary'')
shall issue a revised safety assessment for food containers
composed, in whole or in part, of bisphenol A, taking into
consideration different types of such food containers and the
use of such food containers with respect to different foods,
as appropriate.
(2) Safety standard.--Through the safety assessment
described in paragraph (1), and taking into consideration the
requirements of section 409 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 348) and section 170.3(i) of title
21, Code of Federal Regulations, the Secretary shall
determine whether there is a reasonable certainty that no
harm will result from aggregate exposure to bisphenol A
through food containers or other items composed, in whole or
in part, of bisphenol A, taking into consideration potential
adverse effects from low dose exposure, and the effects of
exposure on vulnerable populations, including pregnant women,
infants, children, the elderly, and populations with high
exposure to bisphenol A.
(3) Application of safety standard to alternatives.--The
Secretary shall use the safety standard described under
paragraph (2) to evaluate the proposed uses of alternatives
to bisphenol A.
(d) Savings Provision.--Nothing in this section shall
affect the right of a State, political subdivision of a
State, or Indian Tribe to adopt or enforce any regulation,
requirement, liability, or standard of performance that is
more stringent than a regulation, requirement, liability, or
standard of performance under this section or that--
(1) applies to a product category not described in this
section; or
(2) requires the provision of a warning of risk, illness,
or injury associated with the use of food containers
composed, in whole or in part, of bisphenol A.
(e) Definition.--For purposes of this section, the term
``container'' includes the lining of a container.
______
By Mr. REID (for Mrs. Feinstein (for herself, Mr. Inouye, Mrs.
Boxer, Mr. Sanders, Mr. Whitehouse, Mr. Casey, and Mr.
Lautenberg)):
S. 137. A bill to amend the Public Health Service Act to provide
protections for consumers against excessive, unjustified, or unfairly
discriminatory increases in premium rates; to the Committee on Health,
Education, Labor, and Pensions.
Mrs. FEINSTEIN. Mr. President, in passing the Patient Protection and
Affordable Care Act, PPACA, on March 23, 2010, the 111th Congress made
great strides towards protecting consumers from egregious health
insurance company practices. However, despite the passage of this
historic legislation, the urgent need to protect Americans from unfair
health insurance rate increases remains.
Health insurance premiums have been spiraling upwards nationally at
out-of-control rates--10, 20, 30 percent every year--all while big
national insurance companies enjoy increasing profits.
Without further legislative action, health insurance companies will
continue to do what they have done for far too long: put their profits
ahead of people.
Over the past decade, family health insurance premiums have more than
doubled, growing a shocking 130 percent, while workers' hourly earnings
rose by only 38 percent, and inflation rose just 29 percent.
From 2000-2008, individuals in the employer-sponsored market saw
premiums increase an average of 90 percent.
The cost of health insurance continues to outpace income and
inflation for other goods and services, and these rapidly escalating
costs strain businesses, families, and individuals.
In 2009, 57 percent of people attempting to purchase insurance in the
individual market found it difficult or impossible to afford coverage.
All the while, in the third quarter of 2010, the six-largest
investor-owned health insurance companies (Aetna, Coventry Health,
United Health, Humana, WellPoint, and Cigna) saw a 22 percent increase
in combined net income, putting them on pace to break their own profit
record.
The problem is that the health reform law did not go far enough to
control these unfair premium increases, it leaves a loophole.
Simply stated, there is no federal authority to do anything about
these rate increases, even if they are unfair.
We need to close this loophole.
This is why today I am introducing, with Senators Boxer and Inouye,
the Health Insurance Rate Review Act of 2011. Representative Schakowsky
is introducing companion legislation in the House of Representatives.
This legislation creates a federal fallback rate review process, and
grants regulatory authority to block or modify rate increases that are
excessive, unjustified, or unfairly discriminatory.
This legislation is a simple, common-sense solution: for States where
the insurance commissioner does not have or
[[Page S205]]
use authority to block unfair rate increases, the Secretary of Health
and Human Services can do so.
On March 4, 2010, I introduced similar legislation to what I am
introducing today. I worked with the Administration and the Finance
Committee in putting it together, and with Representative Schakowsky.
President Obama included it in his health reform proposal, but
unfortunately, it did not meet the criteria for reconciliation.
The time has come now to take action.
This legislation is necessary in order to protect consumers from the
egregious abuses of insurance companies, especially before the majority
of the consumer protections included in health reform are fully in
place in 2014.
It is disturbing that year after year, health insurance premiums
spiral out control, all while insurance companies enjoy increasing
profits.
Insurance premiums make up a higher percentage of household income
than ever before, meaning that more and more families have to choose
between health care and daily living expenses, saving for retirement,
and education.
This is unacceptable, and more must be done to protect consumers.
Everyone by now is familiar with the increases that Anthem/Blue
Cross, a subsidiary of WellPoint, was set to impose--as much as 39
percent--for 800,000 Californians.
It turns out that Anthem Blue Cross used flawed data to calculate
health insurance premium increases to hundreds of thousands of
policyholders in California, resulting in increases that were larger
than necessary.
According to an independent analysis, the 25 percent average increase
proposed by Anthem should have only been 15.2 percent.
What is most disturbing is that Anthem's case is not an aberration.
Far from it.
This is not a problem unique to California. In the spring of 2010,
health insurance companies pursued rate hikes in a number of States: as
much as 60 percent in Illinois; 72 percent in Georgia; 50 percent in
New Jersey; and 40 percent in Virginia, to name a few.
The White House reports that premium rates have been rising across
the Nation, with substantial geographic variation.
For employer-sponsored family coverage, premiums increased 88 percent
in Michigan over the past decade compared to a 145 percent increase in
Alaska.
A report by the Center for American Progress Action Fund found that
this summer, WellPoint pursued double digit increases in the individual
market for 10 other States: Colorado, Connecticut, Georgia, Indiana,
Maine, Nevada, New Hampshire, New York, Virginia, and Wisconsin.
The reporting requirements in the health reform law will improve the
information available, but right now, comprehensive data on the premium
increases insurers are imposing does not exist.
In 2009, despite the worst economic downturn since the Great
Depression, the five largest for-profit health insurance companies,
WellPoint Inc., United Health Group Inc., Aetna Inc., Humana Inc., and
Cigna Corp., set a full-year profit record. These companies saw a 56
percent increase in profits from 2008 to 2009, from $7.7 billion to
$12.1 billion.
Furthermore, when many Americans were experiencing double-digit
premium increases in 2009, high unemployment, and an average wage
growth of only 2 percent, insurance CEOs gave themselves a 167 percent
raise.
CEO pay for the 10 largest for-profit health insurance companies was
$228.1 million in 2009, up from $85.5 million in 2008.
This doesn't even include the tens of millions more dollars in
exercised stock options, and means that these CEOs raked in nearly $1
billion in total compensation.
In the first three months of 2010, the five largest for-profit health
insurance companies, WellPoint Inc., United Health Group Inc., Aetna
Inc., Humana Inc., and Cigna Corp., recorded a combined net income of
$3.2 billion--a 31 percent jump over the same period in 2009.
Meanwhile, large insurance companies now insure 2.8 million fewer
Americans than they did on December 31, 2008. An estimated 59.1 million
Americans were uninsured in the first quarter of 2010.
The California HealthCare Foundation reported that 6.8 million
California residents lack health coverage.
That is 20 percent of the State's residents who are not able to
afford health insurance.
All the while, insurance companies have been reducing the amount they
spend on actual health care. As profits and CEO pay increased, the
amount of money insurers spent on medical care went down.
The top six insurers drove down the portion of premiums spent on
medical care. For example, the share of premium dollars that CIGNA
spent on medical care decreased 6.4 percent in the second quarter of
2010 compared to the prior year, and Humana's decreased 7.4 percent.
Now, because of legislation in the health reform law, insurance
companies have to spend 80-85 percent of premiums on medical care and
quality improvement services, not on profits.
This will go a long way to keeping insurance company greed in check,
but we need to go farther.
Clearly without additional legislative requirements, health insurance
companies are not going to change.
The Department of Health and Human Services recently published
proposed rules defining the rate review process. These regulations are
a first step towards protecting consumers and keeping insurers in
check.
But they fall short of creating a strong rate review system, and rely
too heavily on the notion that public disclosure of rates will cause
insurance companies to change their behavior.
The regulations do not grant explicit regulatory authority--either
State or Federal--to deny, modify, or block rate increases that are
excessive, unjustified, or unfairly discriminatory.
The health reform law requires insurance companies to provide
justification for unreasonable premium increases to the Secretary of
Health and Human Services and post them on their Web sites.
The regulations subject rate increases of 10 percent or greater to
additional scrutiny and review, but the State-specific thresholds in
2012 could sanction increases higher than 10 percent.
Transparency and increased scrutiny are steps forward, but there is
still this loophole where there is no authority to block or modify even
excessive, unjustified, and unfairly discriminatory increases.
This is why I am again introducing my rate review legislation, which
will grant this authority.
I believe there needs to be a Federal fallback in States that lack
the legal authority, capacity, or resources to conduct strong rate
review.
This legislation gives the Secretary of Health and Human Services the
authority to block premium or other rate increases that are excessive,
unjustified, or unfairly discriminatory.
In some States, insurance commissioners already have that authority,
and that is fine. The bill doesn't touch them.
In Maine, for example, the State superintendent of insurance was able
to block Anthem's proposed 18.5-percent increase last year. She
approved only a 10.9-percent increase.
In at least 17 States, including my own--California--companies are
not required to receive prior approval for rate increases before they
take effect.
In these States, the Secretary would review potentially excessive,
unjustified, or unfairly discriminatory rate increases and take
corrective action. This could include blocking an increase, providing
rebates to consumers, or adjusting an increase.
Under this proposal, the Secretary would work with the National
Association of Insurance Commissioners to implement the rate review
process. States already doing this work will continue to do so unabated
and unfettered. The legislation would not affect them.
However, for the consumers in the other 17 States with no authority,
such as California, protection from unfair rate hikes would be
provided.
Given the variation in State rate review authority and process, I
think this proposal strikes the right balance.
There is no need for involvement in States with insurance
commissioners that are able to protect consumers. So the legislation I
am introducing simply
[[Page S206]]
provides Federal protection for consumers who are currently at the
mercy of large health insurance companies whose top priority is their
bottom line.
This legislation is particularly important given a recent report by
the Kaiser Family Foundation showing that many States lack the capacity
and resources to conduct adequate rate review, regardless of the
State's statutory authority to review rates.
I strongly believe that we need to take action on this. The health
reform law made great strides towards holding companies and
shareholders accountable for providing health care at a reasonable
rate.
However, there is this loophole.
So this bill becomes very necessary. Premiums are increasing every
day, and people in many States have no recourse, and no way to know if
a particular increase is unfair.
There needs to be a Federal fallback in States that lack the legal
authority, capacity, or resources to conduct strong rate review. In
States where the Insurance Commissioner is not equipped to review,
modify, and block unreasonable rates, my legislation would grant the
Secretary of Health and Human Services the authority to do so.
I urge my colleagues to join me in supporting this legislation, the
Health Insurance Rate Review Act of 2011, which will close this
loophole.
I look forward to working with my colleagues on this important issue.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 137
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Health Insurance Rate Review
Act''.
SEC. 2. PROTECTION OF CONSUMERS FROM EXCESSIVE, UNJUSTIFIED,
OR UNFAIRLY DISCRIMINATORY RATES.
(a) Protection From Excessive, Unjustified, or Unfairly
Discriminatory Rates.--The first section 2794 of the Public
Health Service Act (42 U.S.C. 300gg-94), as added by section
1003 of the Patient Protection and Affordable Care Act
(Public Law 111-148), is amended by adding at the end the
following new subsection:
``(e) Protection From Excessive, Unjustified, or Unfairly
Discriminatory Rates.--
``(1) Authority of states.--Nothing in this section shall
be construed to prohibit a State from imposing requirements
(including requirements relating to rate review standards and
procedures and information reporting) on health insurance
issuers with respect to rates that are in addition to the
requirements of this section and are more protective of
consumers than such requirements.
``(2) Consultation in rate review process.--In carrying out
this section, the Secretary shall consult with the National
Association of Insurance Commissioners and consumer groups.
``(3) Determination of who conducts reviews for each
state.--The Secretary shall determine, after the date of
enactment of this section and periodically thereafter, the
following:
``(A) In which States the State insurance commissioner or
relevant State regulator shall undertake the corrective
actions under paragraph (4), as a condition of the State
receiving the grant in subsection (c), based on the
Secretary's determination that the State is adequately
prepared to undertake and is adequately undertaking such
actions.
``(B) In which States the Secretary shall undertake the
corrective actions under paragraph (4), in cooperation with
the relevant State insurance commissioner or State regulator,
based on the Secretary's determination that the State is not
adequately prepared to undertake or is not adequately
undertaking such actions.
``(4) Corrective action for excessive, unjustified, or
unfairly discriminatory rates.--In accordance with the
process established under this section, the Secretary or the
relevant State insurance commissioner or State regulator
shall take corrective actions to ensure that any excessive,
unjustified, or unfairly discriminatory rates are corrected
prior to implementation, or as soon as possible thereafter,
through mechanisms such as--
``(A) denying rates;
``(B) modifying rates; or
``(C) requiring rebates to consumers.''.
(b) Clarification of Regulatory Authority.--Such section is
further amended--
(1) in subsection (a)--
(A) in the heading, by striking ``Premium'' and inserting
``Rate'';
(B) in paragraph (1), by striking ``unreasonable increases
in premiums'' and inserting ``potentially excessive,
unjustified, or unfairly discriminatory rates, including
premiums,''; and
(C) in paragraph (2)--
(i) by striking ``an unreasonable premium increase'' and
inserting ``a potentially excessive, unjustified, or unfairly
discriminatory rate'';
(ii) by striking ``the increase'' and inserting ``the
rate''; and
(iii) by striking ``such increases'' and inserting ``such
rates'';
(2) in subsection (b)--
(A) by striking ``premium increases'' each place it appears
and inserting ``rates''; and
(B) in paragraph (2)(B), by striking ``premium'' and
inserting ``rate''; and
(3) in subsection (c)(1)--
(A) in the heading, by striking ``Premium'' and inserting
``Rate'';
(B) by inserting ``that satisfy the condition under
subsection (e)(3)(A)'' after ``award grants to States''; and
(C) in subparagraph (A), by striking ``premium increases''
and inserting ``rates''.
(c) Conforming Amendment.--Title XXVII of the Public Health
Service Act (42 U.S.C. 300gg et seq.) is amended--
(1) in section 2723 (42 U.S.C. 300gg-22), as redesignated
by the Patient Protection and Affordable Care Act--
(A) in subsection (a)--
(i) in paragraph (1), by inserting ``and section 2794''
after ``this part''; and
(ii) in paragraph (2), by inserting ``or section 2794''
after ``this part''; and
(B) in subsection (b)--
(i) in paragraph (1), by inserting ``and section 2794''
after ``this part''; and
(ii) in paragraph (2)--
(I) in subparagraph (A), by inserting ``or section 2794
that is'' after ``this part'' ; and
(II) in subparagraph (C)(ii), by inserting ``or section
2794'' after ``this part''; and
(2) in section 2761 (42 U.S.C. 300gg-61)--
(A) in subsection (a)--
(i) in paragraph (1), by inserting ``and section 2794''
after ``this part''; and
(ii) in paragraph (2)--
(I) by inserting ``or section 2794'' after ``set forth in
this part''; and
(II) by inserting ``and section 2794'' after ``the
requirements of this part''; and
(B) in subsection (b)--
(i) by inserting ``and section 2794'' after ``this part'';
and
(ii) by inserting ``and section 2794'' after ``part A''.
(d) Applicability to Grandfathered Plans.--Section
1251(a)(4)(A) of the Patient Protection and Affordable Care
Act (Public Law 111-148), as added by section 2301 of the
Health Care and Education Reconciliation Act of 2010 (Public
Law 111-152), is amended by adding at the end the following:
``(v) Section 2794 (relating to reasonableness of rates
with respect to health insurance coverage).''.
(e) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this Act.
______
By Mr. REID (for Mrs. Feinstein):
S. 138. A bill to provide for conservation, enhanced recreation
opportunities, and development of renewable energy in the California
Desert Conservation Area, and for other purposes; to the Committee on
Energy and Natural Resources.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce the
California Desert Protection Act of 2011.
This bill is an effort to plan for the competing uses--such as
conservation, off-highway vehicle recreation, development, and military
training--that are now being proposed for the desert. These uses of our
public lands can coexist through comprehensive planning, but in the
absence of such planning, it's quite possible that none will thrive.
During the previous Congress I introduced similar legislation to help
preserve pristine desert lands that were donated to the Federal
Government for permanent conservation a decade ago, but that more
recently have come under threat of development because of a flawed
bureaucratic process that failed to protect them.
Over the last year the bill was endorsed by more than 100
organizations and agencies, and it had a hearing in the Energy and
Natural Resources Committee.
I am grateful to Senator Bingaman and his staff for working with me
to prepare the bill for further action in the Energy and Natural
Resources Committee. I believe we can revise the bill to address
further the needs of renewable energy developers, the Department of
Defense, off-road recreation enthusiasts, local government and others,
and I look forward to continuing that effort in the new Congress.
I strongly believe that conservation, renewable energy development
and recreation can and must co-exist in the California Desert--and this
legislation strikes a carefully conceived balance between these
sometimes competing concerns.
The key provisions of this bill would designate two new national
monuments--the Mojave Trails and the Sand
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to Snow National Monuments; add adjacent lands to the Joshua Tree and
Death Valley National Parks and the Mojave National Preserve; designate
5 new BLM wilderness areas and protect 4 important waterways--including
the Amargosa River and Deep Creek--as Wild and Scenic Rivers; and
enhance recreational opportunities in the desert and ensure that the
training needs of the military are met.
This bill is the product of painstaking discussions with key
stakeholders including environmental groups, local and State
government, off-highway recreation enthusiasts, hunters, cattle
ranchers, mining interests, the Department of Defense, wind and solar
energy companies, California's public utility companies, and many
others. I am grateful for all of their efforts.
The previous version of my bill proposed specific improvements to the
Department of the Interior's rules governing the development of
renewable energy on public lands. I'm pleased that the Department has
instituted a number of new policies over the last year which have
greatly improved the process. Consequently, the current bill focuses
primarily on conservation, recreation and other important uses of the
California desert.
However, I intend to work with my colleagues from the West on
separate legislation to further expedite the development of wind and
solar energy in California and the West.
The California Desert Protection Act, which was enacted in 1994, was
a sweeping piece of legislation aimed at conserving some of the most
beautiful and ecologically significant lands in my home State.
The law created Death Valley National Park, Joshua Tree National Park
and the Mojave National Preserve, as well as 69 desert wilderness areas
managed by the Bureau of Land Management, BLM.
Collectively, it protected more than 7 million acres of desert lands,
making it the largest land conservation bill in the lower 48 States in
U.S. history.
To this day, it remains one of my proudest accomplishments since
joining this body.
Much has changed since the passage of the California Desert
Protection Act. Many of the impediments that prevented conservation of
other pristine desert lands in the area no longer exist.
For example the Department of Defense concerns with designating some
wilderness areas near Fort Irwin have been resolved; many mining areas
inside national parks and potential wilderness have closed; grazing
allotments on both BLM and National Park Service land have been retired
by willing sellers; hundreds of thousands of acres of privately owned
land have been donated to or acquired by the Federal Government.
Yet even as these issues were resolved, new challenges have emerged.
There are now competing demands over how best to manage hundreds of
thousands of acres of public lands in the desert.
Some believe the lands should be used for large-scale solar and wind
facilities and transmission lines. Others would like to conserve
critical habitat for threatened and endangered species.
Some would like more acreage available for grazing or for off-road
recreation.
Finally, some would like to see additional lands made available for
military training and base expansion.
Two years ago, I learned that BLM had accepted applications to build
vast solar and wind energy projects on former railroad lands previously
owned by the Catellus Corporation. These lands had been donated to the
Federal Government or acquired with taxpayer funds with the explicit
goal of conservation.
Approximately $45 million of private donations--including a $5
million land discount from Catellus Corporation--and $18 million in
Federal Land and Water Conservation grants was spent to purchase these
lands, with the intent of conserving them in perpetuity.
As the sponsor of the legislative provisions that helped secure the
deal to acquire the roughly 600,000 acres of former private land, I
found the BLM's actions unacceptable.
We have an obligation to honor our commitment to conserve these
lands--and I believe we can still accomplish that goal while also
fulfilling California's commitment to develop a clean energy portfolio.
I believe the development of these new cleaner energy sources is
vital to addressing climate change, yet we must be careful about
selecting where these facilities are located.
I plan to work with senators from Western States to improve the
renewable energy permitting process to allow quicker development of
renewable energy projects on private and disturbed public land. This
effort likely requires separate legislation and improved regulation.
I applaud the Department of the Interior's efforts over the last year
to address this problem, especially Interior's proposed designation of
24 solar energy zones encompassing 677,000 acres of public land in 6
Western States. By designating these zones in appropriate areas and
streamlining the permitting process for projects proposed there, the
Department has helped ensure that sensitive areas of the desert can be
preserved.
As BLM finalizes the creation of these Zones and its new Solar Energy
Program, I will push BLM to create a development zone in the West
Mojave, conduct sufficient study of zones to ensure projects in these
locations can be permitted quickly, and establish the program's rules
as expeditiously as possible.
I will continue to suggest ways that the U.S. Fish and Wildlife
Service can improve permitting on private lands, the Defense Department
can welcome development on its bases, and the Forest Service can
utilize its own lands. These matters may require legislation.
There is enough land in California's desert to protect the most
precious areas of the Mojave and aggressively develop renewable
resources where permitting will be rapid. California must develop
15,000 to 20,000 megawatts of renewable power to meet its climate goals
by 2020, and the current permitting process will need to vastly improve
for the state to meet this goal.
First, this bill will ensure that hundreds of thousands of acres of
land donated to the federal government for conservation will be
protected by creating the Mojave Trails National Monument. This new
monument would cover approximately 941,000 acres of federal land, which
includes approximately 266,000 acres of the former Catellus-owned
railroad lands along historic Route 66. I visited the area and was
amazed by the beauty of the massive valleys, pristine dry lakes, and
rugged mountains.
In addition to its iconic sweeping desert vistas and majestic
mountain ranges, this area of the Eastern Mojave also contains critical
wildlife corridors linking Joshua Tree National Park and the Mojave
National Preserve. It also encompasses hundreds of thousands of acres
designated as areas of critical environmental concern, critical habitat
for the threatened desert tortoise, and ancient lava bed flows and
craters. It is surrounded by more than a dozen BLM wilderness areas.
The BLM would be given the authority to both conserve the monument
lands, and also to maintain existing recreational uses, including
hunting, vehicular travel on open roads and trails, camping, horseback
riding and rockhounding.
The bill also creates an advisory committee to help develop and
oversee the implementation of the monument management plan. It would be
comprised of representatives from local, state and federal government,
conservation and recreation groups, and local Native American tribes.
Before I go on to the other conservation provisions in the bill, I
would like to address one important issue--and that is what should be
done about some of the proposed renewable energy development projects
proposed for lands included in this monument.
Although it is true that the monument will prevent further
consideration of some applications to develop solar and wind energy
projects on former Catellus lands or adjoining lands in the monument,
it is important to note that of the proposals in question, not a single
one has been granted a permit, nor is a single one under review at the
California Energy Commission or under formal NEPA, National
Environmental Policy Act, review at BLM.
To ensure that creation of the monument does not unnecessarily harm
the
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firms that worked in good faith and invested substantial time and
resources to produce renewable energy in California, the legislation
will offer these companies an opportunity to relocate their projects to
federal renewable energy zones currently being developed by the
Department of the Interior.
Additionally, the monument would not prevent the construction or
expansion of necessary transmission lines critical to linking renewable
energy generation facilities with the electricity grid.
Second, the bill would establish the ``Sand to Snow National
Monument,'' encompassing 134,000 acres of land from the desert floor in
the Coachella Valley up to the top of Mount San Gorgonio, the highest
peak in Southern California.
The boundaries of this second, smaller new monument would include two
Areas of Critical Environmental Concern: Big Morongo Canyon and
Whitewater Canyon, the BLM and U.S. Forest Service San Gorgonio
Wilderness, the Wildlands Conservancy's Pipe's Canyon and Mission Creek
Preserves, and additional public and private conservation lands,
including two wildlife movement corridor areas connecting the
Peninsular Ranges with the Transverse Ranges.
This area is truly remarkable, and would arguably be the most
environmentally diverse national monument in the country. It serves as
the intersection of three converging ecological systems--the Mojave
Desert, the Colorado Desert, and the San Bernardino mountains--and is
one of the most important wildlife corridors in Southern California.
This monument designation would protect 23.6 miles of the Pacific
Crest Trail and the habitat for approximately 240 species of migrating
and breeding birds, the second highest density of nesting birds in the
United States. It also serves as a home and a crucial migration
corridor for animals traveling between Joshua Tree National Park, the
oasis at Big Morongo, and the higher elevations of the San Bernardino
Mountains.
I'd like to make one additional point, and that is that despite its
ecological significance, this area is not particularly well-known--
largely because it is managed by a number of distinct entities,
including the BLM, Forest Service, National Park Service and private
preserves and conservation agencies. So, the monument designation would
help to attract more attention to one of California's natural gems.
Third, the bill establishes new wilderness areas and allows more
appropriate use of lands currently designated as Wilderness Study
Areas.
The 1994 California Desert Protection Act extended wilderness
protection to many areas in the desert, yet several areas near Fort
Irwin were designated as wilderness study areas in order to allow the
base to expand.
Now that Fort Irwin's expansion is complete, it is time to consider
these areas for permanent wilderness designation.
The bill protects approximately 250,000 acres of BLM land as
wilderness in five areas. These areas contain some of the most pristine
and rugged landscapes in the California desert.
Beyond Fort Irwin, the bill also expands wilderness areas in Death
Valley National Park, 90,000 acres, and the San Bernardino National
Forest, 4,300 acres, inside the Sand to Snow National Monument created
by this bill.
The bill also releases 126,000 acres of land from their existing
wilderness study area designation in response to requests from local
government and recreation users. This will allow the land to be made
available for other purposes, including recreational off-highway
vehicle use on designated routes.
Fourth, this bill would create the Vinagre Wash Special Management
Area.
The agreed-upon designation for this area in Imperial County, near
the Colorado River, was reached after careful discussion with key
stakeholders.
Although the land possesses some wilderness characteristics, there
are also competing interests. The Navy Seals currently use some of this
area for occasional training. Additionally, many local residents enjoy
touring the rolling hills in the area by jeep.
Through the combined efforts of conservation groups, local residents
and county government, and the Department of Defense, a compromise
conservation designation was developed.
For the land known as the Vinagre Wash, the bill will create a
``special management area'' covering 76,000 acres, including 12,000
acres of former railroad lands donated to the federal government.
Of these, 49,000 acres are designated as potential wilderness and
only become permanent wilderness if and when the Department of Defense
determines these lands are no longer needed for Navy Seal training.
This designation will permit the area to continue to be accessed by
vehicles and be used for camping, hiking, mountain biking, sightseeing,
and off-highway vehicle use on designated routes and protect tribal
cultural assets in the area.
Fifth, the bill adds to or designates four new Wild and Scenic
Rivers, totaling 76 miles in length. These designations will ensure the
rivers remain clean and free-flowing and that their immediate
environments are preserved. These beautiful waterways are Deep Creek
and the Whitewater River in and near the San Bernardino National
Forest, as well as the Amargosa River and Surprise Canyon Creek near
Death Valley National Park.
Sixth, the bill adds approximately 74,000 acres of adjacent lands to
the three National Parks established by the 1994 California Desert
Protection Act: 41,000 acres in Death Valley National Park. This
includes former mining areas where the claims have been retired and a
narrow strip of BLM land between National Park and Defense Department
boundaries that has made BLM management difficult; almost 30,000 acres
in the Mojave National Preserve. This land was not included in the
original Monument because of the former Viceroy gold mine. However, the
mining operations ceased several years ago and the reclamation process
is nearly complete. Additionally, a 2007 analysis by the Interior
Department recommended that this area would be suitable to add to the
Preserve; 2,900 acres in Joshua Tree National Park. This includes
multiple small parcels of BLM land identified for disposal on its
periphery. Transferring this land to the Park Service would help
protect Joshua Tree by preserving these undeveloped areas that border
residential communities.
Seventh, the bill designates new lands as Off-Highway Vehicle
Recreation Areas.
One of the key goals I have strived for in this bill is to find
balance to ensure that the many different needs and uses in the desert
are accommodated with the least possible conflict. Some of the most
frequent visitors to the desert are the off-highway recreation
enthusiasts.
In California alone, there are over 1 million registered off-highway
vehicles, many of which can be found exploring thousands of miles of
desert trails or BLM designated open areas.
However, in order to meet military training needs, the Marine Corps
is studying the potential expansion of Marine Corps Air Ground Combat
Center at Twentynine Palms into Johnson Valley, the largest OHV area in
the country. I strongly support providing our troops with the best
possible training, but if the Marines need to expand the base into
Johnson Valley, this could have potentially resulted in the loss of
tens of thousands of acres of OHV recreation lands.
In 2009 I met with Major General Eugene Payne, Assistant Deputy
Commandant for Installations and Logistics, and Brigadier General
Melvin Spiese, Commanding General, Training and Education Command, to
discuss this issue, and I am very grateful for their efforts to
consider base expansion options that would preserve much of Johnson
Valley for recreation.
As the result of those meetings, the Marine Corps has committed to
studying an alternative that would allow for a portion of Johnson
Valley to be used exclusively for military training, another portion to
be used exclusively for continued OHV recreation and a third area for
joint use. While the environmental review process must first be
completed, I am hopeful that this option will prevail for the benefit
of the Marines and recreational users of Johnson Valley.
The lesson learned from Johnson Valley is that, despite the vast size
of the California desert, there are relatively
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few areas dedicated to OHV recreation, and even those areas face
increasing competition from other types of uses. These areas are
important not only to the hundreds of thousands visitors who enjoy
them, but also to the local economy that depends on their tourist
dollars. Additionally, by protecting these areas, we also protect
conservation areas by providing appropriate places for OHV recreation.
This bill will designate five existing OHV areas in the Mojave desert
as permanent OHV areas, providing off-highway groups some certainty
that these uses will be protected as much as conservation areas.
Collectively, these areas could be as much as 314,000 acres, depending
on what, if any, of Johnson Valley is ultimately needed by the Marines.
This section of the bill also requires the Secretary of the Inerior
to conduct a study to determine which, if any, lands adjacent to these
recreation areas would be suitable for addition. This will help make up
for some of the lost acres in Johnson Valley should the Marines decide
to expand there.
Finally, this bill includes other key provisions that address various
challenges and opportunities in the California desert, including state
land exchanges. There are currently about 370,000 acres of state lands
spread across the California desert in isolated 640 acre parcels.
Because many of these acres are inside national parks, wilderness, the
proposed monuments or conservation areas, they are largely unusable.
The bill seeks to remedy that problem by requiring the Department of
the Interior to develop and implement a plan with the state to complete
the exchange of these lands for other BLM or GSA owned property in the
next ten years. These land exchanges will help consolidate the state
lands into larger, more usable areas that could potentially provide the
state with viable sites for renewable energy development, off-highway
vehicle recreation or other commercial purposes.
Military activities. The bill ensures the right of the Department of
Defense to conduct low-level overflights over wilderness, national
parks and national monuments.
Climate change and wildlife corridors. The bill requires the
Department of the Interior to study the impact of climate change on
California desert species migration, incorporate the study's results
and recommendations into land use management plans, and consider the
study's findings when making decisions granting rights of way for
projects on public lands.
Tribal uses and interests. The bill requires the Secretary to ensure
access for tribal cultural activities within national parks, monuments,
wilderness and other areas designated within the bill. It also requires
the Secretary to develop a cultural resources management plan to
protect a sacred tribal trail along the Colorado River between southern
Nevada and the California-Baja border.
Prohibited uses of donated and acquired lands. In order to ensure
that donated and acquired Catellus lands outside the Mojave Trails
National Monument are maintained for conservation, the bill prohibits
their use for development, mining, off-highway vehicle use, except
designated routes, grazing, military training and other surface
disturbing activities. The Secretary of the Interior is authorized to
make limited exceptions in cases where it is deemed in the public
interest, but comparable lands would have to be purchased and donated
to the federal government as mitigation for lost acreage.
All of these provisions, when taken together, would serve to
complement the lasting conservation established by the California
Desert Protection Act--while ensuring that other important local uses
are maintained in appropriate areas.
Though I have lived in or near San Francisco for most of my life,
over the years I have come to truly appreciate California's sweeping
desert landscapes.
I remember my first visits to the desert years ago. It was treated
like a waste dump. It was full of abandoned cars. Old appliances
littered the landscape.
But we have worked very hard to clean it up.
We have worked to make sure that the vast vistas and pristine desert
habitat are respected by humanity, and that we give to our children a
healthier, more beautiful desert than we inherited.
But if we are to remain successful in the long run, we must not only
protect the desert land itself, we must also protect the broader
environment from the ravages of climate change, and we must offer
economic opportunity to those who live in these areas.
That is the purpose of this legislation. There are many places in the
California desert where development and employment are essential and
appropriate.
But there are also places that future generations will thank us for
setting aside.
I have worked painstakingly with stakeholders to ensure that this
legislation balances sometimes competing needs.
This bill, if enacted, will have a positive and enduring impact on
the landscape of the Southern California desert by conserving pristine
areas while meeting the needs of all desert stakeholders.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 138
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``California
Desert Protection Act of 2011''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendments to the California Desert Protection Act of 1994.
``TITLE XIII--MOJAVE TRAILS NATIONAL MONUMENT
``Sec. 1301. Definitions.
``Sec. 1302. Establishment of the Mojave Trails National Monument.
``Sec. 1303. Management of the Monument.
``Sec. 1304. Uses of the monument.
``Sec. 1305. Acquisition of land.
``Sec. 1306. Advisory Committee.
``Sec. 1307. Renewable energy right-of-way applications.
``TITLE XIV--SAND TO SNOW NATIONAL MONUMENT
``Sec. 1401. Definitions.
``Sec. 1402. Establishment of the Sand to Snow National Monument.
``Sec. 1403. Management of the Monument.
``Sec. 1404. Uses of the Monument.
``Sec. 1405. Acquisition of land.
``Sec. 1406. Advisory Committee.
``TITLE XV--WILDERNESS
``Sec. 1501. Designation of wilderness areas.
``Sec. 1502. Management.
``Sec. 1503. Release of wilderness study areas.
``TITLE XVI--DESIGNATION OF SPECIAL MANAGEMENT AREA
``Sec. 1601. Definitions.
``Sec. 1602. Establishment of the Vinagre Wash Special Management Area.
``Sec. 1603. Management.
``Sec. 1604. Potential wilderness.
``TITLE XVII--NATIONAL PARK SYSTEM ADDITIONS
``Sec. 1701. Death Valley National Park boundary revision.
``Sec. 1702. Mojave National Preserve.
``Sec. 1703. Joshua Tree National Park boundary revision.
``Sec. 1704. Authorization of appropriations.
``TITLE XVIII--OFF-HIGHWAY VEHICLE RECREATION AREAS
``Sec. 1801. Designation of off-highway vehicle recreation areas.
``TITLE XIX--MISCELLANEOUS
``Sec. 1901. State land transfers and exchanges.
``Sec. 1902. Military activities.
``Sec. 1903. Climate change and wildlife corridors.
``Sec. 1904. Prohibited uses of donated and acquired land.
``Sec. 1905. Tribal uses and interests.
Sec. 3. Designation of wild and scenic rivers.
SEC. 2. AMENDMENTS TO THE CALIFORNIA DESERT PROTECTION ACT OF
1994.
(a) In General.--Public Law 103-433 (16 U.S.C. 410aaa et
seq.) is amended by adding at the end the following:
``TITLE XIII--MOJAVE TRAILS NATIONAL MONUMENT
``SEC. 1301. DEFINITIONS.
``In this title:
``(1) Map.--The term `map' means the map entitled `Boundary
Map, Mojave Trails National Monument' and dated November 19,
2009.
``(2) Monument.--The term `Monument' means the Mojave
Trails National Monument established by section 1302(a).
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``(3) Study area.--The term `study area' means the land
that--
``(A) is described in--
``(i) the notice of the Bureau of Land Management of
September 15, 2008 entitled `Notice of Proposed Legislative
Withdrawal and Opportunity for Public Meeting; California'
(73 Fed. Reg. 53269); or
``(ii) any subsequent notice in the Federal Register that
is related to the notice described in clause (i); and
``(B) has been segregated by the Director of the Bureau of
Land Management.
``SEC. 1302. ESTABLISHMENT OF THE MOJAVE TRAILS NATIONAL
MONUMENT.
``(a) Establishment.--There is designated in the State the
Mojave Trails National Monument.
``(b) Purposes.--The purposes of the Monument are--
``(1) to preserve the nationally significant biological,
cultural, recreational, geological, educational, historic,
scenic, and scientific values--
``(A) in the Central and Eastern Mojave Desert; and
``(B) along historic Route 66; and
``(2) to secure the opportunity for present and future
generations to experience and enjoy the magnificent vistas,
wildlife, land forms, and natural and cultural resources of
the Monument.
``(c) Boundaries.--
``(1) In general.--Except as provided in paragraph (2), the
Monument shall consist of the Federal land and Federal
interests in land within the boundaries depicted on the map.
``(2) Exclusions.--
``(A) Study area.--Subject to subparagraph (B), the study
area shall be excluded from the Monument to permit the
Secretary of the Navy to study the land within the study area
for--
``(i) withdrawal in accordance with the Act of February 28,
1958 (43 U.S.C. 155 et seq.); and
``(ii) potential inclusion into the Marine Corps Air Ground
Combat Center at Twentynine Palms, California, for national
defense purposes.
``(B) Incorporation in monument.--After action by the
Secretary of Defense and Congress regarding the withdrawal
under subparagraph (A), any land within the study area that
is not withdrawn shall be incorporated into the Monument.
``(d) Map; Legal Descriptions.--
``(1) Legal description.--As soon as practicable after the
date of enactment of this title, the Secretary shall submit
to the Committee on Natural Resources of the House of
Representatives and the Committee on Energy and Natural
Resources of the Senate legal descriptions of the Monument,
based on the map.
``(2) Corrections.--The map and legal descriptions of the
Monument shall have the same force and effect as if included
in this title, except that the Secretary may correct clerical
and typographical errors in the map and legal descriptions.
``(3) Availability of map.--The map shall be on file and
available for public inspection in the appropriate offices of
the Bureau of Land Management.
``SEC. 1303. MANAGEMENT OF THE MONUMENT.
``(a) In General.--The Secretary shall--
``(1) only allow uses of the Monument that--
``(A) further the purposes described in section 1302(b);
``(B) are included in the management plan developed under
subsection (g); and
``(C) do not interfere with the utility rights-of-way or
corridors authorized under section 1304(f); and
``(2) subject to valid existing rights, manage the Monument
to protect the resources of the Monument, in accordance
with--
``(A) this Act;
``(B) the Federal Land Policy and Management Act of 1976
(43 U.S.C. 1701 et seq.); and
``(C) any other applicable provisions of law.
``(b) Cooperation Agreements; General Authority.--
Consistent with the management plan and existing authorities
applicable to the Monument, the Secretary may enter into
cooperative agreements and shared management arrangements
(including special use permits with any person (including
educational institutions and Indian tribes)), for the
purposes of interpreting, researching, and providing
education on the resources of the Monument.
``(c) Administration of Subsequently Acquired Land.--Any
land or interest in land within the boundaries of the
Monument that is acquired by the Secretary after the date of
enactment of this title shall be managed by the Secretary in
accordance with this title.
``(d) Limitations.--
``(1) Property rights.--The establishment of the Monument
does not--
``(A) affect--
``(i) any property rights of an Indian reservation,
individually held trust land, or any other Indian allotments;
``(ii) any land or interests in land held by the State, any
political subdivision of the State, or any special district;
or
``(iii) any private property rights within the boundaries
of the Monument; or
``(B) grant to the Secretary any authority on or over non-
Federal land not already provided by law.
``(2) Authority.--The authority of the Secretary under this
title extends only to Federal land and Federal interests in
land included in the Monument.
``(e) Adjacent Management.--
``(1) In general.--Nothing in this title creates any
protective perimeter or buffer zone around the Monument.
``(2) Activities outside monument.--The fact that an
activity or use on land outside the Monument can be seen or
heard within the Monument shall not preclude the activity or
use outside the boundary of the Monument.
``(3) No additional regulation.--Nothing in this title
requires additional regulation of activities on land outside
the boundary of the Monument.
``(f) Air and Water Quality.--Nothing in this title affects
the standards governing air or water quality outside the
boundary of the Monument.
``(g) Management Plan.--
``(1) In general.--The Secretary shall--
``(A) not later than 3 years after the date of enactment of
this title, complete a management plan for the conservation
and protection of the Monument; and
``(B) on completion of the management plan--
``(i) submit the management plan to--
``(I) the Committee on Natural Resources of the House of
Representatives; and
``(II) the Committee on Energy and Natural Resources of the
Senate; and
``(ii) make the management plan available to the public.
``(2) Inclusions.--The management plan shall include
provisions that--
``(A) provide for the conservation and protection of the
Monument;
``(B) authorize the continued recreational uses of the
Monument (including hiking, camping, hunting, mountain
biking, sightseeing, off-highway vehicle recreation on
designated routes, rockhounding, and horseback riding), if
the recreational uses are consistent with this section and
any other applicable law;
``(C) address the need for and, as necessary, establish
plans for, the installation, construction, and maintenance of
public utility energy transport facilities within rights-of-
way in the Monument, including provisions that require that
the activities be conducted in a manner that minimizes the
impact on Monument resources (including resources relating to
the ecological, cultural, historic, and scenic viewshed of
the Monument), in accordance with any other applicable law;
``(D) address the designation and maintenance of roads,
trails, and paths in the Monument;
``(E) address regional fire management planning and
coordination between the Director of the Bureau of Land
Management, the Director of the National Park Service, and
San Bernardino County; and
``(F) address the establishment of a visitor center to
serve the Monument and adjacent public land.
``(3) Preparation and implementation.--
``(A) Applicable law.--The Secretary shall prepare and
implement the management plan in accordance with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
any other applicable laws.
``(B) Consultation.--In preparing and implementing the
management plan, the Secretary shall periodically consult
with--
``(i) the advisory committee established under section
1306;
``(ii) interested private property owners and holders of
valid existing rights located within the boundaries of the
Monument; and
``(iii) representatives of the Fort Mojave Indian tribe,
the Colorado River Indian Tribe, the Chemehuevi Indian tribe,
and other Indian tribes with historic or cultural ties to
land within, or adjacent to, the Monument regarding the
management of portions of the Monument containing sacred
sites or cultural importance to the Indian tribes.
``(4) Interim management.--Except as otherwise provided in
this Act, pending completion of the management plan for the
Monument, the Secretary shall manage any Federal land and
Federal interests in land within the boundary of the
Monument--
``(A) consistent with the existing permitted uses of the
land;
``(B) in accordance with the general guidelines and
authorities of the existing management plans of the Bureau of
Land Management for the land; and
``(C) in a manner consistent with--
``(i) the purposes described in section 1302(b);
``(ii) the provisions of the management plan under
paragraph (2); and
``(iii) applicable Federal law.
``(h) Effect of Section.--Nothing in this section
diminishes or alters existing authorities applicable to
Federal land included in the Monument.
``SEC. 1304. USES OF THE MONUMENT.
``(a) Use of Off-highway Vehicles.--
``(1) In general.--The use of off-highway vehicles in the
Monument (including the use of off-highway vehicles for
commercial touring) shall be permitted to continue on
designated routes, subject to all applicable law and and
authorized by the management plan.
``(2) Nondesignated routes.--Off-highway vehicle access
shall be permitted on nondesignated routes and trails in the
Monument--
``(A) for administrative purposes;
``(B) to respond to an emergency; or
``(C) as authorized under the management plan.
``(3) Inventory.--Not later than 2 years after the date of
enactment of this title, the Director of the Bureau of Land
Management shall complete an inventory of all existing routes
in the Monument.
``(b) Hunting, Trapping, and Fishing.--
[[Page S211]]
``(1) In general.--Except as provided in paragraph (2), the
Secretary shall permit hunting, trapping, and fishing within
the Monument in accordance with applicable Federal and State
laws (including regulations) in effect as of the date of
enactment of this title.
``(2) Trapping.--No amphibians or reptiles may be collected
within the Monument.
``(3) Regulations.--The Secretary, after consultation with
the California Department of Fish and Game, may issue
regulations designating zones where, and establishing periods
during which, no hunting, trapping, or fishing shall be
permitted in the Monument for reasons of public safety,
administration, resource protection, or public use and
enjoyment.
``(c) Grazing.--
``(1) In general.--Nothing in this title terminates any
valid existing grazing allotment within the Monument.
``(2) Effect on blair permit.--Nothing in this title
affects the Lazy Daisy grazing permit (permittee number 9076)
on land included in the Monument, including the transfer of
title to the grazing permit to the Secretary or to a private
party.
``(3) Permit retirement.--The Secretary may acquire base
property and associated grazing permits within the Monument
for purposes of permanently retiring the permit if--
``(A) the permittee is a willing seller;
``(B) the permittee and Secretary reach an agreement
concerning the terms and conditions of the acquisition; and
``(C) termination of the allotment would further the
purposes of the Monument described in section 1302(b).
``(d) Access to State and Private Land.--The Secretary
shall provide adequate access to each owner of non-Federal
land or interests in non-Federal land within the boundary of
the Monument to ensure the reasonable use and enjoyment of
the land or interest by the owner.
``(e) Limitations.--
``(1) Commercial enterprises.--Except as provided in
paragraphs (2) and (3), or as required for the maintenance,
upgrade, expansion, or development of energy transport
facilities in the corridors described in subsection (g), no
commercial enterprises shall be authorized within the
boundary of the Monument after the date of enactment of this
title.
``(2) Authorized exceptions.--The Secretary may authorize
exceptions to paragraph (1) if the Secretary determines that
the commercial enterprises would further the purposes
described in section 1302(b).
``(3) Applicability.--This subsection does not apply to--
``(A) transmission and telecommunication facilities that
are owned or operated by a utility subject to regulation by
the Federal Government or a State government or a State
utility with a service obligation (as those terms are defined
in section 217 of the Federal Power Act (16 U.S.C. 824q)); or
``(B) commercial vehicular touring enterprises within the
Monument that operate on designated routes.
``(f) Utility Rights-of-way.--
``(1) In general.--Nothing in this title precludes,
prevents, or inhibits the maintenance, upgrade, expansion, or
development of energy transport facilities within the
Monument that are critical to reducing the effects of climate
change on the environment.
``(2) Authorization.--The Secretary shall, to the maximum
extent practicable--
``(A) permit rights-of-way and alignments that best protect
the values and resources of the Monument described in section
1302(b); and
``(B) ensure that existing rights-of-way and utility
corridors within the Monument are fully utilized before
permitting new rights-of-way or designating new utility
corridors within the Monument.
``(3) Effect on existing facilities and rights-of-way.--
Nothing in this section terminates or limits--
``(A) any valid right-of-way within the Monument in
existence on the date of enactment of this title (including
customary operation, maintenance, repair, or replacement
activities in a right-of-way); or
``(B) a right-of-way authorization issued on the expiration
of an existing right-of-way authorization described in
subparagraph (A).
``(4) Upgrading and expansion of existing rights-of-way.--
Nothing in this subsection prohibits the upgrading (including
the construction or replacement), expansion, or assignment of
an existing utility transmission line for the purpose of
increasing the capacity of--
``(A) a transmission line in existing rights-of-way; or
``(B) a right-of-way issued, granted, or permitted by the
Secretary that is contiguous or adjacent to existing
transmission line rights-of-way.
``(5) Interstate 40 transportation corridor.--For purposes
of underground utility rights-of-way under this subsection,
the Secretary shall consider the Interstate 40 transportation
corridor to be equivalent to an existing utility right-of-way
corridor.
``(6) New rights-of-way.--
``(A) In general.--Any new rights-of-way or new uses within
existing rights-of-way shall--
``(i) only be permitted in energy corridors or expansions
of energy corridors that are designated as of the date of
enactment of this title; and
``(ii) subject to subparagraph (B), require review and
approval under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
``(B) Approval.--New rights-of-way or uses or expansions of
existing corridors under subparagraph (A) shall only be
approved if the head of the applicable lead Federal agency,
in consultation with other agencies as appropriate,
determines that the new rights-of-way, uses, or expansions
are consistent with--
``(i) this title;
``(ii) other applicable laws;
``(iii) the purposes of the Monument described in section
1302(b); and
``(iv) the management plan for the Monument.
``(g) West Wide Energy Corridor.--
``(1) Alternative alignment.--Subject to paragraph (2), to
further the purposes of the Monument described in section
1302(b), the Secretary may require a realignment of the
energy right-of-way corridor numbered 27-41 and designated
under the energy corridor planning process established by
section 368 of the Energy Policy Act of 2005 (42 U.S.C.
15926) if an alternative alignment within the Monument--
``(A) provides substantially similar energy transmission
capacity and reliability;
``(B) does not impair other existing rights-of-way; and
``(C) is compatible with military training requirements.
``(2) Consultation.--Before establishing an alternative
alignment of the energy right-of-way corridor under paragraph
(1), the Secretary shall consult with--
``(A) the Secretary of Energy;
``(B) the Secretary of Defense;
``(C) the State, including the transmission permitting
agency of the State;
``(D) units of local government in the State; and
``(E) any entities possessing valid existing rights-of-way
within--
``(i) the energy corridor described in paragraph (1); or
``(ii) any potential alternative energy corridor.
``(3) Effect on energy transport corridors.--Nothing in
this subsection diminishes the utility of energy transport
corridors located within the Monument and identified under
section 368 of the Energy Policy Act of 2005 (42 U.S.C.
15926), Energy Corridors E or I (as designated in the
California Desert Conservation Area Plan), or energy
corridors numbered 27-41 and 27-225 and designated by a
record of decision--
``(A) to provide locations for--
``(i) electric transmission facilities that improve
reliability, relieve congestion, and enhance the national
grid; and
``(ii) oil, gas, and hydrogen pipelines; and
``(B) to provide locations for electric transmission
facilities that--
``(i) promote renewable energy generation;
``(ii) otherwise further the interest of the United States
if the transmission facilities are identified as critical--
``(I) in a Federal law; or
``(II) through a regional transmission planning process; or
``(iii) consist of high-voltage transmission facilities
critical to the purposes described in clause (i) or (ii).
``(4) Land use planning.--In conducting land use planning
for the Monument, the Secretary--
``(A) shall consider the existing locations of the
corridors described in paragraph (3); and
``(B) subject to paragraph (5), may amend the location of
any energy corridors to comply with purposes of the Monument
if the amended corridor--
``(i) provides connectivity across the landscape that is
equivalent to the connectivity provided by the existing
location;
``(ii) meets the criteria established by--
``(I) section 368 of the Energy Policy Act of 2005 (42
U.S.C. 15926); and
``(II) the record of decision for the applicable corridor;
and
``(iii) does not impair or restrict the uses of existing
rights-of-way.
``(5) Consultation required.--Before amending a corridor
under paragraph (4)(B), the Secretary shall consult with all
interested parties (including the persons identified in
section 368(a) of the Energy Policy Act of 2005 (42 U.S.C.
15926(a))), in accordance with applicable laws (including
regulations).
``(h) Overflights.--Nothing in this title or the management
plan restricts or precludes--
``(1) overflights (including low-level overflights) of
military, commercial, and general aviation aircraft that can
be seen or heard within the Monument;
``(2) the designation or creation of new units of special
use airspace; or
``(3) the establishment of military flight training routes
over the Monument.
``(i) Withdrawals.--
``(1) In general.--Subject to valid existing rights and
except as provided in paragraph (2), the Federal land and
interests in Federal land included within the Monument are
withdrawn from--
``(A) all forms of entry, appropriation, or disposal under
the public land laws;
``(B) location, entry, and patent under the public land
mining laws;
``(C) operation of the mineral leasing, geothermal leasing,
and mineral materials laws; and
``(D) energy development and power generation.
[[Page S212]]
``(2) Exchange.--Paragraph (1) does not apply to an
exchange that the Secretary determines would further the
protective purposes of the Monument.
``(j) Access to Renewable Energy Facilities.--
``(1) In general.--On a determination that no reasonable
alternative access exists and subject to paragraph (2), the
Secretary may allow new right-of-ways within the Monument to
provide vehicular access to renewable energy project sites
outside the boundaries of the Monument.
``(2) Restrictions.--To the maximum extent practicable, the
rights-of-way shall be designed and sited to be consistent
with the purposes of the Monument described in section
1302(b).
``SEC. 1305. ACQUISITION OF LAND.
``(a) In General.--The Secretary may acquire for inclusion
in the Monument any land or interests in land within the
boundary of the Monument owned by the State, units of local
government, Indian tribes, or private individuals only by--
``(1) donation;
``(2) exchange with a willing party; or
``(3) purchase from a willing seller for fair market value.
``(b) Use of Easements.--To the maximum extent practicable
and only with the approval of the landowner, the Secretary
may use permanent conservation easements to acquire an
interest in land in the Monument rather than acquiring fee
simple title to the land.
``(c) Incorporation of Acquired Land and Interests in
Land.--Any land or interest in land within the boundaries of
the Monument that is acquired by the United States after the
date of enactment of this title shall be added to and
administered as part of the Monument.
``(d) Donated and Acquired Land.--
``(1) In general.--All land within the boundary of the
Monument donated to the United States or acquired using
amounts from the land and water conservation fund established
under section 2 of the Land and Water Conservation Fund Act
of 1965 (16 U.S.C. 460l-5) before, on, or after the date of
enactment of this title--
``(A) is withdrawn from mineral entry;
``(B) shall be managed in accordance with section 1904; and
``(C) shall be managed consistent with the purposes of the
Monument described in section 1302(b).
``(2) Effect on monument.--Land within the boundary of the
Monument that is contiguous to land donated to the United
States or acquired using amounts from the land and water
conservation fund established under section 2 of the Land and
Water Conservation Fund Act of 1965 (16 U.S.C. 460l-5) shall
be managed in a manner consistent with conservation purposes,
subject to applicable law.
``SEC. 1306. ADVISORY COMMITTEE.
``(a) In General.--The Secretary shall establish an
advisory committee for the Monument, the purpose of which is
to advise the Secretary with respect to the preparation and
implementation of the management plan required by section
1303(g).
``(b) Membership.--To the extent practicable, the advisory
committee shall include the following members, to be
appointed by the Secretary:
``(1) A representative with expertise in natural science
and research selected from a regional university or research
institute.
``(2) A representative of the California Natural Resources
Agency.
``(3) A representative of the California Public Utilities
Commission.
``(4) A representative of the County of San Bernardino,
California.
``(5) A representative of each of the cities of Barstow,
Needles, Twentynine Palms, and Yucca Valley, California.
``(6) A representative of each of the Colorado River, Fort
Mojave, and the Chemehuevi Indian tribes.
``(7) A representative from the Department of Defense.
``(8) A representative of the Wildlands Conservancy.
``(9) A representative of a local conservation
organization.
``(10) A representative of a historical preservation
organization.
``(11) A representative from each of the following
recreational activities:
``(A) Off-highway vehicles.
``(B) Hunting.
``(C) Rockhounding.
``(c) Terms.--
``(1) In general.--In appointing members under paragraphs
(1) through (11) of subsection (b), the Secretary shall
appoint 1 primary member and 1 alternate member that meets
the qualifications described in each of those paragraphs.
``(2) Vacancy.--
``(A) Primary member.--A vacancy on the advisory committee
with respect to a primary member shall be filled by the
applicable alternate member.
``(B) Alternate member.--The Secretary shall appoint a new
alternate members in the event of a vacancy with respect to
an alternate member of the advisory committee.
``(3) Termination.--
``(A) In general.--The term of all members of the advisory
committee shall terminate on the termination of the advisory
committee under subsection (g).
``(B) New advisory committee.--At the discretion of the
Secretary, the Secretary may establish a new advisory
committee on the termination of the advisory committee under
subsection (g) to provide ongoing recommendations on the
management of the Monument.
``(d) Quorum.--A quorum of the advisory committee shall
consist of a majority of the primary members.
``(e) Chairperson and Procedures.--
``(1) In general.--The advisory committee shall select a
chairperson and vice chairperson from among the primary
members of the advisory committee.
``(2) Duties.--The chairperson and vice chairperson
selected under paragraph (1) shall establish any rules and
procedures for the advisory committee that the chairperson
and vice-chairperson determine to be necessary or desirable.
``(f) Service Without Compensation.--Members of the
advisory committee shall serve without pay.
``(g) Termination.--The advisory committee shall cease to
exist on--
``(1) the date on which the management plan is officially
adopted by the Secretary; or
``(2) at the discretion of the Secretary, a later date
established by the Secretary.
``SEC. 1307. RENEWABLE ENERGY RIGHT-OF-WAY APPLICATIONS.
``(a) In General.--Applicants for rights-of-way for the
development of solar energy facilities that have been
terminated by the establishment of the Monument shall be
granted the right of first refusal to apply for replacement
sites that--
``(1) have not previously been encumbered by right-of-way
applications; and
``(2) are located within the Solar Energy Zones designated
by the Solar Energy Programmatic Environmental Impact
Statement of the Department of the Interior and the
Department of Energy.
``(b) Eligibility.--To be eligible for a right of first
refusal under subsection (a), an applicant shall have, on or
before December 1, 2009--
``(1) submitted an application for a right-of-way to the
Bureau of Land Management;
``(2) completed a plan of development to develop a solar
energy facility on land within the Monument;
``(3) submitted cost recovery funds to the Bureau of Land
Management to assist with the costs of processing the right-
of-way application;
``(4) successfully submitted an application for an
interconnection agreement with an electrical grid operator
that is registered with the North American Electric
Reliability Corporation; and
``(5)(A) secured a power purchase agreement; or
``(B) a financially and technically viable solar energy
facility project, as determined by the Director of the Bureau
of Land Management.
``(c) Equivalent Energy Production.--Each right-of-way for
a replacement site granted under this section shall--
``(1) authorize the same energy production at the
replacement site as had been applied for at the site that had
been the subject of the terminated application; and
``(2) have--
``(A) appropriate solar insolation and geotechnical
attributes; and
``(B) adequate access to existing transmission or feasible
new transmission.
``(d) Existing Rights-of-way Applications.--Nothing in this
section alters, affects, or displaces primary rights-of-way
applications within the Solar Energy Study Areas unless the
applications are otherwise altered, affected, or displaced as
a result of the Solar Energy Programmatic Environmental
Impact Statement of the Department of the Interior and the
Department of Energy.
``(e) Deadlines.--A right of first refusal granted under
this section shall only be exercisable by the later of--
``(1) the date that is 180 days after the date of enactment
of this title; or
``(2) the date that is 180 days after the date of the
designation of the Solar Energy Zones under the Solar Energy
Programmatic Environmental Impact Statement.
``(f) Expedited Application Processing.--The Secretary
shall expedite the review of replacement site applications
from eligible applicants, as described in subsection (b).
``TITLE XIV--SAND TO SNOW NATIONAL MONUMENT
``SEC. 1401. DEFINITIONS.
``In this title:
``(1) Map.--The term `map' means the map entitled `Boundary
Map, Sand to Snow National Monument' and dated October 26,
2009.
``(2) Monument.--The term `Monument' means the Sand to Snow
National Monument established by section 1402(a).
``(3) Secretaries.--The term `Secretaries' means the
Secretary of the Interior and the Secretary of Agriculture,
acting jointly.
``SEC. 1402. ESTABLISHMENT OF THE SAND TO SNOW NATIONAL
MONUMENT.
``(a) Establishment.--There is designated in the State the
Sand to Snow National Monument.
``(b) Purposes.--The purposes of the Monument are--
``(1) to preserve the nationally significant biological,
cultural, educational, geological, historic, scenic, and
recreational values at the convergence of the Mojave and
Colorado Desert and the San Bernardino Mountains; and
``(2) to secure the opportunity for present and future
generations to experience and enjoy the magnificent vistas,
wildlife, land forms, and natural and cultural resources of
the Monument.
[[Page S213]]
``(c) Boundaries.--The Monument shall consist of the
Federal land and Federal interests in land within the
boundaries depicted on the map.
``(d) Map; Legal Descriptions.--
``(1) Legal description.--As soon as practicable after the
date of enactment of this title, the Secretary shall submit
to the Committee on Natural Resources of the House of
Representatives and the Committee on Energy and Natural
Resources of the Senate legal descriptions of the Monument,
based on the map.
``(2) Corrections.--The map and legal descriptions of the
Monument shall have the same force and effect as if included
in this title, except that the Secretary may correct clerical
and typographical errors in the map and legal descriptions.
``(3) Availability of map.--The map shall be on file and
available for public inspection in appropriate offices of the
Bureau of Land Management.
``SEC. 1403. MANAGEMENT OF THE MONUMENT.
``(a) In General.--The Secretary shall--
``(1) only allow uses of the Monument that--
``(A) further the purposes described in section 1402(b);
``(B) are included in the management plan developed under
subsection (g); and
``(C) do not interfere with the utility rights-of-way
authorized under section 1405(e); and
``(2) subject to valid existing rights, manage the Monument
to protect the resources of the Monument, in accordance
with--
``(A) this title;
``(B) the Federal Land Policy and Management Act of 1976
(43 U.S.C. 1701 et seq.); and
``(C) any other applicable provisions of law.
``(b) Cooperation Agreements; General Authority.--
Consistent with the management plan and existing authorities
applicable to the Monument, the Secretary may enter into
cooperative agreements and shared management arrangements
(including special use permits with any person (including
educational institutions and Indian tribes)), for the
purposes of interpreting, researching, and providing
education on the resources of the Monument.
``(c) Administration of Subsequently Acquired Land.--Any
land or interest in land within the boundaries of the
Monument that is acquired by the Secretary of the Interior or
the Secretary of Agriculture after the date of enactment of
this title shall be managed by the Secretary of Agriculture
or the Secretary of the Interior, respectively, in accordance
with this title.
``(d) Limitations.--
``(1) Property rights.--The establishment of the Monument
does not--
``(A) affect--
``(i) any property rights of an Indian reservation,
individually held trust land, or any other Indian allotments;
``(ii) any land or interests in land held by the State, any
political subdivision of the State, or any special district;
or
``(iii) any private property rights within the boundaries
of the Monument; or
``(B) grant to the Secretary any authority on or over non-
Federal land not already provided by law.
``(2) Authority.--The authority of the Secretary under this
title extends only to Federal land and Federal interests in
land included in the Monument.
``(e) Adjacent Management.--
``(1) In general.--Nothing in this title creates any
protective perimeter or buffer zone around the Monument.
``(2) Activities outside monument.--The fact that an
activity or use on land outside the Monument can be seen or
heard within the Monument shall not preclude the activity or
use outside the boundary of the Monument.
``(3) No additional regulation.--Nothing in this title
requires additional regulation of activities on land outside
the boundary of the Monument.
``(f) Air and Water Quality.--Nothing in this title affects
the standards governing air or water quality outside the
boundary of the Monument.
``(g) Management Plan.--
``(1) In general.--The Secretaries shall--
``(A) not later than 3 years after the date of enactment of
this title, complete a management plan for the conservation
and protection of the Monument; and
``(B) on completion of the management plan--
``(i) submit the management plan to--
``(I) the Committee on Natural Resources of the House of
Representatives; and
``(II) the Committee on Energy and Natural Resources of the
Senate; and
``(ii) make the management plan available to the public.
``(2) Inclusions.--The management plan shall include
provisions that--
``(A) provide for the conservation and protection of the
Monument;
``(B) authorize the continued recreational uses of the
Monument (including hiking, camping, hunting, mountain
biking, sightseeing, off-highway vehicle recreation on
designated routes, rockhounding, and horseback riding), if
the recreational uses are consistent with this title and any
other applicable law;
``(C) address the need for and, as necessary, establish
plans for, the installation, construction, and maintenance of
public utility energy transport facilities within rights-of-
way in the Monument outside of designated wilderness areas,
including provisions that require that--
``(i) the activities be conducted in a manner that
minimizes the impact on Monument resources (including
resources relating to the ecological, cultural, historic, and
scenic viewshed of the Monument), in accordance with any
other applicable law; and
``(ii) the facilities are consistent with this section and
any other applicable law;
``(D) address the designation and maintenance of roads,
trails, and paths in the Monument;
``(E) address regional fire management planning and
coordination between the Director of the Bureau of Land
Management, the Chief of the Forest Service, Riverside
County, and San Bernardino County; and
``(F) address the establishment of a visitor center to
serve the Monument and adjacent public land.
``(3) Preparation and implementation.--
``(A) Applicable law.--The Secretary shall prepare and
implement the management plan in accordance with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
any other applicable laws.
``(B) Consultation.--In preparing and implementing the
management plan, the Secretary shall periodically consult
with--
``(i) the advisory committee established under section
1406;
``(ii) interested private property owners and holders of
valid existing rights located within the boundaries of the
Monument; and
``(iii) representatives of the Morongo Band of Mission
Indians and other Indian tribes with historic or cultural
ties to land within, or adjacent to, the Monument regarding
the management of portions of the Monument that are of
cultural importance to the Indian tribes.
``(4) Interim management.--Except as otherwise prohibited
by this Act, pending completion of the management plan for
the Monument, the Secretary shall manage any Federal land and
Federal interests in land within the boundary of the
Monument--
``(A) consistent with the existing permitted uses of the
land;
``(B) in accordance with the general guidelines and
authorities of the existing management plans of the Bureau of
Land Management and the Forest Service for the land; and
``(C) in a manner consistent with--
``(i) the purposes described in section 1402(b);
``(ii) the provisions of the management plan under
paragraph (2); and
``(iii) applicable Federal law.
``(5) Effect of section.--Nothing in this section
diminishes or alters existing authorities applicable to
Federal land included in the Monument.
``SEC. 1404. USES OF THE MONUMENT.
``(a) Use of Off-highway Vehicles.--
``(1) In general.--The use of off-highway vehicles in the
Monument (including the use of off-highway vehicles for
commercial touring) shall be permitted to continue on
designated routes, subject to all applicable law and
authorized by the management plan.
``(2) Nondesignated routes.--Off-highway vehicle access
shall be permitted on nondesignated routes and trails in the
Monument--
``(A) for administrative purposes;
``(B) to respond to an emergency; or
``(C) as authorized under the management plan.
``(3) Inventory.--Not later than 2 years after the date of
enactment of this title, the Director of the Bureau of Land
Management shall complete an inventory of all existing routes
in the Monument.
``(b) Hunting, Trapping, and Fishing.--
``(1) In general.--Except as provided in paragraph (2), the
Secretary shall permit hunting, trapping, and fishing within
the Monument in accordance with applicable Federal and State
laws (including regulations) as of the date of enactment of
this title.
``(2) Trapping.--No amphibians or reptiles may be collected
within the Monument.
``(3) Regulations.--The Secretary, after consultation with
the California Department of Fish and Game, may issue
regulations designating zones where, and establishing periods
during which, no hunting, trapping, or fishing shall be
permitted in the Monument for reasons of public safety,
administration, resource protection, or public use and
enjoyment.
``(c) Access to State and Private Land.--The Secretary
shall provide adequate access to each owner of non-Federal
land or interests in non-Federal land within the boundary of
the Monument to ensure the reasonable use and enjoyment of
the land or interest by the owner.
``(d) Limitations.--
``(1) Commercial enterprises.--Except as provided in
paragraphs (2) and (3), or as required for the maintenance,
upgrade, expansion, or development of energy transport
facilities in the corridors described in subsection (e), no
commercial enterprises shall be authorized within the
boundary of the Monument after the date of enactment of this
title.
``(2) Authorized exceptions.--The Secretary may authorize
exceptions to paragraph (1) if the Secretary determines that
the commercial enterprises would further the purposes
described in section 1402(b).
``(3) Transmission and telecommunication facilities.--This
subsection does not apply to--
``(A) transmission and telecommunication facilities that
are owned or operated by a utility subject to regulation by
the Federal
[[Page S214]]
Government or a State government or a State utility with a
service obligation (as those terms are defined in section 217
of the Federal Power Act (16 U.S.C. 824q)); or
``(B) commercial vehicular touring enterprises within the
Monument that operate on designated routes.
``(e) Utility Rights-of-way.--
``(1) In general.--Nothing in this Act precludes, prevents,
or inhibits the maintenance, upgrade, expansion, or
development of energy transport facilities within the
Monument that are critical to reducing the effects of climate
change on the environment.
``(2) Right-of-way.--To the maximum extent practicable--
``(A) the Secretary shall permit rights of way and
alignments that best protect the values and resources of the
Monument described in section 1402(b); and
``(B) the Secretary shall ensure that existing rights-of-
way and utility corridors within the Monument are fully
utilized before permitting new rights-of-way or designating
new utility corridors within the Monument.
``(3) Effect on existing facilities and rights-of-way.--
Nothing in this section terminates or limits--
``(A) any valid right-of-way in existence within the
Monument on the date of enactment of this title (including
customary operation, maintenance, repair, or replacement
activities in a right-of-way); or
``(B) a right-of-way authorization issued on the expiration
or the assignment of an existing right-of-way authorization
described in subparagraph (A).
``(4) Upgrading and expansion of existing rights-of-way.--
Nothing in this subsection prohibits the upgrading (including
the construction or replacement), expansion, or assignment of
an existing utility transmission line for the purpose of
increasing the capacity of--
``(A) a transmission line in existing rights-of-way; or
``(B) a right-of-way issued, granted, or permitted by the
Secretary that is contiguous or adjacent to existing
transmission line rights-of-way.
``(5) New rights-of-way.--
``(A) In general.--Any new rights-of-way or new uses within
existing rights-of-way shall, subject to subparagraph (B),
require review and approval under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.).
``(B) Approval.--New uses under subparagraph (A) shall only
be approved if the head of the applicable lead Federal
agency, in consultation with other applicable agencies,
determine that the uses are consistent with--
``(i) this title;
``(ii) other applicable laws;
``(iii) the purposes of the Monument described in section
1402(b); and
``(iv) the management plan for the Monument.
``(6) Effect on energy transport corridors.--Nothing in
this subsection diminishes the utility of energy transport
corridors located within the Monument designated by a record
of decision--
``(A) to provide locations for--
``(i) electric transmission facilities that improve
reliability, relieve congestion, and enhance the national
grid; and
``(ii) oil, gas, and hydrogen pipelines; and
``(B) to provide locations for electric transmission
facilities that--
``(i) promote renewable energy generation;
``(ii) otherwise further the interest of the United States
if the transmission facilities are identified as critical in
law or through a regional transmission planning process; or
``(iii) consist of high-voltage transmission facilities
critical to the purposes described in clause (i) or (ii).
``(7) Land use planning.--In conducting land use planning
for the Monument, the Secretary--
``(A) shall consider the existing locations of the
corridors described in paragraph (6); and
``(B) subject to paragraph (8), may amend the location of
any energy corridors to comply with purposes of the Monument
if the amended corridor--
``(i) provides connectivity across the landscape that is
equivalent to the connectivity provided by the existing
location;
``(ii) meets the criteria established by--
``(I) section 368 of the Energy Policy Act of 2005 (42
U.S.C. 15926); and
``(II) the record of decision for the applicable corridor;
and
``(iii) does not impair or restrict the uses of existing
rights-of-way.
``(8) Consultation required.--Before amending a corridor
under paragraph (7)(B), the Secretary shall consult with all
interested parties (including the persons identified in
section 368(a) of the Energy Policy Act of 2005 (42 U.S.C.
15926(a))), in accordance with applicable laws (including
regulations).
``(f) Overflights.--Nothing in this title or the management
plan restricts or precludes--
``(1) overflights (including low-level overflights) of
military, commercial, and general aviation aircraft that can
be seen or heard within the Monument;
``(2) the designation or creation of new units of special
use airspace; or
``(3) the establishment of military flight training routes
over the Monument.
``(g) Withdrawals.--
``(1) In general.--Subject to valid existing rights and
except as provided in paragraph (2), the Federal land and
interests in Federal land included within the Monument are
withdrawn from--
``(A) all forms of entry, appropriation, or disposal under
the public land laws;
``(B) location, entry, and patent under the public land
mining laws;
``(C) operation of the mineral leasing, geothermal leasing,
and mineral materials laws; and
``(D) energy development and power generation.
``(2) Exchange.--Paragraph (1) does not apply to an
exchange that the Secretary determines would further the
protective purposes of the Monument.
``(h) Access to Renewable Energy Facilities.--
``(1) In general.--Subject to paragraph (2), the Secretary
may allow new right-of-ways within the Monument to provide
reasonable vehicular access to renewable energy project sites
outside the boundaries of the Monument.
``(2) Restrictions.--To the maximum extent practicable, the
rights-of-way shall be designed and sited to be consistent
with the purposes of the Monument described in section
1402(b).
``SEC. 1405. ACQUISITION OF LAND.
``(a) In General.--The Secretary may acquire for inclusion
in the Monument any land or interests in land within the
boundary of the Monument owned by the State, units of local
government, Indian tribes, or private individuals only by--
``(1) donation;
``(2) exchange with a willing party; or
``(3) purchase from a willing seller for fair market value.
``(b) Use of Easements.--To the maximum extent practicable
and only with the approval of the landowner, the Secretary
may use permanent conservation easements to acquire an
interest in land in the Monument rather than acquiring fee
simple title to the land.
``(c) Incorporation of Acquired Land and Interests in
Land.--Any land or interest in land within the boundaries of
the Monument that is acquired by the United States after the
date of enactment of this title shall be added to and
administered as part of the Monument.
``(d) Donated and Acquired Land.--
``(1) In general.--All land within the boundary of the
Monument donated to the United States or acquired using
amounts from the land and water conservation fund established
under section 2 of the Land and Water Conservation Fund Act
of 1965 (16 U.S.C. 460l-5) before, on, or after the date of
enactment of this title--
``(A) is withdrawn from mineral entry;
``(B) shall be managed in accordance with section 1904; and
``(C) shall be managed consistent with the purposes of the
Monument described in section 1402(b).
``(2) Effect on monument.--Land within the boundary of the
Monument that is contiguous to land donated to the United
States or acquired using amounts from the land and water
conservation fund established under section 2 of the Land and
Water Conservation Fund Act of 1965 (16 U.S.C. 460l-5) shall
be managed in a manner consistent with conservation purposes,
subject to applicable law.
``SEC. 1406. ADVISORY COMMITTEE.
``(a) In General.--The Secretary shall establish an
advisory committee for the Monument, the purpose of which is
to advise the Secretary with respect to the preparation and
implementation of the management plan required by section
1403(g).
``(b) Membership.--To the extent practicable, the advisory
committee shall include the following members, to be
appointed by the Secretary:
``(1) A representative with expertise in natural science
and research selected from a regional university or research
institute.
``(2) A representative of the Department of Defense.
``(3) A representative of the California Natural Resources
Agency.
``(4) A representative of each of San Bernardino and
Riverside Counties, California.
``(5) A representative of each of the cities of Desert Hot
Springs and Yucca Valley, California.
``(6) A representative of the Morongo Band of Mission
Indians.
``(7) A representative of the Friends of Big Morongo
Preserve.
``(8) A representative of the Wildlands Conservancy.
``(9) A representative of the Coachella Valley Mountains
Conservancy.
``(10) A representative of the San Gorgonio Wilderness
Association.
``(11) A representative of the Morongo Basin Community
Services District.
``(12) A representative from each of the following
recreational activities:
``(A) Off-highway vehicles.
``(B) Hunting.
``(C) Rockhounding.
``(c) Terms.--
``(1) In general.--In appointing members under paragraphs
(1) through (12) of subsection (b), the Secretary shall
appoint 1 primary member and 1 alternate member that meets
the qualifications described in each of those paragraphs.
``(2) Vacancy.--
``(A) Primary member.--A vacancy on the advisory committee
with respect to a primary member shall be filled by the
applicable alternate member.
``(B) Alternate member.--The Secretary shall appoint a new
alternate members in the event of a vacancy with respect to
an alternate member of the advisory committee.
[[Page S215]]
``(3) Termination.--
``(A) In general.--The term of all members of the advisory
committee shall terminate on the termination of the advisory
committee under subsection (g).
``(B) New advisory committee.--At the discretion of the
Secretary, the Secretary may establish a new advisory
committee on the termination of the advisory committee under
subsection (g) to provide ongoing recommendations on the
management of the Monument.
``(d) Quorum.--A quorum of the advisory committee shall
consist of a majority of the primary members.
``(e) Chairperson and Procedures.--
``(1) In general.--The advisory committee shall select a
chairperson and vice chairperson from among the primary
members of the advisory committee.
``(2) Duties.--The chairperson and vice chairperson
selected under paragraph (1) shall establish any rules and
procedures for the advisory committee that the chairperson
and vice-chairperson determine to be necessary or desirable.
``(f) Service Without Compensation.--Members of the
advisory committee shall serve without pay.
``(g) Termination.--The advisory committee shall cease to
exist on--
``(1) the date on which the management plan is officially
adopted by the Secretary; or
``(2) at the discretion of the Secretary, a later date
established by the Secretary.
``TITLE XV--WILDERNESS
``SEC. 1501. DESIGNATION OF WILDERNESS AREAS.
``(a) Designation of Wilderness Areas to Be Administered by
the Bureau of Land Management.--In accordance with the
Wilderness Act (16 U.S.C. 1131 et seq.) and sections 601 and
603 of the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1781, 1782), the following land in the State is
designated as wilderness areas and as components of the
National Wilderness Preservation System:
``(1) Avawatz mountains wilderness.--Certain land in the
Conservation Area administered by the Director of the Bureau
of Land Management, comprising approximately 86,614 acres, as
generally depicted on the map entitled `Avawatz Mountains
Proposed Wilderness' and dated July 15, 2009, to be known as
the `Avawatz Mountains Wilderness'.
``(2) Golden valley wilderness.--Certain land in the
Conservation Area administered by the Director of the Bureau
of Land Management, comprising approximately 21,633 acres, as
generally depicted on the map entitled `Golden Valley
Proposed Wilderness' and dated July 15, 2009, which shall be
considered to be part of the `Golden Valley Wilderness'.
``(3) Great falls basin wilderness.--
``(A) In general.--Certain land in the Conservation Area
administered by the Director of the Bureau of Land
Management, comprising approximately 7,871 acres, as
generally depicted on the map entitled `Great Falls Basin
Proposed Wilderness' and dated October 26, 2009, to be known
as the `Great Falls Basin Wilderness'.
``(B) Limitations.--Designation of the wilderness under
subparagraph (A) shall not establish a Class I Airshed under
the Clean Air Act (42 U.S.C. 7401 et seq.).
``(4) Kingston range wilderness.--Certain land in the
Conservation Area administered by the Bureau of Land
Management, comprising approximately 53,321 acres, as
generally depicted on the map entitled `Kingston Range
Proposed Wilderness Additions' and dated July 15, 2009, which
shall be considered to be a part of as the `Kingston Range
Wilderness'.
``(5) Soda mountains wilderness.--Certain land in the
Conservation Area, administered by the Bureau of Land
Management, comprising approximately 79,376 acres, as
generally depicted on the map entitled `Soda Mountains
Proposed Wilderness' and dated October 26, 2009, to be known
as the `Soda Mountains Wilderness'.
``(b) Designation of Wilderness Areas to Be Administered by
the National Park Service.--In accordance with the Wilderness
Act (16 U.S.C. 1131 et seq.) and sections 601 and 603 of the
Federal Land Policy and Management Act of 1976 (43 U.S.C.
1781, 1782), the following land in the State is designated as
wilderness areas and as components of the National Wilderness
Preservation System:
``(1) Death valley national park wilderness additions.--
Certain land in the Conservation Area administered by the
Director of the National Park Service, comprising
approximately 59,264 acres, as generally depicted on the map
entitled `Death Valley National Park Additions' and dated
October 1, 2009, which shall be considered to be a part of
the Death Valley National Park Wilderness.
``(2) Bowling alley wilderness.--Certain land in the
Conservation Area administered by the Director of the Bureau
of Land Management, comprising approximately 30,888 acres, as
generally depicted on the map entitled `Death Valley National
Park Proposed Wilderness Area', numbered 143/100080, and
dated June 2009, which shall be considered to be a part of
the Death Valley National Park Wilderness.
``(c) Designation of Wilderness Area to Be Administered by
the Forest Service.--
``(1) In general.--In accordance with the Wilderness Act
(16 U.S.C. 1131 et seq.) and sections 601 and 603 of the
Federal Land Policy and Management Act of 1976 (43 U.S.C.
1781, 1782), the land in the State described in paragraph (2)
is designated as a wilderness area and as a component of the
National Wilderness Preservation System.
``(2) Description of land.--The land referred to in
paragraph (1) is certain land in the San Bernardino National
Forest, comprising approximately 7,141 acres, as generally
depicted on the map entitled `Proposed Sand to Snow National
Monument' and dated October 26, 2009, which shall considered
to be a part of the San Gorgonio Wilderness.
``SEC. 1502. MANAGEMENT.
``(a) Adjacent Management.--
``(1) In general.--Nothing in this title creates any
protective perimeter or buffer zone around the wilderness
areas designated by section 1501.
``(2) Activities outside wilderness areas.--
``(A) In general.--The fact that an activity (including
military activities) or use on land outside a wilderness area
designated by section 1501 can be seen or heard within the
wilderness area shall not preclude or restrict the activity
or use outside the boundary of the wilderness area.
``(B) Effect on nonwilderness activities.--
``(i) In general.--In any permitting proceeding (including
a review under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.)) conducted with respect to a project
described in clause (ii) that is formally initiated through a
notice in the Federal Register before December 31, 2013, the
consideration of any visual, noise, or other impacts of the
project on a wilderness area designated by section 1501 shall
be conducted based on the status of the area before
designation as wilderness.
``(ii) Description of projects.--A project referred to in
clause (i) is a renewable energy project--
``(I) for which the Bureau of Land Management has received
a right-of-way use application on or before the date of
enactment of this Act; and
``(II) that is located outside the boundary of a wilderness
area designated by section 1501.
``(3) No additional regulation.--Nothing in this title
requires additional regulation of activities on land outside
the boundary of the wilderness areas.
``(4) Effect on military operations.--Nothing in this Act
alters any authority of the Secretary of Defense to conduct
any military operations at desert installations, facilities,
and ranges of the State that are authorized under any other
provision of law.
``(b) Maps; Legal Descriptions.--
``(1) In general.--As soon as practicable after the date of
enactment of this title, the Secretary shall file a map and
legal description of each wilderness area and wilderness
addition designated by section 1501 with--
``(A) the Committee on Natural Resources of the House of
Representatives; and
``(B) the Committee on Energy and Natural Resources of the
Senate.
``(2) Force of law.--A map and legal description filed
under paragraph (1) shall have the same force and effect as
if included in this title, except that the Secretary may
correct errors in the maps and legal descriptions.
``(3) Public availability.--Each map and legal description
filed under paragraph (1) shall be filed and made available
for public inspection in the appropriate office of the
Secretary.
``(c) Administration.--Subject to valid existing rights,
the land designated as wilderness or as a wilderness addition
by section 1501 shall be administered by the Secretary in
accordance with this Act and the Wilderness Act (16 U.S.C.
1131 et seq.), except that any reference in that Act to the
effective date shall be considered to be a reference to the
date of enactment of this title.
``SEC. 1503. RELEASE OF WILDERNESS STUDY AREAS.
``(a) Finding.--Congress finds that, for purposes of
section 603 of the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1782), any portion of a wilderness study area
described in subsection (b) that is not designated as a
wilderness area or wilderness addition by section 1501 or any
other Act enacted before the date of enactment of this title
has been adequately studied for wilderness.
``(b) Description of Study Areas.--The study areas referred
to in subsection (a) are--
``(1) the Cady Mountains Wilderness Study Area;
``(2) the Great Falls Basin Wilderness Study Area; and
``(3) the Soda Mountains Wilderness Study Area.
``(c) Release.--Any portion of a wilderness study area
described in subsection (b) that is not designated as a
wilderness area or wilderness addition by section 1501 is no
longer subject to section 603(c) of the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1782(c)).
``TITLE XVI--DESIGNATION OF SPECIAL MANAGEMENT AREA
``SEC. 1601. DEFINITIONS.
``In this title:
``(1) Management area.--The term `Management Area' means
the Vinagre Wash Special Management Area.
``(2) Map.--The term `map' means the map entitled `Vinagre
Wash Special Management Area-Proposed' and dated November 10,
2009.
``(3) Public land.--The term `public land' has the meaning
given the term `public
[[Page S216]]
lands' in section 103 of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1702).
``(4) Secretary.--The term `Secretary' means the Secretary
of the Interior.
``SEC. 1602. ESTABLISHMENT OF THE VINAGRE WASH SPECIAL
MANAGEMENT AREA.
``(a) Establishment.--There is established the Vinagre Wash
Special Management Area in the State, to be managed by the El
Centro Field Office and the Yuma Field Office of the Bureau
of Land Management.
``(b) Purpose.--The purpose of the Management Area is to
conserve, protect, and enhance--
``(1) the plant and wildlife values of the Management Area;
and
``(2) the outstanding and nationally significant
ecological, geological, scenic, recreational, archaeological,
cultural, historic, and other resources of the Management
Area.
``(c) Boundaries.--The Management Area shall consist of the
public land in Imperial County, California, comprising
approximately 74,714 acres, as generally depicted on the map.
``(d) Map; Legal Description.--
``(1) In general.--As soon as practicable, but not later
than 3 years, after the date of enactment of this title, the
Secretary shall submit a map and legal description of the
Management Area to--
``(A) the Committee on Natural Resources of the House of
Representatives; and
``(B) the Committee on Energy and Natural Resources of the
Senate.
``(2) Effect.--The map and legal description submitted
under paragraph (1) shall have the same force and effect as
if included in this title, except that the Secretary may
correct any errors in the map and legal description.
``(3) Availability.--Copies of the map submitted under
paragraph (1) shall be on file and available for public
inspection in--
``(A) the Office of the Director of the Bureau of Land
Management; and
``(B) the appropriate office of the Bureau of Land
Management in the State.
``SEC. 1603. MANAGEMENT.
``(a) In General.--The Secretary shall allow hiking,
camping, hunting, and sightseeing and the use of motorized
vehicles, mountain bikes, and horses on designated routes in
the Management Area in a manner that--
``(1) is consistent with the purpose of the Management Area
described in section 1602(b);
``(2) ensures public health and safety; and
``(3) is consistent with applicable law.
``(b) Off-highway Vehicle Use.--
``(1) In general.--Subject to paragraphs (2) and (3) and
all other applicable laws, the use of off-highway vehicles
shall be permitted on routes in the Management Area generally
depicted on the map.
``(2) Closure.--The Secretary may temporarily close or
permanently reroute a portion of a route described in
paragraph (1)--
``(A) to prevent, or allow for restoration of, resource
damage;
``(B) to protect tribal cultural resources, including the
resources identified in the tribal cultural resources
management plan developed under section 1905(c);
``(C) to address public safety concerns; or
``(D) as otherwise required by law.
``(3) Designation of additional routes.--During the 3-year
period beginning on the date of enactment of this title, the
Secretary--
``(A) shall accept petitions from the public regarding
additional routes for off-highway vehicles; and
``(B) may designate additional routes that the Secretary
determines--
``(i) would provide significant or unique recreational
opportunities; and
``(ii) are consistent with the purposes of the Management
Area.
``(c) Withdrawal.--Subject to valid existing rights, all
Federal land within the Management Area is withdrawn from--
``(1) all forms of entry, appropriation, or disposal under
the public land laws;
``(2) location, entry, and patent under the mining laws;
and
``(3) right-of-way, leasing, or disposition under all laws
relating to--
``(A) minerals; or
``(B) solar, wind, and geothermal energy.
``(d) No Buffers.--The establishment of the Management Area
shall not--
``(1) create a protective perimeter or buffer zone around
the Management Area; or
``(2) preclude uses or activities outside the Management
Area that are permitted under other applicable laws, even if
the uses or activities are prohibited within the Management
Area.
``(e) Notice of Available Routes.--The Secretary shall
ensure that visitors to the Management Area have access to
adequate notice relating to the availability of designated
routes in the Management Area through--
``(1) the placement of appropriate signage along the
designated routes;
``(2) the distribution of maps, safety education materials,
and other information that the Secretary determines to be
appropriate; and
``(3) restoration of areas that are not designated as open
routes, including vertical mulching.
``(f) Stewardship.--The Secretary, in consultation with
Indian tribes and other interests, shall develop a program to
provide opportunities for monitoring and stewardship of the
Management Area to minimize environmental impacts and prevent
resource damage from recreational use, including volunteer
assistance with--
``(1) route signage;
``(2) restoration of closed routes;
``(3) protection of Management Area resources; and
``(4) recreation education.
``(g) Protection of Tribal Cultural Resources.--Not later
than 2 years after the date of enactment of this title, the
Secretary, in accordance with the National Historic
Preservation Act (16 U.S.C. 470 et seq.) and any other
applicable law, shall--
``(1) prepare and complete a tribal cultural resources
survey of the Management Area; and
``(2) consult with the Quechan Indian Nation and other
Indian tribes demonstrating ancestral, cultural, or other
ties to the resources within the Management Area on the
development and implementation of the tribal cultural
resources survey under paragraph (1).
``SEC. 1604. POTENTIAL WILDERNESS.
``(a) Protection of Wilderness Character.--
``(1) In general.--The Secretary shall manage the Federal
land in the Management Area described in paragraph (2) in a
manner that preserves the character of the land for the
eventual inclusion of the land in the National Wilderness
Preservation System.
``(2) Description of land.--The Federal land described in
this paragraph is--
``(A) the approximately 9,160 acres of land, as generally
depicted on the map entitled `Indian Pass Wilderness
Additions-Proposed' and dated November 10, 2009;
``(B) the approximately 17,436 acres of land, as generally
depicted on the map entitled `Milpitas Wash Wilderness Area-
Proposed' and dated November 10, 2009;
``(C) the approximately 13,647 acres of land, as generally
depicted on the map entitled `Buzzard Peak Wilderness Area-
Proposed' and dated November 10, 2009; and
``(D) the approximately 8,090 acres of land, as generally
depicted on the map entitled `Palo Verde Mountain Wilderness
Additions-Proposed' and dated November 10, 2009.
``(3) Use of land.--
``(A) Military uses.--The Secretary shall manage the
Federal land in the Management Area described in paragraph
(2) in a manner that is consistent with the Wilderness Act
(16 U.S.C. 1131 et seq.), except that the Secretary may
authorize use of the land by the Secretary of the Navy for
Naval Special Warfare Tactical Training, including long-range
small unit training and navigation, vehicle concealment, and
vehicle sustainment training, in accordance with applicable
Federal laws.
``(B) Prohibited uses.--The following shall be prohibited
on the Federal land described in paragraph (2):
``(i) Permanent roads.
``(ii) Commercial enterprises.
``(iii) Except as necessary to meet the minimum
requirements for the administration of the Federal land and
to protect public health and safety--
``(I) the use of mechanized vehicles; and
``(II) the establishment of temporary roads.
``(4) Wilderness designation.--
``(A) In general.--The Federal land described in paragraph
(2) shall be designated as wilderness and as a component of
the National Wilderness Preservation System on the date on
which the Secretary, in consultation with the Secretary of
Defense, publishes a notice in the Federal Register that all
activities on the Federal land that are incompatible with the
Wilderness Act (16 U.S.C. 1131 et seq.) have terminated.
``(B) Designation.--On designation of the Federal land
under clause (i)--
``(i) the land described in paragraph (2)(A) shall be
incorporated in, and shall be considered to be a part of, the
Indian Pass Wilderness;
``(ii) the land described in paragraph (2)(B) shall be
designated as the `Milpitas Wash Wilderness';
``(iii) the land described in paragraph (2)(C) shall be
designated as the `Buzzard Peak Wilderness'; and
``(iv) the land described in paragraph (2)(D) shall be
incorporated in, and shall be considered to be a part of, the
Palo Verde Mountains Wilderness.
``(b) Administration of Wilderness.--Subject to valid
existing rights, the land designated as wilderness or as a
wilderness addition by this title shall be administered by
the Secretary in accordance with this Act and the Wilderness
Act (16 U.S.C. 1131 et seq.).
``TITLE XVII--NATIONAL PARK SYSTEM ADDITIONS
``SEC. 1701. DEATH VALLEY NATIONAL PARK BOUNDARY REVISION.
``(a) In General.--The boundary of Death Valley National
Park is adjusted to include--
``(1) the approximately 33,041 acres of Bureau of Land
Management land abutting the southern end of the Death Valley
National Park that lies between Death Valley National Park to
the north and Ft. Irwin Military Reservation to the south and
which runs approximately 34 miles from west to east, as
depicted on the map entitled `Death Valley National Park
Proposed Boundary Addition', numbered 143/100,080, and dated
June 2009;
``(2) the approximately 6,379 acres of Bureau of Land
Management land in Inyo County, California, located in the
northeast area
[[Page S217]]
of Death Valley National Park that is within, and surrounded
by, land under the jurisdiction of the Director of the
National Park Service, as depicted on the map entitled
`Proposed Crater Mine Area Addition to Death Valley National
Park', numbered 143/100,079, and dated June 2009; and
``(3)(A) on transfer of title to the private land to the
National Park Service, the approximately 280 acres of private
land in Inyo County, California, located adjacent to the
southeastern boundary of Death Valley National Park, as
depicted on the map entitled `Proposed Ryan Camp Addition to
Death Valley National Park', numbered 143/100,097, and dated
June 2009; and
``(B) the approximately 1,040 acres of Bureau of Land
Management land contiguous to the private land described in
subparagraph (A), as depicted on the map entitled `Proposed
Ryan Camp Addition to Death Valley National Park', numbered
143/100,097, and dated June 2009.
``(b) Availability of Map.--The maps described in
paragraphs (1), (2), and (3) of subsection (a) shall be on
file and available for public inspection in the appropriate
offices of the National Park Service.
``(c) Administration.--The Secretary of the Interior
(referred to in this section as the `Secretary') shall--
``(1) administer any land added to Death Valley National
Park under subsection (a)--
``(A) as part of Death Valley National Park; and
``(B) in accordance with applicable laws (including
regulations); and
``(2) not later than 180 days after the date of enactment
of this title, develop a memorandum of understanding with
Inyo County, California, permitting ongoing access and use to
existing gravel pits along Saline Valley Road within Death
Valley National Park for road maintenance and repairs in
accordance with applicable laws (including regulations).
``SEC. 1702. MOJAVE NATIONAL PRESERVE.
``(a) In General.--The boundary of the Mojave National
Preserve is adjusted to include--
``(1) the 29,221 acres of Bureau of Land Management land
that is surrounded by the Mojave National Preserve to the
northwest, west, southwest, south, and southeast and by the
Nevada State line on the northeast boundary, as depicted on
the map entitled `Proposed Castle Mountain Addition to the
Mojave National Preserve', numbered 170/100,075, and dated
August 2009; and
``(2) the 25 acres of Bureau of Land Management land in
Baker, California, as depicted on the map entitled `Mojave
National Preserve-Proposed Boundary Addition', numbered 170/
100,199, and dated August 2009.
``(b) Availability of Maps.--The maps described in
subsection (a) shall be on file and available for public
inspection in the appropriate offices of the National Park
Service.
``(c) Administration.--The Secretary shall administer any
land added to Mojave National Preserve under subsection (a)--
``(1) as part of the Mojave National Preserve; and
``(2) in accordance with applicable laws (including
regulations).
``SEC. 1703. JOSHUA TREE NATIONAL PARK BOUNDARY REVISION.
``(a) In General.--The boundary of the Joshua Tree National
Park is adjusted to include the 2,879 acres of land managed
by Director of the Bureau of Land Management that are
contiguous at several different places to the northern
boundaries of Joshua Tree National Park in the northwest
section of the Park, as depicted on the map entitled `Joshua
Tree National Park Proposed Boundary Additions', numbered
156/100,007, and dated June 2009.
``(b) Availability of Map.--The map described in subsection
(a) and the map depicting the 25 acres described in
subsection (c)(2) shall be on file and available for public
inspection in the appropriate offices of the National Park
Service.
``(c) Administration.--
``(1) In general.--The Secretary shall administer any land
added to the Joshua Tree National Park under subsection (a)
and the additional land described in paragraph (2)--
``(A) as part of Joshua Tree National Park; and
``(B) in accordance with applicable laws (including
regulations).
``(2) Description of additional land.--The additional land
referred to in paragraph (1) is the 25 acres of land--
``(A) depicted on the map entitled `Joshua Tree National
Park Boundary Adjustment Map', numbered 156/80,049, and dated
April 1, 2003;
``(B) added to Joshua Tree National Park by the notice of
the Department Interior of August 28, 2003 (68 Fed. Reg.
51799); and
``(C) more particularly described as lots 26, 27, 28, 33,
and 34 in sec. 34, T. 1 N., R. 8 E., San Bernardino Meridian.
``SEC. 1704. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as are
necessary to carry out this title.
``TITLE XVIII--OFF-HIGHWAY VEHICLE RECREATION AREAS
``SEC. 1801. DESIGNATION OF OFF-HIGHWAY VEHICLE RECREATION
AREAS.
``(a) Designation.--In accordance with the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.)
and resource management plans developed under this title and
subject to valid existing rights, the following land within
the Conservation Area in San Bernardino County, California,
is designated as Off-Highway Vehicle Recreation Areas:
``(1) El mirage off-highway vehicle recreation area.--
Certain Bureau of Land Management land in the Conservation
Area, comprising approximately 25,600 acres, as generally
depicted on the map entitled `El Mirage Off-Highway Vehicle
Recreation Area' and dated July 15, 2009, which shall be
known as the `El Mirage Off-Highway Vehicle Recreation Area'.
``(2) Johnson valley off-highway vehicle recreation area.--
``(A) In general.--Certain Bureau of Land Management land
in the Conservation Area, comprising approximately 180,000
acres, as generally depicted on the map entitled `Johnson
Valley Off-Highway Vehicle Recreation Area' and dated July
15, 2009, which shall be known as the `Johnson Valley Off-
Highway Vehicle Recreation Area'.
``(B) Exclusions.--
``(i) In general.--Subject to clause (iii), the land
described in clause (ii) shall be excluded from the Johnson
Valley Off-Highway Vehicle Recreation Area to permit the
Secretary of the Navy to study the land for--
``(I) withdrawal in accordance with the Act of February 28,
1958 (43 U.S.C. 155 et seq.); and
``(II) potential inclusion in the Marine Corps Air Ground
Combat Center at Twentynine Palms, California, for national
defense purposes.
``(ii) Study area.--The land referred to in clause (i) is
the land that--
``(I) is described in--
``(aa) the notice of the Bureau of Land Management of
September 15, 2008 entitled `Notice of Proposed Legislative
Withdrawal and Opportunity for Public Meeting; California'
(73 Fed. Reg. 53269); or
``(bb) any subsequent notice in the Federal Register that
is related to the notice described in item (aa); and
``(II) has been segregated by the Director of the Bureau of
Land Management.
``(iii) Incorporation in off-highway vehicle recreation
area.--After action by the Secretary of Defense and Congress
regarding the withdrawal under subparagraph (A), any land
within the study area that is not withdrawn shall be
incorporated into the Johnson Valley Off-Highway Vehicle
Recreation Area.
``(C) Joint use of certain land.--The Secretary of Defense
shall consider a potential joint use area within the Johnson
Valley Off-Highway Vehicle Recreation Area as part of the
environmental impact statement of the Department of Defense
that would allow for continued recreational opportunities on
the joint use area during periods in which--
``(i) the joint use area is not needed for military
training activities; and
``(ii) public safety can be ensured.
``(D) Military access for administrative purposes.--In
cooperation with the Secretary of the Interior, the Secretary
of the Navy may, after notifying the Secretary of the
Interior, access the Johnson Valley Off-Highway Vehicle
Recreation Area for national defense purposes supporting
military training (including military range management and
exercise control activities).
``(3) Rasor off-highway vehicle recreation area.--Certain
Bureau of Land Management land in the Conservation Area,
comprising approximately 22,400 acres, as generally depicted
on the map entitled `Rasor Off-Highway Vehicle Recreation
Area' and dated July 15, 2009, which shall be known as the
`Rasor Off-Highway Vehicle Recreation Area'.
``(4) Spangler hills off-highway vehicle recreation area.--
Certain Bureau of Land Management land in the Conservation
Area, comprising approximately 62,080 acres, as generally
depicted on the map entitled `Spangler Hills Off-Highway
Vehicle Recreation Area' and dated July 15, 2009, which shall
be known as the `Spangler Off-Highway Vehicle Recreation
Area'.
``(5) Stoddard valley off-highway vehicle recreation
area.--Certain Bureau of Land Management land in the
Conservation Area, comprising approximately 54,400 acres, as
generally depicted on the map entitled `Stoddard Valley Off-
Highway Vehicle Recreation Area' and dated July 15, 2009,
which shall be known as the `Stoddard Valley Off-Highway
Vehicle Recreation Area'.
``(b) Purpose.--The purpose of the off-highway vehicle
recreation areas designated under subsection (a) is to
preserve and enhance the recreational opportunities within
the Conservation Area (including opportunities for off-
highway vehicle recreation), while conserving the wildlife
and other natural resource values of the Conservation Area.
``(c) Maps and Descriptions.--
``(1) Preparation and submission.--As soon as practicable
after the date of enactment of this title, the Secretary
shall file a map and legal description of each off-highway
vehicle recreation area designated by subsection (a) with--
``(A) the Committee on Natural Resources of the House of
Representatives; and
``(B) the Committee on Energy and Natural Resources of the
Senate.
``(2) Legal effect.--The map and legal descriptions of the
off-highway vehicle recreation areas filed under paragraph
(1) shall have the same force and effect as if included in
this title, except that the Secretary may correct errors in
the map and legal descriptions.
``(3) Public availability.--Each map and legal description
filed under paragraph (1) shall be filed and made available
for public
[[Page S218]]
inspection in the appropriate offices of the Bureau of Land
Management.
``(d) Use of the Land.--
``(1) Recreational activities.--
``(A) In general.--The Secretary shall continue to
authorize, maintain, and enhance the recreational uses of the
off-highway vehicle recreation areas designated by subsection
(a), including off-highway recreation, hiking, camping,
hunting, mountain biking, sightseeing, rockhounding, and
horseback riding, as long as the recreational use is
consistent with this section and any other applicable law.
``(B) Off-highway vehicle and off-highway recreation.--To
the extent consistent with applicable Federal law (including
regulations) and this section, any authorized recreation
activities and use designations in effect on the date of
enactment of this title and applicable to the off-highway
vehicle recreation areas designated by subsection (a) shall
continue, including casual off-highway vehicular use, racing,
competitive events, rock crawling, training, and other forms
of off-highway recreation.
``(2) Wildlife guzzlers.--Wildlife guzzlers shall be
allowed in the off-highway vehicle recreation areas
designated by subsection (a) in accordance with applicable
Bureau of Land Management guidelines.
``(3) Prohibited uses.--Residential and commercial
development (including development of mining and energy
facilities, but excluding transmission line rights-of-way and
related telecommunication facilities) shall be prohibited in
the off-highway vehicle recreation areas designated by
subsection (a) if the Secretary determines that the
development is incompatible with the purpose described in
subsection (b).
``(e) Administration.--
``(1) In general.--The Secretary shall administer the off-
highway vehicle recreation areas designated by subsection (a)
in accordance with--
``(A) this title;
``(B) the Federal Land Policy and Management Act of 1976
(43 U.S.C. 1701 et seq.); and
``(C) any other applicable laws (including regulations).
``(2) Management plan.--
``(A) In general.--As soon as practicable, but not later
than 3 years after the date of enactment of this title, the
Secretary shall--
``(i) amend existing resource management plans applicable
to the land designated as off-highway vehicle recreation
areas under subsection (a); or
``(ii) develop new management plans for each off-highway
vehicle recreation area designated under that subsection.
``(B) Requirements.--All new or amended plans under
subparagraph (A) shall be designed to preserve and enhance
safe off-highway vehicle and other recreational opportunities
within the applicable recreation area consistent with--
``(i) the purpose described in subsection (b); and
``(ii) any applicable laws (including regulations).
``(C) Interim plans.--Pending completion of a new
management plan under subparagraph (A), the existing resource
management plans shall govern the use of the applicable off-
highway vehicle recreation area.
``(f) Study.--
``(1) In general.--As soon as practicable, but not later
than 2 years, after the date of enactment of this title, the
Secretary shall complete a study to identify Bureau of Land
Management land adjacent to the off-highway vehicle
recreation areas designated by subsection (a) that is
suitable for addition to the off-highway vehicle recreation
areas.
``(2) Requirements.--In preparing the study under paragraph
(1), the Secretary shall--
``(A) seek input from stakeholders, including--
``(i) the State;
``(ii) San Bernardino County, California;
``(iii) the public;
``(iv) recreational user groups; and
``(v) conservation organizations;
``(B) explore the feasibility of expanding the southern
boundary of the off-highway vehicle recreation area described
in subsection (a)(4) to include previously disturbed land;
``(C) identify and exclude from consideration any land
that--
``(i) is managed for conservation purposes;
``(ii) may be suitable for renewable energy development; or
``(iii) may be necessary for energy transmission; and
``(D) not recommend or approve expansion areas that
collectively would exceed the total acres administratively
designated for off-highway recreation within the Conservation
Area as of the date of enactment of this title.
``(3) Applicable law.--The Secretary shall consider the
information and recommendations of the study completed under
paragraph (1) to determine the impacts of expanding off-
highway vehicle recreation areas designated by subsection (a)
on the Conservation Area, in accordance with--
``(A) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
``(B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); and
``(C) any other applicable law.
``(4) Submission to congress.--On completion of the study
under paragraph (1), the Secretary shall submit the study
to--
``(A) the Committee on Natural Resources of the House of
Representatives; and
``(B) the Committee on Energy and Natural Resources of the
Senate.
``(5) Authorization for expansion.--
``(A) In general.--On completion of the study under
paragraph (1) and in accordance with all applicable laws
(including regulations), the Secretary shall authorize the
expansion of the off-highway vehicle recreation areas
recommended under the study.
``(B) Management.--Any land within the expanded areas under
subparagraph (A) shall be managed in accordance with this
section.
``TITLE XIX--MISCELLANEOUS
``SEC. 1901. STATE LAND TRANSFERS AND EXCHANGES.
``(a) Transfer of Land to Anza-Borrego Desert State Park.--
``(1) In general.--On termination of all mining claims to
the land described in paragraph (2), the Secretary shall
transfer the land described in that paragraph to the State.
``(2) Description of land.--The land referred to in
paragraph (1) is certain Bureau of Land Management land in
San Diego County, California, comprising approximately 934
acres, as generally depicted on the 2 maps entitled `Anza-
Borrego Desert State Park Additions-Table Mountain Wilderness
Study Area' and dated July 15, 2009.
``(3) Management.--
``(A) In general.--The land transferred under paragraph (1)
shall be managed in accordance with the provisions of the
California Wilderness Act (California Public Resources Code
sections 5093.30-5093.40).
``(B) Withdrawal.--Subject to valid existing rights, the
land transferred under paragraph (1) is withdrawn from--
``(i) all forms of entry, appropriation, or disposal under
the public land laws;
``(ii) location, entry, and patent under the mining laws;
and
``(iii) disposition under all laws relating to mineral and
geothermal leasing.
``(C) Reversion.--If the State ceases to manage the land
transferred under paragraph (1) as part of the State Park
System or in a manner inconsistent with the California
Wilderness Act (California Public Resources Code sections
5093.30-5093.40), the land shall revert to the Secretary, to
be managed as a Wilderness Study Area.
``(b) Land Exchanges.--
``(1) In general.--The Secretary shall, in consultation and
cooperation with the California State Lands Commission
(referred to in this section as the `Commission'), develop a
process to exchange isolated parcels of State land within the
Conservation Area for Federal land located in the
Conservation Area or other Federal land in the State that--
``(A) is consistent with the plans described in paragraph
(2); and
``(B) ensures that the conservation goals and objectives
identified in those plans are not adversely impacted.
``(2) Description of plans.--The plans referred to in
paragraph (1) are--
``(A) the California Desert Renewable Energy Conservation
Plan;
``(B) the California Desert Conservation Area Plan;
``(C) the Northern and Eastern Colorado Desert Plan; and
``(D) any other applicable plans.
``(3) Requirements.--The process developed under paragraph
(1) shall--
``(A) apply to all State land within the Conservation Area
that is under the jurisdiction of the Commission;
``(B) prioritize the elimination of State land from units
of the National Park System, national monuments, and
wilderness areas;
``(C) provide the Commission with consolidated land
holdings sufficient to make the land viable for commercial or
recreation uses, including renewable energy development, off-
highway vehicle recreation, or State infrastructure or
resource needs;
``(D) establish methods to ensure that--
``(i) not later than 1 year after the date of enactment of
this title, the Secretary and the Commission complete an
inventory of Federal land and State land in the Conservation
Area under the jurisdiction of the Secretary and the
Commission, respectively, and any other Federal land and
property outside the Conservation Area that is determined to
be suitable for exchange consistent with paragraph (1);
``(ii) there is a public comment period of not less than 90
days with respect to--
``(I) the inventory of land under clause (i); and
``(II) any proposed land exchange under this section that
involves more than 5,000 acres of Federal land;
``(iii) in preparing the inventory of Federal land suitable
for exchange under clause (i), the Secretary shall use best
efforts to give priority to--
``(I) land that has the potential for commercial
development, including renewable energy development, such as
wind and solar energy development;
``(II) the land described in section 707(b)(2); and
``(III) land located outside the boundaries of the
Conservation Area (including closed military base land and
land identified as surplus by the Administrator of the
General Services Administration) to avoid, to the maximum
extent feasible, conflicts with conservation of desert land;
``(iv) the inventory under clause (i) is updated annually
by the Secretary and resubmitted to the Commission; and
[[Page S219]]
``(v) the land exchanges are completed by the date that is
10 years after the date of enactment of this title; and
``(E) provide for the submission of annual reports to
Congress that--
``(i) describe any progress or impediments to accomplishing
the goal described in subparagraph (D)(v); and
``(ii) any recommendations for legislation to accomplish
the goal.
``(4) Valuation.--Notwithstanding paragraphs (2) through
(5) of subsection (d) of section 206 of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1716(d)), if,
within 180 days after the submission of an appraisal under
subsection (d)(1) of that section, the Secretary and the
Commission cannot agree to accept the findings of the
appraisal--
``(A) the Secretary and the Commission shall mutually agree
to employ a process of bargaining or some other process to
determine the values of the land involved in the exchange;
``(B) the appraisal shall be submitted to an arbiter
appointed by the Secretary from a list of arbitrators
submitted to the Secretary by the American Arbitration
Association for arbitration; and
``(C) although the decision of the arbiter under
subparagraph (B) shall be nonbinding, the decision may be
used by the Secretary and the Commission as a valid appraisal
for--
``(i) a period of 2 years; and
``(ii) on mutual agreement of the Secretary and the
Commission, an additional 2-year period; or
``(D) on mutual agreement of the Secretary and the
Commission, the valuation process shall be suspended or
modified.
``(5) Treatment of land use restrictions and pending
applications.--For the purposes of this title--
``(A) the Secretary shall not exclude parcels from
exchanges because the parcels are subject to designations or
pending land use applications, including applications for the
development of renewable energy;
``(B) all Federal land and State land proposed for exchange
or sale shall be valued--
``(i) according to fair market value;
``(ii) in accordance with section 206(d) of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1716(d));
and
``(iii) without regard to--
``(I) pending land use applications;
``(II) renewable energy designations; or
``(III) any land use restrictions on adjacent land.
``(6) Cooperation agreements.--The Secretary may--
``(A) enter into such joint agreements with the General
Services Administration and the Commission as the Secretary
determines to be necessary to facilitate land exchanges,
including agreements that establish accounting mechanisms--
``(i) to be used for tracking the differential in dollar
value of land conveyed in a series of transactions; and
``(ii) that, notwithstanding part 2200 of title 43, Code of
Federal Regulations (or successor regulations), may carry
outstanding cumulative credit balances until the completion
of the land exchange process developed under paragraph (1);
and
``(B) to the extent that the agreement does not conflict
with this section, continue using the agreement entitled
`Memorandum of Agreement Between California State Lands
Commission, General Services Administration, and the
Department of the Interior Regarding: Implementation of the
California Desert Protection Act', which became effective on
November 7, 1995.
``(7) Existing law.--Except as otherwise provided in this
section, nothing in this section supersede or limits section
707.
``(8) State land leases.--
``(A) In general.--The Secretary shall manage any State
land described in subparagraph (B) in accordance with the
terms and conditions of the applicable State lease agreement
for the duration of the lease, subject to applicable laws
(including regulations).
``(B) Description of state land.--The State land referred
to in subparagraph (A) is any State land within the
Conservation Area that is subject to a lease or permit on the
date of enactment of this title that is transferred to the
Federal Government.
``(C) Expiration of lease.--On the expiration of a State
lease referred to in subparagraph (A), the Secretary shall
provide lessees with the opportunity to seek Federal permits
to continue the existing use of the State land without
further action otherwise required under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
``(D) Applicable law.--Except as otherwise provided in this
section, any State land transferred to the United States
under this section shall be managed in accordance with all
laws (including regulations) and rules applicable to the
public land adjacent to the transferred State land.
``(c) Twentynine Palms Marine Corp Base.--
``(1) In general.--The Secretary and the Secretary of
Defense, in consultation and in cooperation with the
California State Lands Commission, shall develop a process to
purchase or exchange parcels of State land within the area of
expansion and land use restrictions planned for the
Twentynine Palms Marine Corp Base.
``(2) Requirements.--The process developed under paragraph
(1) for exchanged parcels of State land shall provide the
California State Lands Commission with consolidated land
holdings sufficient to make the land viable for commercial or
recreational uses, including renewable energy development,
off-highway vehicle recreation, or State infrastructure or
resource needs.
``(3) Applicable law.--An exchange of land under this
subsection shall be subject to the requirements of subsection
(b).
``(d) Holtville Airport, Imperial County.--
``(1) In general.--On the submission of an application by
Imperial County, California, the Secretary of Transportation
shall, in accordance with section 47125 of title 49, United
States Code, and section 2641.1 of title 43, Code of Federal
Regulations (or successor regulations) seek a conveyance from
the Secretary of approximately 3,500 acres of Bureau of Land
Management land adjacent to the Imperial County Holtville
Airport (L04) for the purposes of airport expansion.
``(2) Segregation.--The Secretary (acting through the
Director of the Bureau of Land Management) shall, with
respect to the land to be conveyed under paragraph (1)--
``(A) segregate the land; and
``(B) prohibit the appropriation of the land until--
``(i) the date on which a notice of realty action
terminates the application; or
``(ii) the date on which a document of conveyance is
published.
``(e) Needles Solar Reserve, San Bernardino County.--
``(1) In general.--The Secretary shall grant to the
Commission a right of first refusal to exchange the State
land described in paragraph (2) for Bureau of Land Management
land identified for disposal.
``(2) Secondary right of refusal.--If the Commission
declines to exchange State land for Bureau of Land Management
land identified for disposal within the city limits of
Needles, California, the City of Needles shall have a
secondary right of refusal to acquire the land.
``SEC. 1902. MILITARY ACTIVITIES.
``Nothing in this Act--
``(1) restricts or precludes Department of Defense
motorized access by land or air--
``(A) to respond to an emergency within a wilderness area
designated by this Act; or
``(B) to control access to the emergency site;
``(2) prevents nonmechanized military training activities
previously conducted on wilderness areas designated by this
title that are consistent with--
``(A) the Wilderness Act (16 U.S.C. 1131 et seq.); and
``(B) all applicable laws (including regulations);
``(3) restricts or precludes low-level overflights of
military aircraft over the areas designated as wilderness,
national monuments, special management areas, or recreation
areas by this Act, including military overflights that can be
seen or heard within the designated areas;
``(4) restricts or precludes flight testing and evaluation
in the areas described in paragraph (3);
``(5) restricts or precludes the designation or creation of
new units of special use airspace, or the establishment of
military flight training routes, over the areas described in
paragraph (3); or
``SEC. 1903. CLIMATE CHANGE AND WILDLIFE CORRIDORS.
``(a) In General.--The Secretary shall--
``(1) assess the impacts of climate change on the
Conservation Area; and
``(2) establish policies and procedures to ensure the
preservation of wildlife corridors and facilitate species
migration likely to occur due to climate change.
``(b) Study.--
``(1) In general.--As soon as practicable, but not later
than 2 years, after the date of enactment of this title, the
Secretary shall complete a study regarding the impact of
global climate change on the Conservation Area.
``(2) Components.--The study under paragraph (1) shall--
``(A) identify the species migrating, or likely to migrate,
due to climate change;
``(B) examine the impacts and potential impacts of climate
change on--
``(i) plants, insects, and animals;
``(ii) soil;
``(iii) air quality;
``(iv) water quality and quantity; and
``(v) species migration and survival;
``(C) identify critical wildlife and species migration
corridors recommended for preservation; and
``(D) include recommendations for ensuring the biological
connectivity of public land managed by the Secretary and the
Secretary of Defense throughout the Conservation Area.
``(3) Rights-of-way.--The Secretary shall consider the
information and recommendations of the study under paragraph
(1) to determine the individual and cumulative impacts of
rights-of-way for projects in the Conservation Area, in
accordance with--
``(A) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
``(B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); and
``(C) any other applicable law.
``(c) Land Management Plans.--The Secretary shall
incorporate into all land management plans applicable to the
Conservation Area the findings and recommendations of the
study completed under subsection (b).
[[Page S220]]
``SEC. 1904. PROHIBITED USES OF DONATED AND ACQUIRED LAND.
``(a) Definitions.--In this section:
``(1) Acquired land.--The term `acquired land' means any
land acquired for the Conservation Area using amounts from
the Land and Water Conservation Fund established under
section 2 of the Land and Water Conservation Fund Act of 1965
(16 U.S.C. 460l-5).
``(2) Donated land.--The term `donated land' means any
private land donated to the United States for conservation
purposes in the Conservation Area.
``(3) Donor.--The term `donor' means an individual or
entity that donates private land within the Conservation Area
to the United States.
``(4) Secretary.--The term `Secretary' means the Secretary
of the Interior, acting through the Director of the Bureau of
Land Management.
``(b) Prohibitions.--Except as provided in subsection (c),
there shall be prohibited with respect to donated land or
acquired land--
``(1) disposal; or
``(2) any land use authorization that would result in
appreciable damage or disturbance to the public lands,
including--
``(A) rights-of-way;
``(B) leases;
``(C) livestock grazing;
``(D) infrastructure development;
``(E) mineral entry;
``(F) off-highway vehicle use, except on--
``(i) designated routes;
``(ii) off-highway vehicle areas designated by law; and
``(iii) administratively-designated open areas; and
``(G) any other activities that would create impacts
contrary to the conservation purposes for which the land was
donated or acquired.
``(c) Exceptions.--
``(1) Authorization by secretary.--Subject to paragraph
(2), the Secretary may authorize limited exceptions to
prohibited uses of donated land or acquired land in the
Conservation Area if--
``(A) an applicant has submitted a right-of-way use
application to the Bureau of Land Management proposing
renewable energy development on the donated land or acquired
land on or before December 1, 2009; or
``(B) after the completion of an analysis under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.), including full public participation in the analysis,
the Secretary has determined that--
``(i) the use of the donated land or acquired land is in
the public interest;
``(ii) the impacts of the use are fully and appropriately
mitigated; and
``(iii) the land was donated or acquired on or before
December 1, 2009.
``(2) Conditions.--
``(A) In general.--If the Secretary grants an exception to
the prohibition under paragraph (1), the Secretary shall
require the permittee to acquire and donate comparable
private land to the United States to mitigate the use.
``(B) Approval.--The private land to be donated under
subparagraph (A) shall be approved by the Secretary after
consultation, to the maximum extent practicable, with the
donor of the private land proposed for non-conservation uses.
``(d) Existing Agreements.--Nothing in this section affects
permitted or prohibited uses of donated land or acquired land
in the Conservation Area established in any easements, deed
restrictions, memoranda of understanding, or other agreements
in existence on the date of enactment of this title.
``(e) Deed Restrictions.--The Secretary may accept deed
restrictions requested by donors for land donated to the
United States within the Conservation Area after the date of
enactment of this title.
``SEC. 1905. TRIBAL USES AND INTERESTS.
``(a) Access.--The Secretary shall ensure access to areas
designated under this Act by members of Indian tribes for
traditional cultural and religious purposes, consistent with
applicable law, including Public Law 95-341 (commonly known
as the ``American Indian Religious Freedom Act'') (42 U.S.C.
1996).
``(b) Temporary Closure.--
``(1) In general.--In accordance with applicable law,
including Public Law 95-341 (commonly known as the ``American
Indian Religious Freedom Act'') (42 U.S.C. 1996), and subject
to paragraph (2), the Secretary, on request of an Indian
tribe or Indian religious community, shall temporarily close
to general public use any portion of an area designated as a
national monument, special management area, wild and scenic
river, or National Park System unit under this Act (referred
to in this subsection as a `designated area') to protect the
privacy of traditional cultural and religious activities in
the designated area by members of the Indian tribe or Indian
religious community.
``(2) Limitation.--In closing a portion of a designated
area under paragraph (1), the Secretary shall limit the
closure to the smallest practicable area for the minimum
period necessary for the traditional cultural and religious
activities.
``(c) Tribal Cultural Resources Management Plan.--
``(1) In general.--Not later than 2 years after the date of
enactment of this title, the Secretary of the Interior shall
develop and implement a tribal cultural resources management
plan to identify, protect, and conserve cultural resources of
Indian tribes associated with the Xam Kwatchan Trail network
extending from Avikwaame (Spirit Mountain, Nevada) to
Avikwlal (Pilot Knob, California).
``(2) Consultation.--The Secretary shall consult on the
development and implementation of the tribal cultural
resources management plan under paragraph (1) with--
``(A) each of--
``(i) the Chemehuevi Indian Tribe;
``(ii) the Hualapai Tribal Nation;
``(iii) the Fort Mojave Indian Tribe;
``(iv) the Colorado River Indian Tribes;
``(v) the Quechan Indian Tribe; and
``(vi) the Cocopah Indian Tribe; and
``(B) the Advisory Council on Historic Preservation.
``(3) Resource protection.--The tribal cultural resources
management plan developed under paragraph (1) shall be--
``(A) based on a completed tribal cultural resources
survey; and
``(B) include procedures for identifying, protecting, and
preserving petroglyphs, ancient trails, intaglios, sleeping
circles, artifacts, and other resources of cultural,
archaeological, or historical significance in accordance with
all applicable laws and policies, including--
``(i) the National Historic Preservation Act (16 U.S.C. 470
et seq.);
``(ii) Public Law 95-341 (commonly known as the `American
Indian Religious Freedom Act')(42 U.S.C. 1996);
``(iii) the Archaeological Resources Protection Act of 1979
(16 U.S.C. 470aa et seq.);
``(iv) the Native American Graves Protection and
Repatriation Act (25 U.S.C. 3001 et seq.); and
``(v) Public Law 103-141 (commonly known as the `Religious
Freedom Restoration Act of 1993')(42 U.S.C. 2000bb et seq.).
``(d) Withdrawal.--Subject to valid existing rights, all
Federal land within the area administratively withdrawn and
known as the `Indian Pass Withdrawal Area' is permanently
withdrawn from--
``(1) all forms of entry, appropriation, or disposal under
the public laws;
``(2) location, entry, and patent under the mining laws;
and
``(3) right-of-way leasing and disposition under all laws
relating to mineral, solar, wind, and geothermal energy.''.
(b) Conforming Amendments.--
(1) Short title.--Section 1 of the California Desert
Protection Act of 1994 (16 U.S.C. 410aaa note) is amended by
striking ``1 and 2, and titles I through IX'' and inserting
``1, 2, and 3, titles I through IX, and titles XIII through
XIX''.
(2) Definitions.--The California Desert Protection Act of
1994 (Public Law 103-433; 108 Stat. 4481) is amended by
inserting after section 2 the following:
``SEC. 3. DEFINITIONS.
``In titles XIII through XIX:
``(1) Conservation area.--The term `Conservation Area'
means the California Desert Conservation Area.
``(2) Secretary.--The term `Secretary' means--
``(A) with respect to land under the jurisdiction of the
Secretary of the Interior, the Secretary of the Interior; and
``(B) with respect to land under the jurisdiction of the
Secretary of Agriculture, the Secretary of Agriculture.
``(3) State.--The term `State' means the State of
California.''.
(3) Administration of wilderness areas.--Section 103 of the
California Desert Protection Act of 1994 (Public Law 103-433;
108 Stat. 4481) is amended--
(A) by striking subsection (d) and inserting the following:
``(d) No Buffer Zones.--
``(1) In general.--Congress does not intend for the
designation of wilderness areas by this Act--
``(A) to require the additional regulation of land adjacent
to the wilderness areas; or
``(B) to lead to the creation of protective perimeters or
buffer zones around the wilderness areas.
``(2) Nonwilderness activities.--Any nonwilderness
activities (including renewable energy projects, mining,
camping, hunting, and military activities) in areas
immediately adjacent to the boundary of a wilderness area
designated by this Act shall not be restricted or precluded
by this Act, regardless of any actual or perceived negative
impacts of the nonwilderness activities on the wilderness
area, including any potential indirect impacts of
nonwilderness activities conducted outside the designated
wilderness area on the viewshed, ambient noise level, or air
quality of wilderness area.'';
(B) in subsection (f), by striking ``designated by this
title and'' inserting ``, potential wilderness areas, special
management areas, and national monuments designated by this
title or titles XIII through XIX''; and
(C) in subsection (g), by inserting ``, a potential
wilderness area, a special management areas, or national
monument'' before ``by this Act''.
(4) Mojave national preserve.--Title V of the California
Desert Protection Act of 1994 (16 U.S.C. 410aaa-41 et seq.)
is amended by adding at the end the following:
``SEC. 520. NATIVE GROUNDWATER SUPPLIES.
``The Director of the Bureau of Land Management shall not
access or process any application for a right-of-way for
development projects that propose to use native groundwater
from aquifers adjacent to the Mojave National Preserve that
individually or collectively, in combination with proposed or
anticipated projects on private land, require the use of
native groundwater in excess of the estimated recharge rate
as determined by the United States Geological Survey.''.
[[Page S221]]
(5) Amendments to the california military lands withdrawal
and overflights act of 1994.--
(A) Findings.--Section 801(b)(2) of the California Military
Lands Withdrawal and Overflights Act of 1994 (16 U.S.C.
410aaa-82 note) is amended by inserting ``, national
monuments, special management areas, potential wilderness
areas,'' before ``and wilderness areas''.
(B) Overflights; special airspace.--Section 802 of the
California Military Lands Withdrawal and Overflights Act of
1994 (16 U.S.C. 410aaa-82) is amended--
(i) in subsection (a), by inserting ``, national monuments,
or special management areas'' before ``designated by this
Act'';
(ii) in subsection (b), by inserting ``, national
monuments, or special management areas'' before ``designated
by this Act''; and
(iii) by adding at the end the following:
``(d) Department of Defense Facilities.--Nothing in this
Act alters any authority of the Secretary of Defense to
conduct military operations at installations and ranges
within the California Desert Conservation Area that are
authorized under any other provision of law.''.
SEC. 3. DESIGNATION OF WILD AND SCENIC RIVERS.
Section 3(a) of the Wild and Scenic Rivers Act (16 U.S.C.
1274(a)) is amended--
(1) in paragraph (196), by striking subparagraph (A) and
inserting the following:
``(A)(i) The approximately 1.4-mile segment of the Amargosa
River in the State of California, from the private property
boundary in sec. 19, T. 22 N., R. 7 E., to 100 feet
downstream of Highway 178, to be administered by the
Secretary of the Interior as a scenic river as an addition to
the Amargosa Wild and Scenic River on publication by the
Secretary of the Interior of a notice in the Federal Register
that sufficient inholdings within the boundaries of the
segment have been acquired as scenic easements or in fee
title to establish a manageable addition to the Amargosa Wild
and Scenic River.
``(ii) The approximately 6.1-mile segment of the Amargosa
River in the State of California, from 100 feet downstream of
the State Highway 178 crossing to 100 feet upstream of the
Tecopa Hot Springs Road crossing, to be administered by the
Secretary of the Interior as a scenic river.''; and
(2) by adding at the end the following:
``(208) Surprise canyon creek, california.--
``(A) In general.--The following segments of Surprise
Canyon Creek in the State of California, to be administered
by the Secretary of the Interior:
``(i) The approximately 5.3 miles of Surprise Canyon Creek
from the confluence of Frenchman's Canyon and Water Canyon to
100-feet upstream of Chris Wicht Camp, as a wild river.
``(ii) The approximately 1.8 miles of Surprise Canyon Creek
from 100 feet upstream of Chris Wicht Camp to the southern
boundary of sec. 14, T. 21 N., R. 44 E., as a recreational
river.
``(B) Effect on historic mining structures.--Nothing in
this paragraph affects the historic mining structures
associated with the former Panamint Mining District.
``(209) Deep creek, california.--
``(A) In general.--The following segments of Deep Creek in
the State of California, to be administered by the Secretary
of Agriculture:
``(i) The approximately 6.5-mile segment from 0.125 mile
downstream of the Rainbow Dam site in sec. 33, T. 2 N., R. 2
W., to 0.25-miles upstream of the Road 3N34 crossing, as a
wild river.
``(ii) The 0.5-mile segment from 0.25 mile upstream of the
Road 3N34 crossing to 0.25 mile downstream of the Road 3N34
crossing, as a scenic river.
``(iii) The 2.5-mile segment from 0.25 miles downstream of
the Road 3 N. 34 crossing to 0.25 miles upstream of the Trail
2W01 crossing, as a wild river.
``(iv) The 0.5-mile segment from 0.25 miles upstream of the
Trail 2W01 crossing to 0.25 mile downstream of the Trail 2W01
crossing, as a scenic river.
``(v) The 10-mile segment from 0.25 miles downstream of the
Trail 2W01 crossing to the upper limit of the Mojave dam
flood zone in sec. 17, T. 3 N., R. 3 W., as a wild river.
``(vi) The 11-mile segment of Holcomb Creek from 100 yards
downstream of the Road 3N12 crossing to .25 miles downstream
of Holcomb Crossing, as a recreational river.
``(vii) The 3.5-mile segment of the Holcomb Creek from 0.25
miles downstream of Holcomb Crossing to the Deep Creek
confluence, as a wild river.
``(B) Effect on ski operations.--Nothing in this paragraph
affects--
``(i) the operations of the Snow Valley Ski Resort; or
``(ii) the State regulation of water rights and water
quality associated with the operation of the Snow Valley Ski
Resort.
``(210) Whitewater river, california.--The following
segments of the Whitewater River in the State of California,
to be administered by the Secretary of Agriculture and the
Secretary of the Interior, acting jointly:
``(A) The 5.8-mile segment of the North Fork Whitewater
River from the source of the River near Mt. San Gorgonio to
the confluence with the Middle Fork, as a wild river.
``(B) The 6.4-mile segment of the Middle Fork Whitewater
River from the source of the River to the confluence with the
South Fork, as a wild river.
``(C) The 1-mile segment of the South Fork Whitewater River
from the confluence of the River with the East Fork to the
section line between sections 32 and 33, T. 1 S., R. 2 E., as
a wild river.
``(D) The 1-mile segment of the South Fork Whitewater River
from the section line between sections 32 and 33, T. 1 S., R.
2 E., to the section line between sections 33 and 34, T. 1
S., R. 2 E., as a recreational river.
``(E) The 4.9-mile segment of the South Fork Whitewater
River from the section line between sections 33 and 34, T. 1
S., R. 2 E., to the confluence with the Middle Fork, as a
wild river.
``(F) The 5.4-mile segment of the main stem of the
Whitewater River from the confluence of the South and Middle
Forks to the San Gorgonio Wilderness boundary, as a wild
river.
``(G) The 2.7-mile segment of the main stem of the
Whitewater River from the San Gorgonio Wilderness boundary to
the southern boundary of section 26, T. 2 S., R. 3 E., as a
recreational river.''.
______
By Mr. BAUCUS (for himself, Mr. Grassley, Mr. Levin, Mr.
Bingaman, Mr. Wyden, Mr. Conrad, Mr. Enzi, and Mr. Kerry):
S. 139. A bill to provide that certain tax planning strategies are
not patentable, and for other purposes; to the Committee on the
Judiciary.
Mr. BAUCUS. Mr. President, American judge and judicial philosopher
Learned Hand once wrote: ``Any one may so arrange his affairs that his
taxes shall be as low as possible; he is not bound to choose that
pattern which will best pay the Treasury.''
Judge Hand would probably have been surprised to learn that, through
the use of patents, certain individuals have acquired monopolies on
methods of arranging one's affairs to lower taxes.
That is precisely what patenting a tax strategy does: it gives the
holder the exclusive right to exclude others from a particular
transaction or financial arrangement without permission or payment of a
royalty.
And patents have been granted on ideas as simple as funding a certain
type of tax-favored trust with a specific type of financial product or
calculating the ways to minimize the tax burden of converting to an
alternative retirement plan.
These commonsense tax planning approaches should be available to
everyone. No one should be able to patent those techniques.
Let's first assume that the tax planning technique is legitimate
under the Tax Code and does, indeed, reduce taxes.
In that case, every taxpayer should be able to plan in a way that
they can lower their taxes without paying royalties or worrying that
they are violating patent law while filing their tax returns. This is a
matter of fairness and uniform application of the tax laws.
Conversely, there are tax planning techniques that are not legitimate
under the Tax Code, say, for example, a tax shelter designed to
illegally evade taxes.
No taxpayer should be using those strategies. A patent on those ideas
may mislead unknowing taxpayers into believing that the strategy is
valid under the tax law.
Today, we have gathered a coalition of Senators to introduce
legislation to prevent patents from being issued on claims of tax
strategies.
Our bill, the ``Equal Access to Tax Planning Act,'' makes it clear
that any strategy for reducing, avoiding, or deferring tax liability
relies on the provisions of the Tax Code to work, will not be
considered a new or nonobvious idea and therefore not be eligible for a
patent.
In the lingo of the patent law, the Tax Code is ``prior art''--which
is just another way of saying it isn't novel and nonobvious--and
methods of complying with the Code cannot be patented. This would be
the result under patent law whenever an invention was not found to be
novel or nonobvious.
This legislation does not hinder patent protection for otherwise
novel, non-tax driven inventions but only stops the patenting of the
tax strategy claims.
Where a patent is indeed granted--for example, where an application
advances multiple claims--the taxpayer has certainty that what is not
patented is a strategy for applying the Tax Code.
It is encouraging that our bill has been incorporated into the larger
patent bill that is being introduced by Senators Grassley and Leahy
today.
I strongly believe in the importance of patents. America is a land
that fosters innovation and competitiveness by
[[Page S222]]
allowing inventors to benefit from their creative ideas.
Intellectual property drives our exports and our economy. But patents
cannot be used to upset the fair and uniform application of the Tax
Code.
Our tax system relies on the voluntary compliance of millions of
taxpayers and the Tax Code cannot and should not be co-opted for
private gain.
Mr. GRASSLEY. Mr. President, Senator Baucus and I first introduced a
bill to ban patents for tax inventions in the 110th Congress. Since
then, we have worked with the leaders of the Judiciary Committee, the
Patent and Trademark Office, the American Institute of Certified Public
Accountants, industry, and members of the patent bar to perfect the
language. I am pleased to introduce this new and improved bill today
with Senators Baucus, Levin, Wyden, Bingaman, Conrad, Enzi, and Kerry.
There are strong policy reasons to ban tax strategy patents. Tax
strategy patents may lead to the marketing of aggressive tax shelters
or otherwise mislead taxpayers about expected results. Tax strategy
patents encumber the ability of taxpayers and their advisers to use the
tax law freely, interfering with the voluntary tax compliance system.
If firms or individuals were able to hold patents for these strategies,
some taxpayers could face fees simply for complying with the Tax Code.
And, tax patents provide windfalls to lawyers and patent holders by
granting them exclusive rights to use tax loopholes, which could
provide some businesses with an unfair advantage.
Tax strategy patents are unlikely to be novel given the public nature
of the Tax Code. Moreover, tax strategy patents may undermine the
fairness of the Federal tax system by removing from the public domain
particular ways of satisfying a taxpayer's legal obligations. The Equal
Access to Tax Planning Act expressly provides that a strategy for
reducing, avoiding or deferring tax liability cannot be considered a
new or nonobvious idea, and therefore, a patent on a tax strategy
cannot be obtained. This ensures that all taxpayers will have equal
access to strategies to comply with the Tax Code. I encourage support
for this bill.
______
By Mr. KIRK (for himself and Mr. Durbin):
S. 147. A bill to amend the Federal Water Pollution Control Act to
establish a deadline for restricting sewage dumping into the Great
Lakes and to fund programs and activities for improving wastewater
discharges into the Great Lakes; to the Committee on Environment and
Public Works.
Mr. KIRK. Mr. President, today I am pleased to join with Senator
Durbin to introduce the Great Lakes Water Protection Act. This
bipartisan legislation would set a date certain to end sewage dumping
in America's largest supply of fresh water, the Great Lakes. More than
thirty million Americans depend on the Great Lakes for their drinking
water, food, jobs, and recreation. We need to put a stop to the
poisoning of our water supply. Cities along the Great Lakes must become
environmental stewards of our country's most precious freshwater
ecosystem.
The Great Lakes Water Protection Act gives cities until 2031 to build
the full infrastructure needed to prevent sewage dumping into the Great
Lakes. Those who violate EPA sewage dumping regulations after that
federal deadline will be subject to fines up to $100,000 for each day a
violation occurs. These fines will be directed to a newly established
Great Lakes Clean-Up Fund within the Clean Water State Revolving Fund.
Penalties collected would go into this fund and be reallocated to the
states surrounding the Great Lakes. From there, the funds will be spent
on wastewater treatment options, with a special focus on greener
solutions such as habitat protection and wetland restoration.
This legislation is sorely needed. Many major cities along the Great
Lakes do not have the infrastructure needed to divert sewage overflows
during times of heavy rainfall. More than twenty-four billion gallons
of sewage are dumped into the Lakes each year; Detroit alone dumps an
estimated 13 billion gallons of sewage into the Great Lakes annually.
EPA estimates show there is a total of 347 combined sewer outflows that
discharge into the Lake Michigan basin alone. This development is
echoed throughout the Great Lakes region and is one we need to reverse.
These disastrous practices result in thousands of annual beach
closing for the region's 815 freshwater beaches. Illinois faced 628
beach closures or contamination advisories in 2009 alone, up 17 percent
from 2008. This greatly affects the health of our children and
families--a recent University of Chicago study showed swim bans at
Chicago's beaches due to E. coli levels cost the local economy $2.4
million in lost revenue every year.
Protecting our Great Lakes is one of my top priorities in the
Congress. As an original sponsor of the Great Lakes Restoration Act, I
favor a broad approach to addressing needs in the region. However, we
must also move forward with tailored approaches to fix specific
problems as we continue to push for more comprehensive reform. I am
proud to introduce this important legislation that addresses a key
problem facing our Great Lakes, and hope my colleagues will support me
in ensuring that these important resources become free from the threat
of sewage pollution.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 147
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Great Lakes Water Protection
Act''.
SEC. 2. PROHIBITION ON SEWAGE DUMPING INTO THE GREAT LAKES.
Section 402 of the Federal Water Pollution Control Act (33
U.S.C. 1342) is amended by adding at the end the following:
``(s) Prohibition on Sewage Dumping Into the Great Lakes.--
``(1) Definitions.--In this subsection:
``(A) Bypass.--The term `bypass' means an intentional
diversion of waste streams to bypass any portion of a
treatment facility which results in a discharge into the
Great Lakes.
``(B) Great lakes.--The term `Great Lakes' has the meaning
given the term in section 118(a)(3).
``(C) Treatment facility.--The term `treatment facility'
includes all wastewater treatment units used by a publicly
owned treatment works to meet secondary treatment standards
or higher, as required to attain water quality standards,
under any operating conditions.
``(D) Treatment works.--The term `treatment works' has the
meaning given the term in section 212.
``(2) Prohibition.--A publicly owned treatment works is
prohibited from intentionally diverting waste streams to
bypass any portion of a treatment facility at the treatment
works if the diversion results in a discharge into the Great
Lakes unless--
``(A)(i) the bypass is unavoidable to prevent loss of life,
personal injury, or severe property damage;
``(ii) there is not a feasible alternative to the bypass,
such as the use of auxiliary treatment facilities, retention
of untreated wastes, or maintenance during normal periods of
equipment downtime; and
``(iii) the treatment works provides notice of the bypass
in accordance with this subsection; or
``(B) the bypass does not cause effluent limitations to be
exceeded, and the bypass is for essential maintenance to
ensure efficient operation of the treatment facility.
``(3) Limitation.--The requirement of paragraph (2)(A)(ii)
is not satisfied if--
``(A) adequate back-up equipment should have been installed
in the exercise of reasonable engineering judgment to prevent
the bypass; and
``(B) the bypass occurred during normal periods of
equipment downtime or preventive maintenance.
``(4) Notice requirements.--A publicly owned treatment
works shall provide to the Administrator (or to the State, in
the case of a State that has a permit program approved under
this section)--
``(A) prior notice of an anticipated bypass; and
``(B) notice of an unanticipated bypass by not later than
24 hours after the time at which the treatment works first
becomes aware of the bypass.
``(5) Follow-up notice requirements.--In the case of an
unanticipated bypass for which a publicly owned treatment
works provides notice under paragraph (4)(B), the treatment
works shall provide to the Administrator (or to the State in
the case of a State that has a permit program approved under
this section), not later than 5 days following the date on
which the treatment works first becomes aware of the bypass,
a follow-up notice containing a description of--
``(A) the cause of the bypass;
[[Page S223]]
``(B) the reason for the bypass;
``(C) the period of bypass, including the exact dates and
times;
``(D) if the bypass has not been corrected, the anticipated
time the bypass is expected to continue;
``(E) the volume of the discharge resulting from the
bypass;
``(F) any public access areas that may be impacted by the
bypass; and
``(G) steps taken or planned to reduce, eliminate, and
prevent reoccurrence of the bypass.
``(6) Public availability of notices.--A publicly owned
treatment works providing a notice under this subsection, and
the Administrator (or the State, in the case of a State that
has a permit program approved under this section) receiving
such a notice, shall each post the notice, by not later than
48 hours after providing or receiving the notice (as the case
may be), in a searchable database accessible on the Internet.
``(7) Sewage blending.--Bypasses prohibited by this section
include bypasses resulting in discharges from a publicly
owned treatment works that consist of effluent routed around
treatment units and thereafter blended together with effluent
from treatment units prior to discharge.
``(8) Implementation.--Not later than 180 days after the
date of enactment of this subsection, the Administrator shall
establish procedures to ensure that permits issued under this
section (or under a State permit program approved under this
section) to a publicly owned treatment works include
requirements to implement this subsection.
``(9) Increase in maximum civil penalty for violations
occurring after january 1, 2031.--Notwithstanding section
309, in the case of a violation of this subsection occurring
on or after January 1, 2031, or any violation of a permit
limitation or condition implementing this subsection
occurring after such date, the maximum civil penalty that
shall be assessed for the violation shall be $100,000 per day
for each day the violation occurs.
``(10) Applicability.--This subsection shall apply to a
bypass occurring after the last day of the 1-year period
beginning on the date of enactment of this subsection.''.
SEC. 3. ESTABLISHMENT OF GREAT LAKES CLEANUP FUND.
(a) In General.--Title V of the Federal Water Pollution
Control Act (33 U.S.C. 1361 et seq.) is amended--
(1) by redesignating section 519 (33 U.S.C. 1251 note) as
section 520; and
(2) by inserting after section 518 (33 U.S.C. 1377) the
following:
``SEC. 519. ESTABLISHMENT OF GREAT LAKES CLEANUP FUND.
``(a) Definitions.--In this section:
``(1) Fund.--The term `Fund' means the Great Lakes Cleanup
Fund established by subsection (b).
``(2) Great lakes; great lakes states.--The terms `Great
Lakes' and `Great Lakes States' have the meanings given the
terms in section 118(a)(3).
``(b) Establishment of Fund.--There is established in the
Treasury of the United States a trust fund to be known as the
`Great Lakes Cleanup Fund' (in this section referred to as
the `Fund').
``(c) Transfers to Fund.--Effective January 1, 2031, there
are authorized to be appropriated to the Fund amounts
equivalent to the penalties collected for violations of
section 402(s).
``(d) Administration of Fund.--The Administrator shall
administer the Fund.
``(e) Use of Funds.--The Administrator shall--
``(1) make the amounts in the Fund available to the Great
Lakes States for use in carrying out programs and activities
for improving wastewater discharges into the Great Lakes,
including habitat protection and wetland restoration; and
``(2) allocate those amounts among the Great Lakes States
based on the proportion that--
``(A) the amount attributable to a Great Lakes State for
penalties collected for violations of section 402(s); bears
to
``(B) the total amount of those penalties attributable to
all Great Lakes States.
``(f) Priority.--In selecting programs and activities to be
funded using amounts made available under this section, a
Great Lakes State shall give priority consideration to
programs and activities that address violations of section
402(s) resulting in the collection of penalties.''.
(b) Conforming Amendment to State Revolving Fund Program.--
Section 607 of the Federal Water Pollution Control Act (33
U.S.C. 1387) is amended--
(1) by inserting ``(a) In General.--'' before ``There is'';
and
(2) by adding at the end the following:
``(b) Treatment of Great Lakes Cleanup Fund.--For purposes
of this title, amounts made available from the Great Lakes
Cleanup Fund under section 519 shall be treated as funds
authorized to be appropriated to carry out this title and as
funds made available under this title, except that the funds
shall be made available to the Great Lakes States in
accordance with section 519.''.
Mr. DURBIN. Mr. President, today I am introducing the Great Lakes
Water Protection Act with my colleague, Senator Mark Kirk.
We face many challenges in protecting the Great Lakes--from
contaminated sediment to industrial pollutants to invasive species.
This legislation tackles another significant threat to the water system
municipal sewage.
A recent report found that from January 2009 through January 2010,
five U.S. cities dumped a combined 41 billion gallons of waste water
into the Great Lakes. Sewage and storm water discharges have been
associated with elevated levels of bacterial pollutants. For the 40
million people who depend on the Great Lakes for their drinking water,
that is no small matter.
When bacterial counts go too high, beaches have to be closed. In
Illinois, we have 52 public beaches along the Lake Michigan shoreline.
People use these beaches for swimming, boating, fishing--and many
communities generate revenue from the public beaches.
Our legislation will quadruple fines for municipalities that dump raw
sewage in the Great Lakes and direct the revenue from these penalties
to projects that improve water quality. The bill also includes new
reporting requirements that will provide a more complete understanding
of the frequency and impact of sewage dumping on this critical water
system.
The Great Lakes are a national treasure. Illinoisans know that. They
want to protect Lake Michigan, and they are willing to fight for the
lake. Three and a half years ago, when we learned that BP was planning
to increase the pollutants it puts into Lake Michigan--the people of
Illinois stood up and said: No, polluting our lake further is not an
option.
Senator Kirk and I happen to agree with that message. Protecting the
Great Lakes is not a partisan issue, and this is not a partisan bill.
We intend to work together to ensure that this national treasure is
around for generations, providing drinking water, recreation, and
commerce for Illinois and other Great Lakes States.
______
By Mr. REID (for Mrs. Feinstein):
S. 149. A bill to extend the expiring provisions of the USA PATRIOT
Improvement and Reauthorization Act of 2005, the Intelligence Reform
and Terrorism Prevention Act of 2004, and the FISA Amendments Act of
2008 until December 31, 2013, and for other purposes; to the Committee
on the Judiciary.
Mrs. FEINSTEIN. Mr. President, today I am introducing the FISA
Sunsets Extension Act of 2011 to extend the three expiring provisions
of the Foreign Intelligence Surveillance Act--the authority to conduct,
subject to court order, so-called ``roving wiretaps,'' ``lone wolf''
surveillance, and collection of business records. This legislation will
extend these three authorities, otherwise set to expire on February 28,
to December 31, 2013.
The bill will also change the expiration date of the intelligence
collection authorities provided in the FISA Amendments Act of 2008 so
they, too, last until the end of 2013.
I firmly believe that the United States Government needs these
authorities to help prevent against future terrorist attacks against
our nation and to collect vital intelligence insights into the
capabilities and intentions of our adversaries. We remain a nation
under threat and need to remain vigilant in our defense.
Let me briefly describe the three expiring provisions.
First, court-ordered roving authority is directed against foreign
intelligence targets who attempt to thwart FISA surveillance by such
actions as rapidly changing cell phones. In a September 2009 letter,
the Department of Justice reported to Congress that this authority
``has proven an important intelligence-gathering tool in a small but
significant subset of FISA electronic surveillance orders.''
Second, lone wolf authority allows for court-ordered collection
against non-U.S. persons who engage in international terrorism but for
whom an association with a specific international terrorist group has
not yet been identified. In the last Congress, when the Department of
Justice advised that it had not yet been necessary for the Government
to use this authority, the Department stated that it could foresee
circumstances in which a terrorist target had not actually contacted a
terrorist group or was known to have severed his association from a
terrorist group.
From the events of the last several years, we have all become aware
that we may be attacked by a lone, unaffiliated terrorist--or one whose
links to
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terrorist groups are only clear after an individual is apprehended.
Third, the collection of business records pursuant to court orders.
This provision allows the Government to require the production of
``tangible things'' in order to obtain foreign intelligence information
as part of an investigation. In the September 2009 letter, the
Department of Justice urged reauthorization of that authority because
``[t]he absence of such authority could force the FBI to sacrifice key
intelligence opportunities.''
I cannot elaborate into the use of these authorities in this
unclassified context. I can say, however, that as the Chairman of the
Senate Select Committee on Intelligence and as one who reviews the
intelligence on the threats we face, we remain a nation under attack.
Providing the authorities to collect intelligence to identify and
prevent terrorist attacks on the homeland remains necessary.
It is also important to allow Congress, in the future, to conduct a
complete review of FISA provisions. By synchronizing the dates when
different pieces of the law expire, Congress can consider changes to
FISA at once, prior to the end of 2013.
In closing, l would like to assure all Members of the Senate and the
American public that extending these sunsets does not shield them from
oversight. There is a system of review and oversight in place that
consists of the FISA Court, Inspectors General in the Department of
Justice and in the intelligence community, regular oversight reviews by
the National Security Division at the Department of Justice, a new
Director of Compliance at the National Security Agency, and reporting
to the Senate and House Intelligence and Judiciary Committees. As
Chairman of the Senate Select Committee and as a member of the
Judiciary Committee, I can assure colleagues that the Senate has
placed, and will continue to place, oversight of the Government's
surveillance authorities as a major priority.
I urge my colleagues to support this legislation.
______
By Mr. ROCKEFELLER (for himself, Mr. Harkin, Mrs. Murray, and Mr.
Manchin):
S. 153. A bill to improve compliance with mine and occupational
safety and health laws, empower workers to raise safety concerns,
prevent future mine and other workplace tragedies, establish rights of
families of victims of workplace accidents, and for other purposes; to
the Committee on Health, Education, Labor, and Pensions.
Mr. ROCKEFELLER. Mr. President, today I am proud to introduce the
Robert C. Byrd Mine and Workplace Safety and Health Act of 2011. This
legislation is identical to the bill I introduced last Congress with
Senator Carte Goodwin and will afford miners in West Virginia and
employees across the country the safest possible workplace, which is
what they deserve. As I have mentioned before, this legislation is a
tribute to all miners who have lost their lives and also to my dear
friend and colleague, the late Senator Robert Byrd, who devoted his
career to improving the working conditions of West Virginia's miners
and worked diligently with me to develop this bill.
I am also very pleased that Senators Tom Harkin, Patty Murray, and
Joe Manchin are joining me in cosponsoring this legislation. Chairman
Harkin and Senator Murray are strong advocates for America's workforce
and worked closely with me to draft this bill. Their contributions and
expertise on this issue are immeasurable. Senator Manchin and I also
have a history of working together, when he was Governor, to improve
the safety of West Virginia's mining community. We were there with the
families after the Sago, Aracoma, and Upper Big Branch tragedies, and I
know that he shares my commitment to keeping miners safe.
I firmly believe that every American deserves a safe and healthy work
environment. No family should have to experience the sadness and grief
that is felt by the families of Upper Big Branch victims. Sadly, the
Upper Big Branch families are still waiting. They are waiting for
answers regarding this horrible tragedy. And, they are waiting for
Congress to do even more to strengthen the mine safety laws of the
land.
The Upper Big Branch tragedy and several other high-profile workplace
accidents around the country last year serve as stark reminders of the
need to make sure that all workers can return home to their loved ones
at the end of the day. Yet, these types of tragedies are far too
common. Each year, thousands of employees die on the job and millions
more are injured or become ill. These fatalities, injuries, and
illnesses result not only in loss of life and quality of life, but also
substantial costs for employers. It is in everyone's interest to
improve the safety and health of America's workforce.
I also know that improving the safety of our workforce will require
hard work and dedication by everyone involved including state and
federal officials, businesses, unions, employees, and safety experts.
Here in the Senate, I am committed to working with my colleagues on
both sides of the aisle--there is no question that we must work
together to find real solutions that will save lives in mining and
other industries in our country. I have no doubt that we will continue
to learn more about the Upper Big Branch disaster as the investigations
move forward. But I also know that there are several areas of the law
that we can work to fix right now. These improvements will make us more
proactive in identifying hazards before they become fatal, foster
cooperation between employers and employees to keep everyone safe,
improve the efficiency and effectiveness of our regulators, and
increase the accountability for those responsible for keeping our
workforce safe.
The Robert C. Byrd Mine and Workplace Safety and Health Act of 2011
takes important steps to empower miners to report safety concerns and
keep themselves and their coworkers safe. Specifically, it gives
whistleblowers up to 180 days to file a complaint if they have been
retaliated against, permits the assessment of punitive damages and
criminal penalties against operators that retaliate against miners who
report safety problems, makes sure that miners do not lose a paycheck
when their mines are shut down for safety reasons, and allows miners to
give private interviews to MSHA without the operator or union
representative present, so that they can speak openly about
investigations.
Our legislation allows MSHA to be more effective and efficient in its
enforcement of our mine safety laws, while also increasing
accountability and making sure that the agency is doing everything in
its power to keep miners safe. Importantly, it expands MSHA's authority
to subpoena documents and testimony, seek injunctions to stop dangerous
acts, and implement additional safety training at unsafe mines. It also
creates an independent panel to determine MSHA's role in serious
accidents, and requires that MSHA conduct its inspections in a way that
protects every miner regardless of when the miner's shift occurs.
Another key piece of this bill is the section that reforms the broken
``pattern of violations'' process and requires MSHA to focus on
rehabilitating unsafe mines. The original pattern of violations process
was meant to allow MSHA to take additional action against mines that
repeatedly violate our laws, but unfortunately it has never been
effectively implemented. This bill requires unsafe mines to adopt
safety plans, undergo additional safety inspections, and meet specific
safety improvement benchmarks. To make sure that MSHA's pattern of
violations criteria accurately identifies unsafe mines, the Government
Accountability Office will evaluate the implementation of MSHA's new
criteria.
I know that Secretary Hilda Solis and Assistant Secretary Joe Main
have made mine safety a priority, and I deeply appreciate their work.
They are currently examining proposals to administratively change how
the pattern of violations process is used, and I support them in those
efforts. But ultimately, there is only so much that MSHA can do under
existing statute, which is why I believe that Congress must address
this matter legislatively.
We also know that workplace disasters are not confined to the mining
industry, which is why our bill provides important, protections for
workers across all industries under the jurisdiction of the
Occupational Safety and
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Health Administration. This legislation allows employees to refuse to
perform unsafe life-threatening work, updates civil penalties that have
not been increased in two decades, gives victims and their families a
voice in the investigation and enforcement process, requires employers
to immediately correct hazardous conditions in the workplace, and
improves whistleblower protections for employees.
With these common-sense reforms, we can keep workers safe on the job,
while also reducing the costs associated with occupational injuries and
illnesses. By doing so, we can save lives, help employers save money,
improve productivity, and increase the competitiveness of our
workforce.
I hope that my colleagues will carefully consider this legislation
and that we can work together on a bipartisan basis to pass meaningful
mine and workplace safety legislation this Congress. After the Sago and
Aracoma disasters, the Senate passed the MINER Act with strong
bipartisan support. We showed then that we can get the job done, and I
am confident that we can do it again.
______
By Mr. KOHL (for himself and Mr. Brown of Ohio):
S. 154. A bill to authorize the Secretary of Education to make grants
to support early college high schools and other dual enrollment
programs; to the Committee on Health, Education, Labor, and Pensions.
Mr. KOHL. Mr. President, today I am reintroducing the Fast Track to
College Act, a bill to support the expansion of dual enrollment
programs and Early College High Schools. Such programs allow young
people to earn up to two years of college credit while also earning
their high school diploma.
I believe the key to our country's economic recovery is a strong
investment in our young people. By investing in education, we ensure
that today's students are well prepared to compete in a global economy.
Far too many of our students are falling behind in school, and as
students struggle with their studies or drop out of school altogether,
their futures and the health of our workforce are at risk. Young people
who drop out of high school are at increased risk for negative outcomes
such as unemployment and incarceration, as well as reliance on public
assistance for healthcare, housing, and other basic needs--outcomes
that have high costs for their communities and our economy. Conversely,
adults who earn bachelor's degrees earn on average two-thirds more than
high school graduates and $1 million more than high school dropouts
over their working lives.
Studies show many youth drop out because they don't see a practical
reason to complete high school or go on to get a college degree. Maybe
they don't think they can get into college, don't think they can afford
to go, or just don't see the point in going. Dual enrollment programs
and Early College High Schools address these issues by showing students
that they can succeed in college courses while saving time and money.
They don't drop out because they can see that they are on track to a
degree--and ultimately a job. By earning college credit, and possibly
even an Associate's Degree, students are better prepared after high
school to continue their education or pursue career training.
That is why I ask my colleagues to support this bill, which provides
competitive grant funding for Early College High Schools and other dual
enrollment programs that allow low-income students to earn college
credit and a high school diploma at the same time. These programs put
students on the fast track to college and increase the odds that they
will not only graduate, but also go on to continue their education and
secure higher-paying jobs.
This bill authorizes $140,000,000 for competitive 6-year grants to
schools, with priority given to schools that serve low-income students.
The funding will help defray the costs of implementing new programs,
strengthening existing programs, and providing students and teachers
with the resources they need to succeed in early college high schools
and other dual enrollment programs. The bill also includes $10 million
for states to provide support for these programs, as well as an
evaluation component so we can measure the program's effectiveness.
I am proud to sponsor this legislation, with the support of Senator
Brown of Ohio, because I believe this investment in our schools will
help solve the dropout crisis and secure America's future by ensuring
that all young people can compete in today's global economy. Further, I
believe that all children, regardless of income or other factors,
deserve equal opportunities to fulfill their potential, and it is both
morally and fiscally responsible for this Congress to invest in high-
quality educational programs that help our youth reach their potential.
I urge my colleagues to support this important legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 154
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fast Track to College Act of
2011''.
SEC. 2. PURPOSE.
The purpose of this Act is to increase secondary school
graduation rates and the percentage of students who complete
a recognized postsecondary credential by the age of 26,
including among low-income students and students from other
populations underrepresented in higher education.
SEC. 3. DEFINITIONS.
In this Act:
(1) Dual enrollment program.--The term ``dual enrollment
program'' means an academic program through which a secondary
school student is able simultaneously to earn credit toward a
secondary school diploma and a postsecondary degree or
credential.
(2) Early college high school.--The term ``early college
high school'' means a public secondary school, as defined in
section 9101 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801), that provides a course of study that
enables a student to earn a secondary school diploma and
either an associate's degree or 1 to 2 years of postsecondary
credit toward a postsecondary degree or credential.
(3) Eligible entity.--The term ``eligible entity'' means a
local educational agency in a collaborative partnership with
an institution of higher education. Such partnership also may
include other entities, such as a nonprofit organization with
experience in youth development.
(4) Institution of higher education.--The term
``institution of higher education'' has the meaning given
such term in section 101 of the Higher Education Act of 1965
(20 U.S.C. 1001).
(5) Local educational agency.--The term ``local educational
agency'' has the meaning given such term in section 9101 of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801).
(6) Secretary.--The term ``Secretary'' means the Secretary
of Education.
(7) Low-income student.--The term ``low-income student''
means a student who meets a measure of poverty described in
section 1113(a)(5) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 6313(a)(5)).
SEC. 4. AUTHORIZATION OF APPROPRIATIONS; RESERVATIONS.
(a) In General.--To carry out this Act, there are
authorized to be appropriated $150,000,000 for fiscal year
2012 and such sums as may be necessary for each of fiscal
years 2013-2017.
(b) Early College High Schools.--The Secretary shall
reserve not less than 45 percent of the funds appropriated
under subsection (a) to support early college high schools
under section 5.
(c) Other Dual Enrollment Programs.--The Secretary shall
reserve not less than 45 percent of such funds to support
other dual enrollment programs (not including early college
high schools) under section 5.
(d) State Grants.--The Secretary shall reserve 10 percent
of such funds, or $10,000,000, whichever is less, for grants
to States under section 9.
SEC. 5. AUTHORIZED PROGRAM.
(a) In General.--The Secretary is authorized to award, on a
competitive basis, 6-year grants to eligible entities seeking
to establish a new, or support an existing, early college
high school or other dual enrollment program.
(b) Grant Amount.--The Secretary shall ensure that each
grant under this section is of sufficient size to enable
grantees to carry out all required activities and otherwise
meet the purposes of this Act, except that a grant under this
section may not exceed $2,000,000.
(c) Matching Requirement.--
(1) In general.--An eligible entity shall contribute
matching funds toward the costs of the early college high
school or other dual enrollment program to be supported under
this section, of which not less than half shall be from non-
Federal sources, which funds shall represent not less than
the following:
(A) 20 percent of the grant amount received in each of the
first and second years of the grant.
[[Page S226]]
(B) 30 percent in each of the third and fourth years.
(C) 40 percent in the fifth year.
(D) 50 percent in the sixth year.
(2) Determination of amount contributed.--The Secretary
shall allow an eligible entity to satisfy the requirements of
this subsection through in-kind contributions.
(d) Supplement, Not Supplant.--An eligible entity shall use
a grant received under this section only to supplement funds
that would, in the absence of such grant, be made available
from non-Federal funds for support of the activities
described in the eligible entity's application under section
7, and not to supplant such funds.
(e) Priority.--In awarding grants under this section, the
Secretary shall give priority to applicants--
(1) that propose to establish or support an early college
high school or other dual enrollment program that will serve
a student population of which 40 percent or more are students
counted under section 1113(a)(5) of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6313(a)(5)); and
(2) from States that provide assistance to early college
high schools or other dual enrollment programs, such as
assistance to defray the costs of higher education, such as
tuition, fees, and textbooks.
(f) Geographic Distribution.--The Secretary shall, to the
maximum extent practicable, ensure that recipients of grants
under this section are from a representative cross-section of
urban, suburban, and rural areas.
SEC. 6. USE OF FUNDS.
(a) Mandatory Activities.--An eligible entity shall use
grant funds received under section 5 to support the
activities described in its application under section 7,
including the following:
(1) Planning year.--In the case of a new early college high
school or other dual enrollment program, during the first
year of the grant--
(A) hiring a principal and staff, as appropriate;
(B) designing the curriculum and sequence of courses in
collaboration with, at a minimum, teachers from the local
educational agency and faculty from the partner institution
of higher education;
(C) informing parents and the community about the school or
program and opportunities to become actively involved in the
school or program;
(D) establishing a course articulation process for defining
and approving courses for secondary school credit and credit
toward a postsecondary degree or credential;
(E) outreach programs to ensure that secondary school
students and their families are aware of the school or
program;
(F) liaison activities among partners in the eligible
entity; and
(G) coordinating secondary and postsecondary support
services, academic calendars, and transportation.
(2) Implementation period.--During the remainder of the
grant period--
(A) academic and social support services, including
counseling;
(B) liaison activities among partners in the eligible
entity;
(C) data collection and use of such data for student and
instructional improvement and program evaluation;
(D) outreach programs to ensure that secondary school
students and their families are aware of the early college
high school or other dual enrollment program;
(E) professional development, including joint professional
development for secondary school personnel and faculty from
the institution of higher education; and
(F) school or program design and planning team activities,
including curriculum development.
(b) Allowable Activities.--An eligible entity may use grant
funds received under section 5 to support the activities
described in its application under section 7, including--
(1) purchasing textbooks and equipment that support the
curriculum of the early college high school or other dual
enrollment program;
(2) developing learning opportunities for students that
complement classroom experiences, such as internships,
career-based capstone projects, and opportunities to
participate in the activities provided under chapters 1 and 2
of subpart 2 of part A of title IV of the Higher Education
Act of 1965 (20 U.S.C. 1070a-11 et seq., 1070a-21 et seq.);
(3) transportation; and
(4) planning time for secondary school educators and
educators from an institution of higher education to
collaborate.
SEC. 7. APPLICATION.
(a) In General.--To receive a grant under section 5, an
eligible entity shall submit to the Secretary an application
at such time, in such manner, and including such information
as the Secretary may require.
(b) Contents of Application.--At a minimum, the application
described in subsection (a) shall include a description of--
(1) the budget of the early college high school or other
dual enrollment program;
(2) each partner in the eligible entity and the partner's
experience with early college high schools or other dual
enrollment programs, key personnel from each partner and such
personnel's responsibilities for the school or program, and
how the eligible entity will work with secondary and
postsecondary teachers, other public and private entities,
community-based organizations, businesses, labor
organizations, and parents to ensure that students will be
prepared to succeed in postsecondary education and
employment, which may include the development of an advisory
board;
(3) how the eligible entity will target and recruit at-risk
youth, including those at risk of dropping out of school,
students who are among the first generation in their family
to attend an institution of higher education, and students
from populations described in section 1111(b)(2)(C)(v)(II) of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
6311(b)(2)(C)(v)(II));
(4) a system of student supports, including small group
activities, tutoring, literacy and numeracy skill development
in all academic disciplines, parental and community outreach
and engagement, extended learning time, and activities to
improve readiness for postsecondary education, such as
academic seminars and counseling;
(5) in the case of an early college high school, how a
graduation and career plan will be developed, consistent with
State graduation requirements, for each student and reviewed
each semester;
(6) how parents or guardians of students participating in
the early college high school or other dual enrollment
program will be informed of the students' academic
performance and progress and, if required under paragraph
(5), involved in the development of the students' career and
graduation plans;
(7) coordination between the institution of higher
education and the local educational agency, including
regarding academic calendars, provision of student services,
curriculum development, and professional development;
(8) how the eligible entity will ensure that teachers in
the early college high school or other dual enrollment
program--
(A) receive appropriate professional development and other
supports, including professional development and supports to
enable the teachers to utilize effective parent and community
engagement strategies; and
(B) help English-language learners, students with
disabilities, and students from diverse cultural backgrounds
to succeed;
(9) learning opportunities for students that complement
classroom experiences, such as internships, career-based
capstone projects, and opportunities to participate in the
activities provided under chapters 1 and 2 of subpart 2 of
part A of title IV of the Higher Education Act of 1965 (20
U.S.C. 1070a-11 et seq., 1070a-21 et seq.);
(10) how policies, agreements, and the courses in the
program will ensure that postsecondary credits earned will be
transferable to, at a minimum, public institutions of higher
education within the State, consistent with existing
statewide articulation agreements (as of the time of the
application);
(11) student assessments and other measurements of student
achievement, including benchmarks for student achievement;
(12) outreach programs to provide elementary and secondary
school students, especially those in middle grades, and their
parents, teachers, school counselors, and principals with
information about, and academic preparation for, the early
college high school or other dual enrollment program;
(13) how the local educational agency and institution of
higher education will work together, as appropriate, to
collect and use data for student and instructional
improvement and program evaluation;
(14) how the eligible entity will help students meet
eligibility criteria for postsecondary courses and ensure
that students understand how their credits will transfer; and
(15) how the eligible entity will access and leverage
additional resources necessary to sustain the early college
high school or other dual enrollment program after the grant
expires, including by engaging businesses and non-profit
organizations.
(c) Assurances.--An eligible entity's application under
subsection (a) shall include assurances that--
(1) in the case of an early college high school, the
majority of courses offered, including of postsecondary
courses, will be offered at facilities of the partnering
institution of higher education;
(2) students will not be required to pay tuition or fees
for postsecondary courses offered as part of the early
college high school or other dual enrollment program;
(3) upon completion of the requisite coursework, each
student shall receive an official record of postsecondary
credits that have been earned;
(4) faculty teaching such postsecondary courses meet the
normal standards for faculty established by the institution
of higher education.
(d) Waiver.--The Secretary may waive the requirement of
subsection (c)(1) upon a showing that it is impractical to
apply due to geographic considerations.
SEC. 8. PEER REVIEW.
(a) Peer Review of Applications.--The Secretary shall
establish peer review panels to review applications submitted
pursuant to section 7 and to advise the Secretary regarding
such applications.
(b) Composition of Peer Review Panels.--The Secretary shall
ensure that each peer review panel is not comprised wholly of
full-time officers or employees of the Federal Government and
includes, at a minimum--
(1) experts in the establishment and administration of
early college high schools or other dual enrollment programs
from the secondary and postsecondary perspective;
[[Page S227]]
(2) faculty at institutions of higher education and
secondary school teachers with expertise in dual enrollment;
and
(3) experts in the education of students who may be at risk
of not completing their secondary school education.
SEC. 9. GRANTS TO STATES.
(a) In General.--The Secretary is authorized to award, on a
competitive basis, 5-year grants to State agencies
responsible for secondary or postsecondary education for
efforts to support or establish early college high schools or
other dual enrollment programs.
(b) Grant Amount.--The Secretary shall ensure that each
grant awarded under this section is of sufficient size to
enable the grantee to carry out all required activities.
(c) Matching Requirement.--A State receiving a grant under
this section shall contribute matching funds from non-Federal
sources toward the costs of carrying out activities under
this section, which funds shall represent not less than 50
percent of the grant amount received in each year of the
grant.
(d) Priority.--In awarding grants under this section, the
Secretary shall give priority to States that, as of the time
of the application for the grant, provide assistance to early
college high schools or other dual enrollment programs, such
as assistance to defray the costs of higher education, such
as tuition, fees, and textbooks.
(e) Application.--
(1) In general.--To receive a grant under this section, a
State agency shall submit to the Secretary an application at
such time, in such manner, and including such information as
the Secretary may require.
(2) Contents of application.--At a minimum, the application
described in paragraph (1) shall include a description of--
(A) how the State will carry out all of the required State
activities described in subsection (f);
(B) how the State will identify and eliminate barriers to
implementing effective early college high schools and other
dual enrollment programs after the grant expires, including
by engaging businesses and non-profit organizations; and
(C) how the State will access and leverage additional
resources necessary to sustain early college high schools or
other dual enrollment programs.
(f) State Activities.--A State receiving a grant under this
section shall use such funds for--
(1) creating outreach programs to ensure that secondary
school students, their families, and community members are
aware of early college high schools and other dual enrollment
programs in the State;
(2) planning and implementing a statewide strategy for
expanding access to early college high schools and other dual
enrollment programs for students who are underrepresented in
higher education to raise statewide rates of secondary school
graduation, readiness for postsecondary education, and
completion of postsecondary degrees and credentials, with a
focus on at-risk students, including identifying any
obstacles to such a strategy under State law or policy;
(3) providing technical assistance to early college high
schools and other dual enrollment programs, such as brokering
relationships and agreements that forge a strong partnership
between elementary and secondary and postsecondary partners;
(4) identifying policies that will improve the
effectiveness and ensure the quality of early college high
schools and other dual enrollment programs, such as access,
funding, data and quality assurance, governance,
accountability, and alignment policies;
(5) planning and delivering statewide training and peer
learning opportunities for school leaders and teachers from
early college high schools and other dual enrollment
programs, which may include providing instructional coaches
who offer on-site guidance;
(6) disseminating best practices in early college high
schools and other dual enrollment programs from across the
State and from other States; and
(7) facilitating statewide data collection, research and
evaluation, and reporting to policymakers and other
stakeholders.
SEC. 10. REPORTING AND OVERSIGHT.
(a) Reporting by Grantees.--
(1) In general.--The Secretary shall establish uniform
guidelines for all grantees under this Act concerning the
information that each grantee shall report annually to the
Secretary in order to demonstrate progress toward achieving
the purpose of this Act.
(2) Contents of report.--At a minimum, a report submitted
under this subsection by an eligible entity receiving funds
under section 5 for an early college high school or other
dual enrollment program shall include the following
information about the students participating in the school or
program, for each category of students described in section
1111(h)(1)(C)(i) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 6311(h)(1)(C)(i)):
(A) The number of students.
(B) The percentage of students scoring advanced,
proficient, basic, and below basic on the assessments
described in section 1111(b)(3) of such Act of 1965 (20
U.S.C. 6311(b)(3)).
(C) The performance of students on other assessments or
measurements of achievement.
(D) The number of secondary school credits earned.
(E) The number of postsecondary credits earned.
(F) Attendance rate, as appropriate.
(G) Graduation rate.
(H) Placement in postsecondary education or advanced
training, in military service, and in employment.
(I) A description of the school or program's student,
parent, and community outreach and engagement.
(b) Reporting by Secretary.--The Secretary annually shall--
(1) prepare a report that compiles and analyzes the
information described in subsection (a) and identifies the
best practices for achieving the purpose of this Act; and
(2) submit the report to the Committee on Health,
Education, Labor, and Pensions of the Senate and the
Committee on Education and the Workforce of the House of
Representatives.
(c) Monitoring Visits.--The Secretary's designee shall
visit each grantee under this Act at least once for the
purpose of helping the grantee achieve the goals of this Act
and to monitor the grantee's progress toward achieving such
goals.
(d) National Evaluation.--
(1) In general.--Not later than 6 months after the date on
which funds are appropriated to carry out this Act, the
Secretary shall enter into a contract with an independent
organization to perform an evaluation of the grants awarded
under this Act.
(2) Contents of evaluation.--The evaluation described in
paragraph (1) shall apply rigorous procedures to--
(A) obtain valid and reliable data concerning participant
outcomes, disaggregated by relevant categories, which the
Secretary shall determine; and
(B) monitor the progress of students from secondary school
to and through postsecondary education.
(e) Technical Assistance.--The Secretary shall provide
technical assistance to eligible entities concerning best
practices in early college high schools and other dual
enrollment programs and shall disseminate such best practices
among eligible entities, State educational agencies, and
local educational agencies.
SEC. 11. RULES OF CONSTRUCTION.
(a) Employees.--Nothing in this Act shall be construed to
alter or otherwise affect the rights, remedies, and
procedures afforded to the employees of local educational
agencies (including schools) or institutions of higher
education under Federal, State, or local laws (including
applicable regulations or court orders) or under the terms of
collective bargaining agreements, memoranda of understanding,
or other agreements between such employees and their
employers.
(b) Graduation Rate.--Notwithstanding any other provision
of law, a student who graduates from an early college high
school supported under this Act in the standard number of
years for graduation described in the eligible entity's
application shall be considered to have graduated on time for
purposes of section 1111(b)(2)(C)(vi) of the Elementary and
Secondary Education Act of 1965 (20 U.S.C.
6311(b)(2)(C)(vi)).
______
By Mr. KOHL:
S. 155. A bill to amend the Internal Revenue Code of 1986 to provide
an enhanced credit for research and development by companies that
manufacture products in the United States; to the Committee on Finance.
Mr. KOHL. Mr. President, I rise today to introduce three bills that I
believe will be important for our small businesses, especially our
smaller manufacturers. In each of these bills, there is an emphasis on
keeping our research and development and manufacturing here in the
United States, rewarding our innovative American businesses with
predictable credits and equitable treatment, and creating good paying
jobs.
The first bill, S. 155, is designed to incentivize keeping jobs in
the United States by increasing the existing Research & Development tax
credit for companies that produce most of their goods domestically. The
Domestic Jobs Innovation Bonus Act would create a bonus R&D Credit that
increases incrementally to reward a higher percentage of domestic
production. To earn the bonus credit, a company would need to make at
least half of their products domestically--and for doing so would
receive an additional 2 percentage points on top of the existing R&D
credit. The credit would max out at a 10 percentage point increase for
companies with 90 percent to 100 percent of their receipts from
domestic production. For example, a company with 100 percent domestic
production that would normally receive a 20 percent R&D tax credit
would receive a 30 percent credit under this proposal.
To be clear, this isn't a tax credit that will benefit every company
that has a presence in the United States. It
[[Page S228]]
may not benefit many large, multi-national corporations, but those
companies will still have access to the existing R&D Credit, which I
support as well.
It is my hope that a credit like this could convince a company that
is deciding whether to manufacture and research here or abroad, to
choose America.
I am introducing a second bill, S. 156, with Senators Corker and
Alexander that would establish a uniform energy efficiency descriptor
for all water heaters and improve the testing methods by which that
descriptor is determined. Currently, water heaters are lumped into two
categories under two federal statutes, based on arbitrary gallon
capacity and energy input ratings. ``Smaller'' water heaters are
covered by the National Appliance Energy Conservation Act, NAECA, and
must be rated using an energy factor or EF rating. ``Larger'' water
heaters are within the scope of the Energy Policy Act, EPACT, and must
be rated using a thermal efficiency or TE rating. Not only do the
testing methods differ, but a manufacturer is forbidden to place an EF
rating on a TE-sized unit, and vice-versa.
This legislation would direct the Department of Energy to work with
industry stakeholders to develop a uniform energy efficiency descriptor
that applies to all sizes of water heaters. It also would develop a
test method to accurately determine that descriptor for all types of
water heaters. It is my hope that the water heating manufacturing
community can develop and implement the new test method and descriptor
that will eliminate confusion and enable consumers and business owners
to make informed purchasing decisions on water heaters. In today's
tough economy, energy bills continue to stretch family budgets.
Families can save money and conserve energy if they have accurate
information about how much energy home appliances consume.
The difference between EF and TE ratings was based on the assumption
that smaller units were exclusively for residential uses while larger
units were exclusively for commercial purposes. Due to advances in
manufacturing technology, the assumptions underlying the earlier
dividing line are no longer accurate. In fact, both larger and smaller
units made by leading U.S. manufacturers are used in residences without
regard to which Federal law applies. Yet, Federal legislation continues
to be written by taking this distinction into account.
In particular, these American companies are affected by the current
disparate energy standards because it can disadvantage some of their
products. Establishing one standard will help breakdown a patchwork of
incentives and efficiency designations at both the state and federal
level. For example, water heaters rated with a TE rating are not
eligible for the ENERGY STAR label, and accordingly, not eligible for
many state appliance rebate programs that link their incentives to an
ENERGY STAR designation. This bill will make it so all products are
competing on a level playing field for all incentives.
In addition to the energy savings that this bill will provide, it is
also about the jobs potential for companies making these cutting-edge
products. A globally-recognized cluster of water technology companies
is emerging in the City of Milwaukee and surrounding counties. An
important part of this effort is innovative water heater technologies.
Incentivizing these products through predictable and equitable
standards is vital to these companies.
The third bill, S. 157, would extend the Section 48 investment tax
credit to solar light pipe technology. This is a promising new
technology that could save our businesses money on their electricity
bills, and reduce our overall energy usage--two goals on which we can
all agree. Light pipes collect natural light, and then through the use
of sensor technology, automatically dim the other lights in a
building--thereby using less electricity for the same amount of light.
Despite the clear benefits of the technology, high cost has kept many
businesses from using light pipes. Adding this technology to Section 48
will provide that boost that these businesses need to justify the
expense.
I became aware of this technology because one of the companies that
makes it is based in Manitowoc, Wisconsin. This company, Orion Energy
Systems, employs about 250 people, and has been growing even during
this tough economic time. In addition to light pipes, Orion makes
energy efficient lighting systems, and partners with wind and solar
power companies to significantly reduce the energy costs for many of
our largest and most distinguished companies. Orion technology has been
deployed at more than 6,000 facilities, and has worked with 126 of the
Fortune 500 companies. Since 2001, Orion customers have saved more than
$1 billion in electricity costs by displacing nearly 600 megawatts.
This credit will help Orion and companies like it create thousands of
jobs through the production of the technology as well as installing it.
I urge my colleagues to support all of these bills, and I hope that
they are enacted as part of an agenda that focuses on innovation, job
creation, and shoring up our vital manufacturing sector.
______
By Mrs. BOXER:
S. 170. A bill to provide for the affordable refinancing of mortgages
held by Fannie Mae and Freddie Mac; to the Committee on Banking,
Housing, and Urban Affairs.
Mrs. BOXER. Mr. President, I rise today to introduce the Helping
Responsible Homeowners Act of 2011. This legislation will eliminate
barriers that have prevented millions of borrowers who continue to make
their payments on time from taking advantage of historically low
interest rates and refinancing their mortgages.
Despite a recent uptick, interest rates for 30-year home mortgages
remain at historically low levels--under five percent. Yet of the 31.5
million mortgages guaranteed by Fannie Mae and Freddie Mac, nearly 13
million still carry an interest rate at or above 6 percent. This bill
would allow non-delinquent mortgages to be refinanced at current rates,
putting hundreds of dollars a month back in the pockets of struggling
families.
The Administration's Home Affordable Refinance Program has resulted
in Fannie Mae and Freddie Mac refinancing 520,000 loans through October
2010, far short of its goal of assisting four to five million
homeowners.
One reason for the program's failure is that Fannie and Freddie
continue to charge risk-based fees to refinance a loan they already
guarantee. These additional fees can be as high as two percent of the
loan amount, or an extra $4,000 on a $200,000 loan. In my home state of
California, where prices are higher, that might be $8,000 on a $400,000
loan. For borrowers struggling to keep up with their payments, this is
an additional cost they simply cannot afford.
Fannie and Freddie already bear the risks on these loans; yet this
policy actually makes it less likely that borrowers will be able to
take advantage of the low rates and increases the chance they will
eventually default.
Many borrowers also have been blocked from refinancing by the owner
of their second mortgage, even though reducing payments on the first
mortgage would make it more likely the borrower would be able to
continue making payments on the second.
To remove these barriers and allow borrowers current on their
payments to refinance their loans, the Helping Responsible Homeowners
Act would eliminate risk-based fees on loans for which Fannie and
Freddie already bear the risk; remove refinancing limits on properties
that lost value during the real estate crisis; make it easier for
borrowers with second mortgages to participate in refinancing programs;
and require that borrowers are able to receive a fair interest rate,
comparable to that received by any other current borrower who has not
suffered a drop in home value.
At a time when millions of Americans have been forced out of their
homes, this legislation will ensure that homeowners who make their
payments on time will be able to refinance their mortgages at current
low rates so they can stay in their homes. I urge my colleagues to join
me and to support this legislation.
______
By Mr. HARKIN:
S. 174. A bill to improve the health of Americans and reduce health
care costs by reorienting the Nation's health care
[[Page S229]]
system toward prevention, wellness, and health promotion; to the
Committee on Finance.
Mr. HARKIN. Mr. President, the Healthy Lifestyles and Prevention
America Act, also known as the HeLP America Act, will improve the
health of Americans and reduce health care costs by emphasizing
prevention, wellness, and health promotion in our communities,
workplaces and schools.
We made a significant investment in prevention and wellness as part
of the passing of the historic Affordable Care Act into law. The robust
array of provisions contained in the HeLP America Act continue to build
off the investments made by the Affordable Care Act and together, they
will significantly transform our current sick care system into a true
health care system.
Make no mistake about it; these combined efforts will continue our
transformation into a genuine wellness society by keeping people from
developing chronic diseases and from costly hospitalizations in the
first place.
Currently, the United States spends more than $2 trillion on health
care each year but historically we invest just four cents out of every
dollar in prevention and public health--let me repeat that--just four
cents out of every dollar is invested in prevention and public health.
This is pennies despite all the research that shows that prevention
and public health can effectively reduce health care spending. This is
why I fought for the Prevention and Public Health Fund that is included
in the health reform law.
But transforming our Nation into a true wellness society requires a
comprehensive approach to make being healthier easier for all
Americans.
It just doesn't make any sense why we don't put a greater emphasis on
making health promotion easier--why would we focus so little on
prevention and public health when we know that these initiatives can
make us healthier and reduce our annual health care spending?
Well, I am proud that the bill before the Senate continues to make
significant investments in prevention and wellness. The HeLP America
Act will put additional systems into place that will improve access to
nutritious foods, opportunities for physical activity, and
affordability of recommended preventive services.
The bill focuses on initiatives to make kids and schools healthier.
In particular, it will support State efforts to provide resources to
child care providers to help them meet high-quality physical activity
and healthy eating standards. It also directs the Department of
Education to provide guidance and technical assistance to schools to
provide equal opportunities for students with disabilities for physical
education and extracurricular athletics.
In addition, the bill focuses on initiatives to make healthier
communities and workplaces. For example, it requires the Secretary of
Health and Human Services to establish guidelines in physical activity
for children under the age of 5 and the Secretary of Agriculture to
establish a grant program promoting and expanding efforts to create
community gardens. Specific to small businesses and workplace wellness
programs, there is a provision that allows employers to deduct the cost
of athletic facility memberships for their employees and exempts this
benefit as taxable income for employees.
The HeLP America Act also creates systems that give Americans the
information they need to make informed decisions. In particular, there
is a provision that requires uniform guidelines be developed for the
use of nutrient labeling symbols or systems on the front of food
packages. There are provisions meant to strengthen federal initiatives
to improve the health literacy of consumers by making health
information easier to understand and health care systems easier to
navigate.
Let me be clear, this bill doesn't just tinker around the edges; it
changes the very paradigm of a variety of systems to make it easier for
Americans to be healthy. After many years of advocating for wellness
and prevention, I am thrilled to see that these things were at the very
heart of the historic Affordable Care Act passed into law. But there is
still much more to be done, and the HeLP America Act is an important
step in continuing our transformation into a genuine wellness society
and getting health care costs under control.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the additional material was ordered to be
printed in the Record, as follows:
S. 174
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Healthy
Lifestyles and Prevention America Act'' or the ``HeLP America
Act''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--HEALTHIER KIDS AND SCHOOLS
Sec. 101. Nutrition and physical activity in child care quality
improvement.
Sec. 102. Access to local foods and school gardens at preschools and
child care.
Sec. 103. Fresh fruit and vegetable program.
Sec. 104. Equal physical activity opportunities for students with
disabilities.
TITLE II--HEALTHIER COMMUNITIES AND WORKPLACES
Subtitle A--Creating Healthier Communities
Sec. 201. Technical assistance for the development of joint use
agreements.
Sec. 202. Community sports programs for individuals with disabilities.
Sec. 203. Community gardens.
Sec. 204. Physical activity guidelines for Americans.
Sec. 205. Tobacco taxes parity.
Sec. 206. Leveraging and coordinating federal resources for improved
health.
Subtitle B--Incentives for a Healthier Workforce
Sec. 211. Tax credit to employers for costs of implementing wellness
programs.
Sec. 212. Employer-provided off-premises athletic facilities.
Sec. 213. Task force for the promotion of breastfeeding in the
workplace.
Sec. 214. Improving healthy eating and active living options in Federal
workplaces.
TITLE III--RESPONSIBLE MARKETING AND CONSUMER AWARENESS
Sec. 301. Guidelines for reduction in sodium content in certain foods.
Sec. 302. Nutrition labeling for food products sold principally for use
in restaurants or other retail food establishments.
Sec. 303. Front-label food guidance systems.
Sec. 304. Rulemaking authority for advertising to children.
Sec. 305. Health Literacy: research, coordination and dissemination.
Sec. 306. Disallowance of deductions for advertising and marketing
expenses relating to tobacco product use.
Sec. 307. Incentives to reduce tobacco use.
TITLE IV--EXPANDED COVERAGE OF PREVENTIVE SERVICES
Sec. 401. Required coverage of preventive services under the Medicaid
program.
Sec. 402. Coverage for comprehensive workplace wellness program and
preventive services.
Sec. 403. Health professional education and training in healthy eating.
TITLE V--RESEARCH
Sec. 501. Grants for Body Mass Index data analysis.
Sec. 502. National assessment of mental health needs.
TITLE I--HEALTHIER KIDS AND SCHOOLS
SEC. 101. NUTRITION AND PHYSICAL ACTIVITY IN CHILD CARE
QUALITY IMPROVEMENT.
Section 658G of the Child Care and Development Block Grant
Act of 1990 (42 U.S.C. 9858e) is amended--
(1) by striking ``choice, and'' and inserting ``choice,'';
and
(2) by inserting after ``referral services)'' the
following: ``, and the provision of resources to enable
eligible child care providers to meet, exceed, or sustain
success in meeting or exceeding Federal or State high-quality
program standards relating to health, mental health,
nutrition, physical activity, and physical development''.
SEC. 102. ACCESS TO LOCAL FOODS AND SCHOOL GARDENS AT
PRESCHOOLS AND CHILD CARE.
Section 18(g) of the Richard B. Russell National School
Lunch Act (42 U.S.C. 1769(g)) is amended--
(1) by redesignating paragraphs (1) through (4) as
paragraphs (2) through (5), respectively;
(2) by inserting before paragraph (2) (as redesignated by
paragraph (1)) the following:
``(1) Definitions.--In this subsection:
``(A) Child care center.--The term `child care center'
means a child care center participating in the program under
section 17 (other than a child care center that solely
participates in the program under subsection (r) of that
section).
[[Page S230]]
``(B) Sponsoring organization.--The term `sponsoring
organization' means an institution described in subparagraphs
(C), (D), or (E) of section 17(a)(2).'';
(3) in paragraph (2) (as so redesignated)--
(A) in the paragraph heading, by striking ``IN GENERAL''
and inserting ``ASSISTANCE'';
(B) in the matter preceding subparagraph (A), by inserting
``, child care centers, sponsoring organizations for home-
based care,'' after ``schools''; and
(C) in subparagraph (A), by inserting ``, child care
centers, sponsoring organizations for home-based care,''
after ``schools'';
(4) in paragraph (3) (as so redesignated), by striking
``paragraph (1)'' and inserting ``paragraph (2)''; and
(5) in paragraph (4) (as so redesignated)--
(A) in subparagraph (A)(i)--
(i) in subclause (I), by striking ``or'';
(ii) in subclause (II), by striking the period at the end
and inserting ``; or''; and
(iii) by adding at the end the following:
``(III) a consortium of at least 2 child care centers or
sponsoring organizations for home-based care with hands-on
vegetable gardening and nutrition education that is
incorporated into the curriculum for 1 or more age groups at
2 or more eligible centers or family child care homes
supported by sponsoring organizations for home-based care.'';
and
(B) in subparagraph (F), by striking ``paragraph (1)(H)''
and inserting ``paragraph (2)(H)''.
SEC. 103. FRESH FRUIT AND VEGETABLE PROGRAM.
Section 19 of the Richard B. Russell National School Lunch
Act (42 U.S.C. 1769a) is amended--
(1) by striking subsections (c) and (d) and inserting the
following:
``(c) School Participation.--
``(1) In general.--Each State shall carry out the program
in each elementary school (as defined in section 9101 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801)) in the State--
``(A) in which not less than 50 percent of the students are
eligible for free or reduced price meals under this Act; and
``(B) that submits an application in accordance with
paragraph (2).
``(2) Application.--
``(A) In general.--An interested elementary school shall
submit to the State an application containing--
``(i) information pertaining to the percentage of students
enrolled in the school who are eligible for free or reduced
price school lunches under this Act;
``(ii) a certification of support for participation in the
program signed by the school food manager, the school
principal, and the district superintendent (or equivalent
positions, as determined by the school);
``(iii) a plan for implementation of the program, including
efforts to integrate activities carried out under this
section with other efforts to promote sound health and
nutrition, reduce overweight and obesity, or promote physical
activity; and
``(iv) such other information as may be requested by the
Secretary.
``(B) Partnerships.--Each State shall encourage interested
elementary schools to submit a plan for implementation of the
program that includes a partnership with 1 or more entities
that will provide non-Federal resources (including entities
representing the fruit and vegetable industry).'';
(2) by striking subsection (i) and inserting the following:
``(i) Funding.--
``(1) In general.--Out of any funds in the Treasury not
otherwise appropriated, the Secretary of the Treasury shall
transfer to the Secretary to carry out this section such sums
as are necessary, to remain available until expended.
``(2) Receipt and acceptance.--The Secretary shall be
entitled to receive, shall accept, and shall use to carry out
this section the funds transferred under paragraph (1),
without further appropriation.''; and
(3) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively.
SEC. 104. EQUAL PHYSICAL ACTIVITY OPPORTUNITIES FOR STUDENTS
WITH DISABILITIES.
(a) In General.--Title V of the Rehabilitation Act of 1973
(29 U.S.C. 791 et seq.) is amended by adding at the end the
following:
``SEC. 511. EQUAL PHYSICAL ACTIVITY OPPORTUNITIES FOR
STUDENTS WITH DISABILITIES.
``(a) In General.--The Secretary shall promote equal
opportunities for students with disabilities to be included
and to participate in physical education and extracurricular
athletics implemented in, or in conjunction with, elementary
schools, secondary schools, and institutions of higher
education, by ensuring the provision of appropriate technical
assistance and guidance for schools and institutions
described in this subsection and their personnel.
``(b) Technical Assistance and Guidance.--The provision of
technical assistance and guidance described in subsection (a)
shall include--
``(1) providing technical assistance to elementary schools,
secondary schools, local educational agencies, State
educational agencies, and institutions of higher education,
regarding--
``(A) inclusion and participation of students with
disabilities, in a manner equal to that of the other
students, in physical education opportunities (including
classes), and extracurricular athletics opportunities,
including technical assistance on providing reasonable
modifications to policies, practices, and procedures, and
providing supports to ensure such inclusion and
participation;
``(B) provision of adaptive sports programs, in the
physical education and extracurricular athletics
opportunities, including programs with competitive sports
leagues or competitions, for students with disabilities; and
``(C) responsibilities of the schools, institutions, and
agencies involved under section 504, the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), and any
other applicable Federal law to provide students with
disabilities equal access to extracurricular athletics;
``(2) facilitating information sharing among the schools,
institutions, and agencies, and students with disabilities,
on ways to provide inclusive opportunities in physical
education and extracurricular athletics for students with
disabilities; and
``(3) monitoring the extent to which physical education and
extracurricular athletics opportunities for students with
disabilities are implemented in, or in conjunction with,
elementary schools, secondary schools, and institutions of
higher education.
``(c) Definitions.--In this section:
``(1) Agencies.--The terms `local educational agency' and
`State educational agency' have the meanings given the terms
in section 9101 of the Elementary and Secondary Education Act
of 1965 (20 U.S.C. 7801).
``(2) Schools.--The terms `elementary school', `secondary
school', and `institution of higher education' mean an
elementary school, secondary school, or institution of higher
education, respectively (as defined in section 9101 of the
Elementary and Secondary Education Act of 1965), that
receives or has 1 or more students that receive, Federal
financial assistance.
``(3) Student with a disability.--
``(A) In general.--The term `student with a disability'
means an individual who--
``(i) attends an elementary school, secondary school, or
institution of higher education; and
``(ii) who--
``(I) is eligible for, and receiving, special education or
related services under part B of the Individuals with
Disabilities Education Act (20 U.S.C. 1411 et seq.); or
``(II) is an individual with a disability, for purposes of
section 504 or the Americans with Disabilities Act of 1990.
``(B) Students with disabilities.--The term `students with
disabilities' means more than 1 student with a disability.''.
(b) Table of Contents.--The table of contents in section
1(b) of the Rehabilitation Act of 1973 is amended by
inserting after the item relating to section 509 the
following:
``Sec. 510. Establishment of standards for accessible medical
diagnostic equipment.
``Sec. 511. Equal physical activity opportunities for students with
disabilities.''.
TITLE II--HEALTHIER COMMUNITIES AND WORKPLACES
Subtitle A--Creating Healthier Communities
SEC. 201. TECHNICAL ASSISTANCE FOR THE DEVELOPMENT OF JOINT
USE AGREEMENTS.
(a) In General.--The Secretary of Health and Human
Services, acting through the Director of the Centers for
Disease Control and Prevention and in coordination with the
Secretary of Education and in consultation with leading
national experts and organizations advancing healthy living
in the school environment, shall develop and disseminate
guidelines and best practices, including model documents, and
provide technical assistance to elementary and secondary
schools to assist such schools with the development of joint
use agreements so as to address liability, operational and
management, and cost issues that may otherwise impede the
ability of community members to use school facilities for
recreational and nutritional purposes during nonschool hours.
(b) Definition.--In this section, the term ``joint use
agreement'' means a formal agreement between an elementary or
secondary school and another entity relating to the use of
the school's facilities, equipment, or property, including
recreational and food services facilities, equipment, and
property, by individuals other than the school's students or
staff.
SEC. 202. COMMUNITY SPORTS PROGRAMS FOR INDIVIDUALS WITH
DISABILITIES.
Part P of title III of the Public Health Service Act (42
U.S.C. 280g et seq.) is amended by adding at the end the
following:
``SEC. 399V-5. COMMUNITY SPORTS PROGRAMS FOR INDIVIDUALS WITH
DISABILITIES.
``(a) In General.--
``(1) Individual with a disability defined.--For purposes
of this section, the term `individual with a disability'
means any person who has a disability as defined in section 3
of the Americans with Disabilities Act of 1990 ( 42 U.S.C.
12102).
``(2) Individual with a physical disability.--The term
`individual with a physical disability' means an individual
with a disability that has a physical or visual disability.
``(3) Community sports grants program.--The Secretary, in
collaboration with the National Advisory Committee on
Community Sports Programs for Individuals with Disabilities,
may award grants on a competitive basis to public and
nonprofit private entities to implement community-based,
sports and
[[Page S231]]
athletic programs for individuals with disabilities,
including youth with disabilities.
``(b) Application.--To be eligible to receive a grant under
this section, a public or nonprofit private entity shall
submit to the Secretary an application at such time, in such
manner, and containing such agreements, assurances, and
information as the Secretary determines to be necessary to
carry out this section.
``(c) Authorized Activities.--Amounts awarded under a grant
under subsection (a) shall be used for--
``(1) community-based sports programs, leagues, or
competitions in individual or team sports for individuals
with physical disabilities;
``(2) regional sports programs or competitions in
individual or team sports for individuals with physical
disabilities;
``(3) the development of competitive team and individual
sports programs for individuals with disabilities at the high
school and collegiate level; or
``(4) the development of mentoring programs to encourage
participation in sports programs for individuals with
disabilities, including individuals with recently acquired
disabilities.
``(d) Priorities.--
``(1) Advisory committee.--The Secretary shall establish a
National Advisory Committee on Community Sports Programs for
Individuals with Disabilities that shall--
``(A) establish priorities for the implementation of this
section;
``(B) review grant proposals;
``(C) make recommendations for distribution of the
available appropriated funds to specific applicants; and
``(D) annually evaluate the progress of programs carried
out under this section in implementing such priorities.
``(2) Representation.--The Advisory Committee established
under paragraph (1) shall include representatives of--
``(A) the Department of Health and Human Services Office on
Disability;
``(B) the United States Surgeon General;
``(C) the Centers for Disease Control and Prevention;
``(D) disabled sports organizations;
``(E) organizations that represent the interests of
individuals with disabilities; and
``(F) individuals with disabilities (including athletes
with physical disabilities) or their family members.
``(e) Dissemination of Information.--The Secretary shall
disseminate information about the availability of grants
under this section in a manner that is designed to reach
public entities and nonprofit private organizations that are
dedicated to providing outreach, advocacy, or independent
living services to individuals with disabilities.
``(f) Technical Assistance.--The Secretary, in conjunction
with the United States Olympic Committee and disabled sports
organizations, shall establish a technical assistance center
to provide training, support, and information to grantees
under this section on establishing and operating community
sports programs for individuals with disabilities.
``(g) Report to Congress.--Not later than 180 days after
the date of the enactment of this section, and annually
thereafter, the Secretary shall submit to Congress a report
summarizing activities, findings, outcomes, and
recommendations resulting from the grant projects funded
under this section during the year for which the report is
being prepared.
``(h) Authorization of Appropriations.--
``(1) In general.--To carry out this section, there are
authorized to be appropriated such sums as may be necessary.
``(2) Limitation.--Not to exceed 10 percent of the amount
appropriated in each fiscal year shall be used to carry out
activities under subsection (c)(4).''.
SEC. 203. COMMUNITY GARDENS.
Subtitle D of title X of the Food, Conservation, and Energy
Act of 2008 (Public Law 110-246; 122 Stat. 2109) is amended
by adding at the end the following:
``SEC. 10405. COMMUNITY GARDEN GRANT PROGRAM.
``(a) Definitions.--In this section:
``(1) Eligible entity.--The term `eligible entity' means--
``(A) a nonprofit organization; or
``(B) a unit of general local government, or tribal
government, located on tribal land or in a low-income
community.
``(2) Low-income community.--The term `low-income
community' means--
``(A) a community in which not less than 50 percent of
children are eligible for free or reduced priced meals under
the Richard B. Russell National School Lunch Act (42 U.S.C.
1751 et seq.); or
``(B) any other community determined by the Secretary to be
low-income for purposes of this section.
``(3) Unit of general local government.--The term `unit of
general local government' has the meaning given the term in
section 102 of the Housing and Community Development Act of
1974 (42 U.S.C. 5302).
``(b) Program Established.--Using such amounts as are
appropriated to carry out this section, the Secretary shall
award grants to eligible entities to expand, establish, or
maintain community gardens.
``(c) Application.--To be considered for a grant under this
section, an eligible entity shall submit to the Secretary an
application at such time, in such manner, and containing such
information as the Secretary may require, including--
``(1) an assurance that priority for hiring for jobs
created by the expansion, establishment, or maintenance of a
community garden funded with a grant received under this
section will be given to individuals who reside in the
community in which the garden is located; and
``(2) a demonstration that the eligible entity is committed
to providing non-Federal financial or in-kind support (such
as providing a water supply) for the community garden for
which the entity receives funds under this section.''.
SEC. 204. PHYSICAL ACTIVITY GUIDELINES FOR AMERICANS.
(a) Report.--
(1) In general.--At least every 5 years, the Secretary of
Health and Human Services (in this Act referred to as the
``Secretary'') shall publish a report entitled ``Physical
Activity Guidelines for Americans''. Each such report shall
contain physical activity information and guidelines for the
general public, and shall be promoted by each Federal agency
in carrying out any Federal health program.
(2) Basis of guidelines.--The information and guidelines
contained in each report required under paragraph (1) shall
be based on the preponderance of the scientific and medical
knowledge which is current at the time the report is
prepared, and shall include guidelines for identified
population subgroups, including children, if the
preponderance of scientific and medical knowledge indicates
those subgroups require different levels of physical
activity.
(b) Approval by Secretary.--
(1) Review.--Any Federal agency that proposes to issue any
physical activity guidance for the general population or
identified population subgroups shall submit the text of such
guidance to the Secretary for a 60-day review period.
(2) Basis of review.--
(A) In general.--During the 60-day review period
established in paragraph (1), the Secretary shall review and
approve or disapprove such guidance to assure that the
guidance either is consistent with the ``Physical Activity
Guidelines for Americans'' or that the guidance is based on
medical or new scientific knowledge which is determined to be
valid by the Secretary. If after such 60-day review period
the Secretary has not notified the proposing agency that such
guidance has been disapproved, then such guidance may be
issued by the agency. If the Secretary disapproves such
guidance, it shall be returned to the agency. If the
Secretary finds that such guidance is inconsistent with the
``Physical Activity Guidelines for Americans'' and so
notifies the proposing agency, such agency shall follow the
procedures set forth in this subsection before disseminating
such proposal to the public in final form. If after such 60-
day period, the Secretary disapproves such guidance as
inconsistent with the ``Physical Activity Guidelines for
Americans'' the proposing agency shall--
(i) publish a notice in the Federal Register of the
availability of the full text of the proposal and the
preamble of such proposal which shall explain the basis and
purpose for the proposed physical activity guidance;
(ii) provide in such notice for a public comment period of
30 days; and
(iii) make available for public inspection and copying
during normal business hours any comment received by the
agency during such comment period.
(B) Review of comments.--After review of comments received
during the comment period, the Secretary may approve for
dissemination by the proposing agency a final version of such
physical activity guidance along with an explanation of the
basis and purpose for the final guidance which addresses
significant and substantive comments as determined by the
proposing agency.
(C) Announcement.--Any such final physical activity
guidance to be disseminated under subparagraph (B) shall be
announced in a notice published in the Federal Register,
before public dissemination along with an address where
copies may be obtained.
(D) Notification of disapproval.--If after the 30-day
period for comment as provided under subparagraph (A)(ii),
the Secretary disapproves a proposed physical activity
guidance, the Secretary shall notify the Federal agency
submitting such guidance of such disapproval, and such
guidance may not be issued, except as provided in
subparagraph (E).
(E) Review of disapproval.--If a proposed physical activity
guidance is disapproved by the Secretary under subparagraph
(D), the Federal agency proposing such guidance may, within
15 days after receiving notification of such disapproval
under subparagraph (D), request the Secretary to review such
disapproval. Within 15 days after receiving a request for
such a review, the Secretary shall conduct such review. If,
pursuant to such review, the Secretary approves such proposed
physical activity guidance, such guidance may be issued by
the Federal agency.
(3) Definitions.--In this subsection:
(A) The term ``physical activity guidance for the general
population'' does not include any rule or regulation issued
by a Federal agency.
(B) The term ``identified population subgroups'' shall
include, but not be limited to, groups based on factors such
as age, sex, race, or physical disability.
(c) Existing Authority Not Affected.--This section does not
place any limitations on--
(1) the conduct or support of any scientific or medical
research by any Federal agency; or
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(2) the presentation of any scientific or medical findings
or the exchange or review of scientific or medical
information by any Federal agency.
SEC. 205. TOBACCO TAXES PARITY.
(a) Increase in Excise Tax on Small Cigarettes and Small
Cigars.--
(1) Section 5701(a)(1) of the Internal Revenue Code of 1986
is amended by striking ``$50.33'' and inserting ``$77.83''.
(2) Section 5701(b)(1) of the Internal Revenue Code of 1986
is amended by striking ``$50.33'' and inserting ``$77.83''
(b) Tax Parity for Pipe Tobacco and Roll-your-own
Tobacco.--
(1) Section 5701(f) of the Internal Revenue Code of 1986 is
amended by striking ``$2.8311 cents'' and inserting
``$38.32''.
(2) Section 5701(g) of the Internal Revenue Code of 1986 is
amended by striking ``$24.78'' and inserting ``$38.32''.
(c) Clarification of Definition of Small Cigars.--
Paragraphs (1) and (2) of section 5701(a) of the Internal
Revenue Code of 1986 are each amended by striking ``three
pounds per thousand'' and inserting ``four and one-half
pounds per thousand''.
(d) Clarification of Definition of Cigarette.--Paragraph
(2) of section 5702(b) of the Internal Revenue Code of 1986
is amended by insert before the final period the following:
``, which includes any roll for smoking containing tobacco
that weighs no more than four and a half pounds per thousand,
unless it is wrapped in whole tobacco leaf and does not have
a cellulose acetate or other cigarette-style filter''.
(e) Tax Parity for Smokeless Tobacco.--
(1) Section 5701(e) of the Internal Revenue Code of 1986 is
amended--
(A) in paragraph (1), by striking ``$1.51'' and inserting
``$20.75'';
(B) in paragraph (2), by striking ``50.33 cents'' and
inserting ``$8.30''; and
(C) by adding at the end the following:
``(3) Smokeless tobacco sold in discrete single-use
units.--On discrete single-use units, $77.83 per each 1,000
single-use units.''.
(2) Section 5702(m) of the Internal Revenue Code of 1986 is
amended--
(A) in paragraph (1), ``or chewing tobacco'' and inserting
``chewing tobacco, discrete single-use unit'';
(B) in paragraphs (2) and (3), by inserting ``that is not a
discrete single-use unit'' before the period in each such
paragraph;
(C) by adding at the end the following:
``(4) Discrete single-use unit.--The term `discrete single-
use unit' means any product containing tobacco that--
``(A) is intended or expected to be consumed without being
combusted; and
``(B) is in the form of a lozenge, tablet, pill, pouch,
dissolvable strip, or other discrete single-use or single-
dose unit.''.
(f) Clarifying Other Tobacco Tax Definitions.--
(1) Tobacco product definition.--Section 5702(c) of the
Internal Revenue Code of 1986 is amended by inserting before
the period the following: ``, and any other product
containing tobacco that is intended or expected to be
consumed''.
(2) Cigarette paper definition.--Section 5702(e) of the
Internal Revenue Code of 1986 is amended by striking ``except
tobacco,'' and inserting ``or cigar''.
(3) Cigarette tube definition.--Section 5702(f) of the
Internal Revenue Code of 1986 is amended by inserting before
the period ``or cigars''.
(4) Importer definition.--Section 5702(k) of the Internal
Revenue Code of 1986 is amended by inserting ``or any other
tobacco product'' after ``cigars or cigarettes''.
(g) Floor Stocks Taxes.--
(1) Imposition of tax.--On tobacco products manufactured in
or imported into the United States which are removed before
any tax increase date and held on such date for sale by any
person, there is hereby imposed a tax in an amount equal to
the excess of--
(A) the tax which would be imposed under section 5701 of
the Internal Revenue Code of 1986 on the article if the
article had been removed on such date, over
(B) the prior tax (if any) imposed under section 5701 of
such Code on such article.
(2) Credit against tax.--Each person shall be allowed as a
credit against the taxes imposed by paragraph (1) an amount
equal to $500. Such credit shall not exceed the amount of
taxes imposed by paragraph (1) on such date for which such
person is liable.
(3) Liability for tax and method of payment.--
(A) Liability for tax.--A person holding tobacco products
on any tax increase date to which any tax imposed by
paragraph (1) applies shall be liable for such tax.
(B) Method of payment.--The tax imposed by paragraph (1)
shall be paid in such manner as the Secretary shall prescribe
by regulations.
(C) Time for payment.--The tax imposed by paragraph (1)
shall be paid on or before the date that is 120 days after
the effective date of the tax rate increase.
(4) Articles in foreign trade zones.--Notwithstanding the
Act of June 18, 1934 (commonly known as the Foreign Trade
Zone Act, 48 Stat. 998, 19 U.S.C. 81a et seq.) or any other
provision of law, any article which is located in a foreign
trade zone on any tax increase date shall be subject to the
tax imposed by paragraph (1) if--
(A) internal revenue taxes have been determined, or customs
duties liquidated, with respect to such article before such
date pursuant to a request made under the 1st proviso of
section 3(a) of such Act, or
(B) such article is held on such date under the supervision
of an officer of the United States Customs and Border
Protection of the Department of Homeland Security pursuant to
the 2d proviso of such section 3(a).
(5) Definitions.--For purposes of this subsection--
(A) In general.--Any term used in this subsection which is
also used in section 5702 of such Code shall have the same
meaning as such term has in such section.
(B) Tax increase date.--The term ``tax increase date''
means the effective date of any increase in any tobacco
product excise tax rate pursuant to the amendments made by
this section.
(C) Secretary.--The term ``Secretary'' means the Secretary
of the Treasury or the Secretary's delegate.
(6) Controlled groups.--Rules similar to the rules of
section 5061(e)(3) of such Code shall apply for purposes of
this subsection.
(7) Other laws applicable.--All provisions of law,
including penalties, applicable with respect to the taxes
imposed by section 5701 of such Code shall, insofar as
applicable and not inconsistent with the provisions of this
subsection, apply to the floor stocks taxes imposed by
paragraph (1), to the same extent as if such taxes were
imposed by such section 5701. The Secretary may treat any
person who bore the ultimate burden of the tax imposed by
paragraph (1) as the person to whom a credit or refund under
such provisions may be allowed or made.
(h) Effective Date.--The amendments made by this section
shall apply to articles removed (as defined in section
5702(j) of the Internal Revenue Code of 1986) after December
31, 2010.
SEC. 206. LEVERAGING AND COORDINATING FEDERAL RESOURCES FOR
IMPROVED HEALTH.
(a) Health Impacts of Non-health Legislation.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the National Prevention, Health
Promotion and Public Health Council, shall enter into a
contract with the Institute of Medicine of the National
Academy of Sciences for the conduct of a study to assess the
potential health impacts of major non-health related
legislation that is likely to be considered by Congress
within a year of completion of the study. Such study shall
identify the ways in which such legislation involved is
likely to impact the health of Americans and shall contain
recommendations to Congress on ways to maximize the positive
health impacts and minimize the negative health impacts.
(2) Timing.--The timing of the study under paragraph (1)
shall be provide for in a manner that ensures that the
results of the study will be available at least 3 months
prior to the consideration of the legislation involved by
Congress.
(3) Guidelines.--To the extent practicable, the Council
under paragraph (1) shall ensure that the study conducted
under this subsection complies with the consensus guidelines
on how to carry out a health impact assessment, including
stakeholder engagement guidelines, such as the HIA of the
Americas Practice Guidelines and guidelines promulgated by
the World Health Organization and other consensus bodies.
(4) Report.--Upon completion of the study under this
subsection, the Institute of Medicine shall submit to the
Council under paragraph (1), and make available to the
general public, a report that--
(A) summarizes the direct, indirect, and cumulative health
impacts identified in the assessment; and
(B) contains recommendations for how to maximize positive
health impacts and minimize negative health impacts of the
legislation involved.
(5) Type of legislation.--For purposes of this subsection,
the term ``non-health related legislation'' shall have the
meaning given such term by the Council under paragraph (1),
and shall include legislation that is likely to have impacts
on the health of Americans where such impacts are not likely
to be considered by Congress to the extent required by their
scope without the conduct of an assessment under this
subsection. Examples of major non-health related legislation
that could be the subject of the study include
reauthorizations of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU; Public Law 109-59), the Food, Conservation, and
Energy Act of 2008 (Public Law 110-246), and the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.).
(b) Improving Health Impacts of Federal Agency
Activities.--
(1) In general.--The Secretary, acting through the Director
of the Centers for Disease Control and Prevention and in
coordination with the National Prevention, Health Promotion
and Public Health Council, shall detail employees of the
Department of Health and Human Services to policy and program
planning offices of other Federal departments and agencies,
including the Department of Transportation, the Department of
Housing and Urban Development, the Department of Agriculture,
the Department of Education, and the Department of the
Interior, in order to assist those departments and agencies
to consider the impacts of their activities on the health of
the populations served and to assist with the integration of
health goals into the activities of the departments and
agencies, as appropriate.
(2) Duties.--Employees detailed under paragraph (1) shall
assist with assessments of the potential impacts of the
programs and
[[Page S233]]
activities of the department or agency involved on the health
and well-being of the populations served, the development of
metrics and performance standards that can be incorporated,
as appropriate, into the activities, performance
measurements, and grant and contract standards of the
department or agency, and the development of the report
detailed in paragraph (3).
(3) Reports.--Not later than 1 year after the date of
enactment of this Act, and annually thereafter, each
department and agency with a detailee under this section
shall submit to the National Prevention, Health Promotion and
Public Health Council, the Committee on Health, Education,
Labor, and Pensions of the Senate and the Committee on Energy
and Commerce of the House of Representatives a report
detailing the health impacts of the department or agency's
activities and any plans to improve those impacts.''
Subtitle B--Incentives for a Healthier Workforce
SEC. 211. TAX CREDIT TO EMPLOYERS FOR COSTS OF IMPLEMENTING
WELLNESS PROGRAMS.
(a) In General.--Subpart D of part IV of subchapter A of
chapter 1 of the Internal Revenue Code of 1986 is amended by
adding at the end the following:
``SEC. 45S. WELLNESS PROGRAM CREDIT.
``(a) Allowance of Credit.--
``(1) In general.--For purposes of section 38, the wellness
program credit determined under this section for any taxable
year during the credit period with respect to an employer is
an amount equal to 50 percent of the costs paid or incurred
by the employer in connection with a qualified wellness
program during the taxable year.
``(2) Limitation.--The amount of credit allowed under
paragraph (1) for any taxable year shall not exceed the sum
of--
``(A) the product of $200 and the number of employees of
the employer not in excess of 200 employees, plus
``(B) the product of $100 and the number of employees of
the employer in excess of 200 employees.
``(b) Qualified Wellness Program.--For purposes of this
section--
``(1) Qualified wellness program.--The term `qualified
wellness program' means a program which--
``(A) consists of any 3 of the wellness program components
described in subsection (c), and
``(B) which is certified by the Secretary of Health and
Human Services, in consultation with the Secretary of the
Treasury and Secretary of Labor, as a qualified wellness
program under this section.
``(2) Programs must be consistent with research and best
practices.--
``(A) In general.--The Secretary of Health and Human
Services shall not certify a program as a qualified wellness
program unless the program--
``(i) is consistent with evidence-based research and best
practices, as identified by persons with expertise in
employer health promotion and wellness programs,
``(ii) includes multiple, evidence-based strategies which
are based on the existing and emerging research and careful
scientific reviews, including the Guide to Community
Preventive Services, the Guide to Clinical Preventive
Services, and the National Registry for Effective Programs,
and
``(iii) includes strategies which focus on employee
populations with a disproportionate burden of health
problems.
``(B) Periodic updating and review.--The Secretary of
Health and Human Services shall establish procedures for
periodic review and recertifications of programs under this
subsection. Such procedures shall require revisions of
programs if necessary to ensure compliance with the
requirements of this section and require updating of the
programs to the extent the Secretary, in consultation with
the Secretary of the Treasury and the Secretary of Labor,
determines necessary to reflect new scientific findings.
``(3) Health literacy.--The Secretary of Health and Human
Services shall, as part of the certification process,
encourage employers to make the programs culturally competent
and to meet the health literacy needs of the employees
covered by the programs.
``(c) Wellness Program Components.--For purposes of this
section, the wellness program components described in this
subsection are the following:
``(1) Health awareness component.--A health awareness
component which provides for the following:
``(A) Health education.--The dissemination of health
information which addresses the specific needs and health
risks of employees.
``(B) Health screenings.--The opportunity for periodic
screenings for health problems and referrals for appropriate
follow up measures.
``(2) Employee engagement component.--An employee
engagement component which provides for--
``(A) the establishment of a committee to actively engage
employees in worksite wellness programs through worksite
assessments and program planning, delivery, evaluation, and
improvement efforts, and
``(B) the tracking of employee participation.
``(3) Behavioral change component.--A behavioral change
component which provides for altering employee lifestyles to
encourage healthy living through counseling, seminars, on-
line programs, or self-help materials which provide technical
assistance and problem solving skills. Such component may
include programs relating to--
``(A) tobacco use,
``(B) overweight and obesity,
``(C) stress management,
``(D) physical activity,
``(E) nutrition,
``(F) substance abuse,
``(G) depression, and
``(H) mental health promotion (including anxiety).
``(4) Supportive environment component.--A supportive
environment component which includes the following:
``(A) On-site policies.--Policies and services at the
worksite which promote a healthy lifestyle, including
policies relating to--
``(i) tobacco use at the worksite,
``(ii) the nutrition of food available at the worksite
through cafeterias and vending options,
``(iii) minimizing stress and promoting positive mental
health in the workplace,
``(iv) where applicable, accessible and attractive stairs,
and
``(v) the encouragement of physical activity before,
during, and after work hours.
``(B) Participation incentives.--
``(i) In general.--Qualified incentive benefits for each
employee who participates in the health screenings described
in paragraph (1)(B) or the behavioral change programs
described in paragraph (3).
``(ii) Qualified incentive benefit.--For purposes of clause
(i), the term `qualified incentive benefit' means any benefit
which is approved by the Secretary of Health and Human
Services, in consultation with the Secretary of the Treasury
and the Secretary of Labor. Such benefit may include an
adjustment in health insurance premiums or co-pays.
``(C) Employee input.--The opportunity for employees to
participate in the management of any qualified wellness
program to which this section applies.
``(d) Participation Requirement.--
``(1) In general.--No credit shall be allowed under
subsection (a) unless the Secretary of Health and Human
Services, in consultation with the Secretary of the Treasury
and Secretary of Labor, as a part of any certification
described in subsection (b), that each wellness program
component of the qualified wellness program applies to all
qualified employees of the employer. The Secretary of Health
and Human Services shall prescribe rules under which an
employer shall not be treated as failing to meet the
requirements of this subsection merely because the employer
provides specialized programs for employees with specific
health needs or unusual employment requirements or provides a
pilot program to test new wellness strategies.
``(2) Qualified employee.--For purposes of paragraph (1),
the term `qualified employee' means an employee who works an
average of not less than 25 hours per week during the taxable
year.
``(e) Other Definitions and Special Rules.--For purposes of
this section--
``(1) Employee and employer.--
``(A) Partners and partnerships.--The term `employee'
includes a partner and the term `employer' includes a
partnership.
``(B) Certain rules to apply.--Rules similar to the rules
of section 52 shall apply.
``(2) Certain costs not included.--Costs paid or incurred
by an employer for food or health insurance shall not be
taken into account under subsection (a).
``(3) No credit where grant awarded.--No credit shall be
allowable under subsection (a) with respect to any qualified
wellness program of any taxpayer (other than an eligible
employer described in subsection (f)(2)(A)) who receives a
grant provided by the United States, a State, or a political
subdivision of a State for use in connection with such
program. The Secretary shall prescribe rules providing for
the waiver of this paragraph with respect to any grant which
does not constitute a significant portion of the funding for
the qualified wellness program.
``(4) Credit period.--
``(A) In general.--The term `credit period' means the
period of 10 consecutive taxable years beginning with the
taxable year in which the qualified wellness program is first
certified under this section.
``(B) Special rule for existing programs.--In the case of
an employer (or predecessor) which operates a wellness
program for its employees on the date of the enactment of
this section, subparagraph (A) shall be applied by
substituting `3 consecutive taxable years' for `10
consecutive taxable years'. The Secretary shall prescribe
rules under which this subsection shall not apply if an
employer is required to make substantial modifications in the
existing wellness program in order to qualify such program
for certification as a qualified wellness program.
``(C) Controlled groups.--For purposes of this paragraph,
all persons treated as a single employer under subsection
(b), (c), (m), or (o) of section 414 shall be treated as a
single employer.
``(f) Portion of Credit Made Refundable.--
``(1) In general.--In the case of an eligible employer of
an employee, the aggregate credits allowed to a taxpayer
under subpart C shall be increased by the lesser of--
``(A) the credit which would be allowed under this section
without regard to this subsection and the limitation under
section 38(c), or
[[Page S234]]
``(B) the amount by which the aggregate amount of credits
allowed by this subpart (determined without regard to this
subsection) would increase if the limitation imposed by
section 38(c) for any taxable year were increased by the
amount of employer payroll taxes imposed on the taxpayer
during the calendar year in which the taxable year begins.
The amount of the credit allowed under this subsection shall
not be treated as a credit allowed under this subpart and
shall reduce the amount of the credit otherwise allowable
under subsection (a) without regard to section 38(c).
``(2) Eligible employer.--For purposes of this subsection,
the term `eligible employer' means an employer which is--
``(A) a State or political subdivision thereof, the
District of Columbia, a possession of the United States, or
an agency or instrumentality of any of the foregoing, or
``(B) any organization described in section 501(c) of the
Internal Revenue Code of 1986 which is exempt from taxation
under section 501(a) of such Code.
``(3) Employer payroll taxes.--For purposes of this
subsection--
``(A) In general.--The term `employer payroll taxes' means
the taxes imposed by--
``(i) section 3111(b), and
``(ii) sections 3211(a) and 3221(a) (determined at a rate
equal to the rate under section 3111(b)).
``(B) Special rule.--A rule similar to the rule of section
24(d)(2)(C) shall apply for purposes of subparagraph (A).
``(g) Termination.--This section shall not apply to any
amount paid or incurred after December 31, 2017.''.
(b) Treatment as General Business Credit.--Subsection (b)
of section 38 of the Internal Revenue Code of 1986 is amended
by striking ``plus'' at the end of paragraph (35), by
striking the period at the end of paragraph (36) and
inserting ``, plus'', and by adding at the end the following:
``(37) the wellness program credit determined under section
45S.''.
(c) Denial of Double Benefit.--Section 280C of the Internal
Revenue Code of 1986 is amended by adding at the end the
following new subsection:
``(j) Wellness Program Credit.--
``(1) In general.--No deduction shall be allowed for that
portion of the costs paid or incurred for a qualified
wellness program (within the meaning of section 45S)
allowable as a deduction for the taxable year which is equal
to the amount of the credit allowable for the taxable year
under section 45S.
``(2) Similar rule where taxpayer capitalizes rather than
deducts expenses.--If--
``(A) the amount of the credit determined for the taxable
year under section 45S, exceeds
``(B) the amount allowable as a deduction for such taxable
year for a qualified wellness program,
the amount chargeable to capital account for the taxable year
for such expenses shall be reduced by the amount of such
excess.
``(3) Controlled groups.--In the case of a corporation
which is a member of a controlled group of corporations
(within the meaning of section 41(f)(5)) or a trade or
business which is treated as being under common control with
other trades or business (within the meaning of section
41(f)(1)(B)), this subsection shall be applied under rules
prescribed by the Secretary similar to the rules applicable
under subparagraphs (A) and (B) of section 41(f)(1).''.
(d) Clerical Amendment.--The table of sections for subpart
D of part IV of subchapter A of chapter 1 of the Internal
Revenue Code of 1986 is amended by adding at the end the
following:
``Sec. 45S. Wellness program credit.''.
(e) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after the date of
enactment of this Act.
(f) Outreach.--
(1) In general.--The Secretary of the Treasury, in
conjunction with the Director of the Centers for Disease
Control and members of the business community, shall
institute an outreach program to inform businesses about the
availability of the wellness program credit under section 45S
of the Internal Revenue Code of 1986 as well as to educate
businesses on how to develop programs according to recognized
and promising practices and on how to measure the success of
implemented programs.
(2) Authorization of appropriations.--There are authorized
to be appropriated such sums as are necessary to carry out
the outreach program described in paragraph (1).
SEC. 212. EMPLOYER-PROVIDED OFF-PREMISES ATHLETIC FACILITIES.
(a) Treatment as Fringe Benefit.--Subparagraph (A) of
section 132(j)(4) of the Internal Revenue Code of 1986 is
amended to read as follows:
``(A) In general.--Gross income shall not include--
``(i) the value of any on-premises athletic facility
provided by an employer to its employees, and
``(ii) so much of the fees, dues, or membership expenses
paid by an employer to an athletic or fitness facility
described in subparagraph (C) on behalf of its employees as
does not exceed $900 per employee per year.''.
(b) Athletic Facilities Described.--Paragraph (4) of
section 132(j) of the Internal Revenue Code of 1986 is
amended by adding at the end the following new subparagraph:
``(C) Certain athletic or fitness facilities described.--
For purposes of subparagraph (A)(ii), an athletic or fitness
facility described in this subparagraph is a facility--
``(i) which provides instruction in a program of physical
exercise, offers facilities for the preservation,
maintenance, encouragement, or development of physical
fitness, or is the site of such a program of a State or local
government,
``(ii) which is not a private club owned and operated by
its members,
``(iii) which does not offer golf, hunting, sailing, or
riding facilities,
``(iv) whose health or fitness facility is not incidental
to its overall function and purpose, and
``(v) which is fully compliant with the State of
jurisdiction and Federal anti-discrimination laws.''.
(c) Exclusion Applies to Highly Compensated Employees Only
if No Discrimination.--Section 132(j)(1) of the Internal
Revenue Code of 1986 is amended--
(1) by striking ``Paragraphs (1) and (2) of subsection
(a)'' and inserting ``Subsections (a)(1), (a)(2), and
(j)(4)'', and
(2) by striking the heading thereof through ``apply'' and
inserting ``Certain exclusions apply''.
(d) Employer Deduction for Dues to Certain Athletic
Facilities.--
(1) In general.--Paragraph (3) of section 274(a) of the
Internal Revenue Code of 1986 is amended by adding at the end
the following new sentence: ``The preceding sentence shall
not apply to so much of the fees, dues, or membership
expenses paid to athletic or fitness facilities (within the
meaning of section 132(j)(4)(C)) as does not exceed $900 per
employee per year.''.
(2) Conforming amendment.--The last sentence of section
274(e)(4) of such Code is amended by inserting ``the first
sentence of'' before ``subsection (a)(3)''.
(e) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after the date of the
enactment of this Act.
SEC. 213. TASK FORCE FOR THE PROMOTION OF BREASTFEEDING IN
THE WORKPLACE.
(a) Establishment.--The Secretary of Health and Human
Services and the Secretary of Labor, or their designees,
shall convene a task force for the purpose of promoting
breastfeeding among working mothers (referred to in this
section as the ``Task Force'').
(b) Membership.--The Task Force shall be composed of
members who are--
(1) expert staff from the Department of Labor with
expertise in workforce issues;
(2) expert staff from the Department of Health and Human
Services with expertise in the areas of breastfeeding and
breastfeeding promotion;
(3) members of the United States Breastfeeding Committee;
(4) expert staff from the Department of Agriculture; and
(5) appointed by the Secretary of Health and Human Services
and the Secretary of Labor, including--
(A) working mothers who have experience in working and
breastfeeding; and
(B) representatives of the human resource departments of
both large and small employers that have successfully
promoted breastfeeding and breastmilk pumping support at
work.
(c) Period of Appointment; Vacancies.--Members shall be
appointed for the life of the Task Force. Any vacancy in the
Task Force shall not affects its powers, but shall be filled
in the same manner as the original appointment.
(d) Chair.--The Task Force shall be chaired jointly by the
Secretary of Health and Human Services and the Secretary of
Labor, or their designees.
(e) Duties of the Task Force.--
(1) Examination.--Consistent with the Department of Health
and Human Services Blueprint for Action on Breastfeeding
(2000), the Task Force shall examine the following issues:
(A) The challenges that mothers face with continuing
breastfeeding when the mothers return to work after giving
birth.
(B) The challenges that employers face in accommodating
mothers who seek to continue to breastfeed or to express milk
when the mothers re-enter the workforce, including different
challenges that mothers of varying socio-economic status and
in different professions may face.
(C) The benefits that accrue to mothers, babies, and to
employers when mothers are able to continue to breastfeed or
to express breastmilk at work after the mothers have re-
entered the workforce.
(D) Federal and State statutes that may have the effect of
reducing breastfeeding and breastfeeding retention rates
among working mothers.
(2) Reports.--
(A) In general.--Not later than 1 year after the date of
enactment of this section, the Task Force shall issue a
public report with recommendations on the following:
(i) Steps that can be taken to promote breastfeeding among
working mothers and to remove barriers to breastfeeding among
working mothers.
(ii) Potential ways in which the Federal Government can
work with employers to promote breastfeeding among working
mothers.
(iii) Areas in which changes to existing Federal, State, or
local laws would likely
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have the effect of making it easier for working mothers to
breastfeed or would remove impediments to breastfeeding that
currently exist in such laws.
(iv) Whether or not increased rates of breastfeeding among
working mothers would likely have the result of reducing
health care costs among such mothers and their children, and,
in particular, whether increased rates of breastfeeding would
be likely to result in lower Federal expenditures on health
care for such mothers and their children.
(v) Areas in which the Federal Government, through
increased efforts by Federal agencies, or changes to existing
Federal law, can and should increase the Federal Government's
efforts to promote breastfeeding among working mothers.
(B) Copy to congress.--Upon completion of the report
described in subparagraph (A), the Task Force shall submit a
copy of the report to the Committee on Health, Education,
Labor, and Pensions of the Senate, the Committee on
Appropriations of the Senate, the Committee on Education and
the Workforce of the House of Representatives, and the
Committee on Appropriations of the House of Representatives.
(f) Powers of the Task Force.--
(1) Hearings.--The Task Force may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Task Force considers advisable
to carry out this section.
(2) Information from federal agencies.--The Task Force may
secure directly from any Federal department or agency such
information as the Task Force considers necessary to carry
out this section. Upon request of the Chair of the Task
Force, the head of such department or agency shall furnish
such information to the Task Force.
(3) Postal services.--The Task Force may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(4) Donations.--The Task Force may accept, use, and dispose
of donations of services or property.
(g) Operating Expenses.--The operating expenses of the Task
Force, including travel expenses for members of the Task
Force, shall be paid for from the general operating expenses
funds of the Secretary of Health and Human Services and the
Secretary of Labor.
SEC. 214. IMPROVING HEALTHY EATING AND ACTIVE LIVING OPTIONS
IN FEDERAL WORKPLACES.
(a) Menu Labeling in Federal Food Establishments.--
(1) In general.--
(A) Executive and judicial buildings.--Section 403(q) of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(q))
is amended by adding at the end the following:
``(6)(A) The requirements of subparagraph (5)(H) shall
apply--
``(i) to a restaurant or similar retail food establishment
located in a Federal building in the same manner as such
subparagraph applies to a restaurant or similar retail food
establishment that is part of a chain with 20 or more
locations, as described in subparagraph (5)(H)(i); and
``(ii) to a person that operates a vending machine located
in a Federal building in the same manner as such subparagraph
applies to a person who is engaged in the business of owning
or operating 20 or more vending machines, as described in
subparagraph (5)(H)(viii).
``(B) In this subparagraph, the term `Federal building'
means a building that is--
``(i) under the control of the Federal agency (as defined
in section 102 of title 40, United States Code);
``(ii) owned by the Federal Government; and
``(iii) located in a State, the District of Columbia,
Puerto Rico, or a territory or possession of the United
States.''.
(B) Applicability.--The requirement in the amendment made
by paragraph (1) shall apply to restaurants or similar retail
food establishments and vending machines located in a Federal
building beginning 12 months after the date of enactment of
this Act.
(2) Congressional buildings.--The Architect of the Capitol,
in coordination with the Committee on Rules and
Administration of the Senate and the Committee on House
Administration of the House of Representatives, shall
establish a program to apply the requirements of section
403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 343(q)(5)(H)) (as amended by paragraph (1)) to--
(A) food that is served in restaurants or other similar
retail food establishments that are located in Congressional
buildings and installations;
(B) food that is sold through vending machines that are
operated in Congressional buildings and installations; and
(C) food that is served to individuals within Congressional
buildings and installations pursuant to a contract with a
private entity.
(b) Nutritional Standards for Food in Federal Buildings.--
(1) Executive and judicial buildings.--Subchapter V of
chapter 5 of subtitle I of title 40, United States Code, is
amended by adding at the end the following:
``SEC. 594. NUTRITIONAL STANDARDS FOR FOOD IN FEDERAL
BUILDINGS.
``(a) In General.--The Administrator of General Services,
in consultation with the Secretary of Health and Human
Services, shall establish, by regulation, nutritional
standards for all food products provided at Federal buildings
and installations (including food products provided by
contractors or vending machines).
``(b) Use of Amounts.--Amounts appropriated to an executive
agency for installation, repair, and maintenance, generally,
may be used to achieve compliance with the regulations
promulgated pursuant to this section.
``(c) Liability.--Nothing in this section increases or
enlarges the tort liability of the Federal Government for any
injury to an individual or damage to property.''.
(2) Congressional buildings.--The Architect of the Capitol,
in coordination with the Committee on Rules and
Administration of the Senate and the Committee on House
Administration of the House of Representatives shall
establish nutritional standards for all food products
provided at Congressional buildings and installations
(including food products provided by contractors or vending
machines).
(c) Encouragement of Use of Stairs.--
(1) Executive and judicial buildings.--Subchapter V of
chapter 5 of subtitle I of title 40, United States Code, as
amended by subsection (b), is further amended by adding at
the end the following:
``SEC. 595. ENCOURAGEMENT OF USE OF STAIRS.
``(a) In General.--Each Federal agency shall install point-
of-decision prompts encouraging individuals to use stairs
wherever practicable at each relevant building and
installation that is--
``(1) under the control of the Federal agency;
``(2) owned by the Federal Government; and
``(3) located in a State, the District of Columbia, Puerto
Rico, or a territory or possession of the United States.
``(b) Reimbursement.--Subsection (a) may be carried out
by--
``(1) reimbursement to a State or political subdivision of
a State, the District of Columbia, Puerto Rico, or a
territory or possession of the United States; or
``(2) a means other than reimbursement.
``(c) Regulations.--Subsection (a) shall be carried out in
accordance with such regulations as the Administrator of
General Services may promulgate, with the approval of the
Director of the Office of Management and Budget.
``(d) Use of Amounts.--Amounts appropriated to a Federal
agency for installation, repair, and maintenance, generally,
shall be available to carry out this section.
``(e) Liability.--Nothing in this section increases or
enlarges the tort liability of the Federal Government for any
injury to an individual or damage to property.''.
(2) Congressional buildings.--The Architect of the Capitol
shall implement a program to install point-of-decision
prompts encouraging individuals to use stairs wherever
practicable in Congressional buildings and installations in
the same manner as established under section 595 of title 40,
United States Code (as added by paragraph (1)).
(d) Accommodations for Bicycle Commuters.--
(1) Executive and judicial federal buildings.--Subchapter V
of chapter 5 of subtitle I of title 40, United States Code,
as amended by subsection (c), is further amended by adding at
the end the following:
``SEC. 596. ACCOMMODATIONS FOR BICYCLE COMMUTERS.
``(a) In General.--Each Federal agency shall install and
maintain a bicycle storage area and equipment (such as a
bicycle rack) and a shower for bicycle commuters at each
relevant parking structure that is--
``(1) under the control of the Federal agency;
``(2) owned by the Federal Government; and
``(3) located in a State, the District of Columbia, Puerto
Rico, or a territory or possession of the United States.
``(b) Reimbursement.--Subsection (a) may be carried out
by--
``(1) reimbursement to a State or political subdivision of
a State, the District of Columbia, Puerto Rico, or a
territory or possession of the United States; or
``(2) a means other than reimbursement.
``(c) Regulations.--Subsection (a) shall be carried out in
accordance with such regulations as the Administrator of
General Services may promulgate, with the approval of the
Director of the Office of Management and Budget.
``(d) Use of Amounts.--Amounts appropriated to a Federal
agency for installation, repair, and maintenance, generally,
shall be available to carry out this section.
``(e) Liability.--Nothing in this section increases or
enlarges the tort liability of the Federal Government for any
injury to an individual or damage to property.''.
(2) Congressional buildings.--The Architect of the Capitol,
in coordination with the Sergeant at Arms and Doorkeeper of
the Senate, the Sergeant at Arms of the House of
Representatives, and the United States Capitol Police, shall
implement, within their respective jurisdictions, a program
to make accommodations for bicycle commuters on the United
States Capitol complex in the same manner as established
under section 596 of title 40, United States Code (as added
by paragraph (1)).
TITLE III--RESPONSIBLE MARKETING AND CONSUMER AWARENESS
SEC. 301. GUIDELINES FOR REDUCTION IN SODIUM CONTENT IN
CERTAIN FOODS.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the
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Secretary of Health and Human Services shall promulgate
regulations establishing guidelines for the reduction, over a
2 year period, in the sodium content of processed food and
restaurant food following, as appropriate, the
recommendations made by the Institute of Medicine report
entitled ``Strategies to Reduce Sodium Intake in the United
States''.
(b) Definitions.--For purposes of this section--
(1) the term ``processed food'' has the meaning given such
term in section 201(gg) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321(gg)); and
(2) the term ``restaurant food'' means food subject to the
requirements of section 403(q)(5)(H) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 343(q)(5)(H)).
SEC. 302. NUTRITION LABELING FOR FOOD PRODUCTS SOLD
PRINCIPALLY FOR USE IN RESTAURANTS OR OTHER
RETAIL FOOD ESTABLISHMENTS.
Section 403(q)(5) of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 343(q)(5)) is amended by striking clause (G).
SEC. 303. FRONT-LABEL FOOD GUIDANCE SYSTEMS.
(a) In General.--Not later than 6 months after the date of
enactment of this Act, the Secretary of Health and Human
Services (referred to in this section as the ``Secretary'')
shall begin soliciting public comments regarding--
(1) the use of retail front-label food guidance systems to
convey nutrition information to the public using logos,
symbols, signs, emblems, insignia, or other graphic
representations on the labeling of food intended for human
consumption that are intended to provide simple,
standardized, and understandable nutrition information to the
public in graphic form;
(2) appropriate nutrition standards by which a retail
front-label food guidance system may convey the relative
nutritional value of different foods in simple graphic form;
and
(3) whether American consumers would be better served by
establishing a single, standardized retail front-label food
guidance system regulated by the Food and Drug
Administration, or by allowing individual food companies,
trade associations, nonprofit organizations, and others to
continue to develop their own retail front-label food
guidance systems.
(b) Effect on Nutrition Facts Panel.--In soliciting public
comments under subsection (a), the Secretary shall inform the
public that any retail front-label food guidance system is
intended to supplement, not replace, the Nutrition Facts
Panel that appears on food labels pursuant to section 403(q)
of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
343(q)).
(c) Proposed Regulation.--Not later than 12 months
following the closure of the public comment solicitation
period under subsection (a), the Secretary shall--
(1) publish a notice in the Federal Register that
summarizes the public comments and describes the suggested
retail front-label food guidance systems received through
such solicitation; and
(2) publish proposed regulations that--
(A) establish a single, standardized retail front-label
food guidance system; or
(B) establish the conditions under which individual food
companies, trade associations, nonprofit organizations, and
other entities may continue to develop their own retail
front-label food guidance systems.
SEC. 304. RULEMAKING AUTHORITY FOR ADVERTISING TO CHILDREN.
(a) Purpose.--The purpose of this section is to restore the
authority of the Federal Trade Commission to issue
regulations that restrict the marketing or advertising of
foods and beverages to children under the age of 18 years if
the Federal Trade Commission determines that there is
evidence that consumption of certain foods and beverages is
detrimental to the health of children.
(b) Authority.--Section 18 of the Federal Trade Commission
Act (15 U.S.C. 57a) is amended--
(1) in subsection (a), by striking ``Except as provided in
subsection (h), the'' and inserting ``The'';
(2) by amending subsection (b) to read as follows:
``(b) Procedure Applicable.--When prescribing a rule under
subsection (a)(1)(B) of this section, the Commission shall
proceed in accordance with section 553 of title 5 (without
regard to any reference in such section to sections 556 and
557 of such title).'';
(3) by striking subsections (c), (f), (h), (i), and (j);
(4) by striking subsection (d) and inserting the following:
``(c) When any rule under subsection (a)(1)(B) takes effect
a subsequent violation thereof shall constitute an unfair or
deceptive act or practice in violation of section 5(a)(1) of
this Act, unless the Commission otherwise expressly provides
in such rule.'';
(5) by redesignating subsections (e) and (g) as subsections
(d) and (e), respectively; and
(6) in subsection (d), as redesignated--
(A) in paragraph (1)(B), by striking ``the transcript
required by subsection (c)(5),'';
(B) in paragraph (3), by striking ``error)'' and all that
follows through the period at the end and inserting
``error).''; and
(C) in paragraph (5), by striking subparagraph (C).
SEC. 305. HEALTH LITERACY: RESEARCH, COORDINATION AND
DISSEMINATION.
(a) In General.--Part A of title IX of the Public Health
Service Act (42 U.S.C. 299 et seq.) is amended by adding at
the end the following:
``SEC. 904. HEALTH LITERACY: RESEARCH, COORDINATION AND
DISSEMINATION.
``(a) Definition.--In this section, the term `health
literacy' means a consumer's ability to obtain, process, and
understand basic health information and services needed to
make appropriate health care decisions and the adaptation of
services to enhance a consumer's understanding and navigation
of applicable health care services.
``(b) Health Literacy Program.--
``(1) Establishment.--The Director shall establish within
the Agency a program (referred to in this section as the
`program') to strengthen health literacy by improving
measurement, research, development, and information
dissemination.
``(2) Duties.--In carrying out the program, the Director
shall--
``(A) gather health literacy resources from public and
private sources and make such resources available to
researchers, health care providers, and the general public;
``(B) identify and fill research gaps relating to health
literacy that have direct applicability to--
``(i) prevention;
``(ii) self-management of chronic disease;
``(iii) quality improvement;
``(iv) the barriers to health literacy;
``(v) relationships between health literacy and health
disparities, particularly with respect to language and
cultural competency; and
``(vi) the utilization of information on comparative
effectiveness of health treatments;
``(C) sponsor demonstration and evaluation projects with
respect to interventions and tools designed to strengthen
health literacy, including projects focused on--
``(i) the provision of simplified, patient-centered written
materials;
``(ii) technology-based communication techniques;
``(iii) consumer navigation services; and
``(iv) the training of health professional providers;
``(D) give preference to health literacy initiatives that--
``(i) focus on the particular needs of vulnerable
populations such as the elderly, racial and ethnic
minorities, children, individuals with limited English
proficiency, and individuals with disabilities; and
``(ii) partner with institutions in the community such as
schools, libraries, senior centers, literacy groups,
recreation centers, early childhood education centers, area
health education centers, and public assistance programs;
``(E) assist appropriate Federal agencies in establishing
specific objectives and strategies for carrying out the
program, in monitoring the programs of such agencies, and
incorporating health literacy into research design, human
subjects protections, and informed consent in clinical
research;
``(F) seek to enter into implementation partnerships with
organizations and agencies, including other agencies within
the Department of Health and Human Services, such as the
Centers for Medicare & Medicaid Services and the Health
Resources and Services Administration, the Office of the
Surgeon General, the Joint Commission on the Accreditation of
Healthcare Organizations, the Office of the National
Coordinator for Health Information Technology, and the
National Committee for Quality Assurance, to promote the
adoption of interventions and tools developed under this
section, particularly in the training of health
professionals; and
``(G) coordinate with other agencies within the Department
of Health and Human Services to collect data that monitors
national trends in health literacy by including relevant
items in surveys such as the Medical Expenditure Panel
Survey, the National Health Interview Survey, and the
National Hospital Discharge Survey.
``(3) Report.--The Agency for Healthcare Research and
Quality shall annually submit to Congress a report that
includes--
``(A) a comprehensive and detailed description of the
operations, activities, financial condition, and
accomplishments of the Agency in the field of health
literacy; and
``(B) a description of how plans for the operation of the
program for the succeeding fiscal year will facilitate
achievement of the goals of the program.
``(4) Authorization of appropriations.--There are
authorized to be appropriated to carry out this subsection
such sums as may be necessary for each of fiscal years 2012
through 2016.
``(c) State Health Literacy Grants.--
``(1) Grants.--The Director of the Agency shall award
grants to eligible entities to facilitate State and community
efforts to strengthen health literacy.
``(2) Use of funds.--An entity receiving a grant under this
subsection shall use amounts received under such grant to--
``(A) support efforts to monitor and strengthen health
literacy within a State or community;
``(B) assist public and private efforts in the State or
community in coordinating and delivering health literacy
services;
``(C) encourage partnerships among State and local
governments, community organizations, non-profit entities,
academic institutions, and businesses to coordinate efforts
to strengthen health literacy;
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``(D) provide technical and policy assistance to State and
local governments and service providers; and
``(E) monitor and evaluate programs conducted under this
grant.
``(3) Report.--Not later than September 30 of each fiscal
year for which a grant is received by an entity under this
section, the entity shall submit to the Director a report
that describes the programs supported by the grant and the
results of monitoring and evaluation of those programs.
``(4) Authorization of appropriations.--There are
authorized to be appropriated such sums as may be necessary
to carry out this subsection for each of fiscal years 2012
through 2016.''.
(b) Institute of Medicine Study and Report.--
(1) Study.--The Secretary of Health and Human Services
shall seek to enter into a contract with the Institute of
Medicine to conduct a study identifying opportunities within
the Department of Health and Human Services to strengthen the
health literacy of health care providers and health care
consumers in accordance with the Patient Protection and
Affordable Care Act (Public law 111-148).
(2) Report.--A contract entered into under paragraph (1)
shall include a provision requiring the Institute of
Medicine, not later than 1 year after the date of enactment
of this Act, to submit a report concerning the results of the
study conducted under paragraph (1) to the Secretary of
Health and Human Services and the appropriate committees of
Congress.''.
SEC. 306. DISALLOWANCE OF DEDUCTIONS FOR ADVERTISING AND
MARKETING EXPENSES RELATING TO TOBACCO PRODUCT
USE.
(a) In General.--Part IX of subchapter B of chapter 1 of
subtitle A of the Internal Revenue Code of 1986 (relating to
items not deductible) is amended by adding at the end the
following new section:
``SEC. 280I. DISALLOWANCE OF DEDUCTION FOR ADVERTISING AND
MARKETING EXPENSES RELATING TO TOBACCO PRODUCT
USE.
``No deduction shall be allowed under this chapter for
expenses relating to advertising or marketing cigars,
cigarettes, smokeless tobacco, pipe tobacco, or any other
tobacco product. For purposes of this section, any term used
in this section which is also used in section 5702 shall have
the same meaning given such term by section 5702.''.
(b) Conforming Amendment.--The table of sections for such
part IX is amended by adding after the item relating to
section 280H the following new item:
``Sec. 280I. Disallowance of deduction for tobacco advertising and
marketing expenses.''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after the date of the
enactment of this Act.
SEC. 307. INCENTIVES TO REDUCE TOBACCO USE.
(a) Child Tobacco Use Surveys.--
(1) Annual performance survey.--
(A) In general.--Not later than August 31, 2012, and
annually thereafter, the Secretary of Health and Human
Services (referred to in this section as the ``Secretary'')
shall publish the results of an annual tobacco use survey, to
be carried out not later than 18 months after the date of
enactment of this Act and completed on an annual basis
thereafter, to determine--
(i) the percentage of all young individuals who used
tobacco products within the 30-day period prior to the
conduct of the survey involved; and
(ii) the percentage of young individuals who identify each
brand of each type of tobacco product as the usual brand used
within such 30-day period.
(B) Young individuals.--For the purposes of this section,
the term ``young individuals'' means individuals who are
under 18 years of age.
(2) Size and methodology.--
(A) In general.--The survey referred to in paragraph (1)
may be the National Survey on Drug Use and Health or shall at
least be comparable in size and methodology to the NSDUH that
was completed in 2009 to measure the use of cigarettes (by
brand) by youths under 18 years of age within the 30-day
period prior to the conduct of the study.
(B) Conclusive accurateness.--A survey using the
methodology described in subparagraph (A) shall be deemed
conclusively proper, correct, and accurate for purposes of
this section.
(C) Definition.--In this section, the term ``National
Survey on Drug Use and Health'' or ``NSDUH'' means the annual
nationwide survey of randomly selected individuals, aged 12
and older, conducted by the Substance Abuse and Mental Health
Services Administration.
(3) Reduction.--The Secretary, based on a comparison of the
results of the first annual tobacco product survey referred
to in paragraph (1) and the most recent NSDUH referred to in
paragraph (2)(A) completed prior to the date of enactment of
this Act, shall determine the percentage reduction (if any)
in youth tobacco use for each manufacturer of tobacco
products.
(4) Participation in survey.--Notwithstanding any other
provision of law, the Secretary may conduct a survey under
this subsection involving minors if the results of such
survey with respect to such minors are kept confidential and
not disclosed.
(5) Nonapplicability.--Chapter 35 of title 44, United
States Code, shall not apply to information required for the
purposes of carrying out this section.
(b) Tobacco Use Reduction Goal and Noncompliance.--
(1) Goal.--It shall be the tobacco use reduction goal that
youth tobacco use be reduced by at least 5 percent or a level
determined significantly sufficient by the Secretary between
the most recent NSDUH referred to in subsection (a)(2)(A) and
the completion of the first annual cigarette survey (and such
subsequent surveys as compared to the previous year's survey)
referred to in subsection (a)(1).
(2) Noncompliance.--
(A) Industry-wide penalty.--If the Secretary determines
that the tobacco use reduction goal under paragraph (1) has
not been achieved, the Secretary shall, not later than
September 10, 2012, and September 10 of each year thereafter,
impose an industry-wide penalty on the manufacturers of
cigarettes in an amount that is in the aggregate equal to
$3,000,000,000.
(B) Payment.--The industry-wide penalty imposed under this
subsection shall be paid by each manufacturer based on the
brand share among youth ages 12-17 (as determined by the
survey described in subsection (a)(1)) as such percentage
relates to the total amount to be paid by all manufacturers.
(C) Final determination.--The determination of the
Secretary as to the amount and allocation of a surcharge
under this section shall be final and the manufacturer shall
pay such surcharge within 10 days of the date on which the
manufacturer is assessed. Such payment shall be retained by
the Secretary pending final judicial review of what, if any,
change in the surcharge is appropriate.
(D) Limitation.--With respect to cigarettes, a manufacturer
with a market share of 1 percent or less of youth tobacco use
shall not be liable for the payment of a surcharge under this
paragraph.
(E) Use of amounts.--Amounts collected under subparagraph
(A) shall be deposited into the Prevention and Public Health
Fund established under section 4002 of the Patient Protection
and Affordable Care Act (42 U.S.C. 300u-11). Such funds shall
remain available for transfer through September 30th of the
fifth fiscal year following their collection, subject to the
terms and conditions of such section 4002.
(3) Penalties nondeductible.--The payment of penalties
under this section shall not be considered to be an ordinary
and necessary expense in carrying on a trade or business for
purposes of the Internal Revenue Code of 1986 and shall not
be deductible.
(4) Judicial review.--
(A) After payment.--A manufacturer of cigarettes may seek
judicial review of any action under this section only after
the assessment involved has been paid by the manufacturer to
the Department of the Treasury and only in the United States
District Court for the District of Columbia.
(B) Review by attorney general.--Prior to the filing of an
action by a manufacturer seeking judicial review of an action
under this section, the manufacturer shall notify the
Attorney General of such intent to file and the Attorney
General shall have 30 days in which to respond to the action.
(C) Review.--The amount of any surcharge paid under this
section shall be subject to judicial review by the United
States Court of Appeals for the District of Columbia Circuit,
based on the arbitrary and capricious standard of section 706
of title 5, United States Code. Notwithstanding any other
provision of law, no court shall have the authority to stay
any surcharge payment due to the Secretary under this section
pending judicial review until the Secretary has made or
failed to make a compliance determination, as described under
this section, that has adversely affected the person seeking
the review.
(c) Enforcement.--
(1) Initial penalty.--There is hereby imposed an initial
penalty on the failure of any manufacturer to make any
payment required under this section not later than a period
determined sufficient by the Secretary after the date on
which such payment is due.
(2) Amount of penalty.--The amount of the penalty imposed
by paragraph (1) on any failure with respect to a
manufacturer shall be an amount equal to 2 percent of the
penalty owed under subsection (b) for each day during the
noncompliance period.
(3) Noncompliance period.--For purposes of this subsection,
the term ``noncompliance period'' means, with respect to any
failure to make the surcharge payment required under this
section, the period--
(A) beginning on the due date for such payment; and
(B) ending on the date on which such payment is paid in
fall.
(4) Limitations.--No penalty shall be imposed by paragraph
(1) on--
(A) any failure to make a surcharge payment under this
section during any period for which it is established to the
satisfaction of the Secretary that none of the persons
responsible for such failure knew or, exercising reasonable
diligence, would have known, that such failure existed; or
(B) any manufacturer that produces less than 1 percent of
cigarettes used by youth in that year (as determined by the
annual survey).
[[Page S238]]
TITLE IV--EXPANDED COVERAGE OF PREVENTIVE SERVICES
SEC. 401. REQUIRED COVERAGE OF PREVENTIVE SERVICES UNDER THE
MEDICAID PROGRAM.
(a) Mandatory Coverage.--Section 1905 of the Social
Security Act (42 U.S.C. 1396d), as amended by section
4107(a)(1) of the Patient Protection and Affordable Care Act
(Public Law 111-148), is amended--
(1) in subsection (a)(4)--
(A) by striking ``and'' before ``(D)''; and
(B) by inserting before the semicolon at the end the
following new subparagraph: ``; and (E) preventive services
described in subsection (ee);'' and
(2) by adding at the end the following new subsection:
``(ee) Preventive Services.--For purposes of subsection
(a)(4)(E), the preventives services described in this
subsection are diagnostic, screening, preventive, and
rehabilitative services not otherwise described in subsection
(a) or (r) that the Secretary determines are appropriate for
individuals entitled to medical assistance under this title,
including--
``(1) evidence-based services that are assigned a grade of
A or B by the United States Preventive Services Task Force;
and
``(2) with respect to an adult individual, approved
vaccines recommended for routine use by the Advisory
Committee on Immunization Practices of the Centers for
Disease Control and Prevention.''.
(b) Elimination of Cost-sharing.--
(1) Subsections (a)(2)(D) and (b)(2)(D) of section 1916 of
the Social Security Act (42 U.S.C. 1396o) are each amended by
inserting ``preventive services described in section
1905(ee),'' after ``emergency services (as defined by the
Secretary),''.
(2) Section 1916A(a)(1) of such Act (42 U.S.C. 1396o-
1(a)(1)) is amended by inserting ``, preventive services
described in section 1905(ee),'' after ``subsection (c)''.
(c) Conforming Amendment.--Effective as if included in the
enactment of the Patient Protection and Affordable Care Act
(Public Law 111-148), the provisions of, and amendments made
by, section 4106 of such Act are repealed.
(d) Interval Period for Inclusion of New Recommendations in
State Plans.--With respect to a recommendation issued on or
after the date of enactment of this Act by an organization
described in subsection (ee) of section 1905 of the Social
Security Act for a preventive service included under such
subsection, the Secretary of Health and Human Services shall
establish a minimum interval period, which shall be not less
than 12 months, between the date on which the recommendation
is issued and the plan year for which a State plan for
medical assistance under title XIX of the Social Security Act
shall be required to include such preventive service.
(e) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a) and (b) take effect on the
date of enactment of this Act.
(2) Extension of effective date for state law amendment.--
In the case of a State plan under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.) which the Secretary of
Health and Human Services determines requires State
legislation or State regulation in order for the plan to meet
the additional requirements imposed by the amendments made by
subsections (a) and (b), the State plan shall not be regarded
as failing to comply with the requirements of such title
solely on the basis of its failure to meet these additional
requirements before the first day of the first calendar
quarter beginning after the close of the first regular
session of the State legislature that begins after the date
of enactment of this Act. For purposes of the previous
sentence, in the case of a State that has a 2-year
legislative session, each year of the session is considered
to be a separate regular session of the State legislature.
SEC. 402. COVERAGE FOR COMPREHENSIVE WORKPLACE WELLNESS
PROGRAM AND PREVENTIVE SERVICES.
Section 8904(a) of title 5, United States Code, is
amended--
(1) in paragraph (1), by adding at the end the following:
``(G) Comprehensive workplace wellness program benefits
that meet the requirements of section 10408 of the Patient
Protection and Affordable Care Act (Public Law 111-148).
``(H) Preventive services benefits deemed an `A' or `B'
service by the United States Preventive Services Taskforce.
``(I) Immunizations that have in effect a recommendation
from the Advisory Committee on Immunization Practices of the
Centers for Disease Control and Prevention with respect to
the individuals involved.
``(J) With respect to infants, children, and adolescents,
evidence-informed preventive care and screenings provided for
in the comprehensive guidelines supported by the Health
Resources and Services Administration of the Department of
Health and Human Services.''; and
(2) in paragraph (2), by adding at the end the following:
``(G) Comprehensive workplace wellness program benefits
that meet the requirements of section 10408 of the Patient
Protection and Affordable Care Act (Public Law 111-148).
``(H) Preventive services benefits deemed an `A' or `B'
service by the United States Preventive Services Taskforce.
``(I) Immunizations that have in effect a recommendation
from the Advisory Committee on Immunization Practices of the
Centers for Disease Control and Prevention with respect to
the individuals involved.
``(J) With respect to infants, children, and adolescents,
evidence-informed preventive care and screenings provided for
in the comprehensive guidelines supported by the Health
Resources and Services Administration of the Department of
Health and Human Services.''.
SEC. 403. HEALTH PROFESSIONAL EDUCATION AND TRAINING IN
HEALTHY EATING.
Part Q of title III of the Public Health Service Act (42
U.S.C. 280h et seq.) is amended by striking section 399Z and
inserting the following:
``SEC. 399Z. HEALTH PROFESSIONAL EDUCATION AND TRAINING IN
HEALTHY EATING.
``(a) In General.--The Secretary, acting through the
Director of the Centers for Disease Control and Prevention,
in collaboration with the Administrator of the Health
Resources and Services Administration and the heads of other
agencies, and in consultation with appropriate health
professional associations, shall develop and carry out a
program to educate and train health professionals in
effective strategies to--
``(1) better identify patients at-risk of becoming
overweight or obese or developing an eating disorder;
``(2) detect overweight or obesity or eating disorders
among a diverse patient population;
``(3) counsel, refer, or treat patients with overweight or
obesity or an eating disorder;
``(4) educate patients and the families of patients about
effective strategies to establish healthy eating habits and
appropriate levels of physical activity; and
``(5) assist in the creation and administration of
community-based overweight and obesity and eating disorder
prevention efforts.
``(b) Eating Disorder.--In this section, the term `eating
disorder' includes anorexia nervosa, bulimia nervosa, binge
eating disorder, and eating disorders not otherwise
specified, as defined in the fourth edition of the Diagnostic
and Statistical Manual of Mental Disorders or any subsequent
edition.
``(c) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section such
sums as may be necessary for each of the fiscal years 2012
through 2016.''.
TITLE V--RESEARCH
SEC. 501. GRANTS FOR BODY MASS INDEX DATA ANALYSIS.
(a) Establishment.--The Secretary of Health and Human
Services may make grants to not more than 20 eligible
entities to analyze body mass index (hereinafter in this
section referred to as ``BMI'') measurements of children,
ages 2 through 18.
(b) Eligibility.--An eligible entity for purposes of this
section is a State (including the District of Columbia, the
Commonwealth of Puerto Rico, and each territory of the United
States) that has a statewide immunization information system
that--
(1) has the capacity to store basic demographic information
(including date of birth, gender, and geographic area of
residence), height, weight, and immunization data for each
resident of the State;
(2) is accessible to doctors, nurses, other licensed
medical professionals, and officials of the relevant
department in the State charged with maintaining health and
immunization records; and
(3) has the capacity to integrate large amounts of data for
the analysis of BMI measurements.
(c) Use of Funds.--A State that receives a grant under this
section shall use the grant for the following purposes:
(1) Analyzing the effectiveness of obesity prevention
programs and wellness policies carried out in the State.
(2) Purchasing new computers, computer equipment, and
software to upgrade computers to be used for a statewide
immunization information system.
(3) The hiring and employment of personnel to maintain and
analyze BMI data.
(4) The development and implementation of training programs
for medical professionals to aid such professionals in taking
BMI measurements and discussing such measurements with
patients.
(5) Providing information to parents and legal guardians in
accordance with subsection (e)(2).
(d) Selection Criteria.--In selecting recipients of grants
under this section, the Secretary shall give priority to
States in which a high percentage of public and private
health care providers submit data to a statewide immunization
information system that--
(1) contains immunization data for not less than 20 percent
of the population of such State that is under the age of 18;
and
(2) includes data collected from men and women who are of a
wide variety of ages and who reside in a wide variety of
geographic areas in a State (as determined by the Secretary).
(e) Conditions.--As a condition of receiving a grant under
this section, a State shall--
(1) ensure that BMI measurements will be recorded for
children ages 2 through 18--
(A) on an annual basis by a licensed physician, nurse,
nurse practitioner, or physicians assistant during an annual
physical examination, wellness visit, or similar visit with a
physician; and
(B) in accordance with data collection protocols published
by the American Academy
[[Page S239]]
of Pediatrics in the 2007 Expert Committee Recommendations;
and
(2) for each child in the State for whom such measurements
indicate a BMI greater than the 95th percentile for such
child's age and gender, provide to the parents or legal
guardians of such child information on how to lower BMI and
information on State and local obesity prevention programs.
(f) Reports.--
(1) Reports to the secretary.--Not later than 5 years after
the receipt of a grant under this section, the State
receiving such grant shall submit to the Secretary the
following reports:
(A) A report containing an analysis of BMI data collected
using the grant, including--
(i) the differences in obesity trends by gender,
disability, geographic area (as determined by the State), and
socioeconomic status within such State; and
(ii) the demographic groups and geographic areas most
affected by obesity within such State.
(B) A report containing an analysis of the effectiveness of
obesity prevention programs and State wellness policies,
including--
(i) an analysis of the success of such programs and
policies prior to the receipt of the grant; and
(ii) a discussion of the means to determine the most
effective strategies to combat obesity in the geographic
areas identified under subparagraph (A).
(2) Report to congress and certain executive agencies.--Not
later than 1 year after the Secretary receives all the
reports required pursuant to paragraph (1), the Secretary
shall submit to the Secretary of Education, the Secretary of
Agriculture, and to Congress a report that contains the
following:
(A) An analysis of trends in childhood obesity, including
how such trends vary across regions of the United States, and
how such trends vary by gender and socioeconomic status.
(B) A description of any programs that--
(i) the Secretary has determined significantly lower
childhood obesity rates for certain geographic areas in the
United States, including urban, rural, and suburban areas;
and
(ii) the Secretary recommends to be implemented by the
States (including States that did not receive a grant under
this section).
(g) Authorization of Appropriations.--There is authorized
to be appropriated to the Secretary such sums as may be
necessary to carry out this section for each of fiscal years
2012 through 2016.
SEC. 502. NATIONAL ASSESSMENT OF MENTAL HEALTH NEEDS.
Title V of the Public Health Service Act (42 U.S.C. 290aa
et seq.) is amended by inserting after section 506B (42
U.S.C. 290aa-5b) the following:
``SEC. 506C. NATIONAL ASSESSMENT OF MENTAL HEALTH NEEDS.
``(a) In General.--The Secretary, acting through the
Administrator, and in consultation with the Centers for
Disease Control and Prevention and the Director of the
National Institutes of Health, shall establish and implement
public health monitoring measures to address the mental and
behavioral health status of the population of the United
States and other populations served by the Administration,
that include--
``(1) monitoring the mental health status of the
population, including the incidence and prevalence of mental
and behavioral health conditions across the lifespan;
``(2) monitoring access to appropriate diagnostic and
treatment services for mental and behavioral health
conditions, including trends in unmet need for services;
``(3) monitoring mental and behavioral health conditions as
risk factors for obesity and chronic diseases to the extent
practicable;
``(4) enhancing existing public health monitoring systems
by including measures assessing mental and behavioral health
status and associated risk factors; and
``(5) to the extent practicable, monitoring the immediate
and long-term impact of disasters or catastrophic events,
whether natural or man-made on the mental and behavioral
health of affected populations.
``(b) Distinguishing Among Age Groups.--In designing and
implementing the measures described in subsection (a) the
Secretary shall ensure that data collection and reporting
standards stratify data by age groups, in particular, to the
extent practicable, children under the age of 5 years.
``(c) Report.--Not later than 1 year after the date of
enactment of this section, the Secretary shall submit a
report to Congress that describes the progress on the
implementation of the monitoring measures described in
subsection (a).
``(d) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section such sums as may
be necessary to carry out this section for each of fiscal
years 2012 through 2016.''.
______
By Mr. HARKIN (for himself, Mr. Johnson of South Dakota, Ms.
Klobuchar, and Mr. Franken):
S. 187. A bill to provide for the expansion of the biofuels market;
to the Committee on Energy and Natural Resources.
Mr. HARKIN. Mr. President, I rise today to discuss the great
importance of expanding the production and availability of biofuels,
and the significant impact that biofuels continue to have on reducing
our overall consumption of petroleum in the United States.
Our national energy situation continues to deteriorate. Because we
import 60 percent of the petroleum we consume, our economy faces a
constant threat from volatile petroleum prices as well as significant
amounts of American wealth being transferred to foreign producers.
Because more than two-thirds of our petroleum supply is consumed by our
transportation sector, we can improve this situation by expanding the
production and use of alternatives to petroleum-derived fuels. Domestic
biofuels have been by far our most successful alternative. Biofuels
already displace close to 10 percent of our gasoline supplies, and they
have the potential to make significantly larger contributions in the
years ahead. Expanding domestic biofuels production and use also will
support economic recovery by creating jobs in the areas of feedstock
production and delivery, fuels processing in bio refineries, and
biofuels marketing.
The American people understand the need to reduce our dependence on
foreign petroleum supplies. Congress has expressed broad agreement on
two fundamental approaches--increasing efficiency of vehicles and
increasing use of alternative fuels. We mandated more efficient
vehicles by passing the Energy Independence and Security Act of 2007,
EISA. That bill mandates a brisk expansion of biofuels production under
the Renewable Fuels Standard. However, biofuels currently are facing
critical market barriers. The most common form of biofuel, ethanol, can
only be used as a 10 percent blend with gasoline in most highway
vehicles. To enable much larger production and use levels, we need to
expand the number of flex-fuel vehicles that can use higher blends, and
we need to expand the number of filling stations selling those higher
blends. We also need to enable safer and more economical transport of
higher volumes by supporting development of biofuel pipelines.
To these ends, I am proud today to introduce the Biofuels Market
Expansion Act of 2011. This measure would require that at least 90
percent of new auto sales in the United States be flex fuel vehicles by
2016. It would also require major fuel distributers, those owning or
branding more than 50 gasoline filling stations, to install increasing
numbers of blender pumps at their retail filling stations, and it would
authorize funding to support blender pump installations by smaller
filling station operators. Finally, this measure would authorize
guarantees for loans covering 80 percent of renewable fuel pipeline
project costs.
The requirements and assistance authorized in this bill will ensure
that the number of flex-fuel automobiles and the availability of
alternative fuels are expanding in tandem with the production and use
of biofuels in our national fuel supply over the next 8 years and
beyond. This is a job-creating bill that reduces American dependence on
foreign petroleum by giving Americans the option of choosing clean,
domestically-produced fuels for their personal transportation needs in
the future. These steps represent critical components in the transition
of our energy systems away from fossil and imported fuels toward the
benefits of greater reliance on sustainable domestic fuel sources.
Today, I urge my Senate colleagues to join us in taking action to
boost the transition to a cleaner, more resilient, and more secure
energy economy. I urge Senators' support for this bill and its rapid
enactment.
Mr. President, I ask unanimous consent that the bill be printed in
the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 187
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Biofuels Market Expansion
Act of 2011''.
SEC. 2. ENSURING THE AVAILABILITY OF DUAL FUELED AUTOMOBILES
AND LIGHT DUTY TRUCKS.
(a) In General.--Chapter 329 of title 49, United States
Code, is amended by inserting after section 32902 the
following:
``Sec. 32902A. Requirement to manufacture dual fueled
automobiles and light duty trucks
``(a) In General.--For each model year listed in the
following table, each manufacturer shall ensure that the
percentage of
[[Page S240]]
automobiles and light duty trucks manufactured by the
manufacturer for sale in the United States that are dual
fueled automobiles and light duty trucks is not less than the
percentage set forth for that model year in the following
table:
------------------------------------------------------------------------
``Model Year Percentage
------------------------------------------------------------------------
Model years 2014 and 2015.................................. 50
Model year 2016 and each subsequent model year............. 90
------------------------------------------------------------------------
``(b) Exception.--Subsection (a) shall not apply to
automobiles or light duty trucks that operate only on
electricity.''.
(b) Clerical Amendment.--The table of sections for chapter
329 of title 49, United States Code, is amended by inserting
after the item relating to section 32902 the following:
``32902A. Requirement to manufacture dual fueled automobiles and light
duty trucks.''.
(c) Rulemaking.--Not later than 1 year after the date of
the enactment of this Act, the Secretary of Transportation
shall prescribe regulations to carry out the amendments made
by this Act.
SEC. 3. BLENDER PUMP PROMOTION.
(a) Blender Pump Grant Program.--
(1) Definitions.--In this subsection:
(A) Blender pump.--The term ``blender pump'' means an
automotive fuel dispensing pump capable of dispensing at
least 3 different blends of gasoline and ethanol, as selected
by the pump operator, including blends ranging from 0 percent
ethanol to 85 percent denatured ethanol, as determined by the
Secretary.
(B) E-85 fuel.--The term ``E-85 fuel'' means a blend of
gasoline approximately 85 percent of the content of which is
ethanol.
(C) Ethanol fuel blend.--The term ``ethanol fuel blend''
means a blend of gasoline and ethanol, with a minimum of 0
percent and maximum of 85 percent of the content of which is
denatured ethanol.
(D) Major fuel distributor.--
(i) In general.--The term ``major fuel distributor'' means
any person that owns a refinery or directly markets the
output of a refinery.
(ii) Exclusion.--The term ``major fuel distributor'' does
not include any person that directly markets through less
than 50 retail fueling stations.
(E) Secretary.--The term ``Secretary'' means the Secretary
of Energy.
(2) Grants.--The Secretary shall make grants under this
subsection to eligible facilities (as determined by the
Secretary) to pay the Federal share of--
(A) installing blender pump fuel infrastructure, including
infrastructure necessary for the direct retail sale of
ethanol fuel blends (including E-85 fuel), including blender
pumps and storage tanks; and
(B) providing subgrants to direct retailers of ethanol fuel
blends (including E-85 fuel) for the purpose of installing
fuel infrastructure for the direct retail sale of ethanol
fuel blends (including E-85 fuel), including blender pumps
and storage tanks.
(3) Limitation.--A major fuel distributor shall not be
eligible for a grant or subgrant under this subsection.
(4) Federal share.--The Federal share of the cost of a
project carried out under this subsection shall be up to 50
percent of the total cost of the project.
(5) Reversion.--If an eligible facility or retailer that
receives a grant or subgrant under this subsection does not
offer ethanol fuel blends for sale for at least 2 years
during the 4-year period beginning on the date of
installation of the blender pump, the eligible facility or
retailer shall be required to repay to the Secretary an
amount determined to be appropriate by the Secretary, but not
more than the amount of the grant provided to the eligible
facility or retailer under this subsection.
(6) Authorization of appropriations.--There are authorized
to be appropriated to the Secretary to carry out this
subsection, to remain available until expended--
(A) $50,000,000 for fiscal year 2012;
(B) $100,000,000 for fiscal year 2013;
(C) $200,000,000 for fiscal year 2014;
(D) $300,000,000 for fiscal year 2015; and
(E) $350,000,000 for fiscal year 2016.
(b) Installation of Blender Pumps by Major Fuel
Distributors at Owned Stations and Branded Stations.--Section
211(o) of the Clean Air Act (42 U.S.C. 7545(o)) is amended by
adding at the end the following:
``(13) Installation of blender pumps by major fuel
distributors at owned stations and branded stations.--
``(A) Definitions.--In this paragraph:
``(i) E-85 fuel.--The term `E-85 fuel' means a blend of
gasoline approximately 85 percent of the content of which is
ethanol.
``(ii) Ethanol fuel blend.--The term `ethanol fuel blend'
means a blend of gasoline and ethanol, with a minimum of 0
percent and maximum of 85 percent of the content of which is
denatured ethanol.
``(iii) Major fuel distributor.--
``(I) In general.--The term `major fuel distributor' means
any person that owns a refinery or directly markets the
output of a refinery.
``(II) Exclusion.--The term `major fuel distributor' does
not include any person that directly markets through less
than 50 retail fueling stations.
``(iv) Secretary.--The term `Secretary' means the Secretary
of Energy, acting in consultation with the Administrator of
the Environmental Protection Agency and the Secretary of
Agriculture.
``(B) Regulations.--The Secretary shall promulgate
regulations to ensure that each major fuel distributor that
sells or introduces gasoline into commerce in the United
States through majority-owned stations or branded stations
installs or otherwise makes available 1 or more blender pumps
that dispense E-85 fuel and ethanol fuel blends (including
any other equipment necessary, such as tanks, to ensure that
the pumps function properly) for a period of not less than 5
years at not less than the applicable percentage of the
majority-owned stations and the branded stations of the major
fuel distributor specified in subparagraph (C).
``(C) Applicable percentage.--For the purpose of
subparagraph (B), the applicable percentage of the majority-
owned stations and the branded stations shall be determined
in accordance with the following table:
``Applicable percentage of majority-owned stations and branded statio
Calendar year: Percent:
2014.................................................................10
2016.................................................................20
2018.................................................................35
2020 and each calendar year thereafter..............................50.
``(D) Geographic distribution.--
``(i) In general.--Subject to clause (ii), in promulgating
regulations under subparagraph (B), the Secretary shall
ensure that each major fuel distributor described in that
subparagraph installs or otherwise makes available 1 or more
blender pumps that dispense E-85 fuel and ethanol fuel blends
at not less than a minimum percentage (specified in the
regulations) of the majority-owned stations and the branded
stations of the major fuel distributors in each State.
``(ii) Requirement.--In specifying the minimum percentage
under clause (i), the Secretary shall ensure that each major
fuel distributor installs or otherwise makes available 1 or
more blender pumps described in that clause in each State in
which the major fuel distributor operates.
``(E) Financial responsibility.--In promulgating
regulations under subparagraph (B), the Secretary shall
ensure that each major fuel distributor described in that
subparagraph assumes full financial responsibility for the
costs of installing or otherwise making available the blender
pumps described in that subparagraph and any other equipment
necessary (including tanks) to ensure that the pumps function
properly.
``(F) Production credits for exceeding blender pumps
installation requirement.--
``(i) Earning and period for applying credits.--If the
percentage of the majority-owned stations and the branded
stations of a major fuel distributor at which the major fuel
distributor installs blender pumps in a particular calendar
year exceeds the percentage required under subparagraph (C),
the major fuel distributor shall earn credits under this
paragraph, which may be applied to any of the 3 consecutive
calendar years immediately after the calendar year for which
the credits are earned.
``(ii) Trading credits.--Subject to clause (iii), a major
fuel distributor that has earned credits under clause (i) may
sell the credits to another major fuel distributor to enable
the purchaser to meet the requirement under subparagraph (C).
``(iii) Exception.--A major fuel distributor may not use
credits purchased under clause (ii) to fulfill the geographic
distribution requirement in subparagraph (D).''.
SEC. 4. LOAN GUARANTEES FOR PROJECTS TO CONSTRUCT RENEWABLE
FUEL PIPELINES.
(a) Definitions.--Section 1701 of the Energy Policy Act of
2005 (42 U.S.C. 16511) is amended by adding at the end the
following:
``(6) Renewable fuel.--The term `renewable fuel' has the
meaning given the term in section 211(o)(1) of the Clean Air
Act (42 U.S.C. 7545(o)(1)), except that the term includes all
types of ethanol and biodiesel.
``(7) Renewable fuel pipeline.--The term `renewable fuel
pipeline' means a pipeline for transporting renewable
fuel.''.
(b) Amount.--Section 1702(c) of the Energy Policy Act of
2005 (42 U.S.C. 16512(c)) is amended--
(1) by striking ``(c) Amount.--Unless'' and inserting the
following:
``(c) Amount.--
``(1) In general.--Unless''; and
(2) by adding at the end the following:
``(2) Renewable fuel pipelines.--A guarantee for a project
described in section 1703(b)(11) shall be in an amount equal
to 80 percent of the project cost of the facility that is the
subject of the guarantee, as estimated at the time at which
the guarantee is issued.''.
(c) Renewable Fuel Pipeline Eligibility.--Section 1703(b)
of the Energy Policy Act of 2005 (42 U.S.C. 16513(b)) is
amended by adding at the end the following:
``(11) Renewable fuel pipelines.''.
(d) Rapid Deployment of Renewable Fuel Pipelines.--Section
1705 of the Energy Policy Act of 2005 (42 U.S.C. 16516) is
amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1), by inserting ``,
or, in the case of projects described in paragraph (4),
September 30, 2012'' before the colon at the end; and
[[Page S241]]
(B) by adding at the end the following:
``(4) Installation of sufficient infrastructure to allow
for the cost-effective deployment of clean energy
technologies appropriate to each region of the United States,
including the deployment of renewable fuel pipelines through
loan guarantees in an amount equal to 80 percent of the
cost.''; and
(2) in subsection (e), by inserting ``, or, in the case of
projects described in subsection (a)(4), September 30, 2012''
before the period at the end.
(e) Regulations.--Not later than 90 days after the date of
enactment of this Act, the Secretary of Energy shall
promulgate such regulations as are necessary to carry out the
amendments made by this section.
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