[Congressional Record Volume 150, Number 30 (Wednesday, March 10, 2004)]
[Senate]
[Pages S2548-S2561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. GRAHAM of Florida:
S. 2187. A bill to amend the Haitian Refugee Immigration Fairness Act
of 1998; to the Committee on the Judiciary.
Mr. GRAHAM of Florida. Mr. President, seven years ago, I introduced
the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA). I
introduced HRIFA after Congress enacted the Nicaraguan Adjustment and
Central American Relief Act (NACARA). NACARA enabled Nicaraguans and
Cubans to become permanent residents and permitted many unsuccessful
Central American and Eastern European asylum applicants to seek another
form of immigration relief. At the time, Haitians were suffering brutal
and widespread political persecution by a ruthless dictatorship. Yet
lawmakers opted to exclude Haitian asylum seekers from the NACARA
legislation.
HRIFA became law with bipartisan support and reversed this grave
inequity in U.S. immigration law. It allowed Haitians who had fled
political turmoil in their country an opportunity to adjust their
status like the opportunity we granted to refuges from other countries.
The legislation has been beneficial and nearly 11,000 Haitians have
adjusted their status and become legal permanent residents of the
United States. However HRIFA contained several flaws that undermine the
original intent of the legislation. That is why today I am introducing
the HRIFA Improvement Act of 2004. I would like to thank my friend
Senator
[[Page S2549]]
Mike DeWine for taking the lead in co-sponsoring this bill and for his
continued support and commitment to fairness in our immigration policy.
First, this legislation corrects an oversight that disqualified
Haitian refugees who entered the country with falsified papers. Some
Haitian refugees, like many who have fled repressive governments, used
falsified documents to flee their country when it was impossible for
them to get travel documents from their dictatorial government.
If you look at other immigration legislation, it is clear that the
exclusion of Haitian refugees who came here with falsified documents is
an oversight. NACARA allowed refugees from a long list of countries,
including Guatemala, El Salvador, Romania, Hungary, Bulgaria, and a
number of others, to adjust their status to legal permanent residence,
even if they entered the country with fraudulent documents.
As result of this oversight, many families and up to 5,000 American
children face the possible deportation of a spouse, father or mother
who has worked for a decade or more to build a life and a family in the
United States. There have been media reports, heart-rending stories, of
parents facing the choice between forever leaving their American-born
children in their safe communities and schools in the United States or
taking them back to a strife-torn Haiti where their parents risk
political violence and persecution.
I ask unanimous consent to include in the Record an Associated Press
story from December 29, 2003, called ``Flaw in Law threatens
Deportation for Haitian Refugees.'' The piece tells the story of Rigaud
Rene, a Haitian political activist now living in Miami. Mr. Rene faces
deportation because he fled Haiti in 1994 using doctored documents and
is therefore not covered by HRIFA. Since coming here, Mr. Rene has
learned English, held down a job and earned his GED degree. He also
married and has a one and a half year old American-born son.
If Mr. Rene is deported, he will be forced to take his U.S. citizen
son with him or leave him here without any means of support. It is a
solomonic choice that Mr. Rene should not have to make, especially
because his dilemma is the result of a simple oversight in the law.
The difference between the way we treat Haitians and the way we treat
refugees from other nations is inconsistent and unfair. The elimination
of this kind of inconsistency and unfairness was the primary motivation
for the passage of HRIFA in 1998. Clearly, the exclusion of Haitians
who entered with falsified documents was an oversight that must now be
corrected.
The second purpose of the Improvement Act is to respond to another
legislative oversight that left Haitian children and dependents
unprotected from ``aging out'' of HRIFA eligibility. HRIFA allows
children and unmarried dependents of approved applicants to adjust to
legal permanent residency. However, the Bureau of Citizenship and
Immigration Services has taken much longer than was expected to approve
the many applicants who had eligible children and dependents when they
applied. As a result, many of those who would have been eligible had
their parents or guardians been approved earlier have now ``aged out''
of eligibility or gotten married.
Currently, these ``aged out'' individuals face the immediate risk of
deportation. Their ineligibility is a result solely of administrative
delays and is neither their fault nor the intent of HRIFA. The
Improvement Act addresses this unforeseen injustice by permitting these
individuals to apply for adjustment of status or move to have their
cause reopened.
Finally, the HRIFA Improvement Act of 2004 also ensures fairness by
extending the protection from deportation to applicants under this Act.
This is consistent with the protection extended to applicants under the
1998 HRIFA legislation.
All those who come to the United States fleeing political persecution
and violence deserve to be treated fairly and equally. This country is
built on this principle of justice and we should give everyone,
regardless of his or her national origin, an equal opportunity. That is
what this legislation intends to do.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Associated Press, Dec. 29, 2003]
Flaw in Law Threatens Deportation for Haitian Refugees
(By Ken Thomas)
Nearly a decade after leaving Haiti, Regaud Rene ends each
day with a prayer. He gives thanks for his wife and young son
and their life in America--and prays that their time together
will endure.
Rene, a former political activist on the island, faces
deportation following a lengthy legal battle with immigration
authorities.
He says deportation would devastate his family, forcing him
to take his 1\1/2\-year-old American-born son to Haiti and
leave behind his wife. He also will lose a job that helps him
send about $300 a month to support family members in Haiti.
``Some people pray to Jesus for miracles,'' Rene said
during a recent interview. ``They are not more special than
me. So I hope that God can help me, too.''
Rene, 41, is one of about 3,000 Haitian migrants ensnarled
in what activists call a flaw in a 1998 law to help provide
permanent residency--called green cards--to illegal aliens
from Haiti who lived in the United States before 1996.
The bill didn't include waivers for Haitian migrants known
as ``airplane refugees'' who used forged documents to flee
revengeful abuses and killings in the impoverished island
after President Jean-Bertrand Aristide, the country's first
freely elected leader, was deposed in a 1991 coup by Gen.
Raul Cedras.
In Rene's case, immigration officials have maintained that
the altered documents make him ineligible to live here
legally because he committed fraud to enter the country.
But local activists contend that pro-Aristide Haitians
arriving by air had to use altered documents to escape
possible harm in Haiti because the U.S. Coast Guard was
interdicting refugees who came by sea and returning them.
``All these people knew they were being looked for,'' said
Steven Forester, a senior policy advocate for the Haitian
Women of Miami, a nonprofit organization. ``If you're being
looked for by a regime that's chopping people's faces off,
you don't get into a boat.''
Those who worked on the 1998 Haitian bill said the
``airplane refugees'' were not supposed to be left out. Paul
Virtue, who served as general counsel at the former INS in
1998-99, said he thought ``it was an oversight that they
were excluded.''
``I don't think anyone really thought about the problem
that people would face who came by aircraft,'' Virtue said.
The Department of Homeland Security, which oversees
immigration, declined comment on Rene's case. But Dan Kane, a
department spokesman, stressed that every case is judged on
the individual merits of an applicant's arguments.
Rene initially sought asylum when he first entered the
United States in 1994 but was ordered deported by an
immigration judge for using a forged passport. His appeal was
pending when Congress passed the 1998 law to help Haitians.
Rene sought a green card under the new law but his claim was
rejected in July 2001.
He appealed the decision and Tuesday his case was sent back
to be reheard by an immigration judge. But Aristide's return
to power has weakened his argument in the past and his lawyer
cautions that Rene could be deported at any moment.
``It's very desperate. They could pick him up today,'' said
Clarel Cyriaque, a Miami lawyer handling Rene's case.
Rene tried to get a green card through his wife, Sonie
Octalus, who came here in 1996 and is a legal permanent
resident, but the family failed to demonstrate deporting him
would result in an ``extreme hardship.''
U.S. Rep. Kendrick Meek, a Miami Democrat, introduced
legislation in October to expand the Haitian law to include
those who arrived by air and to prevent the government from
deporting anyone with a pending application. But Meek said it
faces an uncertain future.
Meek said ``the only real flicker of light'' would come if
the Bush administration embraces Homeland Security Secretary
Tom Ridge's recent suggestion of support for an amnesty for
illegal immigrants.
Thousands of Haitians have applied for green cards under
the 1998 Haitian Refugee Immigration Fairness Act. But the
majority of the cases have yet to be adjudicated. A U.S.
General Accounting Office report in October found that more
than 11,000 of the 37,851 applications have been approved.
Rene was an active Aristide supporter when the Haitian
priest ran for president in 1990. He led 300 Aristide
supporters in his hometown of Le Borgne and joined the pro-
Aristide National Front for Change in Democracy. He passed
out leaflets and photos supporting Aristide.
A month after the coup, Rene said he was visited at his
home by five members of the military. The men, who were
carrying revolvers, threatened him and pushed him around,
according to court documents. Rene then went into hiding for
two years, staying with a friend in the northern city of Cap-
Haitien.
``I was scared to go back to Le Borgne. If I go back to Le
Borgne, anything could happen,'' he recalled.
He fled Haiti for the Bahamas by boat in early 1994 and
then used forged documents to fly to Miami International
Airport in May 1994, months before Aristide was returned to
power.
[[Page S2550]]
Rene has built a new life in America, learning English at a
local Catholic church, working as a deli clerk at a Miami
Beach grocery store and taking night classes to earn a GED
degree.
Rene married Octalus in February 2001. Their son, Rikinson,
was born the following year. The family lives in a small one-
bedroom apartment, where a small bed sits in a cramped
living room cooled by a white box fan.
If Rene is deported, the couple will send Rikinson with him
because Octalus doesn't drive, has no other relatives in the
area and speaks limited English. But the decision has been
wrenching.
``If they send him to Haiti, it's like telling me I might
as well go to Haiti, too,'' Octalus said, through a
translator in her native Creole.
The couple also wonders how they'll support their families
in Haiti if Rene is deported. Rene sends about $300 a month
to support two other children, two sisters and his mother.
His wife sends $500 a month to six sisters on the island,
paying their rent, school tuition and clothing.
The U.S. Agency for International Development estimates
Haitians living in the U.S. send between $700 million to $800
million to Haiti every year. Forester, of Haitian Women of
Miami, worries about the impact on families in Haiti who lose
financial support when relatives are deported.
``If they really want to send a message not to flee, what
they're doing by deporting these people is causing the very
migration outflow that they say they're trying to prevent,''
Forester said.
A man of faith, Rene says his hopes have been reduced to
prayer. Prayer, he quips, is another part of the American
experience.
``In God We Trust,'' Rene said with a smile. ``That's what
the Americans say.''
______
By Mr. FEINGOLD (for himself, Mr. McCain, and Mr. Daschle):
S. 2188. A bill to provide for reform of the Corps of Engineers, and
for other purposes; to the Committee on Environment and Public Works.
Mr. FEINGOLD. Mr. President, I rise today to introduce the Corps of
Engineers Modernization and Improvement Act of 2004. I am pleased to be
joined by the senior Senator from Arizona, Mr. McCain, who worked with
me in the 107th Congress to reform the Corps. I also thank the senior
Senator from South Dakota, Mr. Daschle, who, as the Democratic Leader,
has long supported Corps reform, for cosponsoring this legislation
today.
As we debate the budget resolution this week, we cannot ignore the
record-breaking deficits that the Nation faces. Fiscal responsibility
has never been so important. This legislation provides Congress with a
unique opportunity to underscore our commitment to that goal. Time and
time again we have heard that fiscal responsibility and environmental
protection are mutually exclusive. Through this legislation, however,
we can save taxpayers billions of dollars and protect the environment.
As evidence of this unique opportunity, this bill is supported by
Taxpayers for Common$ense, the National Taxpayers Union, the National
Wildlife Federation, American Rivers, the Corps Reform Network, and
Earthjustice.
Reforming the Army Corps of Engineers will be a difficult task for
Congress. It involves restoring credibility and accountability to a
Federal agency rocked by scandals and constrained by endlessly growing
authorizations and a gloomy federal fiscal picture, and yet an agency
that Wisconsin, and many other states across the country, have come to
rely upon. From the Great Lakes to the mighty Mississippi, the Corps is
involved in providing aid to navigation, environmental remediation,
water control and a variety of other services in my state alone.
My office has strong working relationships with the Detroit, Rock
Island, and St. Paul District Offices that service Wisconsin, and I
want the fiscal and management cloud over the Corps to dissipate so
that the Corps can continue to contribute to our environment and our
economy.
This legislation evolved from my experience in seeking to offer an
amendment to the Water Resources Development Act of 2000 to create
independent review of Army Corps of Engineers' projects. In response to
my initiative, the bill's managers, which included the former Senator
from New Hampshire, Senator Bob Smith, and the senior Senator from
Montana, Mr. Baucus, adopted an amendment as part of their managers'
package to require a National Academy of Sciences study on the issue of
peer review of Corps projects.
The bill I introduce today includes many provisions that were
included in two bills, one of which I authored and the other I
cosponsored, in the 107th Congress. It codifies the idea of independent
review of the Corps, which was investigated through the 2000 Water
Resources bill. It also provides a mechanism to speed up completion of
construction for good Corps projects with large public benefits by
deauthorizing low priority and economically wasteful projects.
I will note, however, that this is not the first time that the
Congress has realized that the Corps needs to be reformed because of
its association with pork projects. In 1836, a House Ways and Means
Committee report discovered that at least 25 Corps projects were over
budget. In its report, the Committee noted that Congress must ensure
that the Corps institutes ``actual reform, in the further prosecution
of public works.'' In 1902, Congress created a review board to
determine whether Corps projects were justified. The review board was
dismantled just over a decade ago, and the Corps is still linked with
wasteful spending. Here we are, more than 100 years later, talking
about the same issue.
The reality is that the underlying problem is not with the Corps, the
problem is with Congress. All too often Members of Congress have seen
Corps projects as a way to bring home the bacon, rather than ensuring
that taxpayers get the most bang for their federal buck.
This bill puts forth bold, comprehensive reform measures. It
modernizes the Corps project planning guidelines, which have not been
updated since 1983. It requires the Corps to use sound science in
estimating the costs and evaluating the needs for water resources
projects. The bill clarifies that the national economic development and
environmental protection are co-equal goals of the Corps. Furthermore,
the Corps must use current discount rates when determining the costs
and benefits of projects. Several Corps projects are justified using a
discount rate formula established in 1974, not the current government-
wide discount rate promulgated by the Office of Management and Budget.
By using this outdated discount rate formula, the Corps often
overestimates project benefits and underestimates project costs.
This legislation also requires that a water resource project's
benefits must be 1.5 times greater than the costs to the taxpayer.
According to a 2002 study of the Corps backlog of projects, at least 60
Corps projects, whose combined costs total $4.6 billion, do not meet
this 1.5 to 1 benefit-cost ratio. Thus, this benefit-cost ratio will
save the taxpayer billions of dollars. The bill also mandates Federal-
local cost sharing of inland waterways, flood control, and future beach
renourishment projects, and reduces the Federal cost burden of these
projects.
While the bill assumes a flat 50 percent cost-share for flood control
projects, my home state of Wisconsin has been on the forefront of
responsible flood plain management and also happens to be home to the
Association of State Flood Plain Managers. As Congress considers the
issue of Corps reform and the Water Resources Development Act, I hope
my colleagues will take a closer look at the issue of a sliding cost
scale. We should explore the possibility of creating incentives for
communities with cutting-edge flood plain management practices to
reduce their local share for projects.
The bill requires independent review of Corps projects. The National
Academy of Sciences, the General Accounting Office, and even the
Inspector General of the Army agree that independent review is an
essential step to assuring that each Corps project is economically
justified. Independent review will apply to projects in the following
circumstances: 1. the project has costs greater than $25 million,
including mitigation costs; 2. the Governor of a state that is affected
by the project requests a panel; 3. the head of a Federal agency
charged with reviewing the project determines that the project is
likely to have a significant adverse environmental or cultural impact;
or 4. the Secretary of the Army determines that the project is
controversial. Any party can request that the Secretary make a
determination of whether the project is controversial.
This bill also creates a Director of Independent Review within the
Office
[[Page S2551]]
of the Inspector General of the Department of the Army. The Director is
responsible for empaneling experts to review projects. The Secretary is
required to respond to the panel's report and explain the extent to
which a final report addresses the panel's concerns. The panel report
and the underlying data that the Corps uses to justify the project will
be made available to the public.
The bill also requires strong environmental protection measures. The
Corps is required to mitigate the environmental impacts of its projects
in a variety of ways, including by avoiding damaging wetlands in the
first place and either holding other lands or constructing wetlands
elsewhere when it cannot avoid destroying them. The Corps requires
private developers to meet this standard when they construct projects
as a condition of receiving a federal permit, and I think the Federal
Government should live up to the same standards. Too often, the Corps
does not complete required mitigation and enhances environmental risks.
I feel very strongly that mitigation must be completed, that the true
costs of mitigation should be accounted for in Corps projects, and that
the public should be able to track the progress of mitigation projects.
The bill requires the Corps to develop a detailed mitigation plan for
each water resources project, and conduct monitoring to demonstrate
that the mitigation is working. In addition, the concurrent mitigation
requirements of this bill would actually reduce the total mitigation
costs by ensuring the purchase of mitigation lands as soon as possible.
This bill streamlines the existing automatic deauthorization process.
Estimates of the project backlog runs from $58 billion to $41 billion.
Under the bill a project authorized for construction but never started
is deauthorized if it is denied appropriations funds towards completion
of construction for five straight years. In addition, a project that
has begun construction but been denied appropriations funds towards
completion for three straight years is deauthorized. The bill also
preserves congressional prerogatives over setting the Corps'
construction priorities by allowing Congress a chance to reauthorize
any of these projects before they are automatically deauthorized. This
process will be transparent to all interests, because the bill requires
the Corps to make a list of projects in the construction backlog
available to Congress and the public at large.
In the past decade, the Corps has routinely strayed from its mission
of flood control, navigation, and environmental protection. This
legislation also requires that the Corps stick with its primary
missions and that any water project that does not have the Corps'
primary mission of flood control, navigation, or environmental
protection as its main objective will be deauthorized.
This legislation will bring out comprehensive revision of the project
review and authorization procedures at the Army Corps of Engineers. My
goals for the Corps are to increase transparency and accountability, to
ensure fiscal responsibility, and to allow greater stakeholder
involvement in their projects. I remain committed to these goals, and
to seeing Corps Reform enacted as part of this Congress's Water
Resources bill.
I feel that this bill is an important step down the road to a
reformed Corps of Engineers. This bill establishes a framework to catch
mistakes by Corps planners, deter any potential bad behavior by Corps
officials to justify questionable projects, end old unjustified
projects, and provide planners desperately needed support against the
never ending pressure of project boosters. Those boosters, include
congressional interests, which is why I believe that this body needs to
champion reform--to end the perception that Corps projects are all pork
and no substance.
I wish it were the case that the changes we are proposing today were
not needed, but unfortunately, I see that there is need for this bill.
I want to make sure that future Corps projects no longer fail to
produce predicted benefits, stop costing the taxpayers more than the
Corps estimated, do not have unanticipated environmental impacts, and
are built in an environmentally compatible way. This bill will help the
Corps do a better job, which is what the taxpayers and the environment
deserve.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2188
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 ``Corps of
Engineers Modernization and Improvement Act of 2004''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
TITLE I--MODERNIZING PROJECT PLANNING
Sec. 101. Modern planning principles.
Sec. 102. Independent review.
Sec. 103. Benefit-cost analysis.
Sec. 104. Benefit-cost ratio.
Sec. 105. Cost sharing.
TITLE II--MITIGATION
Sec. 201. Full mitigation.
Sec. 202. Concurrent mitigation.
Sec. 203. Mitigation tracking system.
TITLE III--ADDRESSING THE PROJECT BACKLOG
Sec. 301. Project backlog.
Sec. 302. Primary mission focus.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) the Corps of Engineers is the primary Federal agency
responsible for developing and managing the harbors,
waterways, shorelines, and water resources of the United
States;
(2) the scarcity of Federal resources requires more
efficient use of Corps resources and funding, and greater
oversight of Corps analyses;
(3) appropriate cost sharing ensures efficient measures of
project demands and enables the Corps to meet more national
project needs;
(4) the significant demand for recreation, clean water, and
healthy wildlife habitat must be fully reflected in the
project planning and construction process of the Corps;
(5) the human health, environmental, and social impacts of
dams, levees, shoreline stabilization structures, river
training structures, river dredging, and other Corps projects
and activities must be adequately considered and, in any case
in which adverse impacts cannot be avoided, fully mitigated;
(6) the National Academy of Sciences has concluded that the
Principles and Guidelines for water resources projects need
to be modernized and updated to reflect current economic
practices and environmental laws and planning guidelines; and
(7) affected interests must have access to information that
will allow those interests to play a larger and more
effective role in the oversight of Corps project development
and mitigation.
(b) Purposes.--The purposes of this Act are--
(1) to ensure that the water resources investments of the
United States are economically justified and enhance the
environment;
(2) to provide independent review of feasibility studies,
general reevaluation studies, and environmental impact
statements of the Corps;
(3) to ensure timely, ecologically successful, and cost-
effective mitigation for Corps projects;
(4) to ensure appropriate local cost sharing to assist in
efficient project planning focused on national needs;
(5) to enhance the involvement of affected interests in
feasibility studies, general reevaluation studies, and
environmental impact statements of the Corps;
(6) to modernize planning principles of the Corps to meet
the economic and environmental needs of riverside and coastal
communities and the nation;
(7) to ensure that environmental protection and
restoration, and national economic development, are co-equal
goals, and given co-equal emphasis, during the evaluation,
planning, and construction of Corps projects;
(8) to ensure that project planning, project evaluations,
and project recommendations of the Corps are based on sound
science and economics and on a full evaluation of the impacts
to the health of aquatic ecosystems; and
(9) to ensure that the determination of benefits and costs
of Corps projects properly reflects current law and Federal
policies designed to protect human health and the
environment.
SEC. 3. DEFINITIONS.
In this Act:
(1) Academy.--The term ``Academy'' means the National
Academy of Sciences.
(2) Corps.--The term ``Corps'' means the Corps of
Engineers.
(3) Principles and guidelines.--The term ``Principles and
Guidelines'' means the principles and guidelines of the Corps
for water resources projects (consisting of Engineer
Regulation 1105-2-100 and Engineer Pamphlet 1165-2-1).
(4) Secretary.--The term ``Secretary'' means the Secretary
of the Army.
[[Page S2552]]
TITLE I--MODERNIZING PROJECT PLANNING
SEC. 101. MODERN PLANNING PRINCIPLES.
(a) Planning Principles.--Section 209 of the Flood Control
Act of 1970 (42 U.S.C. 1962-2) is amended to read as follows:
``SEC. 209. CONGRESSIONAL STATEMENT OF OBJECTIVES.
``(a) In General.--It is the intent of Congress that--
``(1) national economic development and environmental
protection and restoration are co-equal goals of water
resources project planning and management; and
``(2) Federal agencies manage and, if clearly justified,
construct water resource projects--
``(A) to meet national economic needs; and
``(B) to protect and restore the environment.
``(b) Revision of Planning Guidelines, Regulations and
Circulars.--Not later than 18 months after the date of
enactment of the Corps of Engineers Modernization and
Improvement Act of 2004, the Secretary, in collaboration with
the National Academy of Sciences, shall develop proposed
revisions of, and revise, the planning guidelines,
regulations, and circulars of the Corps.
``(c) Additional Requirements.--Corps planning regulations
revised under subsection (b) shall--
``(1) incorporate new and existing analytical techniques
that reflect the probability of project benefits and costs;
``(2) apply discount rates provided by the Office of
Management and Budget;
``(3) eliminate biases and disincentives that discourage
the use of nonstructural approaches to water resources
development and management;
``(4) encourage, to the maximum extent practicable, the
restoration of ecosystems;
``(5) consider the costs and benefits of protecting or
degrading natural systems;
``(6) ensure that projects are justified by benefits that
accrue to the public at large;
``(7) ensure that benefit-cost calculations reflect a
credible schedule for project construction;
``(8) ensure that each project increment complies with
section 104;
``(9) include as a cost any increase in direct Federal
payments or subsidies and exclude as a benefit any increase
in direct Federal payments or subsidies; and
``(10) provide a mechanism by which, at least once every 5
years, the Secretary shall collaborate with the National
Academy of Sciences to review, and if necessary, revise all
planning regulations, guidelines, and circulars.
``(d) National Navigation and Port Plan.--
``(1) In general.--Not later than 18 months after the date
of enactment of the Corps of Engineers Modernization and
Improvement Act of 2004, the Corps shall develop and annually
update an integrated, national plan to manage, rehabilitate
and, if justified, modernize inland waterway and port
infrastructure to meet current national economic and
environmental needs.
``(2) Tools.--To develop the plan, the Corps shall employ
economic tools that--
``(A) recognize the importance of alternative
transportation destinations and modes; and
``(B) employ practicable, cost-effective congestion
management alternatives before constructing and expanding
infrastructure to increase waterway and port capacity.
``(3) Benefits and proximity.--The Corps shall give
particular consideration to the benefits and proximity of
proposed and existing port, harbor, waterway, rail and other
transportation infrastructure in determining whether to
construct new water resources projects.
``(e) Notice and Comment.--The Secretary shall comply with
the notice and comment provisions of chapter 551 of title 5,
United States Code, in issuing revised planning regulations,
guidelines and circulars.
``(f) Applicability.--On completion of the revisions
required under this section, the Secretary shall apply the
revised regulations to projects for which a draft feasibility
study or draft reevaluation report has not yet been issued.
``(g) Project Reformulation.--Projects of the Corps, and
separable elements of projects of the Corps, that have been
authorized for 10 years, but for which less than 15 percent
of appropriations specifically identified for construction
have been obligated, shall not be constructed unless a
general reevaluation study demonstrates that the project or
separable element meets--
``(1) all project criteria and requirements applicable at
the time the study is initiated, including requirements under
this section; and
``(2) cost share and mitigation requirements of this
Act.''.
(b) Conforming Amendments.--
(1) Section 80 of the Water Resources Development Act of
1974 (42 U.S.C. 1962(d)-17) is repealed.
(2) Section 7(a) of the Department of Transportation Act
(Public Law 89-670; 80 Stat. 941) is repealed.
SEC. 102. INDEPENDENT REVIEW.
(a) Definitions.--In this section:
(1) Affected state.--The term ``affected State'', with
respect to a water resources project, means a State or
portion of a State that--
(A) is located, at least partially, within the drainage
basin in which the project is carried out; and
(B) would be economically or environmentally affected as a
result of the project.
(2) Director.--The term ``Director'' means the Director of
Independent Review appointed under subsection (c)(1).
(b) Projects Subject to Independent Review.--
(1) In general.--The Secretary shall ensure that each
feasibility report, general reevaluation report, and
environmental impact statement for each water resources
project described in paragraph (2) is subject to review by an
independent panel of experts established under this section.
(2) Projects subject to review.--A water resources project
shall be subject to review under paragraph (1) if--
(A) the project has an estimated total cost of more than
$25,000,000, including mitigation costs;
(B) the Governor of an affected State requests the
establishment of an independent panel of experts for the
project;
(C) the head of a Federal agency charged with reviewing the
project determines that the project is likely to have a
significant adverse impact on environmental, cultural, or
other resources under the jurisdiction of the agency; or
(D) the Secretary determines under paragraph (3) that the
project is controversial.
(3) Controversial projects.--
(A) In general.--The Secretary shall determine that a water
resources project is controversial for the purpose of
paragraph (2)(D) if the Secretary finds that--
(i) there is a significant dispute as to the size, nature,
or effects of the project;
(ii) there is a significant dispute as to the economic or
environmental costs or benefits of the project; or
(iii) there is a significant dispute as to the benefits to
the communities affected by the project of a project
alternative that--
(I) was not the focus of the feasibility report, general
reevaluation report, or environmental impact statement for
the project; or
(II) was not considered in the feasibility report, general
reevaluation report, or environmental impact statement for
the project.
(B) Written requests.--Not later than 30 days after the
date on which the Secretary receives a written request of any
party, or on the initiative of the Secretary, the Secretary
shall determine whether a project is controversial.
(c) Director of Independent Review.--
(1) Appointment.--The Inspector General of the Army shall
appoint in the Office of the Inspector General of the Army a
Director of Independent Review.
(2) Qualifications.--The Inspector General of the Army
shall select the Director from among individuals who are
distinguished experts in biology, hydrology, engineering,
economics, or another discipline relating to water resources
management.
(3) Limitation on appointments.--The Inspector General of
the Army shall not appoint an individual to serve as the
Director if the individual has a financial interest in or
close professional association with any entity with a
financial interest in a water resources project that, on the
date of appointment of the Director, is--
(A) under construction;
(B) in the preconstruction engineering and design phase; or
(C) under feasibility or reconnaissance study by the Corps.
(4) Terms.--
(A) In general.--The term of a Director appointed under
this subsection shall be 6 years.
(B) Term limit.--An individual may serve as the Director
for not more than 2 nonconsecutive terms.
(5) Duties.--The Director shall establish a panel of
experts to review each water resources project that is
subject to review under subsection (b).
(d) Establishment of Panels.--
(1) In general.--After the Secretary selects a preferred
alternative for a water resources project subject to review
under subsection (b) in a formal draft feasibility report,
draft general reevaluation report, or draft environmental
impact statement, the Director shall establish a panel of
experts to review the project.
(2) Membership.--A panel of experts established by the
Director for a project shall be composed of not less than 5
nor more than 9 independent experts (including 1 or more
biologists, hydrologists, engineers, and economists) who
represent a range of areas of expertise.
(3) Limitation on appointments.--The Director shall not
appoint an individual to serve on a panel of experts for a
project if the individual has a financial interest in or
close professional association with any entity with a
financial interest in the project.
(4) Consultation.--The Director shall consult with the
Academy in developing lists of individuals to serve on panels
of experts under this section.
(5) Notification.--
(A) In general.--To ensure that the Director is able to
effectively carry out the duties of the Director under this
section, the Secretary shall notify the Director in writing
not later than 90 days before the release of a draft
feasibility report, draft general reevaluation report, or
draft environmental impact statement, for every water
resources project.
(B) Contents.--The notification shall include--
(i) the estimated cost of the project; and
(ii) a preliminary assessment of whether a panel of experts
may be required.
[[Page S2553]]
(6) Compensation.--An individual serving on a panel of
experts under this section shall be compensated at a rate of
pay to be determined by the Inspector General of the Army.
(7) Travel expenses.--A member of a panel of experts under
this section shall be allowed travel expenses, including per
diem in lieu of subsistence, at rates authorized for an
employee of an agency under subchapter I of chapter 57 of
title 5, United States Code, while away from the home or
regular place of business of the member in the performance of
the duties of the panel.
(e) Duties of Panels.--
(1) In general.--A panel of experts established for a water
resources project under this section shall--
(A) review each draft feasibility report, draft general
reevaluation report, and draft environmental impact statement
prepared for the project;
(B) assess the adequacy of the economic, scientific, and
environmental models used by the Secretary in reviewing the
project to ensure that--
(i) the best available economic and scientific methods of
analysis have been used;
(ii) the best available economic, scientific, and
environmental data have been used; and
(iii) any regional effects on navigation systems have been
examined;
(C) receive from the public written and oral comments
concerning the project;
(D) not later than the deadline established under
subsection (f), submit to the Secretary a report concerning
the economic, engineering, and environmental analyses of the
project, including the conclusions of the panel, with
particular emphasis on areas of public controversy, with
respect to the feasibility report, general reevaluation
report, or environmental impact statement; and
(E) not later than 30 days after the date of issuance of a
final feasibility report, final general reevaluation report,
or final environmental impact statement, submit to the
Secretary a brief report stating the views of the panel on
the extent to which the final analysis adequately addresses
issues or concerns raised by each earlier evaluation by the
panel.
(2) Extensions.--
(A) In general.--The panel may request from the Director a
30-day extension of the deadline established under paragraph
(1)(E).
(B) Record of decision.--The Secretary shall not issue a
record of decision until after, at the earliest--
(i) the final day of the 30-day period described in
paragraph (1)(E); or
(ii) if the Director grants an extension under subparagraph
(A), the final day of end of the 60-day period beginning on
the date of issuance of a final feasibility report described
in paragraph (1)(E) and ending on the final day of the
extension granted under subparagraph (A).
(f) Duration of Project Reviews.--
(1) Deadline.--Except as provided in paragraph (2), not
later than 180 days after the date of establishment of a
panel of experts for a water resources project under this
section, the panel shall complete--
(A) each required review of the project; and
(B) all other duties of the panel relating to the project
(other than the duties described in subsection (e)(1)(E)).
(2) Extension of deadline for report on project reviews.--
Not later than 240 days after the date of issuance of a draft
feasibility report, draft general reevaluation report, or
draft environmental impact statement for a project, if a
panel of experts submits to the Director before the end of
the 180-day period described in paragraph (1), and the
Director approves, a request for a 60-day extension of the
deadline established under that paragraph, the panel of
experts shall submit to the Secretary a report required under
subsection (e)(1)(D).
(g) Recommendations of Panel.--
(1) Consideration by secretary.--
(A) In general.--If the Secretary receives a report on a
water resources project from a panel of experts under this
section by the applicable deadline under subsection (e)(1)(E)
or (f), the Secretary shall, at least 14 days before entering
a final record of decision for the water resources project--
(i) take into consideration any recommendations contained
in the report; and
(ii) prepare a written explanation for any recommendations
not adopted.
(B) Inconsistent recommendations and findings.--
Recommendations and findings of the Secretary that are
inconsistent with the recommendations and findings of a panel
of experts under this section shall not be entitled to
deference in a judicial proceeding.
(2) Public review; submission to congress.--After receiving
a report on a water resources project from a panel of experts
under this section (including a report under subsection
(e)(1)(E)), the Secretary shall--
(A) immediately make a copy of the report (and, in a case
in which any written explanation of the Secretary on
recommendations contained in the report is completed, shall
immediately make a copy of the response) available for public
review; and
(B) include a copy of the report (and any written
explanation of the Secretary) in any report submitted to
Congress concerning the project.
(h) Public Access to Information.--
(1) In general.--Except as provided in paragraph (3), the
Secretary shall ensure that information relating to the
analysis of any water resources project by the Corps,
including all supporting data, analytical documents, and
information that the Corps has considered in the analysis, is
made available--
(A) to any individual upon request;
(B) to the public on the Internet; and
(C) to an independent review panel, if such a panel is
established for the project.
(2) Types of information.--Information concerning a project
that is available under paragraph (1) shall include--
(A) any information that has been made available to the
non-Federal interests with respect to the project; and
(B) all data and information used by the Corps in the
justification and analysis of the project.
(3) Exception for trade secrets.--
(A) In general.--The Secretary shall not make information
available under paragraph (1) that the Secretary determines
to be a trade secret of any person that provided the
information to the Corps.
(B) Criteria for trade secrets.--The Secretary shall
consider information to be a trade secret only if--
(i) the person that provided the information to the Corps--
(I) has not disclosed the information to any person other
than--
(aa) an officer or employee of the United States or a State
or local government;
(bb) an employee of the person that provided the
information to the Corps; or
(cc) a person that is bound by a confidentiality agreement;
and
(II) has taken reasonable measures to protect the
confidentiality of the information and intends to continue to
take the measures;
(ii) the information is not required to be disclosed, or
otherwise made available, to the public under any other
Federal or State law; and
(iii) disclosure of the information is likely to cause
substantial harm to the competitive position of the person
that provided the information to the Corps.
(i) Costs.--
(1) Limitation on cost of review.--The cost of conducting a
review of a water resources project under this section shall
not exceed--
(A) $250,000 for a project, if the total cost of the
project in current year dollars is less than $50,000,000; and
(B) 0.5 percent of the total cost of the project in current
year dollars, if the total cost is $50,000,000 or more.
(2) Treatment.--The cost of conducting a review of a
project under this section shall be considered to be part of
the total cost of the project.
(3) Cost sharing.--A review of a project under this section
shall be subject to section 105(a) of the Water Resources
Development Act of 1986 (33 U.S.C. 2215(a)).
(4) Waiver of limitation.--The Secretary may waive a
limitation under paragraph (1) if the Secretary determines
that the waiver is appropriate.
(j) Applicability of Federal Advisory Committee Act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall apply to
a panel of experts established under this section.
SEC. 103. BENEFIT-COST ANALYSIS.
Section 308(a) of the Water Resources Development Act of
1990 (33 U.S.C. 2318(a)) is amended--
(1) in paragraph (1)(B), by striking ``and'' at the end;
(2) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(3) any projected benefit attributable to any change in,
or intensification of, land use arising from the draining,
reduction, or elimination of wetlands.''.
SEC. 104. BENEFIT-COST RATIO.
(a) Recommendation of Projects.--Beginning in fiscal year
2004, in the case of a water resources project that is
subject to a benefit-cost analysis, the Secretary may
recommend the project for authorization by Congress, and may
choose the project as a recommended alternative in any record
of decision or environmental impact statement, only if the
project, in addition to meeting any other criteria required
by law, has projected national benefits that are at least 1.5
times as great as the estimated total costs of the project,
based on current discount rates provided by the Office of
Management and Budget.
(b) Review and Deauthorization of Projects.--
(1) Review.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall review each water
resources project described in paragraph (2) to determine
whether the projected benefits of the project are less than
1.5 times as great as the estimated total costs of the
project.
(2) Projects subject to review.--A water resources project
shall be subject to review under paragraph (1) if--
(A) the project was authorized before the date on which the
review is commenced;
(B) the project is subject to a benefit-cost analysis; and
(C) an amount that is less than 33 percent of the estimated
total costs of the project (excluding costs of
preconstruction engineering and design) has been obligated
for the project.
(3) Deauthorizations.--
(A) In general.--On completion of the review under
paragraph (1), the Secretary shall submit to Congress a list
that describes each water resources project the projected
benefits of which are less than 1.5 times as great as the
estimated total costs of the project.
[[Page S2554]]
(B) Projects.--A project included on the list under
subparagraph (A) shall be deauthorized effective beginning 3
years after the date of submission of the list to Congress
unless, during that 3-year period, Congress reauthorizes the
project.
(4) Deauthorized projects for which construction has been
commenced.--In the case of a water resources project that is
deauthorized under paragraph (3) and for which construction
(other than preconstruction engineering and design) has been
commenced, the Secretary may take such actions as are
necessary with respect to the project to protect public
health and safety and the environment.
SEC. 105. COST SHARING.
(a) Inland Waterways.--
(1) Construction.--Section 102(a) of the Water Resources
Development Act of 1986 (33 U.S.C. 2212(a)) is amended--
(A) in the first sentence, by striking ``One-half of the
costs of construction'' and inserting ``Forty-five percent of
the costs of construction''; and
(B) by striking the second sentence and inserting ``Fifty-
five percent of those costs shall be paid only from amounts
appropriated from the Inland Waterways Trust Fund.''.
(2) Operations and maintenance.--Section 102 of the Water
Resources Development Act of 1986 (33 U.S.C. 2212) is amended
by striking subsections (b) and (c) and inserting the
following:
``(b) Operation and Maintenance.--
``(1) Federal share.--The Federal share of the cost of
operation and maintenance shall be 100 percent in the case
of--
``(A) a project described in paragraph (1) or (2) of
subsection (a); or
``(B) the portion of the project authorized by section 844
that is allocated to inland navigation.
``(2) Source of federal share.--
``(A) General fund.--In the case of a project described in
paragraph (1) or (2) of subsection (a) with respect to which
the cost of operation and maintenance is less than or equal
to 2 cents per ton mile, or in the case of the portion of the
project authorized by section 844 that is allocated to inland
navigation, the Federal share under paragraph (1) shall be
paid only from amounts appropriated from the general fund of
the Treasury.
``(B) General fund and inland waterways trust fund.--In the
case of a project described in paragraph (1) or (2) of
subsection (a) with respect to which the cost of operation
and maintenance is greater than 2 but less than or equal to
10 cents per ton mile--
``(i) 75 percent of the Federal share under paragraph (1)
shall be paid only from amounts appropriated from the general
fund of the Treasury; and
``(ii) 25 percent of the Federal share under paragraph (1)
shall be paid only from amounts appropriated from the Inland
Waterways Trust Fund.
``(C) Inland waterways trust fund.--In the case of a
project described in paragraph (1) or (2) of subsection (a)
with respect to which the cost of operation and maintenance
is greater than 10 cents per ton mile but less than 30 cents
per ton mile, 100 percent of the Federal share under
paragraph (1) shall be paid only from amounts appropriated
from the Inland Waterways Trust Fund.
``(D) Non-federal responsibility.--
``(i) In general.--In the case of a project described in
paragraph (1) or (2) of subsection (a) with respect to which
the cost of operation and maintenance is greater than 30
cents per ton-mile, the cost of operations and maintenance
shall be a non-Federal responsibility.
``(ii) Deauthorization.--In a case in which the Secretary
determines that the non-Federal interests for a project
described in clause (i) are unable to pay for the cost of
operations and maintenance of the project, the project is
deauthorized as of the date of that determination.''.
(b) Flood Damage Reduction.--Section 103 of the Water
Resources Development Act of 1986 (33 U.S.C. 2213) is
amended--
(1) in subsections (a)(2) and (b), by striking ``35'' each
place it appears and inserting ``50'';
(2) in the paragraph heading of subsection (a)(2), by
striking ``35 percent minimum''' and inserting ``Minimum''';
and
(3) in the paragraph heading of subsection (b), by striking
``35'' and inserting ``50''.
(c) Beach Replacement.--Section 103(d)(2)(A) of the Water
Resources Development Act of 1986 (33 U.S.C. 2213(d)(2)) is
amended--
(1) by redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D), respectively; and
(2) by inserting after subparagraph (A) the following:
``(B) 2004 and subsequent projects.--For any project
authorized after the date of enactment of the Corps of
Engineers Modernization and Improvement Act of 2004, the non-
Federal cost of the periodic nourishment of the project, or
any measure for shore protection or beach erosion control for
the project, shall be 65 percent.''.
TITLE II--MITIGATION
SEC. 201. FULL MITIGATION.
Section 906(d) of the Water Resources Development Act of
1986 (33 U.S.C. 2283(d)) is amended--
(1) by striking paragraph (1) and inserting the following:
``(1) Projects.--
``(A) In general.--After November 17, 1986, the Secretary
shall not submit to Congress any proposal for the
authorization of any water resources project, and shall not
choose a project alternative in any final record of decision,
environmental impact statement, or environmental assessment,
unless the report contains--
``(i) a specific plan to fully mitigate losses of aquatic
and terrestrial resources and fish and wildlife created by
the project; or
``(ii) a determination by the Secretary that the project
will have negligible adverse impact on aquatic and
terrestrial resources and fish and wildlife.
``(B) Specific requirements.--Specific mitigation plans
shall ensure that impacts to bottomland hardwood forests and
other habitat types are mitigated in kind.
``(C) Consultation.--In carrying out this paragraph, the
Secretary shall consult with appropriate Federal and non-
Federal agencies.''; and
(2) by adding at the end the following:
``(3) Standards for mitigation.--
``(A) In general.--To fully mitigate losses to fish and
wildlife resulting from a water resources project, the
Secretary shall, at a minimum--
``(i) acquire and restore 1 acre of superior or equivalent
habitat of the same type to replace each acre of habitat
adversely affected by the project; and
``(ii) replace the hydrologic functions and
characteristics, the ecological functions and
characteristics, and the spatial distribution of the habitat
adversely affected by the project.
``(B) Detailed mitigation plan.--The specific mitigation
plan for a water resources project under paragraph (1) shall
include, at a minimum--
``(i) a detailed and specific plan to monitor mitigation
implementation and ecological success, including the
designation of the entities that will be responsible for
monitoring;
``(ii) specific ecological success criteria by which the
mitigation will be evaluated and determined to be successful,
prepared in consultation with the United States Fish and
Wildlife Service;
``(iii) a detailed description of the land and interests in
land to be acquired for mitigation and the basis for a
determination that land and interests are available for
acquisition;
``(iv) sufficient detail regarding the chosen mitigation
sites and type and amount of restoration activities to permit
a thorough evaluation of the plan's likelihood of ecological
success and resulting aquatic and terrestrial resource
functions and habitat values; and
``(v) a contingency plan for taking corrective actions if
monitoring demonstrates that mitigation efforts are not
achieving ecological success as described in the ecological
success criteria.
``(C) Applicable law.--A time period for mitigation
monitoring or for the implementation and monitoring of
contingency plan actions shall not be subject to the
deadlines described in section 202.
``(4) Determination of mitigation success.--
``(A) In general.--Mitigation shall be considered to be
successful at the time at which monitoring demonstrates that
the mitigation has met the ecological success criteria
established in the mitigation plan.
``(B) Requirements for success.--To ensure the success of
any attempted mitigation, the Secretary shall--
``(i) consult yearly with the United States Fish and
Wildlife Service on each water resources project requiring
mitigation to determine whether mitigation monitoring for
that project demonstrates that the project is achieving, or
has achieved, ecological success;
``(ii) ensure that implementation of the mitigation
contingency plan for taking corrective action begins not
later than 30 days after a finding by the Secretary or the
United States Fish and Wildlife Service that the original
mitigation efforts likely will not result in, or have not
resulted in, ecological success;
``(iii) complete implementation of the contingency plan as
expeditiously as practicable; and
``(iv) ensure that monitoring of mitigation efforts,
including those implemented through a mitigation contingency
plan, continues until the monitoring demonstrates that the
mitigation has met the ecological success criteria.
``(5) Recommendation of projects.--The Secretary shall not
recommend a water resources project alternative or choose a
project alternative in any final record of decision,
environmental impact statement, or environmental assessment
completed after the date of enactment of this paragraph
unless the Secretary determines that the mitigation plan for
the alternative will successfully mitigate the adverse
impacts of the project on aquatic and terrestrial resources,
hydrologic functions, and fish and wildlife.
``(6) Completion of mitigation before construction of new
projects.--The Secretary shall complete all promised
mitigation for water resources projects in a particular
watershed before constructing any new water resources project
in that watershed.''.
SEC. 202. CONCURRENT MITIGATION.
Section 906(a) of the Water Resources Development Act of
1986 (33 U.S.C. 2283(a)) is amended--
(1) by striking ``(a)(1) In the case'' and inserting the
following:
[[Page S2555]]
``(a) Mitigation.--
``(1) In general.--In the case'';
(2) in paragraph (1), by striking ``interests--'' and all
that follows through ``losses),'' and inserting the
following: ``interests shall be undertaken or acquired--
``(A) before any construction of the project (other than
such acquisition) commences; or
``(B) concurrently with the acquisition of land and
interests in land for project purposes (other than mitigation
of fish and wildlife losses);'';
(3) in paragraph (2), by striking ``(2) For the purposes''
and inserting the following:
``(2) Commencement of construction.--For the purpose''; and
(4) by adding at the end the following:
``(4) Implementation.--
``(A) In general.--Except as provided in subparagraph (B),
to ensure concurrent mitigation, the Secretary shall
implement--
``(i) 50 percent of required mitigation before beginning
construction of a project; and
``(ii) the remainder of required mitigation as
expeditiously as practicable, but not later than the last day
of construction of the project or separable element of the
project.
``(B) Exception for physical impracticability.--In a case
in which the Secretary determines that it is physically
impracticable to complete mitigation by the last day of
construction of the project or separable element of the
project, the Secretary shall reserve or reprogram sufficient
funds to ensure that mitigation implementation is completed
as expeditiously as practicable, but in no case later than
the end of the next fiscal year immediately following the
last day of that construction.
``(5) Use of funds.--Funds made available for preliminary
engineering and design, construction, or operations and
maintenance shall be available for use in carrying out this
section.''.
SEC. 203. MITIGATION TRACKING SYSTEM.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall establish a
recordkeeping system to track each water resources project
constructed, operated, or maintained by the Secretary, and
for each permit issued under section 404 of the Federal Water
Pollution Control Act (33 U.S.C. 1344)--
(1) the quantity and type of wetland and other habitat
types affected by the project, project operation, or
permitted activity;
(2) the quantity and type of mitigation required for the
project, project operation or permitted activity;
(3) the quantity and type of mitigation that has been
completed for the project, project operation or permitted
activity; and
(4) the status of monitoring for the mitigation carried out
for the project, project operation or permitted activity.
(b) Required Information and Organization.--The
recordkeeping system shall--
(1) include information on impacts and mitigation described
in subsection (a) that occur after December 31, 1969; and
(2) be organized by watershed, project, permit application,
and zip code.
(c) Availability of Information.--The Secretary shall make
information contained in the recordkeeping system available
to the public on the Internet.
TITLE III--ADDRESSING THE PROJECT BACKLOG
SEC. 301. PROJECT BACKLOG.
(a) Review and Report on Water Resources Construction
Backlog.--
(1) Definitions.--In this subsection:
(A) Active.--The term ``active'', with respect to a
project, means that--
(i) the project is economically justified;
(ii) the project has received funding for--
(I) preconstruction engineering and design; or
(II) construction; and
(iii) the non-Federal interests with respect to the project
have demonstrated willingness and the ability to provide the
required non-Federal share.
(B) Deferred.--The term ``deferred'', with respect to a
project, means that the project--
(i) has doubtful economic justification;
(ii) requires reevaluation to determine the economic
feasibility of the project; or
(iii) is a project for which the non-Federal interests are
unable to provide required cooperation.
(C) Inactive.--The term ``inactive'', with respect to a
project, means that--
(i) the project is not economically justified;
(ii) the project no longer meets current and prospective
needs as described in a feasibility report or general
reevaluation report;
(iii) the non-Federal interests with respect to the project
have not demonstrated willingness or the ability to provide
the required non-Federal share; or
(iv)(I) the project most recently received, under an Act of
Congress, authorization or reauthorization of construction
more than 25 years before the date of enactment of this Act;
and
(II) an amount that is less than 33 percent of the
estimated total costs of the project (excluding costs of
preconstruction engineering and design) has been obligated
for the project as of the date of enactment of this Act.
(D) Project.--The term ``project'' means a water resources
project, or a separable element of a water resources project,
that is authorized by law for funding from--
(i) the Construction, General, appropriations account; or
(ii) the construction portion of the Flood Control,
Mississippi River and Tributaries, appropriations account.
(2) Study.--
(A) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall submit to the
Committee on Environment and Public Works of the Senate and
the Committee on Transportation and Infrastructure of the
House of Representatives a study consisting of--
(i) the list described in subparagraph (B); and
(ii) the information described in subparagraph (C).
(B) List.--The list referred to in subparagraph (A) is a
list of all authorized water resources projects--
(i) that have not been commenced; or
(ii) the construction of which has not been completed.
(C) Required information.--Each project on the list
described in subparagraph (B) shall be accompanied by
information on--
(i) the primary purpose of the project;
(ii) the year in which construction of the project was
commenced;
(iii) the total estimated cost of the project in current
year dollars;
(iv) the benefit-cost ratio of the project, determined
based on current discount rates;
(v) the estimated annual benefits and annual costs of the
project;
(vi) the remaining additional benefits and the remaining
additional costs to complete construction of the project
(including the ratio that remaining benefits bear to
remaining costs);
(vii)(I) the year during which the most recent major
studies of the feasibility and design of the project were
completed; and
(II) the year during which the most recent environmental
impact statement or environmental assessment for the project
was completed;
(viii) the date of the last year for which economic data
that was included in the most recent analysis of the
feasibility and justification of the project was collected;
(ix) the status of each project as--
(I) reconnaissance, preconstruction engineering and design,
or construction; and
(II) active, deferred, or inactive; and
(x) the information described in paragraph (3) for each
particular type of project.
(3) Information for particular project type.--The study
under paragraph (2) shall include--
(A) in the case of a flood damage reduction project--
(i) the extent to which the project reflects national flood
damage reduction priorities as established by the Federal
Emergency Management Agency;
(ii)(I) the level of flood protection provided; and
(II) to the maximum extent practicable, the extent to which
the project is based on projected growth and the basis for
each projection of growth; and
(iii) the extent to which the project--
(I) restores natural aquatic ecosystem functions; and
(II) avoids adverse environmental impacts and risk before
implementation of mitigation activities;
(B) in the case of a navigation project--
(i)(I) the extent to which the economic benefits of the
project are based on existing levels of commercial traffic
rather than projected growth in commercial traffic; and
(II) to the maximum extent practicable, the extent to which
the project is based on projected growth and the basis for
each projection of growth; and
(ii) the extent of the likely environmental benefits of the
project, including the extent of--
(I) remediation of contaminated sediments, or reuse of
dredged material, to restore aquatic habitat; and
(II) adverse environmental impacts and risks of the
project; and
(C) in the case of an environmental restoration project--
(i) the extent to which the project--
(I) restores natural hydrologic processes and the spatial
extent of aquatic habitat; and
(II) otherwise produces self-sustaining environmental
benefits; and
(ii) the extent to which the project addresses critical
national conservation priorities, including preservation and
protection of endangered and threatened species or habitat of
endangered and threatened species.
(4) Measurement and reporting.--
(A) In general.--The Secretary shall use objective and
quantifiable standards for measuring and reporting the
information required to be submitted under paragraph (3).
(B) Alternative method of reporting.--In any case in which
the information required to be submitted under subparagraph
(B)(ii) or (C) of paragraph (3) cannot be quantified, the
information shall be reported through an objective
description of the benefits and impacts of the applicable
project.
(5) Availability to the public.--The study submitted to
Congress under paragraph (2) shall be made available to--
(A) any person on request; and
(B) the public on the Internet.
(b) Project Deauthorizations.--Section 1001 of the Water
Resources Development Act of 1986 (33 U.S.C. 579a) is amended
to read as follows:
``SEC. 1001. PROJECT DEAUTHORIZATIONS.
``(a) Definitions.--In this section:
``(1) Construction of a project.--The term `construction of
a project' means--
[[Page S2556]]
``(A) with respect to a flood control project--
``(i) the acquisition of land, an easement, or a right-of-
way; or
``(ii) the performance of physical work under a
construction contract;
``(B) with respect to an environmental protection and
restoration project--
``(i) the acquisition of land, an easement, or a right-of-
way primarily to facilitate the restoration of wetland or
similar habitat; or
``(ii) the performance of physical work under a
construction contract--
``(I) to modify an existing project facility; or
``(II) to construct a new environmental protection or
restoration measure;
``(C) with respect to a shore protection project--
``(i) the acquisition of land, an easement, or a right-of-
way; or
``(ii) the performance of physical work under a
construction contract for a structural or a nonstructural
measure; and
``(D) with respect to any project that is not described in
subparagraph (A), (B), or (C), the performance of physical
work under a construction contract.
``(2) Inactive.--The term `inactive', with respect to a
project, means that--
``(A) the project is not economically justified;
``(B) the project no longer meets current and prospective
needs as described in a feasibility report or general
reevaluation report;
``(C) the non-Federal interests with respect to the project
have not demonstrated willingness or the ability to provide
the required non-Federal share; or
``(D)(i) the project most recently received, under an Act
of Congress, authorization or reauthorization for
construction more than 25 years before the date of enactment
of this subparagraph; and
``(ii) an amount that is less than 33 percent of the
estimated total costs of the project (excluding costs of
preconstruction engineering and design) has been obligated
for the project as of the date of enactment of this
subparagraph.
``(3) Physical work under a construction contract.--The
term `physical work under a construction contract' does not
include any activity relating to--
``(A) project planning;
``(B) engineering and design;
``(C) relocation; or
``(D) the acquisition of land, an easement, or a right-of-
way.
``(4) Project.--The term `project' means a water resources
project, or a separable element of a water resources project,
that is authorized by law for funding from--
``(A) the Construction, General, appropriations account; or
``(B) the construction portion of the Flood Control,
Mississippi River and Tributaries, appropriations account.
``(b) Inactive Projects.--
``(1) List.--Not later than December 31, 2004, and
biennially thereafter, the Secretary shall submit to Congress
a list of inactive projects.
``(2) Deauthorization.--An inactive project shall be
deauthorized effective beginning 1 year after the date of
submission of a list under paragraph (1) that includes the
project unless, during that 1-year period, Congress
reauthorizes the project in accordance with the Corps of
Engineers Modernization and Improvement Act of 2004 and the
amendments made by that Act.
``(c) Projects for Which Actual Construction Has Not
Begun.--
``(1) List.--The Secretary shall annually submit to
Congress a list of projects that have been authorized for
construction, but for which no actual construction has begun
and no Federal funds have been obligated for construction
during the 3 consecutive fiscal years preceding the fiscal
year in which the list is submitted.
``(2) Deauthorization.--A project authorized for
construction that is not subject to subsection (b) shall be
deauthorized effective beginning 5 years after the date of
the most recent authorization or reauthorization of the
project unless, during that 5-year period, Federal funds are
obligated for construction of the project.
``(d) Projects for Which Construction Has Been Suspended.--
``(1) List.--The Secretary shall annually submit to
Congress a list of projects--
``(A) that have been authorized for construction; and
``(B) for which no Federal funds have been obligated for
construction during the 2 consecutive fiscal years preceding
the date of submission of the list.
``(2) Deauthorization.--A project that is not subject to
subsection (b) but for which Federal funds have been
obligated for construction of the project shall be
deauthorized if Federal funds appropriated specifically for
construction of the project, as indicated in an Act of
Congress or in accompanying legislative report language, are
not obligated for construction of the project during the
period of 3 fiscal years following the last fiscal year in
which Federal funds were obligated for construction of the
project.
``(e) Completed Projects.--Subsections (b), (c), and (d)
shall not apply--
``(1) in the case of a beach nourishment project, after
initial construction of the project has been completed; or
``(2) in the case of any other project, after construction
of the project has been completed.
``(f) Congressional Notifications.--On submission of a list
under subsection (b), (c), or (d), the Secretary shall notify
each Senator in whose State, and each Member of the House of
Representatives in whose district, a project on the list is
or would be located.
``(g) Final Deauthorization List.--The Secretary shall
annually publish in the Federal Register a list of all
projects deauthorized under subsections (b), (c), and (d).''.
(c) Waterways.--
(1) Report by academy.--
(A) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall enter into a
contract with the Academy to prepare a report on waterways in
the Inland Waterways System.
(B) Contents of report.--The report shall--
(i) review the Inland Waterways System;
(ii) provide data on the commercial traffic being carried
by each waterway in the System as of the date of the report;
(iii) provide an analysis of the extent to which prior
projections of the commercial traffic carried by each
waterway in the System were accurate; and
(iv) based on the information provided under clauses (ii)
and (iii)--
(I) identify underused waterways in the System;
(II) propose new economic and environmental uses for
underused waterways;
(III) describe statutory and administrative reforms that
are needed to ease the transition from the current authorized
uses of the System to new economic and environmental uses of
the System; and
(IV) recommend which waterways in the System should be
decommissioned.
(2) Decommissioning mechanism for underused waterways.--Not
later than 1 year after the date of enactment of this Act,
the Secretary shall by regulation establish a mechanism for
the decommissioning of waterways that--
(A) are no longer economically justified, based on
commercial traffic and current discount rates; or
(B) are no longer in the national interest.
SEC. 302. PRIMARY MISSION FOCUS.
Any water resources project that does not have as a primary
project purpose 1 of the primary Corps missions of
environmental protection, flood control, or navigation and
that, as of the date of enactment of this section, has no
appropriated construction funding, is deauthorized.
Mr. McCAIN. Madam President, I am pleased to join my friend, Senator
Feingold in cosponsoring this important and timely legislation. Today,
the Senate is deliberating over the nation's budget priorities in the
face of our enormous deficit.
Historically, Congress has considered water projects, costing many
billions of taxpayer dollars, as essential expenditures--regardless of
the environmental costs or public benefits. The reforms of the Corps of
Engineers' procedures in this bill are designed to achieve more cost-
effective expenditures for water projects that will yield more
environmental, economic, and social benefits. The need for these
changes has been acknowledged by many for some time, but never has the
need to spend scarce taxpayer dollars wisely been as crucial as it is
now.
The Corps procedures for planning and approving projects, as well as
the Congressional system for funding projects, are broken, but they can
be effectively fixed. In fact, the reforms in this bill are based on
thorough program analysis and common sense. I commend Senator Feingold
for building on the legislation we introduced with Senator Smith in the
last Congress to provide additional improvements. It is surprising that
Congress hasn't already put these procedures in place, but there is no
time or need like the present.
Provisions of the legislation we are introducing today would modify
the Corps planning and approval procedures to consider both economic
and environmental objectives. Independent review of Corps projects and
an increase in the cost-benefit factor would ensure that only
beneficial projects are constructed. Effective measures for mitigation
of environmental and other damage caused by projects would be required
and monitored. The existing $56 billion project backlog is addressed
and projects that have been suspended or never started for five years
would no longer be considered.
Water projects that provide economic and environmental benefits to
our state citizens and all federal taxpayers serve the common good and
reflect our common interest in fiscal responsibility. I urge my
colleagues to support this legislation.
______
By Mr. BIDEN:
S. 2189. A bill to establish grants to improve and study the National
Domestic Violence Hotline; to the Committee on the Judiciary.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
[[Page S2557]]
S. 2189
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 ``Domestic Violence
Connections Campaign Act of 2004''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) More than 500 men and women call the National Domestic
Violence Hotline every day to get immediate, informed, and
confidential assistance to help deal with family violence.
(2) The National Domestic Violence Hotline service is
available, toll-free, 24 hours a day and 7 days a week, with
bilingual staff, access to translators in 150 languages, and
a TTY line for the hearing-impaired.
(3) With access to over 5,000 shelters and service
providers across the United States, Puerto Rico, Alaska,
Hawaii, and the United States Virgin Islands, the National
Domestic Violence Hotline provides crisis intervention and
immediately connects callers with sources of help in their
local community.
(4) The National Domestic Violence Hotline, which was
created by the Violence Against Women Act and is located in
Austin, Texas, answered its first call on February 21, 1996,
and answered its one millionth call on August 4, 2003.
(5) Approximately 60 percent of the callers indicate that
calling the Hotline is their first attempt to address a
domestic violence situation and that they have not called the
police or any other support services.
(6) Between 2000 and 2003, there was a 27 percent increase
in call volume.
(7) Due to high call volume and limited resources,
approximately 26,000 calls to the Hotline went unanswered in
2002 due to long hold times or busy signals.
(8) Widespread demand for the Hotline service continues.
The Department of Justice reported that over 18,000 acts of
violence were committed by intimate partners in the United
States each day during 2001. An average of 3 women are
murdered every day in this Country by their husbands or
boyfriends.
(9) Working with outdated telephone and computer equipment
creates many challenges for the National Domestic Violence
Hotline.
(10) Improving technology infrastructure at the National
Domestic Violence Hotline and training advocates, volunteers,
and other staff on upgraded technology will drastically
increase the Hotline's ability to answer more calls quickly
and effectively.
(11) Partnerships between the public sector and the private
sector are an effective way of providing necessary technology
improvements to the National Domestic Violence Hotline.
(12) The Connections Campaign is a project that unites
nonprofit organizations, major corporations, and Federal
agencies to launch a major new initiative to help ensure that
the National Domestic Violence Hotline can answer every call
with upgraded, proficient, and sophisticated technology
tools.
SEC. 3. TECHNOLOGY GRANT TO NATIONAL DOMESTIC VIOLENCE
HOTLINE.
(a) In General.--The Attorney General, in consultation with
the Secretary of Health and Human Services, shall award a
grant to the National Domestic Violence Hotline.
(b) Use of Funds.--The grant awarded under subsection (a)
shall be used to provide technology and telecommunication
training and assistance for advocates, volunteers, staff, and
others affiliated with the Hotline so that such persons are
able to effectively use improved equipment made available
through the Connections Campaign.
SEC. 4. RESEARCH GRANT TO STUDY NATIONAL DOMESTIC VIOLENCE
HOTLINE.
(a) Grant Authorized.--Not later than 6 months after the
date of enactment of this Act, the Attorney General, in
consultation with the Secretary of Health and Human Services
and the National Domestic Violence Hotline, shall award a
grant to a university or other research institution with
demonstrated experience and expertise with domestic violence
issues to conduct a study of the National Domestic Violence
Hotline for the purpose of conducting the research described
under subsection (c), and for the input, interpretation, and
dissemination of research data.
(b) Application.--Each university or research institution
desiring to receive a grant under this section shall submit
an application to the Attorney General, at such time, in such
manner, and accompanied by such additional information as the
Attorney General, in consultation with the Secretary of
Health and Human Services and the National Domestic Violence
Hotline, may reasonably require.
(c) Issues to be Studied.--The study described in
subsection (a) shall--
(1) compile statistical and substantive information about
calls received by the Hotline since its inception, or a
representative sample of such calls, while maintaining the
confidentiality of Hotline callers;
(2) interpret the data compiled under paragraph (1)--
(A) to determine the trends, gaps in services, and
geographical areas of need; and
(B) to assess the trends and gaps in services to
underserved communities and the military community; and
(3) gather other important information about domestic
violence.
(d) Report.--Not later than 3 years after the date of
enactment of this Act, the grantee conducting the study under
this section shall submit a report on the results of such
study to Congress and the Attorney General.
SEC. 5. GRANT TO RAISE PUBLIC AWARENESS OF DOMESTIC VIOLENCE
ISSUES.
(a) Grant Authorized.--Not later than 6 months after the
submission of the report required under section 4(d), the
Attorney General, in consultation with the Secretary of
Health and Human Services and the National Domestic Violence
Hotline, shall award a grant to an experienced organization
to conduct a public awareness campaign to increase the
public's understanding of domestic violence issues and
awareness of the National Domestic Violence Hotline.
(b) Application.--Each organization desiring to receive a
grant under this section shall submit an application to the
Attorney General, at such time, in such manner, and
accompanied by such additional information as the Attorney
General, in consultation with the Secretary of Health and
Human Services and the National Domestic Violence Hotline,
may reasonably require.
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated,
for each of the fiscal years 2005 and 2006--
(1) $500,000 to carry out section 3;
(2) $250,000 to carry out section 4; and
(3) $800,000 to carry out section 5.
(b) Availability.--Any amounts appropriated pursuant to the
authority of subsection (a) shall remain available until
expended.
(c) Nonexclusivity.--Nothing in this section shall be
construed to limit or restrict the National Domestic Violence
Hotline to apply for and obtain Federal funding from any
other agency or department or any other Federal grant
program.
(d) No Condition on Appropriations.--Amounts appropriated
pursuant to subsection (a) shall not be considered amounts
appropriated for purposes of the conditions imposed under
section 316(g)(2) of the Family Violence Prevention and
Services Act (42 U.S.C. 10416(g)(2)).
Mr. BIDEN. Mr. President, I want to relay a telephone number, a
number that may not sound familiar but you can be sure is memorized by
thousands of women across the country. 1-800-799-SAFE--the number for
the National Domestic Violence Hotline. Each month, over 16,000 women
and men call the National Domestic Violence Hotline. Open twenty-four
hours a day, seven days a week, with a bilingual staff and a TTY-line
for the hearing impaired, the National Domestic Violence Hotline
provides immediate, informed and confidential assistance to those
caught in family violence. Oftentimes, it is the first call a battered
woman makes, even before calling the police or a friend.
The Hotline is located in Austin, TX, but answers telephone calls
placed anywhere in the United States and the U.S. territories. A
distressed caller is connected to a trained advocate who is able to
provide crisis intervention counseling, help create a safety plan,
directly connect the caller with a local shelter or provide a range of
local referral information. Using a massive database listing more than
5,000 services nationally, one of 30 full or part-time advocates puts a
caller in touch immediately with local programs offering shelter and
direct care.
I want to share with my colleagues two real-life stories from women
who have called the Hotline. One caller dialed the Hotline after her
boyfriend pulled a gun and threatened to kill her if she left him.
Fearing for her life, she fled with her two young children. They ran to
a nearby strip mall where she called the Hotline. As she told a Hotline
advocate her story, she watched her abuser search for her in every
store in the mall. Once a local shelter was contacted, arrangements
were made to rescue the woman and her children from their hiding spot
in a back alley behind the restaurant.
An immigrant woman who spoke no English called from a community
clinic. She had learned that for the past year her abusive husband had
been raping their 15-year-old daughter. Her husband had no idea she was
calling the Hotline. He had kept her so isolated on the ranch where
they lived that she didn't even know her address. While the woman
stayed on the line, an advocate contacted the sheriff's office and
together they pieced together enough information to figure out her
address. The sheriff made plans to confirm the child abuse at the
daughter's school, after which the husband would be arrested
immediately. After completing the exchange with the sheriff's office,
the advocate contacted the nearest shelter and arranged to pick up the
woman and her daughter at the clinic.
These are real women who we see every day at work, at the grocery
store
[[Page S2558]]
and at the school parking lot whose lives have been dramatically
changed, in part, by that first call to the National Domestic Violence
Hotline. Created by the Violence Against Women Act, the Hotline
answered its first call on February 21, 1996, and its one millionth
call on August 4, 2003. In the past decade we've witnessed a sea of
change in how Americans view domestic violence. It is no longer treated
as a private, family matter, but as a public crime. As public awareness
has grown--as the Hotline's telephone number is posted on bus
billboards and websites, in school offices and doctor's waiting rooms--
there has been a dramatic increase in calls. Between 2000 and 2001
alone, call volume increased by 18.5 percent. In 2002, the Hotline
answered almost 180,000 calls, an increase of 7.5 percent from the
previous year. The Department of Defense recently requested that the
Hotline accept calls from military personnel--a move that will
certainly increase the call volume substantially.
While the majority of the Hotline's day-to-day operating costs are
paid with Federal dollars designated in annual spending bills, funding
has not kept pace with the growing call volume and the Hotline's
technology and telecommunication needs. This year, the spending bill
appropriated only three million dollars to the Hotline. Older
equipment, coupled with increased usage, has set the Hotline up to
experience frequent problems with the network, data corruption and the
lurking threat of a crash in the entire system. The Hotline tries to
answer almost 500 calls a day with old computers and servers. Because
the system is outdated and the staff is stretched thin, over 26,000
calls last year went unanswered due to long hold times or busy signals.
We need to answer each and every one of the calls to the Hotline.
Today I am launching an innovative and far-reaching solution to the
Hotline's problems, the Connections Campaign. The Connections Campaign
is a public/private partnership that teams up private telecommunication
and technology companies with the Federal Government to solve the
Hotline's crisis. Under the Connections Campaign, the same companies--
Microsoft, Sony, BellSouth, Verizon Wireless, IBM, Nortel Networks,
Dell and others--that supply Americans with home computers, cell phones
and telephone service are donating hardware and software to the
Hotline. Items like mapping software, networked computers, servers,
flat-screened monitors and telephone airtime are being pledged to the
Hotline. This is just the beginning of a multi-year, multi-million
dollar initiative to place the Hotline squarely in the twenty-first
century.
On the public side of the partnership, I am proud to introduce the
Domestic Violence Connections Campaign Act of 2004 which will provide a
million dollars to train and assist the Hotline's advocates so that
they may effectively use the improved equipment provided by the
Connections Campaign. In addition, the Act creates a new research grant
program to be administered by the Attorney General that will review and
analyze data generated by the Hotline. Taking into consideration needs
for caller confidentiality and security, researchers will study Hotline
data to determine the trends, potential gaps in service and
geographical areas of need. Within three years of enactment,
researchers will release a comprehensive Hotline study to Congress and
the Attorney General. Finally, my bill provides an $800,000 grant
program for the Hotline to increase public awareness about domestic
violence and the Hotline's services.
One hand clapping simply does not make enough noise. Federal, State
and local government cannot always supply all the answers and resources
to resolve our communities' pressing problems. Today's Connections
Campaign recognizes that big problems warrant grand, collaborative
solutions. Cooperation between the Federal Government and the private
sector is critical to enhance the National Domestic Violence Hotline.
A cornerstone of the Violence Against Women Act was my conviction
that ending domestic violence and sexual assault required a
coordinated, community response. We worked hard to ensure that
emergency room personnel, police officers, victim advocates, shelter
directors and court clerks worked together to implement the many
mandates of the Violence Against Women Act. The Connections Campaign is
Act Two. We are now asking that the corporate community get actively
involved to strengthen a key safety net for women and their families,
the National Domestic Violence Hotline.
Today's legislation and the kick-off is just the beginning of what I
envision to be a lasting connection between the Hotline and the
technology and telecommunications community. I look forward to coming
back to the Senate floor to inform my colleagues about the new
computers, wireless headsets, upgraded software and other technology
that could be provided to the Hotline through the Connections Campaign.
In the meantime, let me close by commending and expressing my gratitude
to Sheryl Cates, the director of the Hotline and her dedicated staff
who are providing the first step to safe, new lives for millions of
battered women. They are truly doing God's work.
I ask unanimous consent that the text of the bill be printed in the
Record.
______
By Mr. INHOFE:
S. 2190. A bill to implement equal protection under the 14th article
of amendment to the Constitution for the right to life of each born and
preborn human person; to the Committee on the Judiciary.
Mr. INHOFE. Madam President, I rise today to introduce the Life at
Conception Act. This bill is of utmost importance to future generations
in America. Quite simply, it implements equal protection under the
Fourteenth Amendment of the Constitution for every born and pre-born
person. It protects Americans' right to life by defining the term
``human person'' as an individual at all stages of life, including, but
not limited to, the moment of conception.
The Constitution's Fourteenth Amendment grants that no ``state
deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal
protection of the laws.'' Furthermore, it grants ``Congress shall have
power to enforce, by appropriate legislation, the provisions of this
article.'' It is time that we, the Congress, start enforcing this
provision, start defending the Constitution, and start defending
American lives.
Even the Justices in the 1973 Roe v. Wade decision conceded this
point by making the admission: ``If this suggestion of personhood is
established, the appellant's case [Roe], of course, collapses, for the
fetus' right to life is then guaranteed specifically by the
[Fourteenth] Amendment.'' Our Constitution is designed to protect the
rights of all Americans, and give them the right to live and succeed.
Right now, significant portions of Americans, who have no voice, are
being killed, despite the explicit protections in the Fourteenth
Amendment. Since 1973, more than 44 million babies have been sentenced
to death without trial. We cannot tolerate this atrocity.
Additionally, a 1999 Wirthlin poll found that 62 percent of Americans
support legal abortion only in cases of rape, incest, or if the
mother's life is in danger. How can we stand by and let so many
children die even when public opinion is on our side? It is our role as
legislators to uphold and enforce the Constitution, and it is our role
as humans to defend those who cannot defend themselves. I urge my
colleagues to follow their conscience, support this bill, and do what
is right for America and for humanity.
______
By Mr. HATCH (for himself, Mr. Leahy, Mr. Kohl, and Mr.
Feingold):
S. 2192. A bill to amend title 35, United States Code, to promote
cooperative research involving universities, the public sector, and
private enterprises; to the Committee on the Judiciary.
Mr. HATCH. Mr. President, I rise to introduce the Cooperative
Research and Technology Enhancement Act of 2004 (the CREATE Act). This
bill makes a narrow, but important change in our patent laws to ensure
that the American public will benefit from the results of collaborative
research efforts that combine the erudition of great public
universities with the entrepreneurial savvy of private enterprises.
[[Page S2559]]
Together, our universities and private enterprises have created a
culture of innovation that has become America's greatest asset in an
increasingly global economy. This culture of innovation encourages
fundamental research--knowledge for its own sake. It also encourages
the hard work needed to incorporate new advances in technology into
actual products that reach the market and benefit consumers.
While universities and private entrepreneurs can play complementary
roles in our innovation economy, new opportunities to innovate arise
when public institutions and private entrepreneurs combine their
respective forms of expertise in collaborative, joint research efforts.
President Lincoln would surely agree that this type of joint private-
public research effort is well-suited to add ``the fuel of interest to
the fire of genius in the production of new and useful things.''
As a result, we have long realized the enormous value of these joint
research efforts, and we have long realized that their potential cannot
be realized unless their participants can benefit from the intellectual
property rights generated by such research. Unfortunately, the literal
language of Section 102(g) of the Patent Act suggests that non-public
information known to some members of a private-public research team can
constitute ``prior art'' that may make the final results of the team
research obvious, and thus not patentable. Because non-public
information does not usually constitute ``prior art'' under the Patent
Act, the potentially disparate treatment of such information crates a
disincentive for entrepreneurs and public institutions to collaborate
in joint research efforts.
I believe that we must encourage--not discourage--public institutions
and private entrepreneurs to combine their respective talents in joint
research efforts. Indeed, Congress committed itself to this principle
when it passed the Bayh-Dole Amendments to the Patent Act. The CREATE
Act will simply conform the present language of the Patent Act to the
intent that has always animated it.
For the above reasons, I urge my colleagues to support the
Cooperative Research and Technology Enhancement Act of 2004. I also
thank my colleagues in the House Committee on the Judiciary,
particularly Subcommittee Chairman Lamar Smith and Chairman James
Sensenbrenner, for their groundbreaking work on this important issue.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2192
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 ``Cooperative Research and
Technology Enhancement (CREATE) Act of 2004''.
SEC. 2. COLLABORATIVE EFFORTS ON CLAIMED INVENTIONS.
Section 103(c) of title 35, United States Code, is amended
to read as follows:
``(c)(1) Subject matter developed by another person, which
qualifies as prior art only under one or more of subsections
(e), (f), and (g) of section 102 of this title, shall not
preclude patentability under this section where the subject
matter and the claimed invention were, at the time the
claimed invention was made, owned by the same person or
subject to an obligation of assignment to the same person.
``(2) For purposes of this subsection, subject matter
developed by another person 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 if--
``(A) the claimed invention was made by or on behalf of
parties to a joint research agreement that was in effect on
or before the date the claimed invention was made;
``(B) the claimed invention was made as a result of
activities undertaken within the scope of the joint research
agreement; and
``(C) the application for patent for the claimed invention
discloses or is amended to disclose the names of the parties
to the joint research agreement.
``(3) For purposes of paragraph (2), the term `joint
research agreement' means a written contract, grant, or
cooperative agreement entered into by two or more persons or
entities for the performance of experimental, developmental,
or research work in the field of the claimed invention.''.
SEC. 3. EFFECTIVE DATE.
(a) In General.--The amendments made by this Act shall
apply to any patent granted on or after the date of the
enactment of this Act.
(b) Special Rule.--The amendments made by this Act shall
not affect any final decision of a court or the United States
Patent and Trademark Office rendered before the date of the
enactment of this Act, and shall not affect the right of any
party in any action pending before the United States Patent
and Trademark Office or a court on the date of the enactment
of this Act to have that party's rights determined on the
basis of the provisions of title 35, United States Code, in
effect on the day before the date of the enactment of this
Act.
Mr. LEAHY. Madam President, the United States has from its inception
recognized the importance of intellectual property laws in fostering
innovation, and vested in Congress the responsibility of crafting laws
that ensure that those who produce inventions are able to reap economic
rewards for their efforts. Today, Senator Hatch, Senator Kohl, Senator
Feingold, and I introduce the ``Cooperative Research and Technology
Enhancement, CREATE, Act of 2004,'' legislation that will provide a
needed remedy to one aspect of our nation's patent laws.
When Congress passed the Bayh-Dole Act in 1980, the law encouraged
private entities and not-for-profits such as universities to form
collaborative partnerships in order to spur innovation. Prior to the
enactment of this law, universities were issued fewer than 250 patents
each year. That this number has in recent years surpassed two thousand
is owed in large measure to the Bayh-Dole Act. The innovation this law
encouraged has contributed billions of dollars annually to the United
States economy and has produced hundreds of thousands of jobs.
However, one component of the Bayh-Dole Act, when read literally,
runs contrary to the intent of that legislation. In 1999, the United
States Court of Appeal for the Federal Circuit ruled, in Oddzon
Products, Inc. v. Just Toys, Inc., that non-public information may in
certain cases be considered ``prior art'' a standard which generally
prevents an inventor from obtaining a patent. Thus some collaborative
teams that the Bayh-Dole Act was intended to encourage have been unable
to obtain patents for their efforts. The result is a disincentive to
form this type of partnership, which could have a negative impact on
the U.S. economy and hamper the development of new creations.
However, the Federal circuit in its ruling invited Congress to better
conform the language of the Bayh-Dole Act to the intent of the
legislation. The ``CREATE Act'' does exactly that by ensuring that non-
public information is not considered ``prior art'' when the information
is used in a collaborative partnership under the Bayh-Dole Act. The
bill that my colleagues and I are today offering also includes strict
evidentiary burdens to ensure that the legislation is tailored narrowly
in order to solely fulfill the intent of the Bayh-Dole Act. I ask that
my colleagues support the ``Cooperative Research and Technology
Enhancement Act of 2004.''
______
By Ms. SNOWE (for herself and Mr. Bond):
S. 2193. A bill to improve small business loan programs, and for
other purposes; to the Committee on Small Business and
Entrepreneurship.
Ms. SNOWE. Mr. President, I rise to introduce a bill to revitalize a
loan program crucial to the growth of small businesses in this country,
and therefore crucial to our country's economy. This bill, the ``Smart
Business Loan Revitalization Act of 2004,'' provides improvements to
the Small Business Administration's largest business loan program, the
``Section 7(a)'' program.
This program proves that a small amount of government backing can
greatly enhance private-sector financing for small businesses, and that
the economic benefits can reverberate throughout the economy at large.
More than $46.6 billion in 7(a) loans have been provided to small
businesses over the last five Fiscal Years. This financing has helped
small businesses to create or retain nearly 2 million more jobs over
this five-year period.
Today, we are losing thousands of American jobs to outsourcing and
off-shore manufacturing. We measure net job increases in the ``few
thousands.'' Given these circumstances, it is clearly to our advantage,
and to the advantage
[[Page S2560]]
of the American people, to support improvements to any program that has
already demonstrated an ability to create or retain nearly 400,000
American jobs a year.
Last year this program provided $11.2 billion in loans to small
business owners and employees in towns and communities across America.
This year, however, the SBA only requested a program size of $9.3
billion. The fact that the SBA received a larger appropriation than the
$9.3 billion it requested is powerful testament to the popularity of
this program among small businesses. The SBA received sufficient
appropriations, $79 million, coupled with $22 million in carried-over
funds, to allow for a $9.55 billion program.
Like last year, however, the demand for program funds in the first
few months of Fiscal Year 2004 suggested that requests for the entire
year would most likely exceed $11 billion. As a result, in January,
2004, the SBA shut the program down, and then reopened it with a
diminished loan cap of $750,000--37.5 percent of the $2 million maximum
previously available. Faced with these restrictions, small businesses
have urged Congress and the Administration to make the program fully
operational for the rest of 2004.
To this end, I have worked with a coalition of small businesses and
lenders to construct a plan to improve the program for the remainder of
this Fiscal Year. The plan would allow lenders to help alleviate the
funding shortfall. It would benefit small businesses and lenders by
allowing loans larger than $750,000, and by allowing loans with
multiple participations.
The bill would achieve these goals in three ways. First, lenders
would return to the SBA a fee of 0.25 percent (or one-quarter of one
percent) of new loans under $150,000, a fee that lenders are currently
permitted to retain. Lenders may only retain this fee for loans of
$150,000 or less--for loans greater than that size, lenders must return
the fee to the SBA, as they have been required to do since the
inception of the program. This proposal was first made by the SBA, as
part of a larger plan the SBA recently submitted to Congress.
Second, a lender fee on new loans would be increased from 0.25
percent, one-quarter of one percent, to 0.35 percent. Finally, lenders
would be permitted to provide small businesses with financing packages
that include a 7(a) loan portion and a non-7(a), a strictly commercial
portion, if the lenders paid the normal fees on the 7(a) loan portion
and a 0.50 percent fee on the non-7(a) portion. Prior to January 2004,
the SBA permitted this type of financing, but without receiving any fee
income for the non-7(a) portion, and without an upper limit on the
total financing, which I have set at $4 million.
The ability of small businesses to receive loans larger than $750,000
is a prerequisite to reviving the American economy. These loans provide
needed capital for significant purchases and development by small
businesses. More 7(a) loans represent longer-term loans than similar
products available in the private capital market, and this allows small
businesses to repay their 7(a) loans more gradually. I applaud the SBA
for its desire to make more small loans to entrepreneurs without large
capital needs, but I also urge the SBA to remember those entrepreneurs
and small businesses who need more financing to strengthen and grow
their enterprise, and to hire more employees. After encouraging
entrepreneurs to start new small businesses, we cannot afford to forget
their small businesses, or profess an inability to assist them when
they need additional financing to grow.
The benefits of this program are clear. It has the ability to help
entrepreneurs to create jobs, to fulfill their dreams, and to support
their families--all of this while building the kinds of energetic
businesses our economy so desperately needs. The demands for this
program is also clear. Small businesses have submitted more
applications than the program could handle so far this year. The
willingness of lenders to pay increased fees to meet the demand from
small businesses for 7(a) loans is clear evidence the program works and
remains attractive to lenders.
The question we must answer now is whether we are willing to respond
to small businesses and lenders and implement a solution which they
have asked for, and which promises dividends for all involved, or
whether we will ignore their requests, and miss an opportunity to
transform a loan program that sustains almost 400,000 jobs a year into
an initiative capable of creating two, three, four or even five times
that amount. I don't want to miss that opportunity, my constituents in
Maine can't afford to miss that opportunity, and I don't believe that
your constituents can either. Almost every company listed today on the
American Stock Exchange began as a small business. In the short term,
this bill may save American jobs. But in the long term, it may save the
American economy.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2193
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 ``Small Business Loan
Revitalization Act'' .
SEC. 2. COMBINATION FINANCING.
(a) In General.--Section 7(a) of the Small Business Act (15
U.S.C. 636(a)) is amended by adding at the end the following:
``(31) Combination financing.--
``(A) Definitions.--In this paragraph--
``(i) the term `combination financing' means financing
comprised of a loan guaranteed under this subsection and a
commercial loan; and
``(ii) the term `commercial loan' means a loan of which no
portion is guaranteed by the Federal government.
``(B) Application.--A loan guarantee under this subsection
on behalf of a small business concern, which is approved
within 120 days of the date on which a commercial loan is
obtained by the same small business concern, shall be subject
to the provisions of this paragraph.
``(C) Commercial loan amount.--A small business concern
shall not be eligible to receive combination financing under
this paragraph unless the commercial loan obtained by the
small business concern does not exceed $2,000,000.
``(D) Commercial loan provisions.--The commercial loan
obtained by the small business concern--
``(i) may be made by the participating lender that is
providing financing under this subsection or by a different
lender;
``(ii) may be secured by a senior lien; and
``(iii) may be made by a lender in the Preferred Lenders
Program, if applicable.
``(E) Commercial loan fee.--A one-time fee in an amount
equal to 0.5 percent of the amount of the commercial loan
shall be paid by the lender to the Administration if the
commercial loan has a senior credit position to that of the
loan guaranteed under this subsection. All proceeds from the
loan guaranteed under this subsection shall be used to offset
the cost (as defined in section 502 of the Credit Reform Act
of 1990) to the Administration of guaranteeing loans under
this subsection.
``(F) Deferred participation loan eligibility.--
``(i) Maximum amount.--A small business concern may not
receive combination financing under this paragraph in an
amount greater than $4,000,000.
``(ii) Net amount.--The net amount of the deferred
participation share shall not exceed the maximum amount of a
net guarantee provided under paragraph (3)(A).
``(G) Deferred participation loan security.--A loan
guaranteed under this subsection may be secured by a
subordinated lien.
``(H) Availability.--Combination financing shall be
available under this paragraph notwithstanding any maximum
limitation on loans imposed by the Administration.''.
(b) Sunset Date.--The amendment made by subsection (a)
shall take effect on the first day after the date of
enactment of this Act and is repealed on October 1, 2004.
SEC. 3. LOAN GUARANTEE FEES.
(a) In General.--Section 7(a) of the Small Business Act (15
U.S.C. 636(a)) is amended--
(1) in paragraph (18)(B), by adding at the end the
following: ``This subparagraph shall not apply to any loan
approved during the period beginning on the first day after
the date of enactment of paragraph (23)(A)(iii) and ending on
September 30, 2004.''; and
(2) in paragraph (23), by amending subparagraph (A) to read
as follows:
``(A) Percentage.--
``(i) In general.--With respect to each loan guaranteed
under this subsection, the Administrator shall, in accordance
with such terms and procedures as the Administrator shall
establish by regulation, assess and collect an annual fee in
an amount equal to 0.5 percent of the outstanding balance of
the deferred participation share of the loan.
``(ii) First temporary percentage.--With respect to loans
approved during the period beginning on October 1, 2002 and
ending on the date of enactment of this clause, the annual
fee assessed and collected under clause (i) shall be equal to
0.25 percent of the outstanding balance of the deferred
participation share of the loan.
[[Page S2561]]
``(iii) Second temporary percentage.--During the period
beginning on the first day after the date of enactment of
this clause and ending on September 30, 2004, the annual fee
assessed and collected under clause (i) shall be equal to
0.35 percent of the outstanding balance of the deferred
participation share of the loan.''.
(b) Effective Date.--The amendments made by subsection (a)
shall take effect on the first day after the date of
enactment of this Act and are repealed on October 1, 2004.
SEC. 4. RECONSIDERATION OF LOAN APPLICATIONS REJECTED BASED
ON LOAN AMOUNT.
(a) Consideration of Loan Application Submitted Before
January 8, 2004.--Beginning on the first day after the date
of enactment of this Act, the Small Business Administration
shall reconsider any application submitted on or after
December 23, 2003 and before January 8, 2004, under section
7(a) of the Small Business Act (15 U.S.C. 636(a)) that was
rejected based on the loan amount requested before
considering any other application if the applicant is
otherwise eligible for financial assistance under that
section.
(b) Export Working Capital.--Any small business that
received financing under section 7(a)(14) of the Small
Business Act (15 U.S.C. 636(a)(14)) before January 1, 2004,
and requests a renewal of such financing, shall have their
request approved regardless of the size of such financing
(subject to the limitations in section 7(a)(3) of such Act)
if the small business is otherwise eligible for such
financing under that section.
(c) Maximum Loan Amount.--Ten days after the date of
enactment of this Act, the Small Business Administration
shall allow loans under section 7 of the Small Business Act
(15 U.S.C. 636) up to the maximum amount permitted under the
Small Business Act.
____________________