[Congressional Record Volume 151, Number 121 (Monday, September 26, 2005)]
[Senate]
[Pages S10426-S10440]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Ms. SNOWE:
S. 1767. A bill to require the Federal Communications Commission to
reevaluate the band plans for the upper 700 megaHertz band and the un-
auctioned portions of the lower 700 megaHertz band and reconfigure them
to include spectrum to be licensed for small geographic areas; to the
Committee on Commerce, Science, and Transportation.
Ms. SNOWE. Mr. President, I rise today with the support of many of my
colleagues on the Committee on Commerce, Science and Transportation to
introduce legislation to encourage the deployment of next generation
wireless services in rural areas. Cell phones have become a vital part
of so many lives. Today, there are over 194 million wireless
subscribers in the United States--a subscribership that continues to
grow. I want to be sure we foster an environment where this technology
and future wireless technologies can flourish.
Along with mobility, convenience and safety, cell phones today also
have benefits of information access and entertainment. While wireless
phones have been rapidly adopted by the general public, wireless
service is far from being without flaws. I myself become frustrated
while home in Maine when I cannot get cell phone and blackberry
service. Something must be done in order to improve the wireless
services that so many people rely on.
Wireless services, such as cell phones, wireless handheld devices and
some Internet services utilize frequencies on the radio spectrum to
transfer voice and data from one user to another. It is the job of the
service provider to turn these airwaves into the valuable services that
consumers demand. The quality of service in a given place depends on
how much investment the service provider has put into infrastructure.
More urban locations tend to have better service because the return on
investment is much higher due to the concentration of customers. This
does not mean that rural areas are left without service. Viable
business models exist that can sustain service in these more remote
locations. Oftentimes smaller, local wireless companies can serve these
areas better than nationwide service providers.
One of the greatest barriers to entry in the wireless industry is
acquiring a spectrum license in which a service can be operated.
Companies bid up to billions of dollars for rights to one of Nation's
most important resources. The digital television transition will soon
release new spectrum into the marketplace. Currently, the Federal
Communications Commission is slated to auction off the spectrum in
licenses that cover large geographic areas. While this may be the
preferred size for national wireless carriers, smaller companies will
be unable to compete in the bidding process.
The bill I introduce today aims to address this problem by directing
the Federal Communications Commission to reevaluate its current
bandplan for the 700 MHz spectrum that will be auctioned as a result of
the digital television transition. In this reevaluation, the FCC must
divide some of the frequency allocations into smaller area licenses so
that local and regional wireless companies can have an opportunity to
compete in the bidding process. The proper balance of large and small
licenses will encourage the deployment of advanced services throughout
all parts of the United States.
This bill is not meant to circumvent the expertise of the Federal
Communications Commission. It merely directs the FCC to use its
expertise to develop a plan that will benefit the entire nation. Rural
America deserves the same benefits of wireless technologies that are
available in urban areas. This Act gives those best able to serve
remote areas the tools needed to deploy services.
______
By Mr. SPECTER (for himself, Mr. Leahy, Mr. Cornyn, Mr. Allen,
Mr. Grassley, Mr. Schumer, and Mr. Feingold):
S. 1768. A bill to permit the televising of Supreme Court
proceedings; to the Committee on the Judiciary.
Mr. SPECTER. Mr. President, I seek recognition to introduce
legislation that will give the public greater access to our Supreme
Court. This bill requires the high Court to permit television coverage
of its open sessions unless it decides by a vote of the majority of
Justices that allowing such coverage in a particular case would violate
the due process rights of one or more of the parties involved in the
matter.
The purpose of this legislation is to open the Supreme Court doors so
that more Americans can see the process by which the Court reaches
critical decisions of law that affect this country and everyday
Americans. Because the Supreme Court of the United States holds power
to decide cutting-edge questions on public policy, thereby effectively
becoming a virtual ``super legislature,'' the public has a right to
know what the Supreme Court is doing. And that right would be
substantially enhanced by televising the oral arguments of the Court so
that the public can see and hear the issues presented to the Court.
With this information, the public would have insight into key issues
and be better equipped to understand the impact of the Court's
decisions.
In a very fundamental sense, televising the Supreme Court has been
implicitly recognized--perhaps even sanctioned--in a 1980 decision by
the Supreme Court of the United States entitled Richmond Newspapers v.
Virginia. In this case, the Supreme Court noted that a public trial
belongs not only to the accused, but to the public and the press as
well; and that people now acquire information on court procedures
chiefly through the print and electronic media.
That decision, in referencing the electronic media, appears to
anticipate televising court proceedings, although I do not mean to
suggest that the Supreme Court is in agreement with this legislation. I
should note that the Court could, on its own motion, televise its
proceedings but has chosen not to do so, which presents, in my view,
the necessity for legislating on this subject.
When I argued the case of the Navy Yard, Dalton v. Specter, back in
1994, the Court proceedings were illustrated by an artist's drawings.
Now, however, the public gets a substantial portion, if not most, of
its information from television and the internet. While many court
proceedings are broadcast routinely on television, the public has
little access to the most important and highest court in this country.
The public must either rely on the print media, or stand in long lines
outside the Supreme Court in Washington DC in order to get a brief
glimpse of the open session from the public gallery.
Justice Felix Frankfurter perhaps anticipated the day when Supreme
Court arguments would be televised when he said that he longed for a
day when: The news media would cover the Supreme Court as thoroughly as
it did the World Series, since the public confidence in the judiciary
hinges on the
[[Page S10427]]
public's perception of it, and that perception necessarily hinges on
the media's portrayal of the legal system.
When I spoke in favor of this legislation in September of 2000, I
said, ``I do not expect a rush to judgment on this very complex
proposition, but I do believe the day will come when the Supreme Court
of the United States will be televised. That day will come, and it will
be decisively in the public interest so the public will know the
magnitude of what the Court is deciding and its role in our democratic
process.'' Today, I believe the time has come and that this legislation
is crucial to the public's awareness of Supreme Court proceedings and
their impact on the daily lives of all Americans.
I pause to note that it was not until 1955 that the Supreme Court,
under the leadership of Chief Justice Warren, first began permitting
audio recordings of oral arguments. Between 1955 and 1993, there were
apparently over 5,000 recorded arguments before the Supreme Court. That
roughly translates to an average of about one hundred thirty two (132)
arguments annually. But audio recordings are simply ill suited to
capture the nuance of oral arguments and the sustained attention of the
American citizenry. Nor is it any response that people who wish to see
open sessions of the Supreme Court should come to the Capital and
attend oral arguments. For, according to one source: Several million
people each year visit Washington, D.C., and many thousands tour the
White House and the Capital. But few have the chance to sit in the
Supreme Court chamber and witness an entire oral argument. Most
tourists are given just three minutes before they are shuttled out and
a new group shuttled in. In cases that attract headlines, seats for the
public are scarce and waiting lines are long. And the Court sits in
open session less than two hundred hours each year. Television cameras
and radio microphones are still banned from the chamber, and only a few
hundred people at most can actually witness oral arguments. Protected
by a marble wall from public access, the Supreme Court has long been
the least understood of the three branches of our federal government.
In light of the increasing public desire for information, it seems
untenable to continue excluding cameras from the courtroom of the
Nation's highest court. As one legal commentator observes: An effective
and legitimate way to satisfy America's curiosity about the Supreme
Court's holdings, Justices, and modus operandi is to permit broadcast
coverage of oral arguments and decision announcements from the
courtroom itself.
Televised court proceedings better enable the public to understand
the role of the Supreme Court and its impact on the key decisions of
the day. Not only has the Supreme Court invalidated Congressional
decisions where there is, in the views of many, simply a difference of
opinion to what is preferable public policy, but the Court determines
novel issues such as whether AIDS is a disability under the Americans
with Disabilities Act, whether Congress can ban obscenity from the
Internet, and whether states can impose term limits upon members of
Congress. The current Court, like its predecessors, hands down
decisions which vitally affect the lives of all Americans. Since the
Court's historic 1803 decision, Marbury v. Madison, the Supreme Court
has the final authority on issues of enormous importance from birth to
death. In Roe v. Wade (1973), the Court affirmed a Constitutional right
to abortion in this country and struck down state statutes banning or
severely restricting abortion during the first two trimesters on the
grounds that they violated a right to privacy inherent in the Due
Process Clause of the Fourteenth Amendment. In the case of Washington
v. Glucksberg (1997), the court refused to create a similar right to
assisted suicide. Here the Court held that the Due Process Clause does
not recognize a liberty interest that includes a right to commit
suicide with another's assistance.
In the seventies, the Court first struck down then upheld state
statutes imposing the death penalty for certain crimes. In Furman v.
Georgia (1972), the Court struck down Georgia's death penalty statute
under the cruel and unusual punishment clause of the Eighth Amendment
and stated that no death penalty law could pass constitutional muster
unless it took aggravating and mitigating circumstances into account.
This decision led Georgia and many states to amend their death penalty
statutes and, four years later, in Gregg v. Georgia (1976), the Supreme
Court upheld Georgia's amended death penalty statute.
Over the years, the Court has also played a major role in issues of
war and peace. In its opinion in Scott v. Sanford (1857)--better known
as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a
slave who had been taken into ``free'' territory by his owner, was
nevertheless still a slave. The Court further held that Congress lacked
the power to abolish slavery in certain territories, thereby
invalidating the careful balance that had been worked out between the
North and the South on the issue. Historians have noted that this
opinion fanned the flames that led to the Civil War.
The Supreme Court has also ensured adherence to the Constitution
during more recent conflicts. Prominent opponents of the Vietnam War
repeatedly petitioned the Court to declare the Presidential action
unconstitutional on the grounds that Congress had never given the
President a declaration of war. The Court decided to leave this
conflict in the political arena and repeatedly refused to grant writs
of certiorari to hear these cases. This prompted Justice Douglas,
sometimes accompanied by Justices Stewart and Harlan, to take the
unusual step of writing lengthy dissents to the denials of cert.
In New York Times Co. v. United States (1971)--the so called
``Pentagon Papers'' case--the Court refused to grant the government
prior restraint to prevent the New York Times from publishing leaked
Defense Department documents which revealed damaging information about
the Johnson Administration and the war effort. The publication of these
documents by the New York Times is believed to have helped move public
opinion against the war.
In its landmark civil rights opinions, the Supreme Court took the
lead in effecting needed social change, helping us to address
fundamental questions about our society in the courts rather than in
the streets. In Brown v. Board of Education, the Court struck down the
principle of ``separate but equal'' education for blacks and whites and
integrated public education in this country. This case was then
followed by a series of civil rights cases which enforced the concept
of integration and full equality for all citizens of this country,
including Garner v. Louisiana, 1961, Burton v. Wilmington Parking
Authority, 1961, and Peterson v. City of Greenville, 1963.
In recent years Marbury, Dred Scott, Furman, New York Times, and Roe,
familiar names in the lexicon of lawyerly discussions concerning
watershed Supreme Court precedents, have been joined with similarly
important cases like Hamdi, Rasul and Roper all cases that affect
fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court
concluded that although Congress authorized the detention of
combatants, due process demands that a citizen held in the United
States as an enemy combatant be given a meaningful opportunity to
contest the factual basis for that detention before a neutral
decisionmaker. The Court reaffirmed the nation's commitment to
constitutional principles even during times of war and uncertainty.
Similarly, in Rasul v. Bush, 2004, the Court held that the federal
habeas statute gave district courts jurisdiction to hear challenges of
aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism.
Earlier this year in Roper v. Simmons, 2005, the Court held that
executions of individuals who were under 18 years of age at the time of
their capital crimes is prohibited by Eighth and Fourteenth Amendments.
In June of this year, the Supreme Court issued Kelo v. City of New
London, 2005, a highly controversial opinion in which a majority of the
justices held that a city's exercise of eminent domain power in
furtherance of an economic development plan satisfied the
Constitution's Fifth Amendment ``public use'' requirement despite
the absence of any blight. Moreover, on June 27, 2005, the High Court
issued two rulings regarding the public display of the Ten
Commandments. Each opinion was backed by a different coalition of four,
with Justice Breyer as the swing vote.
[[Page S10428]]
The only discernible rule seems to be that the Ten Commandments may be
displayed outside a public courthouse, Van Orden v. Perry, but not
inside (McCreary County v. American Civil Liberties Union) and may be
displayed with other documents, but not alone. In Van Orden v. Perry,
the Supreme Court permitted a display of the Ten Commandments to remain
on the grounds outside the Texas State Capitol. However, in McCreary
County v. ACLU, a bare majority of Supreme Court Justices ruled that
two Kentucky counties violated the Establishment Clause by erecting
displays of the Ten Commandments indoors for the purpose of advancing
religion. While the multiple concurring and dissenting opinions in
these cases serve to explain some of the confounding differences in
outcomes, it would have been extraordinarily fruitful for the American
public to watch the Justices as they grappled with these issues during
oral arguments that, presumably, reveal much more of their deliberative
processes than mere text.
Irrespective of ones view concerning the merits of these decisions,
it is clear beyond cavil that they have a profound effect on the
interplay between the government, on the one hand, and the individual
on the other. So, it is with these watershed decisions in mind that I
introduce legislation designed to make the Supreme Court less esoteric
and more accessible to common men and women who are so clearly affected
by its decisions.
When deciding issues of such great national import, the Supreme Court
is rarely unanimous. In fact, a large number of seminal Supreme Court
decisions have been reached through a vote of 5-4. Such a close margin
reveals that these decisions are far from foregone conclusions
distilled from the meaning of the Constitution and legal precedents. On
the contrary, these major Supreme Court opinions embody critical
decisions reached on the basis of the preferences and views of each
individual justice. In a case that is decided by a vote of 5-4, an
individual justice has the power by his or her vote to change the law
of the land.
Some would argue that the Court has even played a significant role in
deciding political contests as well. Who can forget the Court's
dramatic decision in Bush v. Gore that enabled the country to move on
from a bitterly fought presidential race. That decision, with its
enormous repercussions for the Nation, cried out for greater public
scrutiny of the process by which the Justices heard arguments and all
but decided the fate of the 2000 presidential race.
Given the enormous significance of each vote cast by each Justice on
the Supreme Court, televising the proceedings of the Supreme Court will
allow sunlight to shine brightly on these proceedings and ensure
greater public awareness and scrutiny.
In a democracy, the workings of the government at all levels should
be open to public view. With respect to oral arguments, the more
openness and the more real the opportunity for public observation the
greater the understanding and trust. As the Supreme Court observed in
the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an
open society do not demand infallibility from their institutions, but
it is difficult for them to accept what they are prohibited from
observing.''
It was in this spirit that the House of Representatives opened its
deliberations to meaningful public observation by allowing C-SPAN to
begin televising debates in the House chamber in 1979. The Senate
followed the House's lead in 1986 by voting to allow television
coverage of the Senate floor.
Beyond this general policy preference for openness, however, there is
a strong argument that the Constitution requires that television
cameras be permitted in the Supreme Court.
It is well established that the Constitution guarantees access to
judicial proceedings to the press and the public. In 1980, the Supreme
Court relied on this tradition when it held in Richmond Newspapers v.
Virginia that the right of a public trial belongs not just to the
accused, but to the public and the press as well. The Court noted that
such openness has ``long been recognized as an indisputable attribute
of an Anglo-American trial.''
Recognizing that in modern society most people cannot physically
attend trials, the Court specifically addressed the need for access by
members of the media: Instead of acquiring information about trials by
first hand observation or by word of mouth from those who attended,
people now acquire it chiefly through the print and electronic media.
In a sense, this validates the media claim of acting as surrogates for
the public. [Media presence] contributes to public understanding of the
rule of law and to comprehension of the functioning of the entire
criminal justice system.
To be sure, a strong argument can be made that forbidding television
cameras in the court, while permitting access to print and other media,
constitutes an impermissible discrimination against one type of media
over another. In recent years, the Supreme Court and lower courts have
repeatedly held that differential treatment of different media is
impermissible under the First Amendment absent an overriding
governmental interest. For example, in 1983 the Court invalidated
discriminatory tax schemes imposed only upon certain types of media in
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In
the 1977 case of ABC v. Cuomo, the Second Circuit rejected the
contention by the two candidates for mayor of New York that they could
exclude some members of the media from their campaign headquarters by
providing access through invitation only. The Court wrote that: Once
there is a public function, public comment, and participation by some
of the media, the First Amendment requires equal access to all of the
media or the rights of the First Amendment would no longer be tenable.
In the 1965 case of Estes v. Texas, the Supreme Court rejected the
argument that the denial of television coverage of trials violates the
equal protection clause. In the same opinion, the Court held that the
presence of television cameras in the Court had violated a Texas
defendant's right to due process. Subsequent opinions have cast serious
doubt upon the continuing relevance of both prongs of the Estes
opinion.
In its 1981 opinion in Chandler v. Florida, the court recognized that
Estes must be read narrowly in light of the state of television
technology at that time. The television coverage of Estes' 1962 trial
required cumbersome equipment, numerous additional microphones, yards
of new cables, distracting lighting, and numerous technicians present
in the courtroom. In contrast, the court noted, television coverage in
1980 can be achieved through the presence of one or two discreetly
placed cameras without making any perceptible change in the atmosphere
of the courtroom. Accordingly, the Court held that, despite Estes, the
presence of television cameras in a Florida trial was not a violation
of the rights of the defendants in that case. By the same logic, the
holding in Estes that exclusion of television cameras from the courts
did not violate the equal protection clause must be revisited in light
of the dramatically different nature of television coverage today.
Given the strength of these arguments, it is not surprising that over
the last two decades there has been a rapidly growing acceptance of
cameras in American courtrooms which has reached almost every court
except for the Supreme Court itself. Ironically, it was the Chandler
decision which helped spur the spread of television cameras in the
courts. Shortly after Chandler, the American Bar Association revised
its canons to permit judges to authorize televising civil and criminal
proceedings in their courts.
Following the green lights provided by the Supreme Court and the ABA,
nearly all the States have decided to permit electronic coverage of at
least some portion of their judicial proceedings. In 1990, the Federal
Judicial Conference authorized a three-year pilot program allowing
television coverage of civil proceedings in six federal district courts
and two federal circuit courts. The program began in July, 1991, and
ran through December 31, 1994. The Federal Judicial Center monitored
the program and issued a positive final evaluation. In particular, the
Judicial Center concluded that: Overall, attitudes of judges toward
electronic media coverage of civil proceedings were initially neutral
and became more favorable after experience under the pilot program.
[[Page S10429]]
The Judicial Center also concluded that: Judges and attorneys who had
experience with electronic media coverage under the program generally
reported observing small or no effects of camera presence on
participants in the proceedings, courtroom decorum, or the
administration of justice.
Despite this positive evaluation, the Judicial Conference voted in
September 1994, to end the experiment and not to extend the camera
coverage to all courts. This decision was made in the aftermath of the
initial burst of television coverage of O.J. Simpson's pretrial
hearing. Some have argued that the decision was unduly influenced by
this outside event. In March 1996, the Judicial Conference revisited
the issue of television cameras in the federal courts and voted to
permit each Federal court of appeals to ``decide for itself whether to
permit the taking of photographs and radio and television coverage of
appellate arguments.'' Since that time, two circuit courts have enacted
rules permitting television coverage of their arguments. It is
significant to note that these two circuits were the two circuits which
participated in the federal experiment with television cameras a few
years earlier. It seems that once judges have an experience with
cameras in their courtroom, they no longer oppose the idea.
On September 6, 2000, the Senate Judiciary Committee's Subcommittee
on Administrative Oversight and the Courts held a hearing titled
``Allowing Cameras and Electronic Media in the Courtroom.'' The primary
focus of the hearing was Senate bill S. 721, legislation introduced by
Senators Grassley and Schumer that would give Federal judges the
discretion to allow television coverage of court proceedings. One of
the witnesses at the hearing, Judge Edward Becker, Chief Judge U.S.
Court of Appeals for the Third Circuit, spoke in opposition to the
legislation and the presence of television cameras in the courtroom.
The remaining five witnesses, however, including a Federal judge, a
State judge, a law professor and other legal experts, all testified in
favor of the legislation. They argued that cameras in the courts would
not disrupt proceedings but would provide the kind of accountability
and access that is fundamental to our system of government.
In my judgment, Congress, with the concurrence of the President, or
overriding his veto, has the authority to require the Supreme Court to
televise its proceedings. Such a conclusion is not free from doubt and
is highly likely to be tested with the Supreme Court, as usual, having
the final word. As I see it, there is clearly no constitutional
prohibition against such legislation.
Article 3 of the Constitution states that the judicial power of the
United States shall be vested ``in one Supreme Court and such inferior
Courts as the Congress may from time to time ordain and establish.''
While the Constitution specifically creates the Supreme Court, it left
it to Congress to determine how the Court would operate. For example,
it was Congress that fixed the number of justices on the Supreme Court
at nine. Likewise, it was Congress that decided that any six of these
justices are sufficient to constitute a quorum of the Court. It was
Congress that decided that the term of the Court shall commence on the
first Monday in October of each year, and it was Congress that
determined the procedures to be followed whenever the Chief Justice is
unable to perform the duties of his office.
Beyond such basic structural and operational matters, Congress also
controls more substantive aspects of the Supreme Court. Most
importantly, it is Congress that in effect determines the appellate
jurisdiction of the Supreme Court. Although the Constitution itself
sets out the appellate jurisdiction of the Court, it provides that such
jurisdiction exist ``with such exceptions and under such regulations as
the Congress shall make.'' In the early days of the Supreme Court,
Chief Justice Marshall, writing for the Court in Durousseau v. United
States, recognized that the power to make exceptions to the Court's
jurisdiction is the equivalent of the power to grant jurisdiction,
since exceptions can be ``implied from the intent manifested by the
affirmative description [of jurisdiction].''
The Supreme Court recognized the power of Congress to control its
appellate jurisdiction in a dramatic way in the famous 1868 case of Ex
Parte McCardle. In this case, McCardle, a newspaper editor, was being
held in custody by the military for trial on charges stemming from the
publication of articles alleged to be libelous and incendiary. McCardle
petitioned the Supreme Court for a writ of habeas corpus. The Court
heard his case but, before it rendered its opinion, Congress repealed
the statute that gave the Supreme Court jurisdiction to hear the habeas
appeal. In light of this Congressional action, the Supreme Court felt
compelled to dismiss the case for lack of jurisdiction.
Some objections have been raised to televised proceedings of the
Supreme Court on the ground that it would subject justices to undue
security risks. My own view is such concerns are vastly overstated.
Well-known members of Congress, walk on a regular basis in public view
in the Capitol complex. Other very well-known personalities,
presidents, vice presidents, cabinet officers, all are on public view
with even incumbent presidents exposed to risks as they mingle with the
public. Such risks are minimal in my view given the relatively minor
exposure that Supreme Court justices would undertake through television
appearances.
As I explained earlier, the Supreme Court could, of course, permit
television through its own rule but has decided not to do so. Congress
should be circumspect and even hesitant to impose a rule mandating the
televising of Supreme Court proceedings and should do so only in the
face of compelling public policy reasons. The Supreme Court has such a
dominant role in key decision-making functions that their proceedings
ought to be better known to the public; and, in the absence of Court
rule, public policy would be best served by enactment of legislation
requiring the televising of Supreme Court proceedings.
This legislation embodies sound policy and will prove valuable to the
public. I urge my colleagues to support this bill.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objective, the bill was ordered to be printed in the
Record, as follows:
S. 1768
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. AMENDMENT TO TITLE 28.
(a) In General.--Chapter 45 of title 28, United States
Code, is amended by inserting at the end the following:
``Sec. 678. Televising Supreme Court proceedings
``The Supreme Court shall permit television coverage of all
open sessions of the Court unless the Court decides, by a
vote of the majority of justices, that allowing such coverage
in a particular case would constitute a violation of the due
process rights of 1 or more of the parties before the
Court.''.
(b) Clerical Amendment.--The chapter analysis for chapter
45 of title 28, United States Code, is amended by inserting
at the end the following:
``678. Televising Supreme Court proceedings.''.
Mr. LEAHY. I am pleased to join Senator Specter as a cosponsor of
this bill that would require the televising of Supreme Court
proceedings.
In the Senate Judiciary Committee, we recently conducted open
hearings on the nomination of John G. Roberts to be Chief Justice of
the United States. We raised this matter with Judge Roberts. I have
long believed in sunshine in government. Our democracy works best when
our citizens have access to their government. I have supported efforts
to make all three branches of our Federal Government more accessible.
Except for rare closed sessions, the proceedings Congress and its
committees are open to the public and carried live on cable television
and radio. In addition, Members and committees are using the Internet
and Web sites to make their work available to their constituencies and
the general public.
The work of executive branch agencies is subject to public scrutiny
through the Freedom of Information Act, among other mechanisms. Despite
the current administration's dramatic shift toward excessive secrecy,
the Freedom of Information Act remains a cornerstone of democracy. It
establishes the right of Americans to know what their government is
doing--or not doing. As President Johnson said in
[[Page S10430]]
1966, when he signed the Freedom of Information Act into law:
This legislation springs from one of our most essential
principles: A democracy works best when the people have all
the information the security of the Nation permits.
Although most judicial proceedings are open to those who can travel
to the courthouse and wait in line, emerging technology allows the
opportunity to invite the rest of the country into the courtroom. All
50 States have allowed some form of audio or video coverage of court
proceedings, but Federal courts lag behind. Previously, I have
cosponsored several bills with Senator Grassley to address this,
including the Sunshine in the Courtroom Act of 2005.
The legislation I am cosponsoring today extends the tradition of
openness to the Nation's highest Court and can help Americans be better
informed about the important decisions that are made there and how they
are made. This bill requires the Supreme Court to permit television
coverage of all open sessions of the Court. At the same time, it
protects the parties from violation of their due process rights by
permitting a majority of the Justices to suspend this coverage for a
particular session if due process requires.
In 1994, the Judicial Conference concluded that the time was not ripe
to permit cameras in the Federal courts, and rejected a recommendation
of the Court Administration and Case Management Committee to authorize
the photographing, recording, and broadcasting of civil proceedings in
Federal trial and appellate courts.
The Supreme Court is often the final arbiter of constitutional
questions and represents the ultimate protection of individual rights
and liberties. Allowing the public greater access to its public
proceedings will allow Americans to evaluate for themselves the quality
of justice in this country, and deepen their understanding of the work
that goes on in the Court.
______
By Mr. ENZI (for himself, Mr. Kennedy, Mr. Alexander, Mr. Dodd,
Mr. Burr, Ms. Mikulski, Mr. DeWine, and Mrs. Clinton):
S. 1769. A bill to provide re1ief to individuals and businesses
affected by Hurricane Katrina related to healthcare and health
insurance coverage, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. ENZI. Mr. President, I rise today to introduce a bill to provide
solutions to the health care challenges wrought by Hurricane Katrina.
As chairman of the Committee on Health, Education, Labor, and Pensions,
I am proud to be joined by my friend Senator Kennedy, the ranking
minority member of the committee, in introducing this legislation. I am
also honored that several fellow committee members are sponsoring this
bill as well, including Senators Alexander, Dodd, Burr, Mikulski,
DeWine, and Clinton. This bill is truly committee product in the best
sense of the term.
We are introducing this legislation in response to the information
that has been shared with us from a variety of sources. Some of the
provisions of this bill were added as a result of the testimony that we
received during a roundtable discussion before the Committee on Health,
Education, Labor and Pensions. Others spring from the suggestions that
were forwarded to us or were posted on our committee's Web site. Others
came from our discussions with local, State and Federal officials who
shared their firsthand knowledge and experience with us. Still others
were added as a result of our visit to the area. This legislation will
not accomplish everything that must be done, but it will provide
another valuable step in the effort to provide a comprehensive package
to address the needs of those whose lives were forever changed by the
wrath of Hurricane Katrina.
Just a few days ago, several of my colleagues and I traveled to the
New Orleans area to see the damage that was done by the storm for
ourselves. I don't think any of us were fully prepared for what we saw.
As startling as the images were that we had seen in the paper and on
television, they didn't fully portray what had happened and the reality
that confronted us on the ground. The devastation that the storm had
brought to the lives of those who lived there was readily apparent. It
was a tragedy that was even worse than any of us had thought was
possible. It will not be easy to use the limited resources we have at
our disposal to meet the almost unlimited need, but we are all
determined to try.
Nationwide, there are people from the gulf coast region spread
throughout the country who have had to rely on the kindness and
goodwill of people they have never met before. Wyoming and so many
other States have welcomed these people with open arms and open hearts.
Seeing so many Americans, from all walks of life, respond as they have
and reach out to other Americans in need, gives me a clearer picture
than I have ever seen before of what is right with America. It is a
scene that gives me confidence that we will be able to rebuild what was
lost and breathe new life into the communities that were devastated by
the storm.
Now, here in Congress, we will continue to do our part, and one of
the most important things we can do is to assure mothers and fathers
all over the country that the health care needs of their family will be
met, that they will not have to go without or navigate through a
complex bureaucracy to get the care they need, and that their Federal
Government has the necessary authority to respond to this crisis.
The Public Health and Health Insurance Emergency Response Act of 2005
will strengthen and improve America's ability to address the ongoing
public health and mental health needs faced by the hundreds of
thousands of people displaced by Hurricane Katrina. It will also help
those evacuees and their employers continue to afford their health
insurance premiums as they put their lives and their businesses back
together.
As we know, the public health emergency created by Hurricane Katrina
will take months to resolve. That means we need to cut whatever Federal
redtape might stand in the way of a long-term public health recovery
effort.
In this legislation, therefore, we strengthen the authority of the
Secretary of Health and Human Services to waive laws that hinder the
fullest possible response to a major disaster like Hurricane Katrina.
These laws include vaccination eligibility laws and requirements
related to State and local matching funds, as well laws that limit the
Secretary's flexibility in designating health professional shortage
areas.
To ensure a comprehensive public health response in the months ahead,
this critical legislation facilitates long-term Federal-State
cooperation and coordination in a public health emergency, and assists
with expanding and strengthening the health care safety net by
increasing access to and resources for sites at which people displaced
by Hurricane Katrina can receive primary and preventive care. It
ensures immediate availability of mental health funding in the event of
major disasters by directing special emergency mental health funding to
affected areas, and directs additional outreach and assistance to
individuals with disabilities, including funds to States during an
emergency to ensure that individuals with disabilities have access to
advocacy and support services.
Additionally, the bill we are introducing today clarifies appropriate
protocols for emergency response by requiring additional data
collection and analysis for use in this and future responses to major
disasters.
Finally, my committee has also worked diligently to create a solution
to another crisis created by Hurricane Katrina. This devastating
natural disaster has changed lives and disrupted businesses all across
the gulf coast of Louisiana, Mississippi, and Alabama. Families and
employers are going to need our help getting the basic necessities of
food, water, shelter, and clothing while they decide how to move
forward and rebuild their lives and livelihoods.
Hundreds of thousands of the gulf coast evacuees have health
insurance that they purchased on their own or that their employer
provided and funded. Many of these people are now without a job, and
many of these businesses are hanging on as they clean up and wait for
their customers to return to the region. Some people have lost almost
everything they owned, and now
[[Page S10431]]
they are in danger of losing their health insurance if they can't pay
their premiums.
Congress can and will help them. The bill we are introducing will
provide short-term premium relief to people displaced by Hurricane
Katrina so they can keep their private health insurance.
Under this bill, the Department of Health and Human Services, in
consultation with State insurance commissioners, will administer a
program to provide 3 months of health insurance premium relief to
individuals who have purchased their own policies, and to small
businesses and their employees. Such individuals and businesses will be
eligible if, as of the date of the hurricane, they held health
insurance in counties federally designated major disaster areas and
their ability to pay premiums has been severely disrupted. Enrollment
in the program will occur automatically upon either nonpayment of
premiums or if communication to an insurer or policyholder indicates
distress.
To facilitate swift enrollment, there is no prospective application
process. However, the program does provide for a retrospective
randomized audit process, whereby HHS may retroactively seek collection
of premium assistance if such assistance was made in error.
To complete this short-term protection for those individuals and
businesses affected by Hurricane Katrina, the bill will prohibit
insurers from canceling policies or raising rates during the 3-month
emergency period.
The Public Health and Health Insurance Emergency Response Act of 2005
will provide immediate health insurance premium relief for individuals
and businesses affected by Hurricane Katrina, and provide the Federal
Government the authority it needs to respond effectively to the public
health needs of people displaced by this terrible disaster.
After we pass this bill, our work in response to Hurricane Katrina is
not over. This is our emergency response. In the upcoming months,
working with Senator Burr, the chairman of our Subcommittee on
Bioterrorism and Public Health Preparedness, and my other committee
colleagues, I want to examine fully our preparedness and response
capabilities as they relate to public health, mental health, and health
care. I also want to focus on how best to rebuild the critical health
care and public health infrastructure that was destroyed as a result of
Hurricane Katrina.
These are some of the long-term challenges we must tackle. But in the
short term, we must address the immediate needs and emergent challenges
imposed by Hurricane Katrina. I urge my colleagues to join me as
sponsors of the Public Health and Health Insurance Emergency Response
Act of 2005, and I look forward to seeing the Senate pass this bill in
the very near future.
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. 1769
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 ``Public Health and Health
Insurance Emergency Response Act of 2005''.
TITLE I--CLARIFICATION OF A PUBLIC HEALTH EMERGENCY
SEC. 101. MODIFICATION TO THE DEFINITION OF PUBLIC HEALTH
EMERGENCY.
Section 319 of the Public Health Service Act (42 U.S.C.
247d) is amended--
(1) in subsection (a), by inserting before the last
sentence, the following: ``Any determination under this
section shall specify the geographic area with respect to
which such determination applies.''; and
(2) by striking subsection (d) and inserting the following:
``(d) Statutory Waiver.--
``(1) In general.--Notwithstanding any other provision of
this Act, if the Secretary declares a public health emergency
pursuant to subsection (a), the Secretary may waive the
following statutory requirements:
``(A) Reporting or administrative requirements.--In any
case in which the Secretary determines that, wholly or
partially as a result of a public health emergency that has
been determined pursuant to subsection (a), individuals or
public or private entities are unable to comply with
deadlines for the submission to the Secretary of data,
reports, or other materials, or for the completion of other
administrative tasks required under any law administered by
the Secretary, the Secretary may grant such extensions of
such deadlines as the circumstances may reasonably require,
and may waive, wholly or partially, any sanctions otherwise
applicable to such failure to comply.
``(B) Vaccinations.--With respect to section 317 of this
Act and section 1928 of the Social Security Act, the
Secretary may waive requirements related to the eligibility
of adults and children for participation in the program for
those in an area with respect to which the Secretary has
declared a public health emergency during the period of such
declaration.
``(C) Extension of availability of funds.--If, as a result
of a public health emergency declared pursuant to subsection
(a), the Secretary determines that the Secretary is unable to
obligate funds for a particular fiscal year, such funds shall
remain available for an additional 180 days.
``(D) Matching requirements.--In any case in which the
Secretary determines that an entity in an area with respect
to which the Secretary has declared a public health emergency
pursuant to subsection (a) is unable to provide funds
required as a condition of Federal matching under any
provision of the Public Health Service Act, the Secretary may
grant a waiver of such funding requirement for the fiscal
years covered by such emergency declaration. To the extent
that additional amounts have been appropriated for programs
that have received a waiver under this subparagraph as a
result of Hurricane Katrina, the Secretary may make such
additional amounts available to entities on a pro rata basis.
``(E) Mobilizing resources to provide access.--If the
Secretary declares a public health emergency pursuant to
subsection (a) with respect to an area, the Secretary may
deem such area as a health professional shortage area (as
defined under section 332(a)), a medically underserved
population (as defined under section 330(b)(3)), or a
medically underserved area or community during the period of
such declaration.
``(e) Licensing and Liability Provisions.--If the Secretary
declares a public health emergency pursuant to subsection (a)
with respect to an area, the Secretary may waive the
application of licensing requirements applicable to
physicians and other health care professionals who are
volunteering to provide medical services (within their scope
of practice) within such area as part of a coordinated
emergency response if such physicians or health care
professionals have equivalent licensing in good standing in
another State and are not affirmatively excluded from
practice in that State or in any State a part of which is
included in the designated public health emergency area. A
physician or other health care professional described in
section 2811(d)(1) shall be covered by the provisions of
section 2811(d)(2), including with respect to liability.
``(f) FDA Waiver Authority.--If the Secretary declares a
public health emergency pursuant to subsection (a) with
respect to an area, the Secretary may--
``(1) waive the requirements in the second sentence of
section 304(h)(1)(B) of the Federal Food, Drug, and Cosmetic
Act;
``(2) waive the requirement of section 304(h)(2) of such
Act that limits the administrative detention of foods to not
more than 30 days; and
``(3) waive the requirement of section 304(h)(4)(A) of such
Act relating to the timing of an opportunity for an informal
hearing upon the appeal of a detention order.
Under paragraph (1), the Secretary may not waive the
requirements of sections 1.392 or 1.393 of title 21, Code of
Federal Regulations, or any successor regulations thereto.
``(g) Report.--Not later than 2 days after granting any
waiver under subsection (d), (e), or (f), the Secretary shall
notify the appropriate committees of Congress of such action.
The Secretary shall publish in the Federal Register a notice
of such waiver in a timely manner. Such notification shall
include, if applicable--
``(1) the specific provisions of law to be waived or
modified;
``(2) the rationale for such waiver or modification;
``(3) the geographic area in which the waiver or
modification will apply; and
``(4) the period of time, not to exceed the period of the
emergency, for which the waiver or modification will be in
effect.
``(h) Authority for Retroactive Application.--A waiver or
modification described in subsections (d), (e), and (f), at
the discretion of the Secretary, may be made retroactive to
the beginning of the emergency period or any subsequent date
in such period as specified by the Secretary.''.
SEC. 102. SENSE OF CONGRESS CONCERNING THE HURRICANE KATRINA-
RELATED PUBLIC HEALTH EMERGENCY.
It is the sense of Congress that--
(1) with respect to the public health emergency declared
under section 319 of the Public Health Service Act (42 U.S.C.
247d) resulting from Hurricane Katrina, the Secretary of
Health and Human Services, in coordination with other Federal
entities (including the Federal Emergency Management
Association, the Department of Defense, the Department of
Veterans' Affairs, Environmental Protection Agency, and the
National Disaster Medical System), State and local
governments, and public and private sector entities, where
appropriate, should ensure the following:
[[Page S10432]]
(A) grants and funding should be provided to address
ongoing emergency responses and recovery;
(B) the provision of health services including medical
specialty services, health-related social services including
protection and advocacy services, other appropriate human
services, and appropriate auxiliary services to respond to
the needs of the survivors of the public health emergency;
(C) clinicians deployed as part of the emergency response
efforts who are licensed and certified within their
respective State and in good standing within their State
should be afforded appropriate liability protections;
(D) clinicians deployed as part of the emergency response
who are licensed or otherwise certified in their respective
State and in good standing within their State should not need
to fulfill additional licensure or certification requirements
in areas declared to be part of a public health emergency;
(E) individuals within the public health emergency areas
should be able to access quality mental health and substance
abuse services including services to reduce and identify
individuals at risk of suicide and post-traumatic stress
disorder and provide appropriate interventions;
(F) environmental teams should be deployed to provide
assessments and environmental controls for areas within the
public health emergency;
(G) social services, including protection and advocacy
services and access to domestic violence shelters, should be
extended to those within the public health emergency areas;
(H) communication resources should be available to those
displaced by the hurricane including access to 2-1-1 call
centers;
(I) support services including supports, equipment,
supplies, medications, and other types of assistance (such as
those provided through the Developmental Disabilities
Assistance and Bill of Rights Act of 2000) should be
available to vulnerable populations including the elderly and
individuals with disabilities;
(J) real time electronic surveillance, diagnosis, and
treatment of epidemic, re-emerging, and emerging diseases,
including a functioning diagnostic laboratory, should be
provided for those dislocated as a result of Hurricane
Katrina and first-responders;
(K) funding should be provided to help healthcare
facilities, medical research facilities, community health
centers, and other essential public health and health care
infrastructure components to assist them in the ongoing
response efforts, to clean up their facilities, or to
rebuild;
(L) coordination and minimizing the duplication of Federal,
State, and local response and recovery efforts;
(M) funding should be provided to ensure that the Strategic
National Stockpile is able to provide and appropriately
deploy the necessary drugs, vaccines, and other biological
products, medical devices, and other supplies needed to
address acute exacerbations of chronic illness as well as
acute injuries and illness resulting from Hurricane Katrina;
(N) funding should be provided to the Centers for Disease
Control and Prevention and the National Institutes of Health
to pay for needed communications, including public service
announcements on radio and television, to provide for
additional personnel, and to provide needed health and safety
training and resources to affected workers and employers;
(O) none of the funds provided by the Secretary of Health
and Human Services in response to Hurricane Katrina should
made available to entities that have been indicted for
abandoning patients during the disaster period; and
(P) the Department of Health and Human Services should
conduct an effective ongoing program to monitor the health of
survivors of Hurricane Katrina and of workers and volunteers
involved in rescue, response, and rebuilding efforts due to
Hurricane Katrina, and that such a program should include
screening for health conditions (including mental health
conditions) and appropriate referrals; and
(2) the current public health emergency declared by
Secretary Leavitt relating to Hurricane Katrina under such
section 319 should be extended beyond 90 days.
TITLE II--HEALTHCARE RESPONSE
SEC. 201. ASSISTANCE TO STATES IN A PUBLIC HEALTH EMERGENCY.
Section 311(c)(2) of the Public Health Service Act (42
U.S.C. 243(c)(2)) is amended--
(1) by striking ``(2) The'' and inserting the following:
``(2)(A) Except as provided in subparagraph (B), the''; and
(2) by adding at the end the following:
``(B) If the Secretary declares a public health emergency
under section 319, the 6 month period described in the first
sentence of subparagraph (A) may be extended for a period of
not to exceed 18 months with respect to assistance to
geographic areas that are the subject of such declaration.''.
SEC. 202. STRENGTHENING THE HEALTHCARE SAFETY NET.
Notwithstanding any other provision of law, the Secretary
of Health and Human Services may temporarily provide (for the
period for which a determination of public health emergency
is in effect under section 319 of the Public Health Service
Act (42 U.S.C. 247d)) with respect to Hurricane Katrina that
any health center or facility providing primary and
preventive care that--
(1) is located in an area to which such determination
applies, and
(2) treats individuals displaced by Hurricane Katrina;
shall receive reimbursement for such treatment from Federal
health programs at the same rate at which a Federally
qualified health center (as defined in section 1905(l)(2)(B)
of the Social Security Act (42 U.S.C. 1596d(l)(2)(B))) would
receive such reimbursement and shall be eligible to receive
funds under section 330 of the Public Health Service Act (42
U.S.C. 245b) with respect to services furnished to
individuals displaced by Hurricane Katrina if additional
funds are made available under such section for Hurricane
Katrina response efforts.
SEC. 203. MENTAL HEALTH NEEDS.
(a) Ensuring Funding for Mental Health in Times of National
Crisis.--Section 501(m) of the Public Health Service Act (42
U.S.C. 290aa(m)) is amended by adding at the end the
following:
``(4) Existing funding.--For purposes of carrying out this
subsection, amounts appropriated under this title for
emergency response, as provided for in this section, for
fiscal years 2005 and 2006 shall remain available until
expended or until a public health emergency as declared by
the Secretary no longer exists.''.
(b) Strengthening Access to Mental Health Services in an
Emergency.--Section 520F of the Public Health Service Act (42
U.S.C. 290bb-37) is amended--
(1) by striking subsection (b) and inserting the following:
``(b) Health Center.--In this section, the term `health
center' has the meaning given such term in section 330, and
includes community health centers and community mental health
centers.'';
(2) in subsection (c), by adding at the end the following:
``With respect to a declaration of a public health emergency
under section 319, the Secretary shall, in awarding such
grants, ensure that priority is given to States and
localities that are most affected by such emergency.'';
(3) in subsection (e)(2)--
(A) in clause (i), by striking ``individuals'' and all that
follows through the semicolon and inserting ``individuals,
including children, who may be in need of emergency mental
health services, including individuals at risk of developing
a mental illness, including Post Traumatic Stress
Disorder;''; and
(B) in clause (iii), by inserting ``or at risk of
developing'' after ``individual with''; and
(4) in subsection (g), by striking ``2003'' and inserting
``2006''.
SEC. 204. ASSISTANCE FOR INDIVIDUALS WITH DISABILITIES.
(a) Assessment and Response.--
(1) Definitions.--
(A) Emergency shelter.--The term ``emergency shelter''
means an emergency shelter for persons described in
subparagraph (C)(ii).
(B) Individual with a disability.--The term ``individual
with a disability'' has the meaning given the term in section
3 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12102).
(C) Individual affected by hurricane katrina.--The term
``individual with a disability affected by Hurricane
Katrina'' means a person who is--
(i) an individual with a disability, or a family member of
an individual with a disability; and
(ii) a person who resided on August 22, 2005, in an area in
which the President has declared that a major disaster
exists, in accordance with section 401 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5170), related to Hurricane Katrina.
(2) Assistance.--An entity that receives financial
assistance under title I of the Developmental Disabilities
Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15001 et
seq.) may use a portion of such financial assistance to--
(A) determine the location and status of individuals
affected by Hurricane Katrina, who are transferred from
emergency shelters to long-term care facilities (including
nursing homes and group homes), intermediate care facilities
for individuals with mental retardation, hospitals,
correctional institutions, and other similar locations; and
(B) assess and respond to the needs of individuals affected
by Hurricane Katrina to ensure that the individuals receive
necessary services, supports, and other types of assistance.
(b) Oversight and Disaster Assistance.--Subtitle C of title
I of the Developmental Disabilities Assistance and Bill of
Rights Act of 2000 (42 U.S.C. 15041 et seq.) is amended by
inserting after section 144 the following:
``SEC. 144A. OVERSIGHT AND DISASTER ASSISTANCE.
``(a) Definitions.--In this section:
``(1) Emergency shelter.--The term `emergency shelter'
means an emergency shelter for persons described in paragraph
(3)(B).
``(2) Individual with a disability.--The term `individual
with a disability' has the meaning given the term in section
3 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12102).
``(3) Individual affected by a major disaster.--The term
`individual affected by a major disaster' means a person who
is--
``(A) an individual with a disability; and
``(B) a person who resided in an area in which the
Secretary has declared a public health emergency under
section 319 of the Public Health Service Act, 7 days before
the declaration.
[[Page S10433]]
``(4) Public health emergency.--The term `public health
emergency' means a public health emergency as designated
under section 319 of the Public Health Service Act.
``(b) Oversight.--
``(1) Grants.--
``(A) In general.--In a case in which the Secretary of
Health and Human Services has declared that a public health
emergency exists for a geographic area, and as a result
individuals affected by a major disaster are placed in an
emergency shelter in a State, the Secretary may make a grant
to the system for that State.
``(B) Use of funds.--A system that receives a grant under
subparagraph (A) shall use the funds made available through
the grant to--
``(i) establish a registry to identify and maintain
information about such individuals who are in such emergency
shelter;
``(ii) track the transfers of such individuals from such
emergency shelter to community and non-community settings;
and
``(iii) provide oversight at such emergency shelter to
assure that such individuals are receiving necessary
services, supports, and other types of assistance.
``(2) Coordination.--In carrying out activities under
paragraph (1), the system shall coordinate the activities
with the Under Secretary for Emergency Preparedness and
Response in the Department of Homeland Security, and with any
nonprofit agency (such as the American Red Cross) providing
assistance through an emergency shelter described in
paragraph (1).
``(c) Access.--As soon as practicable after the Secretary
of Health and Human Services has declared a public health
emergency for an area, and as a result individuals affected
by the emergency are placed in an emergency shelter in a
State, the Commissioner of the Administration on
Developmental Disabilities shall notify each emergency
shelter in the State receiving such individuals that staff of
the system for the State shall have authority to enter the
shelter, and shall have access to the individuals affected by
the emergency residing in that shelter, to provide
information related to services, supports, and other types of
assistance for, and to protect the human, service, and legal
rights of, individuals affected by the emergency residing in
that shelter.
``(d) Authorization of Appropriations.--There are
authorized to be appropriated to carry out subsection (b)
$2,000,000 for fiscal year 2006 and such sums as may be
necessary for fiscal year 2007.''.
SEC. 205. LIABILITY AND LICENSURE AWARENESS PROMOTION FOR
HEALTH VOLUNTEERS.
(a) In General.--The Secretary of Health and Human Services
shall utilize the Internet and other appropriate means to
disseminate to the public information on health professional
liability coverage and licensure requirements for
intermittent disaster response personnel (as described in
section 2811(d)(1) of the Public Health Service Act (42
U.S.C. 300hh-11(d)(1))) in areas in which a public health
emergency have been declared under section 319 of such Act
(42 U.S.C. 247d).
(b) Type of Information.--The information to be provided
under subsection (a) shall, in the case of a State where
health professional licensure requirements have been waived,
include--
(1) whether and how intermittent disaster response
personnel may be able to receive certain liability
protections as described in section 2811(d)(2) of the Public
Health Service Act (42 U.S.C. 300hh-(d)(2)), or under
applicable provisions of State law;
(2) the possible limitations of such coverage and
protections; and
(3) other information needed to enable health professionals
to make an informed decision about providing volunteer health
services.
TITLE III--RESEARCH AND REPORTS
SEC. 301. MONITORING THE HEALTHCARE, MENTAL HEALTH, AND
PUBLIC HEALTH RESPONSE.
(a) In General.--The Secretary of Health and Human
Services, acting through a public service non-profit research
and analysis firm, shall provide for an immediate and
independent review (through the immediate collection of data
and conduct of analyses) of the lessons learned from the
Federal, State and local public health, mental health, and
medical care planning, preparedness, and response to
Hurricane Katrina.
(b) Purpose.--The purpose of the study under subsection (a)
is to collect available relevant data, through site visits,
reviews of medical and epidemiological records, interviews
with individuals residing in an area in which a public health
emergency has been declared under section 319 of the Public
Health Service Act as a result of Hurricane Katrina, and
interviews with Federal, State, and local public health,
mental health services, and medical officials. Such
interviews shall be conducted in a manner that, to the extent
practicable, does not interfere with the delivery of patient
care and services.
(c) Report.--Not later than 120 days after the date of
enactment of this Act, the Secretary of Health and Human
Services shall submit to the Committee on Health, Education,
Labor, and Pensions of the Senate and the Committee on
Emergency and Commerce of the House of Representatives, a
report concerning the lessons learned (as described in
subsection (a)).
(d) Authorization of Appropriations.--There are authorized
to be appropriated $2,000,000 to carry out this section.
SEC. 302. REPORT ON REGULATORY REQUIREMENTS AND FUNDING
FORMULAS.
(a) In General.--Not later than 120 days after the date of
enactment of this Act, the Secretary of Health and Human
Services shall submit to Congress a report on the specific
regulatory requirements and funding formulas under the Public
Health Service Act (42 U.S.C. 201 et seq.) that would assist
the Secretary in responding to a public health emergency (as
declared under section 319 of such Act (42 U.S.C. 247d)).
(b) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this section.
SEC. 303. DEPARTMENT OF HEALTH AND HUMAN SERVICES INSPECTOR
GENERAL AUDIT AND REPORT.
(a) In General.--The Inspector General of the Department of
Health and Human Services (referred to in this section as the
``Inspector General'') shall conduct an audit and
investigation of each program carried out by the Department
of Health and Human Services that includes response and
recovery activities related to Hurricane Katrina.
(b) Weekly Report.--Not less frequently than once a week,
the Inspector General shall provide a report to the Committee
on Health, Education, Labor, and Pensions of the Senate and
the Committee on Energy and Commerce of the House of
Representatives listing the audits and investigations
initiated pursuant to subsection (a).
(c) Status Report.--Not later than 6 months after the date
of enactment of this section, and biannually thereafter until
the audits and investigations described in subsection (a) are
complete, the Inspector General shall report to the Committee
on Health, Education, Labor, and Pensions of the Senate and
the Committee on Energy and Commerce of the House of
Representatives on the full status of the activities of the
Inspector General under this section.
(d) Cooperative Ventures.--In carrying out this section,
the Inspector General is encouraged to enter into cooperative
ventures with Inspectors General of other Federal agencies.
TITLE IV--HEALTH INSURANCE COVERAGE
SEC. 401. TEMPORARY EMERGENCY HEALTH COVERAGE ASSISTANCE FOR
BUSINESS AND INDIVIDUALS.
(a) In General.--The Secretary of Health and Human Services
(referred to in this section as the ``Secretary''), in
consultation with the insurance commissioners of those States
contained in whole or in part in the Hurricane Katrina
disaster area, shall establish a program to provide emergency
health coverage continuation relief through the provision of
direct payments of health insurance premiums or continuation
assistance on behalf of eligible businesses and their
employees and purchasers of individual health insurance
coverage.
(b) Definitions.--In this section:
(1) Eligible individuals.--The term ``eligible individual''
means an individual (and the family dependents of such
individual as may be covered under the health insurance
coverage in which such individual is enrolled)--
(A) who is a citizen, national, or qualified alien as
defined in section 431(b) of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (8 U.S.C.
1641(b));
(B) whose permanent residence as of August 29, 2005 was
located in a Hurricane Katrina disaster area;
(C) who was covered under individual (non-group) health
insurance coverage, including a policy operated pursuant to a
qualified high risk pool (as defined in section 2744 of the
Public Health Service Act (42 U.S.C. 300gg-44)), on August
29, 2005; and
(D) whose ability to continue such coverage was severely
impaired as a result of hurricane-related disruption in a
Hurricane Katrina disaster area.
(2) Eligible businesses.--The term ``eligible business''
means a corporation, sole proprietorship, or partnership that
employs not more than 50 employees and that--
(A) operated as of August 29, 2005 in a Hurricane Katrina
disaster area;
(B) offered coverage under a group health plan (as defined
in section 733(a)(1) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1191b(a)(1))) on August 29,
2005 to employees in a Hurricane Katrina disaster area; and
(C) had its ability to continue coverage under such plan
severely impaired as a result of disruption of the sponsor's
business activity in the Hurricane Katrina disaster area.
(3) Continuation assistance.--The term ``continuation
assistance'' means, in the case of an eligible business that
offers health insurance coverage under a self-insured
arrangement, assistance in paying administrative services
fees, claims costs, stop-loss premiums, and any amounts
required to be paid by employees to participate in the
arrangement.
(4) Hurricane katrina disaster area.--The term ``Hurricane
Katrina disaster area'' means a parish in the State of
Louisiana, a county in the State of Mississippi, or a county
in the State of Alabama, for which a major disaster has been
declared in accordance with section 401 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5170) as a result of Hurricane Katrina and which the
President has determined, before September 11, 2005, warrants
both individual and public assistance from the Federal
Government under such Act.
(c) Health Coverage Continuation Relief.--
[[Page S10434]]
(1) In general.--The Secretary shall design and implement
the program under subsection (a) in a manner that enables
eligible individuals and eligible businesses to be eligible
for direct premium reimbursement or continuation assistance
to be paid by the Secretary on behalf of such individual or
business directly to the health insurance issuer or
administrative services provider involved. In the case of an
eligible business, premium reimbursement shall include the
premium shares of both the employer and employees, as
applicable.
(2) Limitation.--Subject to paragraph (3), in no case shall
the value of the assistance provided under the program under
this section, with respect to an individual or business,
exceed 100 percent of the applicable premium for coverage or
continuation assistance for the period of coverage involved,
including, with respect to employer coverage, the employer
and employees' share of premiums, if applicable.
(3) Enrollment.--
(A) In general.--The Secretary shall establish an expedited
process for the enrollment of eligible individuals and
eligible businesses in the program under this section.
(B) Duty of secretary upon receipt of notice.--The
Secretary, upon receipt of a notice under subsection (f)(2),
shall enroll the eligible individual or eligible business
involved in the program under this section.
(C) Duty of issuer.--A group health plan, or health
insurance insurer with respect to such a plan, shall make a
reasonable effort to notify an eligible individual or
eligible business--
(i) of the automatic enrollment of such individual or
business in the program under subparagraph (B);
(ii) that, if it is later determined that the means of
support of such individual, or the ability of such business
to continue health insurance coverage, was not severely
disrupted (as determined subject to a randomized
retrospective audit process), such individual or business may
be required at a later date to repay the program for the
amount of premiums or continuation assistance paid on its
behalf; and
(iii) that such individual or business may elect to decline
enrollment, or cancel enrollment, in the program by notifying
the health insurance issuer or administrative service
provider involved.
(d) Retrospective Audit Authority.--
(1) In general.--The Secretary shall provide for the
application of a randomized retrospective auditing process to
the program under this section by a date that is not earlier
than November 1, 2005.
(2) Repayment of funds.--If the Secretary determines,
pursuant to the audit process under paragraph (1), that an
individual or business that was enrolled in the program under
this section did not meet the disruption or other eligibility
requirements provided for in paragraph (1) or (2) of
subsection (b), the Secretary shall seek the repayment of
funds paid on behalf of such individual or business. Such
repayments shall be made with no interest or late penalty to
accrue prior to the commencement of a repayment period which
shall begin not earlier than the date that is 3 months after
the date on which a determination and notice of non-
eligibility is provided.
(3) No double payments.--The Secretary shall take
appropriate actions to ensure that health insurance issuers
do not retain double payments in instances where businesses
or individuals pay premiums for any period for which payments
have already been made under the program under this section.
(e) Emergency Period.--Payments under the program under
this section shall be made only for premiums due during the
period beginning on August 29, 2005 and expiring 3 months
after such date. Prior to the expiration of such period, the
Secretary may make recommendations to Congress regarding any
reasonably determined need to extend such emergency period.
(f) Non-Cancellation of Health Insurance Coverage.--
(1) In general.--During the 3-month emergency period
described in subsection (e), health insurance issuers that
accept payments under the program under this section shall be
prohibited from canceling or terminating health insurance
coverage or, in the case of administrative services
providers, refusing to process claims under a self-insured
arrangement. Such health insurance issuers and administrative
service providers shall be prohibited during such period from
increasing any amounts due pursuant to such coverage or
arrangements that were not previously scheduled pursuant to a
contract prior to August 29, 2005.
(2) Notification.--To be eligible to receive payments under
ths program under this section, a health insurance issuer or
administrative services provider shall notify the Secretary--
(A) not earlier than 31 days following the nonpayment of a
scheduled premium payment from an individual or business
policyholder in a Hurricane Katrina disaster area, of the
fact of such nonpayment (or nonreimbursement of claims under
a self-insured arrangement); or
(B) following a communication to the health insurance
insurer or administrative service provider by an individual
or business reasonably indicating eligibility for assistance
under such program, of the fact of such communication.
(g) Expedited Rulemaking.--The Secretary shall utilize
expedited rulemaking procedures to carry out this section.
(h) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $1,000,000,000
for fiscal year 2006.
SEC. 402. AUTHORITY TO POSTPONE CERTAIN DEADLINES RELATED TO
INDIVIDUAL HEALTH COVERAGE BY REASON OF
PRESIDENTIALLY DECLARED DISASTER OR TERRORISTIC
OR MILITARY ACTION.
(a) In General.--Title XXVII of the Public Health Service
Act (42 U.S.C. 300gg et seq.) is amended by adding at the end
the following:
``SEC. 2793. AUTHORITY TO POSTPONE CERTAIN DEADLINES BY
REASON OF PRESIDENTIALLY DECLARED DISASTER OR
TERRORISTIC OR MILITARY ACTION.
``In the case of a plan offered through the individual
market, or any health insurance issuer, participant,
beneficiary, or other person with respect to such plan,
affected by a Presidentially declared disaster (as defined in
section 1033(h)(3) of the Internal Revenue Code of 1986) or a
terroristic or military action (as defined in section
692(c)(2) of such Code), the Secretary may, notwithstanding
any other provision of law, prescribe, by notice or
otherwise, a period of up to 1 year which may be disregarded
in determining the date by which any action is required or
permitted to be completed under this title. No plan shall be
treated as failing to be operated in accordance with the
terms of the plan solely as a result of disregarding any
period by reason of the preceding sentence.''.
(b) Application of Amendment.--The Secretary of Health and
Human Services shall implement the amendment made by
subsection (a) in the same manner in which the Secretary of
Labor implements section 518 of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1148) with respect to
group health plans.
TITLE V--EMERGENCY DESIGNATION
SEC. 501. EMERGENCY DESIGNATION.
Any amount provided under this Act is designated as an
emergency requirement pursuant to section 402 of H. Con. Res.
95 (109th Congress).
Mr. KENNEDY. Mr. President, today, I join Senator Enzi in introducing
a relief bill that will bring aid to hundreds of thousands of people
affected by Hurricane Katrina. I commend Chairman Enzi and our
colleagues on the Committee for moving so quickly to meet the many
urgent health needs of the victims.
We have all seen the images of despair of those who felt so abandoned
by their government in their time of need. We have also seen hope
reborn in the faces of families reunited after surviving this massive
catastrophe. We have seen great heroism too, not only in the
spectacular images of rescues by helicopter, but in the quiet courage
of neighbors helping neighbors survive the heavy winds and rising
waters.
It's been three weeks since Hurricane Katrina brought havoc to the
Gulf Coast. Every day, we have a clearer picture of physical
destruction of beloved American communities, and a deeper understanding
of what our fellow citizens have lost. Survivors have begun the slow
and difficult process of rebuilding their lives. Most have , only the
clothing they wore as they tried to cope with the hurricane.
Another picture is also emerging--a report card filled with failing
grades for government at every level in the preparations and response
for such an emergency. The natural disaster was compounded many fold by
the inadequate response, despite the bravery and sacrifice of relief
workers, rescue personnel, and the hurricane survivors themselves.
With new destruction in Texas and Louisiana from Hurricane Rita, we
had little time to learn from these past lessons. Already, we responded
sooner by insisting on the evacuation of people in flood-prone areas
and shipping food and supplies quickly into the hard hit areas.
Unfortunately, this means that many Hurricane Katrina evacuees had to
relocate again. They halted their individual rebuilding processes, and
once again, now find themselves in unfamiliar surroundings dealing with
anguish, fear, loss, and uncertainty.
The recent evacuations reveal additional lessons to be learned.
Massive gridlock on evacuation routes, gasoline shortages, and
overwhelmed airports are just the beginning of many challenges that lie
ahead. We need to learn faster and learn better, so that we can prepare
more effectively before disasters happen, react more effectively as
they take place, and respond more effectively in the aftermath.
I commend Chairman Enzi for convening two roundtable discussions that
provided impressive expertise about what can be done immediately to
protect the health of those affected by the hurricane and help them
begin to rebuild their lives.
[[Page S10435]]
Our committee listened carefully and prepared a relief package to
address the immediate health needs of the survivors for the next 90
days. We have a long road ahead of us, but this bill is an important
start. As the aftermath of Hurricanes Katrina and Rita continues to
unfold, we will learn of additional needs, and be reminded again and
again that we have much more to do to improve the nation's ability to
respond to disasters, whether man-made or natural.
In this legislation, we are focusing on what we can do to immediately
remove the perennial red tape and make sure that each and every
survivor has access to good health care. For those with health
insurance, the bill provides temporary assistance on premiums, so that
individuals and small businesses affected by the hurricanes maintain
their existing coverage. I'm hopeful we can work together to extend
similar help to persons in larger firms who need temporary assistance.
We also authorize the Secretary of Health and Human Services to
extend insurance deadlines, so that hurricane survivors have time to
make important decisions about their coverage.
In preventing disease outbreaks and epidemics, time is of the
essence. The bill removes barriers to existing public health programs,
such as by allowing the Vaccines for Children Program to contribute to
the vaccination campaign already under way, in order to prevent
outbreaks of disease in responders and in persons relying on the same
shelter.
It is especially urgent to monitor the survivors and responders, in
order to identify both the short-term and the long-term risks they
face. I will continue to work with my colleagues to authorize the
Secretary of Health and Human Services to work closely with other
agencies, including the Environmental Protection Agency, to begin
monitoring health outcomes and exposure to environmental toxins, and to
develop a registry of people screened, so that we can identify long-
term consequences.
As we focus on preventing and treating physical illness, we must not
ignore the emotional challenges ahead for both survivors and
responders. Thousands are facing the silent battle of coping with
bereavement and catastrophe. All are at risk for post-traumatic stress
disorder. Today, we are reauthorizing the emergency mental health
services program of the Substance Abuse and Mental Health Services
Administration's and giving priority to awarding its grants to states
and areas most affected by the hurricanes.
This measure is only the beginning. It ends restrictions on existing
Federal programs, so that we can help immediately with the relief
efforts and expand access to health care for the survivors.
I'm encouraged by how well our colleagues have worked together to
rapidly develop this relief package, and I urge the Majority Leader and
the full Senate to make passing this legislation a priority and bring
help to the thousands affected by the hurricane.
I'm also optimistic that our bipartisan cooperation here will lead to
further relief measures that fully address the longer term health needs
of the victims, and prevent the kind of mistakes that happened in
connection with Katrina and Rita from happening again.
Congress has a major responsibility to help the survivors of this
tragic ordeal rebuild their communities and their lives. Today, we make
a clear commitment to the survivors. Our promise to them should not
simply be to turn back the clock a month or two--it should be to
fulfill the true promise of the American Dream by committing ourselves
to better health, better education and better job opportunities for
survivors, and for all Americans as well.
______
By Mr. OBAMA (for himself, Mrs. Murray, Mr. Corzine, Mr. Kerry,
and Mr. Levin):
S. 1770. A bill to amend the Internal Revenue Code of 1986 to provide
for advance payment of the earned income tax credit and the child tax
credit for 2005 in order to provide needed funds to victims of
Hurricane Katrina and to stimulate local economies; to the Committee on
Finance.
Mr. OBAMA. Mr. President, I rise to speak in support of the
``Hurricane Katrina Fast-Track Refunds for Working Families Act of
2005,'' a bill I am introducing with Senators Murray, Corzine, Kerry,
and Levin to accelerate the Earned Income Tax Credit and the Child Tax
Credit for some of the neediest victims of Hurricane Katrina.
A few weeks ago, I visited some of the victims who had been evacuated
to the Reliant Center in Houston. These families have nothing left.
Imagine having nothing left. All their belongings have been destroyed
or washed away and most of their jobs have simply vanished.
We have done a lot of good work here in the Senate so far to bring
tax relief and emergency support to these families. And many of us are
hard at work now developing strategies for the long-term rebuilding of
the Gulf Coast in such a way that doesn't re-create the poverty and
inequality of the past but instead builds a more hopeful region with
greater opportunity for all of its residents.
But there is more we can do quickly to help affected families
reestablish and resettle their lives and also to stimulate their local
economies. In the past we have accelerated tax refunds with the goal of
economic stimulus. In 2001, Congress directed the IRS to provide an
``advance tax rebate'' of 2001 taxes, and, in 2003, Congress
accelerated the Child Credit. Now, with the dual goals of economic
stimulus and support for needy Americans, we should do it again.
Fast-tracking refunds will put money into the hands of parents that
they can use for food, clothing, housing, transportation, medical
services--whatever they need. How they spend the money is up to them.
But it's up to us to make sure they get it as soon as possible. It's up
to us to make sure the necessary outreach, systems, and delivery
mechanisms are in place.
And that's what this legislation does. It directs the Secretary of
the Treasury to refund or credit eligible taxpayers from the affected
region as rapidly as possible and to take the steps necessary to get
the funds into the hands of eligible recipients. Companion legislation
has been introduced by Reps. Emanuel, Melancon, Taylor, and Lewis in
the House of Representatives.
I urge my colleagues in the Senate to join me in supporting this bill
now so we can quickly bring relief and support to those who have
nothing left. The Earned Income Tax Credit and Child Tax Credit are
designed to support working families with children. Let's fast track
this support to help these families get back on their feet and help
their communities rebuild themselves even stronger than before.
______
By Mr. ENZI (for himself and Mr. Kennedy):
S. 1771. A bill to express the sense of Congress and to improve
reporting with respect to the safety of workers in the response and
recovery activities related to Hurricane Katrina, and for other
purposes; read the first time.
Mr. ENZI. Mr. President, I rise today to introduce The Katrina Worker
Safety and Filing Flexibility Act of 2005.
In the wake of Hurricane Katrina we face a nearly unprecedented
recovery and reconstruction process along our Gulf Coast. This is a
challenge that we will meet. We are a people that always act with
strength and purposefulness when circumstances such as this demand.
While we undertake this massive effort, we must bear in mind the
safety of the men and women who will be on the front lines of recovery
and reconstruction. These individuals will face numerous and uncommon
worksite hazards; and ones with which they will have little training
and experience.
To address this situation, the Occupational Safety and Health
Administration has deployed its safety and health professionals to the
affected areas to provide necessary technical assistance. Their efforts
in this regard are being guided by the Worker Health and Safety Annex
contained in the National Response Plan as adopted by the Department of
Homeland Security.
I am pleased today to be introducing this legislation with my
distinguished colleague and ranking member of the Committee, Senator
Kennedy. He and I share a commitment to protecting the health and
safety of all workers, including those engaged in the hurricane
recovery effort.
[[Page S10436]]
The legislation we are introducing today not only encourages the
implementation of all aspects of the Worker Safety Annex, it encourages
OSHA to play a central role in communicating the nature of these unique
worksite hazards, and in cooperating with State, local and tribal
governments, as well as other Federal agencies to enhance the safety of
recovery and reconstruction personnel. In addition, the legislation
grants the Secretary of Labor authority to extend the deadline for
filing certain forms with the Department until March of 2006 in light
of the difficulties in meeting any earlier deadlines as a result of the
hurricane.
We believe the bill is an important step in providing the necessary
protection to recovery and reconstruction workers; and providing the
necessary degree of flexibility with regard to required Federal
filings.
Mr. KENNEDY. Mr. President, today Senator Enzi and I are introducing
legislation to protect the workers who are laboring to clean up the
Gulf Coast after its recent disasters.
The heroism of America's workers in the wake of Hurricane Katrina is
unparalleled. As they did in response to our national disaster on
September 11, thousands of men and women have been working around the
clock to find and rescue families, to provide them with food and
shelter, and to evacuate them from the area. In the coming days
thousands more will be on the ground reestablishing communications,
cleaning up debris, restoring services, and rebuilding infrastructure.
They are now facing additional challenges because of the new damage and
flooding from Hurricane Rita, but they continue to make progress in
cleaning and rebuilding New Orleans and the entire disaster area.
This work is critical, but it is also dangerous. Many of these tasks
pose significant safety and health threats: conditions in New Orleans
are of particular concern, where the widespread flooding has led to
widespread biological and chemical contamination. We learn more each
day about the oil spills, the Superfund sites, and exposure to E. coli
that these workers are facing. It is imperative that workers and
volunteers be protected from these serious hazards.
That is why our legislation includes language to protect the health
and safety of workers. It urges OSHA and other health and safety
agencies to follow the Worker Health and Safety Annex protections of
our National Response Plan. This includes keeping track of workers who
are being exposed, coordinating health and safety training for workers
and volunteers, and monitoring the hazards that workers and volunteers
are facing. It also authorizes funds to be spent for additional
personnel, enforcement of health and safety standards, critical safety
information for workers and employers, and safety and health training.
I hope that as Congress continues to allocate money for disaster relief
that we also provide money to protect our workers and volunteers.
We need to track how our efforts are working, and so we have provided
for Congressional oversight. OSHA will be required to brief the HELP
Committee in six months, and provide a written report within nine
months, so we can see what progress has been made and what still needs
to be done. We have also mandated oversight by the Executive Branch.
The Inspector General of the Department of Labor will audit and
investigate the Department's efforts to implement the protections
established in this bill, and will report back to both Houses of
Congress on the success of these response and recovery efforts.
Finally, the bill also provides temporary relief to many companies,
unions and individuals who are required to meet financial and other
reporting obligations during the next few months, but cannot satisfy
these obligations due to record destruction and other problems
associated with Katrina.
______
By Mr. INHOFE (for himself, Mr. DeMint, Ms. Murkowski, Mr.
Voinovich, Mr. Isakson, Mr. Thune, and Mr. Bond):
S. 1772. A bill to streamline the refinery permitting process, and
for other purposes; to the Committee on Environment and Public Works.
Mr. INHOFE. Mr. President, by design, politicians are largely a
reactive bunch--our constituents voted us in to our offices to
represent their interests, and when they are unhappy we too are
unhappy. One issue that certainly makes all constituents unhappy or
even angry is high fuel prices. Therefore, policymakers at all levels
of government have been struggling with ways to address high prices--
some have advocated for repealing fuel taxes, the Administration
reacted in many critically important and helpful ways such as releasing
oil from the Strategic Petroleum Reserve. After Hurricane Katrina
disabled a large portion of our refining capacity and Rita threatened
an additional 27.5 percent, several members have talked about the need
to build new refineries.
In May 2004--Before the hurricanes, and before EPACT 2005 (The Energy
Policy Act of 2005), the Environment & Public Works Committee, which I
chair, considered the challenges facing the refining industry. At that
hearing, we learned how the industry has been struggling to balance the
public's increasing demand for cheap transportation fuels while also
meeting legal and regulatory requirements to produce cleaner fuels.
Federal Reserve Chairman Alan Greenspan stated in a May 2005 speech
that, ``the status of world refining capacity has become worrisome. Of
special concern is the need to add adequate coking and desulphurization
capacity to convert the average gravity and sulphur content of much of
the world's crude oil to the lighter and sweeter needs of product
markets, which are increasingly dominated by transportation fuels that
must meet ever-more stringent environmental requirements.''
Make no mistake, significant investments have been made to achieving
environmental objectives--however, investments into increasing capacity
have been inadequate to meet demand, and no new domestic refinery has
been built since 1976.
A critical hurdle to constructing anything these days, especially
refineries, is overcoming the ``Not-In-My-Backyard'' or NIMBY
interests. The President recognized the need to build new refineries
while overcoming local opposition when he recommended that policymakers
consider constructing on BRAC sites.
Building upon what we learned in our hearing while balancing
potential local opposition to refineries and answering the President
and the public's call, I rise today to introduce the Gas Petroleum
Refiner Improvement and Community Empowerment Act or Gas PRICE Act.
This Gas PRICE Act seeks to address fuels challenges in the short, mid
and long-term range in several key ways.
First, the bill encourages communities who are about to lose jobs as
a result of BRAC to consider building refineries on those properties.
The legislation directs the Economic Development Administration to
provide additional resources to communities considering new refineries
on those sites. Refineries are not just a good source of high paying
jobs, but they are an area of national interest so those communities
acting in that interest should be benefited.
Second, States have a significant if not dominant role in permitting
existing or new refineries. Yet, States face particular technical and
financial constraints when faced with these extremely complex
facilities. Therefore, the Gas PRICE Act establishes a Governor opt-in
program that requires the Administrator to coordinate and concurrently
review all permits with the relevant State agencies to permit
refineries. This program does not waive or modify any environmental
law, but seeks to assist States and consumers by providing greater
certainty in the permitting process.
Third, the Gas PRICE Act answers the call for increasing efficiency.
Today's recent reports show that natural gas prices this winter are
projected to increase 75 percent. This bill requires the EPA's Natural
Gas Star Program to provide grants to identify and use methane emission
reduction technologies.
Further, it requires the Administrator to conduct a series of methane
emission reduction workshops with the Interstate Oil and Gas Compact
Commission to officials in the oil and gas producing states.
Fourth, the supply disruptions caused by hurricane Katrina required
[[Page S10437]]
EPA to issue fuel waivers to allow the use of conventional fuel in
special or boutique fuel areas. The bill provides that States acting
pursuant to an emergency will be held harmless under the law.
Additionally, some members have called for the reduction of the total
number of fuels used to increase the overall fungibility. In principle,
I agree with my colleagues, however the special or boutique fuel blends
address environmental and health needs of each region. Therefore, I
have proposed a more cautious approach that will allow for the
reduction of fuel blends pursuant to the environmental and consumer
preferences in each State.
Fifth, policymakers, businesses, and the public have struggled to
balance increased demand for transportation fuels against preferences
for ever more stringent environmental quality all while preserving low
prices at the pump. Most ``solutions'' have focused on technologies
that may not be realized for decades or other measures that would hurt
U.S. manufacturers.
Fischer-Tropsche fuels are the likely answer. F-T fuels use petroleum
coke, a waste product from the refining process, or domestic coal to
produce ultra-clean, virtually sulfur free diesel or jet fuel, and are
price competitive at $38/barrel of oil.
The Gas PRICE Act requires EPA to establish a demonstration project
to use Fischer-Tropsche, diesel and jet, as an emission control
strategy; and authorizes EPA to issue up to two loan guarantees to
demonstrate commercial scale F--T fuels production facilities using
domestic petroleum coke or coal.
Of course, Congress should have taken many actions in anticipation of
the current refining capacity crunch over last several years. Yet, as I
indicated earlier, elected officials in large measure react to the will
of their constituents. The good news is that we are not too late to
make sure that the economy-wide stifling high prices are only
temporary.
The Gas PRICE Act that we are introducing today can go a long way in
addressing the nation's short, mid, and long-term fuels challenges.
Furthermore, it does so by empowering local communities and States,
establishing greater regulatory certainty without changing any
environmental law, improving efficiency, and establishing a future for
the use of ultra clean transportation fuels derived from abundant
domestic resources.
______
By Mr. DOMENICI (for himself and Mr. Bingaman):
S. 1773. A bill to resolve certain Native American claims in New
Mexico, and for other purposes; to the Committee on Indian Affairs.
Mr. DOMENICI. Mr. President, I rise today with my colleague, Senator
Bingaman, to introduce a historic piece of legislation. I call this
bill historic because its purpose is to implement the final settlement
to be entered into under the Indian Claims Commission Act of 1946. I
understand that passage of this legislation will complete the final
chapter in the history of that act.
The Indian Claims Commission Act of 1946 was enacted to allow the
Indian Claims Commission to hear certain tribal claims filed between
1946 and 1951. Nationally, the act has involved more than 600 claims by
tribes. With the passage of this legislation, we will complete the
process begun in almost sixty years ago.
The specific claim being resolved by the Pueblo de San Ildefonso
Claims Settlement Act of 2005 involves the San Ildefonso Pueblo's
7,700-acre ancestral land claim against the Federal Government. This
bill marks the successful culmination of a long-awaited settlement
agreement between the San Ildefonso Pueblo and the United States and
involved much hard work by all of the parties involved. The
introduction of this legislation marks an important day for the San
Ildefonso Pueblo and others in my home state of New Mexico. This is a
necessary bill, and I hope that my colleagues will act quickly to
resolve the final claim filed under the Indian Claims Commission Act of
1946.
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. 1773
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 ``Pueblo de San Ildefonso
Claims Settlement Act of 2005''.
SEC. 2. DEFINITIONS AND PURPOSES.
(a) Definitions.--In this Act:
(1) Administrative access.--The term ``administrative
access'' means the unrestricted use of land and interests in
land for ingress and egress by an agency of the United States
(including a permittee, contractor, agent, or assignee of the
United States) in order to carry out an activity authorized
by law or regulation, or otherwise in furtherance of the
management of Federally-owned land and resources.
(2) County.--The term ``County'' means the incorporated
county of Los Alamos, New Mexico.
(3) Los alamos agreement.--The term ``Los Alamos
Agreement'' means the agreement among the County, the Pueblo,
the Department of Agriculture Forest Service, and the Bureau
of Indian Affairs dated January, 22, 2004.
(4) Los alamos townsite land.--``Los Alamos Townsite Land''
means the land identified as Attachment B (dated December 12,
2003) to the Los Alamos Agreement.
(5) Northern tier land.--``Northern Tier Land'' means the
land comprising approximately 739.71 acres and identified as
``Northern Tier Lands'' in Appendix B (dated August 3, 2004)
to the Settlement Agreement.
(6) Pending litigation.--The term ``Pending Litigation''
means the case styled Pueblo of San Ildefonso v. United
States, Docket Number 354, originally filed with the Indian
Claims Commission and pending in the United States Court of
Federal Claims on the date of enactment of this Act.
(7) Pueblo.--The term ``Pueblo'' means the Pueblo de San
Ildefonso, a Federally recognized Indian tribe (also known as
the ``Pueblo of San Ildefonso'').
(8) Settlement agreement.--The term ``Settlement
Agreement'' means the agreement entitled ``Settlement
Agreement between the United States and the Pueblo de San
Ildefonso to Resolve All of the Pueblo's Land Title and
Trespass Claims'' and dated June 7, 2005.
(9) Settlement area land.--The term ``Settlement Area
Land'' means the National Forest System land located within
the Santa Fe National Forest, as described in Appendix B to
the Settlement Agreement, that is available for purchase by
the Pueblo under section 9(a) of the Settlement Agreement.
(10) Settlement fund.--The term ``Settlement Fund'' means
the Pueblo de San Ildefonso Land Claims Settlement Fund
established by section 6.
(11) Sisk act.--The term ``Sisk Act'' means Public Law 90-
171 (commonly known as the ``Sisk Act'') (16 U.S.C. 484a).
(12) Water system land.--The term ``Water System Land''
means the Federally-owned land located within the Santa Fe
National Forest to be conveyed to the County under the Los
Alamos Agreement.
(b) Purposes.--The purposes of this Act are--
(1) to finally dispose, as set forth in sections 4 and 5,
of all rights, claims, or demands that the Pueblo has
asserted or could have asserted against the United States
with respect to any and all claims in the Pending Litigation;
(2) to extinguish claims based on aboriginal title, Indian
title, or recognized title, or any other title claims under
section 5;
(3) to authorize the Pueblo to acquire the Settlement Area
Land, and to authorize the Secretary of Agriculture to convey
the Water System Land, the Northern Tier Land, and the Los
Alamos Townsite Land for market value consideration, and for
such consideration to be paid to the Secretary of Agriculture
for the acquisition of replacement National Forest land
elsewhere in New Mexico;
(4) to provide that the Settlement Area Land acquired by
the Pueblo shall be held by the Secretary of the Interior in
trust for the benefit of the Pueblo;
(5) to facilitate government-to-government relations
between the United States and the Pueblo regarding
cooperation in the management of certain land administered by
the National Park Service and the Bureau of Land Management
as described in sections 7 and 8 of the Settlement Agreement;
(6) to ratify the Settlement Agreement; and,
(7) to ratify the Los Alamos Agreement.
SEC. 3. RATIFICATION OF AGREEMENTS.
(a) Ratification.--The Settlement Agreement and Los Alamos
Agreement are ratified under Federal law, and the parties to
those agreements are authorized to carry out the provisions
of the agreements.
(b) Corrections and Modifications.--The respective parties
to the Settlement Agreement and the Los Alamos Agreement are
authorized, by mutual agreement, to correct errors in any
legal description or maps, and to make minor modifications to
those agreements.
SEC. 4. JUDGMENT AND DISMISSAL OF LITIGATION.
(a) Dismissal.--Not later than 90 days after the date of
enactment of this Act, the United States and the Pueblo shall
execute and file with the United States Court of Federal
Claims in the Pending Litigation a motion for entry of final
judgment in accordance with section 5 of the Settlement
Agreement.
(b) Compensation.--Upon entry of the final judgment under
subsection (a), $6,900,000
[[Page S10438]]
shall be paid into the Settlement Fund as compensation to the
Pueblo in accordance with section 1304 of title 31, United
States Code.
SEC. 5. RESOLUTION OF CLAIMS.
(a) Extinguishments.--Except as provided in subsection (b),
in consideration of the benefits of the Settlement Agreement,
and in recognition of the agreement of the Pueblo to the
Settlement Agreement, all claims of the Pueblo against the
United States (including any claim against an agency,
officer, or instrumentality of the United States) are
relinquished and extinguished, including--
(1) any claim to land based on aboriginal title, Indian
title, or recognized title;
(2) any claim for damages or other judicial relief or for
administrative remedies that were brought, or that were
knowable and could have been brought, on or before the date
of the Settlement Agreement;
(3) any claim relating to--
(A) any federally-administered land, including National
Park System land, National Forest System land, Public land
administered by the Bureau of Land Management, the Settlement
Area Land, the Water System Land, the Northern Tier Land, and
the Los Alamos Townsite Land; and
(B) any land owned by, or held for the benefit of, any
Indian tribe other than the Pueblo; and
(4) any claim that was, or that could have been, asserted
in the Pending Litigation.
(b) Exceptions.--Nothing in this Act or the Settlement
Agreement shall in any way extinguish or otherwise impair--
(1) the title of record of the Pueblo to land held by or
for the benefit of the Pueblo, as identified in Appendix D to
the Settlement Agreement, on or before the date of enactment
of this Act; and,
(2) the title of the Pueblo to the Pueblo de San Ildefonso
Grant, including, as identified in Appendix D to the
Settlement Agreement--
(A) the title found by the United States District Court for
the District of New Mexico in the case styled United States
v. Apodoca (Number 2031, equity: December 5, 1930) not to
have been extinguished; and
(B) title to any land that has been reacquired by the
Pueblo pursuant to the Act entitled ``An Act to quiet the
title to lands within Pueblo Indian land grants, and for
other purposes'', approved June 7, 1924 (43 Stat. 636,
chapter 331);
(3) the water rights of the Pueblo appurtenant to the land
described in paragraphs (1) and (2); and
(4) any rights of the Pueblo or a member of the Pueblo
under Federal law relating to religious or cultural access
to, and use of, Federal land.
(c) Previous Extinguishments Unimpaired.--Nothing in this
Act affects any prior extinguishments of rights or claims of
the Pueblo which may have occurred by operation of law.
(d) Boundaries and Title Unaffected.--
(1) Boundaries.--Nothing in this Act affects the location
of the boundaries of the Pueblo de San Ildefonso Grant.
(2) Rights, title, and interest.--Nothing in this Act
affects, ratifies, or confirms the right, title, or interest
of the Pueblo in the land held by, or for the benefit of, the
Pueblo, including the land described in Appendix D of the
Settlement Agreement.
SEC. 6. SETTLEMENT FUND.
(a) Establishment.--There is established in the Treasury a
fund to be known as the ``Pueblo de San Ildefonso Land Claims
Settlement Fund''.
(b) Conditions.--Monies deposited in the Settlement Fund
shall be subject to the following conditions:
(1) Maintenance and investment.--The Settlement Fund shall
be maintained and invested by the Secretary of the Interior
pursuant to the Act of June 24, 1938 (25 U.S.C. 162a).
(2) Use of funds.--Subject to paragraph (3), monies
deposited into the Settlement Fund shall be expended by the
Pueblo--
(A) to acquire the Federally administered Settlement Area
Land;
(B) to pay for the acquisition of the Water System Land, as
provided in the Los Alamos Agreement; and
(C) at the option of the Pueblo, to acquire other land.
(3) Effect of withdrawal.--If the Pueblo withdraws monies
from the Settlement Fund, neither the Secretary of the
Interior nor the Secretary of the Treasury shall retain any
oversight over, or liability for, the accounting,
disbursement, or investment of the withdrawn funds.
(4) Per capita distribution.--No portion of the funds in
the Settlement Fund may be paid to Pueblo members on a per
capita basis.
(5) Acquisition of land.--The acquisition of land with
funds from the Settlement Fund shall be on a willing-seller,
willing-buyer basis, and no eminent domain authority may be
exercised for purposes of acquiring land for the benefit of
the Pueblo under this Act.
(6) Effect of other laws.--The Act of October 19, 1973
(Public Law 93-134; 87 Stat. 466) and section 203 of the
American Indian Trust Fund Management Reform Act of 1994 (25
U.S.C. 4023) shall not apply to the Settlement Fund.
SEC. 7. LAND OWNERSHIP ADJUSTMENTS.
(a) Authorization.--
(1) In general.--The Secretary of Agriculture may sell the
Settlement Area Land, Water System Land, and Los Alamos
Townsite Land, on such terms and conditions as are agreed
upon and described in the Settlement Agreement and the Los
Alamos Agreement, including reservations for administrative
access and other access as shown on Appendix B of the
Settlement Agreement.
(2) Effect of claims and cause of action.--Consideration
for any land authorized for sale by the Secretary of
Agriculture shall not be offset or reduced by any claim or
cause of action by any party to whom the land is conveyed.
(b) Consideration.--The consideration to be paid for the
Federal land authorized for sale in subsection (a) shall be--
(1) for the Settlement Area Land and Water System Land, the
consideration agreed upon in the Settlement Agreement; and
(2) for the Los Alamos Townsite Land, the current market
value based on an appraisal approved by the Forest Service as
being in conformity with the latest edition of the Uniform
Appraisal Standards for Federal Land Acquisitions.
(c) Disposition of Receipts.--
(1) In general.--All monies received by the Secretary of
Agriculture from the sale of National Forest System land as
authorized by this Act, including receipts from the Northern
Tier Land, shall be deposited into the fund established in
the Treasury of the United States pursuant to the Sisk Act
and shall be available, without further appropriation,
authorization, or administrative apportionment for the
purchase of land by the Secretary of Agriculture for National
Forest System purposes in the State of New Mexico.
(2) Use of funds.--Funds deposited in a Sisk Act fund
pursuant to this Act shall not be subject to transfer or
reprogramming for wildlands fire management or any other
emergency purposes, or used to reimburse any other account.
(3) Acquisitions of land.--In expending funds to exercise
its rights under the Settlement Agreement and the Los Alamos
Agreement with respect to the acquisition of the Settlement
Area Land, the County's acquisitions of the Water System
Land, and the Northern Tier Land (if the Pueblo exercises an
option to purchase the Northern Tier Land as provided in
section 12(b)(2)(A), the Pueblo shall use only funds in the
Settlement Fund and shall not augment those funds from any
other source.
(d) Valid Existing Rights and Reservations.--
(1) In general.--The Settlement Area Land acquired by the
Pueblo shall be subject to all valid existing rights on the
date of enactment of this Act, including rights of
administrative access.
(2) Water rights.--No water rights shall be conveyed by the
United States.
(3) Special use authorization.--
(A) In general.--Nothing in this Act shall affect the
validity of any special use authorization issued by the
Forest Service within the Settlement Area Land, except that
such authorizations shall not be renewed upon expiration.
(B) Reasonable access.--For access to valid occupancies
within the Settlement Area Land, the Pueblo and the Secretary
of the Interior shall afford rights of reasonable access
commensurate with that provided by the Secretary of
Agriculture on or before the date of enactment of this Act.
(4) Water system land and los alamos townsite land.--The
Water System Land and Los Alamos Townsite Land acquired by
the County shall be subject to--
(A) all valid existing rights; and
(B) the rights reserved by the United States under the Los
Alamos Agreement.
(5) Private landowners.--
(A) In general.--Upon acquisition by the Pueblo of the
Settlement Area Land, the Secretary of the Interior, acting
on behalf of the Pueblo and the United States, shall execute
easements in accordance with any right reserved by the United
States for the benefit of private landowners owning property
that requires the use of Forest Development Road 416 (as in
existence on the date of enactment of this Act) and other
roads that may be necessary to provide legal access into the
property of the landowners, as the property is used on the
date of this Act.
(B) Maintenance of roads.--Neither the Pueblo nor the
United States shall be required to maintain roads for the
benefit of private landowners.
(C) Easements.--Easements shall be granted, without
consideration, to private landowners only upon application of
such landowners to the Secretary.
(e) Forest Development Roads.--
(1) United states right to use.--Subject to any right-of-
way to use, cross, and recross a road, the United States
shall reserve and have free and unrestricted rights to use,
operate, maintain, and reconstruct (at the same level of
development, as in existence on the date of the Settlement
Agreement), those sections of Forest Development Roads 57,
442, 416, 416v, 445 and 445ca referenced in Appendix B of the
Settlement Agreement for any and all public and
administrative access and other Federal governmental
purposes, including access by Federal employees, their
agents, contractors, and assigns (including those holding
Forest Service permits).
(2) Certain roads.--Notwithstanding paragraph (1), the
United States--
(A) may improve Forest Development Road 416v beyond the
existing condition of that road to a high clearance standard
road (level 2); and
(B) shall have unrestricted administrative access and non-
motorized public trail access
[[Page S10439]]
to the portion of Forest Development Road 442 depicted in
Appendix B to the Settlement Agreement.
(f) Private Mining Operations.--
(1) COPAR pumice mine.--The United States and the Pueblo
shall allow the COPAR Pumice Mine to continue to operate as
provided in the Contract For The Sale Of Mineral Materials
dated May 4, 1994, and for COPAR to use portions of Forest
Development Roads 57, 442, 416, and other designated roads
within the area described in the contract, for the period of
the contract and thereafter for a period necessary to reclaim
the site.
(2) Continuing jurisdiction.--
(A) Administration.--Continuing jurisdiction of the United
States over the contract for the sale of mineral materials
shall be administered by the Secretary of the Interior.
(B) Expiration of contract.--Upon expiration of the
contract described in subparagraph (A), jurisdiction over
reclamation shall be assumed by the Secretary of the
Interior.
(3) Effect on existing rights.--Nothing in this Act limits
or enhances the rights of COPAR under the Contract For The
Sale Of Mineral Materials dated May 4, 1994.
SEC. 8. CONVEYANCES.
(a) Authorization.--
(1) Consideration from pueblo.--Upon receipt of the
consideration from the Pueblo for the Settlement Area Land
and the Water System Land, the Secretary of Agriculture shall
execute and deliver--
(A) to the Pueblo, a quitclaim deed to the Settlement Area
Land; and
(B) to the County, a quitclaim deed to the Water System
Land, reserving--
(i) a contingent remainder in the United States in trust
for the benefit of the Pueblo in accordance with the Los
Alamos Agreement; and
(ii) a right of access for the United States for the Pueblo
for ceremonial and other cultural purposes.
(2) Consideration from county.--Upon receipt of the
consideration from the County for all or a portion of the Los
Alamos Townsite Land, the Secretary of Agriculture shall
execute and deliver to the County a quitclaim deed to all or
portions of such land, as appropriate.
(3) Execution.--An easement or deed of conveyance by the
Secretary of Agriculture under this Act shall be executed by
the Director of Lands and Minerals, Forest Service,
Southwestern Region, Department of Agriculture.
(b) Authorization for Pueblo to Convey in Trust.--Upon
receipt by the Pueblo of the quitclaim deed to the Settlement
Land under subsection (a)(1), the Pueblo may quitclaim the
Settlement Land to the United States, in trust for the
Pueblo.
(c) Adequacy of Conveyance Instruments.--Notwithstanding
the status of the Federal land as public domain or acquired
land, no instrument of conveyance other than a quitclaim deed
shall be required to convey the Settlement Area Land, the
Water System Land, the Northern Tier Land, or the Los Alamos
Townsite Land under this Act.
(d) Surveys.--The Secretary of Agriculture is authorized to
perform and approve any required cadastral survey.
(e) Contributions.--Notwithstanding section 3302 of title
31, United States Code, or any other provision of law, the
Secretary of Agriculture may accept and use contributions of
cash or services from the Pueblo, other governmental
entities, or other persons--
(1) to perform and complete required cadastral surveys for
the Settlement Area Land, the Water System Land, the Northern
Tier Land, or the Los Alamos Townsite Land, as described in
the Settlement Agreement or the Los Alamos Agreement; and
(2) to carry out any other project or activity under--
(A) this Act;
(B) the Settlement Agreement; or
(C) the Los Alamos Agreement.
SEC. 9. TRUST STATUS AND NATIONAL FOREST BOUNDARIES.
(a) Operation of Law.--Without any additional
administrative action by the Secretary of Agriculture or the
Secretary of the Interior--
(1) on recording the quitclaim deed or deeds from the
Pueblo to the United States in trust for the Pueblo under
section 8(b) in the Land Titles and Records Office, Southwest
Region, Bureau of Indian Affairs--
(A) the Settlement Area Land shall be held in trust by the
United States for the benefit of the Pueblo; and
(B) the boundaries of the Santa Fe National Forest shall be
deemed to be modified to exclude from the National Forest
System the Settlement Area Land; and
(2) on recording the quitclaim deed or deeds from the
Secretary of Agriculture to the County of the Water System
Land in the county land records, the boundaries of the Santa
Fe National Forest shall be deemed to be modified to exclude
from the National Forest System the Water System Land.
(b) Future Interests.--If fee title to the Water System
Land vests in the Pueblo by conveyance or operation of law,
the Water System Land shall be deemed to be held in trust by
the United States for the benefit of the Pueblo, without
further administrative procedures or environmental or other
analyses.
(c) Nonintercourse Act.--Any land conveyed to the
Secretary of the Interior in trust for the Pueblo or any
other tribe in accordance with this Act shall be--
(1) subject to the Act of June 30, 1834 (25 U.S.C. 177);
and
(2) treated as reservation land.
SEC. 10. INTERIM MANAGEMENT.
Subject to valid existing rights, prior to the conveyance
under section 9, the Secretary of Agriculture, with respect
to the Settlement Area Land, the Water System Land, the
Northern Tier Land, and the Los Alamos Townsite Land--
(1) shall not encumber or dispose of the land by sale,
exchange, or special use authorization, in such a manner as
to substantially reduce the market value of the land;
(2) shall take any action that the Secretary determines to
be necessary or desirable--
(A) to protect the land from fire, disease, or insect
infestation; or
(B) to protect lives or property; and
(3) may, in consultation with the Pueblo or the County, as
appropriate, authorize a special use of the Settlement Area
Land, not to exceed 1 year in duration.
SEC. 11. WITHDRAWAL.
Subject to valid existing rights, the land referenced in
the notices of withdrawal of land in New Mexico (67 Fed. Reg.
7193; 68 Fed. Reg. 75628) is withdrawn from all location,
entry, and patent under the public land laws and mining and
mineral leasing laws of the United States, including
geothermal leasing laws.
SEC. 12. CONVEYANCE OF THE NORTHERN TIER LAND.
(a) Conveyance Authorization.--
(1) In general.--Subject to valid existing rights,
including reservations in the United States and any right
under this section, the Secretary of Agriculture shall sell
the Northern Tier Land on such terms and conditions as the
Secretary may prescribe as being in the public interest and
in accordance with this section.
(2) Effect of paragraph.--The authorization under paragraph
(1) is solely for the purpose of consolidating Federal and
non-Federal land to increase management efficiency and is not
in settlement or compromise of any claim of title by any
Pueblo, Indian tribe, or other entity.
(b) Rights of Refusal.--
(1) Pueblo of santa clara.--
(A) In general.--In consideration for an easement under
subsection (e)(2), the Pueblo of Santa Clara shall have an
exclusive option to purchase the Northern Tier Land for the
period beginning on the date of enactment of this Act and
ending 90 days thereafter.
(B) Resolution.--Within the period prescribed in
subparagraph (A), the Pueblo of Santa Clara may exercise its
option to acquire the Northern Tier Land by delivering to the
Regional Director of Lands and Minerals, Forest Service,
Southwestern Region, Department of Agriculture, a resolution
of the Santa Clara Tribal Council expressing the unqualified
intent of the Pueblo of Santa Clara to purchase the land at
the offered price.
(C) Failure to act.--If the Pueblo of Santa Clara does not
exercise its option to purchase the Northern Tier Land within
the 90-day period under subparagraph (A), or fails to close
on the purchase of such land within 1 year of the date on
which the option to purchase was exercised, the Secretary of
Agriculture shall offer the Northern Tier Land for sale to
the Pueblo.
(2) Offer to pueblo.--
(A) In general.--Not later than 90 days after receiving a
written offer from the Secretary of Agriculture under
paragraph (1)(C), the Pueblo may exercise its option to
acquire the Northern Tier Land by delivering to the Regional
Director of Lands and Minerals, Forest Service, Southwestern
Region, a resolution of the Pueblo Tribal Council expressing
the unqualified intent of the Pueblo to purchase the land at
the offered price.
(B) Failure of pueblo to act.--If the Pueblo fails to
exercise its option to purchase the Northern Tier Land within
90 days after receiving an offer from the Secretary of
Agriculture, or fails to close on the purchase of such land
within 1 year of the date on which the option to purchase was
exercised under subparagraph (A), the Secretary of
Agriculture may sell or exchange the land to any third party
in such manner and on such terms and conditions as the
Secretary determines to be in the public interest, including
by a competitive process.
(3) Extension of time period.--The Secretary of Agriculture
may extend the time period for closing beyond the 1 year
prescribed in subsection (b), if the Secretary determines
that additional time is required to meet the administrative
processing requirements of the Federal Government, or for
other reasons beyond the control of either party.
(c) Terms and Conditions of Sale.--
(1) Purchase price.--Subject to valid existing rights and
reservations, the purchase price for the Northern Tier Land
sold to the Pueblo of Santa Clara or the Pueblo under
subsection (b) shall be the consideration agreed to by the
Pueblo of Santa Clara pursuant to that certain Pueblo of
Santa Clara Tribal Council Resolution No. 05-01 ``Approving
Proposed San Ildefonso Claims Settlement Act of 2005, and
Terms for Purchase of Northern Tier Lands'' that was signed
by Governor J. Bruce Tafoya in January 2005.
(2) Reserved rights.--On the Northern Tier Land, the United
States shall reserve the right to operate, maintain,
reconstruct (at standards in existence on the date of the
Settlement Agreement), replace, and use the
[[Page S10440]]
stream gauge, and to have unrestricted administrative access
over the associated roads to the gauge (as depicted in
Appendix B of the Settlement Agreement).
(3) Conveyance by quitclaim deed.--The conveyance of the
Northern Tier Land shall be by quitclaim deed executed on
behalf of the United States by the Director of Lands and
Minerals, Forest Service, Southwestern Region, Department of
Agriculture.
(d) Trust Status and Forest Boundaries.--
(1) Acquisition of land by indian tribe.--If the Northern
Tier Land is acquired by an Indian tribe (including a Pueblo
tribe), the land may be reconveyed by quitclaim deed or deeds
back to the United States to be held in trust by the
Secretary of the Interior for the benefit of the tribe, and
the Secretary of the Interior shall accept the conveyance
without any additional administrative action by the Secretary
of Agriculture or the Secretary of the Interior.
(2) Land held in trust.--On recording a quitclaim deed
described in paragraph (1) in the Land Titles and Records
Office, Southwest Region, Bureau of Indian Affairs, the
Northern Tier Land shall be deemed to be held in trust by the
United States for the benefit of the Indian tribe.
(3) Boundaries of santa fe national forest.--Effective on
the date of a deed described in paragraph (1), the boundaries
of the Santa Fe National Forest shall be deemed modified to
exclude from the National Forest System the land conveyed by
the deed.
(e) Inholder and Administrative Access.--
(1) Failure of pueblo of santa clara to act.--
(A) In general.--If the Pueblo of Santa Clara does not
exercise its option to acquire the Northern Tier Land, the
Secretary of Agriculture or the Secretary of the Interior, as
appropriate, shall by deed reservations or grants on land
under their respective jurisdiction provide for inholder and
public access across the Northern Tier Land in order to
provide reasonable ingress and egress to private and Federal
land as shown in Appendix B of the Settlement Agreement.
(B) Administration of reservations.--The Secretary of the
Interior shall administer any such reservations on land
acquired by any Indian tribe.
(2) Effect of acceptance.--If the Pueblo of Santa Clara
exercises its option to acquire all of the Northern Tier
Land, the following shall apply:
(A) Easements to united states.--
(i) Definition of administrative access.--In this
subparagraph, the term ``administrative access'' means access
to Federal land by Federal employees acting in the course of
their official capacities in carrying out activities on
Federal land authorized by law or regulation, and by agents
and contractors of Federal agencies who have been engaged to
perform services necessary or desirable for fire management
and the health of forest resources, including the cutting and
removal of vegetation, and for the health and safety of
persons on the Federal land.
(ii) Easements.--
(I) In general.--The Pueblo of Santa Clara shall grant and
convey at closing perpetual easements over the existing roads
to the United States that are acceptable to the Secretary of
Agriculture for administrative access over the Santa Clara
Reservation Highway 601 (the Puye Road), from its
intersection with New Mexico State Highway 30, westerly to
its intersection with the Sawyer Canyon Road (also known as
Forest Development Road 445), thence southwesterly on the
Sawyer Canyon Road to the point at which it exits the Santa
Clara Reservation.
(II) Maintenance of roadway.--An easement under this
subparagraph shall provide that the United States shall be
obligated to contribute to maintenance of the roadway
commensurate with actual use.
(B) Easements to private landowners.--Not later than 180
days after the date of enactment of this Act, the Pueblo of
Santa Clara, in consultation with private landowners, shall
grant and convey a perpetual easement to the private owners
of land within the Northern Tier Land for private access over
Santa Clara Reservation Highway 601 (Puye Road) across the
Santa Clara Indian Reservation from its intersection with New
Mexico State Highway 30, or other designated public road, on
Forest Development Roads 416, 445 and other roads that may be
necessary to provide access to each individually owned
private tract.
(3) Approval.--The Secretary of the Interior shall approve
the conveyance of an easement under paragraph (2) upon
receipt of written approval of the terms of the easement by
the Secretary of Agriculture.
(4) Adequate access provided by pueblo of santa clara.--If
adequate administrative and inholder access is provided over
the Santa Clara Indian Reservation under paragraph (2), the
Secretary of the Interior--
(A) shall vacate the inholder access over that portion of
Forest Development Road 416 referenced in section 7(e)(5);
but
(B) shall not vacate the reservations over the Northern
Tier Land for administrative access under subsection (c)(2).
SEC. 13. INTER-PUEBLO COOPERATION.
(a) Demarcation of Boundary.--The Pueblo of Santa Clara and
the Pueblo may, by agreement, demarcate a boundary between
their respective tribal land within Township 20 North, Range
7 East, in Rio Arriba County, New Mexico, and may exchange or
otherwise convey land between them in that township.
(b) Action by Secretary of the Interior.--In accordance
with any agreement under subsection (a), the Secretary of the
Interior shall, without further administrative procedures or
environmental or other analyses--
(1) recognize a boundary between the Pueblo of Santa Clara
and the Pueblo;
(2) provide for a boundary survey;
(3) approve land exchanges and conveyances as agreed upon
by the Pueblo of Santa Clara and the Pueblo; and
(4) accept conveyances of exchanged lands into trust for
the benefit of the grantee tribe.
SEC. 14. DISTRIBUTION OF FUNDS PLAN.
Not later than 2 years after the date of enactment of this
Act, the Secretary of the Interior shall act in accordance
with the Indian Tribal Judgment Funds Use or Distribution Act
(25 U.S.C. 1401 et seq.) with respect to the award entered in
the compromise and settlement of claims under the case styled
Pueblo of San Ildefonso v. United States, No. 660-87L, United
States Court of Federal Claims.
SEC. 15. RULE OF CONSTRUCTION AND JUDICIAL REVIEW.
Notwithstanding any provision of State law, the Settlement
Agreement and the Los Alamos Agreement (including any real
property conveyance under the agreements) shall be
interpreted and implemented as matters of Federal law.
SEC. 16. EFFECTIVE DATE.
This Act shall take effect on the date of enactment of this
Act.
SEC. 17. TIMING OF ACTIONS.
It is the intent of Congress that the land conveyances and
adjustments contemplated in this Act shall be completed not
later than 180 days after the date of enactment of this Act.
SEC. 18. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such funds as are
necessary to carry out this Act.
Mr. BINGAMAN. Mr. President, I am pleased to join Senator Domenici in
introducing the Pueblo de San Ildefonso Claims Settlement Act. This
claim, the last one pending before the Indian Claims Commission, has
gone unresolved for over 50 years and it is certainly long past time to
bring an end to this dispute. I'd particularly like to commend the
Pueblo de San Ildefonso for their diligent work on this settlement. It
is testament to the Pueblo's fortitude and open-minded approach to this
issue that they have been able find consensus with the many parties to
this settlement and produce this compromise legislation.
As with any settlement of a lawsuit, it's unlikely that everyone will
be completely happy with the terms of the deal but I am pleased to note
that all of the local governments, tribal and municipal, have expressed
their support. I hope that the introduction of this bill begins a
productive process in the Indian Affairs Committee and, once the final
product is signed into law, with the public that will definitively
settle the issues of land ownership in this area and allow all of the
local communities to move forward cooperatively.
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