[Congressional Record Volume 153, Number 9 (Wednesday, January 17, 2007)]
[Senate]
[Pages S672-S702]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. AKAKA (for himself, Mr. Inouye, Mr. Dorgan, Ms. Cantwell,
Mr. Coleman, Mr. Stevens, Ms. Murkowski, Mr. Smith, and Mr.
Dodd):
S. 310. A bill to express the policy of the United States regarding
the United States relationship with Native Hawaiians and to provide a
process for the recognition by the United States of the Native Hawaiian
governing entity; to the Committee on Indian Affairs.
Mr. AKAKA. Mr. President, I rise today with the senior Senator from
Hawaii to introduce the Native Hawaiian Government Reorganization Act
of 2007. This bill, which is of great importance to the people of
Hawaii, establishes a process to extend the Federal policy of self-
governance and self-determination to Hawaii's indigenous people. The
bill provides parity in Federal policies that empower our country's
other indigenous people--merican Indians and Alaska Natives--to
participate in a government-to-government relationship with the United
States.
January 17, 2007, commemorates the 114th anniversary of Hawaii's
beloved Queen Liliuokalani being deposed. Although this event may seem
like a distant memory, it is a poignant event that expedited the
decline of a proud and self-governing people. The overthrow facilitated
Native Hawaiians being disenfranchised from not only their culture and
land, but from their way of life. Native Hawaiians had to endure the
forced imprisonment of their Queen and witness the deterioration and
near eradication of their culture and tradition in their own homeland,
at the hands of foreigners committed exclusively to propagating Western
values and conventions.
While Congress has traditionally treated Native Hawaiians in a manner
parallel to American Indians and Alaska Natives, the Federal policy of
self-governance and self-determination has not been formally extended
to Native Hawaiians. The bill itself does not extend Federal
recognition--it authorizes the process for Federal recognition.
The Native Hawaiian Government Reorganization Act of 2007 does three
things: (1) It authorizes an office in the Department of the Interior
to serve as a liaison between Native Hawaiians and the United States;
(2) It forms an interagency coordinating group composed of officials
from Federal agencies who currently administer programs and services
impacting Native Hawaiians; and (3) It authorizes a process for the
reorganization of the Native Hawaiian governing entity for the purposes
of a federally recognized government-to-government relationship.
Once the Native Hawaiian governing entity is recognized, the bill
establishes an inclusive, democratic negotiations process representing
both Native Hawaiians and non-Native Hawaiians. Negotiations between
the Native Hawaiian entity and the Federal and State governments may
address issues such as the transfer of lands, assets, and natural
resources and jurisdiction over such lands, assets, and natural
resources, as well as other longstanding issues resulting from the
overthrow of the Kingdom of Hawaii. Any transfers of governmental
authority or power will require implementing legislation at the State
and Federal levels.
The Hawaii congressional delegation has devoted much time and careful
consideration into crafting this legislation. When I first started this
process in 1999, our congressional delegation created five working
groups to assist with the drafting of this legislation. The working
groups were composed of individuals from the Native Hawaiian community,
the State of Hawaii, Federal Government, Indian country, Members of
Congress, and experts in constitutional law. Collectively, more than
100 people worked together on the initial draft of this legislation.
The meetings held with the Native Hawaiian community were open to the
public and a number of individuals who had differing views attended the
meetings and provided their alternative views on the legislation.
In August 2000, the Senate Committee on Indian Affairs and the House
Committee on Resources held joint field hearings on the legislation in
Hawaii for 5 days. While the bill passed the U.S. House of
Representatives in the 106th Congress, the Senate failed to take
action. The bill was subsequently considered by the 107th, l08th, and
109th Congresses. In each Congress, the bill has been favorably
reported by the Senate Committee on Indian Affairs and its companion
measure has been favorably reported by the House Committee on Resources
in the 106th through the 108th Congress.
Most recently in the 109th Congress clarifications were made to the
bill. I want to inform my colleagues to the fact that this bill is
identical to legislative language negotiated between Senator Inouye and
myself, and officials from the Department of Justice, Office of
Management and Budget, and the White House. The language satisfactorily
addresses concerns expressed in July 2005 by the Bush administration
regarding the liability of the United States in land claims, the impact
of the bill on military readiness, gaming, and civil and criminal
jurisdiction in Hawaii.
With respect to liability of the United States as it relates to land
claims, as the author of the Apology Resolution, P.L. 103-150, as well
as the Native Hawaiian Government Reorganization Act, I have always
maintained that this legislation is not intended to serve as a
settlement of any claims nor as a cause of action for any claims. The
negotiated language makes clear that any grievances regarding
historical wrongs committed against Native Hawaiians by the United
States or by the State of Hawaii are to be addressed in the
negotiations process between the Native Hawaiian governing entity and
Federal and State governments.
As a senior member of the Senate Committee on Homeland Security and
Governmental Affairs, as well as the incoming Chairman on the
Subcommittee on Readiness and Management of the Senate Committee on
Armed Services, military readiness for our Armed Forces is of great
importance to me. Due to concerns raised by the Department of Defense
to the consultation requirements expected to be facilitated by the
Office of Native Hawaiian Relations in the Department of the Interior
and the Native Hawaiian Interagency Coordinating Group; negotiated
language exempts the Department from these consultation requirements.
However, these exemptions do not alter nor terminate requirements of
the DoD to consult with Native Hawaiians under the Native Graves
Protection and Repatriation Act, NAGPRA, National Historic Preservation
Act, NHPA, and other existing statutes.
The bill does not authorize gaming by the Native Hawaiian governing
entity. Negotiated language clarifies that gaming may not be conducted
by Native Hawaiians or the Native Hawaiian governing entity as a matter
of
[[Page S673]]
claimed inherent authority or under the authority of any Federal laws
or regulations promulgated by the Secretary of the Interior or the
National Indian Gaming Commission. The bill also makes clear that the
prohibition applies to any efforts to establish gaming by Native
Hawaiians and the Native Hawaiian governing entity in Hawaii and in any
other State or Territory. This language only applies to efforts to
establish gaming operations as a matter of inherent authority as
indigenous peoples or under federal laws pertaining to gaming by native
peoples.
The bill makes clear that civil and criminal jurisdiction currently
held by the Federal and State governments will remain with the Federal
and State governments unless otherwise negotiated and implementing
legislation is enacted.
I have described the clarifications that have been made so my
colleagues know that our negotiations with the administration have been
successful. This language has been publicly available since September
2005 and has been widely distributed. Although such clarifications have
been made, I am proud to report that the bill remains true to its
intent and purpose--to clarify the existing legal and political
relationship between Hawaii's indigenous people, Native Hawaiians and
the United States.
Along with our efforts to work with the Bush administration, during
the past 4 years, we have worked closely with Hawaii's first Republican
governor in 40 years, Governor Linda Lingle to enact this legislation.
We have also worked closely with the Hawaii State legislature which has
passed three resolutions unanimously in support of federal recognition
for Native Hawaiians. I am pleased to announce today that I am again
joined by members from both sides of the aisle to introduce this
important measure. I mention this, to underscore the fact that this is
bipartisan legislation.
In addition to its widespread support by both Native Hawaiians and
non-Native Hawaiians in Hawaii, in resolutions adopted by the oldest
and largest national Indian organization, the National Congress of
American Indians, and the largest organization representing the Native
people of Alaska, the Alaska Federation of Natives, the members of both
groups have consistently expressed their strong support for enactment
of a bill to provide for recognition by the United States of a Native
Hawaiian governing entity. Organizations such as the American Bar
Association, Japanese American Citizen League, and the National Indian
Education Association have also passed resolutions in support of
federal recognition for Hawaii's indigenous peoples.
Today I provide my colleagues with a framework to understand the need
for this legislation by briefly reviewing (1) Hawaii's past, ancient
Hawaiian society prior to Western contact, (2) Hawaii's present, the
far reaching consequences of the overthrow, and (3) Hawaii's future.
Hawaii was originally settled by Polynesian voyagers arriving as
early as 300 A.D, 1200 years before Europe's great explorers Magellan
and Columbus. The Hawaiians braved immense distances guided by their
extensive knowledge of navigation and understanding of the marine
environment. Isolation followed the era of long voyages, enabling
Native Hawaiians to develop distinct political, economic, and social
structures which were mutually supportive. As stewards of the land and
sea, Native Hawaiians were intimately linked to the environment and
they developed innovative methods of agriculture, aquaculture,
navigation and irrigation.
With an influx of foreigners into Hawaii, Native Hawaiian populations
plummeted due to death from common Western diseases. Those that
survived witnessed foreign interest and involvement in their government
grow until Queen Liliuokalani was forced by American citizens to
abdicate her right to the throne. This devastated the Native Hawaiian
people, forever tainting the waters of their identity and tattering the
very fabric of their society. For some this injustice, this wound has
never healed, manifesting itself in a sense of inferiority and
hopelessness leaving many Native Hawaiians at the lowest levels of
achievement by all social and economic measures.
Mr. President, 14 years ago the United States enacted the Apology
Resolution, 103-150, which acknowledged the 100th anniversary of the
overthrow of the Kingdom of Hawaii in which the United States offered
an apology to Native Hawaiians and declared its policy to support
reconciliation efforts. This is a landmark declaration for it
recognizes not only are Native Hawaiians the indigenous people of
Hawaii, but of the urgent need for the U.S. to actively engage in
reconciliation efforts. This acknowledgment played a crucial role in
initiating a healing process and although progress has been made, the
path ahead is uncertain.
Frustration has led to anger and festered in the hearts of Hawaii's
younger generations, with each child that is taught about this period
of Hawaiian history, a loss is relived. It is a burden that Native
Hawaiians since the overthrow continue to carry, to know that they were
violated in their own homeland and their governance was ripped away
unjustly. Despite the perceived harmony, it is the generation of my
grandchildren that is growing impatient and frustrated with the lack of
progress being made. Influenced by a deep sadness and growing
intolerance, an active minority within this generation seeks
independence from the United States.
It is for this generation that I work to enact this bill so that
there is the structured process to deal with these emotional issues. It
is important that discussions are held and that there is a framework to
guide appropriate action. For Hawaii is the homeland of the Native
Hawaiian people.
A lack of action by the U.S. will only incite and fuel us down a path
to a divided Hawaii. A Hawaii where lines and boundaries are drawn and
unity severed. However, the legislation I introduce today seeks to
build upon the foundation of reconciliation. It provides a structured
process to bring together the people of Hawaii, along a path of healing
to a Hawaii where its indigenous people are respected and culture is
embraced.
Respecting the rights of America's first people--American Indians,
Alaska Natives, and Native Hawaiians is not un-American. Through
enactment of this legislation, we have the opportunity to demonstrate
that our country does not just preach its ideas, but lives according to
its founding principles. That the United States will admit when it has
trespassed against a people and remain resolute to make amends. We
demonstrate our character to ourselves and to the world by respecting
the rights of our country's indigenous people. As it has for America's
other indigenous peoples, I believe the United States must fulfill its
responsibility to Native Hawaiians.
I am proud of the fact that this bill respects the rights of Hawaii's
indigenous peoples through a process that is consistent with Federal
law, and it provides the structured process for the people of Hawaii to
address the longstanding issues which have plagued both Native
Hawaiians and non-Native Hawaiians since the overthrow of the Kingdom
of Hawaii. We have an established record of the United States'
commitment to the reconciliation with Native Hawaiians. This
legislation is another step building upon that foundation and honoring
that commitment.
I ask my colleagues to join me in enacting this legislation which is
of great importance to all the people of Hawaii.
Mr. President, I ask unanimous consent that the text of this measure
be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 310
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Native Hawaiian Government
Reorganization Act of 2007''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Constitution vests Congress with the authority to
address the conditions of the indigenous, native people of
the United States;
(2) Native Hawaiians, the native people of the Hawaiian
archipelago that is now part of the United States, are
indigenous, native people of the United States;
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(3) the United States has a special political and legal
relationship to promote the welfare of the native people of
the United States, including Native Hawaiians;
(4) under the treaty making power of the United States,
Congress exercised its constitutional authority to confirm
treaties between the United States and the Kingdom of Hawaii,
and from 1826 until 1893, the United States--
(A) recognized the sovereignty of the Kingdom of Hawaii;
(B) accorded full diplomatic recognition to the Kingdom of
Hawaii; and
(C) entered into treaties and conventions with the Kingdom
of Hawaii to govern commerce and navigation in 1826, 1842,
1849, 1875, and 1887;
(5) pursuant to the Hawaiian Homes Commission Act, 1920 (42
Stat. 108, chapter 42), the United States set aside
approximately 203,500 acres of land to address the conditions
of Native Hawaiians in the Federal territory that later
became the State of Hawaii;
(6) by setting aside 203,500 acres of land for Native
Hawaiian homesteads and farms, the Hawaiian Homes Commission
Act assists the members of the Native Hawaiian community in
maintaining distinct native settlements throughout the State
of Hawaii;
(7) approximately 6,800 Native Hawaiian families reside on
the Hawaiian Home Lands and approximately 18,000 Native
Hawaiians who are eligible to reside on the Hawaiian Home
Lands are on a waiting list to receive assignments of
Hawaiian Home Lands;
(8)(A) in 1959, as part of the compact with the United
States admitting Hawaii into the Union, Congress established
a public trust (commonly known as the ``ceded lands trust''),
for 5 purposes, 1 of which is the betterment of the
conditions of Native Hawaiians;
(B) the public trust consists of lands, including submerged
lands, natural resources, and the revenues derived from the
lands; and
(C) the assets of this public trust have never been
completely inventoried or segregated;
(9) Native Hawaiians have continuously sought access to the
ceded lands in order to establish and maintain native
settlements and distinct native communities throughout the
State;
(10) the Hawaiian Home Lands and other ceded lands provide
an important foundation for the ability of the Native
Hawaiian community to maintain the practice of Native
Hawaiian culture, language, and traditions, and for the
survival and economic self-sufficiency of the Native Hawaiian
people;
(11) Native Hawaiians continue to maintain other distinctly
native areas in Hawaii;
(12) on November 23, 1993, Public Law 103-150 (107 Stat.
1510) (commonly known as the ``Apology Resolution'') was
enacted into law, extending an apology on behalf of the
United States to the native people of Hawaii for the United
States' role in the overthrow of the Kingdom of Hawaii;
(13) the Apology Resolution acknowledges that the overthrow
of the Kingdom of Hawaii occurred with the active
participation of agents and citizens of the United States and
further acknowledges that the Native Hawaiian people never
directly relinquished to the United States their claims to
their inherent sovereignty as a people over their national
lands, either through the Kingdom of Hawaii or through a
plebiscite or referendum;
(14) the Apology Resolution expresses the commitment of
Congress and the President--
(A) to acknowledge the ramifications of the overthrow of
the Kingdom of Hawaii;
(B) to support reconciliation efforts between the United
States and Native Hawaiians; and
(C) to consult with Native Hawaiians on the reconciliation
process as called for in the Apology Resolution;
(15) despite the overthrow of the government of the Kingdom
of Hawaii, Native Hawaiians have continued to maintain their
separate identity as a single distinct native community
through cultural, social, and political institutions, and to
give expression to their rights as native people to self-
determination, self-governance, and economic self-
sufficiency;
(16) Native Hawaiians have also given expression to their
rights as native people to self-determination, self-
governance, and economic self-sufficiency--
(A) through the provision of governmental services to
Native Hawaiians, including the provision of--
(i) health care services;
(ii) educational programs;
(iii) employment and training programs;
(iv) economic development assistance programs;
(v) children's services;
(vi) conservation programs;
(vii) fish and wildlife protection;
(viii) agricultural programs;
(ix) native language immersion programs;
(x) native language immersion schools from kindergarten
through high school;
(xi) college and master's degree programs in native
language immersion instruction; and
(xii) traditional justice programs, and
(B) by continuing their efforts to enhance Native Hawaiian
self-determination and local control;
(17) Native Hawaiians are actively engaged in Native
Hawaiian cultural practices, traditional agricultural
methods, fishing and subsistence practices, maintenance of
cultural use areas and sacred sites, protection of burial
sites, and the exercise of their traditional rights to gather
medicinal plants and herbs, and food sources;
(18) the Native Hawaiian people wish to preserve, develop,
and transmit to future generations of Native Hawaiians their
lands and Native Hawaiian political and cultural identity in
accordance with their traditions, beliefs, customs and
practices, language, and social and political institutions,
to control and manage their own lands, including ceded lands,
and to achieve greater self-determination over their own
affairs;
(19) this Act provides a process within the framework of
Federal law for the Native Hawaiian people to exercise their
inherent rights as a distinct, indigenous, native community
to reorganize a single Native Hawaiian governing entity for
the purpose of giving expression to their rights as native
people to self-determination and self-governance;
(20) Congress--
(A) has declared that the United States has a special
political and legal relationship for the welfare of the
native peoples of the United States, including Native
Hawaiians;
(B) has identified Native Hawaiians as a distinct group of
indigenous, native people of the United States within the
scope of its authority under the Constitution, and has
enacted scores of statutes on their behalf ; and
(C) has delegated broad authority to the State of Hawaii to
administer some of the United States' responsibilities as
they relate to the Native Hawaiian people and their lands;
(21) the United States has recognized and reaffirmed the
special political and legal relationship with the Native
Hawaiian people through the enactment of the Act entitled,
``An Act to provide for the admission of the State of Hawaii
into the Union'', approved March 18, 1959 (Public Law 86-3;
73 Stat. 4), by--
(A) ceding to the State of Hawaii title to the public lands
formerly held by the United States, and mandating that those
lands be held as a public trust for 5 purposes, 1 of which is
for the betterment of the conditions of Native Hawaiians; and
(B) transferring the United States' responsibility for the
administration of the Hawaiian Home Lands to the State of
Hawaii, but retaining the exclusive right of the United
States to consent to any actions affecting the lands included
in the trust and any amendments to the Hawaiian Homes
Commission Act, 1920 (42 Stat. 108, chapter 42) that are
enacted by the legislature of the State of Hawaii affecting
the beneficiaries under the Act;
(22) the United States has continually recognized and
reaffirmed that--
(A) Native Hawaiians have a cultural, historic, and land-
based link to the aboriginal, indigenous, native people who
exercised sovereignty over the Hawaiian Islands;
(B) Native Hawaiians have never relinquished their claims
to sovereignty or their sovereign lands;
(C) the United States extends services to Native Hawaiians
because of their unique status as the indigenous, native
people of a once-sovereign nation with whom the United States
has a special political and legal relationship; and
(D) the special relationship of American Indians, Alaska
Natives, and Native Hawaiians to the United States arises out
of their status as aboriginal, indigenous, native people of
the United States; and
(23) the State of Hawaii supports the reaffirmation of the
special political and legal relationship between the Native
Hawaiian governing entity and the United States as evidenced
by 2 unanimous resolutions enacted by the Hawaii State
Legislature in the 2000 and 2001 sessions of the Legislature
and by the testimony of the Governor of the State of Hawaii
before the Committee on Indian Affairs of the Senate on
February 25, 2003, and March 1, 2005.
SEC. 3. DEFINITIONS.
In this Act:
(1) Aboriginal, indigenous, native people.--The term
``aboriginal, indigenous, native people'' means people whom
Congress has recognized as the original inhabitants of the
lands that later became part of the United States and who
exercised sovereignty in the areas that later became part of
the United States.
(2) Adult member.--The term ``adult member'' means a Native
Hawaiian who has attained the age of 18 and who elects to
participate in the reorganization of the Native Hawaiian
governing entity.
(3) Apology resolution.--The term ``Apology Resolution''
means Public Law 103-150 (107 Stat. 1510), a Joint Resolution
extending an apology to Native Hawaiians on behalf of the
United States for the participation of agents of the United
States in the January 17, 1893, overthrow of the Kingdom of
Hawaii.
(4) Commission.--The term ``commission'' means the
Commission established under section 7(b) to provide for the
certification that those adult members of the Native Hawaiian
community listed on the roll meet the definition of Native
Hawaiian set forth in paragraph (10).
(5) Council.--The term ``council'' means the Native
Hawaiian Interim Governing Council established under section
7(c)(2).
(6) Indian program or service.--
(A) In general.--The term ``Indian program or service''
means any federally funded or authorized program or service
provided to an Indian tribe (or member of an Indian tribe)
because of the status of the members of the Indian tribe as
Indians.
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(B) Inclusions.--The term ``Indian program or service''
includes a program or service provided by the Bureau of
Indian Affairs, the Indian Health Service, or any other
Federal agency.
(7) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(8) Indigenous, native people.--The term ``indigenous,
native people'' means the lineal descendants of the
aboriginal, indigenous, native people of the United States.
(9) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 6.
(10) Native hawaiian.--
(A) In general.--Subject to subparagraph (B), for the
purpose of establishing the roll authorized under section
7(c)(1) and before the reaffirmation of the special political
and legal relationship between the United States and the
Native Hawaiian governing entity, the term ``Native
Hawaiian'' means--
(i) an individual who is 1 of the indigenous, native people
of Hawaii and who is a direct lineal descendant of the
aboriginal, indigenous, native people who--
(I) resided in the islands that now comprise the State of
Hawaii on or before January 1, 1893; and
(II) occupied and exercised sovereignty in the Hawaiian
archipelago, including the area that now constitutes the
State of Hawaii; or
(ii) an individual who is 1 of the indigenous, native
people of Hawaii and who was eligible in 1921 for the
programs authorized by the Hawaiian Homes Commission Act (42
Stat. 108, chapter 42) or a direct lineal descendant of that
individual.
(B) No effect on other definitions.--Nothing in this
paragraph affects the definition of the term ``Native
Hawaiian'' under any other Federal or State law (including a
regulation).
(11) Native hawaiian governing entity.--The term ``Native
Hawaiian Governing Entity'' means the governing entity
organized by the Native Hawaiian people pursuant to this Act.
(12) Native hawaiian program or service.--The term ``Native
Hawaiian program or service'' means any program or service
provided to Native Hawaiians because of their status as
Native Hawaiians.
(13) Office.--The term ``Office'' means the United States
Office for Native Hawaiian Relations established by section
5(a).
(14) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(15) Special political and legal relationship.--The term
``special political and legal relationship'' shall refer,
except where differences are specifically indicated elsewhere
in the Act, to the type of and nature of relationship the
United States has with the several federally recognized
Indian tribes.
SEC. 4. UNITED STATES POLICY AND PURPOSE.
(a) Policy.--The United States reaffirms that--
(1) Native Hawaiians are a unique and distinct, indigenous,
native people with whom the United States has a special
political and legal relationship;
(2) the United States has a special political and legal
relationship with the Native Hawaiian people which includes
promoting the welfare of Native Hawaiians;
(3) Congress possesses the authority under the
Constitution, including but not limited to Article I, section
8, clause 3, to enact legislation to address the conditions
of Native Hawaiians and has exercised this authority through
the enactment of--
(A) the Hawaiian Homes Commission Act, 1920 (42 Stat. 108,
chapter 42);
(B) the Act entitled ``An Act to provide for the admission
of the State of Hawaii into the Union'', approved March 18,
1959 (Public Law 86-3, 73 Stat. 4); and
(C) more than 150 other Federal laws addressing the
conditions of Native Hawaiians;
(4) Native Hawaiians have--
(A) an inherent right to autonomy in their internal
affairs;
(B) an inherent right of self-determination and self-
governance;
(C) the right to reorganize a Native Hawaiian governing
entity; and
(D) the right to become economically self-sufficient; and
(5) the United States shall continue to engage in a process
of reconciliation and political relations with the Native
Hawaiian people.
(b) Purpose.--The purpose of this Act is to provide a
process for the reorganization of the single Native Hawaiian
governing entity and the reaffirmation of the special
political and legal relationship between the United States
and that Native Hawaiian governing entity for purposes of
continuing a government-to-government relationship.
SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS.
(a) Establishment.--There is established within the Office
of the Secretary, the United States Office for Native
Hawaiian Relations.
(b) Duties.--The Office shall--
(1) continue the process of reconciliation with the Native
Hawaiian people in furtherance of the Apology Resolution;
(2) upon the reaffirmation of the special political and
legal relationship between the single Native Hawaiian
governing entity and the United States, effectuate and
coordinate the special political and legal relationship
between the Native Hawaiian governing entity and the United
States through the Secretary, and with all other Federal
agencies;
(3) fully integrate the principle and practice of
meaningful, regular, and appropriate consultation with the
Native Hawaiian governing entity by providing timely notice
to, and consulting with, the Native Hawaiian people and the
Native Hawaiian governing entity before taking any actions
that may have the potential to significantly affect Native
Hawaiian resources, rights, or lands;
(4) consult with the Interagency Coordinating Group, other
Federal agencies, and the State of Hawaii on policies,
practices, and proposed actions affecting Native Hawaiian
resources, rights, or lands; and
(5) prepare and submit to the Committee on Indian Affairs
and the Committee on Energy and Natural Resources of the
Senate and the Committee on Resources of the House of
Representatives an annual report detailing the activities of
the Interagency Coordinating Group that are undertaken with
respect to the continuing process of reconciliation and to
effect meaningful consultation with the Native Hawaiian
governing entity and providing recommendations for any
necessary changes to Federal law or regulations promulgated
under the authority of Federal law.
(c) Applicability to Department of Defense.--This section
shall have no applicability to the Department of Defense or
to any agency or component of the Department of Defense, but
the Secretary of Defense may designate 1 or more officials as
liaison to the Office.
SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.
(a) Establishment.--In recognition that Federal programs
authorized to address the conditions of Native Hawaiians are
largely administered by Federal agencies other than the
Department of the Interior, there is established an
interagency coordinating group to be known as the ``Native
Hawaiian Interagency Coordinating Group''.
(b) Composition.--The Interagency Coordinating Group shall
be composed of officials, to be designated by the President,
from--
(1) each Federal agency that administers Native Hawaiian
programs, establishes or implements policies that affect
Native Hawaiians, or whose actions may significantly or
uniquely impact Native Hawaiian resources, rights, or lands;
and
(2) the Office.
(c) Lead Agency.--
(1) In general.--The Department of the Interior shall serve
as the lead agency of the Interagency Coordinating Group.
(2) Meetings.--The Secretary shall convene meetings of the
Interagency Coordinating Group.
(d) Duties.--The Interagency Coordinating Group shall--
(1) coordinate Federal programs and policies that affect
Native Hawaiians or actions by any agency or agencies of the
Federal Government that may significantly or uniquely affect
Native Hawaiian resources, rights, or lands;
(2) consult with the Native Hawaiian governing entity,
through the coordination referred to in section 6(d)(1), but
the consultation obligation established in this provision
shall apply only after the satisfaction of all of the
conditions referred to in section 7(c)(6); and
(3) ensure the participation of each Federal agency in the
development of the report to Congress authorized in section
5(b)(5).
(e) Applicability to Department of Defense.--This section
shall have no applicability to the Department of Defense or
to any agency or component of the Department of Defense, but
the Secretary of Defense may designate 1 or more officials as
liaison to the Interagency Coordinating Group.
SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NATIVE HAWAIIAN
GOVERNING ENTITY AND THE REAFFIRMATION OF THE
SPECIAL POLITICAL AND LEGAL RELATIONSHIP
BETWEEN THE UNITED STATES AND THE NATIVE
HAWAIIAN GOVERNING ENTITY.
(a) Recognition of the Native Hawaiian Governing Entity.--
The right of the Native Hawaiian people to reorganize the
single Native Hawaiian governing entity to provide for their
common welfare and to adopt appropriate organic governing
documents is recognized by the United States.
(b) Commission.--
(1) In general.--There is authorized to be established a
Commission to be composed of 9 members for the purposes of--
(A) preparing and maintaining a roll of the adult members
of the Native Hawaiian community who elect to participate in
the reorganization of the single Native Hawaiian governing
entity; and
(B) certifying that the adult members of the Native
Hawaiian community proposed for inclusion on the roll meet
the definition of Native Hawaiian in section 3(10).
(2) Membership.--
(A) Appointment.--
(i) In general.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall appoint the
members of the Commission in accordance with subparagraph
(B).
(ii) Consideration.--In making an appointment under clause
(i), the Secretary may take into consideration a
recommendation made by any Native Hawaiian organization.
(B) Requirements.--Each member of the Commission shall
demonstrate, as determined by the Secretary--
[[Page S676]]
(i) not less than 10 years of experience in the study and
determination of Native Hawaiian genealogy; and
(ii) an ability to read and translate into English
documents written in the Hawaiian language.
(C) Vacancies.--A vacancy on the Commission--
(i) shall not affect the powers of the Commission; and
(ii) shall be filled in the same manner as the original
appointment.
(3) Expenses.--Each member of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(4) Duties.--The Commission shall--
(A) prepare and maintain a roll of the adult members of the
Native Hawaiian community who elect to participate in the
reorganization of the Native Hawaiian governing entity; and
(B) certify that each of the adult members of the Native
Hawaiian community proposed for inclusion on the roll meets
the definition of Native Hawaiian in section 3(10).
(5) Staff.--
(A) In general.--The Commission may, without regard to the
civil service laws (including regulations), appoint and
terminate an executive director and such other additional
personnel as are necessary to enable the Commission to
perform the duties of the Commission.
(B) Compensation.--
(i) In general.--Except as provided in clause (ii), the
Commission may fix the compensation of the executive director
and other personnel without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of title 5,
United States Code, relating to classification of positions
and General Schedule pay rates.
(ii) Maximum rate of pay.--The rate of pay for the
executive director and other personnel shall not exceed the
rate payable for level V of the Executive Schedule under
section 5316 of title 5, United States Code.
(6) Detail of federal government employees.--
(A) In general.--An employee of the Federal Government may
be detailed to the Commission without reimbursement.
(B) Civil service status.--The detail of the employee shall
be without interruption or loss of civil service status or
privilege.
(7) Procurement of temporary and intermittent services.--
The Commission may procure temporary and intermittent
services in accordance with section 3109(b) of title 5,
United States Code, at rates for individuals that do not
exceed the daily equivalent of the annual rate of basic pay
prescribed for level V of the Executive Schedule under
section 5316 of that title.
(8) Expiration.--The Secretary shall dissolve the
Commission upon the reaffirmation of the special political
and legal relationship between the Native Hawaiian governing
entity and the United States.
(c) Process for the Reorganization of the Native Hawaiian
Governing Entity.--
(1) Roll.--
(A) Contents.--The roll shall include the names of the
adult members of the Native Hawaiian community who elect to
participate in the reorganization of the Native Hawaiian
governing entity and are certified to be Native Hawaiian as
defined in section 3(10) by the Commission.
(B) Formation of roll.--Each adult member of the Native
Hawaiian community who elects to participate in the
reorganization of the Native Hawaiian governing entity shall
submit to the Commission documentation in the form
established by the Commission that is sufficient to enable
the Commission to determine whether the individual meets the
definition of Native Hawaiian in section 3(10).
(C) Documentation.--The Commission shall--
(i) identify the types of documentation that may be
submitted to the Commission that would enable the Commission
to determine whether an individual meets the definition of
Native Hawaiian in section 3(10);
(ii) establish a standard format for the submission of
documentation; and
(iii) publish information related to clauses (i) and (ii)
in the Federal Register.
(D) Consultation.--In making determinations that each of
the adult members of the Native Hawaiian community proposed
for inclusion on the roll meets the definition of Native
Hawaiian in section 3(10), the Commission may consult with
Native Hawaiian organizations, agencies of the State of
Hawaii including but not limited to the Department of
Hawaiian Home Lands, the Office of Hawaiian Affairs, and the
State Department of Health, and other entities with expertise
and experience in the determination of Native Hawaiian
ancestry and lineal descendancy.
(E) Certification and submittal of roll to secretary.--The
Commission shall--
(i) submit the roll containing the names of the adult
members of the Native Hawaiian community who meet the
definition of Native Hawaiian in section 3(10) to the
Secretary within two years from the date on which the
Commission is fully composed; and
(ii) certify to the Secretary that each of the adult
members of the Native Hawaiian community proposed for
inclusion on the roll meets the definition of Native Hawaiian
in section 3(10).
(F) Publication.--Upon certification by the Commission to
the Secretary that those listed on the roll meet the
definition of Native Hawaiian in section 3(10), the Secretary
shall publish the roll in the Federal Register.
(G) Appeal.--The Secretary may establish a mechanism for an
appeal for any person whose name is excluded from the roll
who claims to meet the definition of Native Hawaiian in
section 3(10) and to be 18 years of age or older.
(H) Publication; update.--The Secretary shall--
(i) publish the roll regardless of whether appeals are
pending;
(ii) update the roll and the publication of the roll on the
final disposition of any appeal; and
(iii) update the roll to include any Native Hawaiian who
has attained the age of 18 and who has been certified by the
Commission as meeting the definition of Native Hawaiian in
section 3(10) after the initial publication of the roll or
after any subsequent publications of the roll.
(I) Failure to act.--If the Secretary fails to publish the
roll, not later than 90 days after the date on which the roll
is submitted to the Secretary, the Commission shall publish
the roll notwithstanding any order or directive issued by the
Secretary or any other official of the Department of the
Interior to the contrary.
(J) Effect of publication.--The publication of the initial
and updated roll shall serve as the basis for the eligibility
of adult members of the Native Hawaiian community whose names
are listed on those rolls to participate in the
reorganization of the Native Hawaiian governing entity.
(2) Organization of the native hawaiian interim governing
council.--
(A) Organization.--The adult members of the Native Hawaiian
community listed on the roll published under this section
may--
(i) develop criteria for candidates to be elected to serve
on the Native Hawaiian Interim Governing Council;
(ii) determine the structure of the Council; and
(iii) elect members from individuals listed on the roll
published under this subsection to the Council.
(B) Powers.--
(i) In general.--The Council--
(I) may represent those listed on the roll published under
this section in the implementation of this Act; and
(II) shall have no powers other than powers given to the
Council under this Act.
(ii) Funding.--The Council may enter into a contract with,
or obtain a grant from, any Federal or State agency to carry
out clause (iii).
(iii) Activities.--
(I) In general.--The Council may conduct a referendum among
the adult members of the Native Hawaiian community listed on
the roll published under this subsection for the purpose of
determining the proposed elements of the organic governing
documents of the Native Hawaiian governing entity, including
but not limited to--
(aa) the proposed criteria for citizenship of the Native
Hawaiian governing entity;
(bb) the proposed powers and authorities to be exercised by
the Native Hawaiian governing entity, as well as the proposed
privileges and immunities of the Native Hawaiian governing
entity;
(cc) the proposed civil rights and protection of the rights
of the citizens of the Native Hawaiian governing entity and
all persons affected by the exercise of governmental powers
and authorities of the Native Hawaiian governing entity; and
(dd) other issues determined appropriate by the Council.
(II) Development of organic governing documents.--Based on
the referendum, the Council may develop proposed organic
governing documents for the Native Hawaiian governing entity.
(III) Distribution.--The Council may distribute to all
adult members of the Native Hawaiian community listed on the
roll published under this subsection--
(aa) a copy of the proposed organic governing documents, as
drafted by the Council; and
(bb) a brief impartial description of the proposed organic
governing documents;
(IV) Elections.--The Council may hold elections for the
purpose of ratifying the proposed organic governing
documents, and on certification of the organic governing
documents by the Secretary in accordance with paragraph (4),
hold elections of the officers of the Native Hawaiian
governing entity pursuant to paragraph (5).
(3) Submittal of organic governing documents.--Following
the reorganization of the Native Hawaiian governing entity
and the adoption of organic governing documents, the Council
shall submit the organic governing documents of the Native
Hawaiian governing entity to the Secretary.
(4) Certifications.--
(A) In general.--Within the context of the future
negotiations to be conducted under the authority of section
8(b)(1), and the subsequent actions by the Congress and the
State of Hawaii to enact legislation to implement the
agreements of the 3 governments, not later than 90 days after
the date on which the Council submits the organic governing
documents to the Secretary, the Secretary shall certify that
the organic governing documents--
[[Page S677]]
(i) establish the criteria for citizenship in the Native
Hawaiian governing entity;
(ii) were adopted by a majority vote of the adult members
of the Native Hawaiian community whose names are listed on
the roll published by the Secretary;
(iii) provide authority for the Native Hawaiian governing
entity to negotiate with Federal, State, and local
governments, and other entities;
(iv) provide for the exercise of governmental authorities
by the Native Hawaiian governing entity, including any
authorities that may be delegated to the Native Hawaiian
governing entity by the United States and the State of Hawaii
following negotiations authorized in section 8(b)(1) and the
enactment of legislation to implement the agreements of the 3
governments;
(v) prevent the sale, disposition, lease, or encumbrance of
lands, interests in lands, or other assets of the Native
Hawaiian governing entity without the consent of the Native
Hawaiian governing entity;
(vi) provide for the protection of the civil rights of the
citizens of the Native Hawaiian governing entity and all
persons affected by the exercise of governmental powers and
authorities by the Native Hawaiian governing entity; and
(vii) are consistent with applicable Federal law and the
special political and legal relationship between the United
States and the indigenous, native people of the United
States; provided that the provisions of Public Law 103-454,
25 U.S.C. 479a, shall not apply.
(B) Resubmission in case of noncompliance with the
requirements of subparagraph (a).--
(i) Resubmission by the secretary.--If the Secretary
determines that the organic governing documents, or any part
of the documents, do not meet all of the requirements set
forth in subparagraph (A), the Secretary shall resubmit the
organic governing documents to the Council, along with a
justification for each of the Secretary's findings as to why
the provisions are not in full compliance.
(ii) Amendment and resubmission of organic governing
documents.--If the organic governing documents are
resubmitted to the Council by the Secretary under clause (i),
the Council shall--
(I) amend the organic governing documents to ensure that
the documents meet all the requirements set forth in
subparagraph (A); and
(II) resubmit the amended organic governing documents to
the Secretary for certification in accordance with this
paragraph.
(C) Certifications deemed made.--The certifications under
paragraph (4) shall be deemed to have been made if the
Secretary has not acted within 90 days after the date on
which the Council has submitted the organic governing
documents of the Native Hawaiian governing entity to the
Secretary.
(5) Elections.--On completion of the certifications by the
Secretary under paragraph (4), the Council may hold elections
of the officers of the Native Hawaiian governing entity.
(6) Reaffirmation.--Notwithstanding any other provision of
law, upon the certifications required under paragraph (4) and
the election of the officers of the Native Hawaiian governing
entity, the special political and legal relationship between
the United States and the Native Hawaiian governing entity is
hereby reaffirmed and the United States extends Federal
recognition to the Native Hawaiian governing entity as the
representative governing body of the Native Hawaiian people.
SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY;
NEGOTIATIONS; CLAIMS.
(a) Reaffirmation.--The delegation by the United States of
authority to the State of Hawaii to address the conditions of
the indigenous, native people of Hawaii contained in the Act
entitled ``An Act to provide for the admission of the State
of Hawaii into the Union'' approved March 18, 1959 (Public
Law 86-3, 73 Stat. 4), is reaffirmed.
(b) Negotiations.--
(1) In general.--Upon the reaffirmation of the special
political and legal relationship between the United States
and the Native Hawaiian governing entity, the United States
and the State of Hawaii may enter into negotiations with the
Native Hawaiian governing entity designed to lead to an
agreement addressing such matters as--
(A) the transfer of lands, natural resources, and other
assets, and the protection of existing rights related to such
lands or resources;
(B) the exercise of governmental authority over any
transferred lands, natural resources, and other assets,
including land use;
(C) the exercise of civil and criminal jurisdiction;
(D) the delegation of governmental powers and authorities
to the Native Hawaiian governing entity by the United States
and the State of Hawaii;
(E) any residual responsibilities of the United States and
the State of Hawaii; and
(F) grievances regarding assertions of historical wrongs
committed against Native Hawaiians by the United States or by
the State of Hawaii.
(2) Amendments to existing laws.--Upon agreement on any
matter or matters negotiated with the United States, the
State of Hawaii, and the Native Hawaiian governing entity,
the parties are authorized to submit--
(A) to the Committee on Indian Affairs of the Senate, the
Committee on Energy and Natural Resources of the Senate, and
the Committee on Resources of the House of Representatives,
recommendations for proposed amendments to Federal law that
will enable the implementation of agreements reached between
the 3 governments; and
(B) to the Governor and the legislature of the State of
Hawaii, recommendations for proposed amendments to State law
that will enable the implementation of agreements reached
between the 3 governments.
(3) Governmental authority and power.--Any governmental
authority or power to be exercised by the Native Hawaiian
governing entity which is currently exercised by the State or
Federal Governments shall be exercised by the Native Hawaiian
governing entity only as agreed to in negotiations pursuant
to section 8(b)(1) of this Act and beginning on the date on
which legislation to implement such agreement has been
enacted by the United States Congress, when applicable, and
by the State of Hawaii, when applicable. This includes any
required modifications to the Hawaii State Constitution in
accordance with the Hawaii Revised Statutes.
(c) Claims.--
(1) Disclaimers.--Nothing in this Act--
(A) creates a cause of action against the United States or
any other entity or person;
(B) alters existing law, including existing case law,
regarding obligations on the part of the United States or the
State of Hawaii with regard to Native Hawaiians or any Native
Hawaiian entity;
(C) creates obligations that did not exist in any source of
Federal law prior to the date of enactment of this Act; or
(D) establishes authority for the recognition of Native
Hawaiian groups other than the single Native Hawaiian
Governing Entity.
(2) Federal sovereign immunity.--
(A) Specific purpose.--Nothing in this Act is intended to
create or allow to be maintained in any court any potential
breach-of-trust actions, land claims, resource-protection or
resource-management claims, or similar types of claims
brought by or on behalf of Native Hawaiians or the Native
Hawaiian governing entity for equitable, monetary, or
Administrative Procedure Act-based relief against the United
States or the State of Hawaii, whether or not such claims
specifically assert an alleged breach of trust, call for an
accounting, seek declaratory relief, or seek the recovery of
or compensation for lands once held by Native Hawaiians.
(B) Establishment and retention of sovereign immunity.--To
effectuate the ends expressed in section 8(c)(1) and
8(c)(2)(A), and notwithstanding any other provision of
Federal law, the United States retains its sovereign immunity
to any claim that existed prior to the enactment of this Act
(including, but not limited to, any claim based in whole or
in part on past events), and which could be brought by Native
Hawaiians or any Native Hawaiian governing entity. Nor shall
any preexisting waiver of sovereign immunity (including, but
not limited to, waivers set forth in chapter 7 of part I of
title 5, United States Code, and sections 1505 and 2409a of
title 28, United States Code) be applicable to any such
claims. This complete retention or reclaiming of sovereign
immunity also applies to every claim that might attempt to
rely on this Act for support, without regard to the source of
law under which any such claim might be asserted.
(C) Effect.--It is the general effect of section 8(c)(2)(B)
that any claims that may already have accrued and might be
brought against the United States, including any claims of
the types specifically referred to in section 8(c)(2)(A),
along with both claims of a similar nature and claims arising
out of the same nucleus of operative facts as could give rise
to claims of the specific types referred to in section
8(c)(2)(A), be rendered nonjusticiable in suits brought by
plaintiffs other than the Federal Government.
(3) State sovereignty immunity.--
(A) Notwithstanding any other provision of Federal law, the
State retains its sovereign immunity, unless waived in accord
with State law, to any claim, established under any source of
law, regarding Native Hawaiians, that existed prior to the
enactment of this Act.
(B) Nothing in this Act shall be construed to constitute an
override pursuant to section 5 of the Fourteenth Amendment of
State sovereign immunity held under the Eleventh Amendment.
SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.
(a) Indian Gaming Regulatory Act.--
(1) The Native Hawaiian governing entity and Native
Hawaiians may not conduct gaming activities as a matter of
claimed inherent authority or under the authority of any
Federal law, including the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) or under any regulations thereunder
promulgated by the Secretary or the National Indian Gaming
Commission.
(2) The foregoing prohibition in section 9(a)(1) on the use
of Indian Gaming Regulatory Act and inherent authority to
game apply regardless of whether gaming by Native Hawaiians
or the Native Hawaiian governing entity would be located on
land within the State of Hawaii or within any other State or
Territory of the United States.
(b) Taking Land Into Trust.--Notwithstanding any other
provision of law, including but not limited to part 151 of
title 25, Code of Federal Regulations, the Secretary
[[Page S678]]
shall not take land into trust on behalf of individuals or
groups claiming to be Native Hawaiian or on behalf of the
native Hawaiian governing entity.
(c) Real Property Transfers.--The Indian Trade and
Intercourse Act (25 U.S.C. 177), does not, has never, and
will not apply after enactment to lands or lands transfers
present, past, or future, in the State of Hawaii. If despite
the expression of this intent herein, a court were to
construe the Trade and Intercourse Act to apply to lands or
land transfers in Hawaii before the date of enactment of this
Act, then any transfer of land or natural resources located
within the State of Hawaii prior to the date of enactment of
this Act, by or on behalf of the Native Hawaiian people, or
individual Native Hawaiians, shall be deemed to have been
made in accordance with the Indian Trade and Intercourse Act
and any other provision of Federal law that specifically
applies to transfers of land or natural resources from, by,
or on behalf of an Indian tribe, Native Hawaiians, or Native
Hawaiian entities.
(d) Single Governing Entity.--This Act will result in the
recognition of the single Native Hawaiian governing entity.
Additional Native Hawaiian groups shall not be eligible for
acknowledgment pursuant to the Federal Acknowledgment Process
set forth in part 83 of title 25 of the Code of Federal
Regulations or any other administrative acknowledgment or
recognition process.
(e) Jurisdiction.--Nothing in this Act alters the civil or
criminal jurisdiction of the United States or the State of
Hawaii over lands and persons within the State of Hawaii. The
status quo of Federal and State jurisdiction can change only
as a result of further legislation, if any, enacted after the
conclusion, in relevant part, of the negotiation process
established in section 8(b).
(f) Indian Programs and Services.--Notwithstanding section
7(c)(6), because of the eligibility of the Native Hawaiian
governing entity and its citizens for Native Hawaiian
programs and services in accordance with subsection (g),
nothing in this Act provides an authorization for eligibility
to participate in any Indian program or service to any
individual or entity not otherwise eligible for the program
or service under applicable Federal law.
(g) Native Hawaiian Programs and Services.--The Native
Hawaiian governing entity and its citizens shall be eligible
for Native Hawaiian programs and services to the extent and
in the manner provided by other applicable laws.
SEC. 10. SEVERABILITY.
If any section or provision of this Act is held invalid, it
is the intent of Congress that the remaining sections or
provisions shall continue in full force and effect.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this Act.
Mr. INOUYE. Mr. President, I am pleased to join my colleague, Senator
Akaka, as a cosponsor of the Native Hawaiian Government Reorganization
Act of 2007.
During the 109th Congress, the Administration expressed concerns with
this legislation that stem from its experience with Indian tribes. The
history of the Native Hawaiians and their treatment by the United
States is similar to that of Indian tribes and Alaska Natives. I want
to commend the Administration for devoting staff to work with us to
achieve consensus on mutually agreeable language. I am confident that
this measure not only addresses the Administration's concerns but also
the concerns of some of our colleagues.
Having served on the Indian Affairs Committee for the past 28 years,
I know that most of our colleagues are more familiar with conditions
and circumstances in Indian country, and naturally, they bring their
experience with Indian country to bear in considering this measure,
which has been pending in the Senate for the past eight years.
Accordingly, I believe it is important that our colleagues understand
what this bill seeks to accomplish as well as how it differs from
legislation affecting Indian country.
It is a little known fact that beginning in 1910 and since that time,
the Congress has passed and the President has signed into law over 160
Federal laws designed to address the conditions of Native Hawaiians.
Thus, Federal laws which authorize the provision of health care,
education, housing, and job training and employment services, as well
as programs to provide for the preservation of the Native Hawaiian
language, Native language immersion, Native cultural and grave
protections and repatriation of Native sacred objects have been in
place for decades.
The Native Hawaiian programs do not draw upon funding that is
appropriated for American Indians or Alaska Natives--there are separate
authorizations for programs that are administered by different Federal
agencies--not the Bureau of Indian Affairs or the Indian Health
Service, for instance--and the Native Hawaiian program funds are not
drawn from the Interior Appropriations Subcommittee account. Thus, they
have no impact on the funding that is provided for the other
indigenous, native people of the United States.
However, unlike the native people residing on the mainland, Native
Hawaiians have not been able to exercise their rights as Native people
to self-determination or self-governance because their government was
overthrown on January 17, 1893.
This bill would provide a process for the reorganization of the
Native Hawaiian government and the resumption of a political and legal
relationship between that government and the government of the United
States.
Because the Native Hawaiian government is not an Indian tribe, the
body of Federal Indian law that would otherwise customarily apply when
the United States extends Federal recognition to an Indian tribal group
does not apply.
Thus, the bill provides authority for a process of negotiations
amongst the United States, the State of Hawaii, and the reorganized
Native Hawaiian government to address such matters as the exercise of
civil and criminal jurisdiction by the respective governments, the
transfer of land and natural resources and other assets, and the
exercise of governmental authority over those lands, natural resources
and other assets.
Upon reaching agreement, the U.S. Congress and the legislature of the
State of Hawaii would have to enact legislation implementing the
agreements of the three governments, including amendments that will
necessarily have to be made to existing Federal law, such as the Hawaii
Admissions Act and the Hawaiian Homes Commission Act, and to State law,
including amendments to the Hawaii State Constitution, before any of
the new governmental relationships and authorities can take effect.
That is why concerns which are premised on the manner in which
Federal Indian law provides for the respective governmental authorities
of the State governments and Indian tribal governments simply do not
apply in Hawaii.
We have every confidence that consistent with the Federal policy for
over 35 years, the restoration of the rights to self-determination and
self-governance will enable the Native Hawaiian people, as the direct,
lineal descendants of the aboriginal, indigenous native people of what
has become our nation's fiftieth state, to take their rightful place in
the family of governments that makes up our constitutional system of
governance.
______
By Mr. WARNER (for himself, Mr. Webb, Mr. Grassley, Mr. Cornyn,
Mr. Thune, and Mr. Graham):
S. 315. A bill to establish a digital and wireless network technology
program, and for other purposes; to the Committee on Commerce, Science,
and Transportation.
Mr. WARNER. Mr. President, I rise today to reintroduce the Minority
Serving Institution Digital and Wireless Technology Opportunity Act.
This legislation, which was crafted by Senator Allen and I in years
past, will provide vital resources to address the technology gap that
exists at many Minority Serving Institutions, MSIs.
In the past, Senator Allen took the role of lead sponsor on this
important bill. With his leadership, this exact legislation has passed
twice unanimously. Unfortunately, the 109th Congress adjourned before
the House of Representatives considered the bill. Accordingly, today I
am privileged to serve as the lead sponsor of this legislation in the
110th Congress. I am pleased to have my Virginia colleague Senator Jim
Webb as an original cosponsor of this bill. I hope this important bill
will soon become law.
Over 60 percent of all jobs require information technology skills.
Jobs in the information technology field pay significantly higher
salaries than jobs in non-information technology fields. At the same
time, many of our Minority Serving Institutions lack the capital to
offer assistance to their students to bridge the ``Digital Divide''
between students who are able to develop the skills necessary to
succeed in
[[Page S679]]
a technology based economy and those who are not.
This legislation will establish a grant program for these
institutions of higher education to bring increased access to
computers, technology, and the Internet to their student populations.
Specifically, this legislation authorizes $250 million in Federal
grants for Minority Serving Institutions to acquire equipment,
instrumentation, networking capability, hardware and software, digital
network technology and wireless technology and infrastructure to
develop and provide educational services. In addition, the grants could
be used for such activities as campus wiring, equipment upgrades, and
technology training. Finally, Minority Serving Institutions could use
these funds to offer their students universal access to campus
networks, increase connectivity rates, or make infrastructure
improvements.
I am proud to say that Virginia is home to five Historically Black
Colleges and Universities, HBCUs--Norfolk State University, St. Paul's
College, Virginia Union University, Hampton University, and Virginia
State University--that are eligible for these technology grants. There
are over 200 Hispanic Serving Institutions, over 100 Historically Black
Colleges and Universities and over 30 Tribal Colleges throughout the
United States.
Again, in 2005, this bill passed in the Senate by unanimous consent.
In 2003, this bill passed in the Senate with a roll call vote of 97-0.
I am pleased to support this legislation, as I have done in the past,
and I look forward to strengthening the technology provided to students
at Minority Serving Institutions.
______
By Mr. KOHL (for himself, Mr. Grassley, Mr. Leahy, Mr. Schumer,
and Mr. Feingold):
S. 316. A bill to prohibit brand name drug companies from
compensating generic drug companies to delay the entry of a generic
drug into the market; to the Committee on the Judiciary.
Mr. KOHL. Mr. President, I rise today to introduce the Preserve
Access to Affordable Generics Act. This legislation will stop one of
the most egregious tactics used by the brand-name pharmaceutical
industry to keep generic competitors off the market, leaving consumers
with unnecessary high drug prices.
The way it is done is simple--a drug company that holds a patent on a
blockbuster brand-name drug, pays a generic drug maker off to delay the
sale of a competing generic product that might dip into their profits.
The brand name company profits so much by delaying competition that it
can easily afford to pay off the generic company, leaving consumers the
big losers who continue to pay unnecessarily high drug prices.
Last year, the Supreme Court refused to consider an appeal by the
Federal Trade Commission to reinstate anti-trust charges against a
brand-name drugs maker. Since the recent court decisions allowing these
backroom deals, there has been a sharp rise in the number of
settlements in which brand-name companies pay off generic competitors
to keep their cheaper drugs off the market. In a report issued last
year, the FTC found that more than two-thirds of the 10 settlement
agreements made in 2006 included a pay-off from the brand in exchange
for a promise by the generic company to delay entry into the market.
The decision by the Supreme Court is a blow to consumers who save
billions of dollars on generics every year. When brand, name drugs lose
patent rights, this opens the door for consumers, employers, third-
party payers, and other purchasers to save billions--63 percent on
average--by using generic versions of these drugs. A recent study
released earlier this year by Pharmaceutical Care Management
Association, showed that health plans and consumers could save $26.4
billion over the next 5 years by using the generic versions of 14
popular drugs that are scheduled to lose their patent protections
before 2010.
Last year, I was successful in including an additional $10 million in
the fiscal year 07 Agriculture Appropriations bill for the Food and
Drug Administration's Office of Generic Drugs, an effort to help reduce
the growing backlog of generic drug applications. The FDA Office of
Generic Drugs has reported a backlog of more than 800 generic drug
applications with more applications for new generics being received
than ever before.
But even approval by the FDA doesn't always guarantee that consumers
will have access to these affordable drugs. Brand-name pharmaceutical
manufacturers have learned to circumvent the Drug Price Competition and
Patent Term Restoration Act, commonly referred to as Hatch-Waxman,
using litigation and other means to extend the life of patents and keep
generics from entering the market Of the six approved first generics
for LA popular brand-name drugs taken by seniors over the last year,
only two have actually reached the market, while the others are being
kept of the shelves by patent disputes.
We cannot profess to care about the high cost of prescription drugs
while turning a blind eye to anticompetitive backroom deals between
brand and generic drug companies. It's time to stop these drug company
pay-offs that only serve the companies involved and deny consumers to
affordable generic drugs. I urge my colleagues to join me in this
effort.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 316
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 ``Preserve Access to
Affordable Generics Act''.
SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES.
(a) Findings.--The Congress finds that--
(1) prescription drugs make up 11 percent of the national
health care spending but are 1 of the largest and fastest
growing health care expenditures;
(2) 56 percent of all prescriptions dispensed in the United
States are generic drugs, yet they account for only 13percent
of all expenditures;
(3) generic drugs, on average, cost 63 percent less than
their brand-name counterparts;
(4) consumers and the health care system would benefit from
free and open competition in the pharmaceutical market and
the removal of obstacles to the introduction of generic
drugs;
(5) full and free competition in the pharmaceutical
industry, and the full enforcement of antitrust law to
prevent anticompetitive practices in this industry, will lead
to lower prices, greater innovation, and inure to the general
benefit of consumers.
(6) the Federal Trade Commission has determined that some
brand name pharmaceutical manufacturers collude with generic
drug manufacturers to delay the marketing of competing, low-
cost, generic drugs;
(7) collusion by the brand name pharmaceutical
manufacturers is contrary to free competition, to the
interests of consumers, and to the principles underlying
antitrust law;
(8) in 2005, 2 appellate court decisions reversed the
Federal Trade Commission's long-standing position, and upheld
settlements that include pay-offs by brand name
pharmaceutical manufacturers to generic manufacturers
designed to keep generic competition off the market;
(9) in the 6 months following the March 2005 court
decisions, the Federal Trade Commission found there were
three settlement agreements in which the generic received
compensation and agreed to a restriction on its ability to
market the product;
(10) the FTC found that more than \2/3\ of the
approximately ten settlement agreements made in 2006 include
a pay-off from the brand in exchange for a promise by the
generic company to delay entry into the market; and
(11) settlements which include a payment from a brand name
manufacturer to a generic manufacturer to delay entry by
generic drugs are anti-competitive and contrary to the
interests of consumers.
(b) Purposes.--The purposes of this Act are--
(1) to enhance competition in the pharmaceutical market by
prohibiting anticompetitive agreements and collusion between
brand name and generic drug manufacturers intended to keep
generic drugs off the market;
(2) to support the purpose and intent of antitrust law by
prohibiting anticompetitive agreements and collusion in the
pharmaceutical industry; and
(3) to clarify the law to prohibit payments from brand name
to generic drug manufacturers with the purpose to prevent or
delay the entry of competition from generic drugs.
SEC. 3. UNLAWFUL COMPENSATION FOR DELAY.
The Clayton Act (15 U.S.C. 12 et seq.) is amended--
(1) by redesignating section 25 as section 29; and
(2) by inserting after section 27 the following:
[[Page S680]]
``SEC. 28. UNLAWFUL INTERFERENCE WITH GENERIC MARKETING.
``(a) It shall be unlawful under this Act for any person,
in connection with the sale of a drug product, to directly or
indirectly be a party to any agreement resolving or settling
a patent infringement claim which--
``(1) an ANDA filer receives anything of value; and
``(2) the ANDA filer agrees not to research, develop,
manufacture, market, or sell the ANDA product for any period
of time.
``(b) Nothing in this section shall prohibit a resolution
or settlement of patent infringement claim in which the value
paid by the NDA holder to the ANDA filer as a part of the
resolution or settlement of the patent infringement claim
includes no more than the right to market the ANDA product
prior to the expiration of the patent that is the basis for
the patent infringement claim.
``(c) In this section:
``(1) The term `agreement' means anything that would
constitute an agreement under section 1 of the Sherman Act
(15 U.S.C. 1) or section 5 of the Federal Trade Commission
Act (15 U.S.C. 45).
``(2) The term `agreement resolving or settling a patent
infringement claim' includes, any agreement that is
contingent upon, provides a contingent condition for, or is
otherwise related to the resolution or settlement of the
claim.
``(3) The term `ANDA' means an abbreviated new drug
application, as defined under section 505(j) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)).
``(4) The term `ANDA filer' means a party who has filed an
ANDA with the Federal Drug Administration.
``(5) The term `ANDA product' means the product to be
manufactured under the ANDA that is the subject of the patent
infringement claim.
``(6) The term `drug product' means a finished dosage form
(e.g., tablet, capsule, or solution) that contains a drug
substance, generally, but not necessarily, in association
with 1 or more other ingredients, as defined in section
314.3(b) of title 21, Code of Federal Regulations.
``(7) The term `NDA' means a new drug application, as
defined under section 505(b) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 355(b)).
``(8) The term `NDA holder' means--
``(A) the party that received FDA approval to market a drug
product pursuant to an NDA;
``(B) a party owning or controlling enforcement of the
patent listed in the Approved Drug Products With Therapeutic
Equivalence Evaluations (commonly known as the `FDA Orange
Book') in connection with the NDA; or
``(C) the predecessors, subsidiaries, divisions, groups,
and affiliates controlled by, controlling, or under common
control with any of the entities described in subclauses (i)
and (ii) (such control to be presumed by direct or indirect
share ownership of 50 percent or greater), as well as the
licensees, licensors, successors, and assigns of each of the
entities.
``(9) The term `patent infringement' means infringement of
any patent or of any filed patent application, extension,
reissue, renewal, division, continuation, continuation in
part, reexamination, patent term restoration, patents of
addition and extensions thereof.
``(10) The term `patent infringement claim' means any
allegation made to an ANDA filer, whether or not included in
a complaint filed with a court of law, that its ANDA or ANDA
product may infringe any patent held by, or exclusively
licensed to, the NDA holder of the drug product.''.
SEC. 4. NOTICE AND CERTIFICATION OF AGREEMENTS.
(a) Notice of All Agreements.--Section 1112(c)(2) of the
Medicare Prescription Drug, Improvement, and Modernization
Act of 2003 (21 U.S.C. 3155 note) is amended by--
(1) striking ``the Commission the'' and inserting ``the
Commission (1) the''; and
(2) inserting before the period at the end the following:
``; and (2) a description of the subject matter of any other
agreement the parties enter into within 30 days of an
entering into an agreement covered by subsection (a) or
(b)''.
(b) Certification of Agreements.--Section 1112 of such Act
is amended by adding at the end the following:
``(d) Certification.--The Chief Executive Officer or the
company official responsible for negotiating any agreement
required to be filed under subsection (a), (b), or (c) shall
execute and file with the Assistant Attorney General and the
Commission a certification as follows: `I declare under
penalty of perjury that the following is true and correct:
The materials filed with the Federal Trade Commission and the
Department of Justice under section 1112 of subtitle B of
title XI of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003, with respect to the agreement
referenced in this certification: (1) represent the complete,
final, and exclusive agreement between the parties; (2)
include any ancillary agreements that are contingent upon,
provide a contingent condition for, or are otherwise related
to, the referenced agreement; and (3) include written
descriptions of any oral agreements, representations,
commitments, or promises between the parties that are
responsive to subsection (a) or (b) of such section 1112 and
have not been reduced to writing.'.''.
SEC. 5. FORFEITURE OF 180-DAY EXCLUSIVITY PERIOD.
Section 505 of the Federal Food, Drug and Cosmetic Act (21
U.S.C. 355(j)(5)(D)(i)(V)) is amended by inserting ``section
28 of the Clayton Act or'' after ``that the agreement has
violated''.
SEC. 6. STUDY BY THE FEDERAL TRADE COMMISSION.
(a) Requirement for a Study.--Not later than 180 days after
the date of enactment of this Act and pursuant to its
authority under section 6(a) of the Federal Trade Commission
Act (15 U.S.C. 46(a)) and its jurisdiction to prevent unfair
methods of competition, the Federal Trade Commission shall
conduct a study regarding--
(1) the prevalence of agreements in patent infringement
suits of the type described in section 28 of the Clayton Act,
as added by this Act, during the last 5 years;
(2) the impact of such agreements on competition in the
pharmaceutical market; and
(3) the prevalence in the pharmaceutical industry of other
anticompetitive agreements among competitors or other
practices that are contrary to the antitrust laws, and the
impact of such agreements or practices on competition in the
pharmaceutical market during the last 5 years.
(b) Consultation.--In conducting the study required under
this section, the Federal Trade Commission shall consult with
the Antitrust Division of the Department of Justice regarding
the Justice Department's findings and investigations
regarding anticompetitive practices in the pharmaceutical
market, including criminal antitrust investigations completed
by the Justice Department with respect to practices or
conduct in the pharmaceutical market.
(c) Requirement for a Report.--Not later than 1 year after
the date of enactment of this Act, the Federal Trade
Commission shall submit a report to the Judiciary Committees
of Senate and House of Representatives, and to the Department
of Justice regarding the findings of the study conducted
under subsection (a). This report shall contain the Federal
Trade Commission's recommendation as to whether any amendment
to the antitrust laws should be enacted to correct any
substantial lessening of competition found during the study.
(d) Federal Agency Consideration.--Upon receipt of the
report required by subsection (c), the Attorney General or
the Chairman of the Federal Trade Commission, as appropriate,
shall consider whether any additional enforcement action is
required to restore competition or prevent a substantial
lessening of competition occurring as a result of the conduct
or practices that were the subject of the study conducted
under subsection (b).
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Federal
Trade Commission such sums as may be necessary to carry out
the provisions of this Act.
Mr. LEAHY. Mr. President, I am pleased to join Senators Kohl,
Feingold, Grassley and Schumer in introducing the Preserve Access to
Affordable Generics Act of 2007. This legislation is a continuation of
a longstanding, bipartisan effort to provide consumers with more
choices for medications at lower costs. Better access to affordable
prescription medication is of vital importance to seniors, families,
and consumers across the Nation who are struggling to keep up with the
ever increasing costs of health care.
This legislation builds on the Drug Competition Act, which I authored
in 2001 and which became law in 2003 in the Medicare Modernization Act.
Recently, two Federal courts undermined the intent of this law; the
legislation we introduce today will address that problem. The Preserve
Access to Affordable Generics Act will result in lower prescription
drug costs for all Americans by preventing a pernicious practice in
which brand-name pharmaceutical companies pay other drug companies not
to produce and market generic drugs--which can be 80 percent less
expensive than their brand-name counterparts--as part of private patent
settlement agreements.
The Hatch-Waxman Act was intended to facilitate the entry of lower-
cost generic drugs into the market, making medication more affordable,
while protecting patent rights to foster innovation. It created a
process, known as the Abbreviated New Drug Application, ANDA, to speed
approval of generics. Under ANDA, an applicant can receive expedited
approval from the FDA to market a generic product. An applicant using
ANDA may certify that the manufacturing of its new drug will either not
infringe on a previously patented drug on which it is based, or that
the existing patent is invalid. After certifying an ANDA, the generic
applicant must give notice to the patent-holder, at which point the
patent-holder has 45 days to file a patent infringement against the
applicant.
More times than not, disputes over an ANDA are resolved through
private settlements. Unfortunately, the
[[Page S681]]
underpinnings of these private settlements are becoming more and more
questionable; drug companies are abusing Hatch-Waxman provisions, and
using settlement opportunities to limit consumer choices and keep
consumer prices artificially high. The FTC had been policing these
deals to ensure they were not anticompetitive until two recent
appellate court decisions limited it's role.
Hatch-Waxman created a good framework for promoting innovation while
speeding the market entry of affordable drugs. The trend of
anticompetitive agreements between brand-name pharmaceutical companies
and generic companies to delay entry into the market is a troubling
abuse of that good law. Some drug firms have colluded to pad their
profits by forcing consumers to pay higher prices than they would pay
for lower-cost generics. Congress never intended for brand-name drug
companies to be able to grease the palms of generic companies by paying
them not to produce generic medicines.
Rarely do we have such a clear-cut opportunity as this to remove
obvious impediments that prevent the marketplace from working as it
should--to the benefit of consumers. Congress should seize this
opportunity and enact legislation that plainly makes anticompetitive
deals, such as those I have outlined, illegal.
The Preserve Access to Affordable Generics Act will accomplish this
goal. I look forward to working with my colleagues on both sides of the
aisle to pass this timely and needed legislation.
______
By Mrs. FEINSTEIN (for herself and Mr. Carper):
S. 317. A bill to amend the Clean Air Act to establish a program to
regulate the emission of greenhouse gases from electric utilities; to
the Committee on Environment and Public Works.
Mrs. FEINSTEIN. Mr. President, I am pleased to join with Senator
Carper to introduce the Electric Utility Cap and Trade Act.
Today, we are introducing the first of five bills to address the
number one environmental issue facing this planet--global warming.
This bill establishes a national cap and trade system over the
electricity sector. It will reduce emissions from this sector by 25
percent by 2020.
What distinguishes this bill is that it has the support of 6 major
energy companies.
Together, these companies operate in 42 States and produce
approximately 150,000 megawatts of energy. This is greater than 15
percent of the U.S. electricity market.
These companies include, first, Pacific Gas & Electric (PG&E)
Corporation, which is the parent of Pacific Gas and Electric Company.
PG&E is California's largest utility and serves approximately 1 in
every 20 Americans. PG&E Corporation currently owns approximately 6,500
megawatts of generation.
Second, Calpine, which operates in 20 States and Canada, generating
26,000 megawatts of energy.
Third, Florida Power & Light, which operates in 26 States, generating
more than 30,000 megawatts.
Fourth, Entergy, which operates in Arkansas, Louisiana, Mississippi,
and Texas, generating approximately 30,000 megawatts.
Fifth, Exelon, which operates in Illinois and Pennsylvania,
generating 38,000 megawatts of energy.
Sixth, Public Service Enterprise Group, which is the largest provider
of energy in New Jersey, generating approximately 15,000 megawatts.
These companies' support is greatly appreciated, and I think it
signals a new willingness in the energy industry to seriously tackle
global warming.
This bill is just the beginning of a major program. Over the next
weeks and months, we will also be introducing a cap and trade bill for
the industrial sector; a bill that increases fuel economy standards by
ten miles per gallon over the next ten years; a bill to promote bio-
diesel and E-85; and other low carbon fuels and an energy efficiency
bill modeled after California's program.
This is an ambitious agenda, but I believe it is the right way to go
if we are to slow global warming.
A great debate has raged in the halls of Congress, in academia, and
in the field over the past two decades.
At issue were three fundamental questions: First, is the earth
warming? Second, if so, is the warming caused by human activity? And
third, can it be stopped?
Over the past few years, a consensus has been forged. An overwhelming
body of evidence has been gathered. And, an inescapable conclusion has
been reached: The earth is warming. The warming is caused by human
activity, namely the combustion of fossil fuels.
It cannot be stopped, because carbon dioxide does not dissipate. It
stays in the atmosphere for 30, 40, or 50 years or more.
When we pick up the newspaper each day we see the results. We read
about ice sheets the size of small nations breaking off the ice shelves
in the Arctic and Antarctic. We read about polar bears committing acts
of cannibalism, something unknown in recent memory. We read about
species disappearing, seas rising, coral reefs dying, and glaciers
melting.
But, all this dire news does not mean we should throw up our hands
and do nothing. If we act now, and if we act with purpose, the most
serious consequences can be averted. Global warming can be contained to
1-2 degrees Fahrenheit.
But if we do not act, and temperatures spike by 5 degrees or more,
the world around us will change forever. There's no going back.
The question becomes what can we do? I've spent the last year trying
to answer this question. And the conclusion I've reached is that there
is no single answer, no silver bullet, no one thing to turn the tide.
But rather, we need many answers in many different areas.
And more importantly, we need people of common purpose, working
together, to find innovative solutions. And that's why we're here
today.
As I was searching for answers, I picked up the phone and called PG&E
Corporation's CEO, Peter Darbee. I said, ``Peter, would you help me out
on Global Warming legislation?''
To his immense credit, Peter went back, studied the issue, and said
``You're right. Something must be done.'' And he's been terrific. He's
helped at every step of the way.
It means so much to me that PG&E, Calpine, Florida Power and Light,
and all the companies that comprise the Clean Energy Group's Clean Air
Policy Initiative have endorsed the legislation we are introducing
today.
This is the most aggressive global warming bill that industry has
supported to date. And I want to thank the CEOs of these companies
today for their courage and leadership in taking this step.
Here's what the bill would do. The bill would establish a cap and
trade program for the electricity sector, which is the single largest
piece of the global warming puzzle, accounting for 33 percent of all
U.S. emissions.
First, the bill would a cap at 2006 levels in 2011--a 6 percent
reduction from anticipated levels of greenhouse gases from the electric
sector.
In 2015, it would ratchet the cap down to 2001 levels--a 16 percent
reduction from anticipated levels.
In 2016, the bill would reduce the cap further to 1 percent below
2001 levels. And, from 2017 to 2019 it would require additional annual
1 percent reductions.
By 2020, emissions would be reduced 25 percent below anticipated
levels.
And after that, emissions will be reduced even further--by an
additional 1.5 percent a year and potentially more, if the EPA, based
on scientific evidence, believes that more needs to be done to avert
the most dire consequences of global warming.
That's the cap.
The trade part of the bill gives companies flexibility to embrace new
technologies, encourage innovation, and promote green practices--not
just in this area, but across the economy.
As I said, this bill is only one part of the answer. One piece of the
puzzle.
Congress has a window of opportunity to act. If we act boldly and
quickly, then perhaps we can make a difference.
But if we resort to the feuding which has characterized past
Congresses, our world will be the poorer for it. I think there is but
one choice.
I urge my colleagues to join me in supporting this legislation and I
ask unanimous consent that the text of the legislation be printed in
the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
[[Page S682]]
S. 317
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Electric
Utility Cap and Trade Act of 2007''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--GLOBAL CLIMATE CHANGE
Sec. 101. Global climate change.
``TITLE VII--GLOBAL CLIMATE CHANGE
``Sec. 701. Definitions.
``Subtitle A--Stopping and Reversing Greenhouse Gas Emissions
``Sec. 711. Regulations; greenhouse gas tonnage limitation.
``Sec. 712. Scientific review of the safe climate level.
``Sec. 713. Required review of emission reductions needed to maintain
the safe climate level.
``Sec. 714. Distribution of allowances between auctions and
allocations; nature of allowances.
``Sec. 715. Auction of allowances.
``Sec. 716. Allocation of allowances.
``Sec. 717. Climate Action Trust Fund.
``Sec. 718. Early reduction credits.
``Sec. 719. Recognition and use of international credits.
``Sec. 720. Avoiding significant economic harm.
``Sec. 721. Use and transfer of credits.
``Sec. 722. Compliance and enforcement.
``Subtitle B--Offset Credits
``Sec. 731. Outreach initiative on revenue enhancement for agricultural
producers.
``Sec. 732. Offset measurement for agricultural, forestry, wetlands,
and other land use-related sequestration projects.
``Sec. 733. Categories of agricultural offset practices.
``Sec. 734. Offset credits from forest management, grazing management,
and wetlands management.
``Sec. 735. Offset credits from the avoided conversion of forested land
or wetland.
``Sec. 736. Offset credits from greenhouse gas emissions reduction
projects.
``Sec. 737. Borrowing at program start-up based on contracts to
purchase offset credits.
``Sec. 738. Review and correction of accounting for offset credits.
``Subtitle C--National Registry for Credits
``Sec. 741. Establishment and operation of national registry.
``Sec. 742. Monitoring and reporting.
TITLE II--CLIMATE CHANGE RESEARCH INITIATIVES
Sec. 201. Research grants through National Science Foundation.
Sec. 202. Abrupt climate change research.
Sec. 203. Development of new measurement technologies.
Sec. 204. Technology development and diffusion.
Sec. 205. Public land.
Sec. 206. Sea level rise from polar ice sheet melting.
TITLE I--GLOBAL CLIMATE CHANGE
SEC. 101. GLOBAL CLIMATE CHANGE.
(a) In General.--The Clean Air Act (42 U.S.C. 7401 et seq.)
is amended by adding at the end the following:
``TITLE VII--GLOBAL CLIMATE CHANGE
``SEC. 701. DEFINITIONS.
``In this title:
``(1) Affected unit.--
``(A) In general.--The term `affected unit' means an
electric generating facility that--
``(i) has a nameplate capacity greater than 25 megawatts;
``(ii) combusts greenhouse gas-emitting fuels; and
``(iii) generates electricity for sale.
``(B) Inclusions.--The term `affected unit' includes--
``(i) a cogeneration facility; and
``(ii) a facility owned or operated by any instrumentality
of--
``(I) the Federal Government; or
``(II) any State, local, or tribal government.
``(2) Afforestation.--The term `afforestation' means the
conversion to a forested condition of land that has been in a
nonforested condition for at least 15 years.
``(3) Allocation.--The term `allocation', with respect to
an allowance, means the issuance of an allowance directly to
covered units, at no cost, under this title.
``(4) Allowance.--The term `allowance' means an
authorization under this title to emit 1 metric ton of carbon
dioxide (or a carbon dioxide equivalent), as allocated to a
covered unit pursuant to section 716.
``(5) Carbon dioxide equivalent.--The term `carbon dioxide
equivalent' means, with respect to a greenhouse gas, the
quantity of the greenhouse gas that makes the same
contribution to global warming as 1 metric ton of carbon
dioxide, as determined by the Administrator.
``(6) Cogeneration facility.--The term `cogeneration
facility' means a facility that--
``(A) cogenerates steam and electricity; and
``(B) supplies, on a net annual basis, to the electric
power grid--
``(i) more than \1/3\ of the potential electric output
capacity of the facility; and
``(ii) more than 25 megawatts of electrical output from the
facility.
``(7) Covered unit.--The term `covered unit' means--
``(A) an affected unit;
``(B) a nuclear generating unit (including a facility owned
or operated by any instrumentality of the Federal Government
or of any State, local, or tribal government), but only to
the extent of incremental nuclear generation of the unit; and
``(C) a renewable energy unit (including a facility owned
or operated by any instrumentality of the Federal Government
or of any State, local, or tribal government).
``(8) Credit.--
``(A) In general.--The term `credit' means an authorization
under this title to emit greenhouse gases equivalent to 1
metric ton of carbon dioxide.
``(B) Inclusions.--The term `credit' includes--
``(i) an allowance;
``(ii) an offset credit;
``(iii) an early reduction credit; or
``(iv) an international credit.
``(9) Early reduction credit.--The term `early reduction
credit' means a credit issued under section 718 for a
reduction in the quantity of emissions or an increase in
sequestration equivalent to 1 metric ton of carbon dioxide.
``(10) Fund.--The term `Fund' means the Climate Action
Trust Fund established by section 717(a)(1).
``(11) Greenhouse gas.--The term `greenhouse gas' means--
``(A) carbon dioxide;
``(B) methane;
``(C) nitrous oxide;
``(D) hydrofluorocarbons;
``(E) perfluorocarbons; and
``(F) sulfur hexafluoride.
``(12) Greenhouse gas authorized account representative.--
The term `greenhouse gas authorized account representative'
means, for a covered unit, an individual who is authorized by
the owner and operator of the covered unit to represent and
legally bind the owner and operator in matters pertaining to
this title.
``(13) Greenhouse gas-emitting fuel.--
``(A) In general.--The term `greenhouse gas-emitting fuel'
means any fuel that produces a greenhouse gas as a combustion
product.
``(B) Inclusions.--The term `greenhouse gas-emitting fuel'
includes--
``(i) fossil fuels;
``(ii) municipal waste;
``(iii) industrial waste;
``(iv) agricultural waste; and
``(v) biomass that is not grown using sustainable
techniques.
``(C) Exclusion.--The term `greenhouse gas-emitting fuel'
does not include biomass that is grown using sustainable
techniques.
``(14) Incremental nuclear generation.--The term
`incremental nuclear generation' means, as determined by the
Administrator and measured in megawatt hours, the difference
between--
``(A) the quantity of electricity generated by a nuclear
generating unit in a calendar year; and
``(B) the quantity of electricity generated by the nuclear
generating unit in calendar year 1990.
``(15) Industry sector.--The term `industry sector' means
any sector of the economy of a country (including, where
applicable, the forestry sector) that is responsible for
significant quantities of greenhouse gas emissions.
``(16) International credit.--The term `international
credit' means a credit recognized for a reduction in the
quantity of emissions or an increase in sequestration
equivalent to 1 metric ton of carbon dioxide that--
``(A) arises from activities outside the United States; and
``(B) is authorized for use under section 719.
``(17) Invasive species.--The term `invasive species' means
a species (including pathogens, seeds, spores, or any other
biological material relating to a species) the introduction
of which causes or is likely to cause economic or
environmental harm or harm to human health.
``(18) Land-grant colleges and universities.--The term
`land-grant colleges and universities' has the meaning given
the term in section 1404 of the National Agricultural
Research, Extension, and Teaching Policy Act of 1977 (7
U.S.C. 3103).
``(19) Leakage.--The term `leakage' means an increase in
greenhouse gas emissions or a decrease in sequestration of
greenhouse gases that is--
``(A) outside the area of a project; and
``(B) attributable to the project.
``(20) Native plant.--The term `native plant' means an
indigenous, terrestrial, or aquatic plant species that
evolved naturally in an ecosystem.
``(21) New affected unit.--The term `new affected unit'
means an affected unit that has operated for not more than 3
years.
``(22) New covered unit.--The term `new covered unit' means
a covered unit that has operated for not more than 3 years.
``(23) Noxious weed.--The term `noxious weed' means a plant
species that is--
``(A) characterized by being--
``(i) aggressive and difficult to manage;
[[Page S683]]
``(ii) poisonous, toxic, parasitic, or a carrier or host of
insects or disease representing a serious threat to native
species or crops; or
``(iii) nonnative to, new to, or not common to, the United
States (or a region of the United States); or
``(B) otherwise designated as a noxious weed by the
Secretary of Agriculture or an appropriate State official.
``(24) Nuclear generating unit.--The term `nuclear
generating unit' means an electric generating facility that
uses nuclear energy to generate electricity for sale.
``(25) Offset credit.--The term `offset credit' means a
credit issued for an offset project pursuant to subtitle B
certifying a reduction in the quantity of emissions or an
increase in sequestration equivalent to 1 metric ton of
carbon dioxide.
``(26) Offset practice.--The term `offset practice' means a
practice that--
``(A) reduces greenhouse gas emissions or increases
sequestration other than by reducing the combustion of
greenhouse gas-emitting fuel at an affected unit; and
``(B) may be eligible to create an offset credit under this
title.
``(27) Offset project.--The term `offset project' means a
project that reduces greenhouse gas emissions or increases
sequestration of carbon dioxide or a carbon dioxide
equivalent by a method other than reduction of combustion of
greenhouse gas-emitting fuel at an affected unit.
``(28) Panel.--The term `Panel' means the Climate Science
Advisory Panel established by section 712(b)(1).
``(29) Plant material.--The term `plant material' means--
``(A) a seed;
``(B) a part of a plant; or
``(C) a whole plant.
``(30) Renewable energy.--The term `renewable energy' means
electricity generated from--
``(A) wind;
``(B) organic waste (excluding incinerated municipal solid
waste);
``(C) biomass (including anaerobic digestion from farm
systems and landfill gas recovery); or
``(D) a hydroelectric, geothermal, solar thermal,
photovoltaic, tidal, wave, or other nonfossil fuel,
nonnuclear source.
``(31) Renewable energy unit.--The term `renewable energy
unit' means an electric generating unit that exclusively uses
renewable energy to generate electricity for sale.
``(32) Restoration.--
``(A) In general.--The term `restoration' means assisting
the recovery of an ecosystem that has been degraded, damaged,
or destroyed.
``(B) Inclusion.--The term `restoration' includes the
reestablishment in an ecosystem of preexisting biotic
integrity with respect to species composition and community
structure.
``(33) Sequestration.--The term `sequestration' means the
separation, isolation, or removal of greenhouse gases from
the atmosphere.
``(34) Sequestration flow.--The term `sequestration flow'
means the uptake of greenhouse gases each year from
sequestration practices, as calculated under section 732.
``(35) Sustainable technique.--The term `sustainable
technique' means an agricultural, forestry, or animal
husbandry technique that does not result in--
``(A) a long-term net depletion of natural resources; or
``(B) a net emission of greenhouse gas during the lifecycle
of biomass production, harvest, processing, and consumption.
``(36) UNFCCC.--The term `UNFCCC' means the United Nations
Framework Convention on Climate Change, done at New York on
May 9, 1992.
``Subtitle A--Stopping and Reversing Greenhouse Gas Emissions
``SEC. 711. REGULATIONS; GREENHOUSE GAS TONNAGE LIMITATION.
``(a) Regulations.--Not later than 18 months after the date
of enactment of this title, the Administrator shall
promulgate regulations to establish an allowance trading
program to address emissions of greenhouse gases from
affected units in the United States.
``(b) Greenhouse Gas Tonnage Limitation.--Beginning in
calendar year 2011, the annual tonnage limitation for the
aggregate quantity of emissions of greenhouse gases from
affected units in the United States shall be equal to--
``(1) for each of calendar years 2011 through 2014, the
aggregate quantity of emissions emitted from affected units
in calendar year 2006, as determined by the Administrator
based on certified and quality-assured continuous emissions
monitoring data for greenhouse gases, or data that the
Administrator determines to be of similar reliability for
affected units without continuous monitoring systems,
reported to the Administrator by affected units in accordance
with this subtitle;
``(2) for calendar year 2015, the aggregate quantity of
emissions emitted from affected units in calendar year 2001,
as determined by the Administrator based on certified and
quality-assured continuous emissions monitoring data for
greenhouse gases, or data that the Administrator determines
to be of similar reliability for affected units without
continuous monitoring systems, reported to the Administrator
by affected units in accordance with this subtitle;
``(3) for each of calendar years 2016 through 2019, the
aggregate quantity of emissions emitted from affected units
during the calendar year that is 1 percent less than the
aggregate quantity of emissions from affected units allowed
pursuant to this section during the preceding calendar year;
and
``(4) for calendar year 2020 and each calendar year
thereafter, the aggregate quantity of emissions emitted
during the calendar year that is 1.5 percent less than the
aggregate quantity of emissions from affected units allowed
pursuant to this section during the preceding calendar year,
except as modified by the Administrator pursuant to section
713.
``SEC. 712. SCIENTIFIC REVIEW OF THE SAFE CLIMATE LEVEL.
``(a) Definition and Objective of Maintaining the Safe
Climate Level.--
``(1) Finding.--Congress finds that ratification by the
Senate in 1992 of the UNFCCC, commitments which were affirmed
by the President in 2002, established for the United States
an objective of `stabilization of greenhouse gas
concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate
system'.
``(2) Definition of safe climate level.--In this section,
the term `safe climate level' means the climate level
referred to in paragraph (1).
``(b) Climate Science Advisory Panel.--
``(1) Establishment.--Not later than 270 days after the
date of enactment of this title, the Administrator shall
establish an advisory panel, to be known as the `Climate
Science Advisory Panel'.
``(2) Duties.--The Panel shall--
``(A) inform Congress and the Administrator of the state of
climate science;
``(B) not later than December 31, 2011, and not less
frequently than every 4 years thereafter, issue a report that
is endorsed by at least 7 members of the Panel that describes
recommendations for the Administrator, based on the best
available information in the fields of climate science,
including reports from the Intergovernmental Panel on Climate
Change, relating to--
``(i) the specific concentration, in parts per million, of
all greenhouse gases in carbon dioxide equivalents at or
below which constitutes the safe climate level; and
``(ii) the projected timeframe for achieving the safe
climate level.
``(3) Composition.--
``(A) In general.--The Panel shall be composed of 8 climate
scientists and 3 former Federal officials, as described in
subparagraphs (B) through (D).
``(B) Climate scientists.--Not later than 270 days after
the date of enactment of this title, the President of the
National Academy of Sciences shall appoint to serve on the
Panel 8 climate scientists from among individuals who--
``(i) have earned doctorate degrees;
``(ii) have performed research in physical, biological, or
social sciences, mathematics, economics, or related fields,
with a particular focus on or link to 1 or more aspects of
climate science;
``(iii) have records of peer-reviewed publications that
include--
``(I) publications in main-stream, high-quality scientific
journals (such as journals associated with respected
scientific societies or those with a high impact factor, as
determined by the Institute for Scientific Information);
``(II) recent publications relating to earth systems, and
particularly relating to the climate system; and
``(III) a high publication rate, typically at least 2 or 3
papers per year; and
``(iv) have participated in high-level committees, such as
those formed by the National Academy of Sciences or by
leading scientific societies.
``(C) Restriction.--A majority of climate scientists
appointed to the Panel under subparagraph (B) shall be
participating, as of the date of appointment to the Panel, in
active research in the physical or biological sciences, with
a particular focus on or link to 1 or more aspects of climate
science.
``(D) Federal officials.--
``(i) In general.--Subject to clause (ii), the
Administrator shall appoint as members of the Panel, the
longest-serving former Administrators of the Environmental
Protection Agency for each of the 3 most recent former
Presidents.
``(ii) Timing.--The 3 most recent former Presidents
described in clause (i) shall be identified as of the
deadline for appointments to the Panel under subparagraph (B)
or (E)(ii), whichever is applicable.
``(iii) Substitutes.--If a former Administrator described
in clause (i) declines appointment, or is unable to serve, as
a member of the Panel, the Administrator shall appoint in
place of the former Administrator--
``(I) the longest-serving former Administrator for the
applicable President who agrees to serve; or
``(II) if no individual described in subclause (I) accepts
appointment as a member of the Panel, the longest-serving
Assistant Administrator for Air and Radiation for the
applicable President who agrees to serve.
``(E) Terms of service and vacancies.--
``(i) Terms.--The initial term of a member of the Panel
shall be--
``(I) to the maximum extent practicable, the period covered
by, and extending through the date of issuance of, each
report under paragraph (2)(B); but
``(II) not longer than 4 years.
[[Page S684]]
``(ii) Subsequent panels and reports.--On the issuance of
each report under paragraph (2)(B)--
``(I) the Panel that submitted the report shall terminate;
and
``(II)(aa) pursuant to subparagraphs (B) and (C), the
President of the National Academy of Sciences shall appoint
climate scientists (including at least 3 climate scientists
who served as members of the preceding Panel) to serve as
members of a new Panel by not later than 15 months after the
deadline for issuance of the report under paragraph (2)(B);
and
``(bb) pursuant to subparagraph (D), the Administrator
shall appoint 3 Federal officials as members of the new Panel
by the deadline described in item (aa).
``(iii) Vacancies.--Vacancies in the membership of the
Panel--
``(I) shall not affect the power of the remaining members
to execute the functions of the Panel; and
``(II) shall be filled in the same manner in which the
original appointment was made.
``(F) Chairperson and vice chairperson.--The Panel shall
elect a Chairperson and Vice Chairperson as soon as
practicable.
``(G) Compensation of members.--A member of the Panel shall
be compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the
Executive Schedule under section 5315 of title 5, United
States Code, for each day (including travel time) during
which the member is engaged in the performance of the duties
of the Panel.
``(H) Travel expenses.--A member of the Panel shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for an employee of an agency
under subchapter I of chapter 57 of title 5, United States
Code, while away from the home or regular place of business
of the member in the performance of the duties of the Panel.
``(4) Staff.--
``(A) In general.--The Chairperson of the Panel may,
without regard to the civil service laws (including
regulations), appoint and terminate an executive director and
such other additional personnel as are necessary to enable
the Panel to perform the duties of the Panel.
``(B) Confirmation of executive director.--The employment
of an executive director shall be subject to confirmation by
the Panel.
``(C) Compensation.--
``(i) In general.--Except as provided in clause (ii), the
Chairperson of the Panel may fix the compensation of the
executive director and other personnel without regard to the
provisions of chapter 51 and subchapter III of chapter 53 of
title 5, United States Code, relating to classification of
positions and General Schedule pay rates.
``(ii) Exception.--The rate of pay for the executive
director and other personnel shall not exceed the rate
payable for level V of the Executive Schedule under section
5316 of title 5, United States Code.
``(D) Detail of federal government employees.--
``(i) In general.--An employee of the Federal Government
may be detailed to the staff of the Panel without
reimbursement.
``(ii) Treatment of detailees.--The detail of the employee
shall be without interruption or loss of civil service status
or privilege.
``(E) Procurement of temporary and intermittent services.--
The Chairperson or executive director of the Panel may
procure temporary and intermittent services in accordance
with section 3109(b) of title 5, United States Code, at rates
for individuals that do not exceed the daily equivalent of
the annual rate of basic pay prescribed for level V of the
Executive Schedule under section 5316 of that title.
``(5) Hearings.--The Panel may hold such hearings, meet and
act at such times and places, take such testimony, and
receive such evidence as the Panel considers advisable to
carry out this section.
``(6) Information from federal agencies.--
``(A) In general.--The Panel may secure directly from a
Federal agency such information as the Panel considers
necessary to carry out this section.
``(B) Provision of information.--On request of the
Chairperson of the Panel, the head of the agency shall
provide the information to the Panel.
``(7) Postal services.--The Panel may use the United States
mail in the same manner and under the same conditions as
other agencies of the Federal Government.
``SEC. 713. REQUIRED REVIEW OF EMISSION REDUCTIONS NEEDED TO
MAINTAIN THE SAFE CLIMATE LEVEL.
``(a) Review and Determination Regarding Reduction Rate.--
Not later than December 31, 2015, the Administrator, after
providing public notice and opportunity to comment, shall
promulgate a final rule pursuant to which the Administrator
shall review the reduction rate for greenhouse gas emissions
required under section 711(b)(4) and determine--
``(1) whether to--
``(A) accept the recommendations of the Panel under section
712(b)(2)(B) regarding the safe climate level and the
timeframe for achieving the safe climate level; or
``(B) establish a different safe climate level or
timeframe, together with a detailed explanation of the
justification of the Administrator for rejection of the
recommendations of the Panel; and
``(2) whether, in order to achieve the safe climate level
within the timeframe described in paragraph (1), the
reduction rate under section 711(b)(4) is most accurately
characterized as requiring--
``(A) the appropriate level of emission reductions;
``(B) lesser emission reductions than are necessary; or
``(C) greater emission reductions than are necessary.
``(b) Modification of Reduction Rate.--
``(1) In general.--If the Administrator makes a
determination described in subparagraph (B) or (C) of
subsection (a)(2), the final rule promulgated pursuant to
subsection (a) shall establish a required level of emissions
reductions for each calendar year, beginning with calendar
year 2020, based on the considerations described in paragraph
(2).
``(2) Considerations.--
``(A) Primary consideration.--In establishing the required
level of emission reductions pursuant to paragraph (1), the
Administrator shall take into consideration primarily the
emission reductions necessary to stabilize atmospheric
greenhouse gas concentrations at the safe climate level
within the timeframe specified under section 712(b)(2)(B).
``(B) Secondary considerations.--In establishing the
required level of emission reductions pursuant to paragraph
(1), in addition to the primary consideration described in
paragraph (1), the Administrator shall take into
consideration--
``(i) technological capability to reduce greenhouse gas
emissions;
``(ii) the progress that foreign countries have made toward
reducing their greenhouse gas emissions;
``(iii) the economic impacts within the United States of
implementing this subtitle, including impacts on the major
emitting sectors; and
``(iv) the economic impacts within the United States of
inadequate action.
``(c) Enforcement Provision.--
``(1) In general.--If the Administrator fails to meet a
deadline for promulgation of any regulation under subsection
(a), the Administrator shall withhold from allocation to
covered units that would otherwise be entitled to an
allocation of allowances under this subtitle a total of 10
percent of the allowances for each covered unit for each year
after the deadline until the Administrator promulgates the
applicable regulation.
``(2) Return of allowances.--On promulgation of a delayed
regulation described in paragraph (1), the Administrator
shall distribute any allowances withheld under that
paragraph--
``(A) among the covered units from which the allowances
were withheld; and
``(B) in accordance with the applicable formula under
section 716.
``(d) Subsequent Rulemakings.--
``(1) In general.--Not later than December 31, 2019, and
every 4 years thereafter, the Administrator shall promulgate
a new final rule described in subsection (a) in accordance
with this section.
``(2) Effective date.--If a new final rule promulgated
pursuant to paragraph (1) changes a level of emission
reductions required under the preceding final rule, the
effective date of the new final rule shall be January 1 of
the calendar year that is 5 years after the deadline for
promulgation of the new final rule under paragraph (1).
``SEC. 714. DISTRIBUTION OF ALLOWANCES BETWEEN AUCTIONS AND
ALLOCATIONS; NATURE OF ALLOWANCES.
``(a) Distribution of Allowances Between Auctions and
Allocations.--
``(1) In general.--For each calendar year, the total
quantity of allowances to be auctioned and allocated under
this subtitle shall be equal to the annual tonnage limitation
for emissions of greenhouse gases from affected units
specified in section 711 for the calendar year.
``(2) Distribution.--The proportion of allowances to be
auctioned pursuant to section 715 and allocated pursuant to
section 716 for each calendar year beginning in calendar year
2011 shall be as follows:
``Percentages of Allowances to be Auctioned and Allocated
------------------------------------------------------------------------
Percentage to be Percentage to be
Calendar Year Auctioned Allocated
------------------------------------------------------------------------
2011.............................. 15 85
2012.............................. 18 82
2013.............................. 21 79
2014.............................. 24 76
2015.............................. 27 73
2016.............................. 30 70
2017.............................. 33 67
[[Page S685]]
2018.............................. 36 64
2019.............................. 39 61
2020.............................. 42 58
2021.............................. 45 55
2022.............................. 48 52
2023.............................. 51 49
2024.............................. 54 46
2025.............................. 57 43
2026.............................. 60 40
2027.............................. 63 37
2028.............................. 66 34
2029.............................. 69 41
2030.............................. 72 28
2031.............................. 75 25
2032.............................. 80 20
2033.............................. 85 15
2034.............................. 90 10
2035.............................. 95 5
2036 and thereafter............... 100 0
------------------------------------------------------------------------
``(b) Nature of Allowances.--An allowance--
``(1) shall not be considered to be a property right; and
``(2) may be terminated or limited by the Administrator.
``(c) No Judicial Review.--An auction or allocation of an
allowance by the Administrator shall not be subject to
judicial review.
``SEC. 715. AUCTION OF ALLOWANCES.
``(a) In General.--Not later than 2 years after the date of
enactment of this title, the Administrator shall promulgate
regulations establishing a procedure for the auction of the
quantity of allowances specified in section 714(a) for each
calendar year.
``(b) Deposit of Proceeds.--The Administrator shall deposit
all proceeds from auctions conducted under this section in
the Fund for use in accordance with section 717.
``SEC. 716. ALLOCATION OF ALLOWANCES.
``(a) Allocation to New Covered Units.--
``(1) Establishment.--For each calendar year, the
Administrator, in consultation with the Secretary of Energy,
shall, based on projections of electricity output for new
covered units, promulgate regulations establishing--
``(A) a reserve of allowances to be allocated among new
covered units for the calendar year; and
``(B) the methodology for allocating those allowances among
new covered units.
``(2) Limitation.--The number of allowances allocated under
paragraph (1) during a calendar year shall be not more than 3
percent of the total number of allowances allocated among
covered units for the calendar year.
``(3) Unused allowances.--For each calendar year, the
Administrator shall reallocate to each covered unit any
unused allowances from the new unit reserve established under
paragraph (1) in the proportion that--
``(A) the number of allowances allocated to each covered
unit for the calendar year; bears to
``(B) the number of allowances allocated to all covered
units for the calendar year.
``(b) Allocation to Covered Units That Are Not New Covered
Units.--
``(1) Timing of allocations.--Subject to subsection (c),
the Administrator shall allocate allowances among covered
units that are not new covered units--
``(A) not later than December 31, 2007, for calendar year
2011; and
``(B) not later than December 31 of calendar year 2008 and
of each calendar year thereafter, for each fourth calendar
year that begins after that December 31.
``(2) Allocations.--
``(A) In general.--Subject to subsection (c), the
Administrator shall allocate to each covered unit that is not
a new covered unit a quantity of allowances that is equal to
the product obtained by multiplying--
``(i) the quantity of allowances available for allocation
under this subsection; and
``(ii) the quotient obtained by dividing--
``(I) the annual average quantity of electricity generated
by the unit (including only incremental nuclear generation
for nuclear generating units) during the most recent 3-
calendar year period for which data is available, updated
each calendar year and measured in megawatt hours; by
``(II) the difference between--
``(aa) the total of the average quantities calculated under
subclause (I) for all covered units; and
``(bb) the quantity of electricity generated by all
affected units and new affected units that, pursuant to
subsection (c), do not receive any allowances.
``(B) Quantity to be allocated.--For each calendar year,
the quantity of allowances allocated under subparagraph (A)
to covered units that are not new covered units shall be
equal to the difference between--
``(i) the annual tonnage limitation for emissions of
greenhouse gases from affected units specified in section 711
for the calendar year, as modified, if applicable, under
section 713; and
``(ii) the quantity of allowances reserved under subsection
(a) for the calendar year.
``(c) Coal-Fired Affected Units and New Affected Units.--
``(1) In general.--Notwithstanding any other provision of
this subtitle, no allowance shall be allocated under this
subtitle to a coal-fired affected unit or a coal-fired new
affected unit unless the affected unit or new affected unit--
``(A) is powered by qualifying advanced clean coal
technology, as defined pursuant to paragraph (2); or
``(B) entered operation before January 1, 2007.
``(2) Definition of qualifying advanced clean coal
technology.--
``(A) In general.--Not later than 18 months after the date
of enactment of this title, the Administrator, by regulation,
shall define the term `qualifying advanced clean coal
technology' with respect to electric power generation.
``(B) Requirement.--In promulgating a definition pursuant
to subparagraph (A), the Administrator shall ensure that the
term `qualifying advanced clean coal technology' reflects
advances in available technology, taking into consideration--
``(i) net thermal efficiency;
``(ii) measures to capture and sequester carbon dioxide;
and
``(iii) output-based emission rates for--
``(I) carbon dioxide;
``(II) sulfur dioxide;
``(III) oxides of nitrogen;
``(IV) filterable and condensable particulate matter; and
``(V) mercury.
``(C) Review and revision.--
``(i) In general.--Not later than July 1, 2009, and each
July 1 of every second year thereafter, the Administrator
shall review and, if appropriate, revise the definition under
subparagraph (A) based on technological advances during the
preceding 2 calendar years.
``(ii) Notice and comment required.--Subject to clause
(iii), after the initial definition is established under
subparagraph (A), no subsequent review or revision under this
subparagraph shall be subject to the notice and comment
provisions of section 307 of this Act or of section 553 of
title 5, United States Code.
``(iii) Effect.--Nothing in clause (ii) precludes the
application of the notice and comment provisions of section
307 of this Act or of section 553 of title 5, United States
Code, as the Administrator determines to be practicable.
``SEC. 717. CLIMATE ACTION TRUST FUND.
``(a) Establishment and Administration.--
``(1) In general.--There is established in the general fund
of the Treasury a fund, to be known as the `Climate Action
Trust Fund', consisting of--
``(A) such amounts as are deposited in the Fund under
paragraph (2); and
``(B) any interest earned on investment of amounts in the
Fund under paragraph (4).
``(2) Transfers to fund.--The Secretary of the Treasury
shall deposit in the Fund amounts equivalent to the proceeds
received by the Administrator as a result of the conduct of
auctions of allowances under section 715.
``(3) Expenditures from fund.--
``(A) In general.--Subject to subparagraphs (B) and (C),
the Administrator shall use amounts in the Fund to carry out
the programs described in this section.
``(B) Administrative expenses.--Of amounts in the Fund,
there shall be made available to pay the administrative
expenses necessary to carry out this title, as adjusted for
changes beginning on January 1, 2007, in accordance with the
Consumer Price Index for All-Urban Consumers published by the
Department of Labor--
``(i) $90,000,000 for each fiscal year, to the
Administrator; and
``(ii) $30,000,000 for each fiscal year, to the Secretary
of Agriculture.
``(C) Panel.--Of amounts in the Fund, there shall be made
available to pay the expenses of the Panel under section 712
$7,000,000 for each fiscal year, as adjusted for changes
beginning on January 1, 2007, in accordance with the Consumer
Price Index for All-Urban Consumers published by the
Department of Labor.
``(4) Investment of amounts.--
``(A) In general.--The Secretary of Treasury shall invest
such portion of the Fund as
[[Page S686]]
is not, in the judgment of the Administrator, required to
meet current withdrawals.
``(B) Interest-bearing obligations.--Investments may be
made only in interest-bearing obligations of the United
States.
``(C) Acquisition of obligations.--For the purpose of
investments under paragraph (1), obligations may be
acquired--
``(i) on original issue at the issue price; or
``(ii) by purchase of outstanding obligations at the market
price.
``(D) Sale of obligations.--Any obligation acquired by the
Fund may be sold by the Administrator at the market price.
``(E) Return of proceeds to fund.--The interest on, and the
proceeds from the sale or redemption of, any obligations held
in the Fund shall be credited to, and form a part of, the
Fund.
``(5) Regulations.--Not later than 2 years after the date
of enactment of this title, the Administrator, in
consultation with the Secretary of Energy, shall promulgate
such regulations as are necessary to administer the Fund in
accordance with this section.
``(b) Uses of Fund.--
``(1) No further appropriation.--The Administrator shall
distribute amounts in the Fund for use in accordance with
this section, without further appropriation.
``(2) Regulations.--
``(A) In general.--Not later than 3 years after the date of
enactment of this title, the Administrator, in consultation
with the Secretary of Energy, shall promulgate regulations
establishing an innovative low- and zero-emitting carbon
technologies program, a clean coal technologies program, and
an energy efficiency technology program that include--
``(i) the funding mechanisms that will be available to
support the development and deployment of the technologies
addressed by each program, including low-interest loans, loan
guarantees, grants, and financial awards; and
``(ii) the criteria for the methods by which proposals will
be funded to develop and deploy the technologies.
``(B) Revision of criteria.--Not later than January 1,
2014, and every 3 years thereafter, the Administrator shall
review and, if appropriate, revise, based on technological
advances, the criteria referred to in subparagraph (A)(ii).
``(C) Adaptation assistance for workers and communities.--
Not later than 3 years after the date of enactment of this
title, the Administrator, in consultation with the Secretary
of Energy, shall promulgate regulations governing the
distribution of funds pursuant to subsection (g).
``(c) Innovative Low- and Zero-Emitting Carbon Electricity
Generation Technologies Program.--
``(1) In general.--For each calendar year, of amounts
remaining in the Fund after making the expenditures described
in subparagraphs (B) and (C) of subsection (a)(3), the
Administrator shall use not more than 35 percent to support
the development and deployment of low- and zero-emitting
carbon electricity generation technologies.
``(2) Regulations.--The regulations establishing the
innovative low- and zero-emitting carbon electricity
generation technologies program referred to in subsection
(b)(2)(A) shall establish the areas of technology development
that will qualify for funding under that program, including
technologies for the generation of electricity from renewable
energy sources.
``(d) Clean Coal Technologies Program.--
``(1) In general.--For each calendar year, of amounts
remaining in the Fund after making the expenditures described
in subparagraphs (B) and (C) of subsection (a)(3), the
Administrator shall use not more than 20 percent to support
the development and deployment of clean coal technologies.
``(2) Regulations.--The regulations establishing the clean
coal technologies program referred to in subsection (b)(2)(A)
shall establish the criteria for use in defining qualifying
clean coal technologies for electric power generation, while
ensuring that those technologies represent an advance in
available technology, taking into consideration net thermal
efficiency and measures to capture and sequester carbon
dioxide.
``(e) Energy Efficiency Technology Program.--
``(1) In general.--For each calendar year, of amounts
remaining in the Fund after making the expenditures described
in subparagraphs (B) and (C) of subsection (a)(3), the
Administrator shall use not more than 15 percent to support
the development and deployment of technologies for increasing
the efficiency of energy end use in buildings and industry.
``(2) Regulations.--The regulations establishing the energy
efficiency program referred to in subsection (b)(2)(A) shall
establish the areas of technology development that will
qualify for funding under the energy efficiency program.
``(f) Federal Funding of Research Into and Development of
Energy and Efficiency Technologies.--For each calendar year,
the Administrator shall use not more than 10 percent of the
amounts in the Fund to support research into and development
of energy and efficiency technologies.
``(g) Adaptation Assistance for Workers and Communities
Negatively Affected by Climate Change and Greenhouse Gas
Regulation.--For each calendar year, of amounts remaining in
the Fund after making the expenditures described in
subparagraphs (B) and (C) of subsection (a)(3), the
Administrator shall use at least 10 percent to provide
adaptation assistance for workers and communities--
``(1) to address local or regional impacts of climate
change and the impacts, if any, from greenhouse gas
regulation, including by providing assistance to displaced
workers and disproportionately affected communities; and
``(2) to mitigate impacts of climate change and the
impacts, in any, from greenhouse gas regulation on low-income
energy consumers.
``(h) Fish and Wildlife Habitat.--
``(1) In general.--For each calendar year, of amounts
remaining in the Fund after making the expenditures described
in subparagraphs (B) and (C) of subsection (a)(3), the
Administrator shall use at least 10 percent to mitigate the
impacts of climate change on fish and wildlife habitat in
accordance with this subsection.
``(2) Wildlife restoration fund.--
``(A) In general.--For each calendar year, the
Administrator shall transfer not less than 70 percent of the
amounts made available under paragraph (1) to the Federal aid
to wildlife restoration fund established under section
3(a)(1) of the Pittman-Robertson Wildlife Restoration Act (16
U.S.C. 669b(a)(1))--
``(i) to carry out climate change impact mitigation actions
pursuant to comprehensive wildlife conservation strategies;
and
``(ii) to provide relevant information, training,
monitoring, and other assistance to develop climate change
impact mitigation and adaptation plans and integrate the
plans into State comprehensive wildlife conservation
strategies.
``(B) Availability.--Amounts transferred to the Federal aid
to wildlife restoration fund under this paragraph shall--
``(i) be available, without further appropriation, for
obligation and expenditure; and
``(ii) remain available until expended.
``(3) Protection of natural resources.--
``(A) In general.--For each calendar year, the
Administrator, in consultation with the Secretary of
Agriculture, the Secretary of Commerce, the Chief of
Engineers, and State and national wildlife conservation
organizations, shall transfer not more than 30 percent of the
funds made available under paragraph (1) to the Secretary of
the Interior for use in carrying out Federal and State
programs and projects--
``(i) to protect natural communities that are most
vulnerable to climate change;
``(ii) to restore and protect natural resources that
directly guard against damages from climate change events;
and
``(iii) to restore and protect ecosystem services that are
most vulnerable to climate change.
``(B) Administration.--Amounts transferred to the Secretary
of the Interior under this paragraph shall--
``(i) be available, without further appropriation, for
obligation and expenditure;
``(ii) remain available until expended;
``(iii)(I) be obligated not later than 2 years after the
date of transfer; or
``(II) if the amounts are not obligated in accordance with
subclause (I), be transferred to the Federal aid to wildlife
restoration fund for use in accordance with paragraph (2);
and
``(iv) supplement, and not supplant, the amount of Federal,
State, and local funds otherwise expended to carry out
programs and projects described in subparagraph (A).
``(C) Programs and projects.--Programs and projects for
which funds may be used under this paragraph include--
``(i) Federal programs and projects--
``(I) to identify Federal land and water at greatest risk
of being damaged or depleted by climate change;
``(II) to monitor Federal land and water to allow for early
detection of impacts;
``(III) to develop adaptation strategies to minimize the
damage; and
``(IV) to restore and protect Federal land and water at the
greatest risk of being damaged or depleted by climate change;
``(ii) Federal programs and projects to identify climate
change risks and develop adaptation strategies for natural
grassland, wetlands, migratory corridors, and other habitats
vulnerable to climate change on private land enrolled in--
``(I) the wetlands reserve program established under
subchapter C of chapter 1 of subtitle D of title XII of the
Food Security Act of 1985 (16 U.S.C. 3837 et seq.);
``(II) the grassland reserve program established under
subchapter C of chapter 2 of subtitle D of title XII of that
Act (16 U.S.C. 3838n et seq.); and
``(III) the wildlife habitat incentive program established
under section 1240N of that Act (16 U.S.C. 3839bb-1);
``(iii) programs and projects under the North American
Wetlands Conservation Act (16 U.S.C. 4401 et seq.), the North
American Bird Conservation Initiative, and the Neotropical
Migratory Bird Conservation Act (16 U.S.C. 6101 et seq.) to
protect habitat for migratory birds that are vulnerable to
climate change impacts;
``(iv) programs and projects--
``(I) to identify coastal and marine resources (such as
coastal wetlands, coral reefs, submerged aquatic vegetation,
shellfish beds, and other coastal or marine ecosystems) at
the greatest risk of being damaged by climate change;
``(II) to monitor those resources to allow for early
detection of impacts;
``(III) to develop adaptation strategies;
``(IV) to protect and restore those resources; and
[[Page S687]]
``(V) to integrate climate change adaptation requirements
into State plans developed under the coastal zone management
program established under the Coastal Zone Management Act of
1972 (16 U.S.C. 1451 et seq.), the national estuary program
established under section 320 of the Federal Water Pollution
Control Act (33 U.S.C. 1330), the Coastal and Estuarine Land
Conservation Program established under the fourth proviso of
the matter under the heading `procurement, acquisition, and
construction (including transfers of funds)' of title II of
the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 2002 (16
U.S.C. 1456d), or other comparable State programs;
``(v) programs and projects to conserve habitat for
endangered species and species of conservation concern that
are vulnerable to the impact of climate change;
``(vi) programs and projects under the Forest Legacy
Program established under section 7 of the Cooperative
Forestry Assistance Act (16 U.S.C. 2103c), to support State
efforts to protect environmentally sensitive forest land
through conservation easements to provide refuges for
wildlife;
``(vii) other Federal or State programs and projects
identified by the heads of agencies described in subparagraph
(A) as high priorities--
``(I) to protect natural communities that are most
vulnerable to climate change;
``(II) to restore and protect natural resources that
directly guard against damages from climate change events;
and
``(III) to restore and protect ecosystem services that are
most vulnerable to climate change;
``(viii) to address climate change in Federal land use
planning and plan implementation and to integrate climate
change adaptation strategies into--
``(I) comprehensive conservation plans prepared under
section 4(e) of the National Wildlife Refuge System
Administration Act of 1966 (16 U.S.C. 668dd(e));
``(II) general management plans for units of the National
Park System;
``(III) resource management plans of the Bureau of Land
Management; and
``(IV) land and resource management plans under the Forest
and Rangeland Renewable Resources Planning Act of 1974 (16
U.S.C. 1600 et seq.) and the National Forest Management Act
of 1976 (16 U.S.C. 1600 et seq.); and
``(ix) projects to promote sharing of information on
climate change wildlife impacts and mitigation strategies
across agencies, including funding efforts to strengthen and
restore habitat that improves the ability of fish and
wildlife to adapt successfully to climate change through the
Wildlife Conservation and Restoration Account established by
section 3(a)(2) of the Pittman-Robertson Wildlife Restoration
Act (16 U.S.C. 669b(a)(2)).
``SEC. 718. EARLY REDUCTION CREDITS.
``(a) Regulations.--Not later than 2 years after the date
of enactment of this title, the Administrator shall
promulgate regulations that provide for the issuance on a 1-
time basis, certification, and use of early reduction credits
for greenhouse gas reduction or sequestration projects
carried out during any of calendar years 2000 through 2010.
``(b) Eligible Projects.--A greenhouse gas reduction or
sequestration project shall be eligible for early reduction
credits if the project--
``(1) is carried out in the United States;
``(2) meets the standards contained in regulations
promulgated by the Administrator under subsection (a) that
the Administrator determines to be applicable to the project,
including consistency with the requirements of--
``(A) paragraphs (2) through (5) of section 736(a), with
respect to greenhouse gas reduction projects; and
``(B) section 732(a), with respect to sequestration
projects; and
``(3) was reported--
``(A) under section 1605(b) of the Energy Policy Act of
1992 (42 U.S.C. 13385(b)); or
``(B) to a State or regional greenhouse gas registry.
``(c) Limitation.--
``(1) In general.--The aggregate quantity of early
reduction credits available for greenhouse gas reduction or
sequestration projects for the period of calendar years 2000
through 2010 shall not exceed 10 percent of the tonnage
limitation for calendar year 2011 for emissions of greenhouse
gases from affected units under section 711.
``(2) No other exceedance of tonnage limitation.--No
provision of this subtitle (other than paragraph (1)) or any
regulation promulgated under this subtitle authorizes the
issuance or use of a quantity of credits greater than the
annual tonnage limitation for emissions of greenhouse gases
from affected units for a calendar year.
``SEC. 719. RECOGNITION AND USE OF INTERNATIONAL CREDITS.
``(a) Use of International Credits.--
``(1) In general.--Except as provided in this section and
section 720, the owner of each affected unit may satisfy the
obligation of the affected unit under section 722 to
surrender a quantity of credits associated with the
greenhouse gas emissions of the affected unit by submitting
international credits representing up to 25 percent of the
total annual submission requirements of the affected unit.
``(2) New affected units.--The owner of a new affected unit
may satisfy up to 50 percent of the obligation of the new
affected unit under section 722 to surrender a quantity of
credits associated with the greenhouse gas emissions of the
new affected unit by submitting international credits.
``(b) Facility Certification.--The owner of an affected
unit who submits an international credit under this section
shall certify that the international credit--
``(1) has not been retired from use in the registry of the
applicable foreign country; and
``(2) satisfies the requirements of subsection (c) or (d).
``(c) International Credits From Countries With Mandatory
Greenhouse Gas Limits.--The owner of an affected unit may
submit an international credit under this subsection if--
``(1) the international credit is issued by a foreign
country pursuant to a governmental program that imposes
mandatory absolute tonnage limits on greenhouse gas emissions
from the country or 1 or more industry sectors pursuant to
protocols adopted through the UNFCCC process; and
``(2) the Administrator has promulgated regulations, taking
into consideration applicable UNFCCC protocols, approving for
use under this subsection international credits from such
categories of countries as the regulations establish, and the
regulations permit the use of international credits from the
foreign country that issued the credit.
``(d) International Credits From Countries Without
Mandatory Greenhouse Gas Limits.--
``(1) In general.--Subject to paragraph (2), the owner of
an affected unit may submit an international credit under
this subsection if--
``(A) the international credit is issued by a foreign
country that has not imposed mandatory absolute tonnage
limits on greenhouse gas emissions from the country or 1 or
more industry sectors pursuant to protocols adopted through
the UNFCCC process;
``(B) the international credit is issued pursuant to
protocols adopted through the UNFCCC process; and
``(C) the Administrator has promulgated regulations, taking
into consideration applicable UNFCCC protocols, approving for
use under this subsection international credits from such
categories of countries as the regulations establish, and the
regulations permit the use of international credits from the
foreign country that issued the credit.
``(2) Decision on continued approval.--Not later than
December 31, 2015, the Administrator shall determine,
pursuant to the regulations promulgated under paragraph
(1)(C), whether to continue to approve for use under this
subsection international credits from any country that--
``(A) has not imposed mandatory absolute tonnage limits on
greenhouse gas emissions from the country or 1 or more
industry sectors pursuant to protocols adopted through the
UNFCCC process; and
``(B) generates more than 0.5 percent of global greenhouse
gas emissions as of 2010 or as of the most recent year for
which data are available.
``SEC. 720. AVOIDING SIGNIFICANT ECONOMIC HARM.
``(a) In General.--Pursuant to the regulations promulgated
under this section, the Administrator may permit affected
units--
``(1) to use allowances in a calendar year before the
calendar year for which the allowances were allocated; and
``(2) to increase the use by the affected units of
international credits up to 50 percent of the total annual
submission requirements of the affected units under section
722.
``(b) Regulations.--
``(1) In general.--Not later than 3 years after the date of
enactment of this title, the Administrator, in coordination
with the Secretary of the Treasury, shall promulgate
regulations requiring the continuous monitoring of the
operation of the carbon market and the effect of that market
on the economy of the United States.
``(2) Requirements.--The regulations shall--
``(A) establish the criteria for determining whether
allowance prices have reached and sustained a level that is
causing or will cause significant harm to the economy of the
United States; and
``(B) take into consideration--
``(i) the obligation of the United States under this
subtitle to stabilize greenhouse gas concentrations in the
atmosphere at the safe climate level; and
``(ii) the costs of the anticipated impacts of climate
change in the United States.
``(3) Prevention of economic harm.--If the Administrator
determines that allowance prices have reached and sustained a
level that is causing or will cause significant harm to the
economy of the United States, the regulations shall
establish--
``(A) a program under which an affected unit may use
allowances in a calendar year before the calendar year for
which the allowances were allocated, including--
``(i) a requirement that allowances borrowed from the
allocation of a future year reduce the allocation of
allowances to the affected unit for the future year on a 1-
to-1 basis;
``(ii) a requirement for payment of interest on borrowed
allowances requiring the submission of additional credits
upon repayment of the allowances equal to the product
obtained by multiplying--
``(I) the number of years between the advance use of
allowances by an affected unit under clause (i) and the
submission of additional credits under this clause; and
[[Page S688]]
``(II) the sum obtained by adding--
``(aa) the Federal short-term rate, as defined pursuant to
section 1274(d)(1)(C)(i) of the Internal Revenue Code of
1986; and
``(bb) 2 percent; and
``(iii) a limitation that in no event may an affected
unit--
``(I) satisfy more than 10 percent of the obligation of the
affected unit under section 722 to surrender allowances by
submitting allowances in a calendar year before the calendar
year for which the allowances were allocated; and
``(II) use allowances in a calendar year that is more than
5 years before the calendar year for which the allowances
were allocated; and
``(B) a program under which the owner of an affected unit
may satisfy the obligation of the affected unit under section
722 to surrender allowances for the calendar year in which
the determination is made by submitting international credits
representing up to 50 percent of the total annual submission
requirements of the affected unit.
``SEC. 721. USE AND TRANSFER OF CREDITS.
``(a) Use in Other Greenhouse Gas Allowance Trading
Programs.--
``(1) In general.--A credit obtained under this subtitle
may be used in any other greenhouse gas allowance trading
program, including a program of 1 or more States or
subdivisions of States, that is approved by the Administrator
and an authorized official for the other program for use of
the allowance.
``(2) Reciprocity.--A credit obtained from another
greenhouse gas trading program, including a program of 1 or
more States or subdivisions of States, that is approved by
the Administrator and an authorized official for the other
program may be used in the trading program under this title.
``(b) Allowance Use Before Applicable Calendar Year.--
Except as provided in section 720, an allowance auctioned or
allocated under this subtitle may not be used before the
calendar year for which the allowance was auctioned or
allocated.
``(c) Transfer.--
``(1) In general.--Except as provided in paragraph (2), the
transfer of a credit shall not take effect until receipt and
recording by the Administrator of a written certification of
the transfer that is executed by an authorized official of
the person making the transfer.
``(2) Special rule for allowances.--Notwithstanding
paragraph (1), the transfer of an allowance auctioned or
allocated under this subtitle may take effect before the
calendar year for which the allowance was auctioned or
allocated.
``(d) Banking of Credits.--Any affected unit may use a
credit obtained under this subtitle in the calendar year for
which the credit was auctioned or allocated, or in a
subsequent calendar year, to demonstrate compliance with
section 722.
``SEC. 722. COMPLIANCE AND ENFORCEMENT.
``(a) In General.--For calendar year 2011 and each calendar
year thereafter, the owner of each affected unit shall
surrender to the Administrator a quantity of credits that is
equal to the total tons of carbon dioxide or, with respect to
other greenhouse gases, tons in carbon dioxide equivalent,
associated with the combustion by the affected unit of
greenhouse gas-emitting fuels during the calendar year.
``(b) Regulations.--Not later than 2 years after the date
of enactment of this title, the Administrator shall
promulgate regulations establishing the procedures for the
surrender of credits.
``(c) Penalty.--The owner of an affected unit that emits
greenhouse gases associated with the combustion by the
affected unit of a greenhouse gas-emitting fuel in excess of
the number of credits that the owner of the affected unit
holds for use of the affected unit for the calendar year
shall--
``(1) submit to the Administrator 1.3 credits for each
metric ton of excess greenhouse gas emissions of the affected
unit; and
``(2) pay an excess emissions penalty equal to the product
obtained by multiplying--
``(A) the number of tons of carbon dioxide, or the carbon
dioxide equivalent of other greenhouse gases, emitted in
excess of the total quantity of credits held by the affected
unit; and
``(B)(i) except as provided in clause (ii), $100, as
adjusted for changes beginning on January 1, 2007, in
accordance with the Consumer Price Index for All-Urban
Consumers published by the Department of Labor; or
``(ii) if the average market price for a metric ton of
carbon dioxide equivalent during a calendar year exceeds $60,
$200, as adjusted for changes beginning on January 1, 2007,
in accordance with the Consumer Price Index for All-Urban
Consumers published by the Department of Labor.
``Subtitle B--Offset Credits
``SEC. 731. OUTREACH INITIATIVE ON REVENUE ENHANCEMENT FOR
AGRICULTURAL PRODUCERS.
``(a) Purposes.--The purposes of this subtitle are to
achieve climate benefits, reduce overall costs to the United
States economy, and enhance revenue for domestic agricultural
producers, foresters, and other landowners by--
``(1) establishing procedures by which domestic
agricultural producers, foresters, and other landowners can
measure and report reductions in greenhouse gas emissions and
increases in sequestration; and
``(2) publishing a handbook of guidance for domestic
agricultural producers, foresters, and other landowners to
market emission reductions to companies.
``(b) Establishment.--The Secretary of Agriculture, acting
through the Chief of the Natural Resources Conservation
Service, the Chief of the Forest Service, the Administrator
of the Cooperative State Research, Education, and Extension
Service, and land-grant colleges and universities, in
consultation with the Administrator and the heads of other
appropriate departments and agencies, shall establish an
outreach initiative to provide information to agricultural
producers, agricultural organizations, foresters, and other
landowners about opportunities under this subtitle to earn
new revenue.
``(c) Components.--The initiative under this section--
``(1) shall be designed to ensure that, to the maximum
extent practicable, agricultural organizations and individual
agricultural producers, foresters, and other landowners
receive detailed practical information about--
``(A) opportunities to earn new revenue under this
subtitle;
``(B) measurement protocols, monitoring, verifying,
inventorying, registering, insuring, and marketing offsets
under this title;
``(C) emerging domestic and international markets for
energy crops, allowances, and offsets; and
``(D) local, regional, and national databases and
aggregation networks to facilitate achievement, measurement,
registration, and sales of offsets;
``(2) shall provide--
``(A) outreach materials, including the handbook published
under subsection (d)(1), to interested parties;
``(B) workshops; and
``(C) technical assistance; and
``(3) may include the creation and development of regional
marketing centers or coordination with existing centers
(including centers within the Natural Resources Conservation
Service or the Cooperative State Research, Education, and
Extension Service or at land-grant colleges and
universities).
``(d) Handbook.--
``(1) In general.--Not later than 2 years after the date of
enactment of this title, the Secretary of Agriculture, in
consultation with the Administrator and after public input,
shall publish a handbook for use by agricultural producers,
agricultural cooperatives, foresters, other landowners,
offset buyers, and other stakeholders that provides easy-to-
use guidance on achieving, reporting, registering, and
marketing offsets.
``(2) Distribution.--The Secretary of Agriculture shall
ensure, to the maximum extent practicable, that the handbook
is distributed widely through land-grant colleges and
universities and other appropriate institutions.
``SEC. 732. OFFSET MEASUREMENT FOR AGRICULTURAL, FORESTRY,
WETLANDS, AND OTHER LAND USE-RELATED
SEQUESTRATION PROJECTS.
``(a) In General.--Not later than 2 years after the date of
enactment of this title, the Secretary of Agriculture, in
consultation with the Administrator, shall promulgate
regulations establishing the requirements regarding the
issuance, certification, and use of offset credits for
greenhouse gas reductions from agricultural, forestry,
wetlands, and other land use-related sequestration projects,
including requirements--
``(1) for a region-specific discount factor for business-
as-usual practices for specific types of sequestration
projects, in accordance with subsection (c);
``(2) that ensure that the reductions are real, additional,
verifiable, and enforceable;
``(3) that address leakage;
``(4) that the reductions are not otherwise required by any
law (including a regulation) or other legally binding
requirement;
``(5) for the quantification, monitoring, reporting, and
verification of the reductions;
``(6) that ensure that offset credits are limited in
duration to the period of sequestration of greenhouse gases,
and rectify any loss of sequestration other than a loss
caused by an error in calculation identified under this
subtitle, by requiring the submission of additional credits
of an equivalent quantity to the lost sequestration; and
``(7) that quantify sequestration flow.
``(b) Eligibility to Create Offset Credits.--
``(1) In general.--A sequestration project that commences
operation on or after January 1, 2011, is eligible to create
offset credits under this subtitle if the sequestration
project satisfies the other applicable requirements of this
subtitle.
``(2) Exception for agricultural projects.--Notwithstanding
paragraph (1), sequestration flow from an agricultural
project that occurs on or after January 1, 2011, may provide
the basis for offset credits under this subtitle regardless
of the date on which the agricultural sequestration project
to which the sequestration flow is attributable commenced, if
the project satisfies the other applicable requirements of
this subtitle.
``(c) Discounting for Business-as-Usual Practices.--
``(1) In general.--In order to streamline the availability
of offset credits for agricultural and other land use-related
sequestration projects, the regulations promulgated under
subsection (a) shall provide for the calculation and
reporting of region-specific discount factors by the
Secretary of Agriculture--
``(A) to be used by developers of agricultural projects and
other land use-related sequestration projects; and
[[Page S689]]
``(B) to account for business-as-usual practices for
specific types of sequestration projects.
``(2) Calculation.--Unless otherwise provided in this
subtitle, the region-specific discount factor for business-
as-usual practices for sequestration projects shall be
calculated by dividing--
``(A) the difference between--
``(i) the quantity of greenhouse gases sequestered in the
region as a result of the offset practice under this
subtitle; and
``(ii) the quantity of greenhouse gases sequestered in the
region as a result of the projected business-as-usual
implementation of the applicable offset practice; by
``(B) the quantity of greenhouse gases sequestered in the
region as a result of the offset practice under this
subtitle.
``(3) Requirements.--
``(A) In general.--The regulations promulgated under this
section shall, to the maximum extent practicable--
``(i) define geographic regions with reference to land that
has similar agricultural characteristics; and
``(ii) subject to subparagraph (B), define baseline
historical reference periods for each category of
sequestration practice, using the most recent period of
sufficient length for which there are reasonably
comprehensive data available.
``(B) Exception.--If the Secretary of Agriculture
determines that entities have increased implementation of the
relevant offset practice during the most recent period in
anticipation of legislation granting credit for the offsets,
the regulations described in subparagraph (A)(ii) may define
baseline historical reference periods for each category of
sequestration practice using an earlier period.
``(d) Quantifying Sequestration Flow.--The regulations that
quantify sequestration flow shall include--
``(1) a default rate of sequestration flow, regionally
specific to the maximum extent practicable, for each offset
practice or combination of offset practices, that is
estimated conservatively to allow for site-specific
variations and data uncertainties;
``(2) a downward adjustment factor for any offset practice
or combination of practices for which, in the judgment of the
Secretary of Agriculture, there are substantial uncertainties
in the sequestration flows estimated in paragraph (1), but
still reasonably sufficient data to calculate a default rate
of flow; and
``(3) offset practice- or project-specific measurement,
monitoring, and verification requirements for--
``(A) offset practices or projects for which there are
insufficiently reliable data to calculate a default rate of
sequestration flow; or
``(B) projects for which the project proponent chooses to
use project-specific requirements.
``(e) Use of Native Plant Species in Offset Projects.--
``(1) Regulations.--Not later than 18 months after the date
of enactment of this title, the Administrator, in
consultation with the Secretary of Agriculture, shall
promulgate regulations for selection, use, and storage of
native and nonnative plant materials in the offset projects
described in paragraph (2)--
``(A) to ensure native plant materials are given primary
consideration, in accordance with applicable Department of
Agriculture guidance for use of native plant materials;
``(B) to prohibit the use of Federal- or State-designated
noxious weeds; and
``(C) to prohibit the use of a species listed by a regional
or State invasive plant council within the applicable region
or State.
``(2) Applicability.--The regulations under paragraph (1)
shall apply to qualifying offset projects described in
sections 733(b)(2), 734(a)(2), and 734(b)(1).
``SEC. 733. CATEGORIES OF AGRICULTURAL OFFSET PRACTICES.
``(a) Regulations.--Not later than 2 years after the date
of enactment of this title, the Secretary of Agriculture, in
consultation with the Administrator, shall promulgate
regulations establishing the categories of offset practices
that--
``(1) reduce greenhouse gases as a result of agricultural
sequestration projects; and
``(2) are eligible to receive offset credits under this
subtitle.
``(b) Offset Practices.--Offset practices described in
subsection (a) shall include--
``(1) agricultural sequestration practices, including--
``(A) no-till agriculture;
``(B) conservation tillage (ridge till or minimum till);
``(C) winter cover cropping;
``(D) switching from a cycle of--
``(i) planting wheat or other crops and then fallowing
land; to
``(ii) continuous cropping;
``(E) any other offset practices identified by the
Administrator, in consultation with the Secretary of
Agriculture; and
``(F) combinations of any of the offset practices described
in subparagraphs (A) through (E); and
``(2) conversion of cropland to rangeland or grassland.
``SEC. 734. OFFSET CREDITS FROM FOREST MANAGEMENT, GRAZING
MANAGEMENT, AND WETLANDS MANAGEMENT.
``(a) Forest Management Offsets.--
``(1) In general.--Not later than 3 years after the date of
enactment of this title, the Secretary of Agriculture, in
consultation with the Administrator, shall promulgate
regulations providing for the issuance of offset credits for
forest management projects that provide durable, long-term
reductions in greenhouse gases as a result of sequestration.
``(2) Forest management offsets.--Forest management offset
projects under this section may include activities that
reduce greenhouse gases as a result of forest management
sequestration projects (including afforestation), other than
avoided forest land conversion as described in section 735.
``(3) Prohibitions.--
``(A) In general.--In accordance with section 732(e), no
afforestation project may involve the planting of invasive
species or noxious weeds.
``(B) Existing native grassland and ecosystems.--No
afforestation project may involve planting trees on existing
native grassland or other existing native non-forested
ecosystems that the Secretary of Agriculture determines
should be protected in their existing native condition.
``(b) Wetlands Management Offsets.--
``(1) In general.--Not later than 3 years after the date of
enactment of this title, the Administrator, in consultation
with the Chief of Engineers, shall promulgate regulations
providing for the issuance of offset credits for wetlands
management projects that provide durable, long-term
reductions in greenhouse gases as a result of sequestration.
``(2) Prohibitions.--
``(A) In general.--In accordance with section 732(e), no
wetlands restoration project may involve the planting of
invasive species or noxious weeds.
``(B) No new wetlands.--No wetlands offset project may be
carried out in an area in which underlying local hydrologic
processes will not support a wetland.
``(c) Grazing Management Offsets.--
``(1) In general.--Not later than 3 years after the date of
enactment of this title, the Secretary of Agriculture, in
consultation with the Administrator, shall promulgate
regulations providing for the issuance of offset credits for
grazing management projects that provide durable, long-term
reductions in greenhouse gases as a result of sequestration.
``(2) Grazing management offsets.--Grazing management
offset projects under this section may include activities
that reduce greenhouse gases as a result of grazing
management sequestration projects other than conversion of
cropland to grassland or rangeland under section 733.
``(d) Use of Offsets.--
``(1) In general.--For each calendar year, an affected unit
may satisfy not more than 5 percent of the total allowance
submission requirements of the affected unit under section
722 by using forest management offset credits under this
section.
``(2) Exceptions.--The limitation in paragraph (1) does not
apply to grazing management, afforestation, or wetland offset
projects.
``SEC. 735. OFFSET CREDITS FROM THE AVOIDED CONVERSION OF
FORESTED LAND OR WETLAND.
``(a) In General.--Offset credits for avoided conversion of
forested land or wetland shall be awarded to any State that
reduces the conversion below expected levels for all or a
significant portion of the State.
``(b) Regulations.--Not later than 3 years after the date
of enactment of this title, the Administrator, in conjunction
with the Secretary of Agriculture, shall promulgate
regulations that address the eligibility of offset practices
that avoid the conversion of forested land or wetland to
nonforested land uses or drained or converted wetland to
receive offset credits under this subtitle, including
requirements that address--
``(1) the methodology for measuring the avoided conversion
of forest land or wetland, including--
``(A) measurement of presently on-going rates of forest
land conversion or wetland conversion;
``(B) calculation of business-as-usual rates of forest land
conversion or wetland conversion by reference to the
historical rate of conversion of forested land or wetland;
and
``(C) comparison of the rates in subparagraph (A) and
subparagraph (B); and
``(2) leakage, including--
``(A) adjustments for leakage using standardized regional
leakage factors for afforestation and wetland restoration;
and
``(B) the magnitude of the forested region or wetlands
region in a State in which the rate of conversion of forest
land or wetland must be reduced to ensure that leakage of
forest land or wetlands conversion is minimized.
``(c) Precondition.--For an offset to be creditable under
this section, the State must certify that the State has
reduced its rate of conversion of forest land or wetland over
a period of 5 or more consecutive years for the entire State
or a significant forested or wetland region in the State.
``(d) Award by States of Offset Credits.--States that
participate in the program under this section shall establish
transparent and equitable rules by which offset credits will
be awarded to owners of forested land or wetland.
``(e) Authorization of Appropriations.--There is authorized
to be appropriated to the Administrator, in consultation with
the Secretary of Agriculture, for use in awarding grants to
States to carry out this section $5,000,000 for each fiscal
year.
[[Page S690]]
``SEC. 736. OFFSET CREDITS FROM GREENHOUSE GAS EMISSIONS
REDUCTION PROJECTS.
``(a) In General.--Not later than 2 years after the date of
enactment of this title, the Administrator shall promulgate
regulations establishing the requirements regarding the
issuance, certification, and use of offset credits for
greenhouse gas emissions reduction offset projects, including
requirements--
``(1) for performance standards for specific types of
offset projects, which represent significant improvements
compared to recent practices in the geographic area, to be
reviewed, and updated if the Administrator determines
updating is appropriate, every 5 years;
``(2) that ensure that the reductions are real, additional,
verifiable, enforceable, and permanent;
``(3) that address leakage;
``(4) that the reductions are not otherwise required by any
law (including a regulation) or other legally binding
requirement;
``(5) for the quantification, monitoring, reporting, and
verification of the reductions; and
``(6) that specify the duration of offset credits for
greenhouse gas emissions reduction projects under this
section.
``(b) Eligibility to Create Offset Credits.--Greenhouse gas
emissions reduction offset projects that commence operation
on or after January 1, 2007, are eligible to create offset
credits under this subtitle if the projects satisfy the other
applicable requirements of this subtitle.
``(c) Approved Categories of Greenhouse Gas Emissions
Reduction Offset Projects.--Greenhouse gas emission
reductions from the following types of operations shall be
eligible to create offsets for use under this section:
``(1) Landfill operations.
``(2) Agricultural manure management projects.
``(3) Wastewater treatment facilities.
``(4) Coal mining operations.
``(5) Natural gas transmission and distribution systems.
``(6) Electrical transmission and distribution systems.
``(7) Elimination or reduction in use of chemicals that
substitute for ozone-depleting substances.
``(8) Cement manufacturing.
``(9) Lime manufacturing.
``(10) Iron and steel production.
``(11) Aluminum production.
``(12) Adipic acid production.
``(13) Nitric acid production.
``(14) Semiconductor manufacturing.
``(15) Magnesium production and processing.
``(16) Fossil fuel combustion at commercial and residential
buildings.
``(d) Creation of Additional Categories of Greenhouse Gas
Emissions Reduction Offset Projects.--The Administrator may,
by regulation, create additional categories of greenhouse gas
emissions reduction offset projects for types of projects for
which the Administrator determines that compliance with the
regulations promulgated under subsection (a) is feasible.
``(e) Prohibition on Use.--Notwithstanding the eligibility
of greenhouse gas emission reduction projects to create
offset credits in accordance with subsection (c) or (d),
greenhouse gas emissions reduction offset projects shall not
be eligible to create offset credits for use under this
section beginning on the date on which the reductions are
required by law (including regulations) or other legally
binding requirement.
``SEC. 737. BORROWING AT PROGRAM START-UP BASED ON CONTRACTS
TO PURCHASE OFFSET CREDITS.
``(a) In General.--During calendar years 2011, 2012, and
2013, an affected unit may satisfy not more than 5 percent of
the allowance submission requirements of section 722 by
submitting to the Administrator contractual commitments to
purchase offset credits that will implement an equivalent
quantity of emission reductions or sequestration not later
than December 31, 2015.
``(b) Approval of Qualifying Offset Projects.--Offset
projects that may be appropriately carried out under this
section shall be approved by the Administrator in accordance
with this subtitle.
``(c) Repayment by 2015.--
``(1) In general.--If an affected unit uses subsection (a)
to comply with section 722, not later than the deadline in
that section for allowance submissions for calendar year
2015, the affected unit shall submit additional credits of a
quantity equivalent to the sum obtained by adding--
``(A) the value of credits submitted to comply with credit
submission requirements described in subsection (a); and
``(B) interest calculated in accordance with paragraph (2).
``(2) Interest.--Interest referred to in paragraph (1)(B)
shall be equal to the product obtained by multiplying--
``(A) the number of years between--
``(i) the use by an affected unit of the method of
compliance described in subsection (a); and
``(ii) the submission by the affected unit of additional
credits under this subsection; and
``(B) the sum obtained by adding--
``(i) the Federal short-term rate, as defined pursuant to
section 1274(d)(1)(C)(i) of the Internal Revenue Code of
1986; and
``(ii) 2 percent.
``SEC. 738. REVIEW AND CORRECTION OF ACCOUNTING FOR OFFSET
CREDITS.
``(a) Duty to Monitor.--The Secretary of Agriculture and
the Administrator shall monitor regularly whether offset
credits under the respective jurisdiction of each agency head
under this subtitle are being awarded only for real and
additional sequestration of greenhouse gases and reductions
in greenhouse gas emissions, including--
``(1) the accuracy of default calculations of sequestration
flow and greenhouse gas emission reductions achieved by the
use of offset practices;
``(2) the calculation of region-specific discount factors;
and
``(3) the accuracy of leakage calculations.
``(b) Periodic Review.--Not later than December 31, 2013,
and every 5 years thereafter, the Secretary of Agriculture
and the Administrator shall review the issuance of offset
credits under the respective jurisdiction of each agency head
under this subtitle to determine--
``(1) whether offset credits are being awarded only for
real and additional sequestration of greenhouse gases or
reductions in greenhouse gas emissions, as described in
subsection (a);
``(2) the amount of excessive award of any offset credits;
``(3) the volume of offset credits that have been or are
expected to be approved;
``(4) the impact of the offset credits on market prices;
and
``(5) the impact of the offset credits on the trajectory of
emissions from affected units.
``(c) Duty to Correct.--If the Secretary of Agriculture or
the Administrator determines that offset credits under the
respective jurisdictions of the agency head have been awarded
under this subtitle in excess of real and additional
sequestration of greenhouse gases or reductions in emissions
of greenhouse gases, the Secretary of Agriculture or the
Administrator shall--
``(1) promptly correct on a prospective basis the sources
of the errors, including correcting leakage factors, region-
specific discount factors, default rates of sequestration
flow, and other relevant information for the offset practices
involved; and
``(2) quantify and publicly disclose the quantity of offset
credits that have been awarded in excess of real and
additional sequestration or emissions reductions.
``Subtitle C--National Registry for Credits
``SEC. 741. ESTABLISHMENT AND OPERATION OF NATIONAL REGISTRY.
``(a) In General.--Except as provided in subsection (b),
not later than July 1 of the year immediately prior to the
first calendar year in which an annual tonnage limitation on
the emission of greenhouse gases applies under section
711(b), the Administrator shall promulgate regulations to
establish, operate, and maintain a national registry through
which the Administrator shall--
``(1) record allocations of allowances, the issuance of
offset credits or early reduction credits, and the
recognition of international credits;
``(2) track transfers of credits;
``(3) retire all credits used for compliance;
``(4) subject to subsection (b), maintain transparent
availability of registry information to the public, including
the quarterly reports submitted under section 742(a);
``(5) prepare an annual assessment of the emission data in
the quarterly reports submitted under section 742(a); and
``(6) take such action as is necessary to maintain the
integrity of the registry, including adjustments to correct
for--
``(A) errors or omissions in the reporting of data; and
``(B) the prevention of counterfeiting, double-counting,
multiple registrations, multiple sales, and multiple
retirements of credits.
``(b) Exception to Public Availability of Data.--
``(1) In general.--Subsection (a)(4) shall not apply in any
case in which the Administrator, in consultation with the
Secretary of Defense, determines that publishing or otherwise
making available information in accordance with that
paragraph poses a risk to national security.
``(2) Statement of reasons.--In a case described in
paragraph (1), the Administrator shall publish a description
of the determination and the reasons for the determination.
``SEC. 742. MONITORING AND REPORTING.
``(a) Requirements.--Each owner or operator of an affected
unit, or to the extent applicable, the greenhouse gas
authorized account representative for the affected unit,
shall--
``(1) comply with the monitoring, recordkeeping, and
reporting requirements of part 75 of title 40, Code of
Federal Regulations (or successor regulations); and
``(2) submit to the Administrator electronic quarterly
reports that describe the greenhouse gas mass emission data,
fuel input data, and electricity output data for the affected
unit.
``(b) Biomass Cofiring.--Not later than 18 months after the
date of enactment of this title, the Administrator shall
promulgate regulations that provide monitoring,
recordkeeping, and reporting requirements for biomass
cofiring at affected units.''.
(b) Conforming Amendments.--
(1) Federal enforcement.--Section 113 of the Clean Air Act
(42 U.S.C. 7413) is amended--
(A) in subsection (a)(3), by striking ``or title VI,'' and
inserting ``title VI, or title VII,'';
[[Page S691]]
(B) in subsection (b)--
(i) by redesignating paragraphs (1) through (3) as
subparagraphs (A) through (C), respectively, and indenting
the subparagraphs appropriately;
(ii) by striking ``The Administrator shall'' and inserting
the following:
``(1) In general.--The Administrator shall'';
(iii) in paragraph (1) (as designated by clause (ii)), in
the matter preceding subparagraph (A) (as redesignated by
clause (i)), by striking ``or a major stationary source'' and
inserting ``a major stationary source, or an affected unit
under title VII''; and
(iv) in subparagraph (B) (as redesignated by clause (i)),
by striking ``or title VI'' and inserting ``title VI, or
title VII'';
(v) in the matter following subparagraph (C) of paragraph
(1) (as designated by clauses (i) and (ii))--
(I) by striking ``Any action'' and inserting the following:
``(2) Judicial enforcement.--
``(A) In general.--Any action'';
(II) by striking ``Notice'' and inserting the following:
``(B) Notice.--Notice''; and
(III) by striking ``In the case'' and inserting the
following:
``(C) Actions brought by administrator.--In the case'';
(C) in subsection (c)--
(i) in the first sentence of paragraph (1), by striking
``or title VI (relating to stratospheric ozone control),''
and inserting ``title VI (relating to stratospheric ozone
control), or title VII (relating to global warming pollution
emission reductions),''; and
(ii) in the first sentence of paragraph (3), by striking
``or VI'' and inserting ``VI, or VII'';
(D) in subsection (d)(1)(B), by striking ``or VI'' and
inserting ``VI, or VII''; and
(E) in subsection (f), in the first sentence, by striking
``or VI'' and inserting ``VI, or VII''.
(2) Inspections, monitoring, and entry.--Section 114(a) of
the Clean Air Act (42 U.S.C. 7414(a)) is amended by striking
``section 112,'' and all that follows through ``(ii)'' and
inserting the following: ``section 112, any regulation of
solid waste combustion under section 129, or any regulation
of greenhouse gas emissions under title VII, (ii)''.
(3) Administrative proceedings and judicial review.--
Section 307 of the Clean Air Act (42 U.S.C. 7607) is
amended--
(A) in subsection (a), by striking ``, or section 306'' and
inserting ``section 306, or title VII'';
(B) in subsection (b)(1)--
(i) by striking ``section 111,,'' and inserting ``section
111,'';
(ii) by striking ``section 120,'' each place it appears and
inserting ``section 120, any action under title VII,''; and
(iii) by striking ``112,,'' and inserting ``112,''; and
(C) in subsection (d)(1)--
(i) by striking subparagraph (S);
(ii) by redesignating the second subparagraph (N) and
subparagraphs (O) through (R) as subparagraphs (O), (P), (Q),
(R), and (S), respectively;
(iii) by redesignating subparagraphs (T) and (U) as
subparagraphs (U) and (V), respectively; and
(iv) by inserting after subparagraph (S) (as redesignated
by clause (ii)) the following:
``(T) the promulgation or revision of any regulation under
title VII,''.
(4) Unavailability of emissions data.--Section 412(d) of
the Clean Air Act (42 U.S.C. 7651k(d)) is amended in the
first sentence--
(A) by inserting ``or title VII'' after ``under subsection
(a)''; and
(B) by inserting ``or title VII'' after ``this title''.
TITLE II--CLIMATE CHANGE RESEARCH INITIATIVES
SEC. 201. RESEARCH GRANTS THROUGH NATIONAL SCIENCE
FOUNDATION.
Section 105 of the Global Change Research Act of 1990 (15
U.S.C. 2935) is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following:
``(c) Research Grants.--
``(1) List of priority research areas.--The Committee shall
develop a list of priority areas for research and development
on climate change that are not being adequately addressed by
Federal agencies.
``(2) Transmission of list.--The Director of the Office of
Science and Technology Policy shall submit the list developed
under paragraph (1) to the National Science Foundation.
``(3) Authorization of appropriations.--There are
authorized to be appropriated to the National Science
Foundation such sums as are necessary to carry out this
subsection, to be made available through the Science and
Technology Policy Institute, for research in the priority
areas.''.
SEC. 202. ABRUPT CLIMATE CHANGE RESEARCH.
(a) In General.--The Secretary of Commerce, acting through
the National Oceanic and Atmospheric Administration, shall
carry out a program of scientific research on abrupt climate
change designed to provide timely warnings of the potential
likelihood, magnitude, and consequences of, and measures to
avoid, abrupt human-induced climate change.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary of Commerce such sums as
are necessary to carry out this section.
SEC. 203. DEVELOPMENT OF NEW MEASUREMENT TECHNOLOGIES.
(a) In General.--The Administrator of the Environmental
Protection Agency shall carry out a program to develop, with
technical assistance from appropriate Federal agencies,
innovative standards and measurement technologies to
calculate greenhouse gas emissions or reductions for which no
accurate, reliable, low-cost measurement technology exists.
(b) Administration.--The program shall include technologies
(including remote sensing technologies) to measure carbon
changes and other greenhouse gas emissions and reductions
from agriculture, forestry, wetlands, and other land use
practices.
(c) Authorization of Appropriations.--There are authorized
to be appropriated to the Administrator such sums as are
necessary to carry out this section.
SEC. 204. TECHNOLOGY DEVELOPMENT AND DIFFUSION.
(a) In General.--The Director of the National Institute of
Standards and Technology, acting through the Manufacturing
Extension Partnership program, may develop a program to
promote the use, by small manufacturers, of technologies and
techniques that result in reduced emissions of greenhouse
gases or increased sequestration of greenhouse gases.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Director of the National Institute
of Standards and Technology such sums as are necessary to
carry out this section.
SEC. 205. PUBLIC LAND.
(a) In General.--Not later than 3 years after the date of
enactment of this Act, the Secretary of Agriculture and the
Secretary of the Interior shall prepare a joint assessment or
separate assessments setting forth recommendations for
increased sequestration of greenhouse gases and reduction of
greenhouse gas emissions on public land that is--
(1) managed forestland;
(2) managed rangeland or grassland; or
(3) protected land, including national parks and designated
wilderness areas.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary of Agriculture and the
Secretary of the Interior such sums as are necessary to carry
out this section.
SEC. 206. SEA LEVEL RISE FROM POLAR ICE SHEET MELTING.
(a) In General.--The Secretary of Commerce, acting through
the National Oceanic and Atmospheric Administration and in
cooperation with the Administrator of the National
Aeronautics and Space Administration, shall carry out a
program of scientific research to support modeling and
observations into the potential role of the Greenland, west
Antarctic, and east Antarctic ice sheets in any future
increase in sea levels.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary of Commerce and the
Administrator of the National Aeronautics and Space
Administration such sums as are necessary to carry out this
section.
______
By Mr. AKAKA (for himself, Mr. Wyden, Mr. Bunning, Mr. Inouye,
and Mr. Durbin):
S. 320. A bill to provide for the protection of paleontological
resources on Federal lands, and for other purposes; to the Committee on
Energy and Natural Resources.
Mr. AKAKA. Mr. President, I rise today along with my distinguished
colleagues, Senator Wyden, Senator Bunning, Senator Inouye, and Senator
Durbin, to introduce the Paleontological Resources Preservation Act in
order to protect and preserve the Nation's important fossil record for
the benefit of our citizens. Vertebrate fossils are rare and important
natural resources that have become increasingly endangered due to an
increase in the illegal collection of fossil specimens for commercial
sale. However, at this time there is no unified policy regarding the
treatment of fossils by Federal land management agencies which would
help protect and conserve fossil specimens. Consequently, we risk the
deterioration or loss of these valuable scientific resources. This Act
will correct that omission by providing uniformity to the patchwork of
statutes and regulations that currently exist. By creating a
comprehensive national policy for preserving and managing
paleontological resources found on Federal land, this Act will also be
instrumental in curtailing and preventing future illegal trade thereby
ensuring that many generations to come will have access to these
invaluable records of our past. I would like to emphasize that this
bill covers only paleontological remains on Federal lands and in no way
affects archaeological or cultural resources under the Archaeological
Resources Protection Act of 1979 or the Native American Graves
Protection and Rehabilitation Act.
I would also mention that this bill is exactly the same bill that I
introduced
[[Page S692]]
in the 109th Congress. This bill was heard and marked up by the Senate
Energy and Natural Resources Committee, and was passed by the Senate.
As a senior member of the Senate Energy and Natural Resources
Committee and Chair of the Subcommittee on National Parks, I am very
concerned about the preservation of fossils as records of earth's past
upheavals and struggles. While I recognize the value of amateur
collecting--and casual collecting--of fossils is protected in this
bill--fossil theft has become an increasing problem. New fossil fields
and insights into the earth's past are discovered nearly every month.
Paleontological resources can be sold on the market for a hefty price.
For example, the complete skeleton of a T-Rex was sold for $8.6 million
at auction to the Field Museum of Chicago. Consequently, they are being
stolen from public lands without regard to science and education. The
protections I offer in this Act are not new. Federal and management
agencies have individual regulations prohibiting theft of government
property. However, Congress has not provided a clear statute stating
the value of paleontological resources to our Nation, as we have for
archeological resources. We need to work together to make sure that we
fulfill our responsibility as stewards of public lands, and as
protectors of our Nation's natural resources.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
S. 320
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 ``Paleontological Resources
Preservation Act''.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) Casual collecting.--The term ``casual collecting''
means the collecting of a reasonable amount of common
invertebrate and plant paleontological resources for non-
commercial personal use, either by surface collection or the
use of non-powered hand tools resulting in only negligible
disturbance to the Earth's surface and other resources. As
used in this paragraph, the terms ``reasonable amount'',
``common invertebrate and plant paleontological resources''
and ``negligible disturbance'' shall be determined by the
Secretary.
(2) Federal lands.--The term ``Federal lands'' means--
(A) lands controlled or administered by the Secretary of
the Interior, except Indian lands; or
(B) National Forest System lands controlled or administered
by the Secretary of Agriculture.
(3) Indian lands.--The term ``Indian Land'' means lands of
Indian tribes, or Indian individuals, which are either held
in trust by the United States or subject to a restriction
against alienation imposed by the United States.
(4) Paleontological resource.--The term ``paleontological
resource'' means any fossilized remains, traces, or imprints
of organisms, preserved in or on the earth's crust, that are
of paleontological interest and that provide information
about the history of life on earth, except that the term does
not include--
(A) any materials associated with an archaeological
resource (as defined in section 3(1) of the Archaeological
Resources Protection Act of 1979 (16 U.S.C. 470bb(1)); or
(B) any cultural item (as defined in section 2 of the
Native American Graves Protection and Repatriation Act (25
U.S.C. 3001)).
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Interior with respect to lands controlled or
administered by the Secretary of the Interior or the
Secretary of Agriculture with respect to National Forest
System Lands controlled or administered by the Secretary of
Agriculture.
(6) State.--The term ``State'' means the fifty States, the
District of Columbia, the Commonwealth of Puerto Rico, and
any other territory or possession of the United States.
SEC. 3. MANAGEMENT.
(a) In General.--The Secretary shall manage and protect
paleontological resources on Federal lands using scientific
principles and expertise. The Secretary shall develop
appropriate plans for inventory, monitoring, and the
scientific and educational use of paleontological resources,
in accordance with applicable agency laws, regulations, and
policies. These plans shall emphasize interagency
coordination and collaborative efforts where possible with
non-Federal partners, the scientific community, and the
general public.
(b) Coordination.--To the extent possible, the Secretary of
the Interior and the Secretary of Agriculture shall
coordinate in the implementation of this Act.
SEC. 4. PUBLIC AWARENESS AND EDUCATION PROGRAM.
The Secretary shall establish a program to increase public
awareness about the significance of paleontological
resources.
SEC. 5. COLLECTION OF PALEONTOLOGICAL RESOURCES.
(a) Permit Requirement.--
(1) In general.--Except as provided in this Act, a
paleontological resource may not be collected from Federal
lands without a permit issued under this Act by the
Secretary.
(2) Casual collecting exception.--The Secretary may allow
casual collecting without a permit on Federal lands
controlled or administered by the Bureau of Land Management,
the Bureau of Reclamation, and the Forest Service, where such
collection is consistent with the laws governing the
management of those Federal lands and this Act.
(3) Previous permit exception.--Nothing in this section
shall affect a valid permit issued prior to the date of
enactment of this Act.
(b) Criteria for Issuance of a Permit.--The Secretary may
issue a permit for the collection of a paleontological
resource pursuant to an application if the Secretary
determines that--
(1) the applicant is qualified to carry out the permitted
activity;
(2) the permitted activity is undertaken for the purpose of
furthering paleontological knowledge or for public education;
(3) the permitted activity is consistent with any
management plan applicable to the Federal lands concerned;
and
(4) the proposed methods of collecting will not threaten
significant natural or cultural resources.
(c) Permit Specifications.--A permit for the collection of
a paleontological resource issued under this section shall
contain such terms and conditions as the Secretary deems
necessary to carry out the purposes of this Act. Every permit
shall include requirements that--
(1) the paleontological resource that is collected from
Federal lands under the permit will remain the property of
the United States;
(2) the paleontological resource and copies of associated
records will be preserved for the public in an approved
repository, to be made available for scientific research and
public education; and
(3) specific locality data will not be released by the
permittee or repository without the written permission of the
Secretary.
(d) Modification, Suspension, and Revocation of Permits.--
(1) The Secretary may modify, suspend, or revoke a permit
issued under this section--
(A) for resource, safety, or other management
considerations; or
(B) when there is a violation of term or condition of a
permit issued pursuant to this section.
(2) The permit shall be revoked if any person working under
the authority of the permit is convicted under section 7 or
is assessed a civil penalty under section 8.
(e) Area Closures.--In order to protect paleontological or
other resources and to provide for public safety, the
Secretary may restrict access to or close areas under the
Secretary's jurisdiction to the collection of paleontological
resources.
SEC. 6. CURATION OF RESOURCES.
Any paleontological resource, and any data and records
associated with the resource, collected under a permit, shall
be deposited in an approved repository. The Secretary may
enter into agreements with non-Federal repositories regarding
the curation of these resources, data, and records.
SEC. 7. PROHIBITED ACTS; CRIMINAL PENALTIES.
(a) In General.--A person may not--
(1) excavate, remove, damage, or otherwise alter or deface
or attempt to excavate, remove, damage, or otherwise alter or
deface any paleontological resources located on Federal lands
unless such activity is conducted in accordance with this
Act;
(2) exchange, transport, export, receive, or offer to
exchange, transport, export, or receive any paleontological
resource if, in the exercise of due care, the person knew or
should have known such resource to have been excavated or
removed from Federal lands in violation of any provisions,
rule, regulation, law, ordinance, or permit in effect under
Federal law, including this Act; or
(3) sell or purchase or offer to sell or purchase any
paleontological resource if, in the exercise of due care, the
person knew or should have known such resource to have been
excavated, removed, sold, purchased, exchanged, transported,
or received from Federal lands.
(b) False Labeling Offenses.--A person may not make or
submit any false record, account, or label for, or any false
identification of, any paleontological resource excavated or
removed from Federal lands.
(c) Penalties.--A person who knowingly violates or
counsels, procures, solicits, or employs another person to
violate subsection (a) or (b) shall, upon conviction, be
fined in accordance with title 18, United States Code, or
imprisoned not more than 10 years, or both; but if the sum of
the commercial and paleontological value of the
paleontological resources involved and the cost of
restoration and repair of such resources does not exceed
$500, such person shall be fined in accordance with title 18,
United States Code, or imprisoned not more than one year, or
both.
(d) General Exception.--Nothing in subsection (a) shall
apply to any person with respect to any paleontological
resource which
[[Page S693]]
was in the lawful possession of such person prior to the date
of the enactment of this Act.
SEC. 8. CIVIL PENALTIES.
(a) In General.--
(1) Hearing.--A person who violates any prohibition
contained in an applicable regulation or permit issued under
this Act may be assessed a penalty by the Secretary after the
person is given notice and opportunity for a hearing with
respect to the violation. Each violation shall be considered
a separate offense for purposes of this section.
(2) Amount of penalty.--The amount of such penalty assessed
under paragraph (1) shall be determined under regulations
promulgated pursuant to this Act, taking into account the
following factors:
(A) The scientific or fair market value, whichever is
greater, of the paleontological resource involved, as
determined by the Secretary.
(B) The cost of response, restoration, and repair of the
resource and the paleontological site involved.
(C) Any other factors considered relevant by the Secretary
assessing the penalty.
(3) Multiple offenses.--In the case of a second or
subsequent violation by the same person, the amount of a
penalty assessed under paragraph (2) may be doubled.
(4) Limitation.--The amount of any penalty assessed under
this subsection for any one violation shall not exceed an
amount equal to double the cost of response, restoration, and
repair of resources and paleontological site damage plus
double the scientific or fair market value of resources
destroyed or not recovered.
(b) Petition for Judicial Review; Collection of Unpaid
Assessments.--
(1) Judicial review.--Any person against whom an order is
issued assessing a penalty under subsection (a) may file a
petition for judicial review of the order in the United
States District Court for the District of Columbia or in the
district in which the violation is alleged to have occurred
within the 30-day period beginning on the date the order
making the assessment was issued. Upon notice of such filing,
the Secretary shall promptly file such a certified copy of
the record on which the order was issued. The court shall
hear the action on the record made before the Secretary and
shall sustain the action if it is supported by substantial
evidence on the record considered as a whole.
(2) Failure to pay.--If any person fails to pay a penalty
under this section within 30 days--
(A) after the order making assessment has become final and
the person has not filed a petition for judicial review of
the order in accordance with paragraph (1); or
(B) after a court in an action brought in paragraph (1) has
entered a final judgment upholding the assessment of the
penalty, the Secretary may request the Attorney General to
institute a civil action in a district court of the United
States for any district in which the person if found,
resides, or transacts business, to collect the penalty (plus
interest at currently prevailing rates from the date of the
final order or the date of the final judgment, as the case
may be). The district court shall have jurisdiction to hear
and decide any such action. In such action, the validity,
amount, and appropriateness of such penalty shall not be
subject to review. Any person who fails to pay on a timely
basis the amount of an assessment of a civil penalty as
described in the first sentence of this paragraph shall be
required to pay, in addition to such amount and interest,
attorneys fees and costs for collection proceedings.
(c) Hearings.--Hearings held during proceedings instituted
under subsection (a) shall be conducted in accordance with
section 554 of title 5, United States Code.
(d) Use of Recovered Amounts.--Penalties collected under
this section shall be available to the Secretary and without
further appropriation may be used only as follows:
(1) To protect, restore, or repair the paleontological
resources and sites which were the subject of the action, or
to acquire sites with equivalent resources, and to protect,
monitor, and study the resources and sites. Any acquisition
shall be subject to any limitations contained in the organic
legislation for such Federal lands.
(2) To provide educational materials to the public about
paleontological resources and sites.
(3) To provide for the payment of rewards as provided in
section 9.
SEC. 9. REWARDS AND FORFEITURE.
(a) Rewards.--The Secretary may pay from penalties
collected under section 7 or 8--
(1) consistent with amounts established in regulations by
the Secretary; or
(2) if no such regulation exists, an amount equal to the
lesser of one-half of the penalty or $500, to any person who
furnishes information which leads to the finding of a civil
violation, or the conviction of criminal violation, with
respect to which the penalty was paid. If several persons
provided the information, the amount shall be divided among
the persons. No officer or employee of the United States or
of any State or local government who furnishes information or
renders service in the performance of his official duties
shall be eligible for payment under this subsection.
(b) Forfeiture.--All paleontological resources with respect
to which a violation under section 7 or 8 occurred and which
are in the possession of any person, and all vehicles and
equipment of any person that were used in connection with the
violation, shall be subject to civil forfeiture, or upon
conviction, to criminal forfeiture. All provisions of law
relating to the seizure, forfeiture, and condemnation of
property for a violation of this Act, the disposition of such
property or the proceeds from the sale thereof, and remission
or mitigation of such forfeiture, as well as the procedural
provisions of chapter 46 of title 18, United States Code,
shall apply to the seizures and forfeitures incurred or
alleged to have incurred under the provisions of this Act.
(c) Transfer of Seized Resources.--The Secretary may
transfer administration of seized paleontological resources
to Federal or non-Federal educational institutions to be used
for scientific or educational purposes.
SEC. 10. CONFIDENTIALITY.
Information concerning the nature and specific location of
a paleontological resource the collection of which requires a
permit under this Act or under any other provision of Federal
law shall be exempt from disclosure under section 552 of
title 5, United States Code, and any other law unless the
Secretary determines that disclosure would--
(1) further the purposes of this Act;
(2) not create risk of harm to or theft or destruction of
the resource or the site containing the resource; and
(3) be in accordance with other applicable laws.
SEC. 11. REGULATIONS.
As soon as practical after the date of the enactment of
this Act, the Secretary shall issue such regulations as are
appropriate to carry out this Act, providing opportunities
for public notice and comment.
SEC. 12. SAVINGS PROVISIONS.
Nothing in this Act shall be construed to--
(1) invalidate, modify, or impose any additional
restrictions or permitting requirements on any activities
permitted at any time under the general mining laws, the
mineral or geothermal leasing laws, laws providing for
minerals materials disposal, or laws providing for the
management or regulation of the activities authorized by the
aforementioned laws including but not limited to the Federal
Land Policy Management Act (43 U.S.C. 1701-1784), Public Law
94-429 (commonly known as the ``Mining in the Parks Act'')
(16 U.S.C. 1901 et seq.), the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. 1201-1358), and the
Organic Administration Act (16 U.S.C. 478, 482, 551);
(2) invalidate, modify, or impose any additional
restrictions or permitting requirements on any activities
permitted at any time under existing laws and authorities
relating to reclamation and multiple uses of Federal lands;
(3) apply to, or require a permit for, casual collecting of
a rock, mineral, or invertebrate or plant fossil that is not
protected under this Act;
(4) affect any lands other than Federal lands or affect the
lawful recovery, collection, or sale of paleontological
resources from lands other than Federal lands;
(5) alter or diminish the authority of a Federal agency
under any other law to provide protection for paleontological
resources on Federal lands in addition to the protection
provided under this Act; or
(6) create any right, privilege, benefit, or entitlement
for any person who is not an officer or employee of the
United States acting in that capacity. No person who is not
an officer or employee of the United States acting in that
capacity shall have standing to file any civil action in a
court of the United States to enforce any provision or
amendment made by this Act.
SEC. 13. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act.
______
By Mr. DORGAN (for himself, Ms. Murkowski, Mr. McCain, Mr.
Conrad, Mr. Bingaman, Mr. Baucus, Mr. Smith, and Mr. Inouye):
S. 322. A bill to establish an Indian youth telemental health
demonstration project; to the Committee on Indian Affairs.
Mr. DORGAN. Mr. President, I rise today to re-introduce legislation
which would provide a first important step in dealing with the crisis
of youth suicide in Indian Country.
The legislation I am introducing today is almost identical to
legislation that the Senate passed in May, 2006, to establish an Indian
youth telemental health demonstration project. The Indian Youth
Telemental Health Demonstration Project Act of 2007 would authorize the
Secretary of Health and Human Services to carry out a 4-year
demonstration project under which five tribes and tribal organizations
with telehealth capabilities could use telemental health services in
youth suicide prevention, intervention, and treatment. Demonstration
project grantees would provide services through telemental health for
such purposes as counseling of Indian youth; providing medical advice
and other assistance to frontline tribal health providers; training for
community members, tribal
[[Page S694]]
elected officials, tribal educators, and health workers and others who
work with Indian youth; developing culturally sensitive materials on
suicide prevention and intervention; and collecting and reporting of
data.
The Committee on Indian Affairs held three hearings during the 109th
Congress on the issue of Indian youth suicide, including one hearing
that I convened in Bismarck, ND. Although on the Indian reservations of
the northern Great Plains, the rate of Indian youth suicide is 10 times
higher than it is anywhere else in the country, this tragic issue is
not limited to these locations. The committee has heard testimony from
people from tribal communities in Arizona, Oregon, Washington, Alaska,
New Mexico, and Wyoming, as well.
According to 2004 statistics from the National Center for Injury
Prevention and Control, suicide is the second leading cause of death,
behind unintentional injury, for American Indian and Alaska Native
young adults 15 to 24 years old, of both sexes--a statistic that has
sadly been true for the past 20 years. For North Dakota Indian girls 15
to 24 years old in 2004, suicide was the number one leading cause of
death.
I am grateful for the efforts of the Indian Health Service and the
Substance Abuse and Mental Health Services Administration, in
particular, both of which have, in a host of ways, sought to address
the reservation youth suicide crisis. SAMHSA is providing a 4-year
grant to the Standing Rock Sioux Tribe of North and South Dakota--a
tribe that had 12 Indian youth die by suicide over a 6-month period--to
provide mental health outreach workers. In addition, across the
country, tribal leaders, tribal health professionals, and service
providers and family members are working together to implement early
intervention plans, improve access to prevention programs, promote
community training and awareness, and reinstate traditional tribal
practices and culture-based interventions to address Native youth
suicides.
Many Indian reservations and Native villages in Alaska are remote and
isolated, and everyone who lives in those communities experiences much
more limited access to mental health services than in our Nation's
metropolitan areas. The testimony received by the Indian Affairs
Committee indicates that it is particularly in these remote Native
communities that there is a crisis among the youth. I believe that the
use of telemedicine--or, for purposes of this legislation, telemental
health--will prove a useful resource for the several tribes or tribal
organizations that will participate in this demonstration project in
assisting their youth.
In addition to introducing this legislation, I will include
authorization of this Indian Youth Telemental Health Demonstration
Project in legislation to reauthorize and amend the Indian Health Care
Improvement Act, which I intend to introduce soon.
I thank my colleagues who have joined me in sponsoring this
legislation and in being willing to talk and think hard about an issue
that many believe should be kept hidden. We must find ways to prevent
the needless loss of young Native American boys and girls whose whole
lives lie ahead of them, and from whom their tribal communities and all
of this country stand to benefit as these youth blossom in to their
potential as adults. I look forward to continuing our efforts to
address this sensitive and very important issue. I urge my colleagues
to support this legislation. 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. 322
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Youth Telemental
Health Demonstration Project Act of 2007''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds that--
(1) suicide for Indians and Alaska Natives is 2\1/2\ times
higher than the national average and the highest for all
ethnic groups in the United States, at a rate of more than 16
per 100,000 males of all age groups, and 27.9 per 100,000 for
males aged 15 through 24, according to data for 2002;
(2) according to national data for 2004, suicide was the
second-leading cause of death for Indians and Alaska Natives
of both sexes aged 10 through 34;
(3) the suicide rates of Indian and Alaska Native males
aged 15 through 24 are nearly 4 times greater than suicide
rates of Indian and Alaska Native females of that age group;
(4)(A) 90 percent of all teens who die by suicide suffer
from a diagnosable mental illness at the time of death; and
(B) more than \1/2\ of the people who commit suicide in
Indian Country have never been seen by a mental health
provider;
(5) death rates for Indians and Alaska Natives are
statistically underestimated;
(6) suicide clustering in Indian Country affects entire
tribal communities; and
(7) since 2003, the Indian Health Service has carried out a
National Suicide Prevention Initiative to work with Service,
tribal, and urban Indian health programs.
(b) Purpose.--The purpose of this Act is to authorize the
Secretary to carry out a demonstration project to test the
use of telemental health services in suicide prevention,
intervention, and treatment of Indian youth, including
through--
(1) the use of psychotherapy, psychiatric assessments,
diagnostic interviews, therapies for mental health conditions
predisposing to suicide, and alcohol and substance abuse
treatment;
(2) the provision of clinical expertise to, consultation
services with, and medical advice and training for frontline
health care providers working with Indian youth;
(3) training and related support for community leaders,
family members and health and education workers who work with
Indian youth;
(4) the development of culturally-relevant educational
materials on suicide; and
(5) data collection and reporting.
SEC. 3. DEFINITIONS.
In this Act:
(1) Demonstration project.--The term ``demonstration
project'' means the Indian youth telemental health
demonstration project authorized under section 4(a).
(2) Department.--The term ``Department'' means the
Department of Health and Human Services.
(3) Indian.--The term ``Indian'' means any individual who
is a member of an Indian tribe or is eligible for health
services under the Indian Health Care Improvement Act (25
U.S.C. 1601 et seq.).
(4) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(5) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(6) Service.--The term ``Service'' means the Indian Health
Service.
(7) Telemental health.--The term ``telemental health''
means the use of electronic information and
telecommunications technologies to support long distance
mental health care, patient and professional-related
education, public health, and health administration.
(8) Tribal organization.--The term ``tribal organization''
has the meaning given the term in section 4 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450b).
SEC. 4. INDIAN YOUTH TELEMENTAL HEALTH DEMONSTRATION PROJECT.
(a) Authorization.--
(1) In general.--The Secretary is authorized to carry out a
demonstration project to award grants for the provision of
telemental health services to Indian youth who--
(A) have expressed suicidal ideas;
(B) have attempted suicide; or
(C) have mental health conditions that increase or could
increase the risk of suicide.
(2) Eligibility for grants.--Grants described in paragraph
(1) shall be awarded to Indian tribes and tribal
organizations that operate 1 or more facilities--
(A) located in Alaska and part of the Alaska Federal Health
Care Access Network;
(B) reporting active clinical telehealth capabilities; or
(C) offering school-based telemental health services
relating to psychiatry to Indian youth.
(3) Grant period.--The Secretary shall award grants under
this section for a period of up to 4 years.
(4) Maximum number of grants.--Not more than 5 grants shall
be provided under paragraph (1), with priority consideration
given to Indian tribes and tribal organizations that--
(A) serve a particular community or geographic area in
which there is a demonstrated need to address Indian youth
suicide;
(B) enter into collaborative partnerships with Service or
other tribal health programs or facilities to provide
services under this demonstration project;
(C) serve an isolated community or geographic area which
has limited or no access to behavioral health services; or
(D) operate a detention facility at which Indian youth are
detained.
(b) Use of Funds.--
(1) In general.--An Indian tribe or tribal organization
shall use a grant received under subsection (a) for the
following purposes:
(A) To provide telemental health services to Indian youth,
including the provision of--
(i) psychotherapy;
(ii) psychiatric assessments and diagnostic interviews,
therapies for mental health conditions predisposing to
suicide, and treatment; and
[[Page S695]]
(iii) alcohol and substance abuse treatment.
(B) To provide clinician-interactive medical advice,
guidance and training, assistance in diagnosis and
interpretation, crisis counseling and intervention, and
related assistance to Service or tribal clinicians and health
services providers working with youth being served under the
demonstration project.
(C) To assist, educate, and train community leaders, health
education professionals and paraprofessionals, tribal
outreach workers, and family members who work with the youth
receiving telemental health services under the demonstration
project, including with identification of suicidal
tendencies, crisis intervention and suicide prevention,
emergency skill development, and building and expanding
networks among those individuals and with State and local
health services providers.
(D) To develop and distribute culturally-appropriate
community educational materials on--
(i) suicide prevention;
(ii) suicide education;
(iii) suicide screening;
(iv) suicide intervention; and
(v) ways to mobilize communities with respect to the
identification of risk factors for suicide.
(E) To conduct data collection and reporting relating to
Indian youth suicide prevention efforts.
(2) Traditional health care practices.--In carrying out the
purposes described in paragraph (1), an Indian tribe or
tribal organization may use and promote the traditional
health care practices of the Indian tribes of the youth to be
served.
(c) Applications.--To be eligible to receive a grant under
subsection (a), an Indian tribe or tribal organization shall
prepare and submit to the Secretary an application, at such
time, in such manner, and containing such information as the
Secretary may require, including--
(1) a description of the project that the Indian tribe or
tribal organization will carry out using the funds provided
under the grant;
(2) a description of the manner in which the project funded
under the grant would--
(A) meet the telemental health care needs of the Indian
youth population to be served by the project; or
(B) improve the access of the Indian youth population to be
served to suicide prevention and treatment services;
(3) evidence of support for the project from the local
community to be served by the project;
(4) a description of how the families and leadership of the
communities or populations to be served by the project would
be involved in the development and ongoing operations of the
project;
(5) a plan to involve the tribal community of the youth who
are provided services by the project in planning and
evaluating the mental health care and suicide prevention
efforts provided, in order to ensure the integration of
community, clinical, environmental, and cultural components
of the treatment; and
(6) a plan for sustaining the project after Federal
assistance for the demonstration project has terminated.
(d) Collaboration.--The Secretary, acting through the
Service, shall encourage Indian tribes and tribal
organizations receiving grants under this section to
collaborate to enable comparisons about best practices across
projects.
(e) Annual Report.--Each grant recipient shall submit to
the Secretary an annual report that--
(1) describes the number of telemental health services
provided; and
(2) includes any other information that the Secretary may
require.
(f) Report to Congress.--Not later than 270 days after the
date of termination of the demonstration project, the
Secretary shall submit to the Committee on Indian Affairs of
the Senate and the Committee on Resources and the Committee
on Energy and Commerce of the House of Representatives a
final report that--
(1) describes the results of the projects funded by grants
awarded under this section, including any data available that
indicate the number of attempted suicides;
(2) evaluates the impact of the telemental health services
funded by the grants in reducing the number of completed
suicides among Indian youth;
(3) evaluates whether the demonstration project should be--
(A) expanded to provide more than 5 grants; and
(B) designated a permanent program; and
(4) evaluates the benefits of expanding the demonstration
project to include urban Indian organizations.
(g) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $1,500,000 for
each of fiscal years 2008 through 2011.
______
By Mrs. BOXER:
S. 323. A bill to require persons seeking approval for a liquefied
natural gas facility to identify employees and agents engaged in
activities to persuade communities of the benefits of the approval; to
the Committee on Energy and Natural Resources.
Mrs. BOXER. Mr. President, I rise to discuss liquified natural gas
projects in California. As of August of last year, there are five
potential liquified natural gas projects in California. The projects
include the Cabrillo Deepwater Port LNG Facility, Clearwater Port LNG
Project, Long Beach LNG Facility, Ocean Way LNG Terminal, and the
Pacific Gateway LNG Facility.
LNG is natural gas in its liquid form. When natural gas is cooled to
minus 259 degrees Fahrenheit, it becomes a clear, colorless, odorless
liquid. Natural gas is transferred into LNG to transport it more
easily.
Although there is a need for natural gas, there are potential safety
concerns with the siting of new LNG facilities. According to the
California Energy Commission, ``LNG hazards result from three of its
properties: cryogenic temperatures, dispersion characteristics, and
flammability characteristics. The extremely cold LNG can directly cause
injury or damage. A vapor cloud, formed by an LNG spill, could drift
downwind into populated areas. It can ignite if the concentration of
natural gas is between five and 15 percent in air and it encounters an
ignition source. An LNG fire gives off a tremendous amount of heat.''
This is why many people who live near a potential LNG facility have
safety concerns. As a result, many companies try to ``sell'' the
projects to communities.
That is why today I am introducing this common sense bill. This bill
is identical to legislation that I introduced in the 109th Congress.
It would require any company seeking Federal Government approval to
submit, as part or its application, the names of employees and business
agents who are trying to persuade communities of the benefits of the
LNG facility.
This bill does not stop anyone from reaching out to local
communities. What this bill says is that if you are trying to get
approval for an LNG facility, whether on- or off-shore, you have to be
public about it. Today, if someone lobbies the federal government, he
or she needs to register so their affiliation and interests before the
government are publicly known. We should do the same for these
projects. As I said, it is common sense.
I urge my colleagues to support this bill. I ask unanimous consent
that the text of my bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 323
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. IDENTIFICATION OF PROPONENTS OF APPROVAL OF
LIQUIFIED NATURAL GAS FACILITIES.
(a) Liquefied Natural Gas Facilities Requiring FERC
Approval.--The Federal Energy Regulatory Commission shall--
(1) require an applicant for approval, by the Commission
under the Natural Gas Act (15 U.S.C. 717 et seq.), of the
siting, construction, expansion, or operation of a liquefied
natural gas facility to identify each of the employees and
agents of the applicant that are engaged, directly or
indirectly, in activities to persuade communities of the
benefits of the approval; and
(2) maintain a publicly available database listing the
names of the employees and agents.
(b) Off-Shore Liquified Natural Gas Facilities.--The
Secretary of Transportation and the Secretary of the
department in which the Coast Guard is operating shall--
(1) require an applicant for approval, by the appropriate
Secretary under the Deepwater Port Act of 1974 (33 U.S.C.
1501 et seq.), of the siting, construction, expansion, or
operation of a liquefied natural gas facility to identify
each of the employees and agents of the applicant that are
engaged, directly or indirectly, in activities to persuade
communities of the benefits of the approval; and
(2) maintain a publicly available database listing the
names of the employees and agents.
______
By Mr. DOMENICI (for himself and Mr. Bingaman):
S. 324. A bill to direct the Secretary of the Interior to conduct a
study of water resources in the State of New Mexico; to the Committee
on Energy and Natural Resources.
Mr. DOMENICI. Mr. President, above-average rainfall in New Mexico
last summer and recent snow fall have led many to turn a blind eye to
the grim water situation faced by our State only months ago. New Mexico
was fast approaching a disaster due to drought. Many of our
municipalities' wells were running dry and reservoirs were at
dangerously low levels. Providence intervened, narrowly averting a
crisis resulting from water scarcity.
[[Page S696]]
The development of the centrifugal pump was an event of great
significance in the history of the West. Windmill driven pumps provided
enough water for a family and several livestock. The centrifugal pump,
on the other hand, was capable of pumping eight hundred gallons of
water a minute, making possible the habitation of what was previously
barren desert. To a large extent, this invention provided the water for
growing towns and agricultural industry. However, it also resulted in a
great dependence on groundwater. As such, we need to fully understand
the nature and extent of our groundwater resources. This bill will
provide us with the information necessary to ensure that the water on
which we have come to rely is available for years to come.
During times of drought, when surface water is scarce, we must be
able to reliably turn to groundwater reserves. Approximately 90 percent
of New Mexicans depend on groundwater for drinking water and 77 percent
of New Mexicans obtain water exclusively from groundwater sources.
While groundwater supplies throughout the State are coming under
increasing competition, not enough is known about these resources in
order to make sound decisions regarding their use.
Nearly 40 percent of the State's population resides in the Middle Rio
Grande Basin. Once thought to contain vast quantities of water, we are
now faced with the reality the Middle Rio Grande Basin contains far
less water than originally thought. Between 1995 and 2001, the United
States Geological Survey undertook a study of the Basin which added
greatly to our knowledge regarding the primary source of water for our
largest population center. Had we proceeded with our water planning
without the information provided by this study, I have little doubt
that we would ultimately find ourselves in a dire situation. However,
there is much more to be learned about this Basin.
Roughly 65 percent of the State's population lives along the Rio
Grande. Also located along the river are the four largest cities in New
Mexico: Santa Fe, Albuquerque, Rio Rancho and Las Cruces. While the
completion of the San Juan-Chama Diversion by the Albuquerque
Bernalillo County Water Utility Authority will allow the County of
Bernalillo and City of Albuquerque to take advantage of their
allocation of San JuanChama water, the remainder of the cities and
counties located along the Rio Grande will continue to receive the
majority of their water from aquifers beneath the Rio Grande. Aside
from the Middle Rio Grande Basin, we have limited knowledge of the
amount of water contained in the aquifers below the Rio Grande, the
rate at which they recharge, aquifer contamination, and the interaction
between surface flows and ground water.
Elsewhere in the State, even less is understood regarding groundwater
resources. While there is limited unallocated surface water in the
State, there are significant quantities of untapped underground water
in the Tularosa and Salt Basins. The Tularosa Basin is approximately 60
miles wide and 200 miles long. Making the conservative estimate that 10
percent of the water contained in that aquifer is available for use
through desalination, it would provide 100 years of water for a city
the size of Albuquerque. With the development of desalination
technology, I anticipate that even a greater amount of the brackish
water contained in the Tularosa Basin will be available for human use.
Another untapped water supply is the Salt Basin located in southern
New Mexico. The Basin lies in a geologically complex area and our
understanding of the total resource is incomplete. However, initial
estimates predict sustainable withdrawals on the order of 100,000 acre-
feet per year of potable water from the New Mexico portion of the
aquifer. This is enough water to support a city the size of our largest
municipal area. Additional brackish resources in that Basin are highly
likely. Because the Basin is located near expanding metropolitan areas
near the U.S.-Mexico Border, it is a resource of critical importance.
The bill I introduce today would direct the United States Geological
Survey, in collaboration with the State of New Mexico, to undertake a
groundwater resources study in the State of New Mexico. A comprehensive
study of the State's water resources is critical to effective water
planning. Absent such a study, I fear that there is a significant
likelihood that we may be depleting aquifers at an unsustainable rate.
I thank Senator Bingaman for being an original co-sponsor of this
legislation. I look forward to working with him to ensure the bill's
passage.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 324
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 ``New Mexico Aquifer
Assessment Act of 2007''.
SEC. 2. NEW MEXICO WATER RESOURCES STUDY.
(a) In General.--The Secretary of the Interior, acting
through the Director of the United States Geological Survey
(referred to in this Act as the ``Secretary''), in
coordination with the State of New Mexico (referred to in
this Act as the ``State'') and any other entities that the
Secretary determines to be appropriate (including other
Federal agencies and institutions of higher education),
shall, in accordance with this Act and any other applicable
law, conduct a study of water resources in the State,
including--
(1) a survey of groundwater resources, including an
analysis of--
(A) aquifers in the State, including the quantity of water
in the aquifers;
(B) the availability of groundwater resources for human
use;
(C) the salinity of groundwater resources;
(D) the potential of the groundwater resources to recharge;
(E) the interaction between groundwater and surface water;
(F) the susceptibility of the aquifers to contamination;
and
(G) any other relevant criteria; and
(2) a characterization of surface and bedrock geology,
including the effect of the geology on groundwater yield and
quality.
(b) Study Areas.--The study carried out under subsection
(a) shall include the Estancia Basin, Salt Basin, Tularosa
Basin, Hueco Basin, and middle Rio Grande Basin in the State.
(c) Report.--Not later than 2 years after the date of
enactment of this Act, the Secretary shall submit to the
Committee on Energy and Natural Resources of the Senate and
the Committee on Resources of the House of Representatives a
report that describes the results of the study.
(d) Authorization of Appropriations.--There are authorized
to be appropriated such sums as are necessary to carry out
this Act.
______
By Mr. BINGAMAN (for himself and Mr. Voinovich):
S. 325. A bill to provide for innovation in heath care through State
initiatives that expand coverage and access and improve quality and
efficiency in the health care system; to the Committee on Health,
Education, Labor, and Pensions.
Mr. BINGAMAN. Mr. President, I rise today to introduce bipartisan
legislation with Senator Voinovich entitled the ``Health Partnership
Act of 2007,'' which along with a companion House bill introduced by
Representatives Tammy Baldwin, John Tierney, and Tom Price, intends to
set us on a path toward affordable, quality health care for all
Americans. The Health Partnership Act creates partnerships between the
Federal Government, State and local governments, tribes and tribal
organizations, private payers, and health care providers to seek
innovation in health care systems.
Under this Act, States, local governments, and tribes and tribal
governments would be invited to submit applications to the Federal
Government for funding to implement expansion and improvements to
current health programs for review by a bipartisan ``State Health
Innovation Commission.'' Based on funding available through the Federal
budget process, the Commission would approve a variety of reform
options and innovative approaches.
This federalist approach to health reform would encourage a broad
array of reform options subject to monitoring, to determine what is and
is not successful. As Supreme Court Justice Louis D. Brandeis wrote in
1932, ``It is one of the happy incidents of the federal system that a
single courageous State may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without risk
to the rest of the country.''
Our bipartisan legislation, the ``Health Partnership Act,''
encourages
[[Page S697]]
this type of State-based innovation and will help the Nation better
address both the policy and the politics of health care reform.
Currently, we do not have a ``one-size-fits-all'' model of reform, so
encouraging States, local governments, and tribes to adopt a variety of
approaches will help us better understand what may or may not work.
Inaction on the growing and related problems of the uninsured and
increasing health care costs is unacceptable and unconscionable.
In fact, while spending on health care in our country has reached $2
trillion annually, the number of uninsured has increased to nearly 47
million people, seven million more than in 2000. The consequences are
staggering, as uninsured citizens get about half the medical care they
need compared to those with health insurance and, according to the
Institute of Medicine, about 18,000 unnecessary deaths occur each year
in the U.S. because of lack of health insurance.
While gridlock continues to permeate Washington, DC, in regards to
this issue, a number of States and local governments are moving ahead
with health reform. The ``Health Partnership Act'' would provide
support, in the form of grants, to States, groups of States, local
governments, and Indian tribes and tribal organizations to carry out
any of a broad range of strategies intended to reduce the number of
uninsured, reduce costs, and improve the quality of care.
Responding to urgent needs, State and local governments have not been
able to wait for Federal action. We observed this in the early 1990s as
States such as New Mexico, Massachusetts, Pennsylvania, Florida, Rhode
Island, Hawaii, Maryland, Tennessee, Vermont, and Washington led the
way to expanding coverage to children through the enactment of a
variety of health reforms. Evaluation proved that some of these
programs worked better than others, so the Federal Government took note
and responded in 1997 with passage of the ``State Children's Health
Insurance Program'' or SCHIP. This legislation, built upon experiences
of the States, enjoyed broad bipartisan support. SCHIP is a popular and
successful State-based model that covers millions of children and
continues to have broad-based bipartisan support across this Nation.
So, why not use that successful model and build upon it? In fact,
State and local governments are already taking up that challenge and
the Federal Government should, through the enactment of the ``Health
Partnership Act,'' do what it can to be helpful with those efforts. For
example--
On November 15, 2005, Illinois Governor Rod Blagojevich signed into
law the ``Covering All Kids Health Insurance Act'' which, beginning in
July 2006, intended to make insurance coverage available to all
uninsured children.
In April, Massachusetts Governor Mitt Romney signed into law
legislation that requires all Bay State residents to have health
insurance. Their State experiment involves partnerships between the
State Medicaid, employer groups, and insurance companies.
Now California's Governor Schwarzenegger proposes health reform to
include health promotion and wellness services for all, insurance
coverage, and cost containment measures.
Other States, including New Mexico, Vermont, Tennessee, Maine, West
Virginia, Oklahoma, and New York have enacted other health reforms that
have had mixed success.
All of these efforts add importantly to our knowledge base, and can
then lead to a national solution to our uninsured and affordability
crisis. We can learn from each and every one of these efforts,
including those which failed.
Commonwealth Fund President Karen Davis said it well by noting that
State-based reforms, such as that passed in Massachusetts, are very
good news. As she notes, ``First, any substantive effort to expand
access to coverage is worthwhile, given the growing number of uninsured
in this country and the large body of evidence showing the dangerous
health implications of lacking coverage.''
She adds, ``But something more important is at work here. While we
urgently need a national solution so that all Americans have insurance,
it doesn't appear that we'll be getting one at the Federal level any
time soon. So what Massachusetts has done potentially holds lessons for
every State.'' I would add that it holds lessons for the Federal
Government as well and not just for the mechanics of implementing
health reform policy but also to the politics of health reform.
As she concludes, ``One particularly cogent lesson is the manner in
which the measure was crafted--via a civil process that successfully
brought together numerous players from across the political business,
health care delivery, and policy sectors.''
Senator Voinovich and I have worked together and reached out to like
minded colleagues in the House of Representatives via a process much
like that described by Karen Davis. The legislation stems from past
legislative efforts by Senators such as Bob Graham, Mark Hatfield, and
Paul Wellstone, but also from work across ideological lines by Henry
Aaron of the Brookings Institution and Stuart Butler of the Heritage
Foundation.
The legislation also benefits from advice and support from health
care providers. Dr. Tim Garson who, as Dean of the University of
Virginia, brought a much needed provider perspective, ensuring support
from the House of Medicine. Supporters include the American Medical
Association, the American Academy of Pediatrics, the American College
of Physicians, the American College of Cardiology, American
Gastroenterological Association, the Visiting Nurses Association, the
National Association of Community Health Centers, and from state-based
health providers such as the New Mexico Medical Society and Ohio
Association of Community Health Centers.
The Health Partnership Act supports providers.
The Health Partnership Act received much comment and support from
consumer-based groups advocating for national health reform, including
that by Dr. Ken Frisof of the Universal Health Care Action Network,
Bill Vaughan at Consumers Union, and from numerous health care
advocates in New Mexico, including Community Action New Mexico, Health
Action New Mexico, Health Care for All Campaign of New Mexico, New
Mexico Center on Law and Poverty, New Mexico Health Choices Initiative,
New Mexico POZ Coalition, New Mexico Public Health Association, New
Mexico Religious Coalition for Reproductive Choice, New Mexico
Progressive Alliance for Community Empowerment, and the Health Security
for New Mexicans Campaign, which includes 115 State-based
organizations.
The Health Partnership Act supports consumers.
Support from stakeholders throughout our Nation's health care system
has been sought and I would like to thank the many organizations from
New Mexico for their support and input to this legislation. There is
great urgency in New Mexico because our State, like all of those along
the U.S.-Mexico border, faces a severe health care crisis. Over one in
five New Mexicans does not have insurance coverage. In fact, only one
State, Texas, has more uninsured. New Mexico is also the only State in
the country with greater than half of its population covered by State
or federally funded health programs.
A rather shocking statistic, which also continues to worsen, is that
one out of every three Hispanic citizens are uninsured. In fact, less
than 41 percent of the Hispanic population now has employer-based
coverage nationwide, which is in sharp comparison to the 66 percent of
non-Hispanic whites who have employer-based coverage.
Because so few New Mexicans have employer-based health insurance, the
State of New Mexico has enacted its own health reform plan called the
State Coverage Initiative, or SCI, in July 2005. SCI is a public/
private partnership intended to expand employer-sponsored insurance,
developed in part with grant funding from the Robert Wood Johnson
Foundation. As of December 2006, there were 4,256 people covered by
this initiative and there are efforts to expand this effort to cover
over 20,000 individuals. With Federal support for my State, the hope
would be to further expand coverage to as many New Mexicans as
possible.
The Health Partnership Act encourages reforms at both the state and
local levels of government. Senator Voinovich, as former mayor of
Cleveland, suggested language that would capture community-based
efforts as well. Illinois, Georgia, Michigan, and
[[Page S698]]
Oregon have all initiated efforts at the local level for reform,
including so-called ``three-share'' programs in Illinois and Michigan.
Under these initiatives, employers, employees, and the community each
pick up about one-third of the cost of programs.
Jeaneane Smith, deputy administrator in the Office of Oregon Health
Policy and Research was recently quoted by an Academy Health
publication stating, ``In recent years it has become apparent that
there is a need to consider both state- and community-level approaches
to improved access. We want to learn how best to support communities as
they play an integral part in addressing the gaps in coverage.''
The Health Partnership Act supports communities.
Our hope is to spawn innovation. Brookings Institution senior health
fellow Henry Aaron and Heritage Foundation vice president Stuart Butler
wrote a Health Affairs article in March 2004 that lays out the
foundation for this legislative effort. They argue that while we remain
unable to reconcile how best to expand coverage at the Federal level,
we can agree to support states in their efforts to try widely differing
solutions to health coverage, cost containment, and quality
improvement. As they write, ``this approach offers both a way to
improve knowledge about how to reform health care and a practical way
to initiate a process of reform. Such a pluralist approach respects the
real, abiding differences in politics, preferences, traditions, and
institutions across the nation. It also implies a willingness to accept
differences over an extended period in order to make progress. And it
recognizes that permitting wide diversity can foster consensus by
revealing the strengths and exposing the weaknesses of rival
approaches.''
In addition to Dr. Garson, Mr. Aaron, Mr. Butler, and Dr. Frisof, I
would like to express my appreciation to Dan Hawkins at the National
Association of Community Health Centers, Bill Vaughan at Consumers
Union, and both Jack Meyer and Stan Dorn at ESRI for their counsel and
guidance on health reform and this legislation.
I would also like to commend the American College of Physicians, or
ACP, for their outstanding leadership on the issue of the uninsured and
for their willingness to support a variety of efforts to expand health
coverage. ACP has been a longstanding advocate for expanding health
coverage and has authored landmark reports on the important role that
health insurance has in reducing people's morbidity and mortality. In
fact, to cite the conclusion of one of those studies, ``Lack of
insurance contributes to the endangerment of the health of each
uninsured American as well as the collective health of the Nation.''
And finally, I would also thank the many people at the Robert Wood
Johnson Foundation on their forethought and knowledge on all the issues
confronting the uninsured. Their efforts to continue the dialogue on
the uninsured has successfully kept the issue alive for many years.
I urge my colleagues to break the gridlock and support this
legislation, which offers financial support to states, communities,
providers, and consumers, as they adopt important innovations in
healthcare coverage and expansion.
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. 325
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Health Partnership Act''.
SEC. 2. STATE HEALTH REFORM PROJECTS.
(a) Purpose; Establishment of State Health Care Expansion
and Improvement Program.--The purposes of the programs
approved under this section shall include, but not be limited
to--
(1) achieving the goals of increased health coverage and
access;
(2) ensuring that patients receive high-quality,
appropriate health care;
(3) improving the efficiency of health care spending; and
(4) testing alternative reforms, such as building on the
public or private health systems, or creating new systems, to
achieve the objectives of this Act.
(b) Applications by States, Local Governments, and
Tribes.--
(1) Entities that may apply.--
(A) In general.--A State, in consultation with local
governments, Indian tribes, and Indian organizations involved
in the provision of health care, may apply for a State health
care expansion and improvement program for the entire State
(or for regions of the State) under paragraph (2).
(B) Regional groups.--A regional entity consisting of more
than one State may apply for a multi-State health care
expansion and improvement program for the entire region
involved under paragraph (2).
(C) Definition.--In this Act, the term ``State'' means the
50 States, the District of Columbia, and the Commonwealth of
Puerto Rico. Such term shall include a regional entity
described in subparagraph (B).
(2) Submission of application.--In accordance with this
section, each State desiring to implement a State health care
expansion and improvement program may submit an application
to the State Health Innovation Commission under subsection
(c) (referred to in this section as the ``Commission'') for
approval.
(3) Local government applications.--
(A) In general.--Where a State declines to submit an
application under this section, a unit of local government of
such State, or a consortium of such units of local
governments, may submit an application directly to the
Commission for programs or projects under this subsection.
Such an application shall be subject to the requirements of
this section.
(B) Other applications.--Subject to such additional
guidelines as the Secretary may prescribe, a unit of local
government, Indian tribe, or Indian health organization may
submit an application under this section, whether or not the
State submits such an application, if such unit of local
government can demonstrate unique demographic needs or a
significant population size that warrants a substate program
under this subsection.
(c) State Health Innovation Commission.--
(1) In general.--Within 90 days after the date of the
enactment of this Act, the Secretary shall establish a State
Health Innovation Commission that shall--
(A) be comprised of--
(i) the Secretary;
(ii) four State governors to be appointed by the National
Governors Association on a bipartisan basis;
(iii) two members of a State legislature to be appointed by
the National Conference of State Legislators on a bipartisan
basis;
(iv) two county officials to be appointed by the National
Association of Counties on a bipartisan basis;
(v) two mayors to be appointed by the United States
Conference of Mayors and the National League of Cities on a
joint and bipartisan basis;
(vi) two individuals to be appointed by the Speaker of the
House of Representatives;
(vii) two individuals to be appointed by the Minority
Leader of the House of Representatives;
(viii) two individuals to be appointed by the Majority
Leader of the Senate;
(ix) two individuals to be appointed by the Minority Leader
of the Senate; and
(x) two individuals who are members of federally-recognized
Indian tribes to be appointed on a bipartisan basis by the
National Congress of American Indians;
(B) upon approval of \2/3\ of the members of the
Commission, provide the States with a variety of reform
options for their applications, such as tax credit
approaches, expansions of public programs such as medicaid
and the State Children's Health Insurance Program, the
creation of purchasing pooling arrangements similar to the
Federal Employees Health Benefits Program, individual market
purchasing options, single risk pool or single payer systems,
health savings accounts, a combination of the options
described in this clause, or other alternatives determined
appropriate by the Commission, including options suggested by
States, Indian tribes, or the public;
(C) establish, in collaboration with a qualified and
independent organization such as the Institute of Medicine,
minimum performance measures and goals with respect to
coverage, quality, and cost of State programs, as described
under subsection (d)(1);
(D) conduct a thorough review of the grant application from
a State and carry on a dialogue with all State applicants
concerning possible modifications and adjustments;
(E) submit the recommendations and legislative proposal
described in subsection (d)(4)(B);
(F) be responsible for monitoring the status and progress
achieved under program or projects granted under this
section;
(G) report to the public concerning progress made by States
with respect to the performance measures and goals
established under this Act, the periodic progress of the
State relative to its State performance measures and goals,
and the State program application procedures, by region and
State jurisdiction;
(H) promote information exchange between States and the
Federal Government; and
(I) be responsible for making recommendations to the
Secretary and the Congress, using equivalency or minimum
standards, for minimizing the negative effect of State
program on national employer groups, provider organizations,
and insurers because of
[[Page S699]]
differing State requirements under the programs.
(2) Period of appointment; representation requirements;
vacancies.--Members shall be appointed for a term of 5 years.
In appointing such members under paragraph (1)(A), the
designated appointing individuals shall ensure the
representation of urban and rural areas and an appropriate
geographic distribution of such members. Any vacancy in the
Commission shall not affect its powers, but shall be filled
in the same manner as the original appointment.
(3) Chairperson, meetings.--
(A) Chairperson.--The Commission shall select a Chairperson
from among its members.
(B) Quorum.--A majority of the members of the Commission
shall constitute a quorum, but a lesser number of members may
hold hearings.
(C) Meetings.--Not later than 30 days after the date on
which all members of the Commission have been appointed, the
Commission shall hold its first meeting. The Commission shall
meet at the call of the Chairperson.
(4) Powers of the commission.--
(A) Negotiations with states.--The Commission may conduct
detailed discussions and negotiations with States submitting
applications under this section, either individually or in
groups, to facilitate a final set of recommendations for
purposes of subsection (d)(4)(B). Such negotiations shall
include consultations with Indian tribes, and be conducted in
a public forum.
(B) Hearings.--The Commission may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Commission considers advisable
to carry out the purposes of this subsection.
(C) Meetings.--In addition to other meetings the Commission
may hold, the Commission shall hold an annual meeting with
the participating States under this section for the purpose
of having States report progress toward the purposes in
subsection (a)(1) and for an exchange of information.
(D) Information.--The Commission may secure directly from
any Federal department or agency such information as the
Commission considers necessary to carry out the provisions of
this subsection. Upon request of the Chairperson of the
Commission, the head of such department or agency shall
furnish such information to the Commission if the head of the
department or agency involved determines it appropriate.
(E) Postal services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(5) Personnel matters.--
(A) Compensation.--Each member of the Commission who is not
an officer or employee of the Federal Government or of a
State or local government shall be compensated at a rate
equal to the daily equivalent of the annual rate of basic pay
prescribed for level IV of the Executive Schedule under
section 5315 of title 5, United States Code, for each day
(including travel time) during which such member is engaged
in the performance of the duties of the Commission. All
members of the Commission who are officers or employees of
the United States shall serve without compensation in
addition to that received for their services as officers or
employees of the United States.
(B) Travel expenses.--The members of the Commission shall
be allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(C) Staff.--The Chairperson of the Commission may, without
regard to the civil service laws and regulations, appoint and
terminate an executive director and such other additional
personnel as may be necessary to enable the Commission to
perform its duties. The employment of an executive director
shall be subject to confirmation by the Commission.
(D) Detail of government employees.--Any Federal Government
employee may be detailed to the Commission without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
(E) Temporary and intermittent services.--The Chairperson
of the Commission may procure temporary and intermittent
services under section 3109(b) of title 5, United States
Code, at rates for individuals which do not exceed the daily
equivalent of the annual rate of basic pay prescribed for
level V of the Executive Schedule under section 5316 of such
title.
(6) Funding.--For the purpose of carrying out this
subsection, there are authorized to be appropriated
$3,000,000 for fiscal year 2007 and each fiscal year
thereafter.
(d) Requirements for Programs.--
(1) State plan.--A State that seeks to receive a grant
under subsection (f) to operate a program under this section
shall prepare and submit to the Commission, as part of the
application under subsection (b), a State health care plan
that shall have as its goal improvements in coverage, quality
and costs. To achieve such goal, the State plan shall comply
with the following:
(A) Coverage.--With respect to coverage, the State plan
shall--
(i) provide and describe the manner in which the State will
ensure that an increased number of individuals residing
within the State will have expanded access to health care
coverage with a specific 5-year target for reduction in the
number of uninsured individuals through either private or
public program expansion, or both, in accordance with the
options established by the Commission;
(ii) describe the number and percentage of current
uninsured individuals who will achieve coverage under the
State health program;
(iii) describe the minimum benefits package that will be
provided to all classes of beneficiaries under the State
health program;
(iv) identify Federal, State, or local and private programs
that currently provide health care services in the State and
describe how such programs could be coordinated with the
State health program, to the extent practicable; and
(v) provide for improvements in the availability of
appropriate health care services that will increase access to
care in urban, rural, and frontier areas of the State with
medically underserved populations or where there is an
inadequate supply of health care providers.
(B) Quality.--With respect to quality, the State plan
shall--
(i) provide a plan to improve health care quality in the
State, including increasing effectiveness, efficiency,
timeliness, patient focused, equity while reducing health
disparities, and medical errors; and
(ii) contain appropriate results-based quality indicators
established by the Commission that will be addressed by the
State as well as State-specific quality indicators.
(C) Costs.--With respect to costs, the State plan shall--
(i) provide that the State will develop and implement
systems to improve the efficiency of health care, including a
specific 5-year target for reducing administrative costs
(including paperwork burdens);
(ii) describe the public and private sector financing to be
provided for the State health program;
(iii) estimate the amount of Federal, State, and local
expenditures, as well as, the costs to business and
individuals under the State health program;
(iv) describe how the State plan will ensure the financial
solvency of the State health program; and
(v) provide that the State will prepare and submit to the
Secretary and the Commission such reports as the Secretary or
Commission may require to carry out program evaluations.
(D) Health information technology.--With respect to health
information technology, the State plan shall provide
methodology for the appropriate use of health information
technology to improve infrastructure, such as improving the
availability of evidence-based medical and outcomes data to
providers and patients, as well as other health information
(such as electronic health records, electronic billing, and
electronic prescribing).
(2) Technical assistance.--The Secretary shall, if
requested, provide technical assistance to States to assist
such States in developing applications and plans under this
section, including technical assistance by private sector
entities if determined appropriate by the Commission.
(3) Initial review.--With respect to a State application
for a grant under subsection (b), the Secretary and the
Commission shall complete an initial review of such State
application within 60 days of the receipt of such
application, analyze the scope of the proposal, and determine
whether additional information is needed from the State. The
Commission shall advise the State within such period of the
need to submit additional information.
(4) Final determination.--
(A) In general.--Not later than 90 days after completion of
the initial review under paragraph (3), the Commission shall
determine whether to submit a State proposal to Congress for
approval.
(B) Voting.--
(i) In general.--The determination to submit a State
proposal to Congress under subparagraph (A) shall be approved
by \2/3\ of the members of the Commission who are eligible to
participate in such determination subject to clause (ii).
(ii) Eligibility.--A member of the Commission shall not
participate in a determination under subparagraph (A) if--
(I) in the case of a member who is a Governor, such
determination relates to the State of which the member is the
Governor; or
(II) in the case of member not described in subclause (I),
such determination relates to the geographic area of a State
of which such member serves as a State or local official.
(C) Submission.--Not later than 90 days prior to October 1
of each fiscal year, the Commission shall submit to Congress
a list, in the form of a legislative proposal, of the State
applications that the Commission recommends for approval
under this section.
(D) Approval.--With respect to a fiscal year, a State
proposal that has been recommended under subparagraph (B)
shall be deemed to be approved, and subject to the
availability of appropriations, Federal funds shall be
provided to such program, unless a joint resolution has been
enacted disapproving such proposal as provided for in
[[Page S700]]
subsection (e). Nothing in the preceding sentence shall be
construed to include the approval of State proposals that
involve waivers or modifications in applicable Federal law.
(5) Program or project period.--A State program or project
may be approved for a period of 5 years and may be extended
for subsequent 5-year periods upon approval by the Commission
and the Secretary, based upon achievement of targets, except
that a shorter period may be requested by a State and granted
by the Secretary.
(e) Expedited Congressional Consideration.--
(1) Introduction and committee consideration.--
(A) Introduction.--The legislative proposal submitted
pursuant to subsection (d)(4)(B) shall be in the form of a
joint resolution (in this subsection referred to as the
``resolution''). Such resolution shall be introduced in the
House of Representatives by the Speaker, and in the Senate,
by the Majority Leader, immediately upon receipt of the
language and shall be referred to the appropriate committee
of Congress. If the resolution is not introduced in
accordance with the preceding sentence, the resolution may be
introduced in either House of Congress by any member thereof.
(B) Committee consideration.--A resolution introduced in
the House of Representatives shall be referred to the
Committee on Ways and Means of the House of Representatives.
A resolution introduced in the Senate shall be referred to
the Committee on Finance of the Senate. Not later than 15
calendar days after the introduction of the resolution, the
committee of Congress to which the resolution was referred
shall report the resolution or a committee amendment thereto.
If the committee has not reported such resolution (or an
identical resolution) at the end of 15 calendar days after
its introduction or at the end of the first day after there
has been reported to the House involved a resolution,
whichever is earlier, such committee shall be deemed to be
discharged from further consideration of such reform bill and
such reform bill shall be placed on the appropriate calendar
of the House involved.
(2) Expedited procedure.--
(A) Consideration.--Not later than 5 days after the date on
which a committee has been discharged from consideration of a
resolution, the Speaker of the House of Representatives, or
the Speaker's designee, or the Majority Leader of the Senate,
or the Leader's designee, shall move to proceed to the
consideration of the committee amendment to the resolution,
and if there is no such amendment, to the resolution. It
shall also be in order for any member of the House of
Representatives or the Senate, respectively, to move to
proceed to the consideration of the resolution at any time
after the conclusion of such 5-day period. All points of
order against the resolution (and against consideration of
the resolution) are waived. A motion to proceed to the
consideration of the resolution is highly privileged in the
House of Representatives and is privileged in the Senate and
is not debatable. The motion is not subject to amendment, to
a motion to postpone consideration of the resolution, or to a
motion to proceed to the consideration of other business. A
motion to reconsider the vote by which the motion to proceed
is agreed to or not agreed to shall not be in order. If the
motion to proceed is agreed to, the House of Representatives
or the Senate, as the case may be, shall immediately proceed
to consideration of the resolution without intervening
motion, order, or other business, and the resolution shall
remain the unfinished business of the House of
Representatives or the Senate, as the case may be, until
disposed of.
(B) Consideration by other house.--If, before the passage
by one House of the resolution that was introduced in such
House, such House receives from the other House a resolution
as passed by such other House--
(i) the resolution of the other House shall not be referred
to a committee and may only be considered for final passage
in the House that receives it under clause (iii);
(ii) the procedure in the House in receipt of the
resolution of the other House, with respect to the resolution
that was introduced in the House in receipt of the resolution
of the other House, shall be the same as if no resolution had
been received from the other House; and
(iii) notwithstanding clause (ii), the vote on final
passage shall be on the reform bill of the other House.
Upon disposition of a resolution that is received by one
House from the other House, it shall no longer be in order to
consider the resolution bill that was introduced in the
receiving House.
(C) Consideration in conference.--Immediately upon a final
passage of the resolution that results in a disagreement
between the two Houses of Congress with respect to the
resolution, conferees shall be appointed and a conference
convened. Not later than 10 days after the date on which
conferees are appointed, the conferees shall file a report
with the House of Representatives and the Senate resolving
the differences between the Houses on the resolution.
Notwithstanding any other rule of the House of
Representatives or the Senate, it shall be in order to
immediately consider a report of a committee of conference on
the resolution filed in accordance with this subclause.
Debate in the House of Representatives and the Senate on the
conference report shall be limited to 10 hours, equally
divided and controlled by the Speaker of the House of
Representatives and the Minority Leader of the House of
Representatives or their designees and the Majority and
Minority Leaders of the Senate or their designees. A vote on
final passage of the conference report shall occur
immediately at the conclusion or yielding back of all time
for debate on the conference report.
(3) Rules of the senate and house of representatives.--This
subsection is enacted by Congress--
(A) as an exercise of the rulemaking power of the Senate
and House of Representatives, respectively, and is deemed to
be part of the rules of each House, respectively, but
applicable only with respect to the procedure to be followed
in that House in the case of a resolution, and it supersedes
other rules only to the extent that it is inconsistent with
such rules; and
(B) with full recognition of the constitutional right of
either House to change the rules (so far as they relate to
the procedure of that House) at any time, in the same manner,
and to the same extent as in the case of any other rule of
that House.
(4) Limitation.--The amount of Federal funds provided with
respect to any State proposal that is deemed approved under
subsection (d)(3) shall not exceed the cost provided for such
proposals within the concurrent resolution on the budget as
enacted by Congress for the fiscal year involved.
(f) Funding.--
(1) In general.--The Secretary shall provide a grant to a
State that has an application approved under subsection (b)
to enable such State to carry out an innovative State health
program in the State.
(2) Amount of grant.--The amount of a grant provided to a
State under paragraph (1) shall be determined based upon the
recommendations of the Commission, subject to the amount
appropriated under subsection (k).
(3) Performance-based funding allocation and
prioritization.--In awarding grants under paragraph (1), the
Secretary shall--
(A) fund a diversity of approaches as provided for by the
Commission in subsection (c)(1)(B);
(B) give priority to those State programs that the
Commission determines have the greatest opportunity to
succeed in providing expanded health insurance coverage and
in providing children, youth, and other vulnerable
populations with improved access to health care items and
services; and
(C) link allocations to the State to the meeting of the
goals and performance measures relating to health care
coverage, quality, and health care costs established under
this Act through the State project application process.
(4) Maintenance of effort.--A State, in utilizing the
proceeds of a grant received under paragraph (1), shall
maintain the expenditures of the State for health care
coverage purposes for the support of direct health care
delivery at a level equal to not less than the level of such
expenditures maintained by the State for the fiscal year
preceding the fiscal year for which the grant is received.
(5) Report.--At the end of the 5-year period beginning on
the date on which the Secretary awards the first grant under
paragraph (1), the State Health Innovation Advisory
Commission established under subsection (c) shall prepare and
submit to the appropriate committees of Congress, a report on
the progress made by States receiving grants under paragraph
(1) in meeting the goals of expanded coverage, improved
quality, and cost containment through performance measures
established during the 5-year period of the grant. Such
report shall contain the recommendation of the Commission
concerning any future action that Congress should take
concerning health care reform, including whether or not to
extend the program established under this subsection.
(g) Monitoring and Evaluation.--
(1) Annual reports and participation by states.--Each State
that has received a program approval shall--
(A) submit to the Commission an annual report based on the
period representing the respective State's fiscal year,
detailing compliance with the requirements established by the
Commission and the Secretary in the approval and in this
section; and
(B) participate in the annual meeting under subsection
(c)(4)(B).
(2) Evaluations by commission.--The Commission, in
consultation with a qualified and independent organization
such as the Institute of Medicine, shall prepare and submit
to the Committee on Finance and the Committee on Health,
Education, Labor, and Pensions of the Senate and the
Committee on Energy and Commerce, the Committee on Education
and Labor, and the Committee on Ways and Means of the House
of Representatives annual reports that shall contain--
(A) a description of the effects of the reforms undertaken
in States receiving approvals under this section;
(B) a description of the recommendations of the Commission
and actions taken based on these recommendations;
(C) an evaluation of the effectiveness of such reforms in--
(i) expanding health care coverage for State residents;
(ii) improving the quality of health care provided in the
States; and
(iii) reducing or containing health care costs in the
States;
[[Page S701]]
(D) recommendations regarding the advisability of
increasing Federal financial assistance for State ongoing or
future health program initiatives, including the amount and
source of such assistance; and
(E) as required by the Commission or the Secretary under
subsection (f)(5), a periodic, independent evaluation of the
program.
(h) Noncompliance.--
(1) Corrective action plans.--If a State is not in
compliance with a requirements of this section, the Secretary
shall develop a corrective action plan for such State.
(2) Termination.--For good cause and in consultation with
the Commission, the Secretary may revoke any program granted
under this section. Such decisions shall be subject to a
petition for reconsideration and appeal pursuant to
regulations established by the Secretary.
(i) Relationship to Federal Programs.--
(1) In general.--Nothing in this Act, or in section 1115 of
the Social Security Act (42 U.S.C. 1315) shall be construed
as authorizing the Secretary, the Commission, a State, or any
other person or entity to alter or affect in any way the
provisions of title XIX of such Act (42 U.S.C. 1396 et seq.)
or the regulations implementing such title.
(2) Maintenance of effort.--No payment may be made under
this section if the State adopts criteria for benefits,
income, and resource standards and methodologies for purposes
of determining an individual's eligibility for medical
assistance under the State plan under title XIX that are more
restrictive than those applied as of the date of enactment of
this Act.
(j) Miscellaneous Provisions.--
(1) Application of certain requirements.--
(A) Restriction on application of preexisting condition
exclusions.--
(i) In general.--Subject to subparagraph (B), a State shall
not permit the imposition of any preexisting condition
exclusion for covered benefits under a program or project
under this section.
(ii) Group health plans and group health insurance
coverage.--If the State program or project provides for
benefits through payment for, or a contract with, a group
health plan or group health insurance coverage, the program
or project may permit the imposition of a preexisting
condition exclusion but only insofar and to the extent that
such exclusion is permitted under the applicable provisions
of part 7 of subtitle B of title I of the Employee Retirement
Income Security Act of 1974 and title XXVII of the Public
Health Service Act.
(B) Compliance with other requirements.--Coverage offered
under the program or project shall comply with the
requirements of subpart 2 of part A of title XXVII of the
Public Health Service Act insofar as such requirements apply
with respect to a health insurance issuer that offers group
health insurance coverage.
(2) Prevention of duplicative payments.--
(A) Other health plans.--No payment shall be made to a
State under this section for expenditures for health
assistance provided for an individual to the extent that a
private insurer (as defined by the Secretary by regulation
and including a group health plan (as defined in section
607(1) of the Employee Retirement Income Security Act of
1974), a service benefit plan, and a health maintenance
organization) would have been obligated to provide such
assistance but for a provision of its insurance contract
which has the effect of limiting or excluding such obligation
because the individual is eligible for or is provided health
assistance under the plan.
(B) Other federal governmental programs.--Except as
provided in any other provision of law, no payment shall be
made to a State under this section for expenditures for
health assistance provided for an individual to the extent
that payment has been made or can reasonably be expected to
be made promptly (as determined in accordance with
regulations) under any other federally operated or financed
health care insurance program, other than an insurance
program operated or financed by the Indian Health Service, as
identified by the Secretary. For purposes of this paragraph,
rules similar to the rules for overpayments under section
1903(d)(2) of the Social Security Act shall apply.
(3) Application of certain general provisions.--The
following sections of the Social Security Act shall apply to
States under this section in the same manner as they apply to
a State under such title XIX:
(A) Title xix provisions.--
(i) Section 1902(a)(4)(C) (relating to conflict of interest
standards).
(ii) Paragraphs (2), (16), and (17) of section 1903(i)
(relating to limitations on payment).
(iii) Section 1903(w) (relating to limitations on provider
taxes and donations).
(iv) Section 1920A (relating to presumptive eligibility for
children).
(B) Title xi provisions.--
(i) Section 1116 (relating to administrative and judicial
review), but only insofar as consistent with this title.
(ii) Section 1124 (relating to disclosure of ownership and
related information).
(iii) Section 1126 (relating to disclosure of information
about certain convicted individuals).
(iv) Section 1128A (relating to civil monetary penalties).
(v) Section 1128B(d) (relating to criminal penalties for
certain additional charges).
(vi) Section 1132 (relating to periods within which claims
must be filed).
(4) Relation to other laws.--
(A) HIPAA.--Health benefits coverage provided under a State
program or project under this section shall be treated as
creditable coverage for purposes of part 7 of subtitle B of
title I of the Employee Retirement Income Security Act of
1974, title XXVII of the Public Health Service Act, and
subtitle K of the Internal Revenue Code of 1986.
(B) ERISA.--Nothing in this section shall be construed as
affecting or modifying section 514 of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1144) with respect to
a group health plan (as defined in section 2791(a)(1) of the
Public Health Service Act (42 U.S.C. 300gg-91(a)(1))).
(k) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section, such sums as
may be necessary in each fiscal year. Amounts appropriated
for a fiscal year under this subsection and not expended may
be used in subsequent fiscal years to carry out this section.
Mr. VOINOVICH. Mr. President, I rise to speak about a bill my
colleague Senator Bingaman and I introduced today, the Health Care
Partnership Act. For too many years, I have listened to my colleagues
on both sides of the aisle talk about the rising cost of health care
and the growing number of uninsured Americans. Yet, at the Federal
level we have made little progress toward a solution for improving
access to quality, affordable health care. I believe it is the greatest
domestic challenge facing our Nation. In fact, the rising cost of
health care is a major part of what is hurting our competitiveness in
the global marketplace.
While surveys have indicated that health insurance premiums have
stabilized--a 9.2 percent increase in 2006 the same increase as in 2005
and compared with; 12.3 percent in 2004; 14.7 percent in 2003 and 15.2
percent in 2002--health insurance costs continue to be a significant
factor impacting American competitiveness. In addition, the share of
costs that individuals have paid for employer sponsored insurance has
risen roughly 2 percent each year, from 31.4 percent of health care
costs in 2001 to 38.4 percent this year.
In fact, spending on health care in the United States reached $2
trillion in 2005--16 percent of our GDP--the largest share ever.
Yet, despite all the spending some 45 million Americans--15 percent
of the population--had no health insurance at some point last year.
This number has increased steadily. In 2000, that number was 39.8
million. In 2002 it was 43.6 million.
These statistics are startling, and it is beyond time that we do
something about them.
The bill Senator Bingaman and I are introducing today aims to break
the log-jam here in Washington and allows States to experiment the way
we did with welfare reform when I was Governor of Ohio. This bill would
support State-based efforts to reduce the uninsured, reduce costs,
improve quality, improve access to care, and expand information
technology.
I have been in this situation before. As Governor of Ohio, I had to
work creatively to expand coverage and deal with increasing health care
costs for a growing number of uninsured Ohioans. I am happy to report
that we were able to make some progress toward reducing the number of
uninsured during my time as the head of the State by negotiating with
the State unions to move to managed care; by controlling Medicaid costs
to the point where from 1995 to 1998, due to good stewardship and
management, Ohio ended up under-spending on Medicaid without harming
families; and implementing the S-CHIP program to provide coverage for
uninsured children. In fact, I recently learned from the Cuyahoga
Commissioners that in our county, 98 percent of eligible children are
currently enrolled in this program.
Like we did in Ohio, a number of States are already actively pursuing
efforts to reduce the number of their residents who lack adequate
health care coverage. This bill will build on the goals of States like
Massachusetts, California and others, while providing a mechanism to
analyze results and make recommendations for future action on the
Federal level.
Under the Health Partnership Act, Congress would authorize grants to
individual States, groups of States, and Indian tribes and
organizations to carry out any of a broad range of strategies to
improve our Nation's health
[[Page S702]]
care delivery. The bill creates a mechanism for States to apply for
grants to a bipartisan ``State Health Innovation Commission'' housed at
the Department of Health and Human Services, HHS. After reviewing the
State proposals, the Commission would submit to Congress a list of
recommended State applications. The Commission would also recommend the
amount of Federal grant money each State should receive to carry out
the actions described in their plan.
Most importantly, at the end of the 5-year period, the Commission
would be required to report to Congress whether the States are meeting
the goals of the act and recommend future action Congress should take
concerning overall reform, including whether or not to extend the
program.
I believe it is important that we pass this legislation and provide a
platform from which we can have a thoughtful conversation about health
care reform at the Federal level.
Since I have been in the Senate, Congress has made some progress
toward improving health care, most notably for our 43 million seniors
with the passage of the Medicare Modernization Act.
Yet, we have been at this too long here in Washington without
comprehensive, meaningful results. It is my hope that we will have
bipartisan support for this very bipartisan comprehensive bill that I
hope will move us closer toward a solution to the uninsured.
______
By Mrs. LINCOLN (for herself, Mr. Thomas, Mr. Bingaman, Mr.
Durbin, Ms. Mikulski, Mr. Akaka, Mr. Pryor, Ms. Klobuchar, Mr.
Enzi, Mr. Harkin, Mr. Rockefeller, and Mr. Kerry):
S. 326. A bill to amend the Internal Revenue Code of 1986 to provide
a special period of limitation when uniformed services retirement pay
is reduced as result of award of disability compensation; to the
Committee on Finance.
Mrs. LINCOLN. Mr. President, I rise today with my colleague, Senator
Craig Thomas, to introduce the Disabled Veterans Tax Fairness Act of
2007. This much-needed legislation would protect disabled veterans from
being unfairly taxed on the benefits to which they are entitled, simply
because their disability claims were not processed in a timely manner.
This legislation is supported by the Military Coalition, a group
representing more than 5.5 million members of the uniformed services
and their families.
While the Department of Veterans Affairs, VA, resolves most of its
filed disability claims in less than a year, there are also instances
of lost paperwork, administrative errors, and appeals of rejected
claims that often delay thousands of disability awards for years on
end. When this occurs, disability compensation is awarded retroactively
and for tax purposes, a disabled veteran's previously received taxable
military retiree pay is re-designated as nontaxable disability
compensation. Thereby, the disabled veteran is entitled to a refund of
taxes paid and must file an amended tax return for each applicable
year.
However, under current law the IRS Code bars the filing of amended
returns beyond the last 3 tax years. As a result, many of our disabled
veterans are denied the opportunity to file a claim for repayment of
additional years of back taxes already paid--through no fault of their
own--even though the IRS owes them a refund for the taxes that were
originally paid on their retiree pay.
The Disabled Veterans Tax Fairness Act of 2007 would add an exception
to the IRS statute of limitations for amending returns. This exception
would allow disabled veterans whose disability claims have been pending
for more than 3 years to receive refunds on previous taxes paid for up
to 5 years--the length of time the IRS keeps these records. Affected
veterans would have 1 year from the date the VA determination is issued
to go back and amend previous years' tax returns.
My father and grandfather both served our Nation in uniform and they
taught me from an early age about the sacrifices our troops and their
families have made to keep our Nation free. This is particularly true
for our disabled veterans. During a time when a grateful nation should
be doing everything it can to honor those who have sacrificed so
greatly on our behalf, the very least it can do is ensure they and
their families are not unjustly penalized simply because of
bureaucratic inefficiencies or administrative delays which are beyond
their control. This situation is unacceptable and our veterans deserve
better.
That is why I am proud to reintroduce this legislation today to
provide relief to our Nation's veterans. It is the least we can do for
those whom we owe so much, and it is the least we can do to reassure
future generations that a grateful nation will not forget them when
their military service is complete.
______
By Mr. McCAIN (for himself and Mr. Salazar):
S. 327. A bill to authorize the Secretary of the Interior to conduct
a special resource study of sites associated with the life of Cesar
Estrada Chavez and the farm labor movement; to the Committee on Energy
and Natural Resources.
Mr. McCAIN. Mr. President, I am pleased to be joined today by Senator
Salazar in reintroducing the Cesar Estrada Chavez Study Act. A similar
version of this bill was introduced by Congresswoman Hilda Solis last
week. This legislation, which is identical to the bill we introduced in
the 109th Congress and passed the Senate by unanimous consent during
the 108th Congress, would authorize the Secretary of the Interior to
conduct a special resource study of sites associated with the life of
Cesar Chavez. The bill would direct the Secretary of the Interior to
determine whether any of the sites significant to Chavez's life meet
the criteria for being listed on the National Register of Historic
Landmarks. The goal of this legislation is to establish a foundation
for future legislation that would then designate land for the
appropriate sites to become historic landmarks.
Mr. Chavez's legacy is an inspiration to us all and he will be
remembered for helping Americans to transcend distinctions of
experience and share equally in the rights and responsibilities of
freedom. It is important that we honor his struggle and do what we can
to preserve appropriate landmarks that are significant to his life.
This legislation has received an overwhelming positive response, not
only from my fellow Arizonans, but from Americans all across the
Nation. It has also received an endorsement from the Congressional
Hispanic Caucus.
Cesar Chavez, an Arizonan born in Yuma, was the son of migrant farm
workers. While his formal education ended in the eighth grade, his
insatiable intellectual curiosity and determination helped make him
known as one of the great American leaders for his successes in
ensuring migrant farm workers were treated fairly and honestly. His
efforts on behalf of some of the most oppressed individuals in our
society is an inspiration, and through his work he made America a
bigger and better nation.
While Chavez and his family migrated across the southwest looking for
farm work, he evolved into a advocate of migrant farm workers. He
founded the National Farm Workers Association in 1962, which later
became the United Farm Workers of America. He gave a voice to those who
had no voice. In his words, ``We cannot seek achievement for ourselves
and forget about progress and prosperity for our community . . . our
ambitions must be broad enough to include the aspirations and needs of
others, for their sakes and for our own.''
Cesar Chavez was a humble man of deep conviction who understood what
it meant to serve and sacrifice for others. His motto in life ``It Can
Be Done,'' epitomizes his life's work and continues to be a positive
influence on so many of us. Honoring the places of his life will enable
his legacy to inspire and serve as an example for our future leaders.
____________________