[Congressional Record Volume 154, Number 42 (Wednesday, March 12, 2008)]
[Senate]
[Pages S2000-S2008]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself and Mr. Cornyn):
[[Page S2001]]
S. 2746. A bill to amend section 552(b)(3) of title 5, United States
Code (commonly referred to as the Freedom of Information Act) to
provide that statutory exemptions to the disclosure requirements of
that Act shall specifically cite to the provision of that Act
authorizing such exemptions, to ensure an open and deliberative process
in Congress by providing for related legislative proposals to
explicitly state such required citations, and for other purposes; to
the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today, as we approach the national
celebration of Sunshine Week 2008, I am pleased to join with Senator
Cornyn to introduce the OPEN FOIA Act of 2008, a concise and
straightforward bill to further strengthen the Freedom of Information
Act, FOIA. This bill is the next step in the important work that
Senator Cornyn and I have undertaken to reinvigorate and strengthen
FOIA, and it follows the enactment late last year of the Leahy-Cornyn
OPEN Government Act, a law which made the first major reforms to FOIA
in more than a decade.
The OPEN FOIA Act simply requires that when Congress provides for a
statutory exemption to FOIA in new legislation, Congress must state its
intention to do so explicitly and clearly in that bill. This
commonsense bill mirrors bipartisan legislation that unanimously passed
the Senate during the last Congress, S.1181. I hope that the Senate
will once again promptly and unanimously pass this good-government
bill.
While no one can fairly question the need to keep certain government
information secret to ensure the public good, excessive government
secrecy is a constant temptation and the enemy of a vibrant democracy.
For more than 4 decades, FOIA has served as perhaps the most important
Federal law to ensure the public's right to know and to balance the
government's power with the need for government accountability.
FOIA contains a number of exemptions to its disclosure requirements
for national security, law enforcement, confidential business
information, personal privacy and other circumstances. The FOIA
exemption commonly known as the ``(b)(3) exemption,'' requires that
Government records that are specifically exempted from FOIA by statute
may be withheld from the public. Of course, neither I nor Senator
Cornyn would quibble with the notion that some Government information
is appropriately kept from public view. But in recent years we have
witnessed an alarming number of FOIA (b)(3) exemptions being offered in
legislation--often in very ambiguous terms--to the detriment of the
American people's right to know.
The bedrock principles of open government lead me to believe that
(b)(3) statutory exemptions should be clear and unambiguous, and
vigorously debated before they are enacted into law. Of course,
sometimes this does happen. But more and more often, legislative
exemptions to FOIA are buried within a few lines of very complex and
lengthy bills, which are never debated openly and publicly before
becoming law. The consequence of this troubling practice is the erosion
of the public's right to know and the shirking of Congress' duty to
fully consider these exemptions.
Senator Cornyn and I both believe that Congress must be diligent in
reviewing any new exemptions to FOIA, to prevent possible abuses and a
situation where the exceptions to disclosure under FOIA swallow this
important disclosure rule. The OPEN FOIA Act will ensure openness and
clarity about how we treat one of our most important open Government
laws. Our bill will also shine more light into the process of creating
legislative exemptions to FOIA--which is the best antidote to exemption
creep.
Democratic and Republican Senators alike have rightly supported and
voted for this bill in the past. As I have said many times before, open
Government is not a Democratic issue, nor a Republican issue. It is an
American value and a virtue that all Americans can embrace. I urge all
Members to support this bipartisan good-government bill to strengthen
the public's right to know.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2746
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 ``OPEN FOIA Act of 2008''.
SEC. 2. SPECIFIC CITATIONS IN STATUTORY EXEMPTIONS.
Section 552(b) of title 5, United States Code, is amended
by striking paragraph (3) and inserting the following:
``(3) specifically exempted from disclosure by statute
(other than section 552b of this title), if that statute--
``(A)(i) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the
issue; or
``(ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld; and
``(B) if enacted after the date of enactment of the OPEN
FOIA Act of 2008, specifically cites to this paragraph.''.
______
By Mr. HARKIN (for himself and Mr. Brownback):
S. 2748. A bill to direct the Secretary of Health and Human Services
to publish physical activity guidelines for the general public, and for
other purposes; to the Committee on Health, Education, Labor, and
Pensions.
Mr. HARKIN. Mr. President, some time back, a principal of a school in
Atlanta, GA, explained why his school had eliminated recess from its
school day, and why new elementary schools in Atlanta were being built
without playgrounds: He told The New York Times: ``We are intent on
improving academic performance. You don't do that by having kids
hanging on the monkey bars.''
Now, there is no reason to pick on Atlanta alone. Nationwide, only 8
percent of elementary schools provide daily physical education or its
equivalent for all students.
We are building schools without playgrounds, subdivisions without
sidewalks, roads without bicycle lanes. The average American spends
more than 4 hours each day sitting passively in front of the TV set--
that is equal to 2 months of nonstop TV-watching per year.
Then we are shocked, shocked to find that rates of overweight,
obesity and diabetes are skyrocketing, and cardiovascular disease
remains the No. 1 cause of death in our country. Among children, we
have what the Centers for Disease Control describes as an ``epidemic''
of obesity and juvenile diabetes.
The shame is that so much of this is entirely preventable. Americans
are suffering from a range of diseases and conditions--obesity, heart
disease, diabetes, stress, and depression. All of these are largely
preventable by changes in diet and lifestyle; specifically, by
increasing the amount of physical activity in our lives.
I am a firm believer that people want to stay healthy, and that
Government can help out by giving Americans the tools they need to take
charge of their own health.
But, right now, individuals do not know how much physical activity
they should be getting daily. They don't have a target to shoot for.
That is why, today, I am joining with Senator Sam Brownback,
Congressman Mark Udall, and Congressman Zach Wamp to introduce the
Physical Activities Guidelines for Americans Act of 2008.
Our bill would direct the Department of Health and Human Services to
prepare and promote science-based physical activity guidelines for
Americans, similar to the dietary and nutritional guidelines, commonly
known as the Food Pyramid. Our bill also would require that the
guidelines be updated every 5 years.
I believe that the Physical Activity Guidelines will assist many
Americans in living longer, healthier, and more active lives.
______
By Mrs. FEINSTEIN:
S. 2750. A bill to modify the requirements applicable to locatable
minerals on public domain lands, consistent with the principles of
self-initiation of mining claims, and for other purposes; to the
Committee on Energy and Natural Resources.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation
that will help address a troublesome byproduct of our Nation's mining
history: abandoned mines.
[[Page S2002]]
The 1872 Mining Law created national standards to regulate gold and
silver mining operations on Federal lands. Since then, hundreds of
thousands of gold and silver mines have been abandoned.
There are roughly 500,000 abandoned mines across the U.S., and nearly
47,000 abandoned mines in my home State of California.
According to the California Department of Conservation, all but two
of California's 58 counties have abandoned mines; and close to 70
percent of California's abandoned mines are located in the ``Mother
Lode'' area in the Northern Sierra or San Bernardino, Inyo and Kern
Counties in the southeastern part of the State.
Because the 1872 Mining Law is so outdated, we have been unable to
adequately clean up and remediate these abandoned mines.
The need for action is great.
The bill that I am introducing today, is not intended to be a
comprehensive hardrock mining reform bill, but it is an important piece
of the reform that is needed in hardrock mining.
The Abandoned Mine Reclamation Act of 2008, will reform the 1872
Mining Law by: establishing fees to support abandoned mine cleanup;
establishing a royalty payment system; and creating an Abandoned Mine
Cleanup Fund.
Unlike the coal industry, the metal mining industry does not pay to
clean up its legacy of abandoned mines, making lack of funding the
primary obstacle to abandoned hardrock mine cleanup.
This legislation would help fund the cleanup of abandoned mines by
placing an Abandoned Mine Reclamation fee on all hardrock minerals,
using the underground coal industry fee program as a model.
Here is why--the condition of abandoned coal mines has greatly
improved since the Surface Mining Control and Reclamation Act of 1977
established a fee to finance restoration of land abandoned or
inadequately restored by coal mining companies.
This fund has been able to raise billions of dollars for coal mine
reclamation--and I believe that a similar program could be part of the
solution to the hardrock abandoned mine cleanup.
This legislation also establishes a royalty on Hardrock Mining
Claims.
Companies that mine for gold and silver on Federal lands are not
currently required to pay any royalties to the Federal Government--even
though we are experiencing near record high gold prices, around $900 an
ounce.
These companies should be required to pay their fair share.
The Abandoned Mine Reclamation Act establishes an 8 percent royalty
on new mining operations located on Federal lands, and a 4 percent
royalty for existing operations.
These royalties are at the same level as the Hardrock Mining and
Reclamation Act, H.R. 2262, which was passed by the House late last
year.
The legislation I am introducing today also creates an Abandoned Mine
Fund.
In these times of budget deficits, it's clear that we will not be
able to simply appropriate the funds necessary to clean up the hundreds
of thousands of abandoned hard rock mines.
So, this legislation will create an abandoned mine cleanup fund to
ensure that we have a lasting source of funding for this critical
cleanup effort.
Specifically, the fund will direct the royalties, as well as other
payments collected from mining operations, and dedicate them to the
cleanup of abandoned hardrock mines.
Now I would like to take a moment to talk more about why abandoned
mines are so problematic.
First, members of the public are in danger of getting seriously hurt
or killed by falling down old mine shafts.
In the past 2 years, eight accidents at abandoned mine sites were
reported in California. These accidents resulted in four fatalities and
seven others were injured and/or required rescuing.
But the even greater threat from abandoned mines comes from the
danger of groundwater pollution.
Environmental impact studies have shown that important watersheds are
being polluted by high levels of mercury or increased sedimentation.
This in turn exposes people who drink this water to harmful minerals
like mercury, chromium and asbestos and the fish who swim in streams
fed by these waters are likewise contaminated.
The Bureau of Land Management reports that abandoned mines have
contaminated 17 major watersheds in California, which supply water for
millions of people and provide habitat for important species like
salmon and other fish that are caught and consumed by the public.
So, the threat to public health is critical.
Mining has played in California's history. The discovery of gold at
Sutter Mill near Placerville, California in 1848 was a defining moment
for California and the U.S.
It is fair to say that without mining and the Gold Rush, California
and the entire country would be a far different place than it is today.
The great history of mining in California, however, is tarnished by
the legacy of tens of thousands of abandoned mines. In particular,
abandoned mine sites on Federal lands.
Let me illustrate a few examples of abandoned mine sites located on
Federal land in California.
These sites are causing serious public safety and environmental
problems: Rand Historic Mining Complex located on BLM land in eastern
Kern County and northwestern San Bernardino County.
This area includes the Kelly Silver Mine and the Yellow Aster Gold
Mine near the communities of Johannesburg, Randsburg, and Red Mountain.
The problem is this: The sites contain extensive arsenic-bearing mine
waste and numerous open mine shafts that could cause safety hazards.
The Pond Gold Mine Site located in Placer County on BLM land.
This mine site consists of an extensive network of sluice tunnels and
a large waste rock pile.
Here's the problem: The Pond Mine has been determined to be a source
of mercury to Pond Creek and the Middle Fork of the American River.
The Golinsky Mine located on Forest Service land located in Shasta
County.
The Golinsky mine is an abandoned copper mine that is releasing acid
mine drainage into Shasta Lake.
The responsible party has been identified, but has declared
bankruptcy. This has forced the Forest Service to spend more than $2.2
million dollars investigating and mitigating the environmental problems
while they try to recoup the costs.
There are numerous abandoned mine sites that may not yet have been
discovered all across California.
One place where we expect the problem to grow is in Joshua Tree
National Park.
Joshua Tree has numerous former mine sites that contain a series of
shafts near trails and roads. These mine shafts vary in size and the
depth ranges from 20 to 200 feet deep--and are extremely dangerous,
potentially causing people to fall into them.
So, these abandoned mines are a serious problem throughout the State.
We need to take action soon to clean them up.
The problems caused by abandoned mines are not going away--and with
each passing day, the health danger will continue to rise.
It is important to our children and grandchildren that we start the
process of cleaning up the abandoned mines that were left to us. But we
cannot do it without a substantial and reliable source of funding.
Here is the key: this legislation doesn't reinvent the wheel. It
implements solutions that have been working for a similar problem. It
uses many of the ideas that have helped the coal industry to raise over
seven billion dollars for abandoned mines.
It is time to expect the same from the hardrock mining industry.
Though this legislation is a significant step forward for the funding
of abandoned mines, I know that there is much more mining reform to be
done.
I look forward to working with my colleagues to ensure that the 1872
Mining Law is reformed--so that 21st Century mining regulations will be
applied to 21st Century mining operations.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2750
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page S2003]]
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Abandoned
Mine Reclamation Act of 2008''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions and references.
Sec. 3. Application rules.
TITLE I--MINERAL EXPLORATION AND DEVELOPMENT
Sec. 101. Royalty.
Sec. 102. Hardrock mining claim maintenance fee.
Sec. 103. Reclamation fee.
Sec. 104. Effect of payments for use and occupancy of claims.
TITLE II--ABANDONED MINE CLEANUP FUND
Sec. 201. Establishment of Fund.
Sec. 202. Contents of Fund.
Sec. 203. Use and objectives of the Fund.
Sec. 204. Eligible lands and waters.
Sec. 205. Expenditures.
Sec. 206. Availability of amounts.
TITLE III--EFFECTIVE DATE
Sec. 301. Effective date.
SEC. 2. DEFINITIONS AND REFERENCES.
(a) In General.--As used in this Act:
(1) The term ``affiliate'' means with respect to any
person, any of the following:
(A) Any person who controls, is controlled by, or is under
common control with such person.
(B) Any partner of such person.
(C) Any person owning at least 10 percent of the voting
shares of such person.
(2) The term ``applicant'' means any person applying for a
permit under this Act or a modification to or a renewal of a
permit under this Act.
(3) The term ``beneficiation'' means the crushing and
grinding of locatable mineral ore and such processes as are
employed to free the mineral from other constituents,
including but not necessarily limited to, physical and
chemical separation techniques.
(4) The term ``claim holder'' means a person holding a
mining claim, millsite claim, or tunnel site claim located
under the general mining laws and maintained in compliance
with such laws and this Act. Such term may include an agent
of a claim holder.
(5) The term ``control'' means having the ability, directly
or indirectly, to determine (without regard to whether
exercised through one or more corporate structures) the
manner in which an entity conducts mineral activities,
through any means, including without limitation, ownership
interest, authority to commit the entity's real or financial
assets, position as a director, officer, or partner of the
entity, or contractual arrangement.
(6) The term ``exploration''--
(A) subject to subparagraphs (B) and (C), means creating
surface disturbance other than casual use, to evaluate the
type, extent, quantity, or quality of minerals present;
(B) includes mineral activities associated with sampling,
drilling, and analyzing locatable mineral values; and
(C) does not include extraction of mineral material for
commercial use or sale.
(7) The term ``Federal land'' means any land, and any
interest in land, that is owned by the United States and open
to location of mining claims under the general mining laws.
(8) The term ``hardrock mineral'' has the meaning given the
term ``locatable mineral'' except that legal and beneficial
title to the mineral need not be held by the United States.
(9) The term ``Indian lands'' means lands held in trust for
the benefit of an Indian tribe or individual or held by an
Indian tribe or individual subject to a restriction by the
United States against alienation.
(10) The term ``Indian tribe'' means any Indian tribe,
band, nation, pueblo, or other organized group or community,
including any Alaska Native village or regional corporation
as defined in or established pursuant to the Alaska Native
Claims Settlement Act (43 U.S.C. 1601 et seq.), that is
recognized as eligible for the special programs and services
provided by the United States to Indians because of their
status as Indians.
(11) The term ``locatable mineral''--
(A) subject to subparagraph (B), means any mineral, the
legal and beneficial title to which remains in the United
States and that is not subject to disposition under any of--
(i) the Mineral Leasing Act (30 U.S.C. 181 et seq.);
(ii) the Geothermal Steam Act of 1970 (30 U.S.C. 1001 et
seq.);
(iii) the Act of July 31, 1947, commonly known as the
Materials Act of 1947 (30 U.S.C. 601 et seq.); or
(iv) the Mineral Leasing for Acquired Lands Act (30 U.S.C.
351 et seq.); and
(B) does not include any mineral that is subject to a
restriction against alienation imposed by the United States
and is--
(i) held in trust by the United States for any Indian or
Indian tribe, as defined in section 2 of the Indian Mineral
Development Act of 1982 (25 U.S.C. 2101); or
(ii) owned by any Indian or Indian tribe, as defined in
that section.
(12) The term ``mineral activities'' means any activity on
a mining claim, millsite claim, or tunnel site claim for,
related to, or incidental to, mineral exploration, mining,
beneficiation, processing, or reclamation activities for any
locatable mineral.
(13) The term ``operator'' means any person proposing or
authorized by a permit issued under this Act to conduct
mineral activities and any agent of such person.
(14) The term ``person'' means an individual, Indian tribe,
partnership, association, society, joint venture, joint stock
company, firm, company, corporation, cooperative, or other
organization and any instrumentality of State or local
government including any publicly owned utility or publicly
owned corporation of State or local government.
(15) The term ``processing'' means processes downstream of
beneficiation employed to prepare locatable mineral ore into
the final marketable product, including but not limited to
smelting and electrolytic refining.
(16) The term ``Secretary'' means the Secretary of the
Interior, unless otherwise specified.
(17) The term ``temporary cessation'' means a halt in mine-
related production activities for a continuous period of no
longer than 5 years.
(b) References to Other Laws.--(1) Any reference in this
Act to the term general mining laws is a reference to those
Acts that generally comprise chapters 2, 12A, and 16, and
sections 161 and 162, of title 30, United States Code.
(2) Any reference in this Act to the Act of July 23, 1955,
is a reference to the Act entitled ``An Act to amend the Act
of July 31, 1947 (61 Stat. 681) and the mining laws to
provide for multiple use of the surface of the same tracts of
the public lands, and for other purposes'' (30 U.S.C. 601 et
seq.).
SEC. 3. APPLICATION RULES.
(a) In General.--This Act applies to any mining claim,
millsite claim, or tunnel site claim located under the
general mining laws, before, on, or after the date of
enactment of this Act, except as provided in subsection (b).
(b) Preexisting Claims.--(1) Any unpatented mining claim or
millsite claim located under the general mining laws before
the date of enactment of this Act for which a plan of
operation has not been approved or a notice filed prior to
the date of enactment shall, upon the effective date of this
Act, be subject to the requirements of this Act, except as
provided in paragraph (2).
(2)(A) If a plan of operations is approved for mineral
activities on any claim or site referred to in paragraph (1)
prior to the date of enactment of this Act but such
operations have not commenced prior to the date of enactment
of this Act--
(i) during the 10-year period beginning on the date of
enactment of this Act, mineral activities at such claim or
site shall be subject to such plan of operations;
(ii) during such 10-year period, modifications of any such
plan may be made in accordance with the provisions of law
applicable prior to the enactment of this Act if such
modifications are deemed minor by the Secretary concerned;
and
(iii) the operator shall bring such mineral activities into
compliance with this Act by the end of such 10-year period.
(B) Where an application for modification of a plan of
operations referred to in subparagraph (A)(ii) has been
timely submitted and an approved plan expires prior to
Secretarial action on the application, mineral activities and
reclamation may continue in accordance with the terms of the
expired plan until the Secretary makes an administrative
decision on the application.
(c) Federal Lands Subject to Existing Permit.--(1) Any
Federal land shall be subject to the requirements of section
101(a)(2) if the land is--
(A) subject to an operations permit; and
(B) producing valuable locatable minerals in commercial
quantities prior to the date of enactment of this Act.
(2) Any Federal land added through a plan modification to
an operations permit on Federal land that is submitted after
the date of enactment of this Act shall be subject to the
terms of section 101(a)(3).
(d) Application of Act to Beneficiation and Processing of
Non-Federal Minerals on Federal Lands.--The provisions of
this Act shall apply in the same manner and to the same
extent to mining claims, millsite claims, and tunnel site
claims used for beneficiation or processing activities for
any mineral without regard to whether or not the legal and
beneficial title to the mineral is held by the United States.
This subsection applies only to minerals that are locatable
minerals or minerals that would be locatable minerals if the
legal and beneficial title to such minerals were held by the
United States.
TITLE I--MINERAL EXPLORATION AND DEVELOPMENT
SEC. 101. ROYALTY.
(a) Reservation of Royalty.--
(1) In general.--Except as provided in paragraph (2) and
subject to paragraph (3), production of all locatable
minerals from any mining claim located under the general
mining laws and maintained in compliance with this Act, or
mineral concentrates or products derived from locatable
minerals from any such mining claim, as the case may be,
shall be subject to a royalty of 8 percent of the gross
income from mining. The claim holder or any operator to whom
the claim holder has assigned the obligation to make royalty
payments under the claim and any person who controls such
claim holder or operator shall be liable for payment of such
royalties.
(2) Royalty for federal lands subject to existing permit.--
The royalty under
[[Page S2004]]
paragraph (1) shall be 4 percent in the case of any Federal
land that--
(A) is subject to an operations permit on the date of the
enactment of this Act; and
(B) produces valuable locatable minerals in commercial
quantities on the date of enactment of this Act.
(3) Federal land added to existing operations permit.--Any
Federal land added through a plan modification to an
operations permit that is submitted after the date of
enactment of this Act shall be subject to the royalty that
applies to Federal land under paragraph (1).
(4) Deposit.--Amounts received by the United States as
royalties under this subsection shall be deposited into the
Abandoned Mine Cleanup Fund established by section 201(a).
(b) Duties of Claim Holders, Operators, and Transporters.--
(1) A person--
(A) who is required to make any royalty payment under this
section shall make such payments to the United States at such
times and in such manner as the Secretary may by rule
prescribe; and
(B) shall notify the Secretary, in the time and manner as
may be specified by the Secretary, of any assignment that
such person may have made of the obligation to make any
royalty or other payment under a mining claim.
(2) Any person paying royalties under this section shall
file a written instrument, together with the first royalty
payment, affirming that such person is responsible for making
proper payments for all amounts due for all time periods for
which such person has a payment responsibility. Such
responsibility for the periods referred to in the preceding
sentence shall include any and all additional amounts billed
by the Secretary and determined to be due by final agency or
judicial action. Any person liable for royalty payments under
this section who assigns any payment obligation shall remain
jointly and severally liable for all royalty payments due for
the claim for the period.
(3) A person conducting mineral activities shall--
(A) develop and comply with the site security provisions in
the operations permit designed to protect from theft the
locatable minerals, concentrates or products derived
therefrom which are produced or stored on a mining claim, and
such provisions shall conform with such minimum standards as
the Secretary may prescribe by rule, taking into account the
variety of circumstances on mining claims; and
(B) not later than the 5th business day after production
begins anywhere on a mining claim, or production resumes
after more than 90 days after production was suspended,
notify the Secretary, in the manner prescribed by the
Secretary, of the date on which such production has begun or
resumed.
(4) The Secretary may by rule require any person engaged in
transporting a locatable mineral, concentrate, or product
derived therefrom to carry on his or her person, in his or
her vehicle, or in his or her immediate control,
documentation showing, at a minimum, the amount, origin, and
intended destination of the locatable mineral, concentrate,
or product derived therefrom in such circumstances as the
Secretary determines is appropriate.
(c) Recordkeeping and Reporting Requirements.--A claim
holder, operator, or other person directly involved in
developing, producing, processing, transporting, purchasing,
or selling locatable minerals, concentrates, or products
derived therefrom, subject to this Act, through the point of
royalty computation shall establish and maintain any records,
make any reports, and provide any information that the
Secretary may reasonably require for the purposes of
implementing this section or determining compliance with
rules or orders under this section. Such records shall
include, but not be limited to, periodic reports, records,
documents, and other data. Such reports may also include, but
not be limited to, pertinent technical and financial data
relating to the quantity, quality, composition volume,
weight, and assay of all minerals extracted from the mining
claim. Upon the request of any officer or employee duly
designated by the Secretary conducting an audit or
investigation pursuant to this section, the appropriate
records, reports, or information that may be required by this
section shall be made available for inspection and
duplication by such officer or employee. Failure by a claim
holder, operator, or other person referred to in the first
sentence to cooperate with such an audit, provide data
required by the Secretary, or grant access to information
may, at the discretion of the Secretary, result in
involuntary forfeiture of the claim.
(d) Audits.--The Secretary is authorized to conduct such
audits of all claim holders, operators, transporters,
purchasers, processors, or other persons directly or
indirectly involved in the production or sales of minerals
covered by this Act, as the Secretary deems necessary for the
purposes of ensuring compliance with the requirements of this
section. For purposes of performing such audits, the
Secretary shall, at reasonable times and upon request, have
access to, and may copy, all books, papers and other
documents that relate to compliance with any provision of
this section by any person.
(e) Cooperative Agreements.--(1) The Secretary is
authorized to enter into cooperative agreements with the
Secretary of Agriculture to share information concerning the
royalty management of locatable minerals, concentrates, or
products derived therefrom, to carry out inspection,
auditing, investigation, or enforcement (not including the
collection of royalties, civil or criminal penalties, or
other payments) activities under this section in cooperation
with the Secretary, and to carry out any other activity
described in this section.
(2) Except as provided in paragraph (3) of this subsection
(relating to trade secrets), and pursuant to a cooperative
agreement, the Secretary of Agriculture shall, upon request,
have access to all royalty accounting information in the
possession of the Secretary respecting the production,
removal, or sale of locatable minerals, concentrates, or
products derived therefrom from claims on lands open to
location under this Act.
(3) Trade secrets, proprietary, and other confidential
information protected from disclosure under section 552 of
title 5, United States Code, popularly known as the Freedom
of Information Act, shall be made available by the Secretary
to other Federal agencies as necessary to assure compliance
with this Act and other Federal laws. The Secretary, the
Secretary of Agriculture, the Administrator of the
Environmental Protection Agency, and other Federal officials
shall ensure that such information is provided protection in
accordance with the requirements of that section.
(f) Interest and Substantial Underreporting Assessments.--
(1) In the case of mining claims where royalty payments are
not received by the Secretary on the date that such payments
are due, the Secretary shall charge interest on such
underpayments at the same interest rate as the rate
applicable under section 6621(a)(2) of the Internal Revenue
Code of 1986. In the case of an underpayment, interest shall
be computed and charged only on the amount of the deficiency
and not on the total amount.
(2) If there is any underreporting of royalty owed on
production from a claim for any production month by any
person liable for royalty payments under this section, the
Secretary shall assess a penalty of not greater than 25
percent of the amount of that underreporting.
(3) For the purposes of this subsection, the term
``underreporting'' means the difference between the royalty
on the value of the production that should have been reported
and the royalty on the value of the production which was
reported, if the value that should have been reported is
greater than the value that was reported.
(4) The Secretary may waive or reduce the assessment
provided in paragraph (2) of this subsection if the person
liable for royalty payments under this section corrects the
underreporting before the date such person receives notice
from the Secretary that an underreporting may have occurred,
or before 90 days after the date of the enactment of this
section, whichever is later.
(5) The Secretary shall waive any portion of an assessment
under paragraph (2) of this subsection attributable to that
portion of the underreporting for which the person
responsible for paying the royalty demonstrates that--
(A) such person had written authorization from the
Secretary to report royalty on the value of the production on
basis on which it was reported;
(B) such person had substantial authority for reporting
royalty on the value of the production on the basis on which
it was reported;
(C) such person previously had notified the Secretary, in
such manner as the Secretary may by rule prescribe, of
relevant reasons or facts affecting the royalty treatment of
specific production which led to the underreporting; or
(D) such person meets any other exception which the
Secretary may, by rule, establish.
(6) All penalties collected under this subsection shall be
deposited in the Abandoned Mine Cleanup Fund established by
section 201(a).
(g) Delegation.--For the purposes of this section, the term
``Secretary'' means the Secretary of the Interior acting
through the Director of the Minerals Management Service.
(h) Expanded Royalty Obligations.--Each person liable for
royalty payments under this section shall be jointly and
severally liable for royalty on all locatable minerals,
concentrates, or products derived therefrom lost or wasted
from a mining claim located under the general mining laws and
maintained in compliance with this Act when such loss or
waste is due to negligence on the part of any person or due
to the failure to comply with any rule, regulation, or order
issued under this section.
(i) Gross Income From Mining Defined.--For the purposes of
this section, for any locatable mineral, the term ``gross
income from mining'' has the same meaning as the term ``gross
income'' in section 613(c) of the Internal Revenue Code of
1986.
(j) Effective Date.--The royalty under this section shall
take effect with respect to the production of locatable
minerals after the enactment of this Act, but any royalty
payments attributable to production during the first 12
calendar months after the enactment of this Act shall be
payable at the expiration of such 12-month period.
(k) Failure To Comply With Royalty Requirements.--Any
person who fails to comply with the requirements of this
section or any regulation or order issued to implement this
section shall be liable for a civil penalty under section 109
of the Federal Oil and Gas Royalty Management Act (30 U.S.C.
1719) to
[[Page S2005]]
the same extent as if the claim located under the general
mining laws and maintained in compliance with this Act were a
lease under that Act.
SEC. 102. HARDROCK MINING CLAIM MAINTENANCE FEE.
(a) Fee.--
(1) Except as provided in section 2511(e)(2) of the Energy
Policy Act of 1992 (relating to oil shale claims), for each
unpatented mining claim, mill or tunnel site on federally
owned lands, whether located before, on, or after enactment
of this Act, each claimant shall pay to the Secretary, on or
before August 31 of each year, a claim maintenance fee of
$300 per claim to hold such unpatented mining claim, mill or
tunnel site for the assessment year beginning at noon on the
next day, September 1. Such claim maintenance fee shall be in
lieu of the assessment work requirement contained in the
Mining Law of 1872 (30 U.S.C. 28 et seq.) and the related
filing requirements contained in section 314(a) and (c) of
the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1744(a) and (c)).
(2)(A) The claim maintenance fee required under this
subsection shall be waived for a claimant who certifies in
writing to the Secretary that on the date the payment was
due, the claimant and all related parties--
(i) held not more than 10 mining claims, mill sites, or
tunnel sites, or any combination thereof, on public lands;
and
(ii) have performed assessment work required under the
Mining Law of 1872 (30 U.S.C. 28 et seq.) to maintain the
mining claims held by the claimant and such related parties
for the assessment year ending on noon of September 1 of the
calendar year in which payment of the claim maintenance fee
was due.
(B) For purposes of subparagraph (A), with respect to any
claimant, the term ``all related parties'' means--
(i) the spouse and dependent children (as defined in
section 152 of the Internal Revenue Code of 1986), of the
claimant; or
(ii) a person affiliated with the claimant, including--
(I) a person controlled by, controlling, or under common
control with the claimant; or
(II) a subsidiary or parent company or corporation of the
claimant.
(3)(A) The Secretary shall adjust the fees required by this
subsection to reflect changes in the Consumer Price Index
published by the Bureau of Labor Statistics of the Department
of Labor every 5 years after the date of enactment of this
Act, or more frequently if the Secretary determines an
adjustment to be reasonable.
(B) The Secretary shall provide claimants notice of any
adjustment made under this paragraph not later than July 1 of
any year in which the adjustment is made.
(C) A fee adjustment under this paragraph shall begin to
apply the calendar year following the calendar year in which
it is made.
(4) Moneys received under this subsection that are not
otherwise allocated for the administration of the mining laws
by the Department of the Interior shall be deposited in the
Abandoned Mine Cleanup Fund established by section 201(a).
(b) Location.--
(1) Notwithstanding any provision of law, for every
unpatented mining claim, mill or tunnel site located after
the date of enactment of this Act and before September 30,
1998, the locator shall, at the time the location notice is
recorded with the Bureau of Land Management, pay to the
Secretary a location fee, in addition to the fee required by
subsection (a) of $50 per claim.
(2) Moneys received under this subsection that are not
otherwise allocated for the administration of the mining laws
by the Department of the Interior shall be deposited in the
Abandoned Mine Cleanup Fund established by section 201(a).
(c) Transfer.--
(1) Notwithstanding any provision of law, for every
unpatented mining claim, mill, or tunnel site the ownership
interest of which is transferred after the date of enactment
of this Act, the transferee shall, at the time the transfer
document is recorded with the Bureau of Land Management, pay
to the Secretary a transfer fee, in addition to the fee
required by subsection (a) of $100 per claim.
(2) Moneys received under this subsection that are not
otherwise allocated for the administration of the mining laws
by the Department of the Interior shall be deposited in the
Abandoned Mine Cleanup Fund established by section 201(a).
(d) Co-Ownership.--The co-ownership provisions of the
Mining Law of 1872 (30 U.S.C. 28 et seq.) will remain in
effect except that the annual claim maintenance fee, where
applicable, shall replace applicable assessment requirements
and expenditures.
(e) Failure To Pay.--Failure to pay the claim maintenance
fee as required by subsection (a) shall conclusively
constitute a forfeiture of the unpatented mining claim, mill
or tunnel site by the claimant and the claim shall be deemed
null and void by operation of law.
(f) Other Requirements.--
(1) Nothing in this section shall change or modify the
requirements of section 314(b) of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1744(b)), or the
requirements of section 314(c) of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1744(c)) related to filings
required by section 314(b) of that Act, which remain in
effect.
(2) Section 2324 of the Revised Statutes of the United
States (30 U.S.C. 28) is amended by inserting ``or section
102 of the Abandoned Mine Reclamation Act of 2008'' after
``Act of 1993,''.
SEC. 103. RECLAMATION FEE.
(a) Imposition of Fee.--
(1) In general.--Except as provided in paragraph (2), each
operator of a hardrock minerals mining operation shall pay to
the Secretary, for deposit in the Abandoned Mine Cleanup Fund
established by section 201(a), a reclamation fee of 0.3
percent of the gross income of the hardrock minerals mining
operation for each calendar year.
(2) Exception.--With respect to any calendar year required
under subsection (b), an operator of a hardrock minerals
mining operation shall not be required to pay the reclamation
fee under paragraph (1) if--
(A) the gross annual income of the hardrock minerals mining
operation for the calendar year is an amount less than
$500,000; and
(B) the hardrock minerals mining operation is comprised
of--
(i) 1 or more hardrock mineral mines located in a single
patented claim; or
(ii) 2 or more contiguous patented claims.
(b) Payment Deadline.--The reclamation fee shall be paid
not later than 60 days after the end of each calendar year
beginning with the first calendar year occurring after the
date of enactment of this Act.
(c) Deposit of Revenues.--Amounts received by the Secretary
under subsection (a)(1) shall be deposited into the Abandoned
Mine Cleanup Fund established by section 201(a).
(d) Effect.--Nothing in this section requires a reduction
in, or otherwise affects, any similar fee required under any
law (including regulations) of any State.
SEC. 104. EFFECT OF PAYMENTS FOR USE AND OCCUPANCY OF CLAIMS.
Timely payment of the claim maintenance fee required by
section 102(a) of this Act or any related law relating to the
use of Federal land, asserts the claimant's authority to use
and occupy the Federal land concerned for prospecting and
exploration, consistent with the requirements of this Act and
other applicable law.
TITLE II--ABANDONED MINE CLEANUP FUND
SEC. 201. ESTABLISHMENT OF FUND.
(a) Establishment.--There is established on the books of
the Treasury of the United States a separate account to be
known as the Abandoned Mine Cleanup Fund (hereinafter in this
title referred to as the ``Fund'').
(b) Investment.--The Secretary shall notify the Secretary
of the Treasury as to what portion of the Fund is not, in the
Secretary's judgment, required to meet current withdrawals.
The Secretary of the Treasury shall invest such portion of
the Fund in public debt securities with maturities suitable
for the needs of such Fund and bearing interest at rates
determined by the Secretary of the Treasury, taking into
consideration current market yields on outstanding
marketplace obligations of the United States of comparable
maturities.
SEC. 202. CONTENTS OF FUND.
The following amounts shall be credited to the Fund:
(1) All donations by persons, corporations, associations,
and foundations for the purposes of this title.
(2) All amounts deposited in the Fund under section 101
(relating to royalties and penalties for underreporting).
(3) All amounts received by the United States pursuant to
section 102 as claim maintenance, location, and transfer fees
minus the moneys allocated for administration of the mining
laws by the Department of the Interior.
(4) All amounts received by the Secretary in accordance
with section 103(a).
(5) All income on investments under section 201(b).
SEC. 203. USE AND OBJECTIVES OF THE FUND.
(a) In General.--The Secretary is authorized, without
further appropriation, to use moneys in the Fund for the
reclamation and restoration of land and water resources
adversely affected by past mineral activities on lands the
legal and beneficial title to which resides in the United
States, land within the exterior boundary of any national
forest system unit, or other lands described in subsection
(d), including any of the following:
(1) Protecting public health and safety.
(2) Preventing, abating, treating, and controlling water
pollution created by abandoned mine drainage, including in
river watershed areas.
(3) Reclaiming and restoring abandoned surface and
underground mined areas.
(4) Reclaiming and restoring abandoned milling and
processing areas.
(5) Backfilling, sealing, or otherwise controlling,
abandoned underground mine entries.
(6) Revegetating land adversely affected by past mineral
activities in order to prevent erosion and sedimentation, to
enhance wildlife habitat, and for any other reclamation
purpose.
(7) Controlling of surface subsidence due to abandoned
underground mines.
(b) Allocation.--Expenditures of moneys from the Fund shall
reflect the following priorities in the order stated:
(1) The protection of public health and safety, from
extreme danger from the adverse effects of past mineral
activities, especially as relates to surface water and
groundwater contaminants.
(2) The protection of public health and safety, from the
adverse effects of past mineral activities.
[[Page S2006]]
(3) The restoration of land, water, and fish and wildlife
resources previously degraded by the adverse effects of past
mineral activities, which may include restoration activities
in river watershed areas.
(c) Habitat.--Reclamation and restoration activities under
this title, particularly those identified under subsection
(a)(4), shall include appropriate mitigation measures to
provide for the continuation of any established habitat for
wildlife in existence prior to the commencement of such
activities.
(d) Other Affected Lands.--Where mineral exploration,
mining, beneficiation, processing, or reclamation activities
have been carried out with respect to any mineral which would
be a locatable mineral if the legal and beneficial title to
the mineral were in the United States, if such activities
directly affect lands managed by the Bureau of Land
Management as well as other lands and if the legal and
beneficial title to more than 50 percent of the affected
lands resides in the United States, the Secretary is
authorized, subject to appropriations, to use moneys in the
Fund for reclamation and restoration under subsection (a) for
all directly affected lands.
(e) Response or Removal Actions.--Reclamation and
restoration activities under this title which constitute a
removal or remedial action under section 101 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601), shall be conducted
with the concurrence of the Administrator of the
Environmental Protection Agency. The Secretary and the
Administrator shall enter into a Memorandum of Understanding
to establish procedures for consultation, concurrence,
training, exchange of technical expertise and joint
activities under the appropriate circumstances, that provide
assurances that reclamation or restoration activities under
this title shall not be conducted in a manner that increases
the costs or likelihood of removal or remedial actions under
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.), and that
avoid oversight by multiple agencies to the maximum extent
practicable.
SEC. 204. ELIGIBLE LANDS AND WATERS.
(a) Eligibility.--Reclamation expenditures under this title
may be made with respect to Federal, State, local, tribal,
and private land or water resources that traverse or are
contiguous to Federal, State, local, tribal, or private land
where such lands or water resources have been affected by
past mineral activities, including any of the following:
(1) Lands and water resources which were used for, or
affected by, mineral activities and abandoned or left in an
inadequate reclamation status before the effective date of
this Act.
(2) Lands for which the Secretary makes a determination
that there is no continuing reclamation responsibility of a
claim holder, operator, or other person who abandoned the
site prior to completion of required reclamation under State
or other Federal laws.
(b) Specific Sites and Areas Not Eligible.--The provisions
of section 411(d) of the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. 1240a(d)) shall apply to
expenditures made from the Fund.
(c) Inventory.--
(1) In general.--The Secretary shall prepare and maintain a
publicly available inventory of abandoned locatable minerals
mines on public lands and any abandoned mine on Indian lands
that may be eligible for expenditures under this title, and
shall deliver a yearly report to the Congress on the progress
in cleanup of such sites.
(2) Priority.--In preparing and maintaining the inventory
described in paragraph (1), the Secretary shall give priority
to abandoned locatable minerals mines in accordance with
section 203(b).
(3) Periodic updates.--Not later than 5 years after the
date of enactment of this Act, and every 5 years thereafter,
the Secretary shall update the inventory described in
paragraph (1).
SEC. 205. EXPENDITURES.
Moneys available from the Fund may be expended for the
purposes specified in section 203 directly by the Director of
the Office of Surface Mining Reclamation and Enforcement. The
Director may also make such money available for such purposes
to the Director of the Bureau of Land Management, the Chief
of the United States Forest Service, the Director of the
National Park Service, or Director of the United States Fish
and Wildlife Service, to any other agency of the United
States, to an Indian tribe, or to any public entity that
volunteers to develop and implement, and that has the ability
to carry out, all or a significant portion of a reclamation
program under this title.
SEC. 206. AVAILABILITY OF AMOUNTS.
Amounts credited to the Fund shall--
(1) be available, without further appropriation, for
obligation and expenditure; and
(2) remain available until expended.
TITLE III--EFFECTIVE DATE
SEC. 301. EFFECTIVE DATE.
This Act shall take effect on the date of enactment of this
Act, except as otherwise provided in this Act.
______
By Mr. LEAHY (for himself and Mr. Specter):
S. 2751. A bill to facilitate foreign investment by permanently
reauthorizing the EB-5 regional center program, and for other purposes;
to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today, I am introducing legislation to
strengthen and make permanent the Regional Center pilot program at the
U.S. Citizenship and Immigration Services, USCIS. l am pleased that
Senator Specter has joined me in this effort, and I commend him for his
recognition of this program's importance. The Regional Center program
has had tremendous success in creating American jobs and infusing
investment capital into many economically challenged areas across the
country, and I urge all Senators to join us in building upon this
success.
The Regional Center pilot program was created in 1993 by the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act. In 1993, I worked to reauthorize the
program for an additional five years as part of the Basic Pilot Program
Extension and Expansion Act. The Regional Center pilot program is set
to expire in September of 2008. Should Congress fail to act before
then, millions of dollars in capital and thousands of potential
American jobs will be forfeited. The legislation I introduce today
would make this pilot program permanent, and would make other important
changes to strengthen its solid foundation.
The Regional Center program allows a regional governmental agency or
private enterprise within a State to apply for designation as a
Regional Center through USCIS. This designation allows the enterprise
to recruit foreign investors to a discrete project or projects, and
provides USCIS with an additional layer of screening against
immigration fraud. The process for a foreign citizen to gain legal
permanent residence through the Regional Center program is a rigorous
one. Prior to applying to invest in a Regional Center, a foreign
investor must pledge a minimum of $500,000 and independently apply for
an EB-5 visa through USCIS, which solely determines the potential
investor's eligibility for a visa. If approved, the investor is given a
2-year conditional green card. At the end of the conditional period and
in order to continue legal residence in the United States, the investor
must demonstrate that his or her investment created a minimum of 10
jobs within the Regional Center, and that his or her investment was
fully obligated to the targeted project.
This program's continuation promises a bright future for job creation
and capital investment in participating communities. The Regional
Center program has resulted in millions of dollars of direct investment
and the creation of thousands of jobs in the U.S. Moreover, foreign
investment serves to attract additional domestic private sector
capital, further increasing the program's beneficial economic effects.
There are 17 Regional Centers across the country--and several more with
pending applications--which manage investments in a diverse range of
projects from energy production to resort development. Making this
successful program permanent will provide significant economic benefits
to participating States at no cost to the taxpayer.
My home State of Vermont has benefited tremendously from this
program, with foreign investments committed to local projects ranging
in the millions of dollars. As a result of these ongoing developments,
many new jobs are being created for Vermont's residents. For example,
two of Vermont's premier ski resorts are active participants in this
program, and have been successful in attracting foreign investment to
help make ambitious development projects a reality. In a rural State
like Vermont, which depends heavily on tourism and its natural
resources, the Regional Center program has been instrumental in
supporting projects that take advantage of Vermont's natural beauty and
outdoor recreation opportunities.
In addition to making the Regional Center program permanent, the bill
also makes a number of other improvements to ensure its efficiency and
to accommodate expected expansion. The bill provides a premium
processing option for potential investors, allowing expedited
processing for an additional fee to USCIS, as well as concurrent
processing of a potential investor's application for designation as an
immigrant investor and his or her adjustment of status application to
obtain
[[Page S2007]]
conditional permanent residency. Finally, the bill creates a $2,500 fee
for those domestic entities applying for Regional Center status, and
directs USCIS to re-invest this additional revenue back into the
Regional Center program to allow the agency to accommodate future
growth in the program.
Because the pilot program is set to expire in 2008, potential
investors are feeling a chill stemming from uncertainty about the
Regional Center Program's future. Permanently authorizing this program
will create certainty and predictability for potential investors
interested in the numerous projects currently in development across the
country. This non-controversial program has enjoyed broad bipartisan
support, and I strongly believe that we would do well to increase
American job creation and capital investment by matching American
ingenuity with the desire of those who seek not only to invest in the
U.S., but who seek to share in our country's promise as eventual
citizens.
In a time of severe economic turbulence, and in an era where
Americans are witnessing the outsourcing of too many good jobs
overseas, this bill builds upon a proven record of success and
encourages investment and job creation in the States and local
communities of our Nation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2751
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 ``State Foreign Investment
Improvement Act''.
SEC. 2. PERMANENT REAUTHORIZATION OF EB-5 REGIONAL CENTER
PROGRAM; APPLICATION FEE.
(a) In General.--Section 610 of the Departments of
Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is
amended--
(1) by striking ``pilot'' each place it appears;
(2) in subsection (b), by striking ``for 15 years''; and
(3) by adding at the end the following:
``(e) In addition to any other fees authorized by law, the
Secretary of Homeland Security shall impose a fee of $2,500
to apply for designation as a regional center under this
section. Fees collected under this subsection shall be
deposited in the Treasury in accordance with section 286(w)
of the Immigration and Nationality Act (8 U.S.C. 1356(w)).''.
(b) Establishment of Account; Use of Fees.--Section 286 of
the Immigration and Nationality Act (8 U.S.C. 1356) is
amended by adding at the end the following:
``(w) Immigrant Entrepreneur Regional Center Account.--
``(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as
the `Immigrant Entrepreneur Regional Center Account'.
Notwithstanding any other provision of law, there shall be
deposited as offsetting receipts into the account all fees
collected under section 610(b) of the Departments of
Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note).
``(2) Use of fees.--Fees collected under this section may
only be used by the Secretary of Homeland Security to
administer and operate the EB-5 immigrant investor
program.''.
(c) Rulemaking.--Not later than 120 days after the date of
the enactment of this Act, the Secretary of Homeland Security
shall prescribe regulations to implement the amendments made
by this section.
(d) Effective Date.--The amendments made by subsections
(a)(3) and (b) shall take effect on the effective date of the
regulations prescribed pursuant to subsection (c).
SEC. 3. PREMIUM PROCESSING FEE FOR EB-5 IMMIGRANT INVESTORS.
(a) In General.--Section 286(u) of the Immigration and
Nationality Act (8 U.S.C. 1356(u)) is amended by striking
``$1,000,'' and inserting ``$1,000 per petition. If the
petition is filed under section 203(b)(5), the fee shall be
set at $2,000 and may only be used by the Secretary of
Homeland Security to administer and operate the EB-5
immigrant investor program. Fees collected under this
subsection''.
(b) Rulemaking.--Not later than 120 days after the date of
the enactment of this Act, the Secretary of Homeland Security
shall prescribe regulations to implement the amendment made
by subsection (a).
SEC. 4. CONCURRENT FILING OF EB-5 PETITIONS AND APPLICATIONS
FOR ADJUSTMENT OF STATUS.
Section 245 of the Immigration and Nationality Act (8
U.S.C. 1255) is amended by adding at the end the following:
``(n) If, at the time a petition is filed for
classification through a regional center under section
203(b)(5), approval of the petition would make a visa
immediately available to the alien beneficiary, the alien
beneficiary's adjustment application under this section shall
be considered to be properly filed whether the application is
submitted concurrently with, or subsequent to, the visa
petition.''.
Mr. SPECTER. Mr. President, I seek recognition to speak on the State
Foreign Investment Improvement Act, which I am cosponsoring with
Senator Leahy. This bill will make permanent the Immigrant Investor
Pilot Program, an innovative and successful program which has been in
existence for 15 years. Under this program, State and local
governments, and private entities, are able to apply to the U.S.
Citizenship and Immigration Service for ``regional center'' status
which enables them to attract the job-creating dollars of immigrant
investor visa holders.
The immigrant investor visa--known as the EB-5 visa--was created in
1990 and grants lawful permanent residency to individuals willing to
invest at least $1 million in an enterprise that directly employs at
least 10 legal workers in the United States. In certain rural or high-
unemployment areas, however, the dollar amount is reduced to at least
$500,000, though the job-creation requirements remain the same.
In 1992, to stimulate interest in these immigrant investor visas,
Congress created the Immigrant Investor Pilot Program. By investing in
the designated ``regional centers'' instead of creating their own
enterprises or partnerships, immigrant investors can meet the job-
creation requirements of their visas more easily, since they need only
show the indirect creation of 10 jobs through a ``regional center.''
Otherwise, an immigrant investor would have to show that his or her
investment directly created the jobs.
The Immigrant Investor Pilot Program has proven to be an attractive
option for potential immigrant investors, being chosen by an estimated
75 percent to 80 percent of all immigrant investors since its
inception. Indeed, in my home state of Pennsylvania, the two regional
centers--one in western Pennsylvania and one in Philadelphia--have
generated millions of dollars in foreign investment. However, this
program is set to expire at the end of the 2008 fiscal year.
The Immigrant Investor Pilot Program has thus become a vital
component of the immigrant investor visa, a category of visa whose
benefits are difficult to overstate. The Government Accountability
Office estimates that immigrant investors were responsible for over $1
billion in job-creating investments between 1992 and mid-2004. These
investments have aided enterprises as diverse as the growth of dairy
and meat-packing industries in South Dakota and improvements to the
shipyard in Philadelphia. However, the most important contribution of
the immigrant investor visa has been the creation of jobs within the
United States. And in this aim, the immigrant investor visa has been
very successful, creating jobs in the thousands.
In addition to preserving the current successful status quo of the
Immigrant Investor Pilot Program by making it permanent, this bill
makes minor improvements to the immigrant investor visa application
procedure. It establishes an application fee for entities seeking
designation as a ``regional center'' under the Pilot Program, and it
provides premium processing fees for immigrant investor applications.
Both of these fees will enable the U.S. Citizenship and Immigration
Service to devote more resources to adjudicating these applications
rapidly. Finally, this bill allows for concurrent filing of the
immigrant investor petition and application for adjustment to lawful
permanent resident, thereby providing for a shorter processing time for
``regional center'' applicants.
Last November, the Wall Street Journal stated that the immigrant
investor visa is ``pumping millions of dollars from foreign investors
into dilapidated inner cities and employment-starved rural areas across
the U.S.'' At a time when Congress is weighing how it will address
economic instability, it would be unwise to neglect such an
economically beneficial program. Accordingly, I am pleased to co-
sponsor this piece of legislation with Senator Leahy and I urge my
colleagues to support it.
[[Page S2008]]
______
By Mr. SMITH (for himself and Mr. Durbin):
S. 2752. A bill to authorize the President to award grants to improve
the capacity of nongovernmental organizations and individuals in
foreign countries to provide appropriate mental disability and mental
trauma care training, and for other purposes; to the Committee on
Foreign Relations.
Mr. SMITH. Mr. President, I rise today to congratulate an inspiring
young man, Brian McCarthy. Brian is a student at Liberty High School in
Hillsboro, Oregon, and was this year's third place finalist in the
prestigious Intel Science Talent Search. He was selected from over 1600
students and is the recipient of a $50,000 scholarship. The Science
Talent Search is lauded as the ``junior Nobel Prize'' and America's
oldest and most prestigious research competition for high school
seniors.
Brian's award winning chemistry project focused on solar cells.
During his lab work, Brian synthesized extremely thin and fragile films
of plant-like materials found in nature. What he discovered is a
polymer that could potentially act as a less expensive option to
today's silicon-based solar cell technology.
It is no surprise that Brian is first in his class of 293. However,
his interests and abilities span a wide gamut, including being a member
of the varsity track and field team, volunteering with the community
emergency response team, and studying aviation history.
Brian and his peers from the Science Talent Search are an inspiration
and give me hope for the future of our country. Congratulations to the
McCarthy family. I can only imagine what heights this young Oregonian
will reach.
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By Mr. WYDEN (for himself, Mr. Enzi, Mr. Wicker, Mr. Warner, and
Mr. Whitehouse):
S.J. Res. 29. A joint resolution expressing Congressional support for
the goals and ideals of National Health Care Decisions Day; to the
Committee on Health, Education, Labor, and Pensions.
Mr. WYDEN. Mr. President, it is not easy talking to a family member
or loved one about what kind of medical care you'd want or not want at
the end of your life. Yet every day family members are making medical
care decisions for seriously ill people who cannot speak for
themselves. Most family members with relatives who had executed advance
directives find comfort in knowing that the hard decisions they may
need to make about end-of-life care will reflect the wishes of the ill
relative. End-of-life planning is a gift to the people who are
important to you and to yourself.
Americans are talking a lot more about the topic of advance
directives than they used to and are also doing something about it by
preparing written advance directives. Advance directives come in two
main forms. The first is a ``health care power of attorney'' in which
someone is designated to be your voice in health decisions if you can
not speak for yourself. The second is a ``living will'' which states
what types of medical care you would want or not want at the end of
life. Most married people have had a conversation with a husband or
wife about end of life medical care and most people have spoken with
one or both older parents about the topic. Research has found that
people who have had to make decisions about medical care at the end of
life for others are more likely to make end of life plans for
themselves. They have learned how important it is to make a plan.
Congress helped to get the advance directives conversation going with
the Patient Self-Determination Act. This law directed Medicare-
participating health care facilities to engage patient and staff in a
discussion of end of life wishes. Since 1990 when the Patient Self-
Determination Act was passed, the percentage of Americans who have made
a living will has more than doubled from 12 percent to 29 percent.
Yet more conversation is needed. The National Health Care Decisions
Day will help promote that conversation. National Health Care Decisions
Day will be a 50-state annual event to increase knowledge and awareness
of the importance of advance directives for all Americans. At this
year's annual event on April 16, 2008, a coordinated series of
activities across the U.S. will encourage Americans to discuss their
wishes for end-of-life care and then fill out documents that reflect
those wishes. The National Heath Care Decisions Day is supported by
many of our distinguished local, state, and national health care
organizations.
This joint Senate-House resolution: supports the goals and ideals of
National Health Care Decisions Day and the importance of advance care
planning, encourages health care, civic, educational, religious and
other organizations to encourage individuals to use advance directives,
and asks all Americans, including members of Congress, to prepare
advance directives for themselves. The Senate resolution is cosponsored
by Senators Enzi, Wicker, Warner, and Whitehouse. A companion House
resolution will be introduced by Congressman Phil Gingrey, M.D. I
encourage my congressional colleagues to support this resolution. I
also ask you to begin or continue the dialogue about end-of-life issues
with family members and to complete written advance directives.
Mr. President, I ask unanimous consent that the text of the joint
resolution be printed in the Record.
There being no objection, the text of the joint resolution was
ordered to be printed in the Record, as follows:
S.J. Res. 29
Whereas National Health Care Decisions Day is designed to
raise public awareness of the need to plan ahead for health
care decisions related to end-of-life care and medical
decision-making whenever patients are unable to speak for
themselves and to encourage the specific use of advance
directives to communicate these important decisions;
Whereas the Patient Self-Determination Act (42 U.S.C.
1395cc(f) et seq.) guarantees patients the right to
information about their rights under State law regarding
accepting or refusing medical treatment;
Whereas it is estimated that only a minority of Americans
have executed advance directives, including those who are
terminally ill or living with life-threatening or life-
limiting illnesses;
Whereas advance directives offer individuals the
opportunity to discuss with loved ones in advance of a health
care crisis and decide what measures would be appropriate for
them when it comes to end-of-life care;
Whereas, the preparation of an advance directive would
advise family members, health care providers, and other
persons as to how an individual would want to be treated with
respect to health care;
Whereas, to avoid any legal or medical confusion due to the
emotions involved in end-of-life decisions, it is in the best
interest of all Americans that each person over the age of 18
communicate his or her wishes by creating an advance
directive;
Whereas the Conditions of Participation in Medicare and
Medicaid, section 489.102 of title 42, Code of Federal
Regulations (as in effect on the date of enactment of this
resolution), require all participating facilities to provide
information to patients and the public on the topic of
advance directives;
Whereas the Centers for Medicare & Medicaid Services has
recognized that the use of advance directives is tied to
quality health care and has included discussions of advance
directives in the criteria of the Physician Quality Reporting
Initiative;
Whereas establishing National Health Care Decisions Day
will encourage health care facilities and professionals as
well as chaplains, attorneys, and others to participate in a
collective, nationwide effort to provide clear, concise, and
consistent information to the public about health care
decision-making, particularly advance directives; and
Whereas as a result of National Health Care Decisions Day,
recognized on April 16, 2008, more Americans will have
conversations about their health care decisions, more
Americans will execute advance directives to make their
wishes known, and fewer families and health care providers
will have to struggle with making difficult health care
decisions in the absence of guidance from the patient: Now,
therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That
Congress--
(1) supports the goals and ideals of National Health Care
Decisions Day;
(2) supports the goals and ideals of advance care planning
for all adult Americans;
(3) encourages each person in the United States who is over
the age of 18 to prepare an advance directive to assist his
or her loved ones, health care providers, and others as they
honor his or her wishes;
(4) calls upon all members of Congress to execute such
documents and discussions for themselves; and
(5) encourages health care, civic, educational, religious,
and for- and non-profit organizations to encourage
individuals to prepare advance directives to ensure that
their wishes and rights with respect to health care are
protected.
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