[Congressional Record Volume 155, Number 60 (Thursday, April 23, 2009)]
[Senate]
[Pages S4671-S4698]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. INOUYE (for himself and Mr. Akaka):
  S. 871. A bill to authorize the Secretary of the Interior to conduct 
a special resources study of the Honoliuli Internment Camp site in the 
State of Hawaii, to determine the suitability

[[Page S4672]]

and feasibility of establishing a unit of the National Park System; to 
the Committee on Energy and Natural Resources.
  Mr. INOUYE. Mr. President, I rise today to introduce a bill that 
would authorize the Secretary of the Interior to conduct a Special 
Resources Study of the Honouliuli Gulch and associated sites located in 
the State of Hawaii in order to determine the suitability and 
feasibility of designating these sites as a unit of the National Park 
System.
  During World War II, over 1,000 Japanese Americans were incarcerated 
in at least eight locations on Hawaii. In a report completed in 2007, 
the Japanese Cultural Center of Hawaii documented these sites that 
include Honouliuli Gulch, Sand Island, and the US Immigration Station 
on Oahu, the Kilauea Military Camp on the Big Island, Haiku Camp and 
Wailuku County Jail on Maui, and the Kalaheo Stockade and Waialua 
County Jail on Kauai. These camps also held approximately 100 local 
residents of German and Italian ancestry.
  Those detained included the leaders of the Japanese immigrant 
community in Hawaii, many of whom were taken from their homes and 
families in the hours after the attack on Pearl Harbor. The forced 
removal of these individuals began a nearly four year odyssey to a 
series of camps in Hawaii and on the continental US. Over 1,000 
immediate family members of these men joined their husbands, fathers 
and relatives in mainland camps. The detainees were never formally 
charged and granted only token hearings. Many of the detainees' sons 
served with distinction in the US armed forces, including the legendary 
100th Battalion, 442nd Regimental Combat Team and Military Intelligence 
Service.
  This report found that both the Kilauea Military Camp and the 
Honouliuli sites feature historic resources and recommended that the 
sites be nominated for listing on the National Register for Historic 
Places. In 2008, the Japanese Cultural Center of Hawaii published a 
more detailed archeological reconnaissance of the Honouliuli site. This 
report found that there were numerous historic features that would 
qualify the site for National Historic Register and further recommended 
that the site be conserved. The Japanese Cultural Center of Hawaii is 
currently working with Monsanto, the landowner, to nominate the 
Honouliuli Gulch site to be listed on the National Historic Register.
  So far I have received letters in support of this legislation from a 
range of local, regional and national organizations, including the 
Japanese American National Museum, Hawaiian Historical Society, Go For 
Broke National Education Center, Japan America Society of Hawaii, 
Honolulu Chapter of the Japanese Citizens League, Japanese Cultural 
Center of Hawaii, Honolulu Japanese Junior Chamber of Commerce, MIS 
Veterans Club of Hawaii, the United Japanese Society of Hawaii, 
Japanese American Citizens League, The Conservation Fund, Densho, 
National Trust for Historic Preservation, Japanese American National 
Heritage Coalition and the Friends of Minidoka.
  This legislation will enable the National Park Service to study these 
important sites in my state and make recommendations to Congress 
regarding the best approach to conserve and manage these sites to tell 
this chapter in our Nation's history to current and future generations.
  I would urge my colleagues to support this legislation.
                                 ______
                                 
      By Mr. VOINOVICH:
  S. 872. A bill to establish a Deputy Secretary of Homeland Security 
for Management, and for other purposes; to the Committee on Homeland 
Security and Governmental Affairs.
  Mr. VOINOVICH. Mr. President, I rise today with my good friend and 
partner on the Oversight of Government Management Subcommittee, Senator 
Akaka, to address the critical management challenges facing the 
Department of Homeland Security, DHS, by introducing the Effective 
Homeland Security Management Act of 2009. I am proud to have Senators 
Carper and Levin also joining us in this important effort.
  This legislation would elevate the role and responsibilities of the 
current DHS Under Secretary for Management to a Deputy Secretary of 
Homeland Security for Management while preserving the authority of the 
Secretary and Deputy Secretary of DHS as the first-and second-highest 
ranking DHS officials, respectively. Under the legislation, the 
individual appointed as the Deputy Secretary for Management would be 
the third highest ranking official at DHS and would serve a five year 
term in order to provide management continuity at DHS during times of 
leadership transition, such as following a presidential election like 
the one we just experienced.
  In the Homeland Security Act of 2002, Congress established the 
position of Under Secretary for Management to oversee the management 
and administration of DHS. However, management issues have persisted at 
DHS since its creation. In 2003, the Government Accountability Office, 
GAO, included implementing and transforming DHS on its high-risk list 
of programs susceptible to waste, fraud, abuse, and mismanagement. 
Similarly, in December 2005, the DHS Inspector General issued a report 
warning of major management challenges facing DHS. The report noted 
that although progress has been made since DHS' inception, 
``[i]ntegrating its many separate components in a single, effective, 
efficient, and economical Department remains one of DHS's biggest 
challenges.'' Further, DHS's own Performance and Accountability Report, 
released in November 2006, states that it did not meet its strategic 
goal of ``providing comprehensive leadership and management to improve 
the efficiency and effectiveness of the Department,'' further 
underscoring the need for good management. In 2007, the Homeland 
Security Advisory Council Culture Task Force Report also detailed 
persisting organizational challenges within DHS and prescribed 
leadership and management models designed to empower employees, foster 
collaboration, and encourage innovation. The third recommendation of 
the report was that DHS establish an operational leadership position. 
The report noted, ``[a]lignment and integration of the DHS component 
organizations is vital to the success of the DHS mission. The [Culture 
Task Force] believes there is a compelling need for the creation of a 
Deputy Secretary for Operations, DSO, who would report to the Secretary 
and be responsible for the high level Department-wide measures aimed at 
generating and sustaining seamless operational integration and 
alignment of the component organizations.''
  For these reasons, as part of the Implementing Recommendations of the 
9/11 Commission Act of 2007, Congress clarified that the role and 
responsibilities of the Under Secretary for Management would include 
serving as the Chief Management Officer and principal advisor to the 
Secretary on the management of DHS. In that legislation Congress also 
provided that the Under Secretary for Management would be responsible 
for strategic management and annual performance planning, 
identification and tracking of performance measures, and the management 
integration and transformation process in support of DHS operations and 
programs. The Implementing Recommendations of the 9/11 Commission Act 
of 2007 also established managerial and leadership qualifications for 
the Under Secretary for Management and increased the pay scale for that 
Under Secretary.
  However, there continue to be significant management challenges 
associated with integrating DHS, whose creation represented the single 
largest restructuring of the Federal Government since the creation of 
the Department of Defense in 1947. In addition to its complex mission 
of securing the Nation from terrorism and natural hazards through 
protection, prevention, response, and recovery, leadership of DHS has 
the enormous task of unifying 200,000 employees from 22 disparate 
Federal agencies. This January, GAO again included implementing and 
transforming DHS on its high-risk list, noting that ``[a]lthough DHS 
has made progress in transforming into a fully functioning department, 
this transformation remains high risk because DHS has not yet developed 
a comprehensive plan to address the transformation, integration, 
management and mission challenges GAO identified since 2003. . . DHS 
has developed an Integrated Strategy for High Risk Management that 
outlines the department's process for, among other things,

[[Page S4673]]

assessing risks and proposing initiatives to address challenges, but 
the strategy lacks details for the transformation of DHS and 
integration of its management functions. DHS has also developed 
corrective action plans to address management challenges that contain 
several of the key elements GAO has identified for a corrective action 
plan . . . However, the plans generally do not contain measures to 
gauge performance and progress, nor do they identify the resources 
needed to carry out the corrective actions identified.''
  As former Chairman and now Ranking Member of the Oversight of 
Government Management Subcommittee, improving the management structure 
at DHS has been one of my top priorities. The Subcommittee's Chairman, 
Senator Akaka, and I have been committed to ensuring that DHS has the 
proper tools to make continual improvements in its operations. Because 
management challenges persist at DHS, I believe the existing Under 
Secretary for Management position at DHS's lacks sufficient authority 
to direct the type of sustained leadership and overarching management 
integration and transformation strategy that is needed department-wide, 
and Congress must elevate that Under Secretary's role. The legislation 
I offer today would do that and would provide the focused, high-level 
attention that will result in effective management reform. I believe 
this legislation is vital to DHS's success, and I urge my colleagues to 
join me in supporting this legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 872

       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 ``Effective Homeland Security 
     Management Act of 2009''.

     SEC. 2. DEPUTY SECRETARY OF HOMELAND SECURITY FOR MANAGEMENT.

       (a) Establishment and Succession.--Section 103 of the 
     Homeland Security Act of 2002 (6 U.S.C. 113) is amended--
       (1) in subsection (a)--
       (A) in the subsection heading, by striking ``Deputy 
     Secretary'' and inserting ``Deputy Secretaries'';
       (B) by striking paragraph (6);
       (C) by redesignating paragraphs (2) through (5) as 
     paragraphs (3) through (6), respectively; and
       (D) by striking paragraph (1) and inserting the following:
       ``(1) A Deputy Secretary of Homeland Security.
       ``(2) A Deputy Secretary of Homeland Security for 
     Management.''; and
       (2) by adding at the end the following:
       ``(g) Vacancies.--
       ``(1) Vacancy in office of secretary.--
       ``(A) Deputy secretary.--In case of a vacancy in the office 
     of the Secretary, or of the absence or disability of the 
     Secretary, the Deputy Secretary of Homeland Security may 
     exercise all the duties of that office, and for the purpose 
     of section 3345 of title 5, United States Code, the Deputy 
     Secretary of Homeland Security is the first assistant to the 
     Secretary.
       ``(B) Deputy secretary for management.--When by reason of 
     absence, disability, or vacancy in office, neither the 
     Secretary nor the Deputy Secretary of Homeland Security is 
     available to exercise the duties of the office of the 
     Secretary, the Deputy Secretary of Homeland Security for 
     Management shall act as Secretary.
       ``(2) Vacancy in office of deputy secretary.--In the case 
     of a vacancy in the office of the Deputy Secretary of 
     Homeland Security, or of the absence or disability of the 
     Deputy Secretary of Homeland Security, the Deputy Secretary 
     of Homeland Security for Management may exercise all the 
     duties of that office.
       ``(3) Further order of succession.--The Secretary may 
     designate such other officers of the Department in further 
     order of succession to act as Secretary.''.
       (b) Responsibilities.--Section 701 of the Homeland Security 
     Act of 2002 (6 U.S.C. 341) is amended--
       (1) in the section heading, by striking ``UNDER SECRETARY'' 
     and inserting ``DEPUTY SECRETARY OF HOMELAND SECURITY'';
       (2) in subsections (a) through (c) by striking ``Under 
     Secretary for Management'' each place that term appears and 
     inserting ``Deputy Secretary of Homeland Security for 
     Management''.
       (c) Appointment, Evaluation, and Reappointment.--Section 
     701(c) of the Homeland Security Act of 2002 (6 U.S.C. 341) is 
     amended--
       (1) in the subsection heading, by striking ``and 
     Evaluation'' and inserting ``, Evaluation, and 
     Reappointment'';
       (2) in the matter preceding paragraph (1), by striking 
     ``shall'';
       (3) in paragraph (1), by inserting ``shall'' after ``(1)'';
       (4) in paragraph (2)--
       (A) by inserting ``shall'' after ``(2)''; and
       (B) by striking ``and'' after the semicolon;
       (5) in paragraph (3)--
       (A) by inserting ``shall'' after ``(3)''; and
       (B) by striking the period and inserting a semicolon; and
       (6) by adding at the end the following:
       ``(4) shall--
       ``(A) serve for a term of 5 years; and
       ``(B) be subject to removal by the President if the 
     President--
       ``(i) finds that the performance of the Deputy Secretary of 
     Homeland Security for Management is unsatisfactory; and
       ``(ii) communicates the reasons for removing the Deputy 
     Secretary of Homeland Security for Management to Congress 
     before such removal; and
       ``(5) may be reappointed in accordance with paragraph (1), 
     if the Secretary has made a satisfactory determination under 
     paragraph (3) for the 3 most recent performance years.''.
       (d) References.--References in any other Federal law, 
     Executive order, rule, regulation, or delegation of 
     authority, or any document of or relating to the Under 
     Secretary for Management of the Department of Homeland 
     Security shall be deemed to refer to the Deputy Secretary of 
     Homeland Security for Management.
       (e) Technical and Conforming Amendments.--
       (1) Other reference.--Section 702(a) of the Homeland 
     Security Act of 2002 (6 U.S.C. 342(a)) is amended by striking 
     ``Under Secretary for Management'' and inserting ``Deputy 
     Secretary of Homeland Security for Management''.
       (2) Table of contents.--The table of contents in section 
     1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101(b)) 
     is amended by striking the item relating to section 701 and 
     inserting the following:

``Sec. 701. Deputy Secretary of Homeland Security for Management.''.
       (3) Executive schedule.--Section 5313 of title 5, United 
     States Code, is amended by striking the item relating to the 
     Under Secretary of Homeland Security for Management, and 
     inserting the following:
       ``Deputy Secretary of Homeland Security for Management.''.
                                 ______
                                 
      By Mr. LUGAR:
  S. 873. A bill to expand and improve Cooperative Threat Reduction 
Programs, and for other purposes; to the Committee on Armed Services.
  Mr. LUGAR. Mr. President, today I rise to introduce the Nunn-Lugar 
Cooperative Threat Reduction Improvement Act of 2009.
  The proliferation of weapons of mass destruction remains the number 
one national security threat facing the United States and the 
international community. Our success in responding to this threat 
depends on cooperation with other nations and on maintaining a basic 
consensus on non-proliferation principles. The Nunn-Lugar Program has 
become the primary tool through which the U.S. works to safely destroy 
nuclear, chemical, and biological warfare capacity. Through Nunn-Lugar, 
the U.S. has eliminated more nuclear weapons than the combined arsenals 
of the United Kingdom, France, and China. When the Soviet Union 
dissolved Ukraine, Kazakhstan and Belarus emerged as the third, fourth 
and eighth largest nuclear weapons powers in the world. Today they are 
nuclear weapons free.
  I am delighted that President Obama made the Nunn-Lugar Cooperative 
Threat Reduction Program such a high profile issue during his campaign. 
In 2005, then-Senator Obama and I traveled to Russia to see the Nunn-
Lugar Program in action. We visited the Russian nuclear warhead storage 
facility at Saratov and the mobile missile dismantlement facility near 
Perm. This experience gives him a unique vantage point to take 
important steps to revitalize and expand the program.
  The Nunn-Lugar Program has accumulated an impressive list of 
accomplishments. To date it has deactivated 7,504 strategic nuclear 
warheads, 742 intercontinental ballistic missiles, ICBMs, destroyed, 
496 ICBM silos eliminated, 143 ICBM mobile launchers destroyed, 633 
submarine launched ballistic missiles, SLBMs, eliminated, 476 SLBM 
launchers eliminated, 31 nuclear submarines capable of launching 
ballistic missiles destroyed, 155 bomber eliminated, 906 nuclear air-
to-surface missiles, ASMs, destroyed, 194 nuclear test tunnels 
eliminated, 422 nuclear weapons transport train shipments secured, 
upgraded security at 24 nuclear weapons storage sites, and built and 
equipped 16 biological monitoring stations.
  While originally focused on the states of the former Soviet Union,

[[Page S4674]]

Nunn-Lugar has also produced results outside of Russia. The program 
eliminated a formerly secret chemical weapons stockpile in Albania. 
Other governments, such as Pakistan, Afghanistan, Congo, the 
Philippines, and Indonesia are now inquiring about Nunn-Lugar 
assistance with dangerous weapons and materials.
  Mr. President, last month the National Academy of Sciences, NAS, 
released a report on the future of the Nunn-Lugar Program. It provided 
a critically important set of recommendations that should guide the 
Obama Administration's efforts to expand the Nunn-Lugar Program around 
the world.
  The report was required by the 2008 National Defense Authorization 
Act to recommend ways to strengthen and expand the Defense Department's 
Nunn-Lugar Cooperative Threat Reduction program. The report argues 
persuasively that the Nunn-Lugar Program should be expanded 
geographically, updated in form and function and supported as an active 
tool of foreign policy. Over the last 16 years Nunn-Lugar has been 
focused heavily on the destruction and dismantlement of massive Soviet 
weapons systems and the facilities that developed them. In the future, 
the program will be asked to address much more complex and diverse 
security threats. The changing security environment means that the 
magnitude of projects focused on former Soviet weapons threats are 
likely to be the exception and not the norm. As a result, the NAS 
report argues that the program must be less cumbersome and bureaucratic 
so it can be more agile, flexible, and responsive to ensure timely 
contributions across a larger number of countries. It concludes by 
saying ``that expanding the nation's [Nunn-Lugar] cooperative threat 
reduction programs beyond the former Soviet Union, as proposed by 
Congress, would enhance U.S. national security and global stability.'' 
The report argues that Nunn-Lugar ``should be expanded geographically, 
updated in form and function . . . and supported as an active tool of 
foreign policy by engaged leadership from the White House and the 
relevant cabinet secretaries.''
  Specifically, the NAS Report recommends that the Pentagon take the 
following steps: Remove any remaining geographic limitations on the 
program and streamline contracting procedures. Request from Congress 
limited ``notwithstanding authority'' to give Nunn-Lugar the 
flexibility it needs for future engagements in unexpected locations. 
Request that Congress exempt the Nunn-Lugar Program from the 
Miscellaneous Receipts Act to enable the program to accept funds from 
foreign countries and to co-mingle those with program funds to 
accomplish nonproliferation and disarmament goals. Review the legal and 
policy underpinnings of the Nunn-Lugar Program because many are 
cumbersome, dated, limiting, and often diminish value and hinder 
success. In addition to supporting traditional arms control and 
nonproliferation goals, Nunn-Lugar should be used to advance other 
multilateral instruments such as the Proliferation Security Initiative 
and United Nations Security Council Resolution 1540. While the Nunn-
Lugar Program grew through the 1990s there was little corresponding 
growth in the size of the staff that guided policy--the office must be 
expanded. Engage broader military components, including the Unified 
Combatant Commands, to ensure full coordination and effective 
implementation of Nunn-Lugar.
  The majority of these items do not require legislation but rather 
simple Executive Branch management actions and improvements. As a 
result, I have written to Under Secretary of Defense for Policy, 
Michele Flournoy, and the new WMD Coordinator at the White House, Gary 
Samore, urging them to adopt these important recommendations. But the 
granting of limited notwithstanding authority for the Nunn-Lugar 
Program and its exemption from the Miscellaneous Receipts Act does 
require Congressional authorization. The bill I am introducing today is 
focused on accomplishing this task.
  One of the most striking points made by the report's authors was that 
the Nunn-Lugar Program has suffered from a lack of leadership. It 
states that ``since 1995, the level of leadership in DoD has been 
downgraded from a high priority program managed by a Deputy Assistant 
Secretary of Defense for Cooperative Threat Reduction, and Special 
Assistant to the Secretary of Defense, to a CTR Policy Office under a 
Director for the CTR Program.'' An even more stark contrast is the time 
and diplomacy that former Secretaries Perry and Cohen committed to 
visiting project sites and engaging foreign capitals when compared to 
their successors. I am confident this is a trend that can be reversed 
quickly by the Obama administration with proper leadership. Under 
Secretary Flournoy, the Deputy Secretary of Defense, and Secretary 
Gates should make visiting Nunn-Lugar sites a high priority and offer 
their personal diplomacy to assisting the program in meetings its 
goals.
  The Nunn-Lugar Program has made critically important contributions to 
US national security through the elimination of strategic weapons 
systems and platforms arrayed against us. Even as the threat changes, I 
am confident that it will continue to serve US interests with the right 
leadership and direction. I commend the members of the NAS committee 
for an insightful and invigorating set of recommendations. I ask my 
colleagues here in the Senate to support this legislation and I am 
hopeful that the Obama administration will use the report's 
recommendations as a resource as they move to expand the program.
  In sum, we must take every measure possible in addressing threats 
posed by weapons of mass destruction. We must eliminate those 
conditions that restrict us or delay our ability to act. The US has the 
technical expertise and the diplomatic standing to dramatically benefit 
international security. American leaders must ensure that we have the 
political will and the resources to implement programs devoted to these 
ends.
                                 ______
                                 
      By Mr. BINGAMAN (for himself and Mr. Udall, of New Mexico):
  S. 874. A bill to establish El Rio Grande Del Norte National 
Conservation Area in the State of New Mexico, and for other purposes; 
to the Committee on Energy and Natural Resources.
  Mr. BINGAMAN. Mr. President, I rise today to introduce El Rio Grande 
Del Norte National Conservation Area Establishment Act. This 
legislation will designate approximately 235,980 acres of public land 
managed by the Bureau of Land Management in Taos and Rio Arriba 
counties as a National Conservation Area. The conservation area 
includes two new wilderness areas--the 13,420-acre Cerro del Yuta 
Wilderness on the east-side and the 8,000-acre Rio San Antonio 
Wilderness in the west.
  The conservation area will protect and enhance cultural, ecological, 
and scenic resources in an area with premier recreational opportunities 
important to the region's economy. It incorporates the upper reaches of 
the Rio Grande Gorge, previously designated as a Wild and Scenic River, 
and protects elk wintering grounds and migratory corridors along the 
plateau between Ute Mountain to the east and San Antonio Mountain to 
the west. The conservation area will protect breeding habitat for other 
game species like deer and antelope and for birds of prey that hunt 
throughout the area, including peregrine falcons, golden eagles, and 
bald eagles. The riparian area along the Rio Grande also provides 
important habitat for brown trout and the federally-listed endangered 
southwestern willow flycatcher.
  The Cerro del Yuta Wilderness will add protections to Ute Mountain, a 
mountainous and forested extinct volcano which rises to more than 
10,000 feet from an elevation of about 7,600 feet at its base. From its 
peak Ute Mountain offers views of the Sangre de Cristo Mountains to the 
east, the deep canyon walls of the Rio Grande Gorge at its western 
base, and the high mesa sagebrush-grasslands interspersed with pinon 
juniper woodlands that form the majority of the conservation area to 
its west. Known as Tah Ha Bien to members of the Taos Pueblo and Cerro 
del Yuta to the earliest Hispanic settlers of the region, Ute Mountain 
was named for the historic Ute tribe that traversed this area along its 
route to the eastern plains. The mountain has a long history both 
geologically and culturally speaking, and evidence of human interaction 
with Ute Mountain can be still be found, including prehistoric hunting 
stations, historic

[[Page S4675]]

sheep herding camps, and important sacred sites on the mountain. As a 
relatively new addition to the public domain, the Bureau of Land 
Management has only begun to account for all the cultural resources 
that may be present on Ute Mountain.
  The Rio San Antonio Wilderness Area lies northwest of San Antonio 
Mountain and is currently managed as a Wilderness Study Area by the 
Bureau of Land Management. Composed of grassland vegetation similar to 
the majority of the conservation area, its unique character is shaped 
by the 200-foot-deep canyon formed by the waters of the Rio San Antonio 
that bisects the wilderness area. The canyon provides important 
riparian habitat to wildlife and offers visitors opportunities for 
solitude and primitive and unconfined recreation. A favorite pastime of 
locals and visitors alike is the outstanding opportunity for fly 
fishing the Rio San Antonio. By affirmatively designating this area as 
wilderness, we can help preserve its natural character that draws 
visitors to the area.
  This legislation seeks to protect the valuable natural and cultural 
resources found in the area while also recognizing that the history of 
these lands is still being written by the local community, composed of 
Pueblo Indians, descendents of Hispanic and American settlers, and new 
generations of settlers drawn to the area for similar reasons as those 
who came before them. Residents maintain a strong connection to these 
public lands and are interested in preserving the traditional ways in 
which they have used them. A good example of this is the importance to 
the local community to ensure that the continued and sustainable 
collection of pinon nuts and firewood from the public lands is 
permitted. Based on this input, earlier drafts were revised to make 
specific mention that these uses are permissible within the 
conservation area. In addition, existing grazing within the 
conservation area will be preserved consistent with current management 
practices.
  Visitors and residents of northern New Mexico also enjoy these public 
lands for recreational purposes, including hiking, camping, mountain 
biking, river rafting, skiing, hunting, fishing, photography and bird 
watching, among many others. The local economy benefits greatly from 
the tourists who visit this area to take in the scenic beauty and 
natural character of the region, and it is my hope that this 
designation will further highlight the region as a premier destination 
in the State, nationally and internationally.
  This bill is the culmination of more than 2 years of work with 
members of the local community to craft language that achieves the 
balance vital to ensure a thriving economy, the preservation of the 
region's natural resources, and a sustained way of life for residents 
of northern New Mexico. Without the constructive input from the local 
community, this bill would look very different from the one that I am 
privileged to introduce today. I am also pleased that my colleague 
Senator Tom Udall is a cosponsor of this legislation, and I look 
forward to working with him and other members of the Senate toward its 
ultimate passage.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 874

       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 ``El Rio Grande Del Norte National 
     Conservation Area Establishment Act''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Conservation area.--The term ``Conservation Area'' 
     means El Rio Grande Del Norte National Conservation Area 
     established by section 3(a)(1).
       (2) Land grant community.--The term ``land grant 
     community'' means a member of the Board of Trustees of 
     confirmed and nonconfirmed community land grants within the 
     Conservation Area.
       (3) Management plan.--The term ``management plan'' means 
     the management plan for the Conservation Area developed under 
     section 3(d).
       (4) Map.--The term ``map'' means the map entitled ``El Rio 
     Grande Del Norte National Conservation Area'' and dated March 
     23, 2009.
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (6) State.--The term ``State'' means the State of New 
     Mexico.

     SEC. 3. ESTABLISHMENT OF NATIONAL CONSERVATION AREA.

       (a) Establishment.--
       (1) In general.--There is established El Rio Grande Del 
     Norte National Conservation Area in the State.
       (2) Area included.--The Conservation Area shall consist of 
     approximately 235,980 acres of public land in Taos and Rio 
     Arriba counties in the State, as generally depicted on the 
     map.
       (b) Purposes.--The purposes of the Conservation Area are to 
     conserve, protect, and enhance for the benefit and enjoyment 
     of present and future generations the cultural, 
     archaeological, natural, scientific, geological, historical, 
     biological, wildlife, educational, recreational, and scenic 
     resources of the Conservation Area.
       (c) Management.--
       (1) In general.--The Secretary shall manage the 
     Conservation Area--
       (A) in a manner that conserves, protects, and enhances the 
     resources of the Conservation Area; and
       (B) in accordance with--
       (i) the Federal Land Policy and Management Act of 1976 (43 
     U.S.C. 1701 et seq.);
       (ii) this Act; and
       (iii) any other applicable laws.
       (2) Uses.--
       (A) In general.--The Secretary shall allow only such uses 
     of the Conservation Area that the Secretary determines would 
     further the purposes described in subsection (b).
       (B) Use of motorized vehicles.--
       (i) In general.--Except as needed for administrative 
     purposes or to respond to an emergency, the use of motorized 
     vehicles in the Conservation Area shall be permitted only on 
     roads designated for use by motorized vehicles in the 
     management plan.
       (ii) New roads.--No additional road shall be built within 
     the Conservation Area after the date of enactment of this Act 
     unless the road is needed for public safety or natural 
     resource protection.
       (C) Grazing.--The Secretary shall permit grazing within the 
     Conservation Area, where established before the date of 
     enactment of this Act--
       (i) subject to all applicable laws (including regulations) 
     and Executive orders; and
       (ii) consistent with the purposes described in subsection 
     (b).
       (D) Collection of pinon nuts and firewood.--Nothing in this 
     Act precludes the traditional collection of firewood and 
     pinon nuts for noncommercial personal use within the 
     Conservation Area--
       (i) in accordance with any applicable laws; and
       (ii) subject to such terms and conditions as the Secretary 
     determines to be appropriate.
       (E) Utility corridor upgrades.--Nothing in this Act 
     precludes the Secretary from authorizing the upgrading of an 
     existing utility corridor (including the widening of an 
     existing easement) through the Conservation Area--
       (i) in accordance with any applicable laws; and
       (ii) subject to such terms and conditions as the Secretary 
     determines to be appropriate.
       (F) Tribal cultural uses.--
       (i) Access.--The Secretary shall, in consultation with 
     Indian tribes or pueblos--

       (I) ensure the protection of religious and cultural sites; 
     and
       (II) provide occasional access to the sites by members of 
     Indian tribes or pueblos for traditional cultural and 
     customary uses, consistent with Public Law 95-341 (commonly 
     known as the ``American Indian Religious Freedom Act'') (42 
     U.S.C. 1996).

       (ii) Temporary closures.--In accordance with Public Law 95-
     341 (commonly known as the ``American Indian Religious 
     Freedom Act'') (42 U.S.C. 1996), the Secretary, on request of 
     an Indian tribe or pueblo, may temporarily close to general 
     public use 1 or more specific areas of the Conservation Area 
     in order to protect traditional cultural and customary uses 
     in those areas by members of the Indian tribe or the pueblo.
       (d) Management Plan.--
       (1) In general.--Not later than 3 years after the date of 
     enactment of this Act, the Secretary shall develop a 
     management plan for the Conservation Area.
       (2) Other plans.--To the extent consistent with this Act, 
     the plan may incorporate in the management plan the Rio 
     Grande Corridor Management Plan in effect on the date of 
     enactment of this Act.
       (3) Consultation.--The management plan shall be developed 
     in consultation with--
       (A) State and local governments;
       (B) tribal governmental entities;
       (C) land grant communities; and
       (D) the public.
       (4) Considerations.--In preparing and implementing the 
     management plan, the Secretary shall consider the 
     recommendations of Indian tribes and pueblos on methods for--
       (A) ensuring access to religious and cultural sites;
       (B) enhancing the privacy and continuity of traditional 
     cultural and religious activities in the Conservation Area; 
     and
       (C) protecting traditional cultural and religious sites in 
     the Conservation Area.
       (e) Incorporation of Acquired Land and Interests in Land.--
     Any land that is within the boundary of the Conservation Area 
     that is acquired by the United States shall--
       (1) become part of the Conservation Area; and
       (2) be managed in accordance with--
       (A) this Act; and

[[Page S4676]]

       (B) any other applicable laws.
       (f) Special Management Areas.--
       (1) In general.--The establishment of the Conservation Area 
     shall not change the management status of any area within the 
     boundary of the Conservation Area that is--
       (A) designated as a component of the National Wild and 
     Scenic Rivers System under the Wild and Scenic Rivers Act (16 
     U.S.C. 1271 et seq.); or
       (B) managed as an area of critical environmental concern.
       (2) Conflict of laws.--If there is a conflict between the 
     laws applicable to the areas described in paragraph (1) and 
     this Act, the more restrictive provision shall control.

     SEC. 4. DESIGNATION OF WILDERNESS AREAS.

       (a) In General.--In accordance with the Wilderness Act (16 
     U.S.C. 1131 et seq.), the following areas in the Conservation 
     Area are designated as wilderness and as components of the 
     National Wilderness Preservation System:
       (1) Cerro del yuta wilderness.--Certain land administered 
     by the Bureau of Land Management in Taos County, New Mexico, 
     comprising approximately 13,420 acres as generally depicted 
     on the map, which shall be known as the ``Cerro del Yuta 
     Wilderness''.
       (2) Rio san antonio wilderness.--Certain land administered 
     by the Bureau of Land Management in Rio Arriba County, New 
     Mexico, comprising approximately 8,000 acres, as generally 
     depicted on the map, which shall be known as the ``Rio San 
     Antonio Wilderness''.
       (b) Management of Wilderness Areas.--Subject to valid 
     existing rights, the wilderness areas designated by 
     subsection (a) shall be administered in accordance with the 
     Wilderness Act (16 U.S.C. 1131 et seq.) and this Act, except 
     that with respect to the wilderness areas designated by this 
     Act--
       (1) any reference to the effective date of the Wilderness 
     Act shall be considered to be a reference to the date of 
     enactment of this Act; and
       (2) any reference in the Wilderness Act to the Secretary of 
     Agriculture shall be considered to be a reference to the 
     Secretary.
       (c) Incorporation of Acquired Land and Interests in Land.--
     Any land or interest in land within the boundary of the 
     wilderness areas designated by subsection (a) that is 
     acquired by the United States shall--
       (1) become part of the wilderness area in which the land is 
     located; and
       (2) be managed in accordance with--
       (A) the Wilderness Act (16 U.S.C. 1131 et seq.);
       (B) this Act; and
       (C) any other applicable laws.
       (d) Grazing.--Grazing of livestock in the wilderness areas 
     designated by subsection (a), where established before the 
     date of enactment of this Act, shall be administered in 
     accordance with--
       (1) section 4(d)(4) of the Wilderness Act (16 U.S.C. 
     1133(d)(4)); and
       (2) the guidelines set forth in Appendix A of the Report of 
     the Committee on Interior and Insular Affairs to accompany 
     H.R. 2570 of the 101st Congress (H. Rept. 101-405).
       (e) Buffer Zones.--
       (1) In general.--Nothing in this section creates a 
     protective perimeter or buffer zone around any wilderness 
     area designated by subsection (a).
       (2) Activities outside wilderness areas.--The fact that an 
     activity or use on land outside any wilderness area 
     designated by subsection (a) can be seen or heard within the 
     wilderness area shall not preclude the activity or use 
     outside the boundary of the wilderness area.
       (f) Release of Wilderness Study Areas.--Congress finds 
     that, for purposes of section 603(c) of the Federal Land 
     Policy and Management Act of 1976 (43 U.S.C. 1782(c)), the 
     public land within the San Antonio Wilderness Study Area not 
     designated as wilderness by this section--
       (1) has been adequately studied for wilderness designation;
       (2) is no longer subject to section 603(c) of the Federal 
     Land Policy and Management Act of 1976 (43 U.S.C. 1782(c)); 
     and
       (3) shall be managed in accordance with this Act.

     SEC. 5. GENERAL PROVISIONS.

       (a) Maps and Legal Descriptions.--
       (1) In general.--As soon as practicable after the date of 
     enactment of this Act, the Secretary shall file the map and 
     legal descriptions of the Conservation Area and the 
     wilderness areas designated by section 4(a) with--
       (A) the Committee on Energy and Natural Resources of the 
     Senate; and
       (B) the Committee on Natural Resources of the House of 
     Representatives.
       (2) Force of law.--The map and legal descriptions filed 
     under paragraph (1) shall have the same force and effect as 
     if included in this Act, except that the Secretary may 
     correct errors in the legal description and map.
       (3) Public availability.--The map and legal descriptions 
     filed under paragraph (1) shall be on file and available for 
     public inspection in the appropriate offices of the Bureau of 
     Land Management.
       (b) National Landscape Conservation System.--The 
     Conservation Area and the wilderness areas designated by 
     section 4(a) shall be administered as components of the 
     National Landscape Conservation System.
       (c) Fish and Wildlife.--Nothing in this Act affects the 
     jurisdiction of the State with respect to fish and wildlife 
     located on public land in the State, except that the 
     Secretary, after consultation with the New Mexico Department 
     of Game and Fish, may designate zones where, and establishing 
     periods when, hunting shall not be allowed for reasons of 
     public safety, administration, or public use and enjoyment.
       (d) Withdrawals.--Subject to valid existing rights, any 
     Federal land within the Conservation Area and the wilderness 
     areas designated by section 4(a), including any land or 
     interest in land that is acquired by the United States after 
     the date of enactment of this Act, is withdrawn from--
       (1) entry, appropriation, or disposal under the public land 
     laws;
       (2) location, entry, and patent under the mining laws; and
       (3) operation of the mineral leasing, mineral materials, 
     and geothermal leasing laws.
       (e) Treaty Rights.--Nothing in this Act enlarges, 
     diminishes, or otherwise modifies any treaty rights.

     SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as are 
     necessary to carry out this Act.
                                 ______
                                 
      By Mr. SPECTER (for himself, Mr. Tester, and Mr. Grassley):
  S. 875. A bill to regulate the judicial use of presidential signing 
statements in the interpretation of Acts of Congress; to the Committee 
on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition today on behalf of 
myself, Senator Grassley and Senator Tester, to offer the Presidential 
Signing Statements Act of 2009. The purpose of this bill is to regulate 
the use of Presidential Signing Statements in the interpretation of 
Acts of Congress. This bill is similar in substance to two prior 
versions of this legislation: the Presidential Signing Statements Act 
of 2007, which I introduced on June 29, 2007; and the Presidential 
Signing Statements Act of 2006, which I introduced on July 26, 2006.
  As I have stated before, I believe that this legislation is necessary 
to protect our constitutional system of checks and balances. This bill 
achieves that goal in the following ways.
  First, it prevents the President from issuing a signing statement 
that alters the meaning of a statute by instructing federal and state 
courts not to rely on, or defer to, presidential signing statements as 
a source of authority when determining the meaning of any Act of 
Congress.
  Second, it grants Congress the power to participate in any case where 
the construction or constitutionality of any Act of Congress is in 
question and a presidential signing statement for that Act was issued 
by allowing Congress to file an amicus brief and present oral argument 
in such a case; instructing that, if Congress passes a joint resolution 
declaring its view of the correct interpretation of the statute, the 
Court must admit that resolution into the case record; and providing 
for expedited review in such a case.
  Since the days of President James Monroe, Presidents have issued 
statements when signing bills. It is widely agreed that there are 
legitimate uses for signing statements. For example, Presidents may use 
signing statements to instruct executive branch officials how to 
administer a law or to explain to the public the likely effect of a 
law. There may be a host of other legitimate uses.
  It is clear, however, that the President cannot use a signing 
statement to rewrite the words of a statute, nor can he use a signing 
statement to selectively nullify those provisions he does not like. 
This much is clear from our Constitution. The Constitution grants the 
President a specific, defined role in enacting legislation. Article I, 
section 1 of the Constitution vests ``all legislative powers . . . in a 
Congress.'' Article I, section 7 of the Constitution provides that, 
when a bill is presented to the President, he may either sign it or 
veto it with his objections. He may also choose to do nothing, thus 
rendering a so-called pocket veto. But the President cannot veto part 
of a bill--he cannot veto certain provisions he does not like.
  The Framers had good reason for constructing the legislative process 
as they did. According to The Records of the Constitutional Convention, 
the veto power was designed to protect citizens from a particular 
Congress that might enact oppressive legislation. However, the Framers 
did not want the veto power to be unchecked, and so, in Article I, 
section 7, they balanced it by allowing Congress to override a veto by 
2/3 vote.

[[Page S4677]]

  As I stated when I initially introduced this legislation in 2006, 
this is a finely structured constitutional procedure that goes straight 
to the heart of our system of checks and balances. Any action by the 
President that circumvents this procedure is an unconstitutional 
attempt to usurp legislative authority. If the President is permitted 
to re-write the bills that Congress passes and cherry pick which 
provisions he likes and does not like, he subverts the constitutional 
process designed by the Framers. The Supreme Court has affirmed that 
the Constitutional process for enacting legislation must be 
safeguarded. As the Court explained in INS v. Chahda, ``It emerges 
clearly that the prescription for legislative action in Article I, 
Section 1 and 7 represents the Framers' decision that the legislative 
power of the Federal Government be exercised in accord with a single, 
finely wrought and exhaustively considered, procedure.'' 462 U.S. 919, 
951, 1982.
  It is well within Congress's power to enact rules of statutory 
interpretation intended to preserve this constitutional structure. This 
power flows from Article I, section 8, clause 18 of the Constitution, 
which gives Congress the power ``To make all laws which shall be 
necessary and proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the Government of 
the U.S., or in any department or officer thereof.'' Rules of statutory 
interpretation are ``necessary and proper'' to execute the legislative 
power.
  Several scholars have agreed: Jefferson B. Fordham, a former Dean of 
the University of Pennsylvania Law School said, ``[I]t is within the 
legislative power to lay down rules of interpretation for the future;'' 
Mark Tushnet, a Professor at Harvard Law School explained, ``In light 
of the obvious congressional power to prescribe a statute's terms (and 
so its meaning), congressional power to prescribe interpretive methods 
seems to me to follow;'' Michael Stokes Paulsen, an Associate Dean of 
the University of Minnesota Law School noted, ``Congress is the master 
of its own statutes and can prescribe rules of interpretation governing 
its own statutes as surely as it may alter or amend the statutes 
directly.'' Finally, J. Sutherland, the author of the leading multi-
volume treatise for the rules of statutory construction has said, 
``There should be no question that an interpretive clause operating 
prospectively is within legislative power.''
  Indeed, recent experience shows why such legislation is 
``necessary.'' The use of signing statements has risen dramatically in 
recent years. President Clinton issued 105 signing statements; 
President Bush issued 161. What is more alarming than the sheer 
numbers, is that President Bush's signing statements often raised 
constitutional concerns and other objections to several provisions of a 
law. The President used those statements in a way that threatened to 
render the legislative process a virtual nullity, making it completely 
unpredictable how certain laws will be enforced. Even where Congress 
managed to negotiate checks on executive power, the President used 
signing statements to override the legislative language and defy 
congressional intent.
  Two prominent examples make the point. In 2006, I spearheaded the 
delicate negotiations on the PATRIOT Act Reauthorization, which 
included months of painstaking efforts to balance national security and 
civil liberties, disrupted by the dramatic disclosure of the Terrorist 
Surveillance Program. The final version of the bill featured a 
carefully crafted compromise necessary to secure the act's passage. 
Among other things, it included several oversight provisions designed 
to ensure that the FBI did not abuse special terrorism-related powers 
permitting it to make secret demands for business records. The 
President dutifully signed the measure into law, only to then enter a 
signing statement insisting he could withhold any information from 
Congress required by the oversight provisions if he decided that 
disclosure would ``impair foreign relations, national security, the 
deliberative process of the executive, or the performance of the 
executive's constitutional duties.''
  The second example arose in 2005. Congress overwhelmingly passed 
Senator John McCain's amendment to ban all U.S. personnel from 
inflicting ``cruel, inhuman or degrading'' treatment on any prisoner 
held by the United States. There was no ambiguity in Congress's intent; 
in fact, the Senate approved it 90 to 9. However, after signing the 
bill into law, the President quietly issued a signing statement 
asserting that his Administration would construe it ``in a manner 
consistent with the constitutional authority of the President to 
supervise the unitary executive branch and as Commander in Chief and 
consistent with the constitutional limitations on the judicial power.''
  Many understood this signing statement to undermine the legislation. 
In a January 4, 2006 article titled, ``Bush could bypass new torture 
ban: Waiver right is reserved,'' the Boston Globe cited an anonymous 
``senior administration official'' as saying, ``the president intended 
to reserve the right to use harsher methods in special situations 
involving national security.''
  As outrageous as these signing statements are, intruding on the 
Constitution's delegation of ``all legislative powers'' to the 
Congress, it is even more outrageous that Congress has done nothing to 
protect its constitutional powers. In 2006 and 2007, the legislation I 
introduced giving Congress standing to challenge the constitutionality 
of these signing statements failed to muster the veto-proof majority it 
would have surely required.
  With a new administration, I believe the time has come to pass this 
important legislation. This bill does not seek to limit the President's 
power, and it does not seek to expand Congress's power. Rather, this 
bill simply seeks to safeguard our Constitution. In this Congress, it 
has a better chance of mustering a majority vote and being signed into 
law by the new President.
  That said, two days after criticizing President Bush's signing 
statements, President Obama issued one of his own regarding the Omnibus 
Appropriations Act of 2009. Citing among others his ``commander in 
chief'' and ``foreign affairs'' powers, he refused to be bound by at 
least eleven specific provisions of the bill including one long-
standing rider to appropriations bills designed to aid congressional 
oversight. As I told The Wall Street Journal, ``We are having a repeat 
of what Democrats bitterly complained about under President Bush.'' I 
hope this will be the exception rather than the rule.
  In the meantime, this bill seeks to implement measures that will 
safeguard the constitutional structure of enacting legislation. In 
preserving this structure, this bill reinforces the system of checks 
and balances and separation of powers set out in our Constitution.
  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. 875

       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 ``Presidential Signing 
     Statements Act of 2009''.

     SEC. 2. DEFINITION.

       As used in this Act, the term ``presidential signing 
     statement'' means a statement issued by the President about a 
     bill, in conjunction with signing that bill into law pursuant 
     to Article I, section 7, of the Constitution.

     SEC. 3. JUDICIAL USE OF PRESIDENTIAL SIGNING STATEMENTS.

       In determining the meaning of any Act of Congress, no 
     Federal or State court shall rely on or defer to a 
     presidential signing statement as a source of authority.

     SEC. 4. CONGRESSIONAL RIGHT TO PARTICIPATE IN COURT 
                   PROCEEDINGS OR SUBMIT CLARIFYING RESOLUTION.

       (a) Congressional Right To Participate as Amicus Curiae.--
     In any action, suit, or proceeding in any Federal or State 
     court (including the Supreme Court of the United States), 
     regarding the construction or constitutionality, or both, of 
     any Act of Congress in which a presidential signing statement 
     was issued, the Federal or State Court shall permit the 
     United States Senate, through the Office of Senate Legal 
     Counsel, as authorized in section 701 of the Ethics in 
     Government Act of 1978 (2 U.S.C. 288), or the United States 
     House of Representatives, through the Office of General 
     Counsel for the United States House of Representatives, or 
     both, to participate as an amicus curiae, and to present an 
     oral argument on the question of the Act's construction or 
     constitutionality, or both. Nothing in this section shall be 
     construed to confer standing on any party seeking to bring, 
     or jurisdiction on

[[Page S4678]]

     any court with respect to, any civil or criminal action, 
     including suit for court costs, against Congress, either 
     House of Congress, a Member of Congress, a committee or 
     subcommittee of a House of Congress, any office or agency of 
     Congress, or any officer or employee of a House of Congress 
     or any office or agency of Congress.
       (b) Congressional Right To Submit Clarifying Resolution.--
     In any suit referenced in subsection (a), the full Congress 
     may pass a concurrent resolution declaring its view of the 
     proper interpretation of the Act of Congress at issue, 
     clarifying Congress's intent or clarifying Congress's 
     findings of fact, or both. If Congress does pass such a 
     concurrent resolution, the Federal or State court shall 
     permit the United States Congress, through the Office of 
     Senate Legal Counsel, to submit that resolution into the 
     record of the case as a matter of right.
       (c) Expedited Consideration.--It shall be the duty of each 
     Federal or State court, including the Supreme Court of the 
     United States, to advance on the docket and to expedite to 
     the greatest possible extent the disposition of any matter 
     brought under subsection (a).
                                 ______
                                 
      By Mr. SPECTER (for himself and Mr. Whitehouse):
  S. 876. A bill to provide for the substitution of the United States 
in certain civil actions relating to electronic service providers and 
FISA; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to reintroduce 
legislation that would substitute the United States in the place of 
electronic communications service providers who were sued for violating 
the Foreign Intelligence Surveillance Act, FISA, and other statutory 
and constitutional provisions.
  FISA reform legislation passed the Senate in February and July of 
2008, both times by a vote of 68 to 29, before being signed into law by 
President Bush on July 10, 2008. This legislation made many necessary 
changes to FISA to enhance our intelligence collection capabilities, 
but it also included a controversial provision giving retroactive 
immunity to telecommunications companies for their alleged cooperation 
with the warrantless surveillance program authorized by the President 
after September 11, 2001. The legislation stripped the Federal courts 
of jurisdiction to decide more than 40 consolidated cases involving 
claims of violations of FISA and related statutes, even though most 
Members of Congress had not been briefed on the program, and despite 
the fact that the judge handling the cases, Chief Judge Vaughn Walker 
of the Northern District of California, had questioned the legality of 
the program in a related opinion issued just days before the final 
Senate debate.
  During the February and July FISA debates, I sought to keep the 
courts open as a way to check executive branch excesses. Through both a 
stand-alone bill, S. 2402, considered by the Senate Judiciary Committee 
and an amendment, SA 3927 to S. 2248, offered during the Senate's 
February debate on the FISA reform bill, I proposed to substitute the 
U.S. Government for the telephone companies facing lawsuits for their 
alleged cooperation with the Terrorist Surveillance Program, TSP. Just 
as in 2008, I propose legislation that would place the Government in 
the shoes of the telephone companies, with the same defenses no more 
and no less. Thus, under the bill, plaintiffs get their day in court 
and may hold the Government accountable for unlawful activity, if any, 
related to the surveillance program. At the same time, the carriers 
themselves avoid liability stemming from their efforts to be good 
citizens.
  I fought hard in 2008 to keep the courts open on the question of the 
TSP, and urged my colleagues to improve the FISA bill. I continue that 
fight today with a new Administration in office. During the prior floor 
debate I said: ``Although I am prepared to stomach this bill, if I 
must, I am not yet ready to concede that the debate is over. Contrary 
to the conventional wisdom, I don't believe it is too late to make this 
bill better.''
  As I observed on the floor last year, it is necessary for Congress to 
support intelligence collection efforts because of the continuing 
terrorist threat. No one wants to be blamed for another 9-11. Indeed, 
as I acknowledged during the debate, my own briefings on the telephone 
companies' cooperation with the Government convinced me of the 
program's value. Nevertheless, I tried to impress upon my colleagues 
the importance and historical context of our actions. I said:

       We are dealing here with a matter that is of historic 
     importance. I believe that years from now, historians will 
     look back on this period from 9/11 to the present as the 
     greatest expansion of Executive authority in history--
     unchecked expansion of authority. The President disregards 
     the National Security Act of 1947 mandating notice to the 
     Intelligence Committee; he doesn't do it. The President takes 
     legislation that is presented by Congress and he signs it, 
     and then he issues a signing statement disagreeing with key 
     provisions. There is nothing Congress can do about it.
       The Supreme Court of the United States has gone absent 
     without leave on the issue, in my legal opinion. When the 
     Detroit Federal judge found the terrorist surveillance 
     program unconstitutional, it was [reversed] by the Sixth 
     Circuit on a 2-to-1 opinion on grounds of lack of standing. 
     Then the Supreme Court refused to review the case. But the 
     very formidable dissenting opinion laid out all of the 
     grounds where there was ample basis to grant standing. Now we 
     have Chief Judge Walker declaring the [surveillance illegal]. 
     The Congress ought to let the courts fulfill their 
     constitutional function.

  It is not too late to provide for judicial review of controversial 
post-9/11 intelligence surveillance activities. The cases before Judge 
Vaughn Walker are still pending and, even if he were to dismiss them 
under the statutory defenses dubbed retroactive immunity, Congress can 
and should permit the cases to be refiled against the Government, 
standing in the shoes of the carriers.
  This legislation substitutes the U.S. in place of any electronic 
communication service provider who provided communications in 
connection with an intelligence activity that was: authorized by the 
President between September 11, 2001, and January 17, 2007; and 
designed to detect or prevent a terrorist attack against the U.S. In 
order for substitution to apply, the electronic communications service 
provider must have received a written request from the Attorney General 
or the head of an element of the intelligence community indicating that 
the activity was authorized by the President and determined to be 
lawful. If the provider assisted the Government beyond what was 
requested in writing, this legislation will provide no relief to the 
service provider.
  The legislation also establishes a limited waiver of sovereign 
immunity that only applies to ``covered civil actions'' essentially, 
the 40 cases currently pending before the U.S. District Court in the 
Northern District of California. This is to prevent the Government from 
asserting immunity in the event it is substituted for the current 
defendants.
  We can still pass legislation substituting the Government for the 
various telecom defendants and have a judicial assessment of the 
constitutionality and legality of the controversial surveillance. Such 
a judicial assessment is necessary to resolve the clash between the 
Executive and Legislative branches over the legality and 
constitutionality of the surveillance program.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 876

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AMENDMENT TO FISA.

       Title III of the Foreign Intelligence Surveillance Act of 
     1978 Amendments Act of 2008 (Public Law 110-261) is amended 
     by inserting at the end the following:

     ``SEC. 302. SUBSTITUTION OF THE UNITED STATES IN CERTAIN 
                   ACTIONS.

       ``(a) In General.--
       ``(1) Certification.--Notwithstanding any other provision 
     of law, a Federal or State court shall substitute the United 
     States for an electronic communication service provider with 
     respect to any claim in a covered civil action as provided in 
     this subsection, if the Attorney General certifies to that 
     court that--
       ``(A) with respect to that claim, the assistance alleged to 
     have been provided by the electronic communication service 
     provider was--
       ``(i) provided in connection with an intelligence activity 
     involving communications that was--

       ``(I) authorized by the President during the period 
     beginning on September 11, 2001, and ending on January 17, 
     2007; and
       ``(II) designed to detect or prevent a terrorist attack, or 
     activities in preparation for a terrorist attack, against the 
     United States; and

       ``(ii) described in a written request or directive from the 
     Attorney General or the

[[Page S4679]]

     head of an element of the intelligence community (or the 
     deputy of such person) to the electronic communication 
     service provider indicating that the activity was--

       ``(I) authorized by the President; and
       ``(II) determined to be lawful; or

       ``(B) the electronic communication service provider did not 
     provide the alleged assistance.
       ``(2) Substitution.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     and subject to subparagraph (C), upon receiving a 
     certification under paragraph (1), a Federal or State court 
     shall--
       ``(i) substitute the United States for the electronic 
     communication service provider as the defendant as to all 
     claims designated by the Attorney General in that 
     certification, consistent with the procedures under rule 
     25(c) of the Federal Rules of Civil Procedure, as if the 
     United States were a party to whom the interest of the 
     electronic communication service provider in the litigation 
     had been transferred; and
       ``(ii) as to that electronic communication service 
     provider--

       ``(I) dismiss all claims designated by the Attorney General 
     in that certification; and
       ``(II) enter a final judgment relating to those claims.

       ``(B) Continuation of certain claims.--If a certification 
     by the Attorney General under paragraph (1) states that not 
     all of the alleged assistance was provided under a written 
     request or directive described in paragraph (1)(A)(ii), the 
     electronic communication service provider shall remain as a 
     defendant.
       ``(C) Determination.--
       ``(i) In general.--Substitution under subparagraph (A) 
     shall proceed only after a determination by the Foreign 
     Intelligence Surveillance Court that--

       ``(I) the written request or directive from the Attorney 
     General or the head of an element of the intelligence 
     community (or the deputy of such person) to the electronic 
     communication service provider under paragraph (1)(A)(ii) 
     complied with section 2511(2)(a)(ii)(B) of title 18, United 
     States Code;
       ``(II) the assistance alleged to have been provided was 
     undertaken by the electronic communication service provider 
     acting in good faith and pursuant to an objectively 
     reasonable belief that compliance with the written request or 
     directive under paragraph (1)(A)(ii) was permitted by law; or
       ``(III) the electronic communication service provider did 
     not provide the alleged assistance.

       ``(ii) Certification.--If the Attorney General submits a 
     certification under paragraph (1), the court to which that 
     certification is submitted shall--

       ``(I) immediately certify the questions described in clause 
     (i) to the Foreign Intelligence Surveillance Court; and
       ``(II) stay further proceedings in the relevant litigation, 
     pending the determination of the Foreign Intelligence 
     Surveillance Court.

       ``(iii) Participation of parties.--In reviewing a 
     certification and making a determination under clause (i), 
     the Foreign Intelligence Surveillance Court shall permit any 
     plaintiff and any defendant in the applicable covered civil 
     action to appear before the Foreign Intelligence Surveillance 
     Court pursuant to section 103 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1803).
       ``(iv) Declarations.--If the Attorney General files a 
     declaration under section 1746 of title 28, United States 
     Code, that disclosure of a determination made pursuant to 
     clause (i) would harm the national security of the United 
     States, the Foreign Intelligence Surveillance Court shall 
     limit any public disclosure concerning such determination, 
     including any public order following such an ex parte review, 
     to a statement that the conditions of clause (i) have or have 
     not been met, without disclosing the basis for the 
     determination.
       ``(D) Special rule.--Notwithstanding any other provision of 
     this Act--
       ``(i) in any matter in which the Foreign Intelligence 
     Surveillance Court denies dismissal on grounds that the 
     statutory defenses provided in title VIII of the Foreign 
     Intelligence Surveillance Act of 1978 are unconstitutional, 
     the Attorney General shall be substituted pursuant to this 
     paragraph; and
       ``(ii) if a claim is dismissed pursuant to title VIII of 
     the Foreign Intelligence Surveillance Act of 1978 prior to 
     date of enactment of this section, the claim against the 
     United States shall be tolled for the period during which the 
     claim was pending and may be refilled against the United 
     States pursuant to rule 60(b) of the Federal Rules of Civil 
     Procedure after the date of enactment of this section.
       ``(3) Procedures.--
       ``(A) Tort claims.--Upon a substitution under paragraph 
     (2), for any tort claim--
       ``(i) the claim shall be deemed to have been filed under 
     section 1346(b) of title 28, United States Code, except that 
     sections 2401(b), 2675, and 2680(a) of title 28, United 
     States Code, shall not apply; and
       ``(ii) the claim shall be deemed timely filed against the 
     United States if it was timely filed against the electronic 
     communication service provider.
       ``(B) Constitutional and statutory claims.--Upon a 
     substitution under paragraph (2), for any claim under the 
     Constitution of the United States or any Federal statute--
       ``(i) the claim shall be deemed to have been filed against 
     the United States under section 1331 of title 28, United 
     States Code;
       ``(ii) with respect to any claim under a Federal statute 
     that does not provide a cause of action against the United 
     States, the plaintiff shall be permitted to amend such claim 
     to substitute, as appropriate, a cause of action under--

       ``(I) section 704 of title 5, United States Code (commonly 
     known as the Administrative Procedure Act);
       ``(II) section 2712 of title 18, United States Code; or
       ``(III) section 110 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1810);

       ``(iii) the statutes of limitation applicable to the causes 
     of action identified in clause (ii) shall apply to any 
     amended claim under that clause subject to the tolling 
     requirements of paragraph (2)(D)(ii), and any such cause of 
     action shall be deemed timely filed if any Federal statutory 
     cause of action against the electronic communication service 
     provider was timely filed; and
       ``(iv) for any amended claim under clause (ii) the United 
     States shall be deemed a proper defendant under any statutes 
     described in that clause, and any plaintiff that had standing 
     to proceed against the original defendant shall be deemed an 
     aggrieved party for purposes of proceeding under section 2712 
     of title 18, United States Code, or section 110 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1810).
       ``(C) Discovery.--
       ``(i) In general.--In a covered civil action in which the 
     United States is substituted as party-defendant under 
     paragraph (2), any plaintiff may serve third-party discovery 
     requests to any electronic communications service provider as 
     to which all claims are dismissed.
       ``(ii) Binding the government.--If a plaintiff in a covered 
     civil action serves deposition notices under rule 30(b)(6) of 
     the Federal Rules of Civil Procedure or requests for 
     admission under rule 36 of the Federal Rules of Civil 
     Procedure upon an electronic communications service provider 
     as to which all claims were dismissed, the electronic 
     communications service provider shall be deemed a party-
     defendant for purposes rule 30(b)(6) or rule 36 and its 
     answers and admissions shall be deemed binding upon the 
     Government.
       ``(b) Certifications.--
       ``(1) In general.--For purposes of substitution proceedings 
     under this section--
       ``(A) a certification under subsection (a) may be provided 
     and reviewed in camera, ex parte, and under seal; and
       ``(B) for any certification provided and reviewed as 
     described in subparagraph (A), the court shall not disclose 
     or cause the disclosure of its contents.
       ``(2) Nondelegation.--The authority and duties of the 
     Attorney General under this section shall be performed by the 
     Attorney General or a designee in a position not lower than 
     the Deputy Attorney General.
       ``(c) Sovereign Immunity.--This section, including any 
     Federal statute cited in this section that operates as a 
     waiver of sovereign immunity, constitute the sole waiver of 
     sovereign immunity with respect to any covered civil action.
       ``(d) Civil Actions in State Court.--For purposes of 
     section 1441 of title 28, United States Code, any covered 
     civil action that is brought in a State court or 
     administrative or regulatory bodies shall be deemed to arise 
     under the Constitution or laws of the United States and shall 
     be removable under that section.
       ``(e) Rule of Construction.--Except as expressly provided 
     in this section, nothing in this section may be construed to 
     limit any immunity, privilege, or defense under any other 
     provision of law, including any privilege, immunity, or 
     defense that would otherwise have been available to the 
     United States absent its substitution as party-defendant or 
     had the United States been the named defendant.
       ``(f) Effective Date and Application.--This section shall 
     apply to any covered civil action pending on or filed after 
     the date of enactment of this section.''.
                                 ______
                                 
      By Mr. SPECTER:
  S. 877. A bill to provide for the non-discretionary Supreme Court 
review of certain civil actions relating to the legality and 
constitutionality of surveillance activities; to the Committee on the 
Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
legislation that will mandate Supreme Court review of challenges to the 
warrantless wiretapping program authorized by President Bush after 9/
11, commonly known as the Terrorist Surveillance Program or TSP.
  While the Supreme Court generally exercises discretion as to whether 
it will review a case or grant ``certiorari,'' there are precedents for 
Congress to direct Supreme Court review on constitutional issues--
including the statutes forbidding flag burning and requiring Congress 
to abide by Federal employment laws--and the gravity of this issue 
merits Congressional action.
  In August 2006, Judge Anna Diggs Taylor of the U.S. District Court 
for

[[Page S4680]]

the Eastern District of Michigan issued a 43-page opinion finding the 
TSP unconstitutional. At the time, many applauded and many others 
criticized her decision, but we have yet to see appellate review on the 
merits. Instead, in July 2007, the U.S. Court of Appeals for the 6th 
Circuit overturned the district court's decision on other grounds. By a 
2-1 vote, in ACLU v. NSA, it declined to rule on the legality of the 
program, finding that the plaintiffs lacked standing to bring the suit. 
The Supreme Court then declined to hear the case, even though the 
doctrine of standing has enough flexibility, as demonstrated by the 
dissent in the 6th Circuit, to have enabled it to take up this 
fundamental clash between Congress and the President.
  With the Supreme Court abstaining, another lone district judge took a 
stand. In In re National Security Agency Telecommunications Records 
Litigation, Chief Judge Vaughn Walker in the Northern District of 
California considered a case brought by an Islamic charity that claims 
to have been a subject of the surveillance program. In a 56-page 
opinion he held that Congress's enactment of the Foreign Intelligence 
Surveillance Act of 1978, FISA, had constrained the President's 
inherent authority--if any--to conduct warrantless wiretapping: 
``Congress appears clearly to have intended to--and did--establish the 
exclusive means for foreign intelligence surveillance activities to be 
conducted. Whatever power the executive may otherwise have had in this 
regard, FISA limits the power of the executive branch to conduct such 
activities.'' Nevertheless, this finding is preliminary.
  Whatever Chief Judge Walker ultimately decides, my bill will permit 
any party who is disaffected by a subsequent decision in the Ninth 
Circuit to have the case heard by the Supreme Court by eliminating 
discretionary review. Under my bill, the Supreme Court would also have 
to review appeals concerning the constitutionality or legality of: the 
Terrorist Surveillance Program writ large; the statutory immunity for 
telecommunications providers created by Title II of the FISA Amendments 
Act of 2008; and any other intelligence activity involving 
communications that was authorized by the President during the period 
beginning on September 11, 2001, and ending at such time as the 
activity was approved by a Federal court.
  Relying on similar precedents, the bill requires the High Court to 
expedite its consideration of such cases. The bill, however, is limited 
to circumstances where the Court has not previously decided the 
question at issue. Thus, it does not create a permanent right of review 
for all similarly situated parties, but it does require the Court to 
take up the matter in the first instance.
  Congress clearly has the power to require appellate review by the 
Supreme Court under Article III, Section 2 of the Constitution, and it 
has exercised this prerogative. For example, 28 U.S.C. Sec.  3904 
provides for direct appeal to the Supreme Court of decisions ``upon the 
constitutionality'' of the Congressional Accountability Act if the 
Court ``has not previously ruled on the question'' and requires the 
Court to ``expedite the appeal.'' Congress used nearly identical 
language to provide for direct appeal and expedited Supreme Court 
review of the constitutionality of a ban on flag burning in 18 U.S.C. 
Sec.  700.
  I propose similar action here. It is hard to conceive of a better 
case to have finally decided in the Supreme Court than one which 
challenges the legality of warrantless wiretapping--or the 
constitutionality of the retroactive statutory defenses passed by 
Congress last year.
  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. 877

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. MANDATORY SUPREME COURT REVIEW OF CERTAIN CIVIL 
                   ACTIONS.

       Chapter 81 of title 28, United States Code, is amended by 
     inserting at the end the following:

     ``SEC. 1260. MANDATORY SUPREME COURT REVIEW OF CERTAIN CIVIL 
                   ACTIONS CONCERNING SURVEILLANCE ACTIVITIES.

       ``(a) In General.--The Supreme Court shall, if it has not 
     previously ruled on the question, accept jurisdiction over 
     any appeal of an interlocutory or final judgment, decree, or 
     order of a court of appeals in any case challenging the 
     legality or constitutionality of--
       ``(1) the President's Surveillance Program, commonly known 
     as the Terrorist Surveillance Program, as defined in section 
     301(a)(3) of the Foreign Intelligence Surveillance Act of 
     1978 Amendments Act of 2008 (Public Law 110-261);
       ``(2) the statutory defenses established in Section 
     802(a)(4) of the Foreign Intelligence Surveillance Act of 
     1978, as amended by title II of the Foreign Intelligence 
     Surveillance Act of 1978 Amendments Act of 2008 (Public Law 
     110-261); or
       ``(3) any intelligence activity involving communications 
     that was authorized by the President during the period 
     beginning on September 11, 2001, and ending at such time as 
     the activity was approved by a Federal court.
       ``(b) Expedited Consideration.--The Supreme Court shall 
     advance on the docket any appeal referred to in subsection 
     (a), and expedite the appeal to the greatest extent 
     possible.''.

     SEC. 2. CLERICAL AMENDMENT.

       The chapter analysis for chapter 81 of title 28, United 
     States Code, is amended by inserting at the end the 
     following:

``Sec. 1260. Mandatory supreme court review of certain civil actions 
              concerning surveillance activities.''.

                                 ______
                                 
      By Ms. COLLINS (for herself and Mr. Lieberman):
  S. 879. A bill to amend the Homeland Security Act to provide immunity 
for reports of suspected terrorist activity or suspicious behavior and 
response; to the Committee on the Judiciary.
  Ms. COLLINS. Mr. President, the recent terrorist attacks in Mumbai, 
India, are a sobering reminder that terrorists continue to threaten our 
Nation and civilized people throughout the world. An alert citizenry is 
our first line of defense against terrorist attacks, particularly 
attacks like those in Mumbai. Our laws must protect individuals from 
frivolous lawsuits when they report, in good faith, suspicious behavior 
that may indicate terrorist activity. That is why I am introducing 
legislation, with Senator Lieberman, that will provide these important 
protections.
  In the 2007 homeland security law, Chairman Lieberman and I 
coauthored a provision to encourage people to report potential 
terrorist threats directed against transportation systems. This new 
legislation would expand those protections to reports of suspicious 
behavior in sectors other than transportation. For example, reports of 
suspicious activity could be equally important in detecting terrorist 
plans to attack ``soft targets'' like the hotels, restaurants, and 
religious institutions targeted in Mumbai.
  Real life examples highlight the need for this bill. In December 
2008, a Federal jury convicted 5 men from New Jersey of conspiring to 
murder American soldiers at Fort Dix. According to law enforcement 
officials, the report of an alert store clerk, who reported that a 
customer had brought in a video showing men firing weapons and shouting 
in Arabic, triggered their investigation. But for the report of this 
vigilant store clerk, law enforcement may not have disrupted this plot 
against Fort Dix.
  That store clerk's action likely saved hundreds of lives. It also 
reveals a core truth of the dangerous times in which we live. Our 
safety depends on more than just police officers, intelligence 
analysts, and soldiers. It also depends on the alertness and civic 
responsibility of all Americans.
  We must encourage citizens to be watchful and to report suspicious 
activity whenever it occurs. That imperative is even stronger in the 
aftermath of the November 2008 terrorist attacks in Mumbai, where it 
appears that the terrorists performed reconnaissance on a number of the 
targets before the actual attacks.
  Senator Lieberman and I recently convened two hearings in the 
Homeland Security Committee to examine lessons learned from those 
horrific attacks. These hearings have reinforced our long-standing 
concern that terrorists might shift their attention from high-value, 
high-security targets to less secure commercial facilities, where there 
is the potential for mass casualties and widespread panic. As we 
witnessed during the three-day siege of Mumbai, commercial facilities 
or ``soft

[[Page S4681]]

targets,'' such as the Taj Mahal, Trident, and Oberoi Hotels, are 
vulnerable, tempting targets.
  Many of the Committee's witnesses during these hearings, including 
Charles Allen, DHS's Chief Intelligence Officer, Donald Van Duyn, the 
FBI's Chief Intelligence Officer, New York City Police Commissioner 
Raymond Kelley, and Al Orlob, Marriott International's Vice President 
for Corporate Security, endorsed the idea of expanding the 2007 law 
beyond the transportation sector. Indeed, Commissioner Kelley said that 
the 2007 law ``made eminently good sense'' and recommended ``that it be 
expanded [to other sectors] if at all possible.''
  Unfortunately, we have seen that our legal system can be used to 
chill the willingness of citizens to come forward and report possible 
dangers. As widely reported by the media in 2006, US Airways removed 6 
Islamic clerics from a flight after other passengers expressed concerns 
that some of the clerics had moved out of the their assigned seats and 
had requested, but were not using, seat belt extenders that could 
possibly double as weapons. In response to these concerns, US Airways 
officials removed these individuals from the plane so that they could 
further investigate.

  For voicing their reasonable fears that these passengers could be 
rehearsing or preparing to execute a hijacking, these honestly 
concerned travelers found themselves as defendants in a civil rights 
lawsuit and accused of bigotry. The old adage about how ``no good deed 
goes unpunished'' is quite apt here.
  The existence of this lawsuit clearly illustrates how unfair it is to 
allow private citizens to be intimidated into silence by the threat of 
litigation. Would the passengers have spoken up if they had anticipated 
that there would be a lawsuit filed against them? Even if such suits 
fail, they can expose citizens to heavy costs in time and legal fees.
  The bill we introduce today would provide civil immunity in American 
courts for any person acting in good faith who reports any suspicious 
transaction, activity, or occurrence related to an act of terrorism. 
Specifically, the bill would encourage people to pass on information to 
Federal officials with responsibility for preventing, protecting 
against, disrupting, or responding to a terrorist act or to Federal, 
State, and local law enforcement officials without fear of being sued 
for doing their civic duty. Only disclosures made to those responsible 
officials would be protected by the legislation.
  Once a report is received, those officials would be responsible for 
assessing its reasonableness and determining whether further action is 
required. If they take reasonable action to mitigate the reported 
threat, they, too, would be protected from lawsuits. Just as we should 
not discourage reporting suspicious incidents, we also should not 
discourage reasonable responses to them.
  Let me make very clear that this bill does not offer any protection 
whatsoever if an individual makes a statement that he or she knows to 
be false. No one will be able to use this protection as cover for 
mischievous, vengeful, or biased falsehoods.
  Our laws and legal system must not be hijacked to intimidate people 
into silence or to prevent our officials from responding to terrorist 
threats. Protecting citizens who make good faith reports--and that's an 
important condition in this bill--of potentially lethal activities is 
essential to maintaining our homeland security. Our bill offers 
protection in a measured way that discourages abuses from either side.
  Each of us has an important responsibility in the fight against 
terrorism. It is not a fight that can be left to law enforcement alone. 
The police simply can't be everywhere. Whether at a hotel, a mall, or 
an arena, homeland security and law enforcement officials need all 
citizens to alert them to unattended packages and behavior that appears 
out of the ordinary.
  Many national organizations, such as the Fraternal Order of Police, 
the National Sheriffs' Association, the National Troopers Coalition, 
and the National Association of Town Watch, support this legislation.
  If someone ``sees something'' suspicious, Congress has an obligation 
to ensure that he or she will ``say something'' about it. This bill 
promotes and protects that civic duty. I urge my colleagues to support 
it.
  There being no objection, the material was ordered to be placed in 
the Record, as follows;

                                   National Troopers Coalition

                                                   March 24, 2009.
     Hon. Susan Collins,
     Ranking Member, Committee on Homeland Security and 
         Governmental Affairs, U.S. Senate, Washington, DC.
       Dear Senator Collins: On behalf of the National Troopers 
     Coalition and its 40,000 members comprised of State Troopers 
     and Highway Patrol Officers, I am writing in support of your 
     efforts to pass the ``See Something, Say Something Act''. We 
     applaud your efforts to keep this country safe.
       Our nation is currently at war against terrorists that want 
     to destroy our country and disrupt our way of life. It is 
     vital that we remain vigilant in our efforts to combat 
     terrorism and keep our country safe. The See Something, Say 
     Something Act, will provide necessary liability protections 
     for citizens that report suspicious activity and for law 
     enforcement officers that act upon these reports. We live in 
     a litigious society and one should not be fearful of 
     litigation when determining if he or she should report 
     suspicious activities that could prevent catastrophic loss of 
     life. What we have learned in our efforts to combat terrorism 
     is that everyone needs to remain vigilant and report all 
     suspicious activities.
       We support your efforts to provide liability protections 
     for citizens acting in good faith that report suspicious 
     activity. We can not turn a ``blind eye'' to the terrorists 
     we are fighting and we must encourage and support an ever 
     vigilant society.
           Respectfully,
     A. Bradford Card,
       Federal Government Affairs (NTC), for: Michael Edes, 
     Chairman, National Troopers Coalition.
                                  ____



                               National Sheriffs' Association,

                                   Alexandria, VA, March 24, 2009.
     Hon. Susan M. Collins,
     Dirksen Senate Office Building,
     Washington, DC.
       Dear Senator Collins: On behalf of the National Sheriffs' 
     Association (NSA), I am writing to express our support for 
     the See Something, Say something Act of 2009.
       As you may know, the National Sheriffs' Association is the 
     creator of the Neighborhood Watch Program which is one of the 
     oldest and best-known citizen and law enforcement based crime 
     prevention concepts in the United States. In the late 1960s, 
     an increase in crime heightened the need for a crime 
     prevention initiative focused on residential areas involving 
     local citizens. We responded, creating the National 
     Neighborhood Watch Program in 1972 to assist citizens and law 
     enforcement.
       For nearly four decades, particularly after the terrorist 
     attacks in 2001, the nation's sheriffs have witnessed 
     firsthand, citizens becoming more empowered by becoming 
     active in homeland security efforts through participation in 
     Neighborhood Watch. Thus, we understand and recognize the 
     importance of encouraging citizen involvement and the role 
     they play in ensuring homeland security.
       The proposed measure would build on this concept by 
     providing the needed legal protections to individuals who 
     report suspicious activity to an authorized official, in good 
     faith, that might reflect terrorist threats. Additionally, it 
     would provide qualified immunity from civil liability for an 
     authorized official who takes reasonable action in good faith 
     to respond to the reported activity.
       We thank you for your continued leadership and support of 
     the nation's emergency responders.
           Sincerely,
                                            Sheriff David A. Goad,
     President.
                                  ____



                                       National Association of

                                                   Town Watch,

                                    Wynnewood, PA, March 24, 2009.
     Hon. Susan M. Collins,
     Washington, DC.
       Dear Senator Collins: On behalf of the National Association 
     of Town Watch (NATW), I am writing to express our support for 
     the See Something, Say Something Act of 2009.
       The National Association of Town Watch is a nonprofit, 
     crime prevention organization whose members include citizen 
     crime watch groups, law enforcement agencies and other 
     organizations across the country involved in organized, 
     anticrime activities. NATW also sponsors the annual 
     ``National Night Out'' crime prevention event which has grown 
     to involve over 15,000 communities from all 50 states on the 
     first Tuesday each August.
       Since 1981, NATW has always promoted the concept of 
     citizens working in close cooperation with their local law 
     enforcement and serving as ``extra eyes and ears.'' The 
     proposed legislation blends beautifully with NATW's mission. 
     It is critical to legally protect individuals who report 
     suspicious activity to an authorized official, in good faith, 
     that might reflect terrorist threats. This legislation also 
     would provide qualified immunity from civil liability for an 
     authorized official who takes reasonable action in good faith 
     to respond to the reported activity.
       We thank you for bringing this legislation forward and for 
     supporting law enforcement

[[Page S4682]]

     and concerned citizens across our great nation.
           Sincerely,
                                                   Matt A. Peskin,
     Executive Director.
                                  ____

                                          National Fraternal Order


                                                    of Police,

                                   Washington, DC, April 22, 2009.
     Hon. Susan M. Collins,
     Ranking Member, Committee on Homeland Security and 
         Governmental Affairs, U.S. Senate, Washington, DC.
       Dear Senator Collins, On behalf of the membership of the 
     Fraternal Order of Police, I am writing to advise you of our 
     strong support for the bill you have introduced entitled the 
     ``See Something, Say Something Act.''
       Following the terrorist attacks on 11 September 2001 every 
     American, especially law enforcement officers, have become 
     more vigilant. Unfortunately, the increasingly litigious 
     nature of our society may result in many citizens choosing to 
     ``stay out of it''--even if they see something or someone 
     suspicious. Citizens who have reported suspicious activity 
     and law enforcement officers who have acted on these reports 
     have been sued in Federal, State and local courts even though 
     their concerns were reasonable and without malice. The result 
     is that all of us may be more hesitant to report or act upon 
     any suspicious behavior we might see.
       Congress took a step in the right direction in 2007 when it 
     passed legislation granting immunity from civil liability for 
     citizens who report suspicious activity and law enforcement 
     officers who act upon such reports involving threats to 
     transportation security. Your bill would expand this immunity 
     to cover all suspicious activity whether it is in a train 
     station, a Federal building, or a sports stadium. This bill 
     will not only protect vigilant individuals from frivolous 
     lawsuits, but it also greatly increases our nation's 
     security.
       On behalf of the more than 327,000 members of the Fraternal 
     Order of Police, I would like to thank you again for your 
     leadership on this issue. If I can be of any further 
     assistance, please do not hesitate to contact me, or 
     Executive Director Jim Pasco, in my Washington office.
           Sincerely,
                                                 Chuck Canterbury,
                                               National President.
                                 ______
                                 
      By Ms. MURKOWSKI (for herself, Mr. Begich, Mr. Akaka, and Mr. 
        Inouye):
  S. 881. A bill to provide for the settlement of certain claims under 
the Alaska Native Claims Settlement Act, and for other purposes; to the 
Committee on Energy and Natural Resources.
  Ms. MURKOWSKI. Mr. President, The Tlingit and Haida people, the first 
people of Southeast Alaska, were perhaps the first group of Alaska 
natives to organize for the purpose of asserting their aboriginal land 
claims. The native land claims movement in the rest of Alaska did not 
gain momentum until the 1960s when aboriginal land titles were 
threatened by the impending construction of the Trans Alaska Pipeline. 
In Southeast Alaska, the taking of Native lands for the Tongass 
National Forest and Glacier Bay National Monument spurred the Tlingit 
and Haida people to fight to recover their lands in the early part of 
the 20th Century.
  One of the first steps in this battle came with the formation of the 
Alaska Native Brotherhood in 1912. In 1935, the Jurisdictional Act, 
which allowed the Tlingit and Haida Indians to pursue their land claims 
in the U.S. Court of Claims, was enacted by Congress.
  After decades of litigation, the native people of Southeast Alaska 
received a cash settlement in 1968 from the Court of Claims for the 
land previously taken to create the Tongass National Forest and the 
Glacier Bay National Monument. Yes, there was a cash settlement of $7.5 
million, but the Native people of Southeast Alaska have long believed 
that it did not adequately compensate them for the loss of their lands 
and resources.
  Beware of the law of unintended consequences. When the native people 
of Southeast Alaska chose to pursue their land claims in court they 
could not have foreseen that Congress would ultimately settle the land 
claims of all of Alaska's native people through the Alaska Native 
Claims Settlement Act of 1971. Nor could they have foreseen that they 
would be disadvantaged in obtaining the return of their aboriginal 
lands because of their early, and ultimately successful, effort to 
litigate their land claims. Sadly this was the case.
  The Alaska Native Claims Settlement Act of 1971 imposed a series of 
highly prescriptive limitations on the lands that Sealaska Corporation, 
the regional Alaska Native Corporation formed for Southeast Alaska, 
could select in satisfaction of the Tlingit and Haida land claim. None 
of the other 11 Alaska-based regional native corporations were subject 
to these limitations. Today, I join with my Alaska colleague, Sen. Mark 
Begich, cosponsored by Sens. Daniel Akaka and Daniel Inouye to 
introduce legislation to right this wrong.
  For the most part, Sealaska Corporation has agreed to live within the 
constraints imposed by the 1971 legislation. It has taken conveyance of 
roughly 290,000 acres from the pool of lands it was allowed to select 
under the 1971 act. As Sealaska moves to finalize its land selections 
it has asked the Congress for flexibility to receive title to certain 
lands that it was not permitted to select under the prescriptive, and 
as Sealaska believes, discriminatory, limitations contained in the 1971 
legislation.

  The legislation we are introducing today would allow Sealaska to 
select its remaining entitlement from outside of the withdrawal areas 
permitted in the 1971 legislation. It allows the Native Corporation to 
select up to 3,600 acres of its remaining land entitlement from lands 
with sacred, cultural, traditional or historical significance 
throughout the Alaska Panhandle. Substantial restrictions will be 
placed on the use of these lands.
  Up to 5,000 acres of land could be selected for non-timber related 
economic development. These lands are called ``Native Futures'' Sites 
in the bill. Other lands referred to as ``economic development lands'' 
in the bill could be used for timber related and non-timber related 
economic development. These lands are on Prince of Wales Island, on 
nearby Kosciusko Island.
  Sealaska observes that if it were required to take title to lands 
within the constraints prescribed by the 1971 legislation it would take 
title to large swaths of roadless acres in pristine portions of the 
Tongass National Forest. The lands it proposes to take for economic 
uses under this legislation are predominantly in roaded and less 
sensitive areas of the Tongass National Forest.
  The pools of lands that would be available to Sealaska under this 
legislation are depicted on a series of maps referred to in the bill. 
It must be emphasized that not all of the lands depicted on these maps 
will end up in Sealaska's ownership. Sealaska cannot receive title to 
lands in excess of its remaining acreage entitlement under the 1971 
legislation and this legislation does not change that entitlement.
  Early in the 110th Congress, several of our friends in the other body 
introduced H.R. 3560 to address these issues. Later in September 2008 I 
introduced legislation similar to this bill to give all parties time to 
thoroughly review the measure. Over the past two years, Sealaska, and 
the communities of Southeast Alaska have worked collaboratively in good 
faith to identify issues that may arise from the transfer of lands on 
which those communities have relied for subsistence and recreation out 
of the Tongass National Forest and into native corporation ownership. 
My colleagues in the Alaska congressional delegation and I have devoted 
a great deal of time in reaching out and encouraging comment from 
Southeast Alaska on this new bill. Sealaska has itself conducted 
numerous public meetings on the bill throughout the region. I believe 
that these efforts have helped us to formulate a bill that addresses 
the concerns we most frequently heard.
  The legislation we are introducing today in the 111th Congress is 
different from the original bill in numerous respects. In some cases, 
the lands open to Sealaska selection have changed from those that were 
available in the first House bill to accommodate community concerns. 
For example, this bill, compared to last September's version, reduces 
the economic development timber land selection pool to about 78,000 
acres from 80,000 to protect additional boat anchorages by retention of 
shoreline timber in Shipley Bay on northern Prince of Wales Island and 
at Cape Pole on southwest Kosciusko Island. It eliminates the Lacy 
Cover Native Futures Site on northern Chichagof Island, it provides 
full public access across sacred sites and historic trail conveyances 
near Yakutat and Kake. It addresses the concern of the Huna Indian 
Association for management of sacred sites in Glacier Bay and it deals 
with a complaint about the original

[[Page S4683]]

bill by the U.S. Forest Service. Our conversations have led to 
precedent setting commitment by the Sealaska Corporation to maintain 
public access to the economic development lands it receives on Prince 
of Wales Island for subsistence uses and recreational access. These 
commitments are laid out in section 4(d) of this bill.
  Sealaska also has offered a series of commitments to ensure that the 
benefits of this legislation flow to the broader Southeast Alaska 
economy and not just to the Corporation and its native shareholders. 
These commitments are memorialized in a letter from Sealaska's 
chairman, Alaska State Senator Albert Kookesh, and its president and 
chief executive officer, Chris E. McNeil, Jr.
  We all hope that after 38 years that this measure can advance to 
passage this Congress and resolve the last 65,000 to 85,000 acres of 
entitlement that southeast Alaska's 23,000 Native shareholders have 
long had a right to receive. It is impossible to expect Alaska's native 
corporations to provide meaningful assistance to Alaska's native 
community if they continue to be denied the lands that Congress 
intended them to receive to utilize to provide economic benefits for 
the native people's of the State. I hope this measure can pass and 
become law before the 40th anniversary of the claims settlement act in 
2011. Justice delayed truly is justice denied.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no ojbection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 881

       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 ``Southeast Alaska Native Land 
     Entitlement Finalization Act''.

     SEC. 2. FINDINGS; PURPOSE.

       (a) Findings.--Congress finds that--
       (1)(A) in 1971, Congress enacted the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1601 et seq.) to recognize and 
     settle the aboriginal claims of Alaska Natives to land 
     historically used by Alaska Natives for traditional, 
     cultural, and spiritual purposes; and
       (B) that Act declared that the land settlement ``should be 
     accomplished rapidly, with certainty, in conformity with the 
     real economic and social needs of Natives'';
       (2) the Alaska Native Claims Settlement Act (43 U.S.C. 1601 
     et seq.)--
       (A) authorized the distribution of approximately 
     $1,000,000,000 and 44,000,000 acres of land to Alaska 
     Natives; and
       (B) provided for the establishment of Native Corporations 
     to receive and manage the funds and that land to meet the 
     cultural, social, and economic needs of Native shareholders;
       (3) under section 12 of the Alaska Native Claims Settlement 
     Act (43 U.S.C. 1611), each Regional Corporation, other than 
     Sealaska Corporation (the Regional Corporation for southeast 
     Alaska) (referred to in this Act as ``Sealaska''), was 
     authorized to receive a share of land based on the proportion 
     that the number of Alaska Native shareholders residing in the 
     region of the Regional Corporation bore to the total number 
     of Alaska Native shareholders, or the relative size of the 
     area to which the Regional Corporation had an aboriginal land 
     claim bore to the size of the area to which all Regional 
     Corporations had aboriginal land claims;
       (4)(A) Sealaska, the Regional Corporation for southeast 
     Alaska, 1 of the Regional Corporations with the largest 
     number of Alaska Native shareholders, with more than 21 
     percent of all original Alaska Native shareholders, did not 
     receive land under section 12 of the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1611);
       (B) the Tlingit and Haida Indian Tribes of Alaska was 1 of 
     the entities representing the Alaska Natives of southeast 
     Alaska before the date of enactment of the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1601 et seq.); and
       (C) Sealaska did not receive land in proportion to the 
     number of Alaska Native shareholders, or in proportion to the 
     size of the area to which Sealaska had an aboriginal land 
     claim, in part because of a United States Court of Claims 
     cash settlement to the Tlingit and Haida Indian Tribes of 
     Alaska in 1968 for land previously taken to create the 
     Tongass National Forest and Glacier Bay National Monument;
       (5) the Court of Claims cash settlement of $7,500,000 did 
     not--
       (A) adequately compensate the Alaska Natives of southeast 
     Alaska for the significant quantity of land and resources 
     lost as a result of the creation of the Tongass National 
     Forest and Glacier Bay National Monument or other losses of 
     land and resources; or
       (B) justify the significant disparate treatment of Sealaska 
     under the Alaska Native Claims Settlement Act (43 U.S.C. 
     1611);
       (6)(A) while each other Regional Corporation received a 
     significant quantity of land under sections 12 and 14 of the 
     Alaska Native Claims Settlement Act (43 U.S.C. 1611, 1613), 
     Sealaska only received land under section 14(h) of that Act 
     (43 U.S.C. 1613(h)), which provided a 2,000,000-acre land 
     pool from which Alaska Native selections could be made for 
     historic sites, cemetery sites, Urban Corporation land, 
     Native group land, and Native Allotments;
       (B) under section 14(h)(8) of that Act (43 U.S.C. 
     1613(h)(8)), after selections are made under paragraphs (1) 
     through (7) of that section, the land remaining in the 
     2,000,000-acre land pool is allocated based on the proportion 
     that the original Alaska Native shareholder population of a 
     Regional Corporation bore to the original Alaska Native 
     shareholder population of all Regional Corporations; and
       (C) the only land entitlement of Sealaska derives from a 
     proportion of leftover land remaining from the 2,000,000-acre 
     land pool, estimated as of the date of enactment of this Act 
     at approximately 1,700,000 acres;
       (7) despite the small land base of Sealaska as compared to 
     other Regional Corporations (less than 1 percent of the total 
     quantity of land allocated pursuant to the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1601 et seq.)), Sealaska 
     has--
       (A) provided considerable benefits to shareholders; and
       (B) been a significant economic force in southeast Alaska;
       (8) pursuant to the revenue sharing provisions of section 
     7(i) of the Alaska Native Claims Settlement Act (43 U.S.C. 
     1606(i)), Sealaska has distributed more than $300,000,000 
     during the period beginning on January 1, 1971, and ending on 
     December 31, 2005, to Native Corporations throughout the 
     State of Alaska from the development of natural resources, 
     which accounts for 42 percent of the total revenues shared 
     under that section during that period;
       (9) as a result of the small land entitlement of Sealaska, 
     it is critical that the remaining land entitlement 
     conveyances to Sealaska under the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1601 et seq.) are fulfilled to 
     continue to meet the economic, social, and cultural needs of 
     the Alaska Native shareholders of southeast Alaska and the 
     Alaska Native community throughout Alaska;
       (10)(A) the conveyance requirements of the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1601 et seq.) for southeast 
     Alaska limit the land eligible for conveyance to Sealaska to 
     the original withdrawal areas surrounding 10 Alaska Native 
     villages in southeast Alaska, which precludes Sealaska from 
     selecting land located--
       (i) in any withdrawal area established for the Urban 
     Corporations for Sitka and Juneau, Alaska; or
       (ii) outside the 10 Alaska Native village withdrawal areas; 
     and
       (B) unlike other Regional Corporations, Sealaska was not 
     authorized to request land located outside the withdrawal 
     areas described in subparagraph (A) if the withdrawal areas 
     were insufficient to complete the land entitlement of 
     Sealaska under the Alaska Native Claims Settlement Act (43 
     U.S.C. 1601 et seq.);
       (11) 44 percent (820,000 acres) of the 10 Alaska Native 
     village withdrawal areas established under the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1601 et seq.) described in 
     paragraph (10) are composed of salt water and not available 
     for selection;
       (12) of land subject to the selection rights of Sealaska, 
     110,000 acres are encumbered by gubernatorial consent 
     requirements under the Alaska Native Claims Settlement Act 
     (43 U.S.C. 1601 et seq.);
       (13) the Forest Service and the Bureau of Land Management 
     grossly underestimated the land entitlement of Sealaska under 
     the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
     seq.), resulting in an insufficient area from which Sealaska 
     could select land suitable for traditional, cultural, and 
     socioeconomic purposes to accomplish a settlement ``in 
     conformity with the real economic and social needs of 
     Natives'', as required under that Act;
       (14) the 10 Alaska Native village withdrawal areas in 
     southeast Alaska surround the Alaska Native communities of 
     Yakutat, Hoonah, Angoon, Kake, Kasaan, Klawock, Craig, 
     Hydaburg, Klukwan, and Saxman;
       (15) in each withdrawal area, there exist factors that 
     limit the ability of Sealaska to select sufficient land, and, 
     in particular, economically viable land, to fulfill the land 
     entitlement of Sealaska, including factors such as--
       (A) with respect to the Yakutat withdrawal area--
       (i) 46 percent of the area is salt water;
       (ii) 10 sections (6,400 acres) around the Situk Lake were 
     restricted from selection, with no consideration provided for 
     the restriction; and
       (iii)(I) 70,000 acres are subject to a gubernatorial 
     consent requirement before selection; and
       (II) Sealaska received no consideration with respect to the 
     consent restriction;
       (B) with respect to the Hoonah withdrawal area, 51 percent 
     of the area is salt water;
       (C) with respect to the Angoon withdrawal area--
       (i) 120,000 acres of the area is salt water;
       (ii) Sealaska received no consideration regarding the 
     prohibition on selecting land from the 80,000 acres located 
     within the Admiralty Island National Monument; and

[[Page S4684]]

       (iii)(I) the Village Corporation for Angoon was allowed to 
     select land located outside the withdrawal area on Prince of 
     Wales Island, subject to the condition that the Village 
     Corporation shall not select land located on Admiralty 
     Island; but
       (II) no alternative land adjacent to the out-of-withdrawal 
     land of the Village Corporation was made available for 
     selection by Sealaska;
       (D) with respect to the Kake withdrawal area--
       (i) 64 percent of the area is salt water; and
       (ii) extensive timber harvesting by the Forest Service 
     occurred in the area before 1971 that significantly reduced 
     the value of land available for selection by, and conveyance 
     to, Sealaska;
       (E) with respect to the Kasaan withdrawal area--
       (i) 54 percent of the area is salt water; and
       (ii) the Forest Service previously harvested in the area;
       (F) with respect to the Klawock withdrawal area--
       (i) the area consists of only 5 townships, as compared to 
     the usual withdrawal area of 9 townships, because of the 
     proximity of the Klawock withdrawal area to the Village of 
     Craig, which reduces the selection area by 92,160 acres; and
       (ii) the Klawock and Craig withdrawal areas are 35 percent 
     salt water;
       (G) with respect to the Craig withdrawal area, the 
     withdrawal area consists of only 6 townships, as compared to 
     the usual withdrawal area of 9 townships, because of the 
     proximity of the Craig withdrawal area to the Village of 
     Klawock, which reduces the selection area by 69,120 acres;
       (H) with respect to the Hydaburg withdrawal area--
       (i) 36 percent of the area is salt water; and
       (ii) Sealaska received no consideration under the Haida 
     Land Exchange Act of 1986 (Public Law No. 99-664; 100 Stat. 
     4303) for relinquishing selection rights to land within the 
     withdrawal area that the Haida Corporation exchanged to the 
     Forest Service;
       (I) with respect to the Klukwan withdrawal area--
       (i) 27 percent of the area is salt water; and
       (ii) the withdrawal area is only 70,000 acres, as compared 
     to the usual withdrawal area of 207,360 acres, which reduces 
     the selection area by 137,360 acres; and
       (J) with respect to the Saxman withdrawal area--
       (i) 29 percent of the area is salt water;
       (ii) Sealaska received no consideration for the 50,576 
     acres within the withdrawal area adjacent to the first-class 
     city of Ketchikan that were excluded from selection;
       (iii) Sealaska received no consideration with respect to 
     the 1977 amendment to the Alaska Native Claims Settlement Act 
     (43 U.S.C. 1601 et seq.) requiring gubernatorial consent for 
     selection of 58,000 acres in that area; and
       (iv) 23,888 acres are located within the Annette Island 
     Indian Reservation for the Metlakatla Indian Tribe and are 
     not available for selection;
       (16) the selection limitations and guidelines applicable to 
     Sealaska under the Alaska Native Claims Settlement Act (43 
     U.S.C. 1601 et seq.)--
       (A) are inequitable and inconsistent with the purposes of 
     that Act because there is insufficient land remaining in the 
     withdrawal areas to meet the traditional, cultural, and 
     socioeconomic needs of the shareholders of Sealaska; and
       (B) make it difficult for Sealaska to select--
       (i) places of sacred, cultural, traditional, and historical 
     significance; and
       (ii) Alaska Native futures sites located outside the 
     withdrawal areas of Sealaska;
       (17)(A) the deadline for applications for selection of 
     cemetery sites and historic places on land outside withdrawal 
     areas established under section 14 of the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1613) was July 1, 1976;
       (B)(i) as of that date, the Bureau of Land Management 
     notified Sealaska that the total entitlement of Sealaska 
     would be approximately 200,000 acres; and
       (ii) Sealaska made entitlement allocation decisions for 
     cultural sites and economic development sites based on that 
     original estimate;
       (C) as a result of the Alaska Land Transfer Acceleration 
     Act (Public Law 108-452; 118 Stat. 3575) and subsequent 
     related determinations and actions of the Bureau of Land 
     Management, Sealaska will receive significantly more than 
     200,000 acres pursuant to the Alaska Native Claims Settlement 
     Act (43 U.S.C. 1601 et seq.);
       (D) Sealaska would prefer to allocate more of the 
     entitlement of Sealaska to the acquisition of places of 
     sacred, cultural, traditional, and historical significance; 
     and
       (E)(i) pursuant to section 11(a)(1) of the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1610(a)(1)), Sealaska was 
     not authorized to select under section 14(h)(1) of that Act 
     (43 U.S.C. 1613(h)(1)) any site within Glacier Bay National 
     Park, despite the abundance of cultural sites within that 
     Park;
       (ii) Sealaska seeks cooperative agreements to ensure that 
     sites within Glacier Bay National Park are subject to 
     cooperative management by Sealaska, Village and Urban 
     Corporations, and federally recognized tribes with ties to 
     the cultural sites and history of the Park; and
       (iii) Congress--
       (I) recognizes the existence of a memorandum of 
     understanding between the National Park Service and the 
     Hoonah Indian Association;
       (II) does not intend to circumvent that memorandum of 
     understanding; and
       (III) intends to ensure that the memorandum of 
     understanding and similar mechanisms for cooperative 
     management in Glacier Bay are required by law;
       (18)(A) the cemetery sites and historic places conveyed to 
     Sealaska pursuant to section 14(h)(1) of the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1613(h)(1)) are subject to a 
     restrictive covenant not required by law that does not allow 
     any type of management or use that would in any way alter the 
     historic nature of a site, even for cultural education or 
     research purposes;
       (B) historic sites managed by the Forest Service are not 
     subject to the limitations referred to in subparagraph (A); 
     and
       (C) those limitations hinder the ability of Sealaska to use 
     the sites for cultural, educational, or research purposes for 
     Alaska Natives and others;
       (19) unless Sealaska is allowed to select land outside 
     designated withdrawal areas in southeast Alaska, Sealaska 
     will not be able--
       (A) to complete the land entitlement selections of Sealaska 
     under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 
     et seq.);
       (B) to secure ownership of places of sacred, cultural, 
     traditional, and historical importance to the Alaska Natives 
     of southeast Alaska;
       (C) to maintain the existing resource development and 
     management operations of Sealaska; or
       (D) to provide continued economic opportunities for Alaska 
     Natives in southeast Alaska;
       (20) in order to realize cultural preservation goals while 
     also diversifying economic opportunities, Sealaska should be 
     authorized to select and receive conveyance of--
       (A) sacred, cultural, traditional, and historic sites and 
     other places of traditional cultural significance, including 
     traditional and customary trade and migration routes, to 
     facilitate the perpetuation and preservation of Alaska Native 
     culture and history; and
       (B) Alaska Native future sites to facilitate appropriate 
     tourism and outdoor recreation enterprises;
       (21) Sealaska has played, and is expected to continue to 
     play, a significant role in the health of the southeast 
     Alaska economy;
       (22)(A) the rate of unemployment in southeast Alaska 
     exceeds the statewide rate of unemployment on a non-
     seasonally adjusted basis; and
       (B) in January 2008, the Alaska Department of Labor and 
     Workforce Development reported the unemployment rate for the 
     Prince of Wales-Outer Ketchikan census area at 20 percent;
       (23) many southeast Alaska communities--
       (A) are dependent on high-cost diesel fuel for the 
     generation of energy; and
       (B) desire to diversify their energy supplies with wood 
     biomass alternative fuel and other renewable and alternative 
     fuel sources;
       (24) if the resource development operations of Sealaska 
     cease on land appropriate for those operations, there will be 
     a significant negative impact on--
       (A) southeast Alaska Native shareholders;
       (B) the cultural preservation activities of Sealaska;
       (C) the economy of southeast Alaska; and
       (D) the Alaska Native community that benefits from the 
     revenue-sharing requirements under the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1601 et seq.); and
       (25) on completion of the conveyances of land to Sealaska 
     to fulfill the full land entitlement of Sealaska under the 
     Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), 
     the encumbrances on 327,000 acres of Federal land created by 
     the withdrawal of land for selection by Native Corporations 
     in southeast Alaska would be removed, which will facilitate 
     thorough and complete planning and efficient management 
     relating to national forest land in southeast Alaska by the 
     Forest Service.
       (b) Purpose.--The purpose of this Act is to address the 
     inequitable treatment of Sealaska by allowing Sealaska to 
     select the remaining land entitlement of Sealaska under 
     section 14 of the Alaska Native Claims Settlement Act (43 
     U.S.C. 1613) from designated Federal land in southeast Alaska 
     located outside the 10 southeast Alaska Native village 
     withdrawal areas.

     SEC. 3. SELECTIONS IN SOUTHEAST ALASKA.

       (a) Selection by Sealaska.--
       (1) In general.--Notwithstanding section 14(h)(8)(B) of the 
     Alaska Native Claims Settlement Act (43 U.S.C. 
     1613(h)(8)(B)), Sealaska is authorized to select and receive 
     conveyance of the remaining land entitlement of Sealaska 
     under that Act (43 U.S.C. 1601 et seq.) from Federal land 
     located in southeast Alaska from each category described in 
     subsection (b).
       (2) National park service.--The National Park Service is 
     authorized to enter into a cooperative management agreement 
     described in subsection (c)(2) for the purpose, in part, of 
     recognizing and perpetuating the values of the National Park 
     Service, including those values associated with the Tlingit 
     homeland and culture, wilderness, and ecological 
     preservation.
       (b) Categories.--The categories referred to in subsection 
     (a) are the following:

[[Page S4685]]

       (1)(A) Economic development land from the area of land 
     identified on the map entitled ``Sealaska ANCSA Land 
     Entitlement Rationalization Pool'', dated March 9, 2009, and 
     labeled ``Attachment A''.
       (B) A nonexclusive easement to Sealaska to allow--
       (i) access on the forest development road and use of the 
     log transfer site identified in paragraphs (3)(c) and (3)(d) 
     of the patent numbered 50-85-0112 and dated January 4, 1985;
       (ii) access on the forest development road identified in 
     paragraphs (2)(a) and (2)(b) of the patent numbered 50-92-
     0203 and dated February 24, 1992; and
       (iii) access on the forest development road identified in 
     paragraph (2)(a) of the patent numbered 50-94-0046 and dated 
     December 17, 1993.
       (2) Sites with sacred, cultural, traditional, or historic 
     significance, including traditional and customary trade and 
     migration routes, archeological sites, cultural landscapes, 
     and natural features having cultural significance, subject to 
     the condition that--
       (A) not more than 2,400 acres shall be selected for this 
     purpose, from land identified on--
       (i) the map entitled ``Places of Sacred, Cultural, 
     Traditional and Historic Significance'', dated March 9, 2009, 
     and labeled ``Attachment B''; and
       (ii) the map entitled ``Traditional and Customary Trade and 
     Migration Routes'', dated March 9, 2009, and labeled 
     ``Attachment C'', which includes an identification of--

       (I) a conveyance of land 25 feet in width, together with 1-
     acre sites at each terminus and at 8 locations along the 
     route, with the route, location, and boundaries of the 
     conveyance described on the map inset entitled ``Yakutat to 
     Dry Bay Trade and Migration Route'', dated March 9, 2009, and 
     labeled ``Attachment C'';
       (II) a conveyance of land 25 feet in width, together with 
     1-acre sites at each terminus, with the route, location, and 
     boundaries of the conveyance described on the map inset 
     entitled ``Bay of Pillars to Port Camden Trade and Migration 
     Route'', dated March 9, 2009, and labeled ``Attachment C''; 
     and
       (III) a conveyance of land 25 feet in width, together with 
     1-acre sites at each terminus, with the route, location, and 
     boundaries of the conveyance described on the map inset 
     entitled ``Portage Bay to Duncan Canal Trade and Migration 
     Route,'' dated March 9, 2009, and labeled ``Attachment C''; 
     and

       (B) an additional 1,200 acres may be used by Sealaska to 
     acquire places of sacred, cultural, traditional, and historic 
     significance, archeological sites, traditional, and customary 
     trade and migration routes, and other sites with scientific 
     value that advance the understanding and protection of Alaska 
     Native culture and heritage that--
       (i) as of the date of enactment of this Act, are not fully 
     identified or adequately documented for cultural 
     significance; and
       (ii) are located outside of a unit of the National Park 
     System.
       (3) Alaska Native futures sites with traditional and 
     recreational use value, as identified on the map entitled 
     ``Native Futures Sites'', dated March 9, 2009, and labeled 
     ``Attachment D'', subject to the condition that not more than 
     5,000 acres shall be selected for those purposes.
       (c) Sites in conservation System Units.--
       (1) In general.--No site with sacred, cultural, 
     traditional, or historic significance that is identified in 
     the document labeled ``Attachment B'' and located within a 
     unit of the National Park System shall be conveyed to 
     Sealaska pursuant to this Act.
       (2) Cooperative agreements.--
       (A) In general.--The Director of the National Park Service 
     shall offer to enter into a cooperative management agreement 
     with Sealaska, other Village Corporations and Urban 
     Corporations, and federally recognized Indian tribes with 
     cultural and historical ties to Glacier Bay National Park, in 
     accordance with the requirements of subparagraph (B).
       (B) Requirements.--A cooperative agreement under this 
     paragraph shall--
       (i) recognize the contributions of the Alaska Natives of 
     southeast Alaska to the history, culture, and ecology of 
     Glacier Bay National Park and the surrounding area;
       (ii) ensure that the resources within the Park are 
     protected and enhanced by cooperative activities and 
     partnerships among federally recognized Indian tribes, 
     Village Corporations and Urban Corporations, Sealaska, and 
     the National Park Service;
       (iii) provide opportunities for a richer visitor experience 
     at the Park through direct interactions between visitors and 
     Alaska Natives, including guided tours, interpretation, and 
     the establishment of culturally relevant visitor sites; and
       (iv) provide appropriate opportunities for ecologically 
     sustainable visitor-related education and cultural 
     interpretation within the Park--

       (I) in a manner that is not in derogation of the purposes 
     and values of the Park (including those values associated 
     with the Park as a Tlingit homeland); and
       (II) in a manner consistent with wilderness and ecological 
     preservation.

       (C) Report.--Not later than 2 years after the date of 
     enactment of this Act, the Director of the National Park 
     Service shall submit to Congress a report describing each 
     activity for cooperative management of each site described in 
     subparagraph (A) carried out under a cooperative agreement 
     under this paragraph.

     SEC. 4. CONVEYANCES TO SEALASKA.

       (a) Timeline for Conveyance.--
       (1) In general.--Not later than 1 year after the date of 
     selection of land by Sealaska under paragraphs (1) and (3) of 
     section 3(b), the Secretary of the Interior (referred to in 
     this Act as the ``Secretary'') shall complete the conveyance 
     of the land to Sealaska.
       (2) Significant sites.--Not later than 2 years after the 
     date of selection of land by Sealaska under section 3(b)(2), 
     the Secretary shall complete the conveyance of the land to 
     Sealaska.
       (b) Expiration of Withdrawals.--On completion of the 
     selection by Sealaska and the conveyances to Sealaska of land 
     under subsection (a) in a manner that is sufficient to 
     fulfill the land entitlement of Sealaska under the Alaska 
     Native Claims Settlement Act (43 U.S.C. 1601 et seq.)--
       (1) the original withdrawal areas set aside for selection 
     by Native Corporations in southeast Alaska under that Act (as 
     in effect on the day before the date of enactment of this 
     Act) shall be rescinded; and
       (2) land located within a withdrawal area that is not 
     conveyed to a southeast Alaska Regional Corporation or 
     Village Corporation shall be returned to the unencumbered 
     management of the Forest Service as a part of the Tongass 
     National Forest.
       (c) Limitation.--Sealaska shall not select or receive under 
     this Act any conveyance of land pursuant to paragraph (1) or 
     (3) of section 3(b) located within--
       (1) any conservation system unit;
       (2) any federally designated wilderness area; or
       (3) any land use designation I or II area.
       (d) Applicable Easements and Public Access.--
       (1) In general.--The conveyance to Sealaska of land 
     pursuant to paragraphs (1) and (2)(A)(ii) of section 3(b) 
     that is located outside a withdrawal area designated under 
     section 16(a) of the Alaska Native Claims Settlement Act (43 
     U.S.C. 1615(a)) shall be subject to--
       (A) a reservation for easements for public access on the 
     public roads depicted on the document labeled ``Attachment 
     E'' and dated March 9, 2009;
       (B) a reservation for easements along the temporary roads 
     designated by the Forest Service as of the date of enactment 
     of this Act for the public access trails depicted on the 
     document labeled ``Attachment E'' and dated March 9, 2009;
       (C) any valid preexisting right reserved pursuant to 
     section 14(g) or 17(b) of the Alaska Native Claims Settlement 
     Act (43 U.S.C. 1613(g), 1616(b)); and
       (D)(i) the right of noncommercial public access for 
     subsistence uses, consistent with title VIII of the Alaska 
     National Interest Lands Conservation Act (16 U.S.C. 3111 et 
     seq.), and recreational access without liability to Sealaska; 
     and
       (ii) the right of Sealaska to regulate access for public 
     safety, cultural, or scientific purposes, environmental 
     protection, and uses incompatible with natural resource 
     development, subject to the condition that Sealaska shall 
     post on any applicable property, in accordance with State 
     law, notices of any such condition.
       (2) Effect.--No right of access provided to any individual 
     or entity (other than Sealaska) by this subsection--
       (A) creates any interest of such an individual or entity in 
     the land conveyed to Sealaska in excess of that right of 
     access; or
       (B) provides standing in any review of, or challenge to, 
     any determination by Sealaska regarding the management or 
     development of the applicable land.
       (e) Conditions on Sacred, Cultural, and Historic Sites.--
     The conveyance to Sealaska of land selected pursuant to 
     section 3(b)(2)--
       (1) shall be subject to a covenant prohibiting any 
     commercial timber harvest or mineral development on the land;
       (2) shall not be subject to any additional restrictive 
     covenant based on cultural or historic values, or any other 
     restriction, encumbrance, or easement, except as provided in 
     sections 14(g) and 17(b) of the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1613(g), 1616(b)); and
       (3) shall allow use of the land as described in subsection 
     (f).
       (f) Uses of Sacred, Cultural, Traditional, and Historic 
     Sites.--Any sacred, cultural, traditional, or historic site 
     or trade or migration route conveyed pursuant to this Act may 
     be used for--
       (1) preservation of cultural knowledge and traditions 
     associated with such a site;
       (2) historical, cultural, and scientific research and 
     education;
       (3) public interpretation and education regarding the 
     cultural significance of those sites to Alaska Natives;
       (4) protection and management of the site to preserve the 
     natural and cultural features of the site, including cultural 
     traditions, values, songs, stories, names, crests, and clan 
     usage, for the benefit of future generations; and
       (5) site improvement activities for any purpose described 
     in paragraphs (1) through (4), subject to the condition that 
     the activities are consistent with the sacred, cultural, 
     traditional, or historic nature of the site.
       (g) Termination of Restrictive Covenants.--
       (1) In general.--Each restrictive covenant regarding 
     cultural or historical values with respect to any interim 
     conveyance or patent for a historic or cemetery site issued 
     to

[[Page S4686]]

     Sealaska pursuant to the regulations contained in sections 
     2653.3 and 2653.11 of title 43, Code of Federal Regulations 
     (as in effect on the date of enactment of this Act), in 
     accordance with section 14(h)(1) of the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1613(h)), terminates on the date of 
     enactment of this Act.
       (2) Remaining conditions.--Land subject to a covenant 
     described in paragraph (1) on the day before the date of 
     enactment of this Act shall be subject to the conditions 
     described in subsection (e).
       (3) Records.--Sealaska shall be responsible for recording 
     with the land title recorders office of the State of Alaska 
     any modification to an existing conveyance of land under 
     section 14(h)(1) of the Alaska Native Claims Settlement Act 
     (43 U.S.C. 1613(h)(1)) as a result of this Act.
       (h) Conditions on Alaska Native Futures Land.--Each 
     conveyance of land to Sealaska selected under section 3(b)(3) 
     shall be subject only to--
       (1) a covenant prohibiting any commercial timber harvest or 
     mineral development; and
       (2) the restrictive covenants, encumbrances, or easements 
     under sections 14(g) and 17(b) of the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1613(g), 1616(b)).

     SEC. 5. MISCELLANEOUS.

       (a) Status of Conveyed Land.--Each conveyance of Federal 
     land to Sealaska pursuant to this Act, and each action 
     carried out to achieve the purpose of this Act, shall be 
     considered to be conveyed or acted on, as applicable, 
     pursuant to the Alaska Native Claims Settlement Act (43 
     U.S.C. 1601 et seq.).
       (b) Environmental Mitigation and Incentives.--
     Notwithstanding subsection (e) and (h) of section 4, all land 
     conveyed to Sealaska pursuant to the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1601 et seq.) and this Act shall be 
     considered to be qualified to receive or participate in, as 
     applicable--
       (1) any federally authorized carbon sequestration program, 
     ecological services program, or environmental mitigation 
     credit; and
       (2) any other federally authorized environmental incentive 
     credit or program.
       (c) No Material Effect on Forest Plan.--
       (1) In general.--The implementation of this Act, including 
     the conveyance of land to Sealaska, alone or in combination 
     with any other factor, shall not require an amendment of, or 
     revision to, the Tongass National Forest Land and Resources 
     Management Plan before the first revision of that Plan 
     scheduled to occur after the date of enactment of this Act.
       (2) Boundary adjustments.--The Secretary of Agriculture 
     shall implement any land ownership boundary adjustments to 
     the Tongass National Forest Land and Resources Management 
     Plan resulting from the implementation of this Act through a 
     technical amendment to that Plan.
       (d) No Effect on Existing Instruments, Projects, or 
     Activities.--
       (1) In general.--Nothing in this Act or the implementation 
     of this Act revokes, suspends, or modifies any permit, 
     contract, or other legal instrument for the occupancy or use 
     of Tongass National Forest land, or any determination 
     relating to a project or activity that authorizes that 
     occupancy or use, that is in effect on the day before the 
     date of enactment of this Act.
       (2) Treatment.--The conveyance of land to Sealaska pursuant 
     to this Act shall be subject to the instruments and 
     determinations described in paragraph (1) to the extent that 
     those instruments and determinations authorize occupancy or 
     use of the land so conveyed.
       (e) Technical Corrections.--
       (1) Tribal forest protection.--Section 2(a)(2) of the 
     Tribal Forest Protection Act of 2004 (25 U.S.C. 3115a(a)(2)) 
     is amended--
       (A) in subparagraph (A), by inserting ``, or is conveyed to 
     an Alaska Native Corporation pursuant to the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1601 et seq.)'' before the 
     semicolon; and
       (B) in subparagraph (B)(i)--
       (i) in subclause (I), by striking ``or'' at the end; and
       (ii) by adding at the end the following:

       ``(III) is owned by an Alaska Native Corporation 
     established pursuant to the Alaska Native Claims Settlement 
     Act (43 U.S.C. 1601 et seq.) and is forest land or formerly 
     had a forest cover or vegetative cover that is capable of 
     restoration; or''.

       (2) National historic preservation.--Section 301 of the 
     National Historic Preservation Act (16 U.S.C. 470w) is 
     amended by striking paragraph (14) and inserting the 
     following:
       ``(14)(A) `Tribal lands' means--
       ``(i) all land within the exterior boundaries of any Indian 
     reservation;
       ``(ii) all dependent Indian communities; and
       ``(iii) land held by an incorporated Alaska Native group, a 
     Regional Corporation, or a Village Corporation pursuant to 
     the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
     seq.).
       ``(B) Nothing in this paragraph validates, invalidates, or 
     otherwise affects any claim regarding the existence of Indian 
     country (as defined in section 1151 of title 18, United 
     States Code) in the State of Alaska.''.

     SEC. 6. MAPS.

       (a) Availability.--Each map referred to in this Act shall 
     be maintained on file in--
       (1) the office of the Chief of the Forest Service; and
       (2) the office of the Secretary.
       (b) Corrections.--The Secretary or the Chief of the Forest 
     Service may make any necessary correction to a clerical or 
     typographical error in a map referred to in this Act.
       (c) Treatment.--No map referred to in this Act shall be 
     considered to be an attempt by the Federal Government to 
     convey any State or private land.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as are 
     necessary to carry out this Act and the amendments made by 
     this Act.
                                 ______
                                 
      By Mr. REID (for Mr. Kennedy (for himself and Mr. Grassley):
  S. 882. A bill to amend the Federal Food, Drug, and Cosmetic Act to 
ensure the safety and quality of medical products and enhance the 
authorities of the Food and Drug Administration, and for other 
purposes; to the Committee on Health, Education, Labor and Pensions.
  Mr. GRASSLEY. Mr. President, over the last 5 years I have conducted 
extensive oversight of the Food and Drug Administration. As a result of 
my oversight activities, I identified serious problems at the FDA that 
included: the quashing of scientific opinion within the agency; delays 
in informing the public of emerging safety problems; too cozy a 
relationship between the FDA and the industries it is supposed to 
regulate; and a failure to be adequately transparent and accountable to 
the public.
  The FDA will require strong leadership to rebuild public confidence 
and tackle the cultural and organizational problems that have plagued 
the agency.
  Strong leadership alone, however, will not fix all the problems.
  The agency needs additional tools, resources, and authorities to 
fulfill its mission of protecting the health and safety of the American 
people.
  In September 2007, the Congress passed the Food and Drug 
Administration Amendments Act to provide FDA some of the needed tools, 
resources, and authorities.
  This legislation was a positive step forward in strengthening the 
agency and restoring the public's trust in the FDA, but Congress's work 
is not done.
  Today, I am here to talk about another FDA bill.
  In the summer of 2007, I started examining FDA's program for 
inspections of foreign pharmaceutical manufacturing plants.
  I expressed concerns to the FDA regarding, among other things, 
inspection funding, emerging exporters, and severe weaknesses in the 
inspection process.
  An increasing amount of the drugs and active pharmaceutical 
ingredients Americans use are being manufactured in foreign countries, 
primarily in China and India.
  Yet as reported by the Government Accountability Office in November 
2007, the Food and Drug Administration does not know how many foreign 
establishments are subject to inspection and the agency conducts 
relatively few foreign inspections each year.
  According to the FDA, from fiscal year 2002 through fiscal year 2007, 
the agency conducted fewer than 1,400 inspections of foreign 
pharmaceutical facilities.
  And these inspections were often conducted in countries with few 
reported quality concerns.
  In China, the world's largest producer of active pharmaceutical 
ingredients, and where we have seen increasing reports of contaminated 
products, only 11 inspections were conducted during fiscal year 2007--
that is way too few.
  During the same year, FDA conducted 14 inspections in Switzerland, 18 
in Germany, and 24 in France--all countries with advanced regulatory 
infrastructures.
  In addition, FDA officials estimated that the agency inspected 
foreign class II device makers every 27 years and foreign class III 
device makers every 6 years.
  Class III devices are devices that support or sustain human life or 
present a potentially unreasonable risk of illness or injury, such as 
pacemakers and heart defibrillators.
  In January 2008, we saw too well what happens when we have a broken 
inspection system.
  Baxter International Inc. temporarily suspended production of its

[[Page S4687]]

blood thinner Heparin because of an increase in reports of adverse 
events that may be associated with its drug. Then recalls were 
announced. There were serious concerns about whether or not this 
country would have enough Heparin to meet patient needs as a result of 
the contamination. After several months, FDA's investigation found that 
the active ingredient in Heparin, which was made at a facility in 
China, was contaminated. And the serious adverse events in patients who 
received Heparin were linked to the contaminated blood thinner.
  The recalls and investigation of contaminated Heparin highlighted 
significant weaknesses in FDA's oversight of the production and supply 
chain and emphasized the need to improve FDA's protection of the safety 
of products made in this country and abroad.
  The FDA is charged with ensuring the safety and efficacy of drugs, 
pharmaceutical ingredients, and devices produced around the world 
despite its inadequate budget for inspections, in particular foreign 
inspections.
  It is troubling that the FDA is grossly under-resourced at a time 
when foreign production of drugs and active pharmaceutical ingredients 
is growing at record rates.
  Last Congress, I introduced the Drug and Device Accountability Act of 
2008 with Senator Kennedy, chairman of the Committee on Health, 
Education, Labor, and Pensions. The Congress did not have an 
opportunity to act on that legislation. So today Senator Kennedy and I 
are introducing the Drug and Device Accountability Act of 2009.
  Senator Kennedy is not able to join me on the Senate floor, but I 
thank him for his cooperation and work with my office on this important 
legislation.
  I also want to take this opportunity to express my appreciation for 
his commitment and efforts over the years to reform and improve the 
FDA.
  I am going to spend the next few minutes highlighting some of the 
things the Drug and Device Accountability Act of 2009 would do.
  This bill would augment FDA's resources through the collection of 
inspection fees.
  It also expands the agency's authority for ensuring the safety of 
drugs and medical devices, including foreign manufactured drugs and 
devices by expanding FDA's authority to inspect foreign manufacturers 
and importers; allowing the FDA to issue subpoenas; and allowing the 
FDA to detain a device or drug when its inspectors have reason to 
believe the product is adulterated or misbranded.
  In addition, the bill would require individuals responsible for 
submitting a drug or device application or a report related to safety 
or efficacy to certify that the application or report complies with 
applicable regulations and is not false or misleading. Civil as well as 
criminal penalties could be imposed for false or misleading 
certifications.
  I believe this is an important provision given the troubling findings 
over the last few years; that is, that some companies have withheld 
important safety information from the FDA or buried that information in 
their submissions to the agency.
  In addition, in light of recent serious allegations that have been 
raised by scientists within the FDA regarding the agency's handling of 
medical device reviews, the bill calls for an Institute of Medicine 
study to examine FDA's system for clearing and approving devices for 
marketing.
  During President Obama's weekly address last month, the President 
stated, ``There are certain things only a government can do. And one of 
those things is ensuring that the foods we eat, and the medicines we 
take, are safe and do not cause us harm.''
  I concur, and the Drug and Device Accountability Act is an 
opportunity for Congress to help FDA do a better job of ensuring that 
our increasingly foreign-produced drug and device supply is safe and 
effective.
  I look forward to working with my colleagues in the Senate and with 
the Obama administration to ensure that FDA has the necessary tools and 
resources to meet its oversight responsibilities.
                                 ______
                                 
      By Mr. KERRY (for himself and Mr. Graham):
  S. 883. A bill to require the Secretary of the Treasury to mint coins 
in recognition and celebration of the establishment of the Medal of 
Honor in 1861, America's highest award for valor in action against an 
enemy force which can be bestowed upon an individual serving in the 
Armed Services of the United States, to honor the American military men 
and women who have been recipients of the Medal of Honor, and to 
promote awareness of what the Medal of Honor represents and how 
ordinary Americans, through courage, sacrifice, selfless service and 
patriotism, can challenge fate and change the course of history; to the 
Committee on Banking, Housing, and Urban Affairs.
  Mr. KERRY. Mr. President, today along with Senator Graham, I am 
introducing the Medal of Honor Commemorative Coin Act of 2009 to assist 
the Congressional Medal of Honor Foundation in raising the funds it 
needs to promote the qualities which the Medal of Honor embodies--
courage, sacrifice, selfless service, and patriotism.
  The Medal of Honor was first authorized by Congress in 1861 and 
represents our Nation's highest award for valor in action against an 
enemy force. The medal symbolizes the value we, as a Nation, place on 
the power of one individual to make a difference in extraordinary 
circumstances through selfless actions of bravery. Although the Medal 
of Honor was created for the Civil War, Congress made it a permanent 
decoration in 1863. Since then, fewer than 3,500 Medals of Honor have 
been awarded to members of the U.S. Armed Forces--approximately half 
during the Civil War. Today, there are only 111 living recipients. 
These select few exemplify the values of our great nation through their 
incredible acts of bravery and commitment to our country.
  The Congressional Medal of Honor Foundation was formed in 1999. This 
501(c)(3) not-for-profit organization promotes heroism and selflessness 
among our Nation's youth by perpetuating the Medal of Honor's legacy 
through increased awareness, education, scholarships, behavior, and 
example. The commemorative coins will be legal tender, emblematic of 
the spirit of the Medal of Honor, giving the holder a physical reminder 
of the American tradition of selfless service and sacrifice. These 
coins will be minted for the year 2011, marking the 150th anniversary 
of the Medal of Honor's initial authorization by Congress.
  Today, in Iraq and Afghanistan, American soldiers not only serve 
their country selflessly but do so in an exemplary manner. In this time 
of war and sacrifice it is of utmost importance that we show the people 
fighting for their country how much we value their service.
  This is the medal won by Sergeant First Class Paul R. Smith. Under 
attack at the Baghdad International Airport, Sergeant Smith quickly 
organized the defense on the ground to engage a company-sized enemy 
force. He showed no concern for his own personal safety when he mounted 
a personnel carrier and manned a .50 caliber machine gun while under 
fire from the enemy and was mortally wounded in doing so. His valor 
lead to the defeat of the enemy and saved the lives of numerous injured 
members of his platoon.
  This is the medal won by Captain Humbert Roque Versace. During an 
intense attack by the Viet Cong in the Xuyen Providence Captain Versace 
was wounded while engaging the enemy. Although he fought against 
capture through injury and hostility he was taken prisoner. While 
incarcerated Captain Versace exemplified the Code of Conduct as a 
prisoner of war, attempted to escape three times and never gave in to 
the brutal interrogations all while maintaining command over his fellow 
American soldiers that were also imprisoned setting an extraordinary 
example.
  This is the medal won by Marine Corps Second Lieutenant Robert Dale 
Reem, who on the night of November 6, 1950, after leading three 
separate assaults on an enemy position in the vicinity of Chinhung-ni, 
Korea, threw himself on top of an enemy grenade that landed amidst his 
men.
  Since 1863 this country has been honoring its greatest heroes by 
decorating them with the Congressional Medal of Honor. This is an elite 
group of men and women who make us proud everyday of the U.S. Armed 
Forces and the protection they afford us. We should show our thanks in 
the best manner possible.

[[Page S4688]]

  I ask all my colleagues to support this legislation.
                                 ______
                                 
      By Mr. BINGAMAN (for himself and Mr. Grassley):
  S. 884. A bill to amend title 23, United States Code, to remove 
privatized highway miles as a factor in apportioning highway funding; 
to the Committee on Environment and Public Works.
  Mr. BINGAMAN. Mr. President, when our States and cities lease their 
tolled highways to private parties, American taxpayers almost always 
experience significant fee increases at the toll booth. But our 
taxpayers' contribution does not end there. Under current tax law, the 
Federal Treasury subsidizes private lessors through exceedingly 
generous depreciation and amortization deductions. Meanwhile, Federal 
funding continues to flow to the state government--as though the 
highway had never been privatized. Today, I rise to introduce two bills 
that would put an end to this fleecing of the American taxpayer. I am 
pleased that Senator Grassley, the Ranking Member of the Senate Finance 
Committee, is joining me in introducing both bills.
  I'd like to take a moment to set the stage, by explaining where we 
find ourselves. There is no denying the seriousness of our nation's 
surface transportation funding challenges. Among the solutions that 
have been offered are so-called Public-Private Partnerships, or PPPs. 
Under one PPP model, a state or local government leases existing 
highways to a private party, often on a very long-term basis. We have 
already seen two existing highways sold off to private companies. In 
2004, Chicago sold Macquarie of Australia concession rights to the 
Chicago Skyway for 99 years, in exchange for $1.8 billion. In 2006, 
Indiana sold concession rights to the Indiana Toll Road to a 
partnership between Cintra of Spain and Macquarie for 75 years, in 
exchange for $3.8 billion. Both deals have generated significant 
interest from the press and the financial community. Now, investors are 
approaching state and local governments across the country, seeking a 
piece of what is believed to be a very lucrative pie. For instance, 
last year Governor Ed Rendell proposed a $12.8 billion deal for a 75-
year sale of concession rights to the Pennsylvania Turnpike, which, if 
ratified, would represent the largest privatization of highway 
infrastructure in U.S. history.
  While I agree that States should have some latitude to determine how 
to operate their own highways, that doesn't mean that the Federal 
taxpayer should subsidize leasing these highways. But as we uncovered 
at a Finance Subcommittee on Energy, Natural Resources and 
Infrastructure hearing that I convened last year, the Federal 
government--and taxpayers in all states--now subsidizes these PPPs 
through exceedingly generous tax provisions. To take advantage of the 
Tax Code's 15-year cost recovery period for highway infrastructure, a 
private lessor must obtain constructive ownership of the road. 
Constructive ownership is generally attained by entering a lease that 
exceeds the 45-year period that the Bureau of Economic Affairs, BEA, 
says is a road's ``useful life.'' Once they attain this constructive 
ownership, the private lessor can recover most of its costs over the 
first 15 years of the lease--or one-third as long as BEA says the 
highway infrastructure can be expected to last. The end result? Private 
operators demand exceptionally long lease lengths, to ensure they can 
take advantage of the Tax Code's subsidy.
  These Tax Code provisions are of interest not just because the Senate 
must prudently shepherd our Nation's tax revenues, but also because 
there are considerable transportation policy dangers to these very 
long-term leases. Chicago signed a 99-year lease for the Skyway, a road 
that, at the time of the lease, had only a 47 operating history. 
Indiana signed a 75-year lease for its Toll Road, a highway that, at 
the time of the lease, had only a 49 history. With respect to a 
critical artery of transportation, how can a State or city possibly 
predict its future needs for a period that is twice that artery's 
operating history? It is impossible to envision how transportation will 
change in the next hundred years. As a point of reference, the Model T 
is 101 years old--can we even pretend to imagine what the next century 
will bring? These very long lease lengths are all the more troubling 
because these deals often contain non-compete clauses, which make it 
difficult for public transportation agencies to address safety and 
congestion problems on highways and adjacent streets.
  It is true that private lessors are merely following the letter of 
the law. But when cost-recovery rules subsidize forms of investment 
that contravene the public interest, Congress should change those 
rules. Indeed, public policy concerns have already led Congress to 
alter cost-recovery rules for other assets, such as luxury cars, sport 
utility vehicles, and sports franchises.
  Senator Grassley and I agree that to protect the American taxpayer, 
such an alteration is also necessary here. It's time for the tax tail 
to stop wagging the dog, by cutting off Federal tax subsidies to 
companies that privatize existing American highways. Our first bill, 
the Transportation Access for All Americans Act, would do just that. It 
would allow a private operator of an existing highway to depreciate 
costs associated with tangible highway infrastructure on a 45-year 
period, in line with Bureau of Economic Analysis estimates, and to 
amortize the intangible right to collect tolls on a schedule that is no 
shorter than the lease's actual length. By making these changes to the 
Tax Code, our bill eliminates the unjustifiable subsidy that the U.S. 
taxpayer is now asked to provide directly to the private operators.
  Our second bill, S. 885, the Transportation Equity for All Americans 
Act, deals with the highway funding that is provided for a privatized 
road. As I understand it, when a road is privatized, all responsibility 
for maintaining the road, collecting tolls, paying the investors' 
profit, and so forth are taken on by the private entity. It simply 
makes no sense that the road should continue to qualify for highway 
funding if the road is privately operated. Similarly, it makes no sense 
that the formulae that distribute the Federal highway funding should 
reflect any credit for privatized roads--it would be like the users 
paying twice, once at the toll booth and again in the taxes they 
already pay to use the Nation's highways.
  Under current law, all roads, including interstate highways, national 
highways, and other major state and local roads in the federal-aid 
system are included in the calculation of the federal highway funds. 
The lane-miles and vehicle-miles-traveled on all these roads are used 
directly to apportion the federal highway funds for the Interstate 
Maintenance Program, the National Highway Program, and the Surface 
Transportation Program. The calculation currently includes roads that 
are publicly or privately operated. Our second bill is very simple; it 
subtracts from these calculations the lane-miles and vehicle-miles-
traveled for any privatized highway, thus eliminating the double 
payments. The bill also corrects the Equity Bonus program to reflect 
properly the changes in the formula calculations.
  This year Congress must reauthorize the Federal surface 
transportation programs. I look forward to working with Finance 
Chairman Baucus and Senator Grassley and EPW Chairman Boxer and Senator 
Inhofe to complete a new transportation bill that meets the needs of my 
State and the Nation.
  Mr. President, I ask unanimous consent that the text of the bill and 
a bill summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 884

       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 ``Transportation Equity for 
     All Americans Act''.

     SEC. 2. REMOVAL OF PRIVATIZED HIGHWAY MILES.

       (a) In General.--Section 104(b) of title 23, United States 
     Code, is amended by adding at the end the following:
       ``(6) Privatized highway miles.--
       ``(A) Definition of privatized highway.--In this paragraph, 
     the term `privatized highway' means a highway subject to an 
     agreement giving a private entity--
       ``(i) control over the operation of the highway; and
       ``(ii) ownership over the toll revenues collected from the 
     operation of the highway.
       ``(B) Exclusion.--For the purposes of paragraphs (1), (3), 
     and (4), the lane miles and vehicle miles traveled on a 
     privatized highway

[[Page S4689]]

     that is otherwise an included highway shall be excluded from 
     consideration as factors in the formula for apportionment of 
     funds under this title.''.
       (b) Equity Bonus.--Section 105 of title 23, United States 
     Code, is amended by adding at the end the following:
       ``(g) Privatized Highways.--Calculations under this section 
     shall be made without taking into account the exclusion under 
     section 104(b)(6) of certain lane miles and vehicle miles 
     traveled from consideration as factors in the formula for 
     apportionment of funds pursuant to this title.''.
                                  ____


       Bill Summary--Transportation Access for All Americans Act

       The Internal Revenue Code generally characterizes a lease 
     of assets as an outright purchase of those assets if the 
     lessee has acquired all the benefits and burdens of ownership 
     for a term that significantly exceeds their expected 
     remaining useful life (as generally determined by the Bureau 
     of Economic Analysis). The Bureau of Economic Analysis 
     estimates the service life of highways and streets to be 45 
     years. For Federal income tax purposes, a lessor with such 
     constructive ownership is allowed to recover its costs 
     through depreciation and amortization deductions. 
     Notwithstanding BEA's 45-year estimate, the Tax Code 
     currently permits the value of the lease of tangible 
     infrastructure to be depreciated on a 15-year schedule, on a 
     150% declining-balance basis. The intangible franchise right 
     to collect tolls is currently recovered over a 15-year 
     period, regardless of the lease length. The Act would amend 
     Section 168(g)(2) of the Internal Revenue Code so that a 
     taxpayer that leases an existing highway on a sufficiently 
     longterm basis can depreciate the tangible infrastructure on 
     a 45-year schedule, on a straight-line basis. The Act would 
     also amend Section 197(f) of the Internal Revenue Code so 
     that the lessor of an existing highway can amortize the 
     intangible franchise right to collect tolls over the greater 
     of a 15-year period or the actual length of the lease.
                                  ____


       Bill Summary--Transportation Equity for All Americans Act

       The bill would amend sections 104(b) and 105 of title 23, 
     USC, pertaining to Federal-aid highways apportionment factors 
     and the equity bonus program. Section 104(b) provides the 
     manner in which the Secretary apportions the sums authorized 
     to be appropriated for expenditure on the Interstate and 
     National Highway System program, the Congestion Mitigation 
     and Air Quality Improvement program, the highway safety 
     improvement program, and the Surface Transportation program 
     for that fiscal year, among the several States. The amendment 
     to section 104(b) would remove lane miles and vehicle miles 
     traveled on a ``privatized highway'' from the formula factors 
     for the National Highway System, the Surface Transportation 
     program, and the Interstate Maintenance component.
       Section 105, the equity bonus program, provides that the 
     Secretary allocate among the States amounts sufficient to 
     ensure that no State receives a percentage of the total 
     apportionments for the fiscal year for specific programs that 
     is less than the calculated State percentage. The amendment 
     to section 105 would provide that, notwithstanding section 
     104(b)(6), lane miles and vehicle miles traveled on a 
     ``privatized highway'' are not excluded from the calculations 
     under this section.
                                 ______
                                 
      By Mr. BINGAMAN (for himself and Mr. Grassley):
  S. 885. A bill to amend the Internal Revenue Code of 1986 to provide 
special depreciation and amortization rules for highway and related 
property subject to long-term leases, and for other purposes; to the 
Committee of Finance.
  Mr. BINGAMAN. 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 
placed in the Record, as follows:

                                 S. 885

       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 ``Transportation Access for 
     All Americans Act''.

     SEC. 2. DEPRECIATION AND AMORTIZATION RULES FOR HIGHWAY AND 
                   RELATED PROPERTY SUBJECT TO LONG-TERM LEASES.

       (a) Accelerated Cost Recovery.--
       (1) In general.--Section 168(g)(1) of the Internal Revenue 
     Code of 1986 (relating to alternative depreciation system for 
     certain property) is amended by striking ``and'' at the end 
     of subparagraph (D), by redesignating subparagraph (E) as 
     subparagraph (F), and by inserting after subparagraph (D) the 
     following new subparagraph:
       ``(E) any applicable leased highway property,''.
       (2) Recovery period.--The table contained in subparagraph 
     (C) of section 168(g)(2) of such Code is amended by 
     redesignating clause (iv) as clause (v) and by inserting 
     after clause (iii) the following new clause:


``(iv) Applicable leased highway property.  45 years.''.
 

       (3) Applicable leased highway property defined.--
       (A) In general.--Section 168(g) of such Code is amended by 
     redesignating paragraph (7) as paragraph (8) and by inserting 
     after paragraph (6) the following new paragraph:
       ``(7) Applicable leased highway property.--For purposes of 
     paragraph (1)(E)--
       ``(A) In general.--The term `applicable leased highway 
     property' means property to which this section otherwise 
     applies which--
       ``(i) is subject to an applicable lease, and
       ``(ii) is placed in service before the date of such lease.
       ``(B) Applicable lease.--The term `applicable lease' means 
     a lease or other arrangement--
       ``(i) which is between the taxpayer and a State or 
     political subdivision thereof, or any agency or 
     instrumentality of either, and
       ``(ii) under which the taxpayer--

       ``(I) leases a highway and associated improvements,
       ``(II) receives a right-of-way on the public lands 
     underlying such highway and improvements, and
       ``(III) receives a grant of a franchise or other intangible 
     right permitting the taxpayer to receive funds relating to 
     the operation of such highway.''.

       (B) Conforming amendment.--Subparagraph (F) of section 
     168(g)(1) (as redesignated by subsection (a)(1)) is amended 
     by striking ``paragraph (7)'' and inserting ``paragraph 
     (8)''.
       (b) Amortization of Intangibles.--Section 197(f) of the 
     Internal Revenue Code of 1986 (relating to special rules for 
     amortization of intangibles) is amended by adding at the end 
     the following new paragraph:
       ``(11) Intangibles relating to applicable leased highway 
     property.--In the case of any section 197 intangible property 
     which is subject to an applicable lease (as defined in 
     section 168(g)(8)(B)), the amortization period under this 
     section shall not be less than the term of the applicable 
     lease. For purposes of the preceding sentence, rules similar 
     to the rules of section 168(i)(3)(A) shall apply in 
     determining the term of the applicable lease.''.
       (c) No Private Activity Bond Financing of Applicable 
     Leases.--Section 147(e) of the Internal Revenue Code of 1986 
     is amended by inserting ``, or to finance any applicable 
     lease (as defined in section 168(g)(8)(B))'' after 
     ``premises''.
       (d) Effective Date.--The amendments made by this section 
     shall apply to leases entered into after the date of the 
     enactment of this Act.
                                 ______
                                 
      By Mr. DURBIN (for himself and Mr. Grassley):
  S. 887. A bill to amend the Immigration and Nationality Act to reform 
and reduce fraud and abuse in certain visa programs for aliens working 
temporarily in the United States and for other purposes; to the 
Committee on the Judiciary.
  Mr. DURBIN. 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. 887

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       (a) Short Title.--This Act may be cited as the ``H-1B and 
     L-1 Visa Reform Act of 2009''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title.

             TITLE I--H-1B VISA FRAUD AND ABUSE PROTECTIONS

           Subtitle A--H-1B Employer Application Requirements

Sec. 101. Modification of application requirements.
Sec. 102. New application requirements.
Sec. 103. Application review requirements.

 Subtitle B--Investigation and Disposition of Complaints Against H-1B 
                               Employers

Sec. 111. General modification of procedures for investigation and 
              disposition.
Sec. 112. Investigation, working conditions, and penalties.
Sec. 113. Waiver requirements.
Sec. 114. Initiation of investigations.
Sec. 115. Information sharing.
Sec. 116. Conforming amendment.

                     Subtitle C--Other Protections

Sec. 121. Posting available positions through the Department of Labor.
Sec. 122. H-1B government authority and requirements.
Sec. 123. Requirements for information for H-1B and L-1 nonimmigrants.
Sec. 124. Additional Department of Labor employees.
Sec. 125. Technical correction.
Sec. 126. Application.

             TITLE II--L-1 VISA FRAUD AND ABUSE PROTECTIONS

Sec. 201. Prohibition on outplacement of L-1 nonimmigrants.
Sec. 202. L-1 employer petition requirements for employment at new 
              offices.
Sec. 203. Cooperation with Secretary of State.
Sec. 204. Investigation and disposition of complaints against L-1 
              employers.
Sec. 205. Wage rate and working conditions for L-1 nonimmigrant.

[[Page S4690]]

Sec. 206. Penalties.
Sec. 207. Prohibition on retaliation against L-1 nonimmigrants.
Sec. 208. Reports on L-1 nonimmigrants.
Sec. 209. Technical amendments.
Sec. 210. Application.
Sec. 211. Report on L-1 blanket petition process.

             TITLE I--H-1B VISA FRAUD AND ABUSE PROTECTIONS

           Subtitle A--H-1B Employer Application Requirements

     SEC. 101. MODIFICATION OF APPLICATION REQUIREMENTS.

       (a) General Application Requirements.--Subparagraph (A) of 
     section 212(n)(1) of the Immigration and Nationality Act (8 
     U.S.C. 1182(n)(1)) is amended to read as follows:
       ``(A) The employer--
       ``(i) is offering and will offer to H-1B nonimmigrants, 
     during the period of authorized employment for each H-1B 
     nonimmigrant, wages that are determined based on the best 
     information available at the time the application is filed 
     and which are not less than the highest of--
       ``(I) the locally determined prevailing wage level for the 
     occupational classification in the area of employment;
       ``(II) the median average wage for all workers in the 
     occupational classification in the area of employment; and
       ``(III) the median wage for skill level 2 in the 
     occupational classification found in the most recent 
     Occupational Employment Statistics survey; and
       ``(ii) will provide working conditions for such H-1B 
     nonimmigrant that will not adversely affect the working 
     conditions of other workers similarly employed.''.
       (b) Internet Posting Requirement.--Subparagraph (C) of such 
     section 212(n)(1) is amended--
       (1) by redesignating clause (ii) as subclause (II);
       (2) by striking ``(i) has provided'' and inserting the 
     following:
       ``(ii)(I) has provided''; and
       (3) by inserting before clause (ii), as redesignated by 
     paragraph (2) of this subsection, the following:
       ``(i) has posted on the Internet website described in 
     paragraph (3), for at least 30 calendar days, a detailed 
     description of each position for which a nonimmigrant is 
     sought that includes a description of--
       ``(I) the wages and other terms and conditions of 
     employment;
       ``(II) the minimum education, training, experience, and 
     other requirements for the position; and
       ``(III) the process for applying for the position; and''.
       (c) Wage Determination Information.--Subparagraph (D) of 
     such section 212(n)(1) is amended by inserting ``the wage 
     determination methodology used under subparagraph (A)(i),'' 
     after ``shall contain''.
       (d) Application of Requirements to All Employers.--
       (1) Nondisplacement.--Subparagraph (E) of such section 
     212(n)(1) is amended--
       (A) in clause (i)--
       (i) by striking ``90 days'' both places it appears and 
     inserting ``180 days''; and
       (ii) by striking ``(i) In the case of an application 
     described in clause (ii), the'' and inserting ``The''; and
       (B) by striking clause (ii).
       (2) Recruitment.--Subparagraph (G)(i) of such section 
     212(n)(1) is amended by striking ``In the case of an 
     application described in subparagraph (E)(ii), subject'' and 
     inserting ``Subject''.
       (e) Requirement for Waiver.--Subparagraph (F) of such 
     section 212(n)(1) is amended to read as follows:
       ``(F) The employer shall not place, outsource, lease, or 
     otherwise contract for the services or placement of H-1B 
     nonimmigrants with another employer unless the employer of 
     the alien has been granted a waiver under paragraph 
     (2)(E).''.

     SEC. 102. NEW APPLICATION REQUIREMENTS.

       Section 212(n)(1) of the Immigration and Nationality Act (8 
     U.S.C. 1182(n)(1)) is amended by inserting after clause (ii) 
     of subparagraph (G) the following:
       ``(H)(i) The employer has not advertised any available 
     position specified in the application in an advertisement 
     that states or indicates that--
       ``(I) such position is only available to an individual who 
     is or will be an H-1B nonimmigrant; or
       ``(II) an individual who is or will be an H-1B nonimmigrant 
     shall receive priority or a preference in the hiring process 
     for such position.
       ``(ii) The employer has not solely recruited individuals 
     who are or who will be H-1B nonimmigrants to fill such 
     position.
       ``(I) If the employer employs 50 or more employees in the 
     United States, the sum of the number of such employees who 
     are H-1B nonimmigrants plus the number of such employees who 
     are nonimmigrants described in section 101(a)(15)(L) may not 
     exceed 50 percent of the total number of employees.
       ``(J) If the employer, in such previous period as the 
     Secretary shall specify, employed 1 or more H-1B 
     nonimmigrants, the employer shall submit to the Secretary the 
     Internal Revenue Service Form W-2 Wage and Tax Statement 
     filed by the employer with respect to the H-1B nonimmigrants 
     for such period.''.

     SEC. 103. APPLICATION REVIEW REQUIREMENTS.

       (a) Technical Amendment.--Section 212(n)(1) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as 
     amended by section 102, is further amended in the 
     undesignated paragraph at the end, by striking ``The 
     employer'' and inserting the following:
       ``(K) The employer.''.
       (b) Application Review Requirements.--Subparagraph (K) of 
     such section 212(n)(1), as designated by subsection (a), is 
     amended--
       (1) by inserting ``and through the Department of Labor's 
     website, without charge.'' after ``D.C.'';
       (2) by striking ``only for completeness'' and inserting 
     ``for completeness and clear indicators of fraud or 
     misrepresentation of material fact,'';
       (3) by striking ``or obviously inaccurate'' and inserting 
     ``, presents clear indicators of fraud or misrepresentation 
     of material fact, or is obviously inaccurate'';
       (4) by striking ``within 7 days of'' and inserting ``not 
     later than 14 days after''; and
       (5) by adding at the end the following: ``If the 
     Secretary's review of an application identifies clear 
     indicators of fraud or misrepresentation of material fact, 
     the Secretary may conduct an investigation and hearing in 
     accordance with paragraph (2).''.

 Subtitle B--Investigation and Disposition of Complaints Against H-1B 
                               Employers

     SEC. 111. GENERAL MODIFICATION OF PROCEDURES FOR 
                   INVESTIGATION AND DISPOSITION.

       Subparagraph (A) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--
       (1) by striking ``(A) Subject'' and inserting ``(A)(i) 
     Subject'';
       (2) by striking ``12 months'' and inserting ``24 months'';
       (3) by striking the last sentence; and
       (4) by adding at the end the following:
       ``(ii)(I) Upon the receipt of such a complaint, the 
     Secretary may initiate an investigation to determine if such 
     a failure or misrepresentation has occurred.
       ``(II) The Secretary may conduct surveys of the degree to 
     which employers comply with the requirements of this 
     subsection and may conduct annual compliance audits of 
     employers that employ H-1B nonimmigrants.
       ``(III) The Secretary shall--
       ``(aa) conduct annual compliance audits of not less than 1 
     percent of the employers that employ H-1B nonimmigrants 
     during the applicable calendar year;
       ``(bb) conduct annual compliance audits of each employer 
     with more than 100 employees who work in the United States if 
     more than 15 percent of such employees are H-1B 
     nonimmigrants; and
       ``(cc) make available to the public an executive summary or 
     report describing the general findings of the audits carried 
     out pursuant to this subclause.''.

     SEC. 112. INVESTIGATION, WORKING CONDITIONS, AND PENALTIES.

       Subparagraph (C) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--
       (1) in clause (i)--
       (A) in the matter preceding subclause (I)--
       (i) by striking ``a condition of paragraph (1)(B), (1)(E), 
     or (1)(F)'' and inserting ``a condition under subparagraph 
     (A), (B), (C)(i), (E), (F), (G)(i)(I), (H), (I), or (J) of 
     paragraph (1)''; and
       (ii) by striking ``(1)(C)'' and inserting ``(1)(C)(ii)''; 
     and
       (B) in subclause (I)--
       (i) by striking ``$1,000'' and inserting ``$2,000''; and
       (ii) by striking ``and'' at the end;
       (C) in subclause (II), by striking the period at the end 
     and inserting a semicolon and ``and'';
       (D) by adding at the end the following:
       ``(III) an employer that violates such subparagraph (A) 
     shall be liable to the employees harmed by such violations 
     for lost wages and benefits.''; and
       (2) in clause (ii)
       (A) in subclause (I)--
       (i) by striking ``may'' and inserting ``shall''; and
       (ii) by striking ``$5,000'' and inserting ``$10,000''; and
       (B) in subclause (II), by striking the period at the end 
     and inserting a semicolon and ``and'';
       (C) by adding at the end the following:
       ``(III) an employer that violates such subparagraph (A) 
     shall be liable to the employees harmed by such violations 
     for lost wages and benefits.''; and
       (3) in clause (iii)--
       (A) in the matter preceding subclause (I), by striking ``90 
     days'' both places it appears and inserting ``180 days'';
       (B) in subclause (I)--
       (i) by striking ``may'' and inserting ``shall''; and
       (ii) by striking ``and'' at the end;
       (C) in subclause (II), by striking the period at the end 
     and inserting a semicolon and ``and''; and
       (D) by adding at the end the following:
       ``(III) an employer that violates subparagraph (A) of such 
     paragraph shall be liable to the employees harmed by such 
     violations for lost wages and benefits.'';
       (4) in clause (iv)--
       (A) by inserting ``to take, fail to take, or threaten to 
     take or fail to take, a personnel action, or'' before ``to 
     intimidate'';
       (B) by inserting ``(I)'' after ``(iv)''; and
       (C) by adding at the end the following:
       ``(II) An employer that violates this clause shall be 
     liable to the employees harmed by such violation for lost 
     wages and benefits.''; and
       (5) in clause (vi)--
       (A) by amending subclause (I) to read as follows:

[[Page S4691]]

       ``(I) It is a violation of this clause for an employer who 
     has filed an application under this subsection--
       ``(aa) to require an H-1B nonimmigrant to pay a penalty for 
     ceasing employment with the employer prior to a date agreed 
     to by the nonimmigrant and the employer (the Secretary shall 
     determine whether a required payment is a penalty, and not 
     liquidated damages, pursuant to relevant State law); and
       ``(bb) to fail to offer to an H-1B nonimmigrant, during the 
     nonimmigrant's period of authorized employment, on the same 
     basis, and in accordance with the same criteria, as the 
     employer offers to United States workers, benefits and 
     eligibility for benefits, including--
       ``(AA) the opportunity to participate in health, life, 
     disability, and other insurance plans;
       ``(BB) the opportunity to participate in retirement and 
     savings plans; and
       ``(CC) cash bonuses and noncash compensation, such as stock 
     options (whether or not based on performance).''; and
       (B) in subclause (III), by striking ``$1,000'' and 
     inserting ``$2,000''.

     SEC. 113. WAIVER REQUIREMENTS.

       (a) In General.--Subparagraph (E) of section 212(n)(2) of 
     the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is 
     amended to read as follows:
       ``(E)(i) The Secretary of Labor may waive the prohibition 
     in paragraph (1)(F) if the Secretary determines that the 
     employer seeking the waiver has established that--
       ``(I) the employer with whom the H-1B nonimmigrant would be 
     placed has not displaced, and does not intend to displace, a 
     United States worker employed by the employer within the 
     period beginning 180 days before and ending 180 days after 
     the date of the placement of the nonimmigrant with the 
     employer;
       ``(II) the H-1B nonimmigrant will not be controlled and 
     supervised principally by the employer with whom the H-1B 
     nonimmigrant would be placed; and
       ``(III) the placement of the H-1B nonimmigrant is not 
     essentially an arrangement to provide labor for hire for the 
     employer with whom the H-1B nonimmigrant will be placed.
       ``(ii) The Secretary shall grant or deny a waiver under 
     this subparagraph not later than 7 days after the Secretary 
     receives the application for such waiver.''.
       (b) Requirement for Rules.--
       (1) Rules for waivers.--The Secretary of Labor shall 
     promulgate rules, after notice and a period for comment, for 
     an employer to apply for a waiver under subparagraph (E) of 
     section 212(n)(2) of such Act, as amended by subsection (a).
       (2) Requirement for publication.--The Secretary of Labor 
     shall submit to Congress and publish in the Federal Register 
     and other appropriate media a notice of the date that rules 
     required by paragraph (1) are published.

     SEC. 114. INITIATION OF INVESTIGATIONS.

       Subparagraph (G) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--
       (1) in clause (i), by striking ``if the Secretary'' and all 
     that follows and inserting ``with regard to the employer's 
     compliance with the requirements of this subsection.'';
       (2) in clause (ii), by striking ``and whose identity'' and 
     all that follows through ``failure or failures.'' and 
     inserting ``the Secretary of Labor may conduct an 
     investigation into the employer's compliance with the 
     requirements of this subsection.'';
       (3) in clause (iii), by striking the last sentence;
       (4) by striking clauses (iv) and (v);
       (5) by redesignating clauses (vi), (vii), and (viii) as 
     clauses (iv), (v), and (vi), respectively;
       (6) in clause (iv), as so redesignated, by striking ``meet 
     a condition described in clause (ii), unless the Secretary of 
     Labor receives the information not later than 12 months'' and 
     inserting ``comply with the requirements under this 
     subsection, unless the Secretary of Labor receives the 
     information not later than 24 months'';
       (7) by amending clause (v), as so redesignated, to read as 
     follows:
       ``(v) The Secretary of Labor shall provide notice to an 
     employer of the intent to conduct an investigation. The 
     notice shall be provided in such a manner, and shall contain 
     sufficient detail, to permit the employer to respond to the 
     allegations before an investigation is commenced. The 
     Secretary is not required to comply with this clause if the 
     Secretary determines that such compliance would interfere 
     with an effort by the Secretary to investigate or secure 
     compliance by the employer with the requirements of this 
     subsection. A determination by the Secretary under this 
     clause shall not be subject to judicial review.'';
       (8) in clause (vi), as so redesignated, by striking ``An 
     investigation'' and all that follows through ``the 
     determination.'' and inserting ``If the Secretary of Labor, 
     after an investigation under clause (i) or (ii), determines 
     that a reasonable basis exists to make a finding that the 
     employer has failed to comply with the requirements under 
     this subsection, the Secretary shall provide interested 
     parties with notice of such determination and an opportunity 
     for a hearing in accordance with section 556 of title 5, 
     United States Code, not later than 120 days after the date of 
     such determination.''; and
       (9) by adding at the end the following:
       ``(vii) If the Secretary of Labor, after a hearing, finds a 
     reasonable basis to believe that the employer has violated 
     the requirements under this subsection, the Secretary shall 
     impose a penalty under subparagraph (C).''.

     SEC. 115. INFORMATION SHARING.

       Subparagraph (H) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read 
     as follows:
       ``(H) The Director of United States Citizenship and 
     Immigration Services shall provide the Secretary of Labor 
     with any information contained in the materials submitted by 
     employers of H-1B nonimmigrants as part of the adjudication 
     process that indicates that the employer is not complying 
     with visa program requirements for H-1B nonimmigrants. The 
     Secretary may initiate and conduct an investigation and 
     hearing under this paragraph after receiving information of 
     noncompliance under this subparagraph.''.

     SEC. 116. CONFORMING AMENDMENT.

       Subparagraph (F) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182) is amended by striking 
     ``The preceding sentence shall apply to an employer 
     regardless of whether or not the employer is an H-1B-
     dependent employer.''.

                     Subtitle C--Other Protections

     SEC. 121. POSTING AVAILABLE POSITIONS THROUGH THE DEPARTMENT 
                   OF LABOR.

       (a) Department of Labor Website.--Paragraph (3) of section 
     212(n) of the Immigration and Nationality Act (8 U.S.C. 
     1182(n)) is amended to read as follows:
       ``(3)(A) Not later than 90 days after the date of the 
     enactment of the H-1B and L-1 Visa Reform Act of 2009, the 
     Secretary of Labor shall establish a searchable Internet 
     website for posting positions as required by paragraph 
     (1)(C). Such website shall be available to the public without 
     charge.
       ``(B) The Secretary may work with private companies or 
     nonprofit organizations to develop and operate the Internet 
     website described in subparagraph (A).
       ``(C) The Secretary may promulgate rules, after notice and 
     a period for comment, to carry out the requirements of this 
     paragraph.''.
       (b) Requirement for Publication.--The Secretary of Labor 
     shall submit to Congress and publish in the Federal Register 
     and other appropriate media a notice of the date that the 
     Internet website required by paragraph (3) of section 212(n) 
     of such Act, as amended by subsection (a), will be 
     operational.
       (c) Application.--The amendments made by subsection (a) 
     shall apply to an application filed on or after the date that 
     is 30 days after the date described in subsection (b).

     SEC. 122. H-1B GOVERNMENT AUTHORITY AND REQUIREMENTS.

       (a) Immigration Documents.--Section 204 of the Immigration 
     and Nationality Act (8 U.S.C. 1154) is amended by adding at 
     the end the following:
       ``(l) Employer To Provide Immigration Paperwork Exchanged 
     With Federal Agencies.--Not later than 21 business days after 
     receiving a written request from a former, current, or future 
     employee or beneficiary, an employer shall provide such 
     employee or beneficiary with the original (or a certified 
     copy of the original) of all petitions, notices, and other 
     written communication exchanged between the employer and the 
     Department of Labor, the Department of Homeland Security, or 
     any other Federal agency or department that is related to an 
     immigrant or nonimmigrant petition filed by the employer for 
     such employee or beneficiary.''.
       (b) Report on Job Classification and Wage Determinations.--
     Not later than 1 year after the date of the enactment of this 
     Act, the Comptroller General of the United States shall 
     prepare a report analyzing the accuracy and effectiveness of 
     the Secretary of Labor's current job classification and wage 
     determination system. The report shall--
       (1) specifically address whether the systems in place 
     accurately reflect the complexity of current job types as 
     well as geographic wage differences; and
       (2) make recommendations concerning necessary updates and 
     modifications.

     SEC. 123. REQUIREMENTS FOR INFORMATION FOR H-1B AND L-1 
                   NONIMMIGRANTS.

       Section 214 of the Immigration and Nationality Act (8 
     U.S.C. 1184) is amended by adding at the end the following:
       ``(s) Requirements for Information for H-1B and L-1 
     Nonimmigrants.--
       ``(1) In General.--Upon issuing a visa to an applicant for 
     nonimmigrant status pursuant to subparagraph (H)(i)(b) or (L) 
     of section 101(a)(15) who is outside the United States, the 
     issuing office shall provide the applicant with--
       ``(A) a brochure outlining the obligations of the 
     applicant's employer and the rights of the applicant with 
     regard to employment under Federal law, including labor and 
     wage protections;
       ``(B) the contact information for appropriate Federal 
     agencies or departments that offer additional information or 
     assistance in clarifying such obligations and rights; and
       ``(C) a copy of the application submitted for the 
     nonimmigrant under section 212(n) or the petition submitted 
     for the nonimmigrant under subsection (c)(2)(A), as 
     appropriate.
       ``(2) Upon the issuance of a visa to an applicant referred 
     to in paragraph (1) who is inside the United States, the 
     issuing officer of the Department of Homeland Security shall 
     provide the applicant with the material described in clauses 
     (i), (ii), and (iii) of subparagraph (A).''.

[[Page S4692]]

     SEC. 124. ADDITIONAL DEPARTMENT OF LABOR EMPLOYEES.

       (a) In General.--The Secretary of Labor is authorized to 
     hire 200 additional employees to administer, oversee, 
     investigate, and enforce programs involving nonimmigrant 
     employees described in section 101(a)(15)(H)(i)(B).
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.

     SEC. 125. TECHNICAL CORRECTION.

       Section 212 of the Immigration and Nationality Act is 
     amended by redesignating the second subsection (t), as added 
     by section 1(b)(2)(B) of the Act entitled ``An Act to amend 
     and extend the Irish Peace Process Cultural and Training 
     Program Act of 1998'' (Public Law 108-449 (118 Stat. 3470)), 
     as subsection (u).

     SEC. 126. APPLICATION.

       Except as specifically otherwise provided, the amendments 
     made by this title shall apply to applications filed on or 
     after the date of the enactment of this Act.

             TITLE II--L-1 VISA FRAUD AND ABUSE PROTECTIONS

     SEC. 201. PROHIBITION ON OUTPLACEMENT OF L-1 NONIMMIGRANTS.

       (a) In General.--Subparagraph (F) of section 214(c)(2) of 
     the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is 
     amended to read as follows:
       ``(F)(i) Unless an employer receives a waiver under clause 
     (ii), an employer may not employ an alien, for a cumulative 
     period of more than 1 year, who--
       ``(I) will serve in a capacity involving specialized 
     knowledge with respect to an employer for purposes of section 
     101(a)(15)(L); and
       ``(II) will be stationed primarily at the worksite of an 
     employer other than the petitioning employer or its 
     affiliate, subsidiary, or parent, including pursuant to an 
     outsourcing, leasing, or other contracting agreement.''
       ``(ii) The Secretary of Homeland Security may grant a 
     waiver of the requirements of clause (i) for an employer if 
     the Secretary determines that the employer has established 
     that--
       ``(I) the employer with whom the alien referred to in 
     clause (i) would be placed has not displaced and does not 
     intend to displace a United States worker employed by the 
     employer within the period beginning 180 days after the date 
     of the placement of such alien with the employer;
       ``(II) such alien will not be controlled and supervised 
     principally by the employer with whom the nonimmigrant would 
     be placed; and
       ``(III) the placement of the nonimmigrant is not 
     essentially an arrangement to provide labor for hire for an 
     unaffiliated employer with whom the nonimmigrant will be 
     placed, rather than a placement in connection with the 
     provision or a product or service for which specialized 
     knowledge specific to the petitioning employer is necessary.
       ``(iii) The Secretary shall grant or deny a waiver under 
     clause (ii) not later than 7 days after the date that the 
     Secretary receives the application for the waiver.''.
       (b) Regulations.--The Secretary of Homeland Security shall 
     promulgate rules, after notice and a period for comment, for 
     an employer to apply for a waiver under subparagraph (F)(ii) 
     of section 214(c)(2), as added by subsection (a).

     SEC. 202. L-1 EMPLOYER PETITION REQUIREMENTS FOR EMPLOYMENT 
                   AT NEW OFFICES.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)) is amended by adding at the end the 
     following:
       ``(G)(i) If the beneficiary of a petition under this 
     paragraph is coming to the United States to open, or be 
     employed in, a new office, the petition may be approved for 
     up to 12 months only if--
       ``(I) the alien has not been the beneficiary of 2 or more 
     petitions under this subparagraph during the immediately 
     preceding 2 years; and
       ``(II) the employer operating the new office has--
       ``(aa) an adequate business plan;
       ``(bb) sufficient physical premises to carry out the 
     proposed business activities; and
       ``(cc) the financial ability to commence doing business 
     immediately upon the approval of the petition.
       ``(ii) An extension of the approval period under clause (i) 
     may not be granted until the importing employer submits an 
     application to the Secretary of Homeland Security that 
     contains--
       ``(I) evidence that the importing employer meets the 
     requirements of this subsection;
       ``(II) evidence that the beneficiary of the petition is 
     eligible for nonimmigrant status under section 101(a)(15)(L);
       ``(III) a statement summarizing the original petition;
       ``(IV) evidence that the importing employer has fully 
     complied with the business plan submitted under clause 
     (i)(I);
       ``(V) evidence of the truthfulness of any representations 
     made in connection with the filing of the original petition;
       ``(VI) evidence that the importing employer, for the entire 
     period beginning on the date on which the petition was 
     approved under clause (i), has been doing business at the new 
     office through regular, systematic, and continuous provision 
     of goods and services;
       ``(VII) a statement of the duties the beneficiary has 
     performed at the new office during the approval period under 
     clause (i) and the duties the beneficiary will perform at the 
     new office during the extension period granted under this 
     clause;
       ``(VIII) a statement describing the staffing at the new 
     office, including the number of employees and the types of 
     positions held by such employees;
       ``(IX) evidence of wages paid to employees;
       ``(X) evidence of the financial status of the new office; 
     and
       ``(XI) any other evidence or data prescribed by the 
     Secretary.
       ``(iii) A new office employing the beneficiary of an L-1 
     petition approved under this paragraph shall do business only 
     through regular, systematic, and continuous provision of 
     goods and services for the entire period for which the 
     petition is sought.
       ``(iv) Notwithstanding clause (ii), and subject to the 
     maximum period of authorized admission set forth in 
     subparagraph (D), the Secretary of Homeland Security, in the 
     Secretary's discretion, may approve a subsequently filed 
     petition on behalf of the beneficiary to continue employment 
     at the office described in this subparagraph for a period 
     beyond the initially granted 12-month period if the importing 
     employer has been doing business at the new office through 
     regular, systematic, and continuous provision of goods and 
     services for the 6 months immediately preceding the date of 
     extension petition filing and demonstrates that the failure 
     to satisfy any of the requirements described in those 
     subclauses was directly caused by extraordinary 
     circumstances, as determined by the Secretary in the 
     Secretary's discretion.''.

     SEC. 203. COOPERATION WITH SECRETARY OF STATE.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)), as amended by section 202, is further 
     amended by adding at the end the following:
       ``(H) For purposes of approving petitions under this 
     paragraph, the Secretary of Homeland Security shall work 
     cooperatively with the Secretary of State to verify the 
     existence or continued existence of a company or office in 
     the United States or in a foreign country.''.

     SEC. 204. INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST 
                   L-1 EMPLOYERS.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)), as amended by sections 202 and 203, is 
     further amended by adding at the end the following:
       ``(I)(i) The Secretary of Homeland Security may initiate an 
     investigation of any employer that employs nonimmigrants 
     described in section 101(a)(15)(L) with regard to the 
     employer's compliance with the requirements of this 
     subsection.
       ``(ii) If the Secretary receives specific credible 
     information from a source who is likely to have knowledge of 
     an employer's practices, employment conditions, or compliance 
     with the requirements under this subsection, the Secretary 
     may conduct an investigation into the employer's compliance 
     with the requirements of this subsection. The Secretary may 
     withhold the identity of the source from the employer, and 
     the source's identity shall not be subject to disclosure 
     under section 552 of title 5, United States Code.
       ``(iii) The Secretary shall establish a procedure for any 
     person desiring to provide to the Secretary information 
     described in clause (ii) that may be used, in whole or in 
     part, as the basis for the commencement of an investigation 
     described in such clause, to provide the information in 
     writing on a form developed and provided by the Secretary and 
     completed by or on behalf of the person.
       ``(iv) No investigation described in clause (ii) (or 
     hearing described in clause (vi) based on such investigation) 
     may be conducted with respect to information about a failure 
     to comply with the requirements under this subsection, unless 
     the Secretary receives the information not later than 24 
     months after the date of the alleged failure.
       ``(v) Before commencing an investigation of an employer 
     under clause (i) or (ii), the Secretary shall provide notice 
     to the employer of the intent to conduct such investigation. 
     The notice shall be provided in such a manner, and shall 
     contain sufficient detail, to permit the employer to respond 
     to the allegations before an investigation is commenced. The 
     Secretary is not required to comply with this clause if the 
     Secretary determines that to do so would interfere with an 
     effort by the Secretary to investigate or secure compliance 
     by the employer with the requirements of this subsection. 
     There shall be no judicial review of a determination by the 
     Secretary under this clause.
       ``(vi) If the Secretary, after an investigation under 
     clause (i) or (ii), determines that a reasonable basis exists 
     to make a finding that the employer has failed to comply with 
     the requirements under this subsection, the Secretary shall 
     provide the interested parties with notice of such 
     determination and an opportunity for a hearing in accordance 
     with section 556 of title 5, United States Code, not later 
     than 120 days after the date of such determination. If such a 
     hearing is requested, the Secretary shall make a finding 
     concerning the matter by not later than 120 days after the 
     date of the hearing.
       ``(vii) If the Secretary, after a hearing, finds a 
     reasonable basis to believe that the employer has violated 
     the requirements under this subsection, the Secretary shall 
     impose a penalty under subparagraph (L).
       ``(viii)(I) The Secretary may conduct surveys of the degree 
     to which employers comply with the requirements under this 
     section.

[[Page S4693]]

       ``(II) The Secretary shall--
       ``(aa) conduct annual compliance audits of not less than 1 
     percent of the employers that employ nonimmigrants described 
     in section 101(a)(15)(L) during the applicable fiscal year;
       ``(bb) conduct annual compliance audits of each employer 
     with more than 100 employees who work in the United States if 
     more than 15 percent of such employees are nonimmigrants 
     described in 101(a)(15)(L); and
       ``(cc) make available to the public an executive summary or 
     report describing the general findings of the audits carried 
     out pursuant to this subclause.''.

     SEC. 205. WAGE RATE AND WORKING CONDITIONS FOR L-1 
                   NONIMMIGRANT.

       (a) In General.--Section 214(c)(2) of the Immigration and 
     Nationality Act (8 U.S.C. 1184(c)(2)), as amended by section 
     202, 203, and 204, is further amended by adding at the end 
     the following:
       ``(J)(i) An employer that employs a nonimmigrant described 
     in section 101(a)(15)(L) for a cumulative period of time in 
     excess of 1 year shall--
       ``(I) offer such nonimmigrant, during the period of 
     authorized employment, wages, based on the best information 
     available at the time the application is filed, which are not 
     less than the highest of--
       ``(aa) the locally determined prevailing wage level for the 
     occupational classification in the area of employment;
       ``(bb) the median average wage for all workers in the 
     occupational classification in the area of employment; and
       ``(cc) the median wage for skill level 2 in the 
     occupational classification found in the most recent 
     Occupational Employment Statistics survey; and
       ``(II) provide working conditions for such nonimmigrant 
     that will not adversely affect the working conditions of 
     workers similarly employed.
       ``(ii) If an employer, in such previous period specified by 
     the Secretary of Homeland Security, employed 1 or more such 
     nonimmigrants, the employer shall provide to the Secretary of 
     Homeland Security the Internal Revenue Service Form W-2 Wage 
     and Tax Statement filed by the employer with respect to such 
     nonimmigrants for such period.
       ``(iii) It is a failure to meet a condition under this 
     subparagraph for an employer who has filed a petition to 
     import 1 or more aliens as nonimmigrants described in section 
     101(a)(15)(L)--
       ``(I) to require such a nonimmigrant to pay a penalty for 
     ceasing employment with the employer before a date mutually 
     agreed to by the nonimmigrant and the employer; or
       ``(II) to fail to offer to such a nonimmigrant, during the 
     nonimmigrant's period of authorized employment, on the same 
     basis, and in accordance with the same criteria, as the 
     employer offers to United States workers, benefits and 
     eligibility for benefits, including--
       ``(aa) the opportunity to participate in health, life, 
     disability, and other insurance plans;
       ``(bb) the opportunity to participate in retirement and 
     savings plans; and
       ``(cc) cash bonuses and noncash compensation, such as stock 
     options (whether or not based on performance).
       ``(iv) The Secretary of Homeland Security shall determine 
     whether a required payment under clause (iii)(I) is a penalty 
     (and not liquidated damages) pursuant to relevant State 
     law.''.
       (b) Regulations.--The Secretary of Homeland Security shall 
     promulgate rules, after notice and a period of comment, to 
     implement the requirements of subparagraph (J) of section 
     214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 
     1184(c)(2)), as added by subsection (a). In promulgating 
     these rules, the Secretary shall take into consideration any 
     special circumstances relating to intracompany transfers.

     SEC. 206. PENALTIES.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)), as amended by sections 202, 203, 204, and 
     205, is further amended by adding at the end the following:
       ``(K)(i) If the Secretary of Homeland Security finds, after 
     notice and an opportunity for a hearing, a failure by an 
     employer to meet a condition under subparagraph (F), (G), 
     (J), or (L) or a misrepresentation of material fact in a 
     petition to employ 1 or more aliens as nonimmigrants 
     described in section 101(a)(15)(L)--
       ``(I) the Secretary shall impose such administrative 
     remedies (including civil monetary penalties in an amount not 
     to exceed $2,000 per violation) as the Secretary determines 
     to be appropriate;
       ``(II) the Secretary may not, during a period of at least 1 
     year, approve a petition for that employer to employ 1 or 
     more aliens as such nonimmigrants; and
       ``(III) in the case of a violation of subparagraph (J) or 
     (L), the employer shall be liable to the employees harmed by 
     such violation for lost wages and benefits.
       ``(ii) If the Secretary finds, after notice and an 
     opportunity for a hearing, a willful failure by an employer 
     to meet a condition under subparagraph (F), (G), (J). or (L) 
     or a willful misrepresentation of material fact in a petition 
     to employ 1 or more aliens as nonimmigrants described in 
     section 101(a)(15)(L)--
       ``(I) the Secretary shall impose such administrative 
     remedies (including civil monetary penalties in an amount not 
     to exceed $10,000 per violation) as the Secretary determines 
     to be appropriate;
       ``(II) the Secretary may not, during a period of at least 2 
     years, approve a petition filed for that employer to employ 1 
     or more aliens as such nonimmigrants; and
       ``(III) in the case of a violation of subparagraph (J) or 
     (L), the employer shall be liable to the employees harmed by 
     such violation for lost wages and benefits.''.

     SEC. 207. PROHIBITION ON RETALIATION AGAINST L-1 
                   NONIMMIGRANTS.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)), as amended by section 202, 203, 204, 205, 
     and 206, is further amended by adding at the end the 
     following:
       ``(L)(i) It is a violation of this subparagraph for an 
     employer who has filed a petition to import 1 or more aliens 
     as nonimmigrants described in section 101(a)(15)(L) to take, 
     fail to take, or threaten to take or fail to take, a 
     personnel action, or to intimidate, threaten, restrain, 
     coerce, blacklist, discharge, or discriminate in any other 
     manner against an employee because the employee--
       ``(I) has disclosed information that the employee 
     reasonably believes evidences a violation of this subsection, 
     or any rule or regulation pertaining to this subsection; or
       ``(II) cooperates or seeks to cooperate with the 
     requirements of this subsection, or any rule or regulation 
     pertaining to this subsection.
       ``(ii) In this subparagraph, the term `employee' includes--
       ``(I) a current employee;
       ``(II) a former employee; and
       ``(III) an applicant for employment.''.

     SEC. 208. REPORTS ON L-1 NONIMMIGRANTS.

       Section 214(c)(8) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(8)) is amended by inserting ``(L),'' after 
     ``(H),''.

     SEC. 209. TECHNICAL AMENDMENTS.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)) is amended by striking ``Attorney 
     General'' each place it appears and inserting ``Secretary of 
     Homeland Security''.

     SEC. 210. APPLICATION.

       The amendments made by sections 201 through 207 shall apply 
     to applications filed on or after the date of the enactment 
     of this Act.

     SEC. 211. REPORT ON L-1 BLANKET PETITION PROCESS.

       (a) Requirement for Report.--Not later than 6 months after 
     the date of the enactment of this Act, the Inspector General 
     of the Department of Homeland Security shall submit to the 
     appropriate committees of Congress a report regarding the use 
     of blanket petitions under section 214(c)(2)(A) of the 
     Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(A)). 
     Such report shall assess the efficiency and reliability of 
     the process for reviewing such blanket petitions, including 
     whether the process includes adequate safeguards against 
     fraud and abuse.
       (b) Appropriate Committees of Congress.--In this section 
     the term ``appropriate committees of Congress'' means--
       (1) the Committee on Homeland Security and Governmental 
     Affairs of the Senate;
       (2) the Committee on the Judiciary of the Senate;
       (3) the Committee on Homeland Security of the House of 
     Representatives; and
       (4) the Committee on the Judiciary of the House of 
     Representatives.
                                 ______
                                 
      By Mr. SPECTER (for himself and Mr. Casey):
  S. 889. A bill to amend the Agricultural Adjustment Act to require 
the Secretary of Agriculture to determine the price of all milk used 
for manufactured purposes, which shall be classified as Class II milk, 
by using the national average cost of production, and for other 
purposes; to the Committee on Agriculture, Nutrition, and Forestry.
  Mr. SPECTER. Mr. President, I seek recognition to speak on 
legislation I am introducing with Senator Casey that will require the 
Secretary of Agriculture to determine the price of all manufactured 
milk, classified as Class II milk, using the national average cost of 
production. At a time when the dairy farmers in Pennsylvania and across 
the country are seeing record low prices for their milk, this 
legislation is necessary to bring the price of milk back to a level 
where farmers can earn a living and provide for their families.
  Over the past year, farmers in my state have seen the average price 
for a hundredweight, cwt, of milk drop from around $24 in July 2008, to 
hovering around $10 this February. This dramatic price decrease has 
been the result of a perfect storm of factors, including record high 
fuel prices last summer, which increased the cost of feed and other 
supplies, and a decrease in demand for dairy products abroad, where 
cases of melamine in milk have caused a severe drop in demand.
  Last year, Sen. Casey and I worked diligently to increase the Milk 
Income Loss Contract, MILC, Program in the 2008 Farm Bill. We were 
successful in

[[Page S4694]]

including a cost of production increase to all MILC payments. These 
direct payments from the federal government are triggered when the 
price of milk per cwt falls below $16.94. When the average price of 
milk for a given month falls below this trigger, farmers are paid 45 
percent of the difference between the actual price of milk and the 
trigger price. With the 2008 Farm bill's inclusion of the cost of 
production to these payments, farmers are seeing higher MILC payments 
than they otherwise would.
  However, this is not enough. I have heard numerous reports from my 
constituents that the price of milk has fallen so low that they are 
fearful of having to sell their farms in order to provide for their 
families. Many of the dairy farms in Pennsylvania are small, family-
owned farms, which, once sold, will be lost forever. We cannot let this 
happen. The dairy industry is critical not only to Pennsylvania's 
economy, but to the economy of the U.S. and to the security of our 
nation.
  The Federal Milk Marketing Improvement Act will not only use a 
national average cost of production to determine Class II milk, but 
will also keep the Secretary of Agriculture engaged in protecting 
farmers from falling milk prices. This legislation would require the 
Secretary to adjust the value of milk four times a year, ensuring that 
price volatilities in the fuel sector will not unfairly hurt this 
industry, as we have seen it do in the past year.
  Finally, this legislation provides an exemption for new dairy 
producers, up to 3 million pounds of milk during the first year of 
production, to encourage growth in the industry. With recent losses 
across the country of so many dairy farms, this provision is important 
to spurring new farmers and producers to enter the dairy industry.
  I look forward to working with my colleagues to advance this and 
other legislation which will help a vital industry to this country. Our 
dairy farmers are the backbone of the agricultural community, and they 
deserve our support.
                                 ______
                                 
      By Mr. REID (for Mr. Rockefeller):
  S. 890. A bill to provide for the use of improved health information 
technology with respect to certain safety net health care providers; to 
the Committee on Health, Education, Labor, and Pensions.
  Mr. ROCKEFELLER. Mr. President, I rise today to introduce the Health 
Information Technology Public Utility Act, legislation I have recently 
introduced to facilitate nationwide adoption of electronic health 
records, EHRs, particularly among small, rural providers. This 
legislation will build on the successful open source models for EHRs 
developed by the Department of Veterans Affairs and the Indian Health 
Service--as well as the open source exchange model recently expanded 
among federal agencies through the Nationwide Health Information 
Network-Connect initiative.
  Health information technology, IT, that is interoperable and 
meaningful is a necessary tool to improve the quality of health care 
Americans receive and make our health care system more efficient. It is 
the cornerstone of health care communication and coordination between 
patients and providers and among providers in order delivery high-
quality medical care. Several of the mechanisms embedded in this 
technology--clinical decisions support, interoperability--achieve the 
long-term policy goals we are considering as part of our broader health 
reform discussions. It is clear that coordination and communication 
among providers, improved efficiencies in resource use, streamlined 
administration and billing, and increased access to meaningful data 
about quality improvement and improved health outcomes will not be 
possible without meaningful use of this technology among all providers.
  However, access to affordable technology is the primary reason why 
providers across the nation do not invest in this valuable tool. The 
licensing fees of proprietary software are expensive and beyond the 
reach of many of health care providers--particularly small, rural 
providers. Moreover, the federal government has spent substantial 
taxpayer dollars in the development of open source technology--with the 
Department of Veterans Affairs and the Indian Health Service, IHS, 
national leaders in open source electronic health record, EHR, 
development and implementation. Both the Veterans Health 
Administration's VistA software and the Indian Health Services' 
Resource and Patient Management System, RPMS, are affordable and 
dependable systems that have been in place for decades.
  Most recently, the health IT funding included in the American 
Recovery and Reinvestment Act, ARRA, although substantial, is likely to 
fall short of offering affordable options to all providers. In fact, 
CBO estimates that, even with funding and incentives in the ARRA, 30 
percent of hospitals and 10 percent of physicians will not have adopted 
health IT by 2019. And, there are some providers that are ineligible 
for funding under ARRA altogether.
  The Health Information Technology Public Utility Act will address 
this problem by increasing access to open source software through a 
public utility model. The public utility model proposed in this bill 
would be administered by a Federal Consolidated Health Information 
Technology Board under the umbrella of the ONCHIT, separate from the 
Policy and Standards Committees. Members of this Board would represent 
relevant agencies across the federal government. The Board would be 
responsible for linking efforts of current and new VistA and RPMS user 
groups, and updating VistA and RPMS open source software (including 
provider-based EHRs, personal health records, and other software 
modules) on a timely basis.
  The legislation also establishes a new 21st Century Health 
Information Technology Grant Program to provide funding to public and 
not-for-profit safety net providers to cover the costs of 
implementation and initial maintenance of VistA and/or RPMS systems. 
Grants will focus on eligible hospitals and clinics, with some 
additional funding for demonstrations in long-term care, home health, 
and hospice.
  The Health Information Technology Public Utility Act fills a crucial 
gap in health IT affordability and accessibility. This legislation does 
not replace commercial software; instead, it complements the private 
industry in this field--by making health information technology a 
realistic option for all providers and by making it possible for the 
benefits of health IT to accrue to all patients and I urge my 
colleagues to join me in support of this important policy.
  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. 890

       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 Information 
     Technology (IT) Public Utility Act of 2009''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Board.--The term ``Board'' means the Federal 
     Consolidated Health Information Technology Board established 
     under section 3.
       (2) RPMS.--The term ``RPMS'' means the Resource and Patient 
     Management System of the Indian Health Service.
       (3) Secretary.--The term ``Secretary'' means the Secretary 
     of Veterans Affairs.
       (4) VistA.--The term ``VistA'' means the VistA software 
     program utilized by the Department of Veterans Affairs.

     SEC. 3. FEDERAL CONSOLIDATED HEALTH INFORMATION TECHNOLOGY 
                   BOARD.

       (a) Establishment.--To facilitate the implementation of 
     electronic health record systems among safety-net health care 
     providers (particularly small, rural providers) there shall 
     be established within the Office of the National Coordinator 
     for Health Information Technology of the Department of Health 
     and Human Services, a Federal Consolidated Health Information 
     Technology Board.
       (b) Board of Directors.--The Board shall be administered by 
     a board of directors that shall be composed of the following 
     individuals or their designees:
       (1) The Secretary.
       (2) The Under Secretary for Health of the Department of 
     Veterans Affairs.
       (3) The Director of the Indian Health Service.
       (4) The Secretary of Defense.
       (5) The Secretary of Health and Human Services.
       (6) The Director of the Agency for Healthcare Research and 
     Quality.
       (7) The Administrator of the Health Resources and Services 
     Administration.

[[Page S4695]]

       (8) The Chairman of the Federal Communications Commission.
       (c) Duties.--The Board shall--
       (1) provide ongoing communication with existing VistA and 
     RPMS user groups to ensure that there is constant 
     interoperability between such groups and to provide for the 
     sharing of innovative ideas and technology;
       (2) update VistA and RPMS open source software (including 
     health care provider-based electronic health records, 
     personal health records, and other software modules) on a 
     timely basis;
       (3) implement and administer the 21st Century HIT Grant 
     Program under section 4, including providing for notice in 
     the Federal Register as well as--
       (A) determining specific health information technology 
     grant needs based on health care provider settings;
       (B) developing benchmarks for levels of implementation in 
     each year that 21st Century grant funding is provided; and
       (C) providing ongoing VistA and RPMS technical assistance 
     to grantees under such program (either through the provision 
     of direct technical support or through the awarding of 
     competitive contracts to other qualified entities);
       (D) develop mechanisms to integrate VistA and RPMS with 
     records and billing systems utilized under the Medicaid and 
     State children's health insurance programs under titles XIX 
     and XXI of the Social Security Act (42 U.S.C. 1396 and 1397aa 
     et seq.);
       (4) establish a child-specific electronic health record, 
     consistent with the parameters to be set for child electronic 
     health records as provided for in the American Recovery and 
     Reinvestment Act of 2009, to be used in the Medicaid and 
     State children's health insurance programs under titles XIX 
     and XXI of the Social Security Act, and under other Federal 
     children's health programs determined appropriate by the 
     board of directors;
       (5) develop and integrate quality and performance 
     measurement into the VistA and RPMS modules;
       (6) integrate the 21st Century HIT Grant Program under 
     section 4 with the Federal Communications Commission's Rural 
     Health Care Pilot Program, with Department of Veterans 
     Affairs hospital systems, and with other Federal health 
     information technology health initiatives; and
       (7) carry out other activities determined appropriate by 
     the board of directors.
       (d) Annual Audits.--The Comptroller General of the United 
     States shall annually conduct an audit of the activities of 
     the Board during the year and submit the results of such 
     audits to the appropriate committees of Congress.
       (e) Authorization of Appropriations.--There is authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.

     SEC. 4. 21ST CENTURY HEALTH INFORMATION TECHNOLOGY (HIT) 
                   GRANTS.

       (a) Establishment.--The Board shall establish a grant 
     program, to be known as the 21st Century Health Information 
     Technology (HIT) Grant program, to award competitive grants 
     to eligible safety-net health care providers to enable such 
     providers to fully implement VistA or RPMS with respect to 
     the patients served by such providers.
       (b) Eligibility.--
       (1) In general.--To be eligible to receive a grant under 
     subsection (a), an entity shall--
       (A) be--
       (i) a public or nonprofit health care provider (as defined 
     in section 254(h)(7)(B) of the Communications Act of 1934 (47 
     U.S.C. 254(h)(7)(B)), including--

       (I) post-secondary educational institutions offering health 
     care instruction, teaching hospitals, and medical schools;
       (II) a community health center receiving a grant under 
     section 330 of the Public Health Service Act (42 U.S.C. 254) 
     or a health center that provides health care to migrants;
       (III) a local health department or agency, including a 
     dedicated emergency department of rural for-profit hospitals;
       (IV) a community mental health center;
       (V) a nonprofit hospitals;
       (VI) a rural health clinics, including a mobile clinic;
       (VII) a consortia of health care providers, that consists 
     of 1 or more of the entities described in clauses (i) through 
     (vi); and
       (VIII) a part-time eligible entity that is located in an 
     otherwise ineligible facility (as described in section 5(b); 
     or

       (ii) a free clinic (as defined in paragraph (4); and
       (B) submit to the Board as application at such time, in 
     such manner, and containing such information as the Board may 
     require.
       (2) Non-eligible entities.--
       (A) In general.--An entity shall not be eligible to receive 
     a grant under this section if such entity is a for-profit 
     health care entity (except as provided for in paragraph 
     (1)(A)), or any other type of entity that is not described in 
     such paragraph, including--
       (i) an entity described in paragraph (1)(A) that is 
     implementing an existing electronic health records system;
       (ii) an entity that is receiving grant funding under the 
     Federal Communication Commission Rural Health Pilot Program;
       (iii) an entity receiving funding for health information 
     technology through a Medicaid transformation grant under 
     title XIX of the Social Security Act (42 U.S.C. 1936 et 
     seq.);
       (iv) a private physician office or clinic;
       (v) a nursing home or other long-term care facility (such 
     as an assisted living facility);
       (vi) an emergency medical service facility;
       (vii) a residential substance abuse treatment facility;
       (viii) a hospice;
       (ix) a for-profit hospital;
       (x) a home health agency;
       (xi) a blood bank;
       (xii) a social service agency; and
       (xiii) a community center, vocational rehabilitation 
     center, or youth center.
       (B) Other entities.--An entity shall not be eligible to 
     receive a grant under this section if such entity is 
     receiving Medicare or Medicaid incentive funding under any of 
     the amendments made by title IV of division B of the American 
     Recovery and Reinvestment Act of 2009.
       (3) Preference.--In awarding grant under this section the 
     Board shall give preference to applicants that--
       (A) are located in geographical areas that have a greater 
     likelihood of serving the same patients and utilizing 
     interoperability to promote coordinated care management; or
       (B) demonstrate the greatest need for such award (as 
     determined by the Secretary).
       (4) Definition.--In this subsection, the term ``free 
     clinic'' means a safety-net health care organization that--
       (A) utilizes volunteers to provide a range of medical, 
     dental, pharmacy, or behavioral health services to 
     economically disadvantaged individuals the majority of whom 
     are uninsured or underinsured; and
       (B) is a community-based tax-exempt organization under 
     section 501(c)(3) of the Internal Revenue Code of 1986, or 
     that operates as a program component or affiliate of such a 
     501(c)(3) organization.

     An entity that is otherwise a free clinic under this 
     paragraph, but that charge a nominal fee to patients, shall 
     still be considered to be a free clinics if the entity 
     delivers essential services regardless of the patient's 
     ability to pay.
       (c) Use of Funds.--An entity shall use amounts received 
     under a grant under this section to fully implement the VistA 
     or RPMS with respect to the patients served by such entity. 
     Such implementation shall include at least the meaningful use 
     (as defined by the Secretary of Health and Human Services) of 
     such systems, including any ongoing updates and changes to 
     such definition.
       (d) Term and Renewal.--A grant under this section shall be 
     for a period of not to exceed 5 years and may be renewed, as 
     determined appropriate by the Board, based on the achievement 
     of benchmarks required by the Board.
       (e) Annual Reporting.--
       (1) By grantees.--Not later than 1 year after the date on 
     which an entity receives a grant under this section, and 
     annually during each year in which such entity has received 
     funds under such grant, such entity shall submit to the Board 
     a report concerning the activities carried out under the 
     grant.
       (2) By board.--Not later than 2 years after the date of 
     enactment of this Act, and annually thereafter, the Board 
     shall submit to the appropriate committees of Congress a 
     report concerning the activities carried out under this 
     section, including--
       (A) a description of the grants that have been awarded 
     under this section and the purposes of such grants;
       (B) specific implementation information with respect to 
     activities carried out by grantees;
       (C) the costs and savings achieved under the program under 
     this section;
       (D) a description of any innovations developed by health 
     care providers as a result of the implementation of 
     activities under this grant;
       (E) a description of the results of grant activities on 
     patient care quality measurement (including reductions in 
     medication errors and the provision of care management);
       (F) a description of the extent of electronic health record 
     use across health care provider settings;
       (G) a description of the extent to which integration of 
     VistA and RPMS with Medicaid and State children's health 
     insurance program billing has been achieved; and
       (H) any other information determined necessary by the 
     Board.
       (f) Annual Audits.--The Comptroller General of the United 
     States shall annually conduct an audit of the grant program 
     carried out under this section and submit the results of such 
     audits to the Board and the appropriate committees of 
     Congress.
       (g) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section--
       (1) $2,000,000,000 for each of fiscal years 2010 and 2011; 
     and
       (2) $1,000,000,000 for each of fiscal years 2012 through 
     2014.

     SEC. 5. 21ST CENTURY HEALTH INFORMATION TECHNOLOGY 
                   DEMONSTRATION PROGRAM FOR INELIGIBLE ENTITIES.

       (a) In General.--The Board may use not to exceed 10 percent 
     of the amount appropriate for each fiscal year under section 
     4(g) to award competitive grants to eligible long-term care 
     providers for the conduct of demonstration projects to 
     implement VistA or RPMS with respect to the individuals 
     served by such providers.
       (b) Eligibility.--
       (1) In general.--To be eligible to receive a grant under 
     subsection (a), an entity shall--
       (A) be a--
       (i) nursing home or other long-term care facility (such as 
     an assisted living facility);

[[Page S4696]]

       (ii) a hospice; or
       (iii) a home health agency; and
       (B) submit to the Board as application at such time, in 
     such manner, and containing such information as the Board may 
     require, including a description of the manner in which the 
     applicant will use grant funds to implement VistA or RPMS 
     with respect to the individuals served by such applicant to 
     achieve one or more of the following:
       (i) Improve care coordination and chronic disease 
     management.
       (ii) Reduce hospitalizations.
       (iii) Reduce patient churning between the hospital, nursing 
     home, hospice, and home health entity.
       (iv) Increase the ability of long-term care patients to 
     remain in their homes and communities.
       (v) Improve patient completion, and provider execution, of 
     advance directives.
       (2) Noneligibility.--An entity shall not be eligible to 
     receive a grant under this section if such entity is 
     receiving Medicare or Medicaid incentive funding under any of 
     the amendments made by title IV of division B of the American 
     Recovery and Reinvestment Act of 2009.
       (c) Use of Funds.--An entity shall use amounts received 
     under a grant under this section to implement the VistA or 
     RPMS with respect to the individuals served by such entity. 
     Such implementation shall include at least the meaningful use 
     (as defined by the Secretary of Health and Human Services) of 
     such systems, including any ongoing updates and changes to 
     such definition.
       (d) Duration.--A grant under this section shall be for a 
     period of not to exceed 3 years, as determined appropriate by 
     the Board.
       (e) Reporting.--The Board, as part of the report submitted 
     under section 4(e)(2), shall provide comprehensive 
     information on the activities conducted under grants awarded 
     under this section.
                                 ______
                                 
      By Mr. BROWNBACK (for himself, Mr. Durbin, and Mr. Feingold):
  S. 891. A bill to require annual disclosure to the Securities and 
Exchange Commission of activities involving columbite-tantalite, 
cassiterite, and wolframite from the Democratic Republic of Congo, and 
for other purposes; to the Committee on Banking, Housing, and Urban 
Affairs.
  Mr. BROWNBACK. Mr. President, I rise before you today to speak on an 
issue that I have brought to the Senate Floor before and have been 
watching for quite some time now. I would like to submit for the record 
the Congo Conflict Minerals Act of 2009.
  This bill will require U.S.-registered companies selling products 
using columbite-tantalite, coltan, cassiterite, or wolframite, or 
derivatives of these minerals, to annually disclose to the Securities 
and Exchange Commission the country of origin of those minerals. If the 
country of origin is the Democratic Republic of Congo or neighboring 
countries, the company would need to disclose the mine of origin.
  These minerals are the ``conflict diamonds'' of Congo, however rather 
than ending up in jewelry these minerals are ending up in our 
electronics products.
  This is not the first time this issue has been raised. Only last year 
Senator Durbin and I introduced S3058, the Conflict Coltan and 
Cassiterite Act, which prohibited the importation of certain products 
that contained or are derived from columbite-tantalite or cassiterite 
mined or extracted in the Democratic Republic of the Congo. While the 
bill did not go anywhere, the issue itself has gained attention. We 
have taken a strong hard look at last year's bill and have done our 
best to improve on it.
  In the current legislation we call for transparency and 
accountability throughout the supply-chain of these minerals. By making 
this supply-chain more translucent, we ultimately can help save 
millions of innocent Congolese lives who find themselves caught in the 
middle of this conflict, a conflict based on the control of these 
minerals. Some in industry have already started down this road and are 
even in front of the curve with their efforts, but we still need to 
strive to do a better job of showing transparency and we need to do it 
quickly.
  It is no secret that the exploitation of minerals is taking place and 
funding the conflict in Congo. In its final report, released on 
December 12, 2008, the United Nations Group of Experts on the 
Democratic Republic of the Congo found that official exports of 
columbite-tantalite, cassiterite, wolframite, and gold are grossly 
undervalued and that various illegal armed groups in the eastern region 
of the Democratic Republic of Congo continue to profit greatly from 
these natural resources by coercively exercising control over mining 
sites from where they are extracted and locations along which they are 
transported for export.
  I have said this before and I will say it again, this murky, 
conflict-funding supply-chain of minerals in eastern Congo has been the 
heart of darkness for that country too long and I am not the only one 
who believes that.
  Last month the Democratic Republic of Congo's U.N. Ambassador Faida 
Mitifu spoke in New York during a panel discussion on media coverage of 
sexual violence against Congolese women. When the issue of minerals in 
eastern Congo was raised, Ambassador Mitifu said the exploitation of 
mineral resources is the driving force behind the conflict.
  Her exact quote ``the minerals have truly been the driving force 
behind this war. It has been dressed with different clothes, but truly 
the minerals are the driving force.'' She went onto say the history of 
exploitation and conflict dates back to the Congo's colonial history 
with Belgium.
  She is right. The mismanagement of natural resources has long cast a 
gloom over the Democratic Republic of Congo. The exploitation of these 
natural resources that began during the reign of King Leopold has 
endured for over 100 years. During this 24-year tyranny of Congo, King 
Leopold exploited the local population by turning it into a slave 
colony, extracting the resource of the day--rubber, while over 13 
million Congolese died.
  In his book the ``Heart of Darkness'' Joseph Conrad describes King 
Leopold's colonial project in the Congo ``the vilest scramble for loot 
that ever disfigured the history of human conscience.'' But have we 
seen history change at all? Well let me share with you some of the 
lives ravaged by this ongoing conflict.
  This small 3\1/2\-year-old boy became one of the millions of victims 
of displacement and malnourishment. His family fled into the jungle 
from a rebel group that had burnt their village to the ground in just 
outside the village of Kitchanga in North Kivu.
  They lived in the jungle and had been constantly on the move. Food 
became scarce and meals became as sporadic as 2 to 3 a week. He fell 
sick and developed a cough. When his mother brought him to the local 
health clinic, they were immediately referred to an international 
humanitarian organization in the area. There, this young boy was 
diagnosed with malaria, tuberculosis, and anemia.
  His doctors then discovered he had been eating only what his mother 
could gather in jungle and ate only once every three to four days. They 
immediately began his treatments, which his small, frail body was 
struggling to accept.
  While this small 2-year-old boy had a similar story, however more 
disheartening. His family had fled into the jungle when the rebels 
attacked their village. After 3 months of seeking shelter in the 
jungle, his mother finally brought him to a local health clinic where 
he too was referred to the international humanitarian organization 
there. The only diagnosis the doctors could come up with was malaria. 
However when this photo was taken his body was rejecting the 
treatments, he no longer cried-out in hunger or pain, he no longer 
responded to anything.

  The issue of rape in the Congo is quite possibly the worst in the 
world. We used to call it a ``tool of war'' but now it's not even due 
to the war. Because it has been taking place there for so long, it has 
nearly become an accepted behavior and one where impunity reigns free.
  Last year I spoke with Dr. Mukwege from Panzi Hospital in the city of 
Bukavu in the South Kivu Province of Congo. Panzi Hospital is the 
leading treatment hospital of rape and sexual violence survivors in 
Congo. Dr. Mukwege sat in my office and told me of how he was seeing as 
many as 10 new rape survivors who needed treatment a week.
  He then pulled out a map and circled the areas where majority of his 
patients were coming from and explained that those areas were the key 
mining areas for coltan and cassiterite in South Kivu. He said that 
rebels controlled these areas because of the mineral wealth and that 
with their control of these areas came their lawlessness and with 
lawlessness came the impunity of rape.

[[Page S4697]]

  Rape, displacement, insecurity, forced labor, child soldiers, curable 
illnesses left untreated, and deaths of 1,500 people a day are only a 
few of the human indignities directly and indirectly surrounding this 
struggle for control of the minerals in eastern Congo. However there is 
no room for turning a blind eye on this matter when we all must be 
actors in this supply-chain--from miner to consumer.
  American greatness has always been founded on our fundamental 
goodness. We need to be a nation where the strong protect the weak and 
people of privilege assist those in poverty. It says a lot about the 
kind of America we all should work for when we speak out against this 
type of tragedy and commit ourselves to those who are suffering there.
  Mr. FEINGOLD. Mr. President, today I am pleased to join Senators 
Brownback and Durbin as an original cosponsor of the Congo Conflict 
Minerals Act of 2009. The purpose of this bill is to bring greater 
attention and transparency to the way in which the trade in three 
minerals--columbite-tantalite, cassiterite, or wolframite--is 
intertwined with the ongoing violence, displacement and human rights 
abuses in the eastern Democratic Republic of Congo. The metals derived 
from these three minerals are used widely in the electronic products 
that we use daily, from cell phones to laptops to digital cameras. By 
working to ensure the raw materials used in those products are not 
benefiting armed groups, we can have a positive impact on ending armed 
conflict and human rights abuses in the Congo.
  Specifically, this bill charges the State Department to support the 
work of the United Nations Group of Experts to further investigate and 
provide companies with guidance on the links between natural resources 
and the financing of armed groups. It also charges the State Department 
with developing a strategy to help break these linkages, while helping 
governments in the region to establish the necessary frameworks and 
institutions to monitor and regulate the cross-border trade of these 
minerals. Then, this bill requires U.S.-registered companies selling 
products containing those three minerals to disclose the country of 
origin of those minerals and, if they come from Congo or neighboring 
countries, to give further information, including the mine of origin. 
This requirement will compel companies to take responsibility for their 
suppliers and thus bring greater transparency to the trade in these 
minerals, which may enable more targeted actions down the road. 
Finally, this bill encourages USAID to expand programs seeking to 
improve the conditions and livelihood prospects for communities 
affected by this violence in Congo. We must not forget that the long-
term goal is not to shut this trade down, but to support a conflict-
free mining economy that benefits the Congolese people.
  The United Nations Group of Experts has reported over the years that 
various illegal armed groups in eastern Congo profit greatly from the 
region's vast natural resources. In February 2008, the Group of Experts 
stated, ``individuals and entities buying mineral output from areas of 
the eastern part of the Democratic Republic of Congo with a strong 
rebel presence are violating the sanctions regime when they do not 
exercise due diligence to ensure their mineral purchases do not provide 
assistance to illegal armed groups.'' They defined due diligence as 
determining the precise identify of the deposits from which the 
minerals have been mined, establishing whether or not these deposits 
are controlled and/or taxed by illegal armed groups, and refusing to 
buy minerals known to originate--or suspected to originate--from 
deposits controlled/taxed by these armed groups. In December 2008, the 
United Nations Security Council unanimously adopted Resolution 1857, 
broadening existing sanctions relating to Congo to include individuals 
or entities supporting the illegal armed groups through the illicit 
trade of natural resources. The resolution also encouraged member 
countries to ensure that companies handling minerals from Congo 
exercise due diligence with their suppliers.
  The U.S. has invested financial resources and diplomacy over recent 
years in trying to bring peace and stability to eastern Congo, and 
there have been some successes. However, our efforts have ultimately 
been hindered by a failure to directly address the underlying causes of 
conflict. A study by the Government Accountability Office released in 
2007 found that U.S. efforts in Congo are undermined by weak governance 
and mismanagement of natural resources. The plunder and unregulated 
trade of eastern Congo's rich mineral base continues to make war a 
profitable enterprise. This legislation attempts to finally confront 
and address that problem. It commits the United States government and 
those companies under our jurisdiction to shed light on the dynamics of 
eastern Congo's mineral economy and to take actions to reduce its 
exploitation by armed groups. This can be an important step--perhaps 
even a transitional one--as we work with our regional partners to help 
them establish and implement better frameworks for regulation and 
oversight.
  Some may say the bill goes too far, while others may argue that this 
bill does not go far enough; that it has loopholes and lacks sufficient 
``teeth.'' This bill is not perfect. However, we must realize the 
conflict mineral problem is a complex one. This legislation is just a 
first step to bring greater transparency to that problem, which will 
then enable more comprehensive, robust and targeted measures down the 
road. At the same time, we must tread carefully because there are many 
communities in eastern Congo whose livelihoods are intertwined with the 
mining economy. All-out prohibitions or blanket sanctions could be 
counterproductive and negatively affect the very people we seek to 
help. I am confident that this bill is sensitive to that complex 
reality. It tasks the Government Accountability Office, within two 
years, with assessing any problems resulting from the implementation of 
this Act, determining any adverse impacts on local Congolese 
communities, and making recommendations for improving its 
effectiveness. It also urges USAID to expand its programs to work with 
these communities and improve their livelihood prospects.
  I also realize that some others may argue that this bill goes too 
far; that it imposes impractical or onerous requirements on companies 
who end-use these minerals. Similar arguments were made in the early 
days of the Kimberley Process. I appreciate that these three minerals 
often pass through extensive supply chains and processing stages before 
the relevant metals are used in technological products. Bringing 
transparency to those supply chains may not be easy, but it is 
something we can and should expect of industry when certain commodities 
are known to be fueling human rights violations. Industry itself has 
acknowledged this. In February 2009, the Electronic Industry 
Citizenship Coalition, which includes several major U.S. electronic 
companies, put out a statement saying that companies can and should 
uphold responsible practices in their operations and work with 
suppliers to meet social and environmental standards with respect to 
the raw materials used in the manufacture of their products. That was a 
bold statement and I want to work with companies to make it a reality 
with respect to Congo.
  I traveled in 2007 to eastern Congo and saw firsthand the grave 
suffering of people who have lived through a decade of conflict and 
humanitarian crisis. The numbers are staggering: an estimated 5.4 
million deaths over the last decade--making it the deadliest conflict 
since the Second World War. In addition, millions of people are still 
displaced from their homes, living in squalid camps where children are 
subject to forced recruitment and women suffer unspeakable levels of 
sexual violence. In my travels to many parts of Africa over the years, 
the suffering of women and girls in eastern Congo particularly stands 
out. I met with women and girls there who had been gang raped, often 
leaving them with horrific physical and psychological damage. I met 
with women who had lost their husbands, their homes, and their 
livelihoods and yet against all odds they refused to give up--if only 
for the sake of their children. I believe this bill will make attaining 
peace for these women and their families a little easier and that is 
one of the reasons why I am supporting it.
  In 2006, under the leadership of then-Senator Obama and Senator

[[Page S4698]]

Brownback, the U.S. Congress passed the Democratic Republic of Congo 
Relief, Security and Democracy Promotion Act. That bill committed the 
United States to work comprehensively toward peace, prosperity and good 
governance in the Congo. The Congo Conflict Minerals Act of 2009 seeks 
to move us a step closer toward those goals. I urge my colleagues to 
support it, and thank Senators Brownback and Durbin for their 
leadership on this important issue.

                          ____________________