[Congressional Record Volume 156, Number 23 (Tuesday, February 23, 2010)]
[Senate]
[Pages S700-S709]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER (for himself, Mr. Kaufman, Mr. Schumer, and Ms.
Klobuchar):
S. 3017. A bill to protect State and local witnesses from tampering
and retaliation, and for other purposes; to the Committee on the
Judiciary.
Mr. SPECTER. Mr. President, I have sought recognition to introduce
legislation to make it a Federal offense to intimidate or threaten a
witness in a State court proceeding.
This legislation I believe to be necessary based upon some very
disastrous experiences in the criminal courts in Philadelphia, as
evidenced by a lengthy series of articles in the Philadelphia Inquirer
and a field hearing which the Judiciary Subcommittee on Crime and Drugs
held in Philadelphia. What has occurred is that in many instances,
witnesses are intimidated--even murdered--to prevent them from
testifying.
The crime scenes in our big cities are atrocious. I spent eight years
as the district attorney of Philadelphia. When I left that position, I
didn't think the crime problem could be worse, but regrettably it is
now, in many aspects. One of the aspects has been for the young thugs
who are under accusation or friends of those who are under charge to go
to the witnesses and terrify them and even murder them. During the
course of the field hearing, we had two parents testify about how their
children were brutally murdered.
It is a violation of State law to intimidate a witness, but making it
a Federal offense imports a great deal more pressure, more power to the
situation. People do not like the Federal presence, the initiation of a
criminal case, the investigation by the FBI, and the treatment of the
Federal courts is materially different--at least in Philadelphia--than
it is in the State court proceedings.
I think this kind of legislation would be very salutary. If you don't
have the integrity of the judicial process protected, it is a very sad
day in the administration of justice. I introduced this legislation on
behalf of Senator Schumer, Senator Klobuchar, and Senator Kaufman.
Mr. President, I ask unanimous consent that the full text of my
statement and the text of the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record as follows:
Mr. SPECTER. Mr. President, I have sought recognition to
introduce the State Witness Protection Act of 2010. I am
joined on this legislation by Senators Kaufman, Schumer and
Klobuchar as original cosponsors.
As reported by the Philadelphia Inquirer on December 14,
2009, ``[p]rosecutors, detectives, and even some defense
attorneys say witness fear has become an unspoken factor in
virtually every court case involving violent crime in
Philadelphia. Reluctant or terrified witnesses routinely fail
to appear in court, and when they do, they often recant their
earlier testimony or statement to police.''
One Philadelphia Assistant District Attorney is quoted in
the article saying that at least one witness in every murder
trial recants. As a result, Assistant District Attorneys
learn to ``lock in'' witness testimony early with signed
statements and testimony under oath, and are expert in cross-
examining witnesses who ``go south.'' At times, the
prosecutors are forced to lock up witnesses on material
witness warrants to assure their appearance at trial.
In Philadelphia between 2006 and 2008, the District
Attorney's Office filed witness intimidation charges against
approximately 1,000 individuals. Their conviction rate on
these charges, however, is only 28%.
Witness intimidation and violent crime are problems that I
have worked on for decades, since I was an Assistant District
Attorney and later District Attorney in Philadelphia, and on
the Judiciary Committee, where I have served since 1981 when
I was sworn in.
Criminal trials cannot proceed unless there are witnesses,
and if witnesses are subject to intimidation or even worse,
murdered, criminal cases cannot go forward. And unless
witnesses can be assured they will be protected, the problem
of witness intimidation cannot be expected to go away.
Philadelphia's witness intimidation problems are similar to
those faced by many communities in our country. A recent Op-
Ed in the Chicago Tribune stated that witnesses often want to
cooperate with police, but the risk of retribution is too
great. The article posed the following question ``What would
happen if we diminished the risk and created a greater sense
of assurance that the law would do its job in actually making
the streets safe as well as protecting those who decide to
turn killers in?''
On January 8, 2010, I chaired a field hearing in
Philadelphia for the Senate Judiciary Subcommittee on Crime
and Drugs on witness intimidation to explore how law
enforcement can better protect witnesses. Two parents--each
who lost a child to gun violence--testified. Barbara Clowden
told us that her son Eric Hayes, 17 years old, was killed
just two days before he was to testify in an arson trial in
Philadelphia. Because Eric's life had been threatened, in
January 2006 his family entered into the city's witness
relocation program. Eventually the money from the program ran
out and they had to relocate to Northeast Philadelphia where
Eric was murdered. No one to date has been convicted of
Eric's murder.
Ted Canada is a Philadelphia resident and SEPTA bus driver.
In 2005, his son Lamar Canada was shot 12 times and killed by
Dominick Peoples and another unidentified shooter in
Philadelphia over a gambling debt. One witness to the
shooting, Johnta Gravitt, 17 years old, was murdered 10 days
after he testified at the preliminary hearing and identified
Peoples as one of the shooters. Another witness initially
cooperated but after his statement to the police was publicly
posted in his neighborhood identifying him as a ``snitch,''
he recanted. Peoples, nevertheless, was convicted.
The most notorious example of witness intimidation in
Philadelphia involves Kaboni Savage, a drug kingpin who was
federally indicted last April on racketeering and murder
charges for retaliating against his former drug associate,
Eugene Coleman. Coleman had agreed to testify against Savage
in a federal trial. The federal charges allege that to
retaliate for this, Savage orchestrated the firebombing of
Coleman's family home on the 3200 block of North 6th Street
in Philadelphia during the early morning hours of October 9,
2004. Killed in the fire were Coleman's mother, Marcella
Coleman (age 54); Coleman's infant son, Damir Jenkins (15
months old); Marcella Coleman's niece, Tameka Nash (age 34),
and her daughter, Khadjah Nash (age 10); Marcella Coleman's
grandson, Tahj Porchea (age 12); and a family friend, Sean
Rodriguez (age 15). In a conversation secretly recorded by
court authorized wiretaps, Savage explained how witness
intimidation works, ``Without the witnesses, you don't have
no case . . . No witness, no crime.''
The witness intimidation problem is exacerbated by internet
sites, such as whosarat.com, which expose the identities of
witnesses and government informants. Gang members and
criminals are becoming more computer savvy. They use the
internet to find out who may be a cooperating witness by
accessing public court dockets. They also access other sites
to locate these individuals. With this information obtained
anonymously through the internet, gang members and other
criminals can easily threaten or harm witnesses, as well as
their family members.
It is imperative that we find a way to make people feel
safe if they step forward and provide information to law
enforcement. As Philadelphia Police Commissioner Charles H.
Ramsey testified at the Subcommittee hearing, ``the only way
we're going to deal with crime in communities is when the
community steps forward, but they have to feel comfortable in
doing so and know they have support.''
To better protect state witnesses from witness tampering
and witness retaliation, I am introducing today The State
Witness Protection Act of 2010, a bill that ensures that
state witnesses will receive the same protections
[[Page S701]]
from actions of intimidation and retaliation as federal
witnesses have under federal law. Making this a federal
offense and bringing in the FBI to investigate, as
Commissioner Ramsey testified, ``would make a tremendous
difference and make people think twice before they'' engaged
in witness intimidation He explained it this way--
I just think the whole environment or atmosphere when you
go into a Federal court versus a local court is just somewhat
different, and they [defendants] haven't been exposed to it
that often. I just think it has an impact in the feedback
I've gotten from people on both sides, whether it's another
law enforcement agency or from a person who's been in the
criminal justice system. They do not want to go into Federal
court. (Tr. At 16).
The bill, which tracks the language of 18 U.S.C.
Sec. Sec. 1512 and 1513, provides the same penalties as now
provided in federal court for witness tampering in state
court proceedings. For state court proceedings, the bill
makes it a federal offense to kill, physically harm, threaten
to physically harm, harass, or intimidate, or offer anything
of value to, a state court witness or victim if done--
with the intent to influence another person's testimony;
with the intent to induce another to withhold testimony or
records, alter or destroy evidence, evade legal process, or
be absent from a state proceeding if that person has been
summoned by legal process;
with the intent to hinder or prevent a person from
providing information to law enforcement; or
with the intent to retaliate against anyone for being a
witness or providing testimony or information to law
enforcement.
Federal jurisdiction is established by prosecuting only
cases where there are communications in furtherance of the
offense by mail, interstate or foreign commerce by any means,
including computer, interstate or foreign travel in
furtherance of the commission of the offense, or the use of
weapons which have been shipped or transported across state
lines. Any attempt or conspiracy to commit these same
offenses is also illegal and subject to the same penalties.
And finally, the bill provides for specific guideline
enhancements for all obstruction offenses.
The message must be sent loud and clear that serious
penalties will be imposed on those who dare to attempt to
obstruct justice in our country. The ``State Witness
Protection Act of 2010'' is a strong means of delivering that
necessary message.
____
S. 3017
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``State Witness Protection Act
of 2010''.
SEC. 2. PROTECTION OF STATE AND LOCAL WITNESSES.
(a) In General.--Chapter 73 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1522. State and local witness tampering and
retaliation
``(a) Definitions.--In this section--
``(1) the term `State official proceeding' means a
proceeding before a judge or court of a State or political
subdivision thereof; and
``(2) the term `physical force' has the meaning given the
term in section 1515.
``(b) Tampering and Retaliation.--It shall be unlawful, in
a circumstance described in subsection (c), for a person to
kill, attempt to kill, use physical force or the threat of
physical force against, harass, intimidate or attempt to
intimidate, or offer anything of value to, another
individual, with the intent to--
``(1) influence, delay, or prevent the testimony or
attendance of any person in a State official proceeding;
``(2) prevent the production of a record, document, or
other object, in a State official proceeding;
``(3) cause or induce any person to--
``(A) withhold testimony, or withhold a record, document,
or other object from a State official proceeding;
``(B) alter, destroy, mutilate, or conceal an object with
intent to impair the integrity or availability of the object
for use in a State official proceeding;
``(C) evade legal process summoning that person to appear
as a witness, or to produce a record, document or other
object in a State official proceeding; or
``(D) be absent from a State official proceeding to which
that person has been summoned by legal process;
``(4) hinder, delay, or prevent the communication by any
person to a law enforcement officer or judge of a State, or
political subdivision thereof, of information relating to the
violation or possible violation of a law of a State or
political subdivision thereof, or a violation of conditions
of probation, parole, or release pending judicial
proceedings; or
``(5) retaliate against any person for--
``(A) the attendance of a witness or party at a State
official proceeding, or any testimony given or any record,
document, or other object produced by a witness in a State
official proceeding; or
``(B) providing to a law enforcement officer any
information relating to the violation or possible violation
of a law of a State or political subdivision thereof, or a
violation of conditions of probation, supervised release,
parole, or release pending judicial proceedings.
``(c) Circumstances.--A circumstance described in this
subsection is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any person travels or is transported in interstate or
foreign commerce in the course of the commission of or in
furtherance of the commission of the offense; or
``(3) any weapon, including a firearm, shipped or
transported across State lines or in interstate or foreign
commerce is used in committing or in furtherance of the
commission of the offense.
``(d) Penalties.--
``(1) In general.--Any person that violates this section--
``(A) in the case of a killing, shall be punished as
provided under sections 1111 and 1112;
``(B) in the case of an attempt to murder, or the use or
attempted use of physical force against any person, shall be
fined under this title, or imprisoned for not more than 30
years, or both; and
``(C) in the case of any other violation of this section,
shall be fined under this title, imprisoned for not more than
20 years, or both.
``(2) Exception.--If the offense under this section occurs
in connection with a trial of a criminal case, the maximum
term of imprisonment that may be imposed for the offense
shall be the higher of--
``(A) the penalty described in paragraph (1); or
``(B) the maximum term that could have been imposed for any
offense charged in the criminal case.
``(3) Attempt and conspiracy.--Any person who attempts or
conspires to commit any offense under this section shall be
subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the
attempt or conspiracy.
``(e) Affirmative Defense.--It is an affirmative defense to
a prosecution under this section, which the defendant shall
prove by a preponderance of the evidence, that the conduct
committed by the defendant--
``(1) consisted solely of lawful conduct; and
``(2) that the sole intention of the defendant was to
encourage, induce, or cause the other person to testify
truthfully.
``(f) Pending Proceeding; Evidentiary Value.--For the
purposes of this section--
``(1) a State official proceeding need not be pending or
about to be instituted at the time of the offense; and
``(2) the testimony, or the record, document, or other
object obstructed, tampered, or retaliated against by the
defendant need not be admissible in evidence or free of a
claim of privilege.
``(g) Intent.--In a prosecution for an offense under this
section, the state of mind need not be proved with respect
to--
``(1) a State official proceeding before a judge, court,
magistrate judge, or grand jury being before a judge or court
of a State or political subdivision thereof;
``(2) a judge being a judge of a State or political
subdivision thereof; or
``(3) a law enforcement officer being an officer or
employee of the State or political subdivision thereof.
``(h) Venue.--A prosecution brought under this section may
be brought--
``(1) in the district in which the State official
proceeding (whether or not pending or about to be instituted)
was intended to be affected; or
``(2) in the district which the conduct constituting the
alleged offense occurred.''.
(b) Technical and Conforming Amendment.--The table of
contents for chapter 73 of title 18, United States Code, is
amended by adding at the end the following:
``1522. State and local witness tampering and retaliation.''.
SEC. 3. SENTENCING GUIDELINES ENHANCEMENT.
Pursuant to its authority under section 994 of title 28,
United States Code, and in accordance with this section, the
United States Sentencing Commission shall amend the Federal
Sentencing Guidelines to increase the guideline range for
Obstruction of Justice, Sec. 2J1.2, as follows--
(1) by 2 levels if the defendant threatened or harmed 1 or
more individuals on more than 1 occasion;
(2) by 2 levels if the defendant accepted or paid a bribe
or payoff as part of a scheme to obstruct justice;
(3) by 2 levels if the defendant destroyed or caused the
destruction of documents on a computer; and
(4) by 6 levels if the offense resulted in substantial
interference with the administration of justice.
______
By Mr. LIEBERMAN (for himself, Mr. Schumer, Mr. Merkley, and Mrs.
Gillibrand):
S. 3019. A bill to authorize funding for, and increase accessibility
to, the National Missing and Unidentified Persons System, to facilitate
data sharing between such system and the National Crime Information
Center database of
[[Page S702]]
the Federal Bureau of Investigation, to provide incentive grants to
help facilitate reporting to such systems, and for other purposes; to
the Committee on the Judiciary.
Mr. LIEBERMAN. Mr. President, I rise to speak about the Help Find the
Missing Act, otherwise known as Billy's Law, which I am introducing
today along with my colleagues, Senators Schumer, Gillibrand and
Merkley.
I was introduced to the issues Billy's Law addresses by two of my
constituents, Jan and Bill Smolinski, who have lived through a parent's
worst nightmare: the disappearance of their son.
On the afternoon of August 24, 2004, then-31-year-old Billy Smolinski
disappeared without a trace. He left behind a dog he loved and his
brandnew house; a truck with his keys and wallet still inside; and
parents who have spent every day since searching for him and praying
for his return. One moment he was there, asking his neighbors to look
after his dog for a few days, and the next he was gone without
explanation.
Jan and Bill Smolinski have spent countless hours working with law
enforcement to try to find Billy. Through that experience, they
discovered that we do a poor job managing data about missing adults.
The bill we are introducing today will help correct those shortcomings
so that families in similar situations can focus only on their missing
loved ones and not have to worry that their agony will be prolonged
simply because we fail to keep track of--and share--critical
identifying data.
Billy's Law does three things: It facilitates the sharing of data
about missing people between agencies; it requires law enforcement to
compile and track missing persons data that is not currently being
collected consistently; and it provides funding to improve, monitor,
and maintain that data.
It is my hope that no parent will ever have to experience what Jan
and Bill Smolinski are going through, and, as a parent, my heart truly
goes out to them. Passing Billy's Law will help give families of
missing adults confidence that we are doing everything we can to
carefully track the information necessary to locate their loved ones.
______
By Ms. SNOWE (for herself, Ms. Landrieu, Mr. Bond, and Mr.
Merkley):
S. 3020. A bill to direct the Administrator of the Small Business
Administration to reform and improve the HUBZone program for small
business concerns, and for other purposes; to the Committee on Small
Business and Entrepreneurship.
Ms. SNOWE. Mr. President, I rise today, along with Senators Landrieu,
Bond, and Merkley to introduce the Historically Underutilized Business
Zone, HUBZone, Improvement Act of 2010. This vital piece of bipartisan
legislation is similar to that which I introduced in the 110th
Congress, S. 3699. The purpose of the bill is to help ensure that only
eligible firms participate in the critical HUBZone program by requiring
that the Small Business Administration, SBA, implement Government
Accountability Office, GAO, recommendations for improving the
management, oversight and evaluation of the program.
As former Chair and now Ranking Member of the Senate Committee on
Small Business and Entrepreneurship, I have long championed critical
small business programs such as the HUBZone program, which provides
Federal contracting opportunities to small firms located in
economically distressed areas.
The program is devised to help stimulate economic development and job
creation. In these troubled economic times, a properly functioning
HUBZone program is essential for nation-wide economic recovery.
According to the SBA, as of October 2009, 21,222 certified businesses
have participated in the HUBZone program since its inception in 1997.
In fiscal year 2008, HUBZone firms were awarded approximately $10.1
billion in Federal contracts. And let there be no doubt--with the
Federal Government contracting for over $500 billion in goods and
services in fiscal year 2009 alone--we must have a robust and
trustworthy HUBZone program for small businesses to continue generating
jobs in our nation's most economically distressed communities.
The GAO has issued multiple reports detailing fraud and abuses within
the HUBZone program. Alarmingly, the GAO found that the mechanisms the
SBA uses to certify and monitor HUBZone firms provide limited assurance
that only eligible firms participate in the program. The GAO
specifically stated that the ``SBA's control weaknesses exposed the
government to fraud and abuse.'' The GAO also had concerns that the SBA
had no mechanisms to adequately assess program results.
The legislation I am introducing today would take immediate steps to
rectify the serious issues that GAO found. The bill requires the SBA to
implement the GAO recommendations resulting from the study and audits.
These include maintaining an accurate, correct and up-to-date map;
implementing policies that ensure that only eligible firms participate
in the program; employing appropriate technology to control costs and
maximize other benefits, such as uniformity, completeness,
simplification and efficiency; notifying the Congressional Small
Business Committees of any backlogs in applications and
recertifications with plans and timetables for eliminating the
backlogs; and implementing plans to assess the effectiveness of the
HUBZone program.
Moreover, the Federal Government must strive to continue to provide
maximum practicable contracting opportunities to those who are
legitimate HUBZone firms. I am dismayed by the myriad ways that
government departments and agencies have time and again egregiously
failed to meet most of their statutory small business contracting
goals. I am alarmed that only one Federal small business contracting
program--the Small Disadvantaged Business program--has met its
statutory goal, and that the three other small business goaling
programs have all fallen drastically short. In fiscal year 2008, the
Federal Government met only 2.34 percent of its 3 percent government-
wide goal for the HUBZone program. Even worse, the Federal Government
missed meeting its overall goal for small business contracting by
almost 2 percent, depriving small businesses of over $10 billion.
I am confident that this legislation will require the changes
necessary to eliminate fraud while paving the way for the Federal
Government to maximize the use of this contracting vehicle. In turn,
qualified HUBZone firms will provide the essential job creation and
economic development necessary in their respective communities. The
HUBZone program is a tremendous tool for replacing lost jobs across all
industry sectors in distressed geographic areas, and clearly, this
program should be better utilized.
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. 3020
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 ``HUBZone Improvement Act of
2010''.
SEC. 2. DEFINITIONS.
In this Act--
(1) the terms ``Administration'' and ``Administrator'' mean
the Small Business Administration and the Administrator
thereof, respectively;
(2) the terms ``HUBZone'' and ``HUBZone small business
concern'' and ``HUBZone map'' have the meanings given those
terms in section 3(p) of the Small Business Act (15 U.S.C.
632(p)), as amended by this Act; and
(3) the term ``recertification'' means a determination by
the Administrator that a business concern that was previously
determined to be a qualified HUBZone small business concern
is a qualified HUBZone small business concern under section
3(p)(5) of the Small Business Act (15 U.S.C. 632(p)(5)).
SEC. 3. PURPOSE; FINDINGS.
(a) Purpose.--The purpose of this Act is to reform and
improve the HUBZone program of the Administration.
(b) Findings.--Congress finds that--
(1) the HUBZone program was established under the HUBZone
Act of 1997 (Public Law 105-135; 111 Stat. 2627) to stimulate
economic development through increased employment and capital
investment by providing Federal contracting preferences to
small business concerns in those areas, including inner
cities and rural counties, that have low household incomes,
high unemployment, and suffered from a lack of investment;
and
(2) according to the Government Accountability Office, the
weakness in the oversight
[[Page S703]]
of the HUBZone program by the Administration has exposed the
Government to fraud and abuse.
SEC. 4. HUBZONE IMPROVEMENTS.
The Administrator shall--
(1) ensure the HUBZone map--
(A) is accurate and up-to date; and
(B) revised as new data is made available to maintain the
accuracy and currency of the HUBZone map;
(2) implement policies for ensuring that only HUBZone small
business concerns determined to be qualified under section
3(p)(5) of the Small Business Act (15 U.S.C. 632(p)(5)) are
participating in the HUBZone program, including through the
appropriate use of technology to control costs and maximize,
among other benefits, uniformity, completeness, simplicity,
and efficiency;
(3) submit to the Committee on Small Business and
Entrepreneurship of the Senate and the Committee on Small
Business of the House of Representatives a report regarding
any application to be designated as a HUBZone small business
concern or for recertification for which the Administrator
has not made a determination as of the date that is 60 days
after the date on which the application was submitted or
initiated, which shall include a plan and timetable for
ensuring the timely processing of the applications; and
(4) develop measures and implement plans to assess the
effectiveness of the HUBZone program that--
(A) require the identification of a baseline point in time
to allow the assessment of economic development under the
HUBZone program, including creating additional jobs; and
(B) take into account--
(i) the economic characteristics of the HUBZone; and
(ii) contracts being counted under multiple socioeconomic
subcategories.
SEC. 5. EMPLOYMENT PERCENTAGE.
Section 3(p) of the Small Business Act (15 U.S.C. 632(p))
is amended--
(1) in paragraph (5), by adding at the end the following:
``(E) Employment percentage during interim period.--
``(i) Definition.--In this subparagraph, the term `interim
period' means the period beginning on the date on which the
Administrator determines that a HUBZone small business
concern is qualified under subparagraph (A) and ending on the
day before the date on which a contract under the HUBZone
program for which the HUBZone small business concern submits
a bid is awarded.
``(ii) Interim period.--During the interim period, the
Administrator may not determine that the HUBZone small
business is not qualified under subparagraph (A) based on a
failure to meet the applicable employment percentage under
subparagraph (A)(i)(I), unless the HUBZone small business
concern--
``(I) has not attempted to maintain the applicable
employment percentage under subparagraph (A)(i)(I); or
``(II) does not meet the applicable employment percentage--
``(aa) on the date on which the HUBZone small business
concern submits a bid for a contract under the HUBZone
program; or
``(bb) on the date on which the HUBZone small business
concern is awarded a contract under the HUBZone program.'';
and
(2) by adding at the end the following:
``(8) Hubzone program.--The term `HUBZone program' means
the program established under section 31.
``(9) Hubzone map.--The term `HUBZone map' means the map
used by the Administration to identify HUBZones.''.
SEC. 6. REDESIGNATED AREAS.
Section 3(p)(4)(C)(i) of the Small Business Act (15 U.S.C.
632(p)(4)(C)(i)) is amended to read as follows:
``(i) 3 years after the first date on which the
Administrator publishes a HUBZone map that is based on the
results from the 2010 decennial census; or''.
______
By Mr. FEINGOLD (for himself and Mr. Ensign):
S. 3021. A bill to amend the Public Utility Regulatory Policies Act
of 1978 to authorize the Secretary of Energy to promulgate regulations
to allow electric utilities to use renewable energy to comply with any
Federal renewable electricity standard, and for other purposes; to the
Committee on Energy and Natural Resources.
Mr. FEINGOLD. Mr. President, today I am introducing the Support
Renewable Energy Act of 2010 with my colleague, Senator Ensign. This
bill would modify the Renewable Electricity Standard currently drafted
in the American Clean Energy Leadership Act to ensure that all forms of
renewable energy qualify.
I am pleased that the Senate is again considering the implementation
of a Renewable Electricity Standard that will encourage the development
and deployment of new and existing renewable energy technologies.
However, as the proposed Renewable Electricity Standard is currently
drafted, only electricity-producing renewable technologies would
qualify. This would exclude direct use renewable energy technologies
that displace the need for electricity, rather than produce
electricity.
Our legislation would modify the definition of renewable energy as it
applies to the draft Renewable Electricity Standard to include
customer-sited renewable energy equipment. Specific examples of these
direct use technologies are solar water heating, solar space heating
and cooling, solar daylight and light-pipe technology, biogas, and
ground source geothermal heat pumps. These technologies can be used in
homes and businesses to provide light, heating, and cooling directly--
without the need for electricity from the grid. This legislation will
allow utilities to generate renewable energy credits equal to the
electricity or thermal energy displaced by direct use renewable energy
technologies in order to meet a Renewable Electricity Standard.
In addition to the reduced stress on our overburdened electricity
transmission grid, the incentivized production and installation of
these renewable technologies would spur the growth of green,
sustainable jobs. One example of the potential for job creation was
provided to me by Orion Energy Systems in my home State of Wisconsin.
Orion manufactures light-pipes, which captures natural light on a roof
and transfers that light through a pipe to a ceiling, where it is
diffused to light a room, like a traditional light bulb. Because light
pipes uses solar energy directly to produce light, rather than generate
electricity, this innovative technology would not qualify as renewable
energy under the draft Renewable Electricity Standard.
Orion has already retrofitted approximately 5,000 facilities with
improved lighting technology nationwide. With about 400 lighting
fixtures on average, if these same facilities decided to upgrade to the
light-pipe technology it would take between 6 million and 10 million
man-hours to install. These would be jobs for roofers and carpenters at
a time when the construction industry is badly in need of work.
Direct use renewable energy technologies have significant
environmental benefits. The energy savings from retrofitting these
facilities with the light-pipe would amount to a savings of between 915
and 1,934 gigawatts of electricity per year, which amounts to the
energy equivalent of 343 to 725 million tons of coal that would not
have to be burned, avoiding the release of between 0.6 and 1.28 million
tons of carbon dioxide from entering the atmosphere. In addition, the
users of this technology will save money on their electric bill, which
could then be used for other things, like hiring new employees or
increasing salaries.
This is just one company and one of the many technologies that would
qualify for the expanded Renewable Electricity Standard under our
legislation. This is clearly a win-win-win situation for jobs, the
facilities that install the technologies and save on energy costs, and
for the environment.
Direct use renewable energy technology is cost-effective, can be
deployed locally, requires no new transmission infrastructure, and can
be utilized in areas throughout the country that cannot sustain a
commercial-scale power generation facility from other renewable energy
sources. Furthermore, it will create much needed American jobs in both
manufacturing and construction. I encourage my colleagues to support
the Support Renewable Energy Act of 2010.
______
By Mr. McCAIN (for himself, Mr. Lieberman, Mr. Kyl, Mr. Durbin,
Mr. Bayh, Mr. Graham, Mrs. Gillibrand, Mr. Thune, Mr. Casey,
Mr. Cornyn, Ms. Collins, Mr. Kaufman, Mr. Vitter, Mr.
Brownback, and Mr. Levin):
S. 3022. A bill to impose sanctions on persons who are complicit in
human rights abuses committed against citizens of Iran or their family
members after the June 12, 2009, elections in Iran, and for other
purposes; to the Committee on Banking, Housing, and Urban Affairs.
Mr. McCAIN. Mr. President, February 11, 2010, was the 31st
anniversary of the Islamic Republic of Iran. For most Iranians, the
Islamic Republic is the only government they have ever known, and
unfortunately, it is a record that many would rather forget--
[[Page S704]]
31 years of economic potential lost and the resources of a great and
proud nation stolen by a corrupt ruling elite; 31 years of a regime
that puts its own selfish interests and those of foreign terrorist
groups ahead of the needs of the Iranian people; 31 years of justice
denied, freedom curtailed, and dignity trampled.
In recent months, the world has watched in awe as hundreds of
thousands of Iranians have said ``enough,'' and demanded better for
themselves. They have taken to the streets and the Internet, risking
the violent reprisal of a regime without conscience, in order to insist
on their universal human rights. In television news clips and YouTube
videos, in Twitter updates and countless online exchanges, the world
has seen the naked oppression of the Iranian regime and its masked
agents.
We have watched as peaceful Iranian demonstrators for human rights
have been beaten, and shot--even murdered--in the streets of cities
across Iran.
We have watched as Iranian men and women--many not more than young
boys and girls--have been rounded up in their homes and dormitories,
and hauled away unlawfully to face torture and other abuses in the
darkest corners of the country, where the eyes of the international
community struggle to see.
Just a few months ago, we watched as a young woman named Neda was
shot in broad daylight by agents of the Iranian government. And as that
young woman bled to death in the street, it became clear to me and many
others that this was the beginning of the end of the Islamic Republic.
After 31 years, that day cannot come soon enough, but how and when it
does is up to the Iranian people.
This struggle continues in Iran. On February 11, many Iranians took
to the streets again to demonstrate peacefully for freedom and justice.
Again, many were beaten. Again, many were detained unlawfully. Again,
many were no doubt tortured--and worse. The world has watched these
abuses long enough. Now the world must act. It is long past time for
democratic, law-abiding nations to stand up together, to speak with one
voice, and to show these courageous Iranian human rights advocates that
the free world is on their side. The recent statement between the U.S.
and the European Union supporting human rights in Iran is a welcome
development, and I hope to see more and more such joint actions.
It is also long past time for the U.N. Security Council to impose the
crippling sanctions on the Iranian government that have been promised
for so long. As that negotiation drags on, individual countries should
not refrain from taking their own individual actions to impose pressure
on the rulers of Iran for failing to abide by their own international
agreements, both security agreements and human rights agreements. In
that vein, I was pleased to see the White House recently announce a new
set of sanctions against four Iranian entities and one individual
active in Iran's nuclear program. I hope there is a lot more where that
came from.
I do not wish, however, to confine our sanctions effort only to those
persons in Iran who threaten our security and that of our allies,
either through their support for terrorism or Iran's weapons programs.
I also want to bring the full force of America's economic power to bear
against those in Iran who threaten that country's peaceful human rights
and democracy activists. That is why, just a few weeks ago, I sought to
introduce an amendment to the Comprehensive Iran Sanctions,
Accountability, and Divestment Act, which would impose targeted
sanctions on persons in Iran who violate the human rights of their
fellow citizens.
Building on that earlier effort, today I am introducing, together
with my good friend and colleague Senator Joe Lieberman, the Iran Human
Rights Sanctions Act, which is co-sponsored by a broad bipartisan group
of U.S. Senators.
This bill has two parts.
First, it would require the President to compile a public list of
individuals in Iran who, starting with the presidential election last
June, are complicit in human rights violations against Iranian citizens
and their families, no matter where in the world those abuses occur. I
want to stress: This would be a public list, posted for all the world
to see on the websites of the State and Treasury Departments. We will
shine a light on the names of Iran's human rights abusers, and we will
make them famous for their crimes.
Second, this bill would then ban these Iranian individuals from
receiving U.S. visas, and impose on them the full battery of sanctions
under the International Emergency Economic Powers Act. That means,
freezing any assets and blocking any property they hold under U.S.
jurisdiction, and ending all their financial transactions with U.S.
banks and other entities. If passed into law, this would be the first
time the U.S. Government has ever imposed punitive measures against
persons in Iran because of their human rights violations.
In short, under this bill, Iranian human rights abusers would be
completely cut off from the global reach of the U.S. financial system,
and that would send a powerful signal to every country, company, and
bank in the world that they should think twice about doing business
with the oppressors of the Iranian people.
Over the past year, the President has made every effort to extend a
hand to the Iranian government--to seek to overcome 31 years of painful
history, and to search for common ground on matters of common interest.
Unfortunately, the President's generosity has been met defiantly, again
and again, with the clenched fist of Iran's rulers--a fist that is
increasingly stained with the blood of the Iranian people. It should
now be clear that the Iranian regime has no desire to meet its
international responsibilities and every desire to use all the tools of
violence and repression at its disposal to crush the peaceful
aspirations of Iran's citizens.
Faced with this disturbing reality, America must lead an
international effort to support the human rights of the Iranian people,
and to put that effort at the center of our policy toward Iran. We must
encourage our international partners, especially our European allies,
to do the same, and to impose their own targeted sanctions on Iran's
human rights abusers. This is not about picking winners in an internal
Iranian matter. It is about standing up for the universal values we
hold dear, and championing the cause of all who seek to secure those
values for themselves.
The Iran Human Rights Sanctions Act is an important start of this
effort, and I encourage my colleagues in Congress to move quickly and
pass it into law.
______
By Ms. SNOWE (for herself and Mr. Pryor):
S. 3024. A bill to ensure that the creation of jobs by small
businesses is considered during the Federal legislative and rulemaking
process, and for other purposes; to the Committee on Homeland Security
and Governmental Affairs.
Ms. SNOWE. Mr. President, I rise today, with my colleague Senator
Pryor, to introduce the Job Impact Analysis Act of 2010, a bipartisan
measure that will help ensure that the Federal Government--both
Congress and agencies of the executive branch--fully considers small
business job creation in the bills we pass here in Congress and in the
rules and regulations that agencies promulgate.
As the former Chair and now Ranking member of the Senate Committee on
Small Business and Entrepreneurship, I believe there is no more urgent
imperative than job creation in our country. With 25,000 additional
unemployed in my State of Maine alone, since the recession began in
2007, and twenty-three million Americans unemployed or underemployed,
it is more paramount than ever that everything we do must focus like a
laser on jumpstarting our economy. Furthermore, the fastest route to
recovery runs through Main Street small businesses, which over the past
15 years have generated 64 percent of all net new jobs in this country,
and so we must foster an entrepreneurial environment where small
businesses can take risks and invest in the future to preserve and
create more jobs.
The legislation we are introducing today would help make sure that in
whatever measure we are debating--whether it be health care reform, a
jobs
[[Page S705]]
bill, or financial services overhaul--that we strive to discern whether
it contributes to creating a climate in which our smallest enterprises
and entrepreneurs cannot only survive, but thrive. It would amend the
Congressional Budget and Impoundment Control Act of 1974 to direct the
Congressional Budget Office, CBO, to the extent practicable, to
estimate in a ``job impact statement'' the potential job creation or
job loss attributable to each bill or joint resolution reported by a
congressional committee that exceeds $5 billion in costs. For years we
have had environmental impact statements, and so in 2010, I do not
think it is too much to ask, where are the job impact statements?
As our Nation continues to reel from the worst set of economic
circumstances since World War II, Congress must focus on job creation,
and we must begin by ensuring all economic factors--including potential
small business job creation and job loss--are fully considered in
debate of every bill that we consider in the Senate. It is clear that
Washington has ignored the will of the people for far too long. At a
time when the Nation is struggling to dig out of the deepest recession
since the Great Depression, we must ensure that our country once again
brings to bear the kind of ingenuity, creativity, and innovation that
made America and our free-market economy the greatest and most powerful
on earth. I believe that a job impact statement attached to every bill
with costs over $5 billion would provide a powerful incentive for
Congress to focus its efforts where they belong and help Congress focus
on what matters to the American people these days--job creation.
In addition, onerous regulations are crushing the entrepreneurial
spirit of America's small businesses. In 2009, there were close to
70,000 pages in the Federal Register, which chronicles new regulations
by the government. Furthermore, according to research by the Small
Business Administration's, SBA's, Office of Advocacy, the annual cost
of Federal regulations totals $1.1 trillion, and small firms bear a
disproportionate burden, paying approximately 45 percent more per
employee in annual regulatory compliance costs than larger firms. Small
firms also spend twice as much on tax compliance than their larger
counterparts.
So our legislation includes several targeted regulatory reforms that
would help to ensure that Federal agencies fully consider small
business implications during the rulemaking process. The reforms in our
bill are based on what we introduced in the Regulatory Flexibility
Reform Act in the 109th Congress and the Independent Office of Advocacy
and Small Business Regulatory Reform Act of 2008, from the 110th
Congress. Most of these reforms have been supported by a host of small
business stakeholders, including the U.S. Chamber of Commerce, the
National Federation of Independent Business, the National Small
Business Association, the National Association for the Self-Employed,
Women Impacting Public Policy, the National Black Chamber of Commerce,
Small Business Legislative Council, and the U.S. Hispanic Chamber of
Commerce.
Our measure would amend the Regulatory Flexibility Act, RFA, the
seminal legislation, enacted in 1980, which requires agencies to
consider the impact of their regulatory proposals on small businesses,
to analyze effective alternatives that minimize small business impact,
and to make their analyses available for public comment. The RFA
requires federal agencies to conduct a small business analysis any time
a proposed Federal rule would impose a ``significant impact on a
substantial number of small businesses.'' Unfortunately, there remain a
number of loopholes in the RFA that undermine its effectiveness in
reducing these regulatory burdens.
Our legislation would close loopholes in this process, while also
ensuring that Federal agencies consider potential job creation and job
loss during the rulemaking process. In far too many cases, Federal
agencies promulgate rules and regulations without adequately addressing
the economic impact on small businesses. Under our legislation agencies
must consider the ``indirect'' effects of an ``economic impact.'' Rules
with indirect effects are currently exempt from RFA coverage according
to well-established case law. This has serious consequences for small
businesses. It means that Federal agencies can avoid the various
analyses required under the RFA by either requiring the states to
regulate small entities or regulating an industry so rigorously that it
has a negative trickle down impact on other industries. For example,
rules can regulate a handful of large manufacturers in the same
industry. Yet, a foreseeable, indirect effect of these rules--not
presently considered under RFA analyses--is that small distributors
would no longer have the right to sell the product produced by the
larger manufacturers.
The RFA has already saved billions of dollars for small businesses by
forcing government regulators to be sensitive to their direct impact on
small firms. If billions of dollars can be filtered out of direct
regulatory mandates upon small business while improving workplace
safety and environmental conditions, even more can be saved by
filtering out unnecessary or duplicative costs to those small
businesses indirectly impacted by regulation. Those dollars would be
better spent by the businesses hiring more employees or providing
existing employees with greater benefits, and would also help to
prevent unintended job loss through regulatory requirements.
Our legislation also requires Federal agencies to consider comments
provided by the SBA's Office of Advocacy, which has historically not
received the public attention it deserves. In case after case, it has
been the last, best hope for small businesses faced with burdensome,
duplicative and nonsensical Federal regulations. Our legislation would
also amend the RFA to include a provision for agencies to specifically
respond to comments filed by the Chief Counsel for Advocacy. Codifying
this necessary change would ensure that agencies give the proper
deference to the Office of Advocacy, and to the comments and concerns
of small businesses. This is a straightforward and simple reform that
could have major benefits.
In addition, our measure would also clarify the circumstances for
when ``periodic review'' under the RFA is required. Many questions have
arisen as a result of ambiguous language in the RFA that has caused
some confusion as to what rules require periodic review, and when.
Under our bill, periodic review, with a focus on potential job creation
or job loss, would be required for all final rules that would impose a
significant impact on a substantial number of small businesses.
Agencies would be required to review all 10-year-old rules every year
to avoid confusion over which rules to review. In addition, agencies
would be required to review rules every 10 years and not just the first
10 years.
Finally, our bill would ensure the statutory and budgetary
independence of the SBA Office of Advocacy, a key office that is
intended to be the independent voice for small business within the
Federal Government. It is charged with the duty of representing the
views and interests of small businesses before other Federal agencies,
and developing proposals for changing government policies to help small
businesses. These roles can sometimes come into conflict.
Our bill would resolve such conflicts in favor of the small
businesses that rely on the Chief Counsel and the Office of Advocacy to
be a fully independent advocate within the Executive Branch. The bill
would help to reinforce a clear mandate that the Office of Advocacy
must fight on behalf of small businesses, regardless of the position
taken on critical issues by the administration. Funding for the Office
of Advocacy currently comes from the ``Salaries and Expense Account''
of the SBA's budget. Staffing is allocated by the SBA Administrator to
the Office of Advocacy from the overall staff allocation for the
Agency. In 1990, there were 70 full-time employees working on behalf of
small businesses in the Office of Advocacy. Today, there are fewer than
50. The independence and effectiveness of the Office is potentially
diminished when the Office of Advocacy staff is reduced, at the
discretion of the administrator.
To address this problem, our legislation would build a firewall to
minimize political intrusion into the management of day-to-day
operations of the
[[Page S706]]
Office of Advocacy similar to the one that protects Inspectors General
in other agencies. The bill would require the Federal budget to include
a separate account for the Office of Advocacy drawn directly from the
General Fund of the Treasury. No longer would its funds come from the
general operating account of the SBA. This will free the Chief Counsel
for Advocacy from having to seek approval from the SBA Administrator to
hire staff for the Office of Advocacy.
Our bill would leave unchanged current law that allows the Chief
Counsel to hire individuals critical to the mission of the Office of
Advocacy without going through the normal competitive procedures
directed by Federal law and the Office of Personnel Management. This
long-standing special hiring authority, which is limited only to
employees within the Office of Advocacy, is beneficial because it
allows the Chief Counsel to hire quickly those persons who can best
assist the Office in responding to changing issues and problems
confronting small businesses.
This non-controversial, bipartisan legislation is absolutely
necessary. I urge my colleagues to support my bill so we can ensure
that our Nation's small businesses and their employees are provided
with much needed relief.
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. 3024
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Job Impact
Analysis Act of 2010''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Job impact statement for reported bills and joint resolutions.
Sec. 4. Clarification and expansion of rules covered by the Regulatory
Flexibility Act.
Sec. 5. Requirements providing for more detailed analyses.
Sec. 6. Periodic review of rules.
Sec. 7. Office of Advocacy.
Sec. 8. Clerical amendments.
SEC. 2. FINDINGS.
Congress finds the following:
(1) A vibrant and growing small business sector is critical
to the recovery of the economy of the United States.
(2) Regulations designed for application to large-scale
entities have been applied uniformly to small businesses and
other small entities, sometimes inhibiting the ability of
small entities to create new jobs.
(3) Uniform Federal regulatory and reporting requirements
in many instances have imposed on small businesses and other
small entities unnecessary and disproportionately burdensome
demands, including legal, accounting, and consulting costs,
thereby threatening the viability of small entities and the
ability of small entities to compete and create new jobs in a
global marketplace.
(4) Since 1980, Federal agencies have been required to
recognize and take account of the differences in the scale
and resources of regulated entities, but in many instances
have failed to do so.
(5) In 2009, there were nearly 70,000 pages in the Federal
Register, and, according to research by the Office of
Advocacy of the Small Business Administration, the annual
cost of Federal regulations totals $1,100,000,000,000. Small
firms bear a disproportionate burden, paying approximately 45
percent, or $7,647, more per employee than larger firms in
annual regulatory compliance costs.
(6) The Federal Government should fully consider the costs,
including indirect economic impacts and the potential for job
creation and job loss, of proposed rules.
(7) It is the intention of Congress to amend chapter 6 of
title 5, United States Code, to ensure that all impacts,
including foreseeable indirect effects, of proposed and final
rules are considered by agencies during the rulemaking
process and that the agencies assess a full range of
alternatives that will limit adverse economic consequences,
enhance economic benefits, and fully address potential job
creation or job loss.
(8) To the maximum extent practicable, the Director of the
Congressional Budget Office should, in certain estimates the
Director prepares with respect to bills or joint resolutions
reported by congressional committees, estimate the potential
job creation or job loss attributable to the bills or joint
resolutions.
SEC. 3. JOB IMPACT STATEMENT FOR REPORTED BILLS AND JOINT
RESOLUTIONS.
Section 424 of the Congressional Budget and Impoundment
Control Act of 1974 (2 U.S.C. 658c) is amended--
(1) in subsection (a)(2)--
(A) in subparagraph (B), by striking ``and'' at the end;
(B) in subparagraph (C), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following:
``(D) if the Director estimates that the total amount of
direct costs of all Federal intergovernmental mandates in the
bill or joint resolution will equal or exceed $5,000,000,000
(adjusted annually for inflation), to the extent practicable,
the potential job creation or job loss in State, local, and
tribal governments as a result of the mandates.''; and
(2) in subsection (b)(2)--
(A) in subparagraph (A), by striking ``and'' at the end;
(B) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following:
``(C) if the Director estimates that the total amount of
direct costs of all Federal private sector mandates in the
bill or joint resolution will equal or exceed $5,000,000,000
(adjusted annually for inflation), to the extent practicable,
the potential job creation or job loss in the private sector
as a result of the mandates.''.
SEC. 4. CLARIFICATION AND EXPANSION OF RULES COVERED BY THE
REGULATORY FLEXIBILITY ACT.
Section 601 of title 5, United States Code, is amended--
(1) in paragraph (6), by striking ``and'' at the end;
(2) in paragraph (7)(B), by striking the period at the end
and inserting a semicolon;
(3) in paragraph (8)--
(A) by striking ``Recordkeeping requirement.--The'' and
inserting ``the''; and
(B) by striking the period at the end and inserting ``;
and''; and
(4) by adding at the end the following:
``(9) the term `economic impact' means, with respect to a
proposed or final rule--
``(A) any direct economic effect of the rule on small
entities; and
``(B) any indirect economic effect on small entities,
including potential job creation or job loss, that is
reasonably foreseeable and that results from the rule,
without regard to whether small entities are directly
regulated by the rule.''.
SEC. 5. REQUIREMENTS PROVIDING FOR MORE DETAILED ANALYSES.
(a) Initial Regulatory Flexibility Analysis.--Section 603
of title 5, United States Code, is amended--
(1) by striking subsection (b) and inserting the following:
``(b) Each initial regulatory flexibility analysis required
under this section shall contain a detailed statement--
``(1) describing the reasons why action by the agency is
being considered;
``(2) describing the objectives of, and legal basis for,
the proposed rule;
``(3) estimating the number and type of small entities to
which the proposed rule will apply;
``(4) describing the projected reporting, recordkeeping,
and other compliance requirements of the proposed rule,
including an estimate of the classes of small entities which
will be subject to the requirement and the type of
professional skills necessary for preparation of the report
and record;
``(5) describing all relevant Federal rules which may
duplicate, overlap, or conflict with the proposed rule, or
the reasons why such a description could not be provided; and
``(6) estimating the additional cumulative economic impact
of the proposed rule on small entities, including job
creation and employment by small entities, beyond that
already imposed on the class of small entities by the agency,
or the reasons why such an estimate is not available.''; and
(2) by adding at the end the following:
``(d) An agency shall notify the Chief Counsel for Advocacy
of the Small Business Administration of any draft rules that
may have a significant economic impact on a substantial
number of small entities either--
``(1) when the agency submits a draft rule to the Office of
Information and Regulatory Affairs at the Office of
Management and Budget under Executive Order 12866, if that
order requires such submission; or
``(2) if no submission to the Office of Information and
Regulatory Affairs is so required, at a reasonable time prior
to publication of the rule by the agency.''.
(b) Final Regulatory Flexibility Analysis.--
(1) In general.--Section 604(a) of title 5, United States
Code, is amended--
(A) by inserting ``detailed'' before ``description'' each
place it appears;
(B) in paragraph (1), by striking ``succinct'';
(C) in paragraph (2)--
(i) by striking ``summary'' each place it appears and
inserting ``statement''; and
(ii) by inserting ``(or certification of the proposed rule
under section 605(b))'' after ``initial regulatory
flexibility analysis'';
(D) in paragraph (3), by striking ``an explanation'' and
inserting ``a detailed explanation'';
(E) by redesignating paragraphs (3), (4), and (5) as
paragraphs (4), (5), and (6), respectively; and
(F) by inserting after paragraph (2) the following:
``(3) the response of the agency to any comments filed by
the Chief Counsel for Advocacy of the Small Business
Administration in response to the proposed rule, and a
detailed statement of any change made to the proposed rule in
the final rule as a result of the comments;''.
(2) Publication of analysis on web site, etc.--Section
604(b) of title 5, United States Code, is amended to read as
follows:
[[Page S707]]
``(b) The agency shall--
``(1) make copies of the final regulatory flexibility
analysis available to the public, including by publishing the
entire final regulatory flexibility analysis on the Web site
of the agency; and
``(2) publish in the Federal Register the final regulatory
flexibility analysis, or a summary of the analysis that
includes the telephone number, mailing address, and address
of the Web site where the complete final regulatory
flexibility analysis may be obtained.''.
(c) Cross-References to Other Analyses.--Section 605(a) of
title 5, United States Code, is amended to read as follows:
``(a) A Federal agency shall be deemed to have satisfied a
requirement regarding the content of a regulatory flexibility
agenda or regulatory flexibility analysis under section 602,
603, or 604, if the Federal agency provides in the agenda or
regulatory flexibility analysis a cross-reference to the
specific portion of an agenda or analysis that is required by
another law and that satisfies the requirement.''.
(d) Certifications.--The second sentence of section 605(b)
of title 5, United States Code, is amended by striking
``statement providing the factual'' and inserting ``detailed
statement providing the factual and legal''.
(e) Quantification Requirements.--Section 607 of title 5,
United States Code, is amended to read as follows:
``Sec. 607. Quantification requirements
``In complying with sections 603 and 604, an agency shall
provide--
``(1) a quantifiable or numerical description of the
effects of the proposed or final rule, including an estimate
of the potential for job creation or job loss, and
alternatives to the proposed or final rule; or
``(2) a more general descriptive statement and a detailed
statement explaining why quantification is not practicable or
reliable.''.
SEC. 6. PERIODIC REVIEW OF RULES.
Section 610 of title 5, United States Code, is amended to
read as follows:
``Sec. 610. Periodic review of rules
``(a) Not later than 180 days after the enactment of the
Job Impact Analysis Act of 2010, each agency shall publish in
the Federal Register and place on its Web site a plan for the
periodic review of rules issued by the agency that the head
of the agency determines has a significant economic impact on
a substantial number of small entities. Such determination
shall be made without regard to whether the agency performed
an analysis under section 604. The purpose of the review
shall be to determine whether such rules should be continued
without change, or should be amended or rescinded, consistent
with the stated objectives of applicable statutes, to
minimize any significant adverse economic impacts on a
substantial number of small entities (including an estimate
of any adverse impacts on job creation and employment by
small entities). Such plan may be amended by the agency at
any time by publishing the revision in the Federal Register
and subsequently placing the amended plan on the Web site of
the agency.
``(b) The plan shall provide for the review of all such
agency rules existing on the date of the enactment of the Job
Impact Analysis Act of 2010 within 10 years after the date of
publication of the plan in the Federal Register and every 10
years thereafter and for review of rules adopted after the
date of enactment of the Job Impact Analysis Act of 2010
within 10 years after the publication of the final rule in
the Federal Register and every 10 years thereafter. If the
head of the agency determines that completion of the review
of existing rules is not feasible by the established date,
the head of the agency shall so certify in a statement
published in the Federal Register and may extend the review
for not longer than 2 years after publication of notice of
extension in the Federal Register. Such certification and
notice shall be sent to the Chief Counsel for Advocacy and
Congress.
``(c) Each agency shall annually submit a report regarding
the results of its review pursuant to such plan to Congress
and, in the case of agencies other than independent
regulatory agencies (as defined in section 3502(5) of title
44, United States Code), to the Administrator of the Office
of Information and Regulatory Affairs of the Office of
Management and Budget. Such report shall include the
identification of any rule with respect to which the head of
the agency made a determination of infeasibility under
paragraph (5) or (6) of subsection (d) and a detailed
explanation of the reasons for such determination.
``(d) In reviewing rules under such plan, the agency shall
consider--
``(1) the continued need for the rule;
``(2) the nature of complaints received by the agency from
small entities concerning the rule;
``(3) comments by the Regulatory Enforcement Ombudsman and
the Chief Counsel for Advocacy;
``(4) the complexity of the rule;
``(5) the extent to which the rule overlaps, duplicates, or
conflicts with other Federal rules and, unless the head of
the agency determines it to be infeasible, State and local
rules;
``(6) the contribution of the rule to the cumulative
economic impact of all Federal rules on the class of small
entities affected by the rule, unless the head of the agency
determines that such calculations cannot be made and reports
that determination in the annual report required under
subsection (c);
``(7) the length of time since the rule has been evaluated,
or the degree to which technology, economic conditions, or
other factors have changed in the area affected by the rule;
and
``(8) the current impact of the rule, including--
``(A) the estimated number of small entities to which the
rule will apply;
``(B) the estimated number of small business jobs that will
be lost or created by the rule; and
``(C) the projected reporting, recordkeeping and other
compliance requirements of the proposed rule, including--
``(i) an estimate of the classes of small entities that
will be subject to the requirement; and
``(ii) the type of professional skills necessary for
preparation of the report or record.
``(e) The agency shall publish in the Federal Register and
on the Web site of the agency a list of rules to be reviewed
pursuant to such plan. Such publication shall include a brief
description of the rule, the reason why the agency determined
that it has a significant economic impact on a substantial
number of small entities (without regard to whether the
agency had prepared a final regulatory flexibility analysis
for the rule), and request comments from the public, the
Chief Counsel for Advocacy, and the Regulatory Enforcement
Ombudsman concerning the enforcement of the rule.''.
SEC. 7. OFFICE OF ADVOCACY.
(a) In General.--Section 203 of Public Law 94-305 (15
U.S.C. 634c) is amended--
(1) in paragraph (4), by striking ``and'' at the end;
(2) in paragraph (5), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(6) carry out the responsibilities of the Office of
Advocacy under chapter 6 of title 5, United States Code.''.
(b) Budgetary Line Item and Authorization of
Appropriations.--Title II of Public Law 94-305 (15 U.S.C.
634a et seq.) is amended by striking section 207 and
inserting the following:
``SEC. 207. BUDGETARY LINE ITEM AND AUTHORIZATION OF
APPROPRIATIONS.
``(a) Appropriation Requests.--Each budget of the United
States Government submitted by the President under section
1105 of title 31, United States Code, shall include a
separate statement of the amount of appropriations requested
for the Office of Advocacy of the Small Business
Administration, which shall be designated in a separate
account in the General Fund of the Treasury.
``(b) Administrative Operations.--The Administrator of the
Small Business Administration shall provide the Office of
Advocacy with appropriate and adequate office space at
central and field office locations, together with such
equipment, operating budget, and communications facilities
and services as may be necessary, and shall provide necessary
maintenance services for such offices and the equipment and
facilities located in such offices.
``(c) Authorization of Appropriations.--There are
authorized to be appropriated such sums as are necessary to
carry out this title. Any amount appropriated under this
subsection shall remain available, without fiscal year
limitation, until expended.''.
SEC. 8. CLERICAL AMENDMENTS.
(a) Heading.--The heading of section 605 of title 5, United
States Code, is amended to read as follows:
``Sec. 605. Incorporations by reference and certifications''.
(b) Table of Sections.--The table of sections for chapter 6
of title 5, United States Code, is amended--
(1) by striking the item relating to section 605 and
inserting the following:
``605. Incorporations by reference and certifications.''; and
(2) by striking the item relating to section 607 and
inserting the following:
``607. Quantification requirements.''.
______
By Mr. MERKLEY:
S. 3025. A bill to amend the Federal Water Pollution Control Act to
provide assistance for programs and activities to protect and restore
the water quality of the Columbia River Basin, and for other purposes;
to the Committee on Environment and Public Works.
Mr. MERKLEY. 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. 3025
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 ``Columbia River Restoration
Act of 2010''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Columbia River is the largest river in the Pacific
Northwest and the fourth largest river in the United States
by volume. The river is 1,243 miles long, and its drainage
basin includes 259,000 square miles, extending into 7 States
and British Columbia, Canada, and including all or part of 5
national parks,
[[Page S708]]
the Columbia River Gorge National Scenic Area, and the Hells
Canyon National Recreation Area.
(2) The Columbia River Basin and its tributaries provide
significant ecological and economic benefits to the Pacific
Northwest and the entire United States. Traditionally, the
Columbia River Basin and its tributaries were the largest
salmon producing river system in the world, with annual
returns peaking at as many as 30 million fish. The Columbia
River drainage basin includes more than 6 million acres of
irrigated agricultural land, and its 14 hydroelectric dams,
combined with additional dams on its tributaries, produce
more hydroelectric power than any other North American river.
(3) The Lower Columbia River Estuary stretches 146 miles
from the Bonneville Dam to the mouth of the Pacific Ocean,
and much of this area is degraded. Polychlorinated biphenyls
(PCBs) in salmon tissue and polycyclic aromatic hydrocarbons
(PAHs) in salmon prey exceed estimated thresholds for delayed
mortality, increased disease susceptibility, and reduced
growth. Legacy contaminants (DDT and PCBs) banned in the
1970s are still detected in river water, sediments, and
juvenile Chinook salmon. Several pesticides have been
detected, including atrazine and simazine, which can affect
salmon behavior or act as hormone disruptors. Emerging
contaminants, such as hormone disruptors from pharmaceutical
and personal care products, have been found in river water
and juvenile male salmon. These contaminants may impair
salmon growth, health, and reproduction.
(4) The Middle and Upper Columbia River Basin includes
1,050 miles of the mainstem Columbia River upstream of the
Bonneville Dam, including the 1,040 miles of its largest
tributary, the Snake River, and all of the tributaries to
both rivers. The Environmental Protection Agency's (EPA's)
Columbia River Basin Fish Contaminant Survey detected the
presence of 92 priority pollutants, including PCBs, dioxins,
furans, arsenic, mercury, and DDE (a breakdown product of
DDT), in fish that are consumed by the Confederated Tribes of
the Warm Springs, the Confederated Tribes and Bands of the
Yakama Nation, the Confederated Tribes of the Umatilla Indian
Reservation, and the Nez Perce Tribe, as well as by other
people consuming fish throughout the Columbia River Basin. A
fish consumption survey by the Columbia River Intertribal
Fish Commission showed that tribal members were eating 6 to
11 times more fish than EPA's estimated national average. The
nuclear and toxic contamination at the Hanford Nuclear
Reservation presents an ongoing risk of contamination in the
Middle Columbia Basin. Sampling of sediments by the EPA in
2004 documented widespread presence of toxic flame retardants
known as polyrominated diphenyl ethers.
(5) Contamination of the Middle and Upper Columbia River
Basin has a direct impact on water quality and habitat
quality in the Lower Columbia River Estuary. Investments in
habitat restoration and toxics reduction in the Middle and
Upper Columbia River Basin can have significant benefits for
fish and wildlife throughout the entire basin.
(6) Together with the Governors of Oregon and Washington,
the EPA created the Lower Columbia River Estuary Partnership
(Estuary Partnership) in 1995 to provide regional
coordination to focus on the lower river, to advance the
science of the ecosystem, and to deliver environmental
results. The Estuary Partnership was formed within the
National Estuary Program and provides a structure for
organization and collaboration to implement Federal
priorities. The Estuary Partnership includes all key Federal
agencies as part of its management and governing structure,
including the EPA, the United States Geological Survey
(USGS), the National Oceanic and Atmospheric Administration
(NOAA), the Army Corps of Engineers, the Forest Service, and
tribal, State, and local governments.
(7) The Columbia River Basin was designated by the EPA as
an ``Estuary of National Significance'' in 1995 and a ``Large
Aquatic Ecosystem'' in 2006.
(8) The Estuary Partnership has developed an unparalleled
2-State, public and private partnership, including
unprecedented collaborative efforts among key Federal
partners, including the EPA, the NOAA, the USGS, and the Army
Corps of Engineers to advance Federal goals, and the Estuary
Partnership and its partners have gathered scientific
information and compiled data, and have made significant
gains in habitat protection and environmental education.
(9) Despite these advances, further degradation exists and
contaminants persist in the Columbia River Basin and are
impairing the health of fish, wildlife, and humans. Degraded
conditions in the river exacerbate the challenges already
faced by the 13 species of salmon and steelhead in the
Columbia River Basin listed as threatened or endangered under
the Endangered Species Act of 1973.
(10) The ``Estuary Partnership Comprehensive Conservation
and Management Plan'' (1999), the ``Northwest Power and
Conservation Council Lower Columbia Province Plan'' (2004,
amended 2008), the draft ``NOAA Columbia River Estuary
Recovery Module for Salmon and Steelhead'' (2010), the States
of Oregon, Idaho, and Washington Recovery Plans, the
``Biological Opinion for the Federal Columbia River Power
System (FCRPS)'' (2000, 2004, 2008), and the ``EPA Columbia
Basin State of the River Report for Toxics'' (2009)
consistently identify habitat loss and toxic contamination as
threats to fish and wildlife.
SEC. 3. COLUMBIA RIVER.
Title I of the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.) is amended by adding at the end the
following:
``SEC. 123. COLUMBIA RIVER.
``(a) Definitions.--In this section, the following
definitions apply:
``(1) Action plan.--The term `Action Plan' means the
`Columbia River Basin Toxics Reduction Action Plan' developed
by the Environmental Protection Agency and the Columbia River
Toxics Reduction Working Group in 2010, including any
amendments thereto.
``(2) Comprehensive plan.--The term `Comprehensive Plan'
means the `Estuary Partnership Comprehensive Conservation and
Management Plan' adopted by the Environmental Protection
Agency and the Governors of Oregon and Washington on October
20, 1999, under section 320, including any amendments
thereto.
``(3) Estuary partnership.--The term `Estuary Partnership'
means the Lower Columbia River Estuary Partnership, an entity
created by the States of Oregon and Washington and the
Environmental Protection Agency under section 320.
``(4) Lower columbia river and estuary.--The term `Lower
Columbia River and Estuary' means the region consisting of
the lower 146 miles of the Columbia River Basin from the
Bonneville Dam to the Pacific Ocean.
``(5) Middle and upper columbia river basin.--The term
`Middle and Upper Columbia River Basin' means the region
consisting of the United States portion of the Columbia River
Basin above Bonneville Dam, including the Snake River (and
its tributaries) and other tributaries of the Columbia River.
``(6) Team leader.--The term `Team Leader' means the Team
Leader appointed under subsection (b).
``(b) Program Team.--
``(1) Establishment.--The Administrator shall establish in
the Environmental Protection Agency a Columbia River Program
Team. The Team shall be located within the Oregon Operations
Office for Region 10 of the Environmental Protection Agency.
``(2) Appointment of team leader.--The Administrator shall
appoint a Team Leader, who, by reason of management
experience and technical expertise relating to the Columbia
River Basin, shall be highly qualified to support the
development and implementation of projects, programs, and
studies necessary to implement the Action Plan.
``(3) Delegation of authority; staffing.--The Administrator
shall delegate to the Team Leader such authority and provide
such additional staff as may be necessary to carry out this
section.
``(c) Duties.--
``(1) In general.--In carrying out this section, the
Administrator, acting through the Team Leader, shall--
``(A) assist and support the implementation of the Action
Plan and the Comprehensive Plan;
``(B) coordinate the implementation of the Action Plan and
the Comprehensive Plan, and the development of any updates to
those plans, with programs and projects in the Middle and
Upper Columbia River Basin;
``(C) make such other updates to the Action Plan and the
Comprehensive Plan as the Administrator, in consultation with
appropriate Federal agencies, the States of Oregon,
Washington, and Idaho, tribal governments, local governments,
and other public and private interests in the Columbia River
Basin, considers appropriate;
``(D) provide funding and make grants for implementation of
the Action Plan and the Comprehensive Plan and projects,
programs, and studies consistent with the priorities of the
Action Plan and the Comprehensive Plan;
``(E) promote innovative methodologies and technologies
that are cost effective and consistent with the identified
goals and objectives of the Action Plan and the Comprehensive
Plan and the permitting processes of the Environmental
Protection Agency;
``(F) coordinate the major functions of the Federal
Government related to the implementation of the Action Plan
and the Comprehensive Plan, including projects, programs, and
studies for--
``(i) water quality improvements;
``(ii) toxics reduction and monitoring;
``(iii) wetland, riverine, and estuary restoration and
protection;
``(iv) nearshore and endangered species recovery; and
``(v) stewardship and environmental education;
``(G) coordinate the research and planning projects
authorized under this section with Federal agencies, State
agencies, tribal governments, universities, and the Estuary
Partnership, including conducting or commissioning studies
considered necessary for strengthened implementation of the
Action Plan and the Comprehensive Plan;
``(H) track progress toward meeting the identified goals
and objectives of the Action Plan and the Comprehensive Plan
by--
``(i) implementing and supporting a project, program, and
monitoring system consistent with performance-based ecosystem
standards and management; and
``(ii) coordinating, managing, and reporting environmental
data related to the Action Plan and the Comprehensive Plan in
a manner consistent with methodologies utilized
[[Page S709]]
by the Estuary Partnership, including making such data and
reports on such data available to the public, including on
the Internet, in a timely fashion; and
``(I) collect and make available to the public, including
on the Internet, publications and other forms of information
relating to the environmental quality of the Lower Columbia
River and Estuary.
``(2) Implementation methods.--The Administrator, acting
through the Team Leader, may enter into interagency
agreements, make intergovernmental personnel appointments,
provide funding, make grants, and utilize other available
methods in carrying out the duties under this subsection.
``(d) Report.--Not later than one year after the date of
enactment of this section, and biennially thereafter, the
Administrator shall submit to Congress a report that--
``(1) summarizes the progress made in implementing the
Action Plan and the Comprehensive Plan and the progress made
toward achieving the identified goals and objectives
described in such plans;
``(2) summarizes any modifications to the Action Plan and
the Comprehensive Plan made in the period immediately
preceding the report;
``(3) incorporates specific recommendations concerning the
implementation of the Action Plan and the Comprehensive Plan;
and
``(4) summarizes the roles and progress of each Federal
agency that has jurisdiction in the Columbia River Basin
toward meeting the identified goals and objectives of the
Action Plan and the Comprehensive Plan.
``(e) Implementation of Action Plan and Comprehensive
Plan.--
``(1) In general.--The Administrator, acting through the
Team Leader and in consultation with the Estuary Partnership,
shall carry out projects, programs, and studies to implement
the Action Plan and the Comprehensive Plan.
``(2) Priority projects, programs, and studies.--The
Administrator may give special emphasis to projects,
programs, and studies that are identified as priorities by
the Estuary Partnership in the Action Plan and the
Comprehensive Plan.
``(3) Grants.--
``(A) In general.--The Administrator, acting through the
Team Leader, is authorized to make grants for projects,
programs, and studies to implement the Action Plan and the
Comprehensive Plan.
``(B) Allocations.--In making grants using funds
appropriated to carry out this paragraph for a fiscal year,
the Administrator, acting through the Team Leader, shall
use--
``(i) not less than 40 percent of the funds to make a
comprehensive grant to the Estuary Partnership to manage
implementation of the Comprehensive Plan;
``(ii) not less than 50 percent of the funds to make
grants, as allocated by the Team Leader, for projects,
programs and studies prioritized in the Action Plan
throughout the Columbia River Basin, and for other
coordinated projects, programs, and studies in the Middle and
Upper Columbia River Basin; and
``(iii) not more than 5 percent of the funds for project
management, administration, and reporting.
``(4) Federal share.--The Federal share of the costs for
which a grant is made under this section shall be 75 percent,
except that the Administrator may increase the Federal share
in such circumstances as the Administrator determines
appropriate.
``(f) Annual Budget Plan.--The President, as part of the
President's annual budget submission to Congress under
section 1105(a) of title 31, United States Code, shall submit
information regarding each Federal agency involved in
protection and restoration of the Columbia River Basin,
including--
``(1) an interagency crosscut budget that displays for each
Federal agency--
``(A) the amounts obligated in the preceding fiscal year
for protection and restoration projects, programs, and
studies relating to the Columbia River Basin;
``(B) the estimated budget for the current fiscal year for
protection and restoration projects, programs, and studies
relating to the Columbia River Basin; and
``(C) the proposed budget for protection and restoration
projects, programs, and studies relating to the Columbia
River Basin; and
``(2) a description and assessment of the Federal role in
the development and implementation of the Action Plan and the
Comprehensive Plan and the specific role of each Federal
agency involved in protection and restoration of the Columbia
River Basin, including specific projects, programs, and
studies conducted or planned to achieve the identified goals
and objectives of the Action Plan and the Comprehensive Plan.
``(g) Authorization of Appropriations.--There is authorized
to be appropriated to the Administrator to carry out this
section $40,000,000 for each of fiscal years 2011 through
2016. Such sums shall remain available until expended.''.
____________________