[Congressional Record Volume 156, Number 30 (Thursday, March 4, 2010)]
[Senate]
[Pages S1171-S1182]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. LEVIN (for himself, Mr. Voinovich, Ms. Klobuchar, Mr. 
        Brown, of Ohio, Mr. Franken, Ms. Stabenow, and Mr. Durbin):
  S. 3073. A bill to amend the Federal Water Pollution Control Act to 
protect and restore the Great Lakes; to the Committee on Environment 
and Public Works.
  Mr. LEVIN. Today, I introduced the Great Lakes Ecosystem Protection 
Act as co-chair of the Great Lakes Task Force with Senator George 
Voinovich and several of our colleagues here in the Senate and in the 
House. This bill is important for our efforts to protect and restore 
the Great Lakes now and for future generations. The Great Lakes are 
vital not only to Michigan but to the nation. Roughly \1/10\ of the 
U.S. population lives in the Great Lakes basin and depends daily on the 
lakes. The Great Lakes provide drinking water to 40 million people in 
the U.S. and Canada. They provide the largest recreational resource for 
their 8 neighboring States. They form the largest body of freshwater in 
the world, containing roughly 18 percent of the world's total. Only the 
polar ice caps contain more freshwater. They are critical for our 
economy by helping move natural resources to the factory and to move 
products to market.
  While the environmental protections that were put in place in the 
early 1970s have helped the Great Lakes make strides toward recovery, a 
2003 GAO report made clear that there is much work still to do. That 
report stated: ``Despite early success in improving conditions in the 
Great Lakes Basin, significant environmental challenges remain, 
including increased threats from invasive species and cleanup of areas 
contaminated with toxic substances that pose human health threats.'' 
More recently, many scientists reported that the Great Lakes are 
exhibiting signs of stress due to a combination of sources, including 
toxic contaminants, invasive species, nutrient loading, shoreline and 
upland land use changes, and hydrologic modifications. A 2005 report 
from a group of Great Lakes scientific experts states that ``historical 
sources of stress have combined with new ones to reach a tipping point, 
the point at which ecosystem-level changes occur rapidly and 
unexpectedly, confounding the traditional relationships between sources 
of stress and the expected ecosystem response.''
  Asian carp represents a massive threat and a number of important 
actions are required to deal with it. The zebra mussel, an aquatic 
invasive species, caused $3 billion in economic damage to the Great 
Lakes from 1993 to 2003. In 2000, 7 people died after pathogens entered 
the Walkerton, Ontario drinking water supply from the lakes. In May of 
2004, more than 10 billion gallons of raw sewage and storm water were 
dumped into the Great Lakes. In that same year, more than 1,850 beach 
closures in the Great Lakes. Each summer, Lake Erie develops a 6,300 
square mile dead zone. There is no appreciable natural reproduction of 
lake trout in the lower four lakes. More than half of the Great Lakes 
region's original wetlands have been lost, along with 60 percent of the 
native forests. Wildlife habitat has been destroyed, diminishing 
opportunities necessary for fishing, hunting and other forms of outdoor 
recreation.
  These problems have been well known for several years, and this bill 
is an effort to address those problems. First, the bill authorizes the 
President's Great Lakes Restoration Initiative, a multi-agency effort, 
which provides the needed federal funds to federal programs as well as 
non-federal partners through grants.
  Building on past success, there are a number of programs that need to 
be authorized and reauthorized in federal law. For instance, the bill 
authorizes the Great Lakes Interagency Task Force, established by 
Executive Order in 2004, so that the many federal agencies operating in 
the Great Lakes will coordinate with each other. Restoring the Great 
Lakes involves many stakeholders including the Federal Government, 
states, cities, tribes and others, and Congress needs to be sure that 
the Federal agency efforts are in order.
  The bill also reauthorizes and expands the Great Lakes Legacy program 
which has been extremely successful and has cleaned up about 900,000 
cubic yards of contaminated sediments at Areas of Concern throughout 
the Great Lakes. This is a partnership program which requires a non-
federal cost-share to address the legacy of contaminated sediment in 
our region. The Legacy program expires at the end of 2010.
  The bill reauthorizes the EPA's Great Lakes National Program Office 
which has been and will continue to be a key to moving forward with 
Great Lakes protection and restoration. This office has been the lead 
in renegotiating the Great Lakes Water Quality Agreement, implementing 
the Great Lakes Legacy program, and implementing its own grant program.
  Finally, the Great Lakes region needs a process for advising the EPA 
and other Federal agencies on Great Lakes matters. While there have 
been various advisory groups that have been pulled together over the 
years, there has never been a standing advisory entity, and that has 
been a gap in the governance and management of the Great Lakes. This 
bill authorizes a new advisory group to provide expertise to the EPA on 
goals and priorities for Great Lakes restoration and protection.
  The Great Lakes are a unique American treasure. We are but their 
temporary stewards. We must be good stewards by doing all we can to 
ensure that the Federal Government meets its ongoing obligation to 
protect and restore the Great Lakes.
                                 ______
                                 
      By Mr. BAUCUS (for himself and Mr. Tester):
  S. 3075. A bill to withdraw certain Federal land and interests in 
that land from location, entry, and patent under

[[Page S1172]]

the mining laws and disposition under the mineral and geothermal 
leasing laws; to the Committee on Energy and Natural Resources.
  Mr. BAUCUS. Mr. President, today I rise to talk about one of the most 
magnificent, the most inspiring places on Earth, the Flathead region of 
Montana. The landscape in this area is so vast, so unique, it is hard 
to put into words. But let me feebly attempt to describe the aura of 
colors you see as the Sun rises over the deep blue of Lake McDonald. 
Words cannot capture the joyful screams of families shooting down the 
Middle Fork of the Flathead through rapids with names like ``Bone 
Crusher'' and ``Could be Trouble.''
  Words cannot do justice to the awe that comes from almost touching 
Montana's legendary Big Sky at the top of Heavens Peak. The Flathead 
region, there is nothing like it. It is the crown of the continent. It 
is God's country. It is Montana.
  There is one particular area of this region that holds a special 
place in my heart; that is, the North Fork of the Flathead River. When 
I was a freshman Member of the House of Representatives, I took a hike 
with my friends, Jack Stanford and Ric Hauer, to the top of Mount 
Harding.
  Mount Harding is a little ways from the Flathead River, but this hike 
captured the feelings I have for the area. Thirty-five years ago, I 
still remember that hike, and I am not alone.
  Similar to everyone who ventures into the Flathead, every Montanan, 
every American, every Canadian, everyone who happens to be touched by 
the beauty of this place could not help but be stunned by the beauty of 
a place carved by glaciers a millennia ago and still untouched by 
modern development.
  That day on the Flathead, each of us knew we must do everything we 
could to protect this one-of-a-kind landscape for our children and our 
children' children. I would say, at that time, 35 years ago as a Member 
of the House, very proudly enacted the first multiyear environmental 
impact statement baseline study so we could assess what future impacts 
might be in the area, whether it was Federal, State, private or from 
British Columbia, just north, whatever it might be, so we knew what we 
had to do to protect the area.
  That promise has not always been easy to keep. Back then, I was so 
determined to protect this area, I flew up to Toronto and met with a 
fellow named Ron Sadler. Rod Sadler was president of Sage Creek.
  I was like a young lawyer, armed with tons of questions and 
depositions, and kept asking him--I kept asking him all these 
questions: What is your intention here? What is your intention there? 
This is such a special place. He is like: Why are you asking me all 
those questions?
  I explained: This is so special, I am going to do everything I can to 
protect it. The reason is because of the potential mining across the 
border, the place where all the water and the pollution would flow 
south into the North Fork of the Flathead. All the environmental 
degradation from that flowed south, but all the economic benefit would 
flow north. So, for me, I will not let this happen. I said to myself: I 
am going to protect this as much as I possibly can.

  For decades, the Flathead has been threatened by mining proposals in 
British Columbia. Over the years, coal mining, coalbed methane 
extraction, and gold mining have all been successfully beaten back. It 
has been a coordinated effort, one I am very proud to be a part of, to 
help protect the area. We have been working so hard.
  Finally, the Premier of British Columbia made a historic decision. He 
persuaded his Parliament to pass a resolution to protect and prevent 
any mining development in the North Fork. He made that on the eve of 
the Olympics. The Olympics--Mount Whistler and that part, the southern 
part of British Columbia, he made that decision just before the 
Olympics. I was overjoyed. I called him up, and I said: Mr. Premier, I 
cannot tell you how happy I am that you have done this. It means so 
much to Montanans, and we will do our part too.
  That is when I told him my plan. My plan, the legislation Senator 
Tester and I introduced today, will ban future mining, oil and gas, and 
coalbed methane development on the American side of the border; that 
is, in the Flathead National Forest, a portion of the North Fork 
watershed which is over 90 percent federally owned. Senator Tester and 
I have also pledged to work to retire the existing leases to protect 
this area once and for all.
  Many folks know about a book written by Norman McLean. Norman McLean 
wrote a story about Montana entitled ``A River Runs Through It.'' 
Though McLean's story focuses on another Montana river, the Blackfoot, 
also very special, I think the final line from his book resonantes here 
as well. This is what McLean wrote:

       Eventually, all things merge into one, and a river runs 
     through it. The river was cut by the world's great flood, and 
     runs over rocks from the basement of time. . . . I am haunted 
     by waters.

  I am very proud to be here today to introduce the North Fork 
Watershed Protect Act and ask my colleagues to join me in preserving 
these waters and the land that surrounds them so that every generation 
across the country, across the world, has the privilege of being so 
haunted by Montana's waters.
                                 ______
                                 
      By Mrs. FEINSTEIN (for herself, Mrs. Boxer, Mr. Whitehouse, Mr. 
        Reed, and Mr. Sanders):
  S. 3078. A bill to provide for the establishment of a Health 
Insurance Rate Authority to establish limits on premium rating, and for 
other purposes; to the Committee on Health, Education, Labor, and 
Pensions.
  Mrs. FEINSTEIN. Mr. President, I rise to introduce legislation to 
create a Health Insurance Rate Authority and rate review process to 
protect American consumers from unfair health insurance rate increases.
  This legislation is based on an amendment I filed during the health 
reform debate. While it was not included in the reform legislation that 
passed the Senate, I strongly believe consumers need additional 
protections from insurance company abuses now.
  I am pleased that President Obama has included it in his health 
reform proposal, and I look forward to continuing to work with the 
administration to see that this bill becomes law.
  This bill ensures that all American consumers are protected by a rate 
review process, not just those in states with aggressive laws.
  This legislation requires companies to submit justifications for 
unreasonable increases in premiums, using a process that will be 
established by the Secretary, in conjunction with States.
  The bill gives the Secretary of HHS authority to deny or modify 
premium increases or other rate increases, like deductibles, that are 
found to be unjustified. State Insurance Commissioners will retain this 
power in states in which they have sufficient authority and capability.
  To help the Secretary with this process, the legislation establishes 
a Health Insurance Rate Authority as an advisory body for all the 
Secretary's rate review responsibilities.
  Health insurance companies continue to demonstrate their willingness 
to slap consumers with astronomical increases in their health insurance 
rates.
  Anthem Blue Cross has notified thousands of Californians that they 
will face rate increases of as much as 39 percent. Meanwhile, 
WellPoint, the corporate parent of Anthem Blue Cross, earned a $4.7 
billion profit in 2009.
  I find this unbelievable. Imagine the typical family, or individual, 
trying to find the money to pay 39 percent more for health care 
coverage. Especially during these difficult economic times, with so 
much uncertainty. Meanwhile, the health insurance company is doing 
better than ever.
  I would like to share a few of the letters and comments I have 
received from Californians that vividly describe what these increases 
mean to them.
  Arthur Hirsch, 63, and his wife Eileen have had Blue Cross for 30 
years. They live in Laguna Beach and own a small business. They 
recently received notice that their monthly premiums would increase 
from $787 per month to $1,035 per month. Arthur said he was told that 
he could raise his annual deductible to $5,000 or higher to keep the 
premium increases down. But he said he fears he is stuck with the 
policy. He said: ``I can't leave my assets and my family uncovered. If 
something happens . . . well that's what insurance is about.''
  A Monterey, CA couple recently found out their premiums with Anthem

[[Page S1173]]

Blue Cross will increase 36 percent--from $734 a month to $998 a month. 
They own an antique print business. The economy has hurt sales--their 
2008 gross household income was $42,000, and they don't expect their 
income will increase much in 2009 or 2010. More than 25 percent of 
their household income goes toward premiums--far more than their 
mortgage. They are wondering if they should go into debt, use the 
equity in their home or withdraw money from their retirement accounts 
to pay for the rate hikes. Because of pre-existing conditions, the 
woman is a breast cancer survivor, they don't believe they can get a 
more affordable policy elsewhere.
  A family of four from Pacific Palisades, California, has a $5,000 per 
person deductible. They pay $917 per month premiums for the family--
$11,000 per year. Their insurance plus out of pocket expenses were more 
than 25 percent of the family's gross income for each of the past 2 
years and no member of the family ever satisfied the deductible. They 
just received notice that their premium will go up 38 percent, to 
$1,263 per month. Anthem offered this family another deal: increase 
premium payments just 10 percent to $1,011 a month if the family agrees 
to an increased deductible of $7,500 per person. The father in the 
family hasn't had a checkup in 6 years. He's 56 years old.
  This is not how our system should function.
  In some States, insurance commissioners have the authority to review 
health insurance rates and increases, and block the rates that are 
found to be unjustified. According to a 2008 Families USA report, 33 
States have some form of a prior approval process for premium 
increases.
  The same report describes several notable successes among states that 
use this process, including: Regulators in North Dakota were able to 
reduce 37 percent of the proposed rate increases filed by insurers.
  Maryland used their State laws to block a 46 percent premium increase 
after a company charged artificially low rates for 2 years. The 
decision was upheld in court.
  New Hampshire regulators were able to reduce a proposed 100 percent 
rate increase to 12.5 percent.
  But in other States, including California, insurance commissioners do 
not have this ability. Instead, my State's insurance commissioner has 
had to ask Anthem/Blue Cross to delay its proposed increase in 
premiums. He has no authority to order this delay.
  Some States have laws like this on the books, but do not have 
sufficient resources to review all the rate changes that insurance 
companies propose.
  Consumers deserve full protection from unfair rate increases, no 
matter where they live.
  This legislation ensures that all Americans have some level of basic 
protection. The bill is based in part on a provision included in the 
Senate's version of health reform legislation, which required insurance 
companies to submit justifications and explain increases in premiums. 
They must submit these justifications to the Secretary of Health and 
Human Services, and they must make these justifications available on 
their website.
  The bill asks the National Association of Insurance Commissioners to 
produce a report, detailing the rate review laws and capabilities in 
all 50 States. The Secretary of HHS will then use these findings to 
determine which States have the authority and capability to undertake 
sufficient rate reviews to protect consumers.
  In States where Insurance Commissioners have authority to review 
rates, they will continue to do so.
  In States without sufficient authority or resources, the Secretary of 
HHS will review rates, and take any appropriate action to deny unfair 
requests.
  This could mean blocking unjustified rate increases, or requiring 
rebates, if an unfair increase is already in effect.
  This will provide all American consumers with another layer of 
protection from an unfair premium increase.
  The amendment would also require the Secretary of Health and Human 
Services to establish a Health Insurance Rate Authority as part of the 
process in the bill that enables her to monitor premium costs.
  The Rate Authority would advise the Secretary on insurance rate 
review and would be composed of seven officials that represent the full 
scope of the health care system including: at least two consumers; at 
least one medical professional; and one representative of the medical 
insurance industry.
  The remaining members would be experts in health economics, actuarial 
science, or other sectors of the health care system.
  The Rate Authority will also issue an annual report, providing 
American consumers with basic information about how insurance companies 
are behaving in the market. It will examine premium increases by State, 
as well as medical loss ratios, reserves and solvency of companies, and 
other relevant behaviors.
  This data will give consumers better information, enabling them to 
make better choices and avoid purchasing plans from companies that do 
not provide them the best value for their dollar.
  This concern about premium increases stems from the fact that we are 
the only industrialized nation that relies heavily on a for-profit 
medical insurance industry to provide basic health care. I believe, 
fundamentally, that all medical insurance should be not for profit.
  The industry is focused on profits, not patients. It is heavily 
concentrated, leaving consumers with few alternatives when their 
premiums do increase.
  As of 2007, just two carriers--WellPoint and UnitedHealth Group--had 
gained control of 36 percent of the national market for commercial 
health insurance.
  Since 1998, there have been more than 400 mergers of health insurance 
companies, as larger carriers have purchased, absorbed, and enveloped 
smaller competitors.
  In 2004 and 2005 alone, this industry had 28 mergers, valued at more 
than $53 billion. That is more merger activity in health insurance than 
in the 8 previous years combined.
  Today, according to a study by the American Medical Association, more 
than 94 percent of American health insurance markets are highly 
concentrated, as characterized by U.S. Department of Justice 
guidelines. This means these companies could raise premiums or reduce 
benefits with little fear that consumers will end their contracts and 
move to a more competitive carrier.
  In my State of California just two companies, WellPoint and Kaiser 
Permanente, control more than 58 percent of the market. In Los Angeles, 
the top two carriers controlled 62 percent of the market as of 2008.
  Record levels of market concentration have helped generate a record 
level of profit increases.
  Between 2000 and 2007, profits at 10 of the largest publicly-traded 
health insurance companies soared 428 percent--from $2.4 billion in 
2000 to $12.9 billion in 2007.
  The CEOs at these companies took in record earnings. In 2007, these 
10 CEOs made a combined $118.6 million.
  The CEO of CIGNA took home $25.8 million.
  The CEO of Aetna took home $23 million.
  The CEO of UnitedHealth took home $13.2 million and the CEO of 
WellPoint took home $9.1 million.
  Even last year, a time of enormous economic distress for average 
Americans, was a good year for the health insurance industry. According 
to Health Care for America Now!, the 5 largest health insurers--
WellPoint, United Health, Humana, Cigna, Aetna--saw profits increase 56 
percent from 2008 to 2009, from $7.7 billion to $12.1 billion. Only 
Aetna saw their profits decrease.
  Yet we see insurance companies like Anthem/Blue Cross, owned by Well 
Point, increasing consumer premiums.
  Frankly, I would go further than this legislation if I could: I 
believe the health insurance industry should be non-profit. There is no 
reason that any company or shareholder should make a penny off of basic 
health care coverage for our citizens.
  But we do have a system that heavily relies on for-profit insurance 
companies. Regardless of the outcome of the broader debate on health 
care reform, that is unlikely to change.
  So this bill becomes very necessary. Premiums are increasing every 
day, and people in many states have no recourse, and no way to know if 
a particular increase is unfair.

[[Page S1174]]

  This cannot continue. 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. 3078

       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 Insurance Rate 
     Authority Act of 2010''.

     SEC. 2. ENSURING THAT CONSUMERS GET VALUE FOR THEIR DOLLARS.

       (a) In General.--Part C of title XXVII of the Public Health 
     Service Act (42 U.S.C. 300gg-91 et seq.) is amended by adding 
     at the end the following:

     ``SEC. 2793. ENSURING THAT CONSUMERS GET VALUE FOR THEIR 
                   DOLLARS.

       ``(a) Initial Rate Review Process.--
       ``(1) In general.--
       ``(A) Establishment.--The Secretary, in conjunction with 
     States, shall establish a uniform process for the review, 
     beginning with the 2011 plan year, of potentially 
     unreasonable increases in rates for health insurance 
     coverage, which shall include premiums.
       ``(B) Electronic reporting.--The process established under 
     subparagraph (A) shall include an electronic reporting system 
     established by the Secretary through which health insurance 
     issuers shall--
       ``(i) report to the Secretary and State insurance 
     commissioners the information requested by the Secretary 
     pursuant to this subsection; and
       ``(ii) submit data to the uniform data collection system in 
     accordance with paragraph (6)(A).
       ``(C) Authority of states.--Nothing in subparagraph (A) or 
     (B) shall be construed to prohibit a State from imposing 
     additional requirements on health insurance issuers with 
     respect to increases in rates for health insurance coverage, 
     including with respect to reporting information to a State.
       ``(2) Justification and disclosure.--The process 
     established under paragraph (1) shall require health 
     insurance issuers to submit to the Secretary and the relevant 
     State a justification for a potentially unreasonable rate 
     increase prior to the implementation of the increase. Such 
     issuers shall prominently post such information on their 
     Internet websites. The Secretary shall ensure the public 
     disclosure of information on such increases and 
     justifications for all health insurance issuers.
       ``(3) Health insurance rate authority.--
       ``(A) In general.--The Secretary shall establish a Health 
     Insurance Rate Authority (referred to in this paragraph as 
     the `Authority') to be composed of 7 members to be appointed 
     by the Secretary, of which--
       ``(i) at least 2 members shall be a consumer advocate with 
     expertise in the insurance industry;
       ``(ii) at least 1 member shall be an individual who is a 
     medical professional;
       ``(iii) at least 1 member shall be a representative of 
     health insurance issuers; and
       ``(iv) such remaining members shall be individuals who are 
     recognized for their expertise in health finance and 
     economics, actuarial science, health facility management, 
     health plans and integrated delivery systems, reimbursement 
     of health facilities, and other related fields, who provide 
     broad geographic representation and a balance between urban 
     and rural members.
       ``(B) Role.--In addition to the other duties of the 
     Authority set forth in this subsection, the Authority shall 
     advise and make recommendations to the Secretary concerning 
     the Secretary's duties under this subsection.
       ``(4) Corrective action for unreasonable rate increases.--
       ``(A) In general.--Pursuant to the procedures set forth in 
     this paragraph, the Secretary or the relevant State insurance 
     commissioner shall--
       ``(i) in accordance with the process established under 
     paragraph (1), review potentially unreasonable increases in 
     rates and determine whether such increases are unreasonable; 
     and
       ``(ii) take action to ensure that any rate increase found 
     to be unreasonable under clause (i) is corrected, through 
     mechanisms including--

       ``(I) denial of the rate increase;
       ``(II) modification of the rate increase;
       ``(III) ordering rebates to consumers; or
       ``(IV) any other actions that correct for the unreasonable 
     increase.

       ``(B) Required report; definition.--The Secretary shall 
     ensure that, not later than 6 months after the date of 
     enactment of this section, the National Association of 
     Insurance Commissioners (referred to in this section as the 
     `Association'), in conjunction with States, or other 
     appropriate body, will provide to the Secretary and the 
     Authority--
       ``(i) a report on--

       ``(I) State authority to review rates and take corrective 
     action in each insurance market, and methodologies used in 
     such reviews;
       ``(II) rating requests received by the State in the 
     previous 12 months and subsequent actions taken by States to 
     approve, deny, or modify such requests; and
       ``(III) justifications by insurance issuers for rate 
     requests; and

       ``(ii)(I) a recommended definition of unreasonable rate 
     increase, which shall consider a lack of actuarial 
     justification for such increase; and
       ``(II) other recommended definitions for the purposes of 
     carrying out this subsection.
       ``(C) Determination of who conducts reviews for each 
     state.--Using the report submitted pursuant to subparagraph 
     (B), the Secretary shall determine not later than 1 year 
     after the date of enactment of this section and periodically 
     thereafter--
       ``(i) for which States the State insurance commissioner 
     shall undertake the actions described in subparagraph (A)--

       ``(I) based on the Secretary's determination that the State 
     has sufficient authority and capability to deny rates, modify 
     rates, provide rebates, or take other corrective actions; and
       ``(II) as a condition of receiving a grant under subsection 
     (c)(1); and

       ``(ii) for which States the Secretary shall undertake the 
     actions described in subparagraph (A), in consultation with 
     the relevant State insurance commissioner, based on the 
     Secretary's determination that such States lack the authority 
     and capability described in clause (i).
       ``(D) Transition period.--Until the Secretary makes the 
     determinations described in subparagraph (C), the relevant 
     State insurance commissioner shall, as a condition of 
     receiving a grant under subsection (c)(1), carry out the 
     actions described in subparagraph (A) to the extent 
     permissible under State law.
       ``(5) Prioritizing potentially unreasonable rate increases 
     for review.--The Secretary or the relevant State insurance 
     commissioner may prioritize--
       ``(A) rate increases that will impact large numbers of 
     consumers;
       ``(B) rate reviews requested from States, if applicable; 
     and
       ``(C) rate reviews in the individual and small group 
     markets.
       ``(6) Annual report.--
       ``(A) Uniform data collection system.--The Secretary, in 
     consultation with the Association and the Authority, shall 
     develop, and may contract with the Association to operate, a 
     uniform data collection system for new and increased rate 
     information, which shall include information on rates, 
     medical loss ratios, consumer complaints, solvency, reserves, 
     and any other relevant factors of market conduct.
       ``(B) Preparation of annual report.--Using the data 
     obtained in accordance with subparagraph (A), the Authority 
     shall annually produce a single, aggregate report on 
     insurance market behavior, which includes at least State-by-
     State information on rate increases from one year to the 
     next, including by health insurance issuer and by market and 
     including medical trends, benefit changes, and relevant 
     demographic changes.
       ``(C) Distribution.--The Authority shall share the annual 
     report described in subparagraph (B) with States, and include 
     such report in the information disclosed to the public.
       ``(b) Continuing Rate Review Process.--As a condition of 
     receiving a grant under subsection (c)(1), a State, through 
     the applicable State insurance commissioner, shall provide 
     the Secretary with information about trends in rate increases 
     in health insurance coverage in premium rating areas in the 
     State, in accordance with the uniform data collection system 
     established under subsection (a)(6)(A).
       ``(c) Grants in Support of Process.--
       ``(1) Rate review grants.--The Secretary shall carry out a 
     program to award grants to States beginning with fiscal year 
     2010 to assist such States in carrying out subsection (a), 
     including--
       ``(A) in reviewing and, if appropriate under State law, 
     approving or taking corrective action with respect to rate 
     increases for health insurance coverage; and
       ``(B) in providing information to the Secretary under 
     subsection (b).
       ``(2) Funding.--
       ``(A) In general.--There is authorized to be appropriated 
     to the Secretary $250,000,000, to be available for 
     expenditure for grants under paragraph (1).
       ``(B) Allocation.--The Secretary shall establish a formula 
     for determining the amount of any grant to a State under this 
     subsection. Under such formula--
       ``(i) the Secretary shall consider the number of plans of 
     health insurance coverage offered in each State and the 
     population of the State; and
       ``(ii) no State qualifying for a grant under paragraph (1) 
     shall receive more than $5,000,000 for a grant year.
       ``(d) Authorization of Appropriations.--In addition to the 
     amount authorized under subsection (c)(2), there are 
     authorized to be appropriated to carry out this section 
     $5,000,000 for fiscal year 2010 and such sums as may be 
     necessary for each subsequent fiscal year.''.
       (b) Enforcement.--Title XXVII of the Public Health Service 
     Act (42 U.S.C. 300gg et seq.) is amended--
       (1) in section 2722--
       (A) in subsection (a)--
       (i) in paragraph (1), by inserting ``and section 2793'' 
     after ``this part''; and
       (ii) in paragraph (2), by inserting ``or section 2793'' 
     after ``this part''; and
       (B) in subsection (b)--
       (i) in paragraph (1), by inserting ``and section 2793'' 
     after ``this part''; and

[[Page S1175]]

       (ii) in paragraph (2), by inserting ``or section 2793'' 
     after ``this part'' each place such term appears; and
       (2) in section 2761--
       (A) in subsection (a)--
       (i) in paragraph (1), by inserting ``and section 2793'' 
     after ``this part''; and
       (ii) in paragraph (2)--

       (I) by inserting ``or section 2793'' after ``set forth in 
     this part''; and
       (II) by inserting ``and section 2793'' after ``the 
     requirements of this part''; and

       (B) in subsection (b)--
       (i) by inserting ``and section 2793'' after ``this part''; 
     and
       (ii) by inserting ``and section 2793'' after ``part A''.
       (c) Effective Date.--The amendment made by this section 
     shall take effect on the date of enactment of this Act.
                                 ______
                                 
      By Mr. MERKLEY (for himself, Mr. Pryor, Mr. Brown of Ohio, Ms. 
        Stabenow, Mr. Sanders, and Mr. Cardin):
  S. 3079. A bill to assist in the creation of new jobs by providing 
financial incentives for owners of commercial buildings and multifamily 
residential buildings to retrofit their buildings with energy efficient 
building equipment and materials and for other purposes; to the 
Committee on Energy and Natural Resources.
  Mr. MERKLEY. Mr. President, I rise today to introduce legislation to 
help create jobs and lower energy bills for businesses and multi-family 
residences. This bill would create a program called Building Star, 
designed to promote energy-saving commercial building renovations 
through rebates and low-cost financing options.
  I believe, as do many of my colleagues, that energy efficiency should 
be a central component of our national energy policy because energy 
efficiency creates jobs, reduces our dependence on foreign oil, and 
reduces the pollution of our air and water. Central to the program we 
are proposing today is its ability to help businesses afford the up-
front costs of energy-efficient renovations by helping state and local 
programs offer low-interest loans that can be paid back through savings 
on energy bills.
  As we take action to put Americans back to work, we need to set our 
sights on programs that provide the biggest bang for our buck in terms 
of immediate job creation and set our economy up for future growth. 
Clean energy is not only the next great growth industry, but it's an 
engine for job creation today. Energy-efficiency programs like Building 
Star will put Americans to work in construction and manufacturing and 
save small businesses money as we strive for American energy 
independence.
  I would like to thank Senator Pryor for his leadership on this bill 
as well as Senators Stabenow, Brown, and Sanders in joining the push 
for a common-sense idea that can create jobs right away and pave the 
way for future growth in America's clean energy industry.
  I would also like to recognize Senator Warner's great leadership in 
developing Home Star, a parallel program that offers energy-efficiency 
assistance to homeowners. I am proud to stand with my forward-thinking 
colleagues, Senator Bingaman and Senator Sanders in supporting Home 
Star and I look forward to continued discussions about how we can 
maximize the economic benefits of these valuable programs.
  I would like to focus for a moment on the immediate positive impact 
that Building Star will have on our economy.
  Building Star would begin creating jobs immediately and is projected 
to create as many as 150,000 jobs in some of the economy's hardest-hit 
sectors including construction, manufacturing, and distribution over 
the next 2 years.
  Building Star will stimulate new jobs in the 55,000 construction and 
manufacturing firms that deal in building, mechanical and low-slope 
roof insulation, windows, and window films. Eighty-six percent of these 
firms are small businesses employing less than 20 people.
  Building Star will maximize Federal investment by leveraging $2 to $3 
in private investment for every Federal dollar spent, making it an 
excellent model for a public-private partnership and maximizing 
resource efficacy.
  In addition, Building Star is expected to save building owners more 
than $3 billion annually on their energy bills by reducing enough peak 
electricity demand to avoid the need for 33 300-Megawatt power plants.
  It will also reduce the pollution that contributes to climate change 
by 21 million metric tons each year, or the equivalent of nearly 4 
million cars' emissions, according to the American Council for an 
Energy-Efficient Economy.
  I urge my colleagues to recognize the outstanding opportunity that 
energy-efficiency renovations offer in putting Americans back to work, 
saving money for our working families, and moving us toward energy 
independence.
   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. 3079

       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 ``Building Star Energy 
     Efficiency Act of 2010''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) ASHRAE.--The term ``ASHRAE'' means the American Society 
     of Heating, Refrigerating and Air-Conditioning Engineers.
       (2) Building envelope insulation.--The term ``building 
     envelope insulation'' means thermal insulation for a building 
     envelope (other than a low slope roof), as defined in ASHRAE 
     Standard 90.1-2007 or 2009 IECC, as appropriate.
       (3) Chiller tonnage downsizing.--The term ``chiller tonnage 
     downsizing'' means the quantity by which the tonnage rating 
     of a replaced chiller exceeds the tonnage rating of a 
     qualified replacement chiller.
       (4) Climate zone.--The term ``climate zone'' means a 
     climate zone specified in ASHRAE Standard 90.1-2007.
       (5) Commercial building.--
       (A) In general.--The term ``commercial building'' means a 
     building that--
       (i) is located in the United States; and
       (ii) was in existence on December 31, 2009.
       (B) Exclusions.--The term ``commercial building'' does not 
     include--
       (i) a federally owned building; or
       (ii) a residential building.
       (6) Duct.--The term ``duct'' means HVAC ducts with respect 
     to which pressure testing has been performed and, if 
     necessary, leakage remediated, in accordance with sections 
     503.2.7.1.2 and 503.2.7.1.3 of the 2009 IECC.
       (7) Duct insulation.--The term ``duct insulation'' means 
     thermal insulation of a HVAC duct.
       (8) HVAC.--The term ``HVAC'' means heating, ventilation, 
     and air conditioning.
       (9) IECC.--The term ``IECC'' means the International Energy 
     Conservation Code.
       (10) Mechanical insulation.--The term ``mechanical 
     insulation'' means thermal insulation installed, in 
     accordance with applicable Federal, State, and local law, on 
     mechanical piping and mechanical equipment.
       (11) Multifamily residential building.--
       (A) In general.--The term ``multifamily residential 
     building'' means a structure of 5 or more dwelling units 
     that--
       (i) is located in the United States; and
       (ii) was in existence on December 31, 2009.
       (B) Exclusion.--The term ``multifamily residential 
     building'' does not include a federally owned building.
       (12) NFRC.--The term ``NFRC'' means the National 
     Fenestration Rating Council.
       (13) Program.--The term ``program'' means the Building Star 
     Energy Efficiency Rebate Program of 2010 established under 
     section 3.
       (14) Qualified boiler.--The term ``qualified boiler'' means 
     a new natural gas-fired, oil-fired, or wood or wood pellet 
     boiler that--
       (A) has a capacity of not less than 300,000, and not more 
     than 5,000,000, Btu per hour;
       (B) replaces an operational boiler in a commercial building 
     or multifamily residential building; and
       (C) meets or exceeds--
       (i) in the case of a natural gas-fired boiler, 90 percent 
     thermal efficiency;
       (ii) in the case of an oil-fired boiler, 85 percent thermal 
     efficiency; and
       (iii) in the case of a wood or wood pellet boiler, 75 
     percent thermal efficiency.
       (15) Qualified building envelope insulation.--The term 
     ``qualified building envelope insulation'' means the 
     installation or repair of building envelope insulation to 
     meet or exceed ASHRAE Standard 90.1-2007 or 2009 IECC in a 
     commercial building or multifamily residential building.
       (16) Qualified energy audit.--The term ``qualified energy 
     audit'' means an ASHRAE Level II energy audit or equivalent 
     of a commercial building or multifamily residential building 
     that is designed to identify all cost-effective energy 
     efficiency measures.
       (17) Qualified energy-efficient building operation and 
     maintenance training.--The term ``qualified energy-efficient 
     building operation and maintenance training'' means--
       (A) the training of a superintendent or operator of a 
     commercial building or multifamily residential building; and
       (B) resultant--
       (i) Level 1 or Level 2 Building Operator Certification for 
     commercial building operators; or
       (ii) certification as a Multifamily Building Operator by 
     the Building Performance Institute for residential building 
     operators.

[[Page S1176]]

       (18) Qualified energy monitoring and management system.--
     The term ``qualified energy monitoring and management 
     system'' means a system that--
       (A) is installed in a commercial building or multifamily 
     residential building;
       (B) uses a combination of computers, computer software, 
     control equipment, and instrumentation to monitor and manage 
     or submeter the energy use of a building, such as heating, 
     ventilation, air conditioning, and lighting;
       (C) provides reporting of information to the building owner 
     or operator to enable refinement of building operation and 
     energy usage; and
       (D) is covered by a service contract with a duration of not 
     less than 1 year for system monitoring or maintenance, 
     including all maintenance recommended by the equipment 
     manufacturer.
       (19) Qualified exterior lighting.--The term ``qualified 
     exterior lighting'' means exterior lighting that--
       (A) replaces operational exterior lighting at a commercial 
     building or multifamily residential building; and
       (B) achieves a reduction of 20 percent or more in annual 
     energy use as compared to the lighting that was replaced, as 
     determined in accordance with section 3(c)(7)(B).
       (20) Qualified furnace.--The term ``qualified furnace'' 
     means a new natural gas furnace or a wood or wood pellet 
     furnace that--
       (A) replaces an operational furnace in a commercial 
     building or multifamily residential building;
       (B) in the case of natural gas, meets or exceeds 90 percent 
     thermal efficiency; and
       (C) in the case of a wood or wood pellet furnace, meets or 
     exceeds 75 percent thermal efficiency.
       (21) Qualified high-efficiency window films and screens.--
     The term ``qualified high-efficiency window films and 
     screens'' means window films and screens that--
       (A) are permanently affixed to windows or window frames in 
     a commercial building or multifamily residential building;
       (B) have a Luminous Efficacy (which is Visible Light 
     Transmittance, as certified to NRFC standards divided by 
     SHGC) of 1.1 or greater; and
       (C) have a SHGC that meets or is better than the applicable 
     requirements of the following table (as certified to NFRC 
     standards):


----------------------------------------------------------------------------------------------------------------
              Climate Zones                  1        2        3        4        5        6        7        8
----------------------------------------------------------------------------------------------------------------
SHGC....................................      .25      .25      .25      .40      .40      .40      .45      .45
----------------------------------------------------------------------------------------------------------------

       (22) Qualified hvac testing, balancing, and duct sealing.--
     The term ``qualified HVAC testing, balancing, and duct 
     sealing'' means work performed in a commercial building or 
     multifamily residential building by individuals with an ANSI-
     accredited certification in HVAC testing--
       (A) to pressure-test HVAC ducts;
       (B) to balance air flow; and
       (C) to identify all leaking ducts and remediate the leakage 
     to the appropriate leakage class, in accordance with sections 
     503.2.7.1.2 and 503.2.7.1.3 of the 2009 IECC.
       (23) Qualified interior lighting.--The term ``qualified 
     interior lighting'' means new interior lighting that--
       (A) replaces operational interior lighting in a commercial 
     building or multifamily residential building; and
       (B) achieves an installed power reduction of 25 percent or 
     more as compared to the installed power of the lighting that 
     was replaced, as determined in accordance with section 
     3(c)(6)(B).
       (24) Qualified low slope roof insulation.--The term 
     ``qualified low slope roof insulation'' means a retrofit 
     that--
       (A) adds new insulation to a roof on a commercial building 
     or multifamily residential building if the roof insulation is 
     entirely above deck, as defined in ASHRAE Standard 90.1-2007 
     or 2009 IECC; and
       (B) meets or exceeds the R-values for the applicable 
     climate zone in the following table:


----------------------------------------------------------------------------------------------------------------
              Climate Zones                  1        2        3        4        5        6        7        8
----------------------------------------------------------------------------------------------------------------
R-Value.................................       20       25       25       25       25       30       35       35
----------------------------------------------------------------------------------------------------------------

       (25) Qualified mechanical insulation.--The term ``qualified 
     mechanical insulation'' means the installation or repair of 
     mechanical or duct insulation to meet or exceed ASHRAE 
     Standard 90.1-2007 or 2009 IECC in a commercial building or 
     multifamily residential building.
       (26) Qualified replacement chiller.--The term ``qualified 
     replacement chiller'' means a water-cooled chiller that--
       (A) is certified to meet efficiency standards effective on 
     January 1, 2010, as defined in table 6.8.1c in Addendum M to 
     Standard 90.1-2007 of ASHRAE; and
       (B) replaces a chiller that--
       (i) was installed before January 1, 1993;
       (ii) uses chlorofluorocarbon refrigerant; and
       (iii) until replaced by a new chiller, has remained in 
     operation and used for cooling a commercial building.
       (27) Qualified retro commissioning study.--The term 
     ``qualified retro commissioning study'' means a commissioning 
     study of building energy systems that is--
       (A) conducted consistent with the guidelines in the Retro 
     Commissioning Guide for Building Owners prepared for--
       (i) the Environmental Protection Agency; or
       (ii) the document entitled ``California Commissioning 
     Guide: Existing Buildings'' published by the California 
     Commissioning Collaborative; and
       (B) performed by a service provider with--
       (i) an ASHRAE Commissioning Process Management Professional 
     certification; or
       (ii) a Building Commissioning Association Certified 
     Commissioning Professional certification.
       (28) Qualified service on cooling systems.--
       (A) In general.--The term ``qualified service on cooling 
     systems'' means periodic maintenance service on a central air 
     conditioner that--
       (i) is located in a commercial building or multifamily 
     residential building; and
       (ii) has a capacity of not less than 2 tons.
       (B) Inclusions.--The term ``qualified service on cooling 
     systems'' includes--
       (i) a cleaning of a condenser coil;
       (ii) a check of system pressure;
       (iii) an inspection and replacement of a filter;
       (iv) an inspection and replacement of a belt;
       (v) an inspection and repair of an economizer;
       (vi) an inspection of a contractor;
       (vii) an inspection of an evaporator;
       (viii) an evaluation of a compressor ampere draw;
       (ix) an evaluation of supply motor amp draw;
       (x) an evaluation of a condenser fan amp draw;
       (xi) an evaluation of liquid line temperature;
       (xii) an evaluation of suction pressure and temperature;
       (xiii) an evaluation of oil level and pressure;
       (xiv) an inspection of low pressure controls and high 
     pressure controls;
       (xv) an evaluation of crankcase heater operation;
       (xvi) a cleaning of chiller condenser tubes;
       (xvii) a cleaning of chiller evaporator tubes; or
       (xviii) a check, and if necessary, correction of a 
     refrigerant charge and system airflow to conform to 
     manufacturer specifications.
       (29) Qualified service on space heating equipment.--
       (A) In general.--The term ``qualified service on space 
     heating equipment'' means the periodic maintenance service on 
     a boiler, unit heaters make-up air unit, heat pump, furnace, 
     or industrial space heating equipment with forced or induced 
     draft combustion that is located in a commercial or 
     multifamily residential building.
       (B) Inclusions.--The term ``qualified service on space 
     heating equipment'' includes--
       (i) cleaning all heat exchange surfaces and checking and 
     calibrating all system controls; and
       (ii) combustion efficiency tests and stack temperature 
     measurements conducted before and after the service.
       (30) Qualified unitary air conditioner.--The term 
     ``qualified unitary air conditioner'' means a new 3 phase 
     unitary air conditioner that--
       (A) replaces an operational air conditioner or heat pump in 
     a commercial building or multifamily residential building; 
     and
       (B) meets or exceeds Consortium for Energy Efficiency Tier 
     1 efficiency standards as in effect on January 1, 2010.
       (31) Qualified unitary heat pump.--The term ``qualified 
     unitary heat pump'' means a new 3 phase unitary heat pump 
     that--
       (A) replaces an operational air conditioner or heat pump in 
     a commercial building or multifamily residential building; 
     and
       (B) meets or exceeds Consortium for Energy Efficiency Tier 
     1 level of efficiency as in effect on January 1, 2010.
       (32) Qualified variable speed drive.--The term ``qualified 
     variable speed drive'' means a new electronic variable speed 
     drive that--
       (A) is added to an operational motor in a--
       (i) chilled water pump;
       (ii) cooling tower fan;
       (iii) fume hood exhaust or makeup fan;
       (iv) hot water pump;

[[Page S1177]]

       (v) exhaust fan;
       (vi) chiller compressor; or
       (vii) supply, return, or exhaust fan on a variable-air 
     volume unit that is located in a commercial building or 
     multifamily residential building and operates not less than 
     2,000 hours annually;
       (B) is controlled automatically by a building automation 
     system, process control system, or local controller driven by 
     differential pressure, flow, temperature, or another variable 
     signal; and
       (C) incorporates a series reactor for power factor 
     correction.
       (33) Qualified water heater.--The term ``qualified water 
     heater'' means a new natural gas or electric storage water 
     heater with a capacity of 75,000 Btu/hour or greater, or a 
     tankless water heater with a capacity of 200,000 Btu/hour or 
     greater, that replaces an operational water heater in a 
     commercial building or multifamily residential building and 
     meets or exceeds--
       (A) in the case of a natural gas water heater, 90 percent 
     thermal efficiency;
       (B) in the case of an electric water heater--
       (i) a 2.5 Coefficient of Performance; or
       (ii) a 2.0 Energy Factor; and
       (C) in the case of a wood or wood pellet water heater, 75 
     percent thermal efficiency.
       (34) Secretary.--The term ``Secretary'' means the Secretary 
     of Energy.
       (35) SHGC.--The term ``SHGC'' means the Solar Heat Gain 
     Coefficient.
       (36) Tier 1 qualified window.--The term ``tier 1 qualified 
     window'' means a new window that--
       (A) replaces an existing window in a commercial building or 
     multifamily residential building; and
       (B) meets or is better than--
       (i) the applicable U-factor and SHGC requirements (both 
     certified to NFRC standards) in the following table:


----------------------------------------------------------------------------------------------------------------
              Climate Zones                  1        2        3        4        5        6        7        8
----------------------------------------------------------------------------------------------------------------
U-Factor................................      .57      .57      .40      .35      .35      .35      .35      .35
SHGC....................................      .25      .25      .25      .40      .40      .40      .45      .45
----------------------------------------------------------------------------------------------------------------

     ; and
       (ii) in the case of a window with impact-rated glazing in 
     climate zone 1, a U-factor of 1.20.
       (37) Tier 2 qualified window.--The term ``tier 2 qualified 
     window'' means a new window that--
       (A) replaces an existing window in a commercial building or 
     multifamily residential building; and
       (B) meets or is better than--
       (i) the applicable U-factor and SHGC requirements (both 
     certified to NFRC standards) in the following table:


----------------------------------------------------------------------------------------------------------------
              Climate Zones                  1        2        3        4        5        6        7        8
----------------------------------------------------------------------------------------------------------------
U-Factor................................      .32      .32      .30      .30      .30      .30      .30      .30
SHGC....................................      .25      .25      .25      .26      .26      .35      .45      .45
----------------------------------------------------------------------------------------------------------------

     ; and
       (ii) in the case of a window with impact-rated glazing in 
     climate zone 1, a U-factor of 1.20.

     SEC. 3. BUILDING STAR PROGRAM.

       (a) Establishment.--There is established in the Department 
     of Energy a program to be known as the ``Building Star Energy 
     Efficiency Rebate Program of 2010'' under which the 
     Secretary, in accordance with this section, shall issue 
     rebates to building owners to offset a portion of the cost of 
     purchasing and installing qualifying equipment or materials 
     or undertaking qualifying services to enhance the energy 
     efficiency of existing commercial buildings and multifamily 
     residential buildings.
       (b) Rebates for Building Envelope Energy Efficiency 
     Measures.--Rebates for the purchase and installation of 
     qualifying insulation, windows, and qualified high-efficiency 
     window films and screens in commercial or multifamily 
     residential buildings shall be available in the following 
     amounts:
       (1) Building envelope insulation.--For qualified building 
     envelope insulation, a rebate of $0.60 per square foot of 
     insulated area.
       (2) Low slope roofing insulation.--For qualified low slope 
     roofing insulation, a rebate of $0.80 per square foot of 
     insulated roof area over conditioned space.
       (3) Mechanical insulation.--For qualified mechanical 
     insulation, rebates shall be the amounts specified in the 
     following table:


----------------------------------------------------------------------------------------------------------------
      Piping and Equipment Applications                                      Rebate
----------------------------------------------------------------------------------------------------------------
2" Iron Pipe Size and below..................  $2.50 per equivalent lineal foot
2" to 12" Iron Pipe Size.....................  $5.00 per equivalent lineal foot
Above 12" Iron Pipe Size and equipment.......  $5.00 per square foot
HVAC Duct Applications.......................  $1.00 per square foot
----------------------------------------------------------------------------------------------------------------

       (4) Windows.--
       (A) Tier 1 qualified windows.--For Tier 1 qualified 
     windows, a rebate of $150 per window.
       (B) Tier 2 qualified windows.--For Tier 2 qualified 
     windows, a rebate of $300 per window.
       (5) High-efficiency window films and screens.--For 
     qualified high-efficiency window films and screens, a rebate 
     of $1.00 per square foot of treated glass enclosing a 
     mechanically conditioned space.
       (c) Rebates for Eligible Equipment Installation.--Rebates 
     for the purchase and installation of qualifying new energy 
     efficient equipment in commercial buildings or multifamily 
     residential buildings shall be available in the following 
     amounts:
       (1) Boilers.--For qualified boilers, rebates shall be the 
     amounts specified in the following table:


----------------------------------------------------------------------------------------------------------------
                 Boiler Fuel                                                 Rebate
----------------------------------------------------------------------------------------------------------------
Natural Gas-fired............................  $10 per thousand Btu per hour capacity
Oil-fired....................................  $3 per thousand Btu per hour capacity
Wood or wood pellet boiler...................  $__ per thousand Btu per hour capacity
----------------------------------------------------------------------------------------------------------------

       (2) Furnaces.--For qualified furnaces, rebates of $5 per 
     thousand Btu per hour of capacity.
       (3) Water heaters.--For qualified water heaters, rebates 
     shall be the amounts specified in the following table:


----------------------------------------------------------------------------------------------------------------
                Energy Source                                                Rebate
----------------------------------------------------------------------------------------------------------------
Natural Gas..................................  $8 per thousand Btu per hour capacity
Electricity..................................  $20 per thousand Btu per hour of heat pump capacity
Wood or wood pellet water heater.............  $__ per thousand Btu per hour capacity
----------------------------------------------------------------------------------------------------------------

       (4) Unitary air conditioners and heat pumps.--For qualified 
     unitary air conditioners and qualified unitary heat pumps, 
     rebates shall be the amounts specified in the following 
     table:


[[Page S1178]]



----------------------------------------------------------------------------------------------------------------
               Efficiency Level                                              Rebate
----------------------------------------------------------------------------------------------------------------
Consortium on Energy Efficiency Tier 1         $100 per ton cooling capacity
 efficiency standards (as in effect on
 January 1, 2010).
Consortium of Energy Efficiency Tier 2         $200 per ton cooling capacity
 efficiency standards (as in effect on
 January 1, 2010).
----------------------------------------------------------------------------------------------------------------

       (5) Variable speed drives for motors.--For qualified 
     variable speed drives, rebates shall be the amounts specified 
     in the following table:


------------------------------------------------------------------------
       Power Controlled (horsepower)                Rebate Level
------------------------------------------------------------------------
 <10 hp...................................  $120/hp
10-100 hp.................................  $80/hp
>100 hp...................................  $40/hp
------------------------------------------------------------------------

       (6) Interior lighting.--
       (A) In general.--For qualified interior lighting, subject 
     to subparagraphs (B) and (C), rebates based on reduced 
     lighting power shall be the amounts specified in the 
     following table:


25% or greater reduction in installed       $0.25 per square foot of
 lighting power (as adjusted)                illuminated floor area
                                             affected
40% or greater reduction in installed       $0.50 per square foot of
 lighting power (as adjusted)                illuminated floor area
                                             affected
 

       (B) Calculation.--Reductions in installed lighting power 
     resulting from installation of qualified interior lighting 
     shall be calculated by determining the difference between--
       (i) the product obtained by multiplying--

       (I) the quantity of installed power (kW) for existing 
     interior lighting; and
       (II) the applicable control factor; and

       (ii) the product obtained by multiplying--

       (I) the quantity of installed power (kW) of the replacement 
     interior lighting system; and
       (II) the applicable control factor.

       (C) Control factors.--For purposes of subparagraph (B), 
     control factors for installed lighting controls shall be--
       (i) for manual dimming controls, 0.9;
       (ii) for occupancy sensors, 0.9;
       (iii) for programmable multilevel dimming controls, 0.9;
       (iv) for programmable multilevel dimming controls with 
     programmable time scheduling, 0.85; and
       (v) for daylight dimming controls, 0.75.
       (7) Exterior lighting.--
       (A) In general.--For qualified exterior lighting, subject 
     to subparagraphs (B) and (C), rebates based on reduced energy 
     usage shall be the amounts specified in the following table:


 20% or greater reduction in  $0.40 per kWh reduction in calculated
     calculated annual energy  annual energy usage
                        usage
 40% or greater reduction in  $1.00 per kWh reduction in calculated
     calculated annual energy  annual energy usage
                        usage
 

       (B) Calculation.--Reductions in annual energy usage 
     resulting from installation of qualified exterior lighting 
     shall be calculated by determining the difference between--
       (i) the product obtained by multiplying--

       (I) the quantity of installed power (kW) for existing 
     exterior lighting;
       (II) 4,000 operating hours per year; and
       (III) the applicable control factor; and

       (ii) the product obtained by multiplying--

       (I) the quantity of installed power (kW) of the replacement 
     exterior lighting system;
       (II) 4,000 operating hours per year; and
       (III) the applicable control factor.

       (C) Control factors.--For purposes of subparagraph (B), 
     control factors for installed lighting controls shall be--
       (i) for 7-day time controls (with a provision for holiday 
     schedule) if lighting is switched off a minimum of 4 hours 
     per night, 0.75;
       (ii) for motion sensors if lighting power is reduced by at 
     least 40 percent after no activity has been detected for at 
     least 20 minutes, 0.75; and
       (iii) for remote monitoring and multilevel lighting 
     controls, 0.60.
       (8) Qualified replacement chillers.--
       (A) In general.--For qualified replacement chillers, 
     rebates shall be the sum of--
       (i) the product obtained by multiplying--

       (I) $150; and
       (II) the tonnage rating of the replaced chiller; and

       (ii) if all chilled water distribution pumps connected to 
     the qualified replacement chiller include variable frequency 
     drives, the product obtained by multiplying--

       (I) $100; and
       (II) any chiller tonnage downsizing.

       (B) Audits.--As a condition of receiving a rebate for a 
     qualified replacement chiller, an audit with requirements 
     determined by the Secretary (not later than 45 days after the 
     date of enactment of this Act) shall be performed on a 
     building prior to installation of the qualified replacement 
     chiller that identifies cost-effective energy-saving 
     measures, particularly measures that could contribute to 
     chiller tonnage downsizing.
       (d) Rebates for Eligible Energy Efficiency Services.--
     Rebates for qualifying services to enhance the energy 
     efficiency of commercial or multifamily residential buildings 
     shall be available in the following amounts:
       (1) Energy audit and retro commissioning study.--
       (A) In general.--For qualified energy audits or qualified 
     retro commissioning studies, subject to subparagraph (B), a 
     rebate equal to the lesser of--
       (i) $0.05 per square foot of audited or commissioned 
     building space; or
       (ii) 50 percent of the cost of the audit or study.
       (B) Avoidance of duplication.--Rebates shall not be made 
     for energy audits and retro commissioning studies under 
     subparagraph (A) for the same building.
       (2) Energy-efficient building operations and maintenance 
     training.--For qualified energy-efficient building operation 
     and maintenance training, a rebate of $2,000 per individual 
     trained and certified.
       (3) Service on space heating equipment.--For qualified 
     service on space heating equipment, a rebate of $100 per unit 
     serviced.
       (4) Service on cooling systems.--For qualified service on 
     cooling systems, a rebate equal to the lesser of--
       (A) $2 per ton of nameplate capacity of the serviced 
     cooling system; and
       (B) 50 percent of the total service cost.
       (5) Energy monitoring and management systems.--
       (A) Installation.--For qualified energy monitoring and 
     management systems installed in a commercial building or 
     multifamily residential building that have analog controls 
     (pneumatic or electronic), or if no control system exists, a 
     rebate equal to the lesser of--
       (i) $0.45 per square foot of building space covered by the 
     qualified energy monitoring and management system; or
       (ii) 50 percent of the total installation and commissioning 
     costs.
       (B) Upgrading.--For upgrading an existing energy monitoring 
     and management system in a commercial building or multifamily 
     residential building to add submetering to all major 
     individual loads, such as heating, ventilation, air 
     conditioning, and lighting, a rebate equal to the lesser of--
       (i) $0.15 per square foot of building space covered by the 
     energy management system, or
       (ii) 50 percent of the total installation cost.
       (6) HVAC testing, balancing, and duct sealing.--For 
     qualified HVAC testing, balancing, and duct sealing, a rebate 
     of $0.75 per square foot of duct surface tested, balanced, 
     and if necessary, sealed.
       (e) Administration.--
       (1) Eligibility period.--A rebate issued under the program 
     shall be provided only in connection with qualifying 
     equipment installations or services provided during the 
     period beginning on the date of enactment of this Act and 
     ending on December 31, 2011.
       (2) Combination with other incentives.--The availability or 
     use of a Federal, State, local, utility, or other incentive 
     for any qualifying equipment installation or service shall 
     not affect eligibility for rebates under the program.
       (3) Additional fees.--A dealer, equipment installer, or 
     service provider may not charge a person purchasing goods or 
     services any additional fees associated with applying for a 
     rebate under the program.
       (4) Limitation on total rebates issued.--The total value of 
     rebates issued under the program may not exceed the amounts 
     made available for the program.
       (5) Maximum rebate.--The amount of any rebate paid to an 
     applicant for any qualified measure under this section shall 
     be the lesser of--
       (A) the amount determined under subsection (b), (c), or 
     (d); or
       (B) \1/2\ of the cost actually incurred by the applicant 
     building owner to complete the measure that is eligible for 
     the rebate.
       (f) Implementation.--Notwithstanding section 553 of title 
     5, United States Code, not later than 30 days after the date 
     of enactment of this Act, the Secretary shall, in 
     consultation with the Secretary of the Treasury, establish 
     rules and procedures to implement the program, including 
     rules and procedures for--
       (1) building owners or designees to submit applications 
     (including forms) that--
       (A) specify the proposed measures that qualify for a rebate 
     and the total rebate requested; and
       (B) require that the work be completed by licensed 
     contractors or service providers in compliance with all 
     applicable Federal, State and local building codes and 
     standards;
       (2) the Secretary--
       (A) to consider applications; and
       (B) to the extent that the Secretary determines that 
     proposed measures will qualify for rebates under this section 
     if undertaken and that there are sufficient uncommitted

[[Page S1179]]

     funds to carry out the program, to issue confirmations to 
     applicants that rebates will be made if proposed measures are 
     completed;
       (3) an applicant--
       (A) to certify, following completion of the measures 
     identified in the application, that the measures undertaken 
     qualify for rebate under this section; and
       (B) to complete the measures described in the application, 
     and submit a certification, not later than--
       (i) 180 days after the date of receipt of a confirmation; 
     or
       (ii) in the case of a qualified replacement chiller, 360 
     days after the date of receipt of a confirmation;
       (4) appropriate verification by the Secretary of 
     eligibility for a rebate prior to payment;
       (5) verification and payment of rebates by electronic 
     transfer of funds or other means that ensure that the payment 
     occurs not later than 30 days after the date of submission of 
     certification that measures described in the application have 
     been completed;
       (6) certification by the installer, as part of the 
     certification under paragraph (3), that any refrigerants, 
     toxic materials, and other hazards have been removed and 
     disposed of in accordance with all applicable Federal, State, 
     and local laws;
       (7) field inspections by the Federal Government of at least 
     10 percent of the projects for which rebates are received 
     under the program; and
       (8) compliance monitoring and enforcement.
       (g) Civil Penalties.--
       (1) In general.--Any person who knowingly makes a false or 
     misleading statement in an application or certification under 
     this section shall be liable to the United States for a civil 
     penalty in an amount equal to not more than the higher of--
       (A) $15,000 for each violation; or
       (B) the amount that is equal to 3 times the value of any 
     associated rebate received under this section.
       (2) Administration.--In carrying out this subsection, the 
     Secretary--
       (A) may assess and compromise penalties described in 
     paragraph (1);
       (B) may require from any entity the records and inspections 
     necessary to carry out the program; and
       (C) shall consider the severity of the violation and the 
     intent and history of the person committing a violation in 
     determining the amount of a penalty.
       (h) Information to Building Owners, Service Providers, and 
     Equipment Installers.--
       (1) In general.--Not later than 30 days after the date of 
     enactment of this Act, the Secretary shall make available on 
     an Internet website and through other means determined by the 
     Secretary, information about the program, including 
     information on--
       (A) how to determine whether particular efficiency measures 
     are eligible for a rebate;
       (B) how to participate in the program, including how to 
     apply for rebates; and
       (C) the equipment and services meeting the requirements of 
     the program.
       (2) Updating.--The Secretary shall update, as appropriate, 
     the information required under paragraph (1).
       (i) Report to Congress.--Not later than 60 days after the 
     termination date described in subsection (e)(1), the 
     Secretary shall submit to the Committee on Energy and 
     Commerce of the House of Representatives and the Committee on 
     Energy and Natural Resources of the Senate a report 
     describing the efficacy of the program, including--
       (1) a description of program results, including--
       (A) the total number and value of rebates issued for 
     installation of new energy efficient equipment by category of 
     equipment;
       (B) the total number and value of rebates issued for 
     services rendered by category of service; and
       (C) the geographic distribution of activities for which 
     rebates were issued;
       (2) an estimate of the overall increase in energy 
     efficiency as a result of the program, expressed in terms of 
     percentage improvement by--
       (A) type of equipment;
       (B) total annual energy savings; and
       (C) total annual greenhouse gas reductions; and
       (3) an estimate of the overall jobs created and economic 
     growth achieved as a result of the program.

     SEC. 4. STATE-BASED FINANCING ASSISTANCE FOR COMMERCIAL 
                   BUILDING RETROFITS.

       (a) Definitions.--In this section:
       (1) Building star energy retrofit program.--The term 
     ``Building Star energy retrofit program'' means the Building 
     Star energy retrofit program established under section 3.
       (2) Eligible participant.--The term ``eligible 
     participant'' means a building owner, apartment complex 
     owner, residential cooperative association, or condominium 
     association that--
       (A) meets the eligibility requirements established by a 
     qualified loan program delivery entity designated by the 
     building owner; and
       (B) receives financial assistance from the qualified loan 
     program delivery entity to carry out energy efficiency or 
     renewable energy improvements to an existing building in 
     accordance with the Building Star energy retrofit program 
     established under section 3.
       (3) Program.--The term ``program'' means the Building Star 
     Energy Efficiency Loan Program established under subsection 
     (b).
       (4) Qualified loan program mechanism.--The term ``qualified 
     loan program mechanism'' means a loan program that is--
       (A) administered by a qualified program delivery entity; 
     and
       (B) principally funded--
       (i) by funds provided by or overseen by a State; or
       (ii) through the energy loan program of the Federal 
     National Mortgage Association.
       (5) Qualified program delivery entity.--The term 
     ``qualified program delivery entity'' means a State, 
     political subdivision of a State, tribal government, energy 
     utility, natural gas utility, nonprofit or community-based 
     organization, energy service company, retailer, or any other 
     qualified entity that--
       (A) meets the eligibility requirements of this section; and
       (B) is approved by the State that administers the program 
     in the State.
       (b) Establishment.--The Secretary shall establish a 
     Building Star Energy Efficiency Loan Program under which the 
     Secretary shall make grants to States to support financial 
     assistance provided by qualified program delivery entities 
     for making, to existing buildings, energy efficiency and 
     renewable energy improvements that qualify under the Building 
     Star energy retrofit program.
       (c) Eligibility of Qualified Program Delivery Entities.--To 
     be eligible to participate in the program, a qualified 
     program delivery entity shall--
       (1) offer a financing product under which eligible 
     participants may pay over time for the cost to the eligible 
     participant (after all applicable Federal, State, local, and 
     other rebates or incentives are applied) of making 
     improvements described in section 3;
       (2) require all financed improvements to be performed by 
     contractors in a manner that meets minimum standards that are 
     at least as stringent as the standards established under 
     section 3; and
       (3) establish standard underwriting criteria to determine 
     the eligibility of program applicants, which criteria shall 
     be consistent with commercially recognized best practices 
     applicable to the form of financial assistance being provided 
     (as determined by the designated entity administering the 
     program in the State).
       (d) Allocation.--In making funds available to States for 
     each fiscal year under this section, the Secretary shall use 
     the formula used to allocate funds to States to carry out 
     State energy conservation plans established under part D of 
     title III of the Energy Policy and Conservation Act (42 
     U.S.C. 6321 et seq.).
       (e) Qualified Program Delivery Entities.--Before making a 
     grant to a State under this section, the Secretary shall 
     require the Governor of the State to provide to the Secretary 
     a letter of assurance that the State--
       (1) has 1 or more qualified program delivery entities that 
     meet the requirements of this section;
       (2) has established a qualified loan program mechanism 
     that--
       (A) includes a methodology to ensure credible energy 
     savings or renewable energy generation;
       (B) incorporates an effective repayment mechanism, which 
     may include--
       (i) on-utility-bill repayment;
       (ii) tax assessment or other form of property assessment 
     financing;
       (iii) municipal service charges;
       (iv) energy or energy efficiency services contracts;
       (v) energy efficiency power purchase agreements; or
       (vi) alternative contractual repayment mechanisms that have 
     been demonstrated to have appropriate risk mitigation 
     features; and
       (3) will provide, in a timely manner, all information 
     regarding the administration of the program as the Secretary 
     may require to permit the Secretary to meet the reporting 
     requirements of subsection (h).
       (f) Use of Grant Funds.--Grant funds made available to 
     States under the program may be used to support financing 
     products offered by qualified program delivery entities to 
     eligible participants, by providing----
       (1) interest rate reductions;
       (2) loan loss reserves or other forms of credit 
     enhancement;
       (3) revolving loan funds from which qualified program 
     delivery entities may offer direct loans; or
       (4) other debt instruments or financial products 
     necessary--
       (A) to maximize leverage provided through available funds; 
     and
       (B) to support widespread deployment of energy efficiency 
     and renewable energy finance programs.
       (g) Use of Repayment Funds.--In the case of a revolving 
     loan fund established by a State described in subsection 
     (f)(3), a qualified program delivery entity may use funds 
     repaid by eligible participants under the program to provide 
     financial assistance for additional eligible participants to 
     make improvements described in subsection (b) in a manner 
     that is consistent with this section or other such criteria 
     as are prescribed by the State.
       (h) Program Evaluation.--Not later than 180 days after the 
     date of enactment of this Act, the Secretary shall submit to 
     Congress a program evaluation that describes--
       (1) how many eligible participants have participated in the 
     program;
       (2) how many jobs have been created through the program, 
     directly and indirectly;

[[Page S1180]]

       (3) what steps could be taken to promote further deployment 
     of energy efficiency and renewable energy retrofits;
       (4) the quantity of verifiable energy savings, renewable 
     energy deployment, homeowner energy bill savings, and other 
     benefits of the program; and
       (5) the performance of the programs carried out by 
     qualified program delivery entities under this section, 
     including information on the rate of default and repayment.

     SEC. 5. FEDERAL FINANCING ASSISTANCE FOR COMMERCIAL BUILDING 
                   RETROFITS.

       (a) In General.--Section 1705(a) of the Energy Policy Act 
     of 2005 (42 U.S.C. 16516(a)) is amended by adding at the end 
     the following:
       ``(4) Energy efficiency projects, including projects to 
     retrofit residential, commercial, and industrial buildings, 
     facilities, and equipment, including financing programs that 
     finance the retrofitting of residential, commercial, and 
     industrial buildings, facilities, and equipment.''.
       (b) Credit Support for Financing Programs.--Section 1705 of 
     the Energy Policy Act of 2005 (42 U.S.C. 16516) is amended--
       (1) by redesignating subsection (e) as subsection (f); and
       (2) by inserting after subsection (d) the following:
       ``(e) Credit Support for Financing Programs.--
       ``(1) In general.--In the case of programs that finance the 
     retrofitting of residential, commercial, and industrial 
     buildings, facilities, and equipment described in subsection 
     (a)(4), the Secretary may--
       ``(A) offer loan guarantees for portfolios of debt 
     obligations; and
       ``(B) purchase or make commitments to purchase portfolios 
     of debt obligations.
       ``(2) Term.--Notwithstanding section 1702(f), the term of 
     any debt obligation that receives credit support under this 
     subsection shall require full repayment over a period not to 
     exceed the lesser of--
       ``(A) 30 years; and
       ``(B) the projected weighted average useful life of the 
     measure or system financed by the debt obligation or 
     portfolio of debt obligations (as determined by the 
     Secretary).
       ``(3) Underwriting.--The Secretary may--
       ``(A) delegate underwriting responsibility for portfolios 
     of debt obligations under the subsection to financial 
     institutions that meet qualifications determined by the 
     Secretary; and
       ``(B) determine an appropriate percentage of loans in a 
     portfolio to review in order to confirm sound underwriting.
       ``(4) Administration.--Subsections (c) and (d)(3) of 
     section 1702 shall not apply to loan guarantees made under 
     this subsection.''.
       (c) Termination of Effectiveness.--The authority provided 
     by this section and the amendments made by this section 
     terminates effective on the date that is 2 years after the 
     date of enactment of this Act.

     SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to the Secretary to 
     carry out this Act and the amendments made by this Act 
     $6,000,000,000 for the period of fiscal years 2010 and 2011, 
     to remain available until expended, of which--
       (1) not less than $600,000,000 or 10 percent of the amount 
     made available for a fiscal year (whichever is less) shall be 
     used to carry out the financing program established under 
     section 4; and
       (2) not more than $360,000,000 or 6 percent of the amount 
     made available for a fiscal year (whichever is less) shall be 
     used to administer this Act and the amendments made by this 
     Act.
                                 ______
                                 
      By Mr. SPECTER (for himself, Mr. Casey, and Mr. Brown, of Ohio):
  S. 3080. A bill to provide for judicial determination of injury in 
certain cases involving dumped and subsidized merchandise imported into 
the United States, and for other purposes; to the Committee on Finance.
  Mr. SPECTER. Mr. President, I have sought recognition today to 
introduce the Unfair Foreign Competition Act of 2010. This legislation 
provides a private right of action for domestic manufacturers injured 
by illegal subsidization and dumping of foreign products into U.S. 
markets. These anticompetitive, predatory trade practices steal jobs 
from our workers, profits from our companies, and growth from our 
economy.
  Job creation and job retention in this country depend in large part 
on our ability to enforce existing trade laws. At a time when 
unemployment remains at nearly 10 percent and our economic future is at 
stake, it becomes even more important that we focus on trade priorities 
which too long have been sacrificed for foreign policy and defense 
interests.
  The latest trade numbers demonstrate that the U.S. trade deficit with 
China in November 2009 was $20.2 billion. Over the years, imports from 
China have exceeded our imports by a staggering $208.6 billion. This is 
not evidence that American manufacturers cannot produce goods 
efficiently or compete with foreign markets; rather, it is evidence of 
unlawful behavior on the part of China. Such behavior is tantamount to 
international banditry, and it must not be tolerated.
  In the current environment, I believe it is necessary for an injured 
industry to have an opportunity to go into Federal court and seek 
enforcement of our country's trade laws.
  My legislation addresses two specific types of illegal trade 
practices: dumping, which occurs when a foreign producer sells a 
product in the United States at a price that is below the producer's 
sales price in its home market or at a price which is lower than its 
cost of production, and subsidizing, which occurs when a foreign 
government provides financial assistance to benefit the production, 
manufacture, or exportation of a good.
  Under current law, the International Trade Commission and the 
Department of Commerce conduct antidumping and countervailing duty 
investigations and 5-year reviews under title VII of the Tariff Act of 
1930. U.S. industries may petition the ITC and Commerce for relief from 
dumped and subsidized imports. If Commerce finds that an imported 
product is dumped or subsidized and the ITC finds that the petitioning 
industry is materially injured or threatened with material injury, an 
antidumping duty order or countervailing duty order will be imposed to 
offset the dumping or subsidies.
  Because current administrative remedies have not been consistently 
and effectively enforced, I am introducing private right of action 
legislation to enforce the law. My legislation would allow petitioners 
to choose between the ITC and their local U.S. district court for the 
injury determination phase of their investigation. Doing so gives 
injured domestic producers the opportunity as private plaintiffs to 
control the litigation in seeking enforcement of our trade laws. If 
injury is found, U.S. Customs and Border Protection would then assess 
duties on future importation of the article in question. The legal 
standard for determining dumping margins, established by the Commerce 
Department, would remain unchanged.
  This legislation is similar to legislation I have introduced as far 
back as 1982 when I originally sought injunctive relief. But this bill 
has been modified to comply with World Trade Organization rules.
  In December 2004, the United States took action to comply with WTO 
rulings on the Antidumping Act of 1916 which provided a private cause 
of action and criminal penalties for dumping by prospectively repealing 
the act. The United States also took action in February 2006 to comply 
with WTO rulings on the Continued Dumping and Subsidy Offset Act which 
requires the distribution of collected antidumping and countervailing 
duties to petitioners and interested parties in the underlying trade 
proceedings. In both cases, the WTO panel found that U.S. law allowed 
an impermissible specific action against dumping and subsidization.
  The legislation I introduce today has been adapted to these changes 
in law and allows for a determination of injury in accordance with our 
international obligations. Aggressive policy measures, such as this 
legislation, are necessary to prevent foreign producers--China in 
particular--from causing a major crisis for our domestic producers.
  In testimony before the ITC earlier this year, I noted that we have a 
complicated relationship with China. I was one of 15 Senators who 
opposed China's entrance into the WTO in 2000. With China's economy 
still widely under state direction and characterized by dubious trade 
practices, I believed Chinese membership in the WTO would present a 
likelihood of trade distortion and market disruption. And that is why I 
voted against it in 2000.
  Congress heeded some of the concerns which I and others expressed and 
inserted a China-specific safeguard provision under section 421 of the 
Trade Act. But such a safeguard is only as effective as the President's 
willingness to enforce it. Seven petitions have been filed under 
section 421 since its inception. Of these, the ITC has made an 
affirmative determination of injury in five cases. Yet only one 
determination, handed down in the most recent Chinese tires case, has 
been upheld by the President. Despite overwhelming evidence to support 
the ITC's findings of

[[Page S1181]]

injury, President Bush rejected all four previous petitions for relief 
on the ground that providing import relief was not in the economic 
interest of the United States. Since President Bush's decision, 
countless jobs in my State and across the country have been lost and 
the trade deficit has widened. It is difficult to understand how 
providing import relief was not in our economic interest.
  President Obama's decision to uphold the ITC rulings in the Chinese 
tires case last year is a step in the right direction, but much more 
needs to be done to ensure that domestic industries enjoy the 
protection afforded to them by existing trade laws.
  While it is my hope that this administration and future 
administrations will evaluate trade remedies objectively in terms of 
economic consequences, this act will provide a valuable tool for the 
domestic industry. I ask my colleagues on both sides of the aisle to 
join me in supporting this legislation.
  The enforcement of trade laws should not be a partisan issue. To 
those who decry our enforcement mechanisms as unabashedly 
protectionist, let me be clear. I believe in free trade. International 
trade and open markets are crucial to the economic prosperity of this 
country. But the essence of free trade is selling goods at a price 
equal to the cost of production and a reasonable profit. When one 
country engages in dumping or subsidization at the expense of other 
countries, it is the antithesis of free trade.
  Let me remind those who criticize our domestic safeguards that 
President Ronald Reagan, a staunch advocate of open markets, signed 
into law agreements limiting the imports of autos and steel and pushed 
for the Plaza Accord in 1985 which raised the value of the yen and made 
Japanese imports more expensive. President Reagan understood that free 
trade did not mean wholly unfettered, unregulated trade. Free trade 
does not mean turning a blind eye to illegal and unsavory practices 
committed by our trading partners.
  I have argued that enforcement of our trade laws is critical to 
ensuring that our domestic manufacturers have a fair opportunity of 
competing with foreign producers. But even the most stringent 
enforcement will be insufficient to fully counter the effects of 
substandard labor, trade, and environmental practices, particularly 
those practiced by China. The safeguard measures the United States 
negotiated in advance of China's entry into the WTO were designed to 
limit the destructive effects of surging Chinese imports on domestic 
producers. As a result, China's succession to the WTO accelerated a 
``race to the bottom'' in wages and environmental quality.
  Given these factors, in addition to China's mixed record on providing 
market access to the United States and its failure to provide 
protection of U.S. intellectual property rights, I urge that the 
Congress reexamine our trade agreement the United States signed with 
China and, if necessary, seek to withdraw permanent normal trade 
relations status from China. Such a withdrawal would be a serious 
measure, but we must be willing to demonstrate that we are serious 
about holding China to its international commitments.
  When the United States granted most-favored-nation status to China in 
2000, we lost our ability to demand that China play by the rules. We 
may have to regain this leverage if we are to maintain an equitable 
trading relationship with China and keep our domestic industry strong.
  As President Obama recently noted in his remarks at the Senate 
Democratic Conference, the United States is home to some of the most 
innovative, skilled, and efficient workers in the world. But advances 
in efficiency and innovation by our producers cannot make up for the 
unfair advantage held by countries that engage in illegal trade 
practices. Our industries can compete if the playing field is level, 
but if foreign exporters are not held accountable, and can freely 
undercut American producers with dumped goods and government subsidies, 
this country's economic future will be at risk. We must take a stand 
and we must do it now.
                                 ______
                                 
      By Mr. McCAIN (for himself, Mr. Lieberman, Mr. Inhofe, Mr. Brown 
        of Massachusetts, Mr. Wicker, Mr. Chambliss, Mr. LeMieux, Mr. 
        Sessions, and Mr. Vitter):
  S. 3081. A bill to provide for the interrogation and detention of 
enemy belligerents who commit hostile acts against the United States, 
to establish certain limitations on the prosecution of such 
belligerents for such acts, and for other purposes; to the Committee on 
the Judiciary.
  Mr. McCAIN. Mr. President, I rise to introduce legislation that sets 
forth a clear, comprehensive policy for the detention, interrogation 
and trial of enemy belligerents who are suspected of engaging in 
hostilities against the U.S. This legislation seeks to ensure that the 
mistakes made during the apprehension of the Christmas Day bomber, such 
as reading him a Miranda warning, will never happen again and put 
Americans' security at risk.
  Specifically, this bill would require unprivileged enemy belligerents 
suspected of engaging in hostilities against the U.S. to be held in 
military custody and interrogated for their intelligence value by a 
``high value detainee'' interagency team established by the President. 
This interagency team of experts in national security, terrorism, 
intelligence, interrogation and law enforcement will have the 
protection of U.S. civilians and civilian facilities as their paramount 
responsibility and experience in gaining actionable intelligence from 
high value detainees.
  These experts must, to the extent it is possible to do so, make a 
preliminary determination whether the detainee is an unprivileged enemy 
belligerent within 48 hours of a detainee being taken into custody. The 
experts then must submit their determination to the Secretary of 
Defense and the Attorney General after consultation with the Director 
of National Intelligence, the Director of the Federal Bureau of 
Investigation, and the Director of the Central Intelligence Agency. The 
Secretary of Defense and the Attorney General make a final 
determination and report it to the President and the appropriate 
committees of Congress. In the case of any disagreement between the 
Secretary of Defense and the Attorney General, the President will make 
the final call.
  A key provision of this bill is that it would prohibit a suspected 
enemy belligerent from being provided with a Miranda warning and being 
told he has a right to a lawyer and a right to refuse to cooperate. I 
believe that an overwhelming majority of Americans agree that when we 
capture a terrorist who is suspected of carrying out or planning an 
attack intended to kill hundreds if not thousands of innocent 
civilians, our focus must be on gaining all the information possible to 
prevent that attack or any that may follow from occurring. Under these 
circumstances, actionable intelligence must be our highest priority and 
criminal prosecution must be secondary.
  Additionally, the legislation would authorize detention of enemy 
belligerents without criminal charges for the duration of the 
hostilities consistent with standards under the law of war which have 
been recognized by the Supreme Court. Importantly, if a decision is 
made to hold a criminal trial after the necessary intelligence 
information is obtained, the bill mandates trial by military commission 
where we are best able to protect U.S. national security interests, 
including sensitive classified sources and methods, as well as the 
place and the people involved in the trial itself.
  It should come as no comfort to any American that nearly 8\1/2\ years 
after the attacks of 9/11 we still don't have a clear mechanism, legal 
structure, and implementing policy for dealing with terrorists who we 
capture in the act of trying to bring about attacks on the U.S. and our 
national security interests at home and abroad. What we saw with the 
Christmas Day bomber was a series of missteps and staggering failures 
in coordination among the most senior members of the administration's 
national security officials that have continued to be compounded by 
administration apologists who still don't seem to understand that 
repeating the same mistakes that were made in 2001 and 2002 is going to 
lead to the deaths of many more Americans.

  The vast majority of Americans understand that what happened with the 
Christmas Day bomber was a near catastrophe that was only prevented by

[[Page S1182]]

sheer luck and the courage of a few of the passengers and crew. A wide 
majority of Americans also realize that allowing a terrorist to be 
interrogated for only 50 minutes before he is given a Miranda warning 
and told he can obtain a lawyer and stop cooperating is not sufficient.
  Let me be clear about where I think the fault lies with our current 
policy. I believe that the local FBI agents who were involved with 
investigating the Detroit attack are patriotic Americans who are 
experts in the field of law enforcement. I hold the FBI in the highest 
regard and believe they set the standard for law enforcement 
professionalism not only in the U.S., but internationally. But it is 
impossible for FBI field agents to know all the information that is 
available to the U.S. intelligence community worldwide during the first 
50 minutes of interrogation of a suspected terrorist. We must ensure 
that the broad range of expertise that is available within our 
government is brought to bear on such high-value detainees. This bill 
mandates such coordination and places the proper focus on getting 
intelligence to stop an attack, rather than allowing law enforcement 
and preparing a case for a civilian criminal trial to drive our 
response.
  Deliberate mass attacks that intentionally target hundreds of 
innocent civilians is an act of war and should not be dealt with in the 
same manner as a robbery. We must recognize the difference. If we 
don't, our response will be hopelessly inadequate. We should not be 
providing suspected terrorists with Miranda warnings and defense 
lawyers. Instead, the priority and focus must be on isolating and 
neutralizing the immediate threat and collecting intelligence to 
prevent another attack.
  In closing, let me say that I hope that Congress and the 
administration support this legislation as part of a comprehensive 
solution for detaining, interrogating and prosecuting suspected enemy 
belligerents. However, there is a lot more work that must be done. I am 
continuing to work with Senator Graham, Senator Lieberman, and others 
to address other crucial aspects of detainee policy.
  As part of that effort, I believe we must establish a system for 
long-term detention of terrorists who are too dangerous to release, but 
who cannot be tried in a civilian court. While the law of war 
authorizes detention until the end of hostilities--something the 
Supreme Court has recognized and which is reinforced in this bill--I 
believe that a review system for the long-term detention of detainees 
should be set out in law. Additionally, both the U.S. District Court 
for the District of Columbia and the D.C. Circuit Court have urged 
Congress to provide uniform guidelines to apply in the habeas corpus 
cases that have been brought by detainees. Currently, the outcomes in 
the Guantanamo detainee habeas cases are inconsistent because of 
different interpretations of novel questions of law the judges face in 
applying habeas to wartime prisoners for the first time in our history. 
I will continue to work on a bipartisan basis to improve this process 
to obtain better, more uniform results. I do not believe that we will 
have addressed all the necessary detainee policy challenges until we do 
so, and my efforts will not stop until we have addressed all the 
detainee issues in a comprehensive fashion.
  While other detainee policy challenges remain, I believe the handling 
of the Christmas Day bomber--including the law enforcement focus and 
the decision to read a Miranda warning after only 50 minutes of 
interrogation--demand that Congress and the administration first 
address the issue which is most crucial to our national security. For 
that reason, we must have a clear policy, legal foundation, and 
mechanism for the detention, interrogation and trial of enemy 
belligerents who are suspected of engaging in hostilities against the 
U.S. I hope my colleagues will join me in supporting this important 
legislation.

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