[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.
____________________