[Congressional Record Volume 156, Number 105 (Thursday, July 15, 2010)]
[Senate]
[Pages S5966-S5972]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. JOHANNS:
  S. 3593. A bill to require the Federal Government to pay the costs 
incurred by a State or local government in defending a State or local 
immigration law that survives a constitutional challenge by the Federal 
Government in Federal court; to the Committee on the Judiciary.
  Mr. JOHANNS. Mr. President, I rise to discuss a bill I have 
introduced because I see a very unfair battle unfolding right in front 
of us. The battle I foresee is this: In one corner we have the enormous 
resources of the Federal Government; in the other corner, cities and 
States with very limited resources, especially in these economic times, 
but with a good-faith desire to protect their communities.
  What I am speaking of today and what my legislation goes to is the 
Federal Government's use of litigation to insert itself into State and 
potentially local immigration laws.
  I rise with a great deal of knowledge about this. As a former mayor 
and county commissioner, city council member and Governor, I know what 
it is like when the Federal Government swoops in and brings its power 
to bear on an issue. I have seen it from both sides, having also served 
as a member of the President's Cabinet. I know that when the resources 
of the Federal Government are used to weigh in with litigation, it is 
crushing. The administration can send in a team of lawyers and 
overwhelm the resources of a community or a State. Litigation brings 
with it a huge financial burden for cities and States. In fact, 
litigation can and does have a chilling effect on the local 
decisionmaking process, even if local leaders believe their action in 
good faith is appropriate and necessary.
  I believe that is the exact reaction this administration is hoping to 
cause among communities and States across the Nation that are 
considering action on immigration issues.
  In this case, I believe litigation is being used to send a warning to 
other communities, other States that might be considering taking action 
in this arena.
  The administration's claim that the Federal Government has sole 
authority to enforce immigration laws because of the supremacy clause 
of the Constitution is, in fact, inconsistent with the President's own 
internal policies. Just last year, President Obama authored a memo, 
sent it out to all Federal departments and agencies, requiring serious 
and careful consideration when using Federal preemption of State laws.
  In this memo, dated May 20, 2009, with the subject ``Preemption,'' 
the President stated:

       The purpose of this memorandum is to state the general 
     policy of my Administration that preemption of State law by 
     executive departments and agencies should be taken only with 
     full consideration of legitimate prerogatives of the States 
     and with sufficient legal basis for preemption.

  That seems clear. But the memo went on further to say:

       Executive departments and agencies should be mindful that 
     in our Federal system, the citizens of the several States 
     have distinctive circumstances and values, and that in many 
     instances it is appropriate for them to apply to themselves 
     rules and principles that reflect those circumstances and 
     values.
  Then, finally, the President goes on to say:

       It is one of the happy incidents of the federal system that 
     a single courageous state may, if its citizens choose, serve 
     as a laboratory; and try novel social experimental 
     experiments without risk to the rest of the country.

  Mr. President, I ask unanimous consent that a copy of this memo be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  The White House,


                                Office of the Press Secretary,

                                                     May 20, 2009.

     Memorandum for the Heads of Executive Departments and Agencies

     Subject: Preemption

       From our Nation's founding, the American constitutional 
     order has been a Federal system, ensuring a strong role for 
     both the national Government and the States. The Federal 
     Government's role in promoting the general welfare and 
     guarding individual liberties is critical, but State law and 
     national law often operate concurrently to provide 
     independent safeguards for the public. Throughout our 
     history, State and local governments have frequently 
     protected health, safety, and the environment more 
     aggressively than has the national Government.
       An understanding of the important role of State governments 
     in our Federal system is reflected in longstanding practices 
     by executive departments and agencies, which have shown 
     respect for the traditional prerogatives of the States. In 
     recent years, however, notwithstanding Executive Order 13132 
     of August 4, 1999 (Federalism), executive departments and 
     agencies have sometimes announced that their regulations 
     preempt State law, including State common law, without 
     explicit preemption by the Congress or an otherwise 
     sufficient basis under applicable legal principles.
       The purpose of this memorandum is to state the general 
     policy of my Administration that preemption of State law by 
     executive departments and agencies should be undertaken only 
     with full consideration of the legitimate prerogatives of the 
     States and with a sufficient legal basis for preemption. 
     Executive departments and agencies should be mindful that in 
     our Federal system, the citizens of the several States have 
     distinctive circumstances and values, and that in many 
     instances it is appropriate for them to apply to themselves 
     rules and principles that reflect these circumstances and 
     values. As Justice Brandeis explained more than 70 years ago, 
     ``[i]t is one of the happy incidents of the federal system 
     that a single courageous state may, if its citizens choose, 
     serve as a laboratory; and try novel social and economic 
     experiments without risk to the rest of the country.''
       To ensure that executive departments and agencies include 
     statements of preemption in regulations only when such 
     statements have a sufficient legal basis:
       (1) Heads of departments and agencies should not include in 
     regulatory preambles statements that the department or agency 
     intends to preempt State law through the regulation except 
     where preemption provisions are also included in the codified 
     regulation.
       (2) Heads of departments and agencies should not include 
     preemption provisions in codified regulations except where 
     such provisions would be justified under legal principles 
     governing preemption, including the principles outlined in 
     Executive Order 13132.
       (3) Heads of departments and agencies should review 
     regulations issued within the past 10 years that contain 
     statements in regulatory preambles or codified provisions 
     intended by the department or agency to preempt State law, in 
     order to decide whether such statements or provisions are 
     justified under applicable legal principles governing 
     preemption. Where the head of a department or agency 
     determines that a regulatory statement of preemption or 
     codified regulatory provision cannot be so justified, the 
     head of that department or agency should initiate appropriate 
     action, which may include amendment of the relevant 
     regulation.
       Executive departments and agencies shall carry out the 
     provisions of this memorandum to the extent permitted by law 
     and consistent with their statutory authorities. Heads of 
     departments and agencies should consult as necessary with the 
     Attorney General and the Office of Management and Budget's 
     Office of Information and Regulatory Affairs to determine how 
     the requirements of this memorandum apply to particular 
     situations.
       This memorandum is not intended to, and does not, create 
     any right or benefit, substantive or procedural, enforceable 
     at law or in equity by any party against the United States, 
     its departments, agencies, or entities, its officers, 
     employees, or agents, or any other person.
       The Director of the Office of Management and Budget is 
     authorized and directed to publish this memorandum in the 
     Federal Register.
                                                     Barack Obama.

  Mr. JOHANNS. So if the use of Federal power to preempt a State 
requires such an extremely high threshold, how can one reconcile that 
with the administration's decision to file a lawsuit?
  My bill sends a message to the administration that it cannot use the 
crushing force and threat and reality of litigation to intimidate local 
officials or to scare them into inaction.
  It would allow a State or a municipal government the ability, the 
right, to recover attorney's fees and other court costs associated with 
defending a Federal challenge of their immigration laws. In other 
words, this straightforward legislation just simply levels

[[Page S5967]]

the playing field between the huge power of the Federal Government in 
one corner, as I said, and the right of local communities in States to 
pass laws to protect their citizens.
  It carries this simple message to any administration: If you file a 
lawsuit and lose, cities and States will not face depleted resources as 
a result.
  My bill ensures that when the Federal Government takes on communities 
in court, the reasons are pure and based in law or else the impact on 
our communities will be neutralized.
  The administration should focus time and resources on what is the 
crux of this issue; that is, securing our borders and doing the job and 
enforcing existing immigration laws and not using litigation as a tool 
to send a message.
  I encourage my colleagues to sign on and cosponsor this commonsense 
measure and level the playing field for communities when they are 
forced to defend themselves against the enormous, nearly unlimited 
power of the Federal Government.
                                 ______
                                 
      By Mr. NELSON of Florida:
  S. 3594. A bill to amend the Magnuson-Stevens Fishery Conservation 
and Management Act to mitigate the economic impact of the transition to 
sustainable fisheries on fishing communities, and for other purposes; 
to the Committee on Commerce, Science, and Transportation.
  Mr. NELSON of Florida. Mr. President, I would like to speak about 
fishing, a very important special pastime and industry for the Nation. 
Fishing in Florida is a way of life for many. The small bait and tackle 
shops, the hotels, the restaurants, the charter boat captains, and the 
parents who want to see their children marvel when they pull a fish out 
of the ocean for the first time rely on being able to access the water. 
In fact, just last week, a Washington Post article traced the path of 
fish caught in the Florida Keys and off of Florida's East Coast to a 
Whole Foods market here in the DC area. And sadly, the Deepwater 
Horizon has shown us how much healthy, high-quality seafood comes out 
of the Gulf of Mexico every year.
  In 2007, the Congress reauthorized the Magnuson-Stevens Fishery 
Conservation and Management Act. The Magnuson Act has certainly done 
some good things to ensure the long-term viability of our Nation's 
fishery resources. But some of the provisions of the law have had major 
unintended consequences in Florida.
  I have spoken before about the need for robust science on the status 
of our oceans and our fishery stocks. In fact, most recently, I worked 
with Gulf Coast Senators to get funding in the Supplemental 
Appropriations bill for fisheries science in the Gulf of Mexico. But 
despite the potential influx of dollars, fisheries data for the 
Southeast in particular, is still sparse. This lack of data has lead to 
a crisis in confidence amongst many in the fishing community. Here is 
why.
  The 2007 Magnuson-Stevens Reauthorization contained a 2010 deadline 
to end overfishing. But the justification for that deadline rested on 
two assumptions. First, that there would be recent and accurate stock 
assessments. Second, that there would be improved catch data. I think 
the National Oceanic and Atmospheric Administration is doing the best 
they can with available resources to gather this data. However, for 
years good data from recreational anglers has been a challenge but 
because of the changes to Magnuson-Stevens, regulations are coming out 
faster than the data used to support them.
  Having that hard and fast 2010 deadline created a situation where the 
resource managers are left without options. This has led to closures of 
large geographic areas to all fishing with no end on the horizon. These 
closures have devastated small businesses that rely on fishing and left 
many frustrated that they cannot access the same waters that they 
always could.
  Being a native Floridian, I know that many people develop a love for 
the ocean and a desire to protect it after they truly experience it by 
swimming, fishing off their boat, or listening to the waves. This 
access is a necessary component of conservation because the public 
gains a sense of ownership and this leads to a sense of responsibility.
  That is why I am filing the Fishery Conservation Transition Act 
today. The bill will enable individuals, businesses, and communities to 
make a smooth transition while the science catches up by creating a 
phase-in period for Federal fishing regulations and requiring enhanced 
data collection in the interim. It also allows for economic assistance 
for those who are negatively impacted by management measures.
  Others have proposed different solutions to this problem, but I 
believe that my bill is a targeted solution that gives resource 
managers options to allow access to the water in a way that will also 
achieve conservation goals.
  There are provisions in the bill that require fishery managers to use 
the transition time wisely and research creative solutions to complex 
management issues, like how to manage multispecies fisheries in a way 
that protects the vulnerable stocks but still allows for access. This 
bill is also about jobs. Small businesses that rely on the fishing 
industry can ride out these difficult economic times without 
sacrificing the resource their businesses rely on.
  I hope that my colleagues in the Senate will support this effort to 
provide a smooth transition to sustainable fisheries, healthy economic 
prospects for small businesses, access to the oceans and natural 
resources, and robust science.
  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. 3594

       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 ``Fishery Conservation 
     Transition Act''.

     SEC. 2. TRANSITION TO SUSTAINABLE FISHERIES.

       (a) In General.--Within 180 days after the close of fishing 
     year 2010 (within the meaning given that term in the 
     Magnuson-Stevens Fishery conservation and Management Act (16 
     U.S.C. 1802 et seq.), the Secretary of Commerce shall 
     determine, with respect to each fishery for which a fishery 
     management plan that meets the requirements of section 
     303(a)(15) of that Act (16 U.S.C. 1853(a)(15)) is in effect 
     that contains a complete prohibition on the retention of 
     stocks subject to overfishing within the fishery for the 
     entire fishing season, whether the prohibition is sufficient 
     to prevent or end overfishing for the stocks, or stocks 
     undergoing overfishing, to which it applies.
       (b) Remedial Action.--If the Secretary determines that the 
     prohibition contained in such a fishery management plan is 
     not sufficient to prevent or end overfishing for the stocks 
     to which it applies, the Secretary may authorize retention of 
     fish that are not undergoing overfishing within that fishery, 
     notwithstanding that discard mortality of stocks for which 
     retention is prohibited may be inconsistent with provisions 
     on ending or preventing overfishing, if, within 90 days after 
     a determination by the Secretary under subsection (a), the 
     Regional Fishery Management Council with jurisdiction over 
     the fishery implements--
       (1) measures to minimize bycatch and bycatch mortality to 
     the extent practicable;
       (2) an enhanced data collection requirement, such as an 
     electronic logbook data collection system, for recreational, 
     for hire, and commercial fishers; and
       (3) a program of on-board observers for charter, for-hire, 
     and commercial fishers that will monitor and collect data on 
     bycatch and bycatch mortality in multispecies fisheries with 
     prohibitions on retention on one or more species in the 
     fisheries; and
       (4) in coordination with the Secretary, other measures to 
     ensure accountability of the fishery, including those that 
     will substantially contribute to addressing data gaps in 
     stock assessments.
       (c) Additional Requirements.--The Secretary shall take such 
     action as may be necessary to ensure that, with respect to 
     any stock subject to overfishing in a fishery to which a 
     determination under subsection (b) applies--
       (1) a monitoring and research program to monitor the 
     recovery of the affected stocks of fish is implemented for 
     the fishery within 1 year after the date of enactment of this 
     Act;
       (2) a stock assessment for the overfished species within 
     the affected stocks of fish is initiated, taking into account 
     relevant life history of the stock, within 6 months after the 
     date on which the Secretary makes such a determination; and
       (3) the Regional Fishery Management Council with 
     jurisdiction over the affected fishery submits a report to 
     Congress and the Secretary detailing a long-term plan for 
     reducing discard mortality of the affected stocks of fish to 
     which a determination under subsection (a) applies within 2 
     years after the date of enactment of this Act.
       (d) Further Action Required.--If the Secretary determines 
     that--
       (1) the Regional Fishery Management Council with 
     jurisdiction over a fishery has complied with the 
     requirements of paragraphs (b) and (c), and

[[Page S5968]]

       (2) the fishery management plan's prohibition on the 
     retention of stocks subject to overfishing continues to be 
     insufficient to prevent or end over-fishing for those stocks,

     the Secretary shall take such action as may be necessary to 
     end overfishing for the stocks to which the prohibition 
     applies before the end of fishery year 2015.

     SEC. 3. ECONOMIC ASSISTANCE PROGRAM.

       (a) In General.--Section 208 of the Magnuson-Stevens 
     Fishery Conservation and Management Reauthorization Act of 
     2006 (16 U.S.C. 1891b) is amended--
       (1) by striking ``and'' after the semicolon in subsection 
     (b)(6);
       (2) by striking ``materia.'' in subsection (b)(7) and 
     inserting ``materia; and'';
       (3) by adding at the end of subsection (b) the following:
       ``(8) the economic assistance program under subsection 
     (f).'';
       (4) by striking ``and'' after the semicolon in subsection 
     (c)(2)(A);
       (5) by striking ``section.'' in subsection (c) (2)(B) and 
     inserting ``section; and'';
       (6) by adding at the end of subsection (c)(2) the 
     following.:
       ``(C) fees collected under permit programs for a fishery 
     significantly affected by a prohibition on the retention of 
     stocks to end or prevent overfishing.''; and
       (7) by adding at the end thereof the following:
       ``(f) Economic Assistance Program.--
       `` (1) In general.--The Secretary shall establish an 
     economic assistance program to assist recreational and 
     commercial fishery participants, fishing industries, and 
     fishing communities significantly affected by a prohibition 
     on the retention of stocks to end or prevent overfishing or 
     rebuild overfished stocks and use amounts in the Fund to 
     provide such assistance.
       ``(2) Criteria for assistance.--In the administration of 
     the program, the Secretary shall develop criteria for 
     prioritizing economic assistance requests, including 
     consideration of the conservation and management history of 
     the fishery, the sustainability of conservation and 
     management approaches, the magnitude of the economic impact 
     of the retention prohibition, and community and social 
     impacts.
       ``(3) Application process.--The Secretary shall develop an 
     application process to determine eligibility for economic 
     assistance under the program and shall consult with States 
     whose recreational and commercial fishery participants, 
     fishing industries, or fishing communities have been affected 
     by the prohibition. Any person or community seeking 
     assistance under the program shall submit an application at 
     such time, in such manner, and containing such information 
     and assurances as the Secretary may require.
       ``(4) State matching funds.--The Federal share of 
     assistance provided under the program to recreational and 
     commercial fishery participants, fishing industries, or 
     fishing communities may not exceed 75 percent. Before 
     granting assistance under the program, the Secretary shall 
     consult with the State in which the recipient is located and 
     request that the State provide matching funds. The Secretary 
     may waive, in whole or in part, the matching requirement 
     under this paragraph.''.

     SEC. 4. AUTHORITY TO ACT.

       (a) Clarification of Emergency Authority.--Section 305(c) 
     of the Magnuson-Stevens Fishery Conservation and Management 
     Act (16 U.S.C. 1855(c)) is amended by adding at the end the 
     following:
       ``(4) For purposes of this section, an emergency is a 
     situation that results from recent, unforeseen, or recently 
     discovered circumstances that present serious conservation or 
     management problems in the fishery, including ecological, 
     economic, social, or public health interests. An emergency 
     may include increasing or decreasing a catch limit, or 
     modifying a time or area closure or retention prohibition in 
     response to new science or stock assessment information, but 
     only if such action is needed to address serious conservation 
     or management problems in the fishery.''.

     SEC. 5. FISHERY STUDIES AND REPORTS.

       (a) Status of Fishery Report.--Section 304(e) of the 
     Magnuson-Stevens Fishery Conservation and Management Act (16 
     U.S.C. 1854(e)) is amended--
       (1) by inserting ``(A)'' before ``The Secretary'';
       (2) by redesignating subparagraphs (A) and (B) as clauses 
     (i) and (ii); and
       (3) by adding at the end the following:
       ``(B) In the review, the Secretary shall consider--
       ``(i) a stock assessment conducted pursuant to subsection 
     (c);
       ``(ii) an analysis of the local, regional, and national 
     social and economic impacts on fishing communities and 
     industries directly and indirectly related to the fishery; 
     and
       ``(iii) fishery management measures to enhance the 
     sustainability of stocks of fish that are overfished, and an 
     evaluation of alternative management approaches that may be 
     implemented to enhance such sustainability.
       ``(C) Stock assessment updates for each stock of fish that 
     is overfished or undergoing overfishing shall be conducted at 
     2 year intervals, and a full stock assessment pursuant to 
     subsection (c) shall be conducted no less frequently than 
     once every 5 years.
       ``(D) The Secretary shall include a summary of reviews 
     conducted under subparagraph (A) in the report required by 
     paragraph (1) of this subsection. To the extent possible, the 
     Secretary shall include in the report recommendations for 
     actions that could be taken to encourage the sustainable 
     management of stocks of fish listed in the Fish Stocks 
     Sustainability Index.''.
       (b) Assessment of Current Management Measures.--
       (1) In general.--The Secretary of Commerce shall conduct a 
     study, in cooperation with the National Academy of Sciences, 
     to determine if current fishery management measures for 
     stocks in a multi-species fishery yield the most productive 
     use of marine resources while effectively conserving 
     sustainable populations and a healthy marine ecosystem. The 
     study shall include--
       (A) the identification of the statutory and regulatory 
     impediments to achieving the maximum sustainable yield from 
     the entire fishery;
       (B) the identification of fishery independent environmental 
     stressors on the fishery;
       (C) the economic value derived from the yield in the 
     fishery; and
       (D) alternative fishery management measures and 
     technologies which would result in increased economic and 
     harvest yields consistent with sound conservation.
       (2) Report.--Within 180 days after the date of enactment of 
     this Act, the Secretary shall transmit a report to the Senate 
     Committee on Commerce, Science, and Transportation and the 
     House of Representatives Committee on Natural Resources 
     containing the Secretary's findings, conclusions, and 
     recommendations.

     SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to the Secretary of 
     Commerce such sums as may be necessary to carry out the 
     provisions of this Act and the amendments made by this Act.
                                 ______
                                 
      By Mrs. HAGAN:
  S. 3596. A bill to establish the Culture of Safety Hospital 
Accountability Study and Demonstration Program; to the Committee on 
Finance.
  Mrs. HAGAN. Mr. President, today I am proud to introduce the Culture 
of Safety Hospital Accountability Act. This bill will test alternatives 
to the current, inflexible system to ensure that hospitals are meeting 
the highest health and safety standards for their patients.
  Under the current system, the Centers for Medicare and Medicaid, or 
CMS, requires hospitals participating in Medicare and Medicaid to 
comply with Conditions of Participation--health and safety standards 
established by CMS for the protection of Medicare and Medicaid 
beneficiaries. CMS contracts with State agencies to perform inspections 
of hospitals, nursing homes, and other health care facilities to ensure 
compliance.
  However, there are significant deficiencies in the current system. A 
major concern among hospitals is CMS' assignment of Immediate Jeopardy, 
which puts hospitals on a 23-day fast-track to losing their Medicare 
and Medicaid funding. Right now, the only remedy that CMS has when a 
hospital receives a citation is termination. There is no flexibility to 
consider the incident on a case-by-case basis--or even to consider 
whether the hospital self-reported and immediately corrected the 
incident. Moreover, current procedures fail to consider the substantial 
resources and efforts that hospitals are already investing in quality 
improvement and patient safety.
  Take, for example, a hospital in my State, which last year got a 23-
day termination notice after they self-reported that one of their 
nurses had H1N1. The hospital immediately sent the nurse home and, as I 
mentioned, immediately reported the incident to CMS. Nevertheless, the 
hospital was required to undergo an inspection and submit the requisite 
plan of correction to CMS. The agency was not able to process the 
paperwork until day 22 of the 23-day notice, causing undue stress for 
the community as they wondered whether the hospital was going to be 
forced to close its doors.
  In addition to the uncertainty for the hospital, the human resources 
required and costs incurred to implement this inflexible system are 
enormous. Once a hospital is cited as out of compliance with their 
Condition of Participation, the State CMS inspectors are required to 
survey the entire hospital and any other hospitals under the same CMS 
provider number. In the case of the hospital I just mentioned, it took 
State inspectors an entire week with 17 staff to survey their hospital 
system.
  To address this inflexibility in the current system, I am introducing 
the Culture of Safety Hospital Accountability Act. This bill would do 
three things:
  First, it would require the Secretary of Health and Human Services to 
study

[[Page S5969]]

existing quality assurance and patient safety activities within 
hospitals and identify best practices that should be replicated.
  Second, it would create a demonstration program among hospitals, 
State health care agencies, and HHS to promote and implement best 
practices for improving patient safety and quality of care. HHS would 
identify up to 6 States and not more than 24 hospitals to participate 
in a 3-year demonstration program.
  Finally, the bill would authorize the Secretary of HHS to promulgate 
regulations modifying termination agreements regarding health and 
safety requirements with hospitals and critical access hospitals to 
better ensure compliance, prevent recurrence of violations, and improve 
internal structures and processes that address patient quality and 
safety.
  Patient safety must be first and foremost, and it is not the intent 
of the demonstration project to keep CMS or State inspectors out of 
hospitals, nor to impair the remedies CMS needs to address quality 
issues. Instead, the bill will help to explore how CMS, State 
regulatory authorities, and hospitals can work collaboratively to 
address quality and safety issues in ways that will ensure the best 
quality of care for patients.
                                 ______
                                 
      By Mr. CARDIN:
  S. 3602. A bill to amend title 23, United States Code, to direct the 
Secretary to establish a comprehensive program to control and treat 
polluted stormwater runoff from federally funded highways and roads, 
and for other purposes; to the Committee on Environment and Public 
Works.
  Mr. CARDIN. Mr. President, today I am proud to introduce legislation 
that will help prevent millions of gallons of pollution from entering 
our Nation's precious water resources. The season we are in makes my 
legislation particularly timely. Spring is one of the wettest times of 
year, and with every Spring shower polluted stormwater runoff washes a 
myriad of chemicals pollutants, sediment, debris, oil and grease, and 
other contaminates from our Nation's roads and highways into our lakes, 
rivers, streams, bays, and coastal waters.
  Stormwater is the nation's largest source of water pollution. While 
rain itself contains air pollution particulates that are deposited in 
every drop, most stormwater pollution is picked up on the surface and 
carried off as runoff. Stormwater washes contaminants like oil, grease, 
heavy metals, nutrients, asbestos, sediments, road salts and other de-
icing agents, brake dust, and road debris from the millions of miles of 
America's roads and into storm drains that discharge into nearby 
waters. Almost all of this polluted stormwater is discharged without 
any treatment.
  When rain falls on these hard, impervious surfaces it often has no 
where to go but down the channels created by curbs and retaining walls, 
into storm drains and into the nearest natural water body. According to 
research compiled by the National Oceanic & Atmospheric 
Administration's, NOAA, National Geophysical Data Center, the U.S. is 
covered by more than 112,600 square kilometers of impervious surfaces. 
That is a space larger than the State of Ohio. With 985,139 miles of 
federal aid highways stretching from every corner of the country, 
polluted highway runoff is no small problem facing our nation's waters.
  The effects of polluted stormwater runoff are real. For example, the 
Anacostia River--Washington's ``other'' and often forgotten river--can 
be seen from the Capitol Dome as it flows out of Prince George's 
County, Maryland, and into the District and on to its confluence with 
the Potomac. Runoff from within the 176 square mile watershed of the 
Anacostia, most of which is in Maryland, but also includes the east 
side of DC and the entire Capitol complex, all makes its way into the 
Anacostia. The stormwater that enters the Anacostia is extremely 
polluted from the thousands of acres of road surfaces that cover the 
watershed, which exacerbates the incidence of combined sewer overflows 
and has impaired the Anacostia for many years. It is no coincidence 
that the U.S. Fish & Wildlife Service has found the Anacostia's bottom-
feeder catfish to have the highest incidence of liver tumors than any 
other population of catfish in the country. The cause of the tumors are 
the high levels of polycyclic aromatic hydrocarbons, a by-product of 
fuel combustion, that come from vehicle tailpipe emissions and are 
deposited on the road and in the air and then washed into the river 
with every shower or thunderstorm.
  This is not a problem unique to Maryland or the Chesapeake Bay 
region, nor is it a problem unique to urban environments as opposed to 
rural environments. Polluted runoff is a problem that affects any 
watershed where impervious paved road and highway surfaces have altered 
the natural hydrology of a watershed. Over time, Federal highway policy 
has come to recognize the drastic impacts highways and surface 
transportation can have on the environment and on water quality. Title 
23 of the U.S. Code states: ``transportation should play a significant 
role in promoting economic growth, improving the environment, and 
sustaining the quality of life'' through the use of ``context sensitive 
solutions.'' The Intermodal Surface Transportation Efficiency Act, 
ISTEA, authorized using transportation enhancement funds for 
``environmental mitigation to address water pollution due to highway 
runoff.'' It's important to note, however, that this is just one of 12 
types of eligible enhancement projects and only 1.1 percent of 
enhancement project funds have gone toward environmental mitigation 
projects since 1992.

  In 2008, at the request of the House Transportation & Infrastructure 
Committee, the Government Accountability Office issued a report 
examining key issues and challenges that need to be addressed in the 
next reauthorization of the transportation bill. That report 
highlighted the clear link between transportation policy and the 
environment. Taking a policy approach to require that the planning, 
design, and construction of highways are done in an environmentally 
responsible manner, with an eye toward mitigating the water quality 
impacts highways have on our Nation's water resources, will help 
address this issue and better meet our Nation's transportation goals. 
This legislation also helps advance the October 5, 2009, Executive 
Order affirming that Federal policy and Federal agencies shall 
``conserve and protect water resources through efficiency, reuse, and 
stormwater management; eliminate waste, recycle, and prevent pollution; 
and leverage agency acquisitions to foster markets for sustainable 
technologies and environmentally preferable materials, products and 
services.''
  The approach my legislation takes to mitigate polluted highway runoff 
is through the implementation of a minimum design standard, developed 
by the United States Department of Transportation, that requires the 
maintenance or restoration of the pre-development hydrology of a 
Federal-aid highway project site. This same approach was made law by 
the Energy Independence & Security Act of 2007 for the development of 
new Federal buildings and facilities.
  My bill would require that all significant Federal highway projects 
must be planned and designed ``to maintain or restore, to the maximum 
extent technically feasible, the predevelopment hydrology of the 
project site with regard to the temperature, rate, chemical 
composition, volume and duration of flow'' of stormwater. This would be 
achieved by approaches that avoid and minimize alteration of natural 
features and hydrology and maximize the use of onsite pollution control 
measures using existing terrain and natural features.
  My bill also recognizes that geography and other physical 
characteristics of the land may not always allow on-site treatment of 
polluted highway runoff. When conditions are impracticable my 
legislation would allow for an ``appropriate off-site runoff pollution 
mitigation program'' within the watershed of a Federal-aid highway 
project site that can protect against the water quality impacts of the 
project.
  The Clean Water Act requires that we protect the waters of the United 
States. As with most pollution abatement strategies, preventing 
stormwater pollution is cheaper, more effective, and easier to 
implement than trying to clean up and remediate the problem after the 
contamination has occurred.
  Not addressing stormwater pollution at its source just kicks the 
proverbial

[[Page S5970]]

can down the road for someone else's attention. When water resources 
are contaminated by polluted highway runoff, mitigating the pollution, 
which is a preventable discharge in the first place, should not be the 
responsibility of local governments, wastewater treatment facilities, 
or drinking water utilities.
  Water pollution has many sources and our Nation's highways produce a 
tremendous volume of contaminated stormwater. Time and time again, 
experience has taught us that addressing pollution at its source is the 
most effective means of abating pollution. It is time we applied this 
principle to our Nation's Federal-aid highways. I urge my colleagues to 
support my legislation and help move our country closer to meeting the 
goals of the Clean Water Act and the goals of our national 
transportation policy.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3602

       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 ``Safe Treatment of Polluted 
     Stormwater Runoff Act'' or the ``STOPS Runoff Act''.

     SEC. 2. FEDERAL-AID HIGHWAY RUNOFF POLLUTION MANAGEMENT 
                   PROGRAM.

       (a) In General.--Chapter 3 of title 23, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 330. Federal-aid highway runoff pollution management 
       program

       ``(a) Establishment.--The Secretary shall establish a 
     Federal-aid highway runoff pollution management program to 
     ensure that covered projects are constructed in accordance 
     with minimum standards designed to protect surface and ground 
     water quality.
       ``(b) Project Approval.--The Secretary may approve a 
     covered project of a State under section 106 only if the 
     State provides assurances satisfactory to the Secretary that 
     the State will construct the project in accordance with the 
     minimum standards described in subsection (c).
       ``(c) Minimum Standards.--The following minimum standards 
     shall apply to the construction of covered projects to 
     maintain or restore, to the maximum extent technically 
     feasible, the predevelopment hydrology of the project site 
     with regard to the temperature, rate, chemical composition, 
     volume and duration of flow:
       ``(1) Avoid and minimize alteration of natural features and 
     hydrology and maximize use of pollution source control 
     measures that utilize existing terrain and natural features 
     and reduce chemical introduction to reduce creation of 
     pollution on the project site.
       ``(2) Maximize capture of highway runoff pollution on the 
     project site through pretreatment and treatment, including 
     environmental site design techniques and other control 
     measures that promote evapotransporation and infiltration.
       ``(3) Prevent any remaining highway runoff pollution not 
     addressed under paragraphs (1) and (2) to the maximum extent 
     practicable by implementing one or more of the following 
     control measures selected through a watershed-based 
     environmental management or equivalent approach:
       ``(A) Pretreatment and treatment of runoff with appropriate 
     control measures on the project site.
       ``(B) Discharge of highway runoff pollution directly to an 
     off-site control measure under the control of the State with 
     documented capacity to provide functionally and 
     quantitatively equivalent management of runoff pollution to 
     that required to achieve the minimum standards of this 
     subsection for the design life of the project.
       ``(C) If the control measures in subparagraphs (A) and (B) 
     are found impracticable based on site conditions or other 
     appropriate factors, and an appropriate off-site runoff 
     pollution mitigation program is in place, contribution to a 
     mitigation program that will produce functionally and 
     quantitatively equivalent management of runoff pollution to 
     that required to achieve the minimum standards. Under this 
     subparagraph, priority shall be given to off-site control 
     measures that address the impacts of runoff pollution to 
     waterways that are listed as impaired in the same or adjacent 
     8-digit Hydrologic Unit Code as the project site.
       ``(d) Guidance.--
       ``(1) In general.--Not later than 180 days after the date 
     of enactment of this section, the Secretary, with the 
     concurrence of the Administrator of the Environmental 
     Protection Agency, shall publish guidance to assist States in 
     complying with the requirements of this section.
       ``(2) Contents of guidance.--The guidance shall include 
     guidelines for the establishment of State processes and 
     programs that will be used to assist in managing highway 
     runoff pollution from covered projects in accordance with the 
     minimum standards described in subsection (c), including--
       ``(A) guidance to help States integrate the planning, 
     selection, design, and long-term operation and maintenance of 
     control measures consistent with the minimum standards in the 
     overall project planning process;
       ``(B) creation of a watershed-based environmental 
     management approach to assist projects in achieving 
     consistency with the minimum standards;
       ``(C) guidelines for the development and utilization of 
     off-site runoff pollution mitigation programs to achieve 
     compliance with the minimum standards; and
       ``(D) provisions for State inspection, monitoring, and 
     reporting to document State compliance and project 
     consistency with this section.
       ``(e) Limitation on Statutory Construction.--Nothing in 
     this section shall be construed to affect the applicability 
     of any provision of Federal, State, or local law that is more 
     stringent than the requirements of this section.
       ``(f) Reporting.--The Secretary shall require each State to 
     report annually to the Secretary on the highway runoff 
     pollution reductions achieved for covered projects carried 
     out by the State after the date of enactment of this section.
       ``(g) Definitions.--In this section, the following 
     definitions apply:
       ``(1) Control measure.--The term `control measure' means a 
     program, structural or nonstructural management practice, 
     operational procedure, or policy on or off the project site 
     that is intended to control, reduce, or prevent highway 
     runoff pollution.
       ``(2) Covered project.--The term `covered project' means a 
     project carried out under this title for--
       ``(A) construction of a new highway or associated facility;
       ``(B) construction of a Federal-aid highway runoff control 
     measure retrofit; or
       ``(C) construction of a significant Federal-aid highway 
     improvement.
       ``(3) Federal-aid highway runoff control measure 
     retrofit.--The term `Federal-aid highway runoff control 
     measure retrofit' means the installation or modification of a 
     control measure for highway runoff pollution serving a 
     Federal-aid highway or associated facility originally 
     constructed before the date of enactment of this section.
       ``(4) Highway runoff pollution.--The term `highway runoff 
     pollution' means in relation to a Federal-aid highway, 
     associated facility, or control measure retrofit projects one 
     or more of the following--
       ``(A) a discharge of sediment, metals, bacteria, chemicals, 
     nutrients, or oil and grease in runoff; or
       ``(B) a discharge of peak flow rate, water temperature, and 
     volume of runoff that exceeds predevelopment amounts 
     generated from a Federal-aid highway, associated facility, or 
     control measure retrofit project that violates the water 
     quality standards of the receiving water set by the Federal 
     Water Pollution Control Act (33 U.S.C. 125 et seq.) and 
     related State programs.
       ``(5) Significant federal-aid highway improvement.--The 
     term `significant Federal-aid highway improvement' means the 
     rehabilitation, reconstruction, reconfiguration, renovation, 
     or major resurfacing of an existing Federal-aid highway or 
     associated facility that disturbs 5 or more acres of land.
       ``(6) Watershed-based environmental management approach.--
     The term `watershed-based environmental management approach' 
     means an approach under which--
       ``(A) the selection of solutions that prevent or minimize 
     the environmental impact of an individual project is made 
     within the broader context of the environmental protection 
     and restoration goals of any watershed that drains the 
     project site, rather than selecting solutions solely based on 
     site level considerations; and
       ``(B) priority consideration is given to--
       ``(i) protection of drinking water supplies;
       ``(ii) protection and restoration of waterways listed by a 
     State as impaired in accordance with section 303(d) of the 
     Federal Water Pollution Control Act (33 U.S.C. 1313(d));
       ``(iii) preservation of aquatic ecosystems and fisheries; 
     and
       ``(iv) cost-effective expenditure of Federal funds.''.
       (b) Effective Date.--The provisions of this legislation 
     will be effective and applicable to construction of Federal-
     Aid Highway projects as defined in subsection (g)(2) 1 year 
     after enactment.
       (c) Clerical Amendment.--The analysis for chapter 3 is 
     amended by adding at the end the following:

``330. Federal-aid highway runoff pollution management program.''.
                                 ______
                                 
      By Ms. CANTWELL:
  S. 3603. A bill to amend the Oil Pollution Act of 1990 to establish 
the Federal Oil Spill Research Committee and to amend the Federal Water 
Pollution Control Act to include in a response plan certain planned and 
demonstrated investments in research relating to discharges of oil and 
to modify the dates by which a response plan is required to be updated; 
to the Committee on Commerce, Science, and Transportation.
  Mr. President, over 21 years ago the tanker Exxon Valdez, en route 
from Valdez, Alaska, to Los Angeles, failed to turn back into the 
shipping lane after detouring to avoid ice. At 12:04 a.m., it ran 
aground on Bligh Reef in Prince William Sound.

[[Page S5971]]

  Within six hours, the Exxon Valdez spilled 11 million gallons of 
crude oil into the Sound's pristine waters and wrote itself into the 
history books as--at that time--the worst oil spill ever in U.S. 
waters. Eventually, oil covered 11,000 square miles of ocean.
  The environmental and economic damage is impossible to both fathom 
and assess; countless seabirds, marine mammals, and fish were killed. 
As a result, companies like the Chugach Alaska Corporation went 
bankrupt. There were huge losses to recreational sports, fisheries, and 
tourism. And 21 years later there is still oil in the area.
  Today, we are re-living a similar nightmare--only this time on an 
even larger scale. The BP oil spill in the Gulf of Mexico, triggered by 
the explosion of the Deepwater Horizon oil rig and the failure of its 
safety systems, has shattered all previous records as the single 
largest marine oil spill in our Nation's history. Even today, oil 
continues to gush from the uncapped well, furthering the devastation to 
the Gulf of Mexico's environment and economy.
  The Exxon Valdez showed us just how unprepared we were in 1989, and 
the BP oil spill is showing us today how unprepared we are in 2010. 
While the Oil Pollution Act of 1990 has been successful in achieving 
many of its policy goals, the BP oil spill is proving to us that oil 
spill response technology remains largely stagnant, and that our 
response infrastructure remains inadequate.
  This is why I rise today to introduce the Oil Spill Technology and 
Research Act.
  This legislation is designed to address the massive gap in oil spill 
research and development that has contributed to our inability to 
respond to the BP oil spill. It will: put mechanisms in place that will 
foster continuous research and development on oil spill response 
methods and technologies; provide an incentive structure for 
translating new technologies from ideas into reality; and continuously 
add new layers to our oil spill safety net.
  This is an important step in the right direction to improve our 
Nation's ability to contain and clean up oil spills in the future.
  It is a proclamation that we are not going to allow complacency back 
at the wheel, nor are we going to allow politics to get in the way of 
doing what is right.
  Twenty-one years ago we saw the devastating costs of complacency, and 
we are living that nightmare again today. It is up to us to ensure that 
this country's environment, economy, and people are protected with the 
greatest rigor that we can muster. Our oceans, coasts, and citizens 
deserve nothing less.
  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. 3603

       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 ``Oil Spill Technology and 
     Research Act of 2010''.

     SEC. 2. FEDERAL OIL SPILL RESEARCH COMMITTEE.

       (a) In General.--Section 7001 of the Oil Pollution Act of 
     1990 (33 U.S.C. 2761) is amended to read as follows:

     ``SEC. 7001. FEDERAL OIL SPILL RESEARCH COMMITTEE.

       ``(a) Establishment.--There is established a committee, to 
     be known as the `Federal Oil Spill Research Committee' 
     (referred to in this section as the `Committee').
       ``(b) Membership.--
       ``(1) Composition.--The Committee shall be composed of--
       ``(A) at least 1 representative of the National Oceanic and 
     Atmospheric Administration;
       ``(B) at least 1 representative of the Coast Guard;
       ``(C) at least 1 representative of the Environmental 
     Protection Agency; and
       ``(D) at least 1 representative of each of such other 
     Federal agencies as the President considers to be 
     appropriate.
       ``(2) Chairperson.--The Under Secretary of Commerce for 
     Oceans and Atmosphere (referred to in this section as the 
     `Under Secretary') shall designate a Chairperson from among 
     members of the Committee who represent the National Oceanic 
     and Atmospheric Administration.
       ``(3) Meetings.--At a minimum, the members of the Committee 
     shall meet once each quarter.
       ``(c) Duties of the Committee.--
       ``(1) Research.--The Committee shall--
       ``(A) coordinate a comprehensive program of oil pollution 
     research, technology development, and demonstration among the 
     Federal agencies, in cooperation and coordination with 
     industry, institutions of higher education, research 
     institutions, State governments, tribal governments, and 
     other countries, as the Committee considers to be 
     appropriate; and
       ``(B) foster cost-effective research mechanisms, including 
     the joint funding of research.
       ``(2) Reports on current state of oil discharge prevention 
     and response capabilities.--
       ``(A) In general.--Not later than 180 days after the date 
     of enactment of the Oil Spill Technology and Research Act of 
     2010, the Committee shall submit to Congress a report on the 
     state of oil discharge prevention and response capabilities 
     that--
       ``(i) identifies current research programs conducted by 
     governments, universities, and corporate entities;
       ``(ii) assesses the current status of knowledge on oil 
     pollution prevention, response, and mitigation technologies;
       ``(iii) establishes national research priorities and goals 
     for oil pollution technology development relating to 
     prevention, response, mitigation, and environmental effects;
       ``(iv) identifies regional oil pollution research needs and 
     priorities for a coordinated program of research at the 
     regional level developed in consultation with the State and 
     local governments and Indian tribes;
       ``(v) assesses the current state of discharge response 
     equipment, and determines areas in need of improvement, 
     including with respect to the quantity, age, quality, and 
     effectiveness of equipment, or necessary technological 
     improvements;
       ``(vi) assesses--

       ``(I) the current state of real-time data available to 
     mariners, including data on water level, currents, and 
     weather (including predictions); and
       ``(II) whether a lack of timely information increases the 
     risk of oil discharges; and

       ``(vii) includes such other information or recommendations 
     as the Committee determines to be appropriate.
       ``(B) 5-year updates.--Not later than 5 years after the 
     date of enactment of the Oil Spill Technology and Research 
     Act of 2010, and every 5 years thereafter, the Committee 
     shall submit to Congress a report updating the information 
     contained in the previous report submitted under subparagraph 
     (A).
       ``(d) Research and Development Program.--
       ``(1) In general.--In carrying out the duties of the 
     Committee under subsection (c)(1), the Committee shall 
     establish a program to conduct oil pollution research and 
     development.
       ``(2) Program elements.--The program established under 
     paragraph (1) shall provide for research, development, and 
     demonstration of new or improved technologies and methods 
     that are effective in preventing, detecting, or responding 
     to, mitigating, and restoring damage from oil discharges and 
     that protect the environment, including each of the 
     following:
       ``(A) High priority research areas described in the reports 
     under subsection (c)(2).
       ``(B) Environmental effects of acute and chronic oil 
     discharges on coastal and marine resources, including impacts 
     on protected areas and protected species.
       ``(C) Long-term effects of major discharges and the long-
     term cumulative effects of smaller endemic discharges.
       ``(D) New technologies to detect accidental or intentional 
     overboard discharges.
       ``(E) Response, containment, and removal capabilities, such 
     as improved booms, oil skimmers, and storage capacity.
       ``(F) Oil discharge risk assessment methods, including the 
     identification of areas of high risk and potential risk 
     reductions for the prevention of discharges.
       ``(G) Capabilities for predicting the environmental fate, 
     transport, and effects of oil discharges, including 
     prediction of the effectiveness of discharge response systems 
     to contain and remove oil discharges.
       ``(H) Methods to restore and rehabilitate natural resources 
     and ecosystem functions damaged by oil discharges.
       ``(I) Research and training, in consultation with the 
     National Response Team, to improve the ability of industry 
     and the Federal Government to remove an oil discharge quickly 
     and effectively.
       ``(J) Oil pollution technology evaluation.
       ``(K) Any other priorities identified by the Committee.
       ``(3) Implementation plan.--
       ``(A) In general.--Not later than 180 days after the date 
     of submission of the report under subsection (c)(2)(A), the 
     Committee shall submit to Congress a plan for the 
     implementation of the program required by paragraph (1).
       ``(B) Assessment by national academy of sciences.--The 
     Chairperson of the Committee, acting through the 
     Administrator of the National Oceanic and Atmospheric 
     Administration, shall enter into an arrangement with the 
     National Academy of Sciences under which the National Academy 
     of Sciences shall--
       ``(i) provide advice and guidance in the preparation and 
     development of the plan required by subparagraph (A); and
       ``(ii) assess the adequacy of the plan as submitted, and 
     submit a report to Congress on the conclusions of the 
     assessment.

[[Page S5972]]

       ``(e) Grant Program in Support of Research and Development 
     Program.--
       ``(1) In general.--The Under Secretary of Commerce shall 
     manage a program of competitive grants to universities or 
     other research institutions, or groups of universities or 
     research institutions, for the purposes of conducting the 
     program established under subsection (d).
       ``(2) Applications and conditions.--In conducting the 
     program, the Under Secretary--
       ``(A) shall establish a notification and application 
     procedure;
       ``(B) may establish such conditions and require such 
     assurances as are appropriate to ensure the efficiency and 
     integrity of the grant program; and
       ``(C) may provide grants under the program on a matching or 
     nonmatching basis.
       ``(f) Advice and Guidance.--
       ``(1) In general.--The Committee shall accept comments and 
     input from State and local governments, Indian tribes, 
     industry representatives, and other stakeholders in carrying 
     out the duties of the Committee under subsection (c).
       ``(2) Advisory council.--The Committee may establish an 
     Advisory Council consisting of nongovernment experts and 
     stakeholders for the purpose of providing guidance to the 
     Committee on matters under this section.
       ``(g) Facilitation.--The Committee may develop joint 
     partnerships or enter into memoranda of agreement or 
     memoranda of understanding with institutions of higher 
     education, States, and other entities to facilitate the 
     research program required by subsection (d).
       ``(h) Annual Reports.--Not later than 1 year after the date 
     of enactment of the Oil Spill Technology and Research Act of 
     2010, and annually thereafter, the Chairperson of the 
     Committee shall submit to Congress a report that describes--
       ``(1) the activities carried out under this section during 
     the preceding fiscal year; and
       ``(2) the activities that are proposed to be carried out 
     under this section for the fiscal year during which the 
     report is submitted.
       ``(i) Authorization of Appropriations.--There are 
     authorized to be appropriated to the Secretary of Commerce to 
     carry out this section--
       ``(1) $200,000 for fiscal year 2010, to remain available 
     until expended, for use in entering into arrangements with 
     the National Academy of Sciences and for paying other 
     expenses incurred in developing the reports and research 
     program under this section; and
       ``(2) $2,000,000 for each of fiscal years 2010 through 
     2012, to remain available until expended.''.
       (b) Termination of Authority of Interagency Committee.--
       (1) In general.--The Interagency Coordinating Committee on 
     Oil Pollution Research established under section 7001 of the 
     Oil Pollution Act of 1990 (33 U.S.C. 2761) (as in effect on 
     the day before the date of enactment of this Act), and all 
     authority of that Committee, terminate on the date of 
     enactment of this Act.
       (2) Funding.--Any funds made available for the Interagency 
     Coordinating Committee on Oil Pollution Research described in 
     paragraph (1) and remaining available as of the date of 
     enactment of this Act shall be transferred to and available 
     for use by the Federal Oil Spill Research Committee (as 
     established by the amendment made by subsection (a)), without 
     further appropriation or fiscal year limitation.

     SEC. 3. RESPONSE PLAN UPDATE REQUIREMENT.

       Section 311(j)(5) of the Federal Water Pollution Control 
     Act (33 U.S.C. 1321(j)(5)) is amended--
       (1) in subparagraph (D)--
       (A) by striking clause (v) and inserting the following:
       ``(v)(I) be updated at least every 5 years;
       ``(II) require the use of the best available technology and 
     methods to contain and remove, to the maximum extent 
     practicable, a worst-case discharge (including a discharge 
     resulting from fire or explosion), and to mitigate or prevent 
     a substantial threat of such a discharge; and
       ``(III) be resubmitted for approval upon each update (which 
     shall be considered to be a significant change to the 
     response plan) under this clause;'';
       (B) in clause (vi), by striking the period at the end and 
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(vii) include planned and demonstrated investments in 
     research relating to oil discharges, risk assessment, and 
     development of technologies for oil discharge response and 
     prevention.''.
       (2) by adding at the end the following:
       ``(J) Technology standards.--The Coast Guard may establish 
     requirements and issue guidance for the use of best available 
     technology and methods under subparagraph (D)(v), which 
     technology and methods shall be based on performance metrics 
     and standards, to the maximum extent practicable.''.

     SEC. 4. OIL DISCHARGE TECHNOLOGY INVESTMENT.

       (a) In General.--The Secretary of the Department in which 
     the Coast Guard is operating (referred to in this section as 
     the ``Secretary'') shall establish a program for the formal 
     evaluation and validation of oil pollution containment and 
     removal methods and technologies.
       (b) Approval.--
       (1) In general.--The program shall establish a process for 
     new methods and technologies to be submitted, evaluated, and 
     gain validation for use in responses to discharges of oil and 
     inclusion in response plans.
       (2) Consideration of capability.--Following each validation 
     of a method or technology described in paragraph (1), the 
     Secretary shall consider whether the method or technology 
     meets a performance capability warranting designation of a 
     new standard for best available technology or methods.
       (3) Lack of validation.--The lack of validation of a method 
     or technology under this section shall not preclude--
       (A) the use of the method or technology in response to a 
     discharge of oil; or
       (B) the inclusion of the method or technology in a response 
     plan.
       (c) Technology Clearinghouse.--Each technology and method 
     validated under this section shall be included in the 
     comprehensive list of discharge removal resources maintained 
     through the National Response Unit of the Coast Guard.
       (d) Consultation.--In carrying out this section, the 
     Secretary shall consult with--
       (1) the Secretary of the Interior;
       (2) the Administrator of the National Oceanic and 
     Atmospheric Administration;
       (3) the Administrator of the Environmental Protection 
     Agency; and
       (4) the Secretary of Transportation.

                          ____________________