[Congressional Record Volume 157, Number 35 (Wednesday, March 9, 2011)]
[Senate]
[Pages S1503-S1511]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. BINGAMAN (for himself, Mr. Udall of New Mexico, Mr.
Schumer, Mr. Kyl, and Mr. Bennet):
S. 517. A bill to authorize the Attorney General to award grants for
States to implement minimum and enhanced DNA collection processes; to
the Committee on the Judiciary.
Mr. BINGAMAN. Mr. President, I rise today to introduce the Katie
Sepich Enhanced DNA Collection Act of 2011. I am pleased that Senators
Kyl, Udall of New Mexico, Schumer, and Bennet of Colorado are joining
me today in sponsoring this important piece of legislation. Congressman
Schiff and Reichert are also introducing this bipartisan bill in the
House.
Similar legislation, which was championed in the House of
Representatives by Congressman Teague, overwhelmingly passed that body
last year with a bipartisan vote of 357 to 32. Unfortunately, efforts
to move the legislation last year were unsuccessful in the Senate. I
look forward to working with my colleagues to pass this bipartisan bill
in the Senate this Congress.
The bill is named after Katie Sepich, a promising graduate student
attending New Mexico State University who was tragically murdered in
2003. The man who killed Katie was arrested for aggravated assault
about 3 months after the murder. Although police had collected the
killer's DNA from the crime scene, because there was no requirement
that DNA be taken from individuals arrested for serious felonies,
police weren't able to get a match until about 3 years after the murder
when the man was sent to prison after being convicted of unrelated
crimes.
If New Mexico had the arrestee law then that it has today it would
have taken 3 months, not 3 years, to solve the crime. Katie's mother,
Jayann, has worked tirelessly at the state and Federal level to give
law enforcement the tools they need to promptly solve crimes and ensure
that other mothers don't have to suffer the same horrible ordeal that
her family has.
We can't get Katie back, or the other lives that have been lost to
these senseless crimes, but we can do something to help solve cases and
prevent similar crimes from occurring in the future. One such step is
to enhance the capacity of States to collect the DNA of individuals
arrested for certain felony crimes, which would substantially increase
the ability of law enforcement to match DNA found at crimes scenes with
that of suspects and individuals who have been previously arrested,
charged, or convicted of crimes.
The Federal Government and about half the states, including New
Mexico, currently collect arrestee DNA for serious offenses. This has
proven to be a very effective tool in solving cases, and it makes sense
to incentivize States to continue and to expand this effort. Since New
Mexico implemented ``Katie's Law'' in 7007, there have been about 100
matches of arrestees. It is also important to note that DNA collection
has not only demonstrated its effectiveness in terms of saving lives
and preventing crimes, but it has also proved to be an important means
of ensuring that innocent individuals are not mistakenly jailed for
crimes they did not commit.
Let me take a moment to specifically describe what this legislation
would, and would not, do. First, this legislation is aimed at creating
an incentive for states to enact arrestee DNA collection program's. It
is not a mandate. States that meet minimum collection guidelines could
apply for DOJ grant assistance in covering the first-year costs that
they have incurred or will incur in implementing the standards. If they
enact laws in accordance with the enhanced guidelines, States would be
eligible for an additional bonus payment.
Second, the bill encourages DNA testing for serious felonies, such as
murder, sex crimes, aggravated assault, and burglary. It is narrowly
tailored to apply to the most serious crimes. Third, the legislation
provides that all of the expungement provisions under Federal law are
applicable. Arrestees who have their DNA included in the Federal
database may have their records expunged if their conviction is
overturned, they are acquitted, or charges are dismissed or not filed
within the applicable time period. Furthermore, the bill provides that
as a condition of receiving a grant States must notify individuals who
submit samples of the relevant expungement procedures and post the
information on a public Web site.
Lastly, I would like to address the concerns some have raised about
the constitutionality of collecting arrestee DNA. Although courts have
upheld the collection of arrestee DNA, I recognize that the question of
whether the collection of a DNA sample from an arrestee is consistent
with the Fourth Amendment isn't a completely settled question of law.
Some courts have viewed the collection as something akin to
fingerprinting and other courts have viewed it as a more intrusive
search, such as the taking of a blood sample. However, the Department
of Justice has stated that it believes that this legislation is
constitutional and is supportive of encouraging states to pass DNA
arrestee laws. I believe that such programs, with appropriate
safeguards in place, have demonstrated that they can be a very
effective mechanism to save lives, solve crimes, and prevent wrongful
convictions.
For these reasons, I urge my colleagues to support this important
legislation.
[[Page S1504]]
______
By Mr. JOHNSON of South Dakota (for himself, Mr. Crapo, Mr.
Harkin, Mr. Moran, Mr. Bennet, Mr. Cochran, Mr. Merkley, Mr.
Roberts, Mrs. Gillibrand, Mr. Barrasso, Ms. Landrieu, Mr.
Risch, Ms. Klobuchar, and Mr. Isakson):
S. 518. A bill to amend the Internal Revenue Code of 1986 to provide
for an exclusion for assistance provided to participants in certain
veterinary student loan repayment or forgiveness programs; to the
Committee on Finance.
Mr. JOHNSON of South Dakota. Mr. President, I rise today to
reintroduce legislation with my friend, Senator Mike Crapo of Idaho,
that will exempt Veterinary Medicine Loan Repayment Program, VMLRP,
awards from federal income taxation. I drafted this bipartisan bill
with the intention of increasing veterinary services in underserved
shortage areas that lack adequate veterinary expertise.
The United States Department of Agriculture's, USDA, Veterinary
Medicine Loan Repayment Program was authorized in 2003 by the National
Veterinary Medical Services Act, NVMSA, to help qualified veterinarians
offset a significant amount of the debt they accrue while pursuing
their degrees if they in turn serve in high-priority veterinary
shortage areas for a certain length of time. However, the awards are
currently taxed at a rate of 39 percent. This taxation is
counterproductive and only delays delivery of veterinary services to
areas that are in desperate need.
In determining whether an area is eligible for assistance under the
VMLRP, USDA has the ability to declare ``shortage situations,'' in
which the Department makes declarations of veterinary shortage areas.
Currently, there are two circumstances that lead to such designations.
The first is by geography, when a given geographic area suffers a
shortage of veterinarians overall. The second occurs when areas suffer
a shortage of veterinarians who practice in a particular field of
veterinary specialty. My home State of South Dakota currently has four
designated shortage situations. Two of these designations are statewide
designations noting a shortage of practitioners in veterinary
specialties. On a national scale, there are 1,300 counties in the
United States that have less than one food animal veterinarian per
25,000 farm animals. Additionally, there are 500 counties that have at
least 5,000 farm animals and not a single veterinarian. Bear in mind,
the demand for veterinarians across our country could increase 14
percent by 2016.
South Dakota is truly a wonderful place to call home, but it is not
always an easy place to earn a living. This is especially true for
young people who are just starting out and are saddled with crushing
levels of school debt. I have long fought for legislation that makes it
easier for students to pay off their loans and to encourage others who
may be reluctant to pursue higher education degrees, due to a lack of
financial resources, especially when it comes to costly professional
degrees including veterinary medicine. My legislation will help
students pursue their educational goals, while also providing important
services to underserved rural areas by enhancing the assistance
veterinary graduates receive in exchange for meaningful public service.
Agriculture is the top contributor to our South Dakota economy. For
those farmers and ranchers who make their living in agriculture, this
is more than a job; it is a way of life. Our ranchers, many of whom
operate in very rural areas, rely on the access they have to qualified
veterinarians to care for their livestock. Adequate access to
veterinary care in rural areas is critical for both human and animal
health, as well as animal welfare, disease surveillance, public safety
and economic development across America. Everyone in America benefits
from the veterinary services provided in even the most remote areas of
our nation. As such, I am committed to doing all I can to help bring
veterinarians to underserved parts of our state.
I am proud to have fought for the establishment of the VMLRP program,
and through my seat on the Senate Appropriations Committee, I have
worked year after year to secure its proper funding. Unfortunately,
however, the taxes assessed on these benefits prevent us from using
congressionally appropriated funding to the fullest extent. For every
three veterinarians selected for the loan repayment awards, an
additional veterinarian could also be selected to serve in an
underserved shortage area if the program was made exempt from taxes.
Such a tax exemption is not without precedent; Congress exempted from
taxation the assistance received by participants in the National Health
Services Corps, NHSC, in 2004, and I hope that my colleagues will join
me in extending this same type of assistance to veterinarians
participating in the VMLRP program.
It should be noted that nearly 140 organizations from across the
nation have announced their support for a tax exemption for VMLRP,
including the American Veterinary Medical Association, American
Association of Equine Practitioners, the American Farm Bureau
Federation, the American Sheep Industry Association, the National
Farmers Union, and the South Dakota Veterinary Medical Association,
South Dakota Farm Bureau, South Dakota Farmers Union, South Dakota
Cattlemen's Association, South Dakota Stockgrowers Association and
many, many others.
Agriculture is the economic engine that drives our rural communities,
and without viable family farms and ranchers, our small towns and Main
Street businesses throughout South Dakota and our nation would face
significant hardships. It is absolutely essential that our agricultural
producers have access to the services they need to be successful and
responsible, and the Veterinary Medicine Loan Repayment Program
Enhancement Act will help make that possible.
Mr. President, I ask unanimous consent that a letter of support be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
American Veterinary Medical Association Governmental
Relations Division,
Washington, DC.
Statement of Support for the Veterinary Medicine Loan Repayment Program
Enhancement Act
The undersigned organizations urge Congress to pass the
Veterinary Medicine Loan Repayment Program Enhancement Act,
which will provide a federal income tax exemption for
payments received under the Veterinary Medicine Loan
Repayment Program (VMLRP) and similar state programs.
Since Congress passed the ``National Veterinary Medical
Services Act'' (PL 108-161) on Dec. 6, 2003, it has
appropriated $9.6 million for awards. About $3.75 million of
this amount will be used by the Agriculture Secretary to pay
taxes on the awards. Every dollar spent on taxes is one less
available for loan repayment awards. If awards are made tax
exempt, one additional veterinarian can be selected for every
three awarded under current law.
The first 62 veterinarians were selected for VMLRP awards
in September 2010. These veterinarians will practice food
supply medicine and veterinary public health in federally
designated shortage situations across the country. The
selected group of veterinarians will receive up to $25,000
annually for three years to repay student loans. Each VMLRP
award including taxes for three years costs approximately
$104,250 per veterinarian ($75,000 for loan repayment and
$29,250 for taxes).
Congress set a precedent for tax exemption. The National
Health Service Corps (NHSC) loan repayment program
(counterpart program for human medicine) was exempted by
``The American Jobs Creation Act of 2004'' (H.R. 4520, P.L.
108-357), enacted on Oct. 22, 2004. Prior to this legislative
change, NHSC loan repayment awards were treated as taxable
income.
Veterinarians selected for VMLRP provide a wide array of
necessary veterinary services for farmers' and ranchers'
livestock including beef and dairy cows, poultry, swine,
goats, sheep, and farm horses. VMLRP veterinarians ensure
animal health and welfare while protecting the nation's food
supply. They provide veterinarian-accredited medical
procedures including routine services (vaccination,
castration and dehorning) and emergency services (for acute
illness, trauma, dystocia or obstetrical difficulties). Other
services performed include those required for interstate
movement of livestock, including commuter agreements and
animal health testing requirements needed to ship livestock.
VMLRP veterinarians perform tuberculosis checks and
accredited blood sample services for Brucellosis, Bluetongue,
and Bovine Viral Diarrhea. Additionally, they may provide
reproduction management consultation services and
consultation in health care programs and nutrition, disease
surveillance and diagnostics for state and federal disease
programs and foreign animal diseases. They may also play a
role in a state's
[[Page S1505]]
veterinary emergency response team and take part in disease
control and eradication programs.
Exempting veterinary medicine loan repayment and
forgiveness program awards from federal income taxation will
lead to more communities having needed veterinary services
sooner than they may otherwise. We strongly support Congress'
efforts to ensure that our nation's livestock are healthy,
that our food supply is safe and secure, and our public
health is protected.
Sincerely,
American Veterinary Medical Association, Academy of Rural
Veterinarians, Alabama Veterinary Medical Association, Alaska
Veterinary Medical Association, American Animal Hospital
Association, American Academy of Veterinary Nutrition,
American Association for Laboratory Animal Science, American
Association of Avian Pathologists, American Association of
Bovine Practitioners, American Association of Corporate and
Public Practice Veterinarians, American Association of Equine
Practitioners, American Association of Feline Practitioners,
American Association of Food Hygiene Veterinarians, American
Association of Public Health Veterinarians, American
Association of Small Ruminant Practitioners.
American Association of Swine Veterinarians, American
Association of Veterinary Clinicians, American Association of
Veterinary Laboratory Diagnosticians, American Association of
Zoo Veterinarians, American Board of Veterinary
Practitioners, American Board of Veterinary Toxicology,
American College of Laboratory Animal Medicine, American
College of Poultry Veterinarians, American College of
Theriogenologists, American College of Veterinary
Dermatology, American College of Veterinary Pathologists,
American College of Veterinary Radiology, American Dairy
Science Association, American Farm Bureau
Federation,' American Feed Industry Association.
American Horse Council, American Meat Institute, American
Rabbit Breeders Association, Inc., American Sheep Industry
Association, American Society of Animal Science, American
Society of Laboratory Animal Practitioners, American Veal
Association, American Veterinary Medical Foundation, Animal
Agriculture Alliance's, Animal Health Institute, Animal
Welfare Institute, Arizona Veterinary Medical Association,
Arkansas Veterinary Medical Association, Association for
Women Veterinarians Foundation, Association of American
Veterinary Medical Colleges.
Association of Avian Veterinarians, Association of
Veterinary Biologics Companies, Association of Zoos &
Aquariums, Bayer Animal Health, Boehringer Ingelheim
Vetmedica, Inc., California Veterinary Medical Association,
Center for Rural Affairs, Colorado Veterinary Medical
Association, Connecticut Veterinary Medical Association,
Delaware Veterinary Medical Association, District of Columbia
Veterinary Medical Association, Elanco Animal Health (A
Division of Eli Lilly & Company), Federation for Animal
Science Societies, Florida Veterinary Medical Association,
Georgia Veterinary Medical Association.
Hawaii Veterinary Medical Association, Idaho Veterinary
Medical Association, Illinois State Veterinary Medical
Association, Indiana Veterinary Medical Association,
International Lama Registry, Iowa Veterinary Medical
Association, Kansas Bioscience Authority, Kansas City Animal
Health Corridor, Kansas Veterinary Medical Association,
Kentucky Veterinary Medical Association, Livestock
Marketing Association, Louisiana Veterinary Medical
Association, Maine Veterinary Medical Association,
Maryland Veterinary Medical Association, Inc.,
Massachusetts Veterinary Medical Association.
Michigan Veterinary Medical Association, Minnesota
Veterinary Medical Association, Mississippi Veterinary
Medical Association, Missouri Veterinary Medical Association,
Montana Veterinary Medical Association, National Aquaculture
Association, National Association of Federal Veterinarians,
National Association of State Departments of Agriculture,
National Association of State Public Health Veterinarians,
National Chicken Council, National Council of Farmer
Cooperatives, National Dairy Herd Information Association,
National Farmers Union, National Institute for Animal
Agriculture, National Livestock Producers Association.
National Milk Producers Federation, National Pork Producers
Council, National Renderers Association, National Turkey
Federation, Nebraska Veterinary Medical Association, Nevada
Veterinary Medical Association, New Hampshire Veterinary
Medical Association, New Jersey Veterinary Medical
Association, New York State Veterinary Medical Society, North
American Deer Farmers Association, North Carolina Veterinary
Medical Association, North Dakota Veterinary Medical
Association, Northeast States Association for Agriculture
Stewardship, Ohio Veterinary Medical Association, Oklahoma
Veterinary Medical Association.
Oregon Veterinary Medical Association, Pet Food Institute,
Pfizer Animal Health, Puerto Rico Veterinary Medical
Association (Colegio de Medicos Veterinarios de Puerto Rico),
Pennsylvania Veterinary Medical Association, Poultry Science
Association, Rhode Island Veterinary Medical Association,
Rocky Mountain Farmers Union, Silliker, Inc., Society for
Theriogenology, South Carolina Association of Veterinarians,
South Dakota Cattlemen's Association, South Dakota Farmers
Union, South Dakota Pork Producers Council, South Dakota
Stockgrowers Association.
South Dakota Veterinary Medical Association, South Dakota
Farm Bureau, State Agriculture and Rural Leaders, Student
American Veterinary Medical Association, Synbiotics
Corporation, Tennessee Veterinary Medical Association, Texas
Veterinary Medical Association, United Egg Producers, United
States Animal Health Association, U.S. Cattlemen's
Association, Utah Veterinary Medical Association, Vermont
Veterinary Medical Association, Virginia Veterinary Medical
Association, Washington State Veterinary Medical Association,
Wisconsin Veterinary Medical Association, Wyoming Veterinary
Medical Association.
______
By Mr. REID (for himself, Mr. Ensign, Mrs. Boxer, and Mrs.
Feinstein):
S. 519. A bill to further allocate and expand the availability of
hydroelectric power generated at Hoover Dam, and for other purposes; to
the Committee on Energy and Natural Resources.
Mr. REID. 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. 519
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 ``Hoover Power Allocation Act
of 2011''.
SEC. 2. ALLOCATION OF CONTRACTS FOR POWER.
(a) Schedule A Power.--Section 105(a)(1)(A) of the Hoover
Power Plant Act of 1984 (43 U.S.C. 619a(a)(1)(A)) is
amended--
(1) by striking ``renewal'';
(2) by striking ``June 1, 1987'' and inserting ``October 1,
2017''; and
(3) by striking Schedule A and inserting the following:
``Schedule A
Long-term Schedule A contingent capacity and associated firm energy for offers of contracts to Boulder Canyon
project contractors
----------------------------------------------------------------------------------------------------------------
Contingent Firm energy (thousands of kWh)
Contractor capacity ---------------------------------------
(kW) Summer Winter Total
----------------------------------------------------------------------------------------------------------------
Metropolitan Water District of Southern California.......... 249,948 859,163 368,212 1,227,375
City of Los Angeles......................................... 495,732 464,108 199,175 663,283
Southern California Edison Company.......................... 280,245 166,712 71,448 238,160
City of Glendale............................................ 18,178 45,028 19,297 64,325
City of Pasadena............................................ 11,108 38,622 16,553 55,175
City of Burbank............................................. 5,176 14,070 6,030 20,100
Arizona Power Authority..................................... 190,869 429,582 184,107 613,689
Colorado River Commission of Nevada......................... 190,869 429,582 184,107 613,689
United States, for Boulder City............................. 20,198 53,200 22,800 76,000
---------------------------------------------------
Totals...................................................... 1,462,323 2,500,067 1,071,729 3,571,796''.
----------------------------------------------------------------------------------------------------------------
(b) Schedule B Power.--Section 105(a)(1)(B) of the Hoover
Power Plant Act of 1984 (43 U.S.C. 619a(a)(1)(B)) is amended
to read as follows:
``(B) To each existing contractor for power generated at
Hoover Dam, a contract, for delivery commencing October 1,
2017, of the amount of contingent capacity and firm energy
specified for that contractor in the following table:
[[Page S1506]]
``Schedule B
Long-term Schedule B contingent capacity and associated firm energy for offers of contracts to Boulder Canyon
project contractors
----------------------------------------------------------------------------------------------------------------
Contingent Firm energy (thousands of kWh)
Contractor capacity -----------------------------------
(kW) Summer Winter Total
----------------------------------------------------------------------------------------------------------------
City of Glendale............................................... 2,020 2,749 1,194 3,943
City of Pasadena................................................ 9,089 2,399 1,041 3,440
City of Burbank................................................. 15,149 3,604 1,566 5,170
City of Anaheim................................................. 40,396 34,442 14,958 49,400
City of Azusa................................................... 4,039 3,312 1,438 4,750
City of Banning................................................. 2,020 1,324 576 1,900
City of Colton.................................................. 3,030 2,650 1,150 3,800
City of Riverside............................................... 30,296 25,831 11,219 37,050
City of Vernon.................................................. 22,218 18,546 8,054 26,600
Arizona......................................................... 189,860 140,600 60,800 201,400
Nevada.......................................................... 189,860 273,600 117,800 391,400
-----------------------------------------------
Totals.......................................................... 507,977 509,057 219,796 728,853''.
----------------------------------------------------------------------------------------------------------------
(c) Schedule C Power.--Section 105(a)(1)(C) of the Hoover
Power Plant Act of 1984 (43 U.S.C. 619a(a)(1)(C)) is
amended--
(1) by striking ``June 1, 1987'' and inserting ``October 1,
2017''; and
(2) by striking Schedule C and inserting the following:
``Schedule C
Excess Energy
----------------------------------------------------------------------------------------------------------------
Priority of entitlement to excess energy State
----------------------------------------------------------------------------------------------------------------
First: Meeting Arizona's first priority right to delivery Arizona
of excess energy which is equal in each year of operation
to 200 million kilowatthours: Provided, That in the event
excess energy in the amount of 200 million kilowatthours
is not generated during any year of operation, Arizona
shall accumulate a first right to delivery of excess
energy subsequently generated in an amount not to exceed
600 million kilowatthours, inclusive of the current year's
200 million kilowatthours. Said first right of delivery
shall accrue at a rate of 200 million kilowatthours per
year for each year excess energy in an amount of 200
million kilowatthours is not generated, less amounts of
excess energy delivered...................................
Second: Meeting Hoover Dam contractual obligations under Arizona, Nevada, and California
Schedule A of subsection (a)(1)(A), under Schedule B of
subsection (a)(1)(B), and under Schedule D of subsection
(a)(2), not exceeding 26 million kilowatthours in each
year of operation.........................................
Third: Meeting the energy requirements of the three States, Arizona, Nevada, and California''.
such available excess energy to be divided equally among
the States................................................
----------------------------------------------------------------------------------------------------------------
(d) Schedule D Power.--Section 105(a) of the Hoover Power
Plant Act of 1984 (43 U.S.C. 619a(a)) is amended--
(1) by redesignating paragraphs (2), (3), and (4) as
paragraphs (3), (4), and (5), respectively; and
(2) by inserting after paragraph (1) the following:
``(2)(A) The Secretary of Energy is authorized to and shall
create from the apportioned allocation of contingent capacity
and firm energy adjusted from the amounts authorized in this
Act in 1984 to the amounts shown in Schedule A and Schedule
B, as modified by the Hoover Power Allocation Act of 2011, a
resource pool equal to 5 percent of the full rated capacity
of 2,074,000 kilowatts, and associated firm energy, as shown
in Schedule D (referred to in this section as `Schedule D
contingent capacity and firm energy'):
``Schedule D
Long-term Schedule D resource pool of contingent capacity and associated firm energy for new allottees
----------------------------------------------------------------------------------------------------------------
Contingent Firm energy (thousands of kWh)
State capacity -----------------------------------
(kW) Summer Winter Total
----------------------------------------------------------------------------------------------------------------
New Entities Allocated by the Secretary of Energy............... 69,170 105,637 45,376 151,013
New Entities Allocated by State
Arizona......................................................... 11,510 17,580 7,533 25,113
California..................................................... 11,510 17,580 7,533 25,113
Nevada.......................................................... 11,510 17,580 7,533 25,113
-----------------------------------------------
Totals.......................................................... 103,700 158,377 67,975 226,352
----------------------------------------------------------------------------------------------------------------
``(B) The Secretary of Energy shall offer Schedule D
contingency capacity and firm energy to entities not
receiving contingent capacity and firm energy under
subparagraphs (A) and (B) of paragraph (1) (referred to in
this section as `new allottees') for delivery commencing
October 1, 2017 pursuant to this subsection. In this
subsection, the term `the marketing area for the Boulder City
Area Projects' shall have the same meaning as in appendix A
of the General Consolidated Power Marketing Criteria or
Regulations for Boulder City Area Projects published in the
Federal Register on December 28, 1984 (49 Federal Register
50582 et seq.) (referred to in this section as the
`Criteria').
``(C)(i) Within 36 months of the date of enactment of the
Hoover Power Allocation Act of 2011, the Secretary of Energy
shall allocate through the Western Area Power Administration
(referred to in this section as `Western'), for delivery
commencing October 1, 2017, for use in the marketing area for
the Boulder City Area Projects 66.7 percent of the Schedule D
contingent capacity and firm energy to new allottees that are
located within the marketing area for the Boulder City Area
Projects and that are--
``(I) eligible to enter into contracts under section 5 of
the Boulder Canyon Project Act (43 U.S.C. 617d); or
``(II) federally recognized Indian tribes.
``(ii) In the case of Arizona and Nevada, Schedule D
contingent capacity and firm energy for new allottees other
than federally recognized Indian tribes shall be offered
through the Arizona Power Authority and the Colorado River
Commission of Nevada, respectively. Schedule D contingent
capacity and firm energy allocated to federally recognized
Indian tribes shall be contracted for directly with Western.
[[Page S1507]]
``(D) Within 1 year of the date of enactment of the Hoover
Power Allocation Act of 2011, the Secretary of Energy also
shall allocate, for delivery commencing October 1, 2017, for
use in the marketing area for the Boulder City Area Projects
11.1 percent of the Schedule D contingent capacity and firm
energy to each of--
``(i) the Arizona Power Authority for allocation to new
allottees in the State of Arizona;
``(ii) the Colorado River Commission of Nevada for
allocation to new allottees in the State of Nevada; and
``(iii) Western for allocation to new allottees within the
State of California, provided that Western shall have 36
months to complete such allocation.
``(E) Each contract offered pursuant to this subsection
shall include a provision requiring the new allottee to pay a
proportionate share of its State's respective contribution
(determined in accordance with each State's applicable
funding agreement) to the cost of the Lower Colorado River
Multi-Species Conservation Program (as defined in section
9401 of the Omnibus Public Land Management Act of 2009
(Public Law 111-11; 123 Stat. 1327)), and to execute the
Boulder Canyon Project Implementation Agreement Contract No.
95-PAO-10616 (referred to in this section as the
`Implementation Agreement').
``(F) Any of the 66.7 percent of Schedule D contingent
capacity and firm energy that is to be allocated by Western
that is not allocated and placed under contract by October 1,
2017, shall be returned to those contractors shown in
Schedule A and Schedule B in the same proportion as those
contractors' allocations of Schedule A and Schedule B
contingent capacity and firm energy. Any of the 33.3 percent
of Schedule D contingent capacity and firm energy that is to
be distributed within the States of Arizona, Nevada, and
California that is not allocated and placed under contract by
October 1, 2017, shall be returned to the Schedule A and
Schedule B contractors within the State in which the Schedule
D contingent capacity and firm energy were to be distributed,
in the same proportion as those contractors' allocations of
Schedule A and Schedule B contingent capacity and firm
energy.''.
(e) Total Obligations.--Paragraph (3) of section 105(a) of
the Hoover Power Plant Act of 1984 (43 U.S.C. 619a(a)) (as
redesignated as subsection (d)(1)) is amended--
(1) in the first sentence, by striking ``schedule A of
section 105(a)(1)(A) and schedule B of section 105(a)(1)(B)''
and inserting ``paragraphs (1)(A), (1)(B), and (2)''; and
(2) in the second sentence--
(A) by striking ``any'' and inserting ``each'';
(B) by striking ``schedule C'' and inserting ``Schedule
C''; and
(C) by striking ``schedules A and B'' and inserting
``Schedules A, B, and D''.
(f) Power Marketing Criteria.--Paragraph (4) of section
105(a) of the Hoover Power Plant Act of 1984 (43 U.S.C.
619a(a)) (as redesignated as subsection (d)(1)) is amended to
read as follows:
``(4) Subdivision E of the Criteria shall be deemed to have
been modified to conform to this section, as modified by the
Hoover Power Allocation Act of 2011. The Secretary of Energy
shall cause to be included in the Federal Register a notice
conforming the text of the regulations to such
modifications.''.
(g) Contract Terms.--Paragraph (5) of section 105(a) of the
Hoover Power Plant Act of 1984 (43 U.S.C. 619a(a)) (as
redesignated as subsection (d)(1)) is amended--
(1) by striking subparagraph (A) and inserting the
following:
``(A) in accordance with section 5(a) of the Boulder Canyon
Project Act (43 U.S.C. 617d(a)), expire September 30,
2067;'';
(2) in the proviso of subparagraph (B)--
(A) by striking ``shall use'' and inserting ``shall
allocate''; and
(B) by striking ``and'' after the semicolon at the end;
(3) in subparagraph (C), by striking the period at the end
and inserting a semicolon; and
(4) by adding at the end the following:
``(D) authorize and require Western to collect from new
allottees a pro rata share of Hoover Dam repayable advances
paid for by contractors prior to October 1, 2017, and remit
such amounts to the contractors that paid such advances in
proportion to the amounts paid by such contractors as
specified in section 6.4 of the Implementation Agreement;
``(E) permit transactions with an independent system
operator; and
``(F) contain the same material terms included in section
5.6 of those long-term contracts for purchases from the
Hoover Power Plant that were made in accordance with this Act
and are in existence on the date of enactment of the Hoover
Power Allocation Act of 2011.''.
(h) Existing Rights.--Section 105(b) of the Hoover Power
Plant Act of 1984 (43 U.S.C. 619a(b)) is amended by striking
``2017'' and inserting ``2067''.
(i) Offers.--Section 105(c) of the Hoover Power Plant Act
of 1984 (43 U.S.C. 619a(c)) is amended to read as follows:
``(c) Offer of Contract to Other Entities.--If any existing
contractor fails to accept an offered contract, the Secretary
of Energy shall offer the contingent capacity and firm energy
thus available first to other entities in the same State
listed in Schedule A and Schedule B, second to other entities
listed in Schedule A and Schedule B, third to other entities
in the same State which receive contingent capacity and firm
energy under subsection (a)(2) of this section, and last to
other entities which receive contingent capacity and firm
energy under subsection (a)(2) of this section.''.
(j) Availability of Water.--Section 105(d) of the Hoover
Power Plant Act of 1984 (43 U.S.C. 619a(d)) is amended to
read as follows:
``(d) Water Availability.--Except with respect to energy
purchased at the request of an allottee pursuant to
subsection (a)(3), the obligation of the Secretary of Energy
to deliver contingent capacity and firm energy pursuant to
contracts entered into pursuant to this section shall be
subject to availability of the water needed to produce such
contingent capacity and firm energy. In the event that water
is not available to produce the contingent capacity and firm
energy set forth in Schedule A, Schedule B, and Schedule D,
the Secretary of Energy shall adjust the contingent capacity
and firm energy offered under those Schedules in the same
proportion as those contractors' allocations of Schedule A,
Schedule B, and Schedule D contingent capacity and firm
energy bears to the full rated contingent capacity and firm
energy obligations.''.
(k) Conforming Amendments.--Section 105 of the Hoover Power
Plant Act of 1984 (43 U.S.C. 619a) is amended--
(1) by striking subsections (e) and (f); and
(2) by redesignating subsections (g), (h), and (i) as
subsections (e), (f), and (g), respectively.
(l) Continued Congressional Oversight.--Subsection (e) of
section 105 of the Hoover Power Plant Act of 1984 (43 U.S.C.
619a)) (as redesignated by subsection (k)(2)) is amended--
(1) in the first sentence, by striking ``the renewal of'';
and
(2) in the second sentence, by striking ``June 1, 1987, and
ending September 30, 2017'' and inserting ``October 1, 2017,
and ending September 30, 2067''.
(m) Court Challenges.--Subsection (f)(1) of section 105 of
the Hoover Power Plant Act of 1984 (43 U.S.C. 619a) (as
redesignated by subsection (k)(2)) is amended in the first
sentence by striking ``this Act'' and inserting ``the Hoover
Power Allocation Act of 2011''.
(n) Reaffirmation of Congressional Declaration of
Purpose.--Subsection (g) of section 105 of the Hoover Power
Plant Act of 1984 (43 U.S.C. 619a) (as redesignated by
subsection (k)(2)) is amended--
(1) by striking ``subsections (c), (g), and (h) of this
section'' and inserting ``this Act''; and
(2) by striking ``June 1, 1987, and ending September 30,
2017'' and inserting ``October 1, 2017, and ending September
30, 2067''.
SEC. 3. PAYGO.
The budgetary effects of this Act, for the purpose of
complying with the Statutory Pay-As-You-Go-Act of 2010, shall
be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act,
submitted for printing in the Congressional Record by the
Chairman of the Senate Budget Committee, provided that such
statement has been submitted prior to the vote on passage.
______
By Mrs. FEINSTEIN:
S. 524. A bill to terminate certain hydropower reservations, and for
other purposes; to the Committee on Energy and Natural Resources.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation
to remove the encumbrances from land patents for a dam project that
will never be built. This will enable the current owner of the land to
sell or bequeath his land more easily.
Donald Smith and his family acquired two parcels of undeveloped
public land in Madera County, California by patent of the United States
in 1983 and 1987. These parcels, comprising 103.26 acres and 41.323
acres, respectively, are adjacent to U.S. Forest Service land.
In the early 1980s, the U.S. Government anticipated that a
hydroelectric power project might someday be built in the vicinity,
causing all or a portion of these lands to be inundated with water.
Accordingly, when it issued the 1983 patent to Mr. Smith, the Bureau of
Land Management included a ``flowage easement'', reserving the right of
the government to flood the lands for a power dam. In the mid-1980s,
the Federal Energy Regulatory Commission determined that this
reservation and others like it were ``non-essential'', and that no dam
would be built. Accordingly, no easement was included in the 1987
patent, although some believe it was erroneously omitted.
Flowage easements constitute a cloud on the title to land,
restricting its market value and the orderly disposition of his estate.
Since FERC, and all potentially interested parties, including BLM,
Southern California Edison and the U.S. Forest Service, have agreed
that the easement in this instance serves no purpose, and no dam
[[Page S1508]]
will be built, clear title should be restored. The Solicitor of the
Department of the Interior has decided this requires an Act of
Congress.
Mr. Smith is now a senior citizen, and seeks to assure that his heirs
will not be burdened by this matter and will benefit from the full fair
market value of these now-verdant and recreational lands. Through
enactment of this simple bill, the Congress will finally affirm a
decision made by FERC in 1986, and restore ``clean'' title for benefit
of Mr. Smith, his heirs and assigns.
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. 524
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TERMINATION OF HYDROPOWER RESERVATIONS.
(a) Termination of Reservation Relating to Bureau of Land
Management Patent Numbered CA 6313.--The reservation under
section 24 of the Federal Power Act (16 U.S.C. 818) of the
Bureau of Land Management patent numbered CA 6313 and dated
May 13, 1983, to the approximately 103.26 acres of land now
owned by Donald L. Smith in Madera County, California, and
more particularly described as a portion of secs. 25, 26, 35,
and 36, T. 4 S., R. 24 E., Mount Diablo Meridian, is
terminated.
(b) Termination of Reservation Relating to Bureau of Land
Management Patent Numbered CA 19394.--To the extent that any
reservation of use for hydropower could be determined to have
been omitted under section 24 of the Federal Power Act (16
U.S.C. 818) from the Bureau of Land Management patent
numbered CA 19394 and dated September 25, 1987, to the
approximately 41.323 acres of land conveyed to Lindsay Smith,
Peggy L. Birchim, Donald L. Smith, and Keith Smith, and more
particularly described as comprising a portion of secs. 25
and 36, unsurveyed T. 4 S., R. 24 E., Mount Diablo Meridian,
Jackass Mining District, Madera County, California, the
reservation is terminated.
______
By Ms. COLLINS (for herself and Ms. Mikulski):
S. 525. A bill to amend the Public Health Service Act to provide for
integration of mental health services and mental health treatment
outreach teams, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Ms. COLLINS. Mr. President, I am pleased to join my colleague from
Maryland, Senator Mikulski, in introducing the Positive Aging Act,
which will help to increase older Americans' access to quality mental
health screening and treatment services in community-based care
settings.
The legislation we are introducing today is particularly important
for States like Maine that have a disproportionate number of older
persons. Fifteen percent of Maine's population is 65 or older, and,
with the highest median age, Maine is the ``oldest'' State in the
nation. Moreover, our percentage of older adults is increasing, and, by
2030, more than one in five Mainers will be over the age of 65.
One of the most daunting public health challenges facing our Nation
today is how to increase access to quality mental health services for
the more than 44 million Americans with severe, disabling mental
disorders that can devastate their lives and the lives of the people
around them.
What is often overlooked, however, is the prevalence of mental
illness among our Nation's elderly. Studies have shown that more than
one in five Americans aged 65 and older experience mental illness, and
that as many as 80 percent of elderly persons in nursing homes suffer
from some kind of mental impairment. Particularly disturbing is the
fact that the mental health needs of older Americans are often
overlooked or not recognized because of the mistaken belief that they
are a normal part of aging and therefore cannot be treated.
While older Americans experience the full range of mental disorders,
the most prevalent mental illness afflicting older people is
depression. Ironically, while recent advances have made depression an
eminently treatable disorder, only a minority of elderly depressed
persons are receiving adequate treatment. Unfortunately, the vast
majority of depressed elderly don't seek help. Many simply accept their
feelings of profound sadness and do not realize that they are
clinically depressed.
Moreover, those who do seek help are often underdiagnosed or
misdiagnosed, leading the National Institute of Mental Health to
estimate that 60 percent of older Americans with depression are not
receiving the mental health care that they need. Failure to treat this
kind of disorder leads to poorer health outcomes for other medical
conditions, higher rates of institutionalization, and increased health
care costs.
Fortunately, important research is being done that is developing
innovative approaches to improve the delivery of mental health care for
older adults by integrating it into primary care settings. This
research demonstrates that older adults are more likely to receive
appropriate mental health care if there is a mental health professional
on the primary care team, rather than simply referring them to a mental
health specialist outside the primary care setting. Multiple
appointments with multiple providers in multiple settings simply don't
work for older patients who must also cope with concurrent chronic
illnesses, mobility problems, and limited transportation options. The
research also shows that there is less stigma associated with
psychiatric services when they are integrated into general medical
care.
The Positive Aging Act builds upon this research and authorizes
funding for projects that integrate mental health screening and
treatment services into community sites and primary care settings.
Specifically, the Positive Aging Act of 2011 would authorize the
Substance Abuse and Mental Health Services Administration to fund
demonstration projects to support integration of mental health services
in primary care settings. It would also support grants for community-
based mental health treatment outreach teams to improve older
Americans' access to mental health services. To ensure that these
geriatric mental health programs have proper attention and oversight,
it would mandate the designation of a Deputy Director for Older Adult
Mental Health Services in the Center for Mental Health Services, and it
would also include representatives of older Americans or their families
and geriatric mental health professionals on the Advisory Council for
the Center for Mental Health Services. Finally, it would require state
plans under Community Mental Health Services Block Grants to include
descriptions of the states' outreach to and services for older
individuals.
We are fortunate today to have a variety of effective treatments to
address the mental health needs of American seniors. The Positive Aging
Act will help to ensure that older Americans have access to these
important services. I therefore urge my colleagues to sign on as
cosponsors of the legislation, which has been endorsed by a broad
coalition of mental health and senior organizations, including the
Alzheimer's Association, the American Geriatrics Society, the American
Psychiatric Association, the American Psychological Association, the
American Association for Geriatric Psychiatry, and the National Council
on Aging.
Mr. President, I ask uanimous consent that a letter of support be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
March 7, 2011.
Hon. Susan M. Collins,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
Hon. Barbara A. Mikulski,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senators Collins and Mikulski: On behalf of the
undersigned organizations, we are writing to applaud your
ongoing commitment to the mental and behavioral health needs
of older Americans and express our strong support for the
Positive Aging Act, which you are planning to introduce in
the near future. This important legislation will improve
access to vital mental and behavioral health care for older
adults by supporting the integration of mental health
services in primary care and community settings.
An estimated 20 percent of community-based older adults in
the U.S. have a mental health problem. These disorders can
have a significant impact on both physical and mental health,
often leading to increases in disease, disability, and
mortality. In fact, men age 85 and older currently have the
highest rates of suicide in our country and depression is the
foremost risk factor. Evidence suggests that up to 75 percent
of older adults who die by suicide have visited a primary
[[Page S1509]]
care professional within 30 days of their death. Although
effective treatments exist, the mental health needs of many
older Americans go unrecognized and untreated because of
poorly integrated systems of care to address the physical and
mental health needs of seniors.
The Positive Aging Act takes an important step toward
improving access to quality mental and behavioral health care
for older adults by integrating mental health services in
primary care and community settings where older adults reside
and receive services. By supporting collaboration between
interdisciplinary teams of mental health professionals and
other providers of health and social services, this
legislation promotes an integrated approach to addressing the
health and well being of our nation's growing older adult
population.
We commend you for your leadership and commitment to the
mental and behavioral health needs of older adults and look
forward to working with you to ensure passage of the Positive
Aging Act.
Sincerely,
Alzheimer's Association; Alzheimer's Foundation of America;
American Assisted Living Nurses Association; American
Association for Geriatric Psychiatry; American Association
for Long Term Care Nursing; American Association for
Psychoanalysis in Clinical Social Work; American Association
for Psychosocial Rehabilitation; American Association on
Health and Disability; American Foundation for Suicide
Prevention/SPAN USA; American Geriatrics Society; American
Group Psychotherapy Association; American Mental Health
Counselors Association; American Nurses Association; American
Occupational Therapy Association; American Orthopsychiatric
Association; American Psychiatric Association; American
Psychological Association; American Psychotherapy
Association; American Society on Aging; Anxiety Disorders
Association of America.
Association for Ambulatory Behavioral Healthcare; Bazelon
Center for Mental Health Law; Clinical Social Work
Association; Clinical Social Work Guild 49; Council of
Professional Geropsychology Training Programs; Depression and
Bipolar Support Alliance; Direct Care Alliance; Geriatric
Mental Health Alliance of New York; Gerontological Society of
America; Illinois Coalition on Mental Health and Aging; Iowa
Coalition on Mental Health and Aging; Jewish Federation of
Metropolitan Chicago; Jewish Federations of North America;
Kansas Advocates for Better Care; Kansas Suicide Prevention
Committee; Mental Health America; Midland Area Agency on
Aging; National Alliance for Caregiving; National Association
for Behavioral Health; National Association for Children's
Behavioral Health.
National Association of Area Agencies on Aging; National
Association of Social Workers; National Association of State
Mental Health Program Directors; National Center for Assisted
Living; National Coalition on Care Coordination; National
Consumer Voice for Quality Long-Term Care; National Council
for Community Behavioral Healthcare; National Council on
Aging; National Council on Problem Gambling; National
Foundation for Mental Health; New Hampshire Coalition on
Substance Abuse, Mental Health & Aging; Oklahoma Mental
Health and Aging Coalition; PHI--Quality Care through Quality
Jobs; Psychologists in Long Term Care; US Psychiatric
Rehabilitation Association; Witness Justice.
______
By Mr. PRYOR (for himself and Ms. Snowe):
S. 532. A bill to establish the Patriot Express Loan Program under
which the Small Business Administration may make loans to members of
the military community wanting to start or expand small business
concerns, and for other purposes; to the Committee on Small Business
and Entrepreneurship.
Ms. SNOWE. Mr. President, I rise today to join with my friend and
colleague, Senator Mark Pryor, in introducing the Patriot Express
Authorization Act of 2011. This legislation codifies a critical Small
Business Administration, SBA, lending program for America's veterans
and Reservists, as well as their spouses.
It is critical that we support our nation's veterans and, in
particular, our service-members returning from Afghanistan and Iraq.
Regrettably, the unemployment rate for veterans of these two wars is
12.5 percent--a full 3.6 percent higher than the national unemployment
rate for the overall population. Many of these brave men and women have
aspirations of owning their own business, and I was proud to work with
Senator Kerry to pass the Military Reservist and Veteran Small Business
Reauthorization and Opportunity Act of 2008, which President George W.
Bush signed into law three years ago. This legislation contains a
number of provisions to help veterans and Reservists who own or are
seeking to own a business, and created an Interagency Task Force on
Veterans Small Business Development, which President Obama formed by
Executive Order last spring, to assist veterans with government
contracting and capital access opportunities in particular.
One way the SBA has supported veteran entrepreneurs is through the
Patriot Express Loan Initiative, which was established as a pilot
program in 2007. According to the data from the SBA, Patriot Express
supported nearly 7,000 loans totaling $560 million to small businesses
owned and operated by eligible participants in just three and a half
years. While the program was scheduled to expire in December, the SBA
extended it for an additional three years, through 2013. That said,
this legislation would provide certainty to the program by placing it
in statute.
Coupled with the counseling and training assistance provided by the
SBA's Office of Veterans Business Development, the Patriot Express loan
program is a signal to our nation's veterans, Reservists, service-
members, and their families that the Federal government takes seriously
its obligation to give back for all they have done to defend our
nation. These loans will help participants start or expand their firms,
purchase equipment or inventory, and ultimately, create jobs. I am
proud to cosponsor this legislation with Senator Pryor.
______
By Mr. GRASSLEY (for himself and Mr. Lee):
S. 533. A bill to amend Rule 11 of the Federal Rules of Civil
Procedure to improve attorney accountability, and for other purposes;
to the Committee on the Judiciary.
Mr. GRASSLEY. Mr. President, I rise today to introduce important
civil justice legislation. This legislation is desperately needed for
several reasons--the most important of which is to cut down on the
costs and expenses that are preventing private businesses from creating
jobs for our fellow citizens during these difficult times.
The billions of dollars wasted on frivolous lawsuits cost Americans
jobs and severely damage our economy. The precise cost of America's
lawsuit culture is staggering. The tort system's direct costs in 2002
were $233 billion, the equivalent of a 5 percent tax on wages. Today
that number is even higher; the annual direct cost of American tort
litigation exceeds $250 billion.
Indeed, frivolous lawsuits are helping to prevent the ``innovation''
that the Obama administration is touting as the key to ``job creation''
and economic recovery. For example, firms with recent initial public
offerings are most at risk to be sued. In fact, companies are most
likely to be sued in their second year of public trading. In other
words, the very corporations most likely to be the source of
significant new job creation are at the highest risk of being sued just
when they are seeking expansion capital through public offerings.
In particular, frivolous lawsuits hurt small businesses. Small
businesses rank the cost and availability of liability insurance as
second only to the cost of health care as their top concerns, and both
problems are fueled by frivolous lawsuits.
Our front-line defense against frivolous lawsuits and the misuse of
our legal system is Rule 11 of the Federal Rules of Civil Procedure.
This rule is intended to deter frivolous lawsuits by sanctioning the
offending party. The power of Rule 11 was diluted in 1993. This
weakening is unacceptable to those of us who want to preserve courts as
neutral forums for dispute resolution.
That is why I am introducing the Lawsuit Abuse Reduction Act of 2011,
``LARA,'' which amends Rule 11 to restore its strength and ability to
truly deter frivolous lawsuits. Senator Mike Lee of Utah is
cosponsoring this bill.
Representative Lamar Smith, the Chairman of the House Judiciary
Committee, is introducing an identical bill today in the House of
Representatives.
Specifically, LARA takes three strong steps to help thwart frivolous
lawsuits.
First, LARA reverses the 1993 amendments to Rule 11 that made
sanctions discretionary rather than mandatory.
One of the most harmful changes that took effect in 1993 was to make
sanctions for proven violations of Rule 11 discretionary. This means
that if a party files a lawsuit simply to harass another party, and the
court decides that this is in fact the case, the offending party still
might not be sanctioned. This is unacceptable. The offending
[[Page S1510]]
party might not be punished at all, which provides no deterrence for
the offending party or anyone else who wants to misuse the courts. My
bill reinstates the requirement that if there is a violation of Rule
11, there are sanctions.
Second, LARA requires that judges impose monetary sanctions against
lawyers who file frivolous lawsuits. Those monetary sanctions will
include the attorney's fees and costs incurred by the victim of the
frivolous lawsuit.
Finally, LARA reverses the 1993 amendments to Rule 11 that allow
parties and their attorneys to avoid sanctions for making frivolous
claims by withdrawing them within 21 days after a motion for sanctions
has been served.
Because of Rule 11's ``safe harbor'' provision, many frivolous claims
are never fully reviewed by federal judges. Under the ``safe harbor''
provision, a person who is victimized by a frivolous claim must hire an
attorney to draft a motion for sanctions. That motion cannot, however,
be filed immediately. Rather, under Rule 11(c)(2), the motion is served
on the offending attorney 21-days before it is filed. During that
period, the offending attorney can withdraw the frivolous claim and
thereby avoid any sanction. LARA would prevent such injustices by
eliminating the ``safe harbor'' provision.
Although LARA would only amend Rule 11 of the Federal Rules of Civil
Procedure, the procedural rules in State courts are often amended to
track changes in the Federal rules. Consequently, it is our hope that
many states would amend their rules governing frivolous lawsuits to
reflect the changes implemented by LARA, just as they did when Rule 11
was last changed in 1993.
Without the serious threat of punishment for filing frivolous
lawsuits, innocent individuals and companies will continue to face the
harsh economic reality that simply paying off frivolous claimants
through monetary settlements is often cheaper than litigating the case.
This perverse dynamic not only results in legalized extortion, but it
leads to increases in the insurance premiums all individuals and
businesses must pay. That is money that could be going to create new
jobs.
I want to work with those who are willing to be reasonable. I know
that some have expressed concerns with similar bills in the past. We
have considered those concerns and have drafted a bill that takes them
into account. For example, this bill expressly provides that nothing in
it ``shall be construed to bar or impede the assertion or development
of new claims, defenses, or remedies under Federal, State, or local
laws, including civil rights laws.''
Requiring mandatory sanctions is not an extreme position. It is a
reasonable and effective solution to the problem of runaway frivolous
lawsuits.
Indeed, a mandatory sanctions requirement is currently the law in the
area of securities litigation. In 1995, we enacted the Private
Securities Litigation Reform Act, PSLRA, over President Clinton's veto.
It essentially reinstates the 1983 version of Rule 11 for the purposes
of securities litigation that falls within its coverage, and makes the
imposition of sanctions mandatory. Upon a final adjudication of a case,
the PSLRA requires courts to make written findings on whether the
parties have complied with Rule 11. In other words, no motion for
sanctions needs to be filed.
At the conclusion of the case, a judge must review the case for
compliance with Rule 11 and, if he finds that there has been a
violation, he must impose sanctions.
So addressing the damaging impact of frivolous lawsuits has had
bipartisan support in the past. That bipartisan support should be even
greater during these difficult economic times.
Let's look at a few examples of the type of lawsuits that businesses
must contend with:
In July 2009, three New Jersey residents, backed by an advocacy
group, filed a class action lawsuit against several hot dog
manufacturers claiming they were exposed to carcinogens by eating hot
dogs. None of the plaintiffs had actually developed cancer. The lawsuit
sought damages in the amount of the total cost of the plaintiffs' hot
dog purchases and a requirement that the companies place a new label on
packages and advertising reading: ``Warning: Consuming hot dogs and
other processed meats increases the risk of cancer.''
The case was dismissed on a Rule 12(b)(6) motion. Thus, a Federal
court held that the plaintiffs had failed to even allege a claim, as a
matter of law.
In another case, a customer alleged that a wild bird ``attacked'' her
while in a Lowe's outdoor garden center, causing her head injuries. She
claimed negligence and a violation of the Illinois Animal Control Act.
She maintained that the wild birds created a dangerous condition on the
property and that Lowe's failed to exercise ordinary care to ensure
that the premises were reasonably safe and failed to prevent the birds
from entering the garden center.
A Federal court entered summary judgment in favor of Lowe's holding
that a ``reasonable plaintiff'' either would have noticed the birds or
understood that contact with them was possible in any outdoor area with
plants. The court also held that Lowe's was not the ``owner'' of the
birds, a necessary element of the customer's statutory claim.
These are just two examples of the scores of frivolous lawsuits that
American businesses must contend with each year.
Requiring sanctions when judges find lawsuits are frivolous will
deter these types of cases from being brought. The savings will result
in cost savings for businesses and new jobs for American workers.
The time for words and rhetoric has long since passed. If the
President means what he is saying about creating jobs, then we must
take action. We need to help private business spur job creation. LARA
is action. LARA is a step in the right direction.
I urge all of my colleagues to work with me and to support this
legislation.
______
By Mr. KERRY (for himself, Mr. Crapo, Mr. Wyden, Ms. Snowe, Mr.
Schumer, Mr. Cornyn, Mr. Leahy, Mr. Burr, Ms. Mikulski, Mr.
Brown of Massachusetts, Mr. Merkley, Mr. Wicker, Mr. Brown of
Ohio, Mr. Chambliss, Mr. Tester, Mr. Cochran, Ms. Cantwell, Mr.
Portman, and Mr. Cardin):
S. 534. A bill to amend the Internal Revenue Code of 1986 to provide
a reduced rate of excise tax on beer produced domestically by certain
small producers; to the Committee on Finance.
Mr. KERRY. Mr. President, today Senator Crapo and I are reintroducing
legislation to assist small brewers across the country. The Brewer's
Employment and Excise Relief, BEER, Act of 2011 would reduce the excise
tax on domestic small beer producers as well as update the definition
of what constitutes a small brewer to reflect today's market. Senators
Wyden, Snowe, Schumer, Cornyn, Leahy, Burr, Mikulski, Scott Brown,
Merkley, Wicker, Sherrod Brown, Chambliss, Tester, Cochran, and
Cantwell are cosponsors of this legislation.
As our economy continues on a track to recovery, we should remain
focused on reducing unemployment and putting American's back to work.
This legislation will do just that by helping an industry that is
hiring and plans on expanding. Massachusetts is home to 38 small
breweries.
Though there has been a continued increase in consumer demand for the
unique brews created by these small brewers, these beer producers
operate at a distinct disadvantage when compared to the largest brewers
in this country. While demand is growing, small brewers account for
just 5 percent of beer sales nationwide and they face higher costs for
production, raw materials, and market entry when compared to their much
larger counterparts.
The BEER Act legislation will revise the classification of a domestic
small brewer, a definition that has not been updated since 1976. Under
current law, small brewers are limited to those that produce 2 million
barrels of beer per year. This legislation would update and raise the
ceiling for the small brewer tax rate to 6 million barrels per year to
reflect the original intent of differentiation between the large and
small brewers. The largest beer producer in America used to produce 45
million barrels annually and that has increased to over 100 million
barrels.
[[Page S1511]]
This legislation will also lower the excise tax rate on these small
brewers on their first 60,000 barrels produced from $7 per barrel to
$3.50 per barrel. Currently for the production over 60,000 barrels up
to 2 million barrels, these brewers pay $18 per barrel in taxes, the
same amount that the large brewers pay. This legislation would reduce
that rate for small brewers to $16 per barrel.
Small brewers employ nearly 100,000 people nationwide. This
legislation will provide tax relief for this important industry, and
allow these companies to expand both their production and their work
force. A March 2010 economic analysis of this legislation done by Dr.
John Friedman of Harvard University has estimated that the legislation
will stimulate job creation at a rate of 2,700 new jobs in the first
year to 18 months, with an additional 375 new jobs each year for the
following 4 years.
The benefits do not simply begin and end with the ability for these
small breweries to grow. This legislation would benefit the consumer
buying a 6 pack of Sierra Nevada or Harpoon in their local supermarket
where prices on craft beer would be reduced by about 20 cents per case.
The farms in the states that produce the barely, hops, and other
materials that go into these fine brews would also see an increased
demand for their products.
This legislation would provide important benefits to America's small
brewers and spur economic activity. It will provide relief and allow
them to expand to meet the demands of a growing marketplace. I urge my
colleagues to support this legislation and support small, domestic beer
producers.
____________________