Congressional Record, Volume 157 Issue 44 (Wednesday, March 30, 2011)

[Congressional Record Volume 157, Number 44 (Wednesday, March 30, 2011)]
[Senate]
[Pages S1978-S1993]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. AKAKA (for himself, Mr. Inouye, Mr. Begich, and Ms.
Murkowski):
S. 675. a bill to express the policy of the United States regarding
the United States relationship with Native Hawaiians and to provide a
process for the recognition by the United States of the Native Hawaiian
governing entity; to the Committee on Indian Affairs.
Mr. AKAKA. Mr. President, today I rise to introduce legislation of
great importance to my state, the Native Hawaiian Government
Reorganization Act of 2011. This bill would ensure parity in federal
policy as it relates to the Native Hawaiian people. It would put them
on equal footing with American Indians and Alaska Natives. I have
sponsored this common-sense legislation since the 106th Congress.
Last December, I spoke here on the Senate floor to reaffirm my
commitment to enact this legislation. I made it clear then to my
colleagues and my constituents that I would be reintroducing this
legislation in the 112th Congress. I am moving forward with the
legislation that was reported out of the Senate Committee on Indian
Affairs in the 111th Congress.
Throughout my Senate career, I have been a member of the Committee on
Indian Affairs. I have worked diligently with my colleagues on the
Committee to champion legislation to improve conditions for our Native
communities across the United States. At the beginning of the 112th
Congress, I became the Chairman of this Committee. I look forward to
working on the many pressing issues for American Indians, Alaska
Natives, and Native Hawaiians. Reconciliation between the United States
and the Native Hawaiian people will be a top priority.
In 1993, I sponsored a measure commonly known as the Apology
Resolution. This resolution was signed into law by President Bill
Clinton. It outlined the history--prior to--and following the overthrow
of the Kingdom of Hawaii, including the involvement in the overthrow by
agents of the United States. In the resolution, the United States
apologized for its involvement--and acknowledged the ramifications of
the overthrow. It committed to support reconciliation efforts between
the United States and the Native Hawaiian people.
However, additional Congressional action is needed.
My legislation allows us to take the necessary next step in the
reconciliation process. The bill does three things. First, it
authorizes an office in the Department of the Interior to serve as a
liaison between Native Hawaiians and the United States. Second, it
forms an interagency task force chaired by the Departments of Justice
and Interior, and composed of officials from federal agencies that
administer programs and services impacting Native Hawaiians. Third, it
authorizes a process for the reorganization of the Native Hawaiian
government for the purposes of a federally-recognized government-to-
government relationship. Once the Native Hawaiian government is
recognized, an inclusive democratic negotiations process representing
both Native Hawaiians and non-Native Hawaiians would be established.
There are many checks and balances in this process. Any agreements
reached would still require the legislative approval of the State and
Federal governments.
Opponents have spread misinformation about the bill. Let me be clear
on some things that this bill does not do. My bill will not allow for
gaming. It does not allow for Hawaii to secede from the United States.
It does not allow for private land to be taken. It does not create a
reservation in Hawaii.
What this bill does do is allow the people of Hawaii to come together
and address issues arising from the overthrow of the Kingdom of Hawaii
more than 118 years ago.

[[Page S1979]]

It is time to move forward with this legislation. To date, there have
been a total of 12 Congressional hearings, including 5 joint hearings
in Hawaii held by the Senate Committee on Indian Affairs and the House
Natural Resources Committee. Our colleagues in the House have passed
versions of this bill three times. We, however, have never had the
opportunity to openly debate this bill on its merits in the Senate. We
have a strong bill that is supported by Native communities across the
United States, by the State of Hawaii, and by the Obama Administration.
Last week, I met with officials and community leaders in the state of
Hawaii to share my intention to reintroduce this legislation. I
received widespread support. This support was not surprising. A poll
conducted by the Honolulu Advertiser in May of last year reported that
66 percent of the people of Hawaii support Federal recognition for
Native Hawaiians. And 82 percent of Native Hawaiians polled support
Federal recognition.
My efforts have the support of the National Congress of American
Indians, the Alaska Federation of Natives, and groups throughout the
Native Hawaiian community including the Association of Hawaiian Civic
Clubs, the Native Hawaiian Bar Association, the Council for Native
Hawaiian Advancement, and two state agencies which represent the
interests of the Native Hawaiian people, the Office of Hawaiian Affairs
and the Department of Hawaiian Home Lands. I have also received support
from national organizations such as the American Bar Association, and
from President Obama, the Department of Justice, and the Department of
Interior.
I encourage all of my colleagues to stand with me and support this
legislation. I welcome any of my colleagues with concerns to speak with
me so I can explain how important this bill is for the people of
Hawaii. The people of Hawaii have waited for far too long. America has
a history of righting past wrongs. The United States has federally
recognized government-to-government relationships with 565 tribes
across our country. It is time to extend this policy to the Native
Hawaiians.
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. 675

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 ``Native Hawaiian Government
Reorganization Act of 2011''.

SEC. 2. FINDINGS.

Congress finds that--
(1) the Constitution vests Congress with the authority to
address the conditions of the indigenous, native people of
the United States and the Supreme Court has held that under
the Indian Commerce, Treaty, Supremacy, and Property Clauses,
and the War Powers, Congress may exercise that power to
rationally promote the welfare of the native peoples of the
United States so long as the native people are a ``distinctly
native community'';
(2) Native Hawaiians, the native people of the Hawaiian
archipelago that is now part of the United States, are 1 of
the indigenous, native peoples of the United States, and the
Native Hawaiian people are a distinctly native community;
(3) the United States has a special political and legal
relationship with, and has long enacted legislation to
promote the welfare of, the native peoples of the United
States, including the Native Hawaiian people;
(4) under the authority of the Constitution, the United
States concluded a number of treaties with the Kingdom of
Hawaii, and from 1826 until 1893, the United States--
(A) recognized the sovereignty of the Kingdom of Hawaii as
a nation;
(B) accorded full diplomatic recognition to the Kingdom of
Hawaii; and
(C) entered into treaties and conventions of peace,
friendship and commerce with the Kingdom of Hawaii to govern
trade, commerce, and navigation in 1826, 1842, 1849, 1875,
and 1887;
(5) pursuant to the Hawaiian Homes Commission Act, 1920 (42
Stat. 108, chapter 42), the United States set aside
approximately 203,500 acres of land in trust to better
address the conditions of Native Hawaiians in the Federal
territory that later became the State of Hawaii and in
enacting the Hawaiian Homes Commission Act, 1920, Congress
acknowledged the Native Hawaiian people as a native people of
the United States, as evidenced by the Committee Report,
which notes that Congress relied on the Indian affairs power
and the War Powers, including the power to make peace;
(6) by setting aside 203,500 acres of land in trust for
Native Hawaiian homesteads and farms, the Hawaiian Homes
Commission Act, 1920, assists the members of the Native
Hawaiian community in maintaining distinctly native
communities throughout the State of Hawaii;
(7) approximately 9,800 Native Hawaiian families reside on
the Hawaiian Home Lands, and approximately 25,000 Native
Hawaiians who are eligible to reside on the Hawaiian Home
Lands are on a waiting list to receive assignments of
Hawaiian Home Lands;
(8)(A) in 1959, as part of the compact with the United
States admitting Hawaii into the Union, Congress delegated
the authority and responsibility to administer the Hawaiian
Homes Commission Act, 1920, lands in trust for Native
Hawaiians and established a new public trust (commonly known
as the ``ceded lands trust''), for 5 purposes, 1 of which is
the betterment of the conditions of Native Hawaiians, and
Congress thereby reaffirmed its recognition of the Native
Hawaiians as a distinctly native community with a direct
lineal and historical succession to the aboriginal,
indigenous people of Hawaii;
(B) the public trust consists of lands, including submerged
lands, natural resources, and the revenues derived from the
lands; and
(C) the assets of this public trust have never been
completely inventoried or segregated;
(9) Native Hawaiians have continuously sought access to the
ceded lands in order to establish and maintain native
settlements and distinct native communities throughout the
State;
(10) the Hawaiian Home Lands and other ceded lands provide
important native land reserves and resources for the Native
Hawaiian community to maintain the practice of Native
Hawaiian culture, language, and traditions, and for the
continuity, survival, and economic self-sufficiency of the
Native Hawaiian people as a distinctly native political
community;
(11) Native Hawaiians continue to maintain other distinctly
native areas in Hawaii, including native lands that date back
to the ali`i and kuleana lands reserved under the Kingdom of
Hawaii;
(12) through the Sovereign Council of Hawaiian Homelands
Assembly, Native Hawaiian civic associations, charitable
trusts established by the Native Hawaiian ali`i, nonprofit
native service providers and other community associations,
the Native Hawaiian people have actively maintained native
traditions and customary usages throughout the Native
Hawaiian community and the Federal and State courts have
continuously recognized the right of the Native Hawaiian
people to engage in certain customary practices and usages on
public lands;
(13) on November 23, 1993, Public Law 103-150 (107 Stat.
1510) (commonly known as the ``Apology Resolution'') was
enacted into law, extending an apology on behalf of the
United States to the native people of Hawaii for the United
States' role in the overthrow of the Kingdom of Hawaii;
(14) the Apology Resolution acknowledges that the overthrow
of the Kingdom of Hawaii occurred with the active
participation of agents and citizens of the United States,
and further acknowledges that the Native Hawaiian people
never directly relinquished to the United States their claims
to their inherent sovereignty as a people over their national
lands, either through the Kingdom of Hawaii or through a
plebiscite or referendum;
(15)(A) the Apology Resolution expresses the commitment of
Congress and the President--
(i) to acknowledge the ramifications of the overthrow of
the Kingdom of Hawaii; and
(ii) to support reconciliation efforts between the United
States and Native Hawaiians;
(B) Congress established the Office of Hawaiian Relations
within the Department of the Interior with 1 of its purposes
being to consult with Native Hawaiians on the reconciliation
process; and
(C) the United States has the duty to reconcile and
reaffirm its friendship with the Native Hawaiian people
because, among other things, the United States Minister and
United States naval forces participated in the overthrow of
the Kingdom of Hawaii;
(16)(A) despite the overthrow of the Government of the
Kingdom of Hawaii, Native Hawaiians have continued to
maintain their separate identity as a single distinctly
native political community through cultural, social, and
political institutions, and to give expression to their
rights as native people to self-determination, self-
governance, and economic self-sufficiency; and
(B) there is clear continuity between the aboriginal,
indigenous, native people of the Kingdom of Hawaii and their
successors, the Native Hawaiian people today;
(17) Native Hawaiians have also given expression to their
rights as native people to self-determination, self-
governance, and economic self-sufficiency--
(A) through the provision of governmental services to
Native Hawaiians, including the provision of--
(i) health care services;
(ii) educational programs;
(iii) employment and training programs;
(iv) economic development assistance programs;
(v) children's services;
(vi) conservation programs;
(vii) fish and wildlife protection;
(viii) agricultural programs;
(ix) native language immersion programs;

[[Page S1980]]

(x) native language immersion schools from kindergarten
through high school;
(xi) college and master's degree programs in native
language immersion instruction; and
(xii) traditional justice programs; and
(B) by continuing their efforts to enhance Native Hawaiian
self-determination and local control;
(18) Native Hawaiian people are actively engaged in Native
Hawaiian cultural practices, traditional agricultural
methods, fishing and subsistence practices, maintenance of
cultural use areas and sacred sites, protection of burial
sites, and the exercise of their traditional rights to gather
medicinal plants and herbs, and food sources;
(19) the Native Hawaiian people wish to preserve, develop,
and transmit to future generations of Native Hawaiians their
lands and Native Hawaiian political and cultural identity in
accordance with their traditions, beliefs, customs and
practices, language, and social and political institutions,
to control and manage their own lands, including ceded lands,
and to achieve greater self-determination over their own
affairs;
(20) this Act provides a process within the framework of
Federal law for the Native Hawaiian people to exercise their
inherent rights as a distinct, indigenous, native community
to reorganize a single unified Native Hawaiian governing
entity for the purpose of giving expression to their rights
as a native people to self-determination and self-governance;
(21) Congress--
(A) has declared that the United States has a special
political and legal relationship for the welfare of the
native peoples of the United States, including Native
Hawaiians;
(B) has identified Native Hawaiians as an indigenous,
distinctly native people of the United States within the
scope of its authority under the Constitution, and has
enacted scores of statutes on their behalf; and
(C) has delegated broad authority to the State of Hawaii to
administer some of the United States' responsibilities as
they relate to the Native Hawaiian people and their lands;
(22) the United States has recognized and reaffirmed the
special political and legal relationship with the Native
Hawaiian people through the enactment of the Act entitled,
``An Act to provide for the admission of the State of Hawaii
into the Union'', approved March 18, 1959 (Public Law 86-3;
73 Stat. 4), by--
(A) ceding to the State of Hawaii title to the public lands
formerly held by the United States, and mandating that those
lands be held as a public trust for 5 purposes, 1 of which is
for the betterment of the conditions of Native Hawaiians; and
(B) transferring the United States responsibility for the
administration of the Hawaiian Home Lands to the State of
Hawaii, but retaining the exclusive right of the United
States to consent to any actions affecting the lands included
in the trust and any amendments to the Hawaiian Homes
Commission Act, 1920 (42 Stat. 108, chapter 42), that are
enacted by the legislature of the State of Hawaii affecting
the beneficiaries under the Act;
(23) the United States has continually recognized and
reaffirmed that--
(A) Native Hawaiians have a direct genealogical, cultural,
historic, and land-based connection to their forebears, the
aboriginal, indigenous, native people who exercised original
sovereignty over the Hawaiian Islands;
(B) Native Hawaiians have never relinquished their claims
to sovereignty or their sovereign lands;
(C) the United States extends services to Native Hawaiians
because of their unique status as the native people of a
prior-sovereign nation with whom the United States has a
special political and legal relationship; and
(D) the special relationship of American Indians, Alaska
Natives, and Native Hawaiians to the United States arises out
of their status as aboriginal, indigenous, native people of
the United States; and
(24) the State of Hawaii supports the reaffirmation of the
special political and legal relationship between the Native
Hawaiian governing entity and the United States, as evidenced
by 2 unanimous resolutions enacted by the Hawaii State
Legislature in the 2000 and 2001 sessions of the Legislature
and by the testimony of the Governor of the State of Hawaii
before the Committee on Indian Affairs of the Senate on
February 25, 2003, and March 1, 2005.

SEC. 3. DEFINITIONS.

In this Act:
(1) Aboriginal, indigenous, native people.--The term
``aboriginal, indigenous, native people'' means a people whom
Congress has recognized as the original inhabitants of the
lands that later became part of the United States and who
exercised sovereignty in the areas that later became part of
the United States.
(2) Apology resolution.--The term ``Apology Resolution''
means Public Law 103-150 (107 Stat. 1510), a Joint Resolution
extending an apology to Native Hawaiians on behalf of the
United States for the participation of agents of the United
States in the January 17, 1893, overthrow of the Kingdom of
Hawaii.
(3) Commission.--The term ``Commission'' means the
Commission established under section 8(b).
(4) Council.--The term ``Council'' means the Native
Hawaiian Interim Governing Council established under section
8(c)(2).
(5) Indian program or service.--
(A) In general.--The term ``Indian program or service''
means any federally funded or authorized program or service
provided to an Indian tribe (or member of an Indian tribe)
because of the status of the members of the Indian tribe as
Indians.
(B) Inclusions.--The term ``Indian program or service''
includes a program or service provided by the Bureau of
Indian Affairs, the Indian Health Service, or any other
Federal agency.
(6) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(7) Indigenous, native people.--The term ``indigenous,
native people'' means the lineal descendants of the
aboriginal, indigenous, native people of the United States.
(8) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 6.
(9) Native hawaiian governing entity.--The term ``Native
Hawaiian governing entity'' means the governing entity
organized pursuant to this Act by the qualified Native
Hawaiian constituents.
(10) Native hawaiian membership organization.--The term
``Native Hawaiian Membership Organization'' means an
organization that--
(A) serves and represents the interests of Native
Hawaiians, has as a primary and stated purpose the provision
of services to Native Hawaiians, and has expertise in Native
Hawaiian affairs;
(B) has leaders who are elected democratically, or selected
through traditional Native leadership practices, by members
of the Native Hawaiian community;
(C) advances the cause of Native Hawaiians culturally,
socially, economically, or politically;
(D) is a membership organization or association; and
(E) has an accurate and reliable list of Native Hawaiian
members.
(11) Office.--The term ``Office'' means the United States
Office for Native Hawaiian Relations established by section
5(a).
(12) Qualified native hawaiian constituent.--For the
purposes of establishing the roll authorized under section 8,
and prior to the recognition by the United States of the
Native Hawaiian governing entity, the term ``qualified Native
Hawaiian constituent'' means an individual who the Commission
determines has satisfied the following criteria and who makes
a written statement certifying that he or she--
(A) is--
(i) an individual who is 1 of the indigenous, native people
of Hawaii and who is a direct lineal descendant of the
aboriginal, indigenous, native people who--

(I) resided in the islands that now comprise the State of
Hawaii on or before January 1, 1893; and
(II) occupied and exercised sovereignty in the Hawaiian
archipelago, including the area that now constitutes the
State of Hawaii; or

(ii) an individual who is 1 of the indigenous, native
people of Hawaii and who was eligible in 1921 for the
programs authorized by the Hawaiian Homes Commission Act,
1920 (42 Stat. 108, chapter 42), or a direct lineal
descendant of that individual;
(B) wishes to participate in the reorganization of the
Native Hawaiian governing entity;
(C) is 18 years of age or older;
(D) is a citizen of the United States; and
(E) maintains a significant cultural, social, or civic
connection to the Native Hawaiian community, as evidenced by
satisfying 2 or more of the following 10 criteria:
(i) Resides in the State of Hawaii.
(ii) Resides outside the State of Hawaii and--

(I)(aa) currently serves or served as (or has a parent or
spouse who currently serves or served as) a member of the
Armed Forces or as an employee of the Federal Government; and
(bb) resided in the State of Hawaii prior to the time he or
she (or such parent or spouse) left the State of Hawaii to
serve as a member of the Armed Forces or as an employee of
the Federal Government; or
(II)(aa) currently is or was enrolled (or has a parent or
spouse who currently is or was enrolled) in an accredited
institution of higher education outside the State of Hawaii;
and
(bb) resided in the State of Hawaii prior to the time he or
she (or such parent or spouse) left the State of Hawaii to
attend such institution.

(iii)(I) Is or was eligible to be a beneficiary of the
programs authorized by the Hawaiian Homes Commission Act,
1920 (42 Stat. 108, chapter 42), and resides or resided on
land set aside as ``Hawaiian home lands'', as defined in such
Act; or
(II) Is a child or grandchild of an individual who is or
was eligible to be a beneficiary of the programs authorized
by such Act and who resides or resided on land set aside as
``Hawaiian home lands'', as defined in such Act.
(iv) Is or was eligible to be a beneficiary of the programs
authorized by the Hawaiian Homes Commission Act, 1920 (42
Stat. 108, chapter 42).
(v) Is a child or grandchild of an individual who is or was
eligible to be a beneficiary of the programs authorized by
the Hawaiian

[[Page S1981]]

Homes Commission Act, 1920 (42 Stat. 108, chapter 42).
(vi) Resides on or has an ownership interest in, or has a
parent or grandparent who resides on or has an ownership
interest in, ``kuleana land'' that is owned in whole or in
part by a person who, according to a genealogy verification
by the Office of Hawaiian Affairs or by court order, is a
lineal descendant of the person or persons who received the
original title to such ``kuleana land'', defined as lands
granted to native tenants pursuant to Haw. L. 1850, p. 202,
entitled ``An Act Confirming Certain Resolutions of the King
and Privy Council Passed on the 21st day of December, A.D.
1849, Granting to the Common People Allodial Titles for Their
Own Lands and House Lots, and Certain Other Privileges'', as
amended by Haw. L. 1851, p. 98, entitled ``An Act to Amend An
Act Granting to the Common People Allodial Titles for Their
Own Lands and House Lots, and Certain Other Privileges'' and
as further amended by any subsequent legislation.
(vii) Is, or is the child or grandchild of, an individual
who has been or was a student for at least 1 school year at a
school or program taught through the medium of the Hawaiian
language under section 302H-6, Hawaii Revised Statutes, or at
a school founded and operated primarily or exclusively for
the benefit of Native Hawaiians.
(viii) Has been a member since September 30, 2009, of at
least 1 Native Hawaiian Membership Organization.
(ix) Has been a member since September 30, 2009, of at
least 2 Native Hawaiian Membership Organizations.
(x) Is regarded as a Native Hawaiian and whose mother or
father is (or if deceased, was) regarded as Native Hawaiian
by the Native Hawaiian community, as evidenced by sworn
affidavits from two or more qualified Native Hawaiian
constituents certified by the Commission as possessing
expertise in the social, cultural, and civic affairs of the
Native Hawaiian community.
(13) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(14) Special political and legal relationship.--The term
``special political and legal relationship'' shall refer,
except where differences are specifically indicated elsewhere
in the Act, to the type of and nature of relationship the
United States has with the several federally recognized
Indian tribes.

SEC. 4. UNITED STATES POLICY AND PURPOSE.

(a) Policy.--The United States reaffirms that--
(1) Native Hawaiians are a unique and distinct, indigenous,
native people with whom the United States has a special
political and legal relationship;
(2) the United States has a special political and legal
relationship with the Native Hawaiian people, which includes
promoting the welfare of Native Hawaiians;
(3)(A) Congress possesses and hereby exercises the
authority under the Constitution, including but not limited
to Article I, Section 8, Clause 3, to enact legislation to
better the conditions of Native Hawaiians and has exercised
this authority through the enactment of--
(i) the Hawaiian Homes Commission Act, 1920 (42 Stat. 108,
chapter 42);
(ii) the Act entitled ``An Act to provide for the admission
of the State of Hawaii into the Union'', approved March 18,
1959 (Public Law 86-3; 73 Stat. 4); and
(iii) more than 150 other Federal laws addressing the
conditions of Native Hawaiians;
(B) other sources of authority under the Constitution for
legislation on behalf of the indigenous, native peoples of
the United States, including Native Hawaiians, include but
are not limited to the Property, Treaty, and Supremacy
Clauses, War Powers, and the Fourteenth Amendment, and
Congress hereby relies on those powers in enacting this
legislation; and
(C) the Constitution's original Apportionment Clause and
the 14th Amendment Citizenship and amended Apportionment
Clauses also acknowledge the propriety of legislation on
behalf of the native peoples of the United States, including
Native Hawaiians;
(4) Native Hawaiians have--
(A) an inherent right to autonomy in their internal
affairs;
(B) an inherent right of self-determination and self-
governance;
(C) the right to reorganize a Native Hawaiian governing
entity; and
(D) the right to become economically self-sufficient; and
(5) the United States shall continue to engage in a process
of reconciliation and political relations with the Native
Hawaiian people.
(b) Purpose.--The purpose of this Act is to provide a
process for the reorganization of the single Native Hawaiian
governing entity and the reaffirmation of the special
political and legal relationship between the United States
and that Native Hawaiian governing entity for purposes of
continuing a government-to-government relationship.

SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS.

(a) Establishment.--There is established within the Office
of the Secretary the United States Office for Native Hawaiian
Relations.
(b) Duties.--The Office shall--
(1) continue the process of reconciliation with the Native
Hawaiian people in furtherance of the Apology Resolution;
(2) upon the reaffirmation of the government-to-government
relationship between the single Native Hawaiian governing
entity and the United States, effectuate and coordinate the
special political and legal relationship between the Native
Hawaiian governing entity and the United States through the
Secretary, and with all other Federal agencies;
(3) provide timely notice to, and consult with, the Native
Hawaiian governing entity before taking any actions that may
have the potential to significantly affect Native Hawaiian
resources, rights, or lands;
(4) work with the Interagency Coordinating Group, other
Federal agencies, and the State of Hawaii on policies,
practices, and proposed actions affecting Native Hawaiian
resources, rights, or lands; and
(5) prepare and submit to the Committee on Indian Affairs
and the Committee on Energy and Natural Resources of the
Senate and the Committee on Natural Resources of the House of
Representatives an annual report detailing the activities of
the Interagency Coordinating Group that are undertaken with
respect to the continuing process of reconciliation and to
effect meaningful consultation with the Native Hawaiian
governing entity and may provide recommendations for any
necessary changes to Federal law or regulations promulgated
under the authority of Federal law.
(c) Applicability to Department of Defense.--This section
shall have no applicability to the Department of Defense or
to any agency or component of the Department of Defense, but
the Secretary of Defense may designate 1 or more officials as
liaison to the Office.

SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.

(a) Establishment.--In recognition that Federal programs
authorized to address the conditions of Native Hawaiians are
largely administered by Federal agencies other than the
Department of the Interior, there is established an
interagency coordinating group, to be known as the ``Native
Hawaiian Interagency Coordinating Group''.
(b) Composition.--The Interagency Coordinating Group shall
be composed of officials, to be designated by the President,
from--
(1) each Federal agency whose actions may significantly or
uniquely impact Native Hawaiian programs, resources, rights,
or lands; and
(2) the Office.
(c) Lead Agency.--
(1) In general.--The Department of the Interior and the
White House Office of Intergovernmental Affairs shall serve
as the leaders of the Interagency Coordinating Group.
(2) Meetings.--The Secretary shall convene meetings of the
Interagency Coordinating Group.
(d) Duties.--The Interagency Coordinating Group shall--
(1) coordinate Federal programs and policies that affect
Native Hawaiians or actions by any agency or agencies of the
Federal Government that may significantly or uniquely affect
Native Hawaiian resources, rights, or lands;
(2) consult with the Native Hawaiian governing entity,
through the coordination referred to in paragraph (1), but
the consultation obligation established in this provision
shall apply only after the satisfaction of all of the
conditions referred to in section 8(c)(8); and
(3) ensure the participation of each Federal agency in the
development of the report to Congress authorized in section
5(b)(5).
(e) Applicability to Department of Defense.--This section
shall have no applicability to the Department of Defense or
to any agency or component of the Department of Defense, but
the Secretary of Defense may designate 1 or more officials as
liaison to the Interagency Coordinating Group.

SEC. 7. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE.

The Attorney General shall designate an appropriate
official within the Department of Justice to assist the
Office in the implementation and protection of the rights of
Native Hawaiians and their political and legal relationship
with the United States, and upon the recognition of the
Native Hawaiian governing entity as provided for in section
8, in the implementation and protection of the rights of the
Native Hawaiian governing entity and its political and legal
relationship with the United States.

SEC. 8. PROCESS FOR REORGANIZATION OF NATIVE HAWAIIAN
GOVERNING ENTITY AND REAFFIRMATION OF SPECIAL
POLITICAL AND LEGAL RELATIONSHIP BETWEEN UNITED
STATES AND NATIVE HAWAIIAN GOVERNING ENTITY.

(a) Recognition of Native Hawaiian Governing Entity.--The
right of the qualified Native Hawaiian constituents to
reorganize the single Native Hawaiian governing entity to
provide for their common welfare and to adopt appropriate
organic governing documents is recognized by the United
States.
(b) Commission.--
(1) In general.--There is authorized to be established a
Commission to be composed of 9 members for the purposes of--
(A) preparing and maintaining a roll of qualified Native
Hawaiian constituents; and
(B) certifying that the individuals on the roll of
qualified Native Hawaiian constituents meet the definition of
qualified Native Hawaiian constituent set forth in section 3.
(2) Membership.--
(A) Appointment.--
(i) In general.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall appoint the
members of the

[[Page S1982]]

Commission in accordance with subparagraph (B).
(ii) Consideration.--In making an appointment under clause
(i), the Secretary may take into consideration a
recommendation made by any Native Hawaiian Membership
Organization.
(B) Requirements.--Each member of the Commission shall
demonstrate, as determined by the Secretary--
(i) not less than 10 years of experience in the study and
determination of Native Hawaiian genealogy (traditional
cultural experience shall be given due consideration); and
(ii) an ability to read and translate into English
documents written in the Hawaiian language.
(C) Vacancies.--A vacancy on the Commission--
(i) shall not affect the powers of the Commission; and
(ii) shall be filled in the same manner as the original
appointment.
(3) Expenses.--Each member of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(4) Duties.--The Commission shall--
(A) prepare and maintain a roll of qualified Native
Hawaiian constituents as set forth in subsection (c); and
(B) certify that the individuals on the roll of qualified
Native Hawaiian constituents meet the definition of that term
as set forth in section 3.
(5) Staff.--
(A) In general.--The Commission may, without regard to the
civil service laws (including regulations), appoint and
terminate an executive director and such other additional
personnel as are necessary to enable the Commission to
perform the duties of the Commission.
(B) Compensation.--
(i) In general.--Except as provided in clause (ii), the
Commission may fix the compensation of the executive director
and other personnel without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of title 5,
United States Code, relating to classification of positions
and General Schedule pay rates.
(ii) Maximum rate of pay.--The rate of pay for the
executive director and other personnel shall not exceed the
rate payable for level V of the Executive Schedule under
section 5316 of title 5, United States Code.
(6) Detail of federal government employees.--
(A) In general.--An employee of the Federal Government may
be detailed to the Commission without reimbursement.
(B) Civil service status.--The detail of the employee shall
be without interruption or loss of civil service status or
privilege.
(7) Procurement of temporary and intermittent services.--
The Commission may procure temporary and intermittent
services in accordance with section 3109(b) of title 5,
United States Code, at rates for individuals that do not
exceed the daily equivalent of the annual rate of basic pay
prescribed for level V of the Executive Schedule under
section 5316 of that title.
(8) Expiration.--The Secretary shall dissolve the
Commission upon the reaffirmation of the special political
and legal relationship between the Native Hawaiian governing
entity and the United States.
(c) Process for Reorganization of Native Hawaiian Governing
Entity.--
(1) Roll.--
(A) Contents.--The roll shall include the names of the
qualified Native Hawaiian constituents who are certified by
the Commission to be qualified Native Hawaiian constituents,
as defined in section 3.
(B) Formation of roll.--Each individual claiming to be a
qualified Native Hawaiian constituent shall submit to the
Commission documentation in the form established by the
Commission that is sufficient to enable the Commission to
determine whether the individual meets the definition set
forth in section 3; Provided, That an individual presenting
evidence that he or she satisfies the definition in section 2
of Public Law 103-150 shall be presumed to meet the
requirement of section 3(12)(A)(i).
(C) Documentation.--The Commission shall--
(i)(I) identify the types of documentation that may be
submitted to the Commission that would enable the Commission
to determine whether an individual meets the definition of
qualified Native Hawaiian constituent set forth in section 3;
(II) recognize an individual's identification of lineal
ancestors on the 1890 Census by the Kingdom of Hawaii as a
reliable indicia of lineal descent from the aboriginal,
indigenous, native people who resided in the islands that now
comprise the State of Hawaii on or before January 1, 1893;
and
(III) permit elderly Native Hawaiians and other Native
Hawaiians lacking birth certificates or other documentation
due to birth on Hawaiian Home Lands or other similar
circumstances to establish lineal descent by sworn affidavits
from 2 or more qualified Native Hawaiian constituents;
(ii) establish a standard format for the submission of
documentation and a process to ensure veracity; and
(iii) publish information related to clauses (i) and (ii)
in the Federal Register.
(D) Consultation.--In making determinations that each
individual proposed for inclusion on the roll of qualified
Native Hawaiian constituents meets the definition of
qualified Native Hawaiian constituent in section 3, the
Commission may consult with Native Hawaiian Membership
Organizations, agencies of the State of Hawaii including but
not limited to the Department of Hawaiian Home Lands, the
Office of Hawaiian Affairs, and the State Department of
Health, and other entities with expertise and experience in
the determination of Native Hawaiian ancestry and lineal
descendancy.
(E) Notification.--The Commission shall--
(i) inform an individual whether they have been deemed by
the Commission a qualified Native Hawaiian constituent; and
(ii) inform an individual of a right to appeal the decision
if deemed not to be a qualified Native Hawaiian constituent.
(F) Certification and submittal of roll to secretary.--The
Commission shall--
(i) submit the roll containing the names of those
individuals who meet the definition of qualified Native
Hawaiian constituent in section 3 to the Secretary within 2
years from the date on which the Commission is fully
composed; and
(ii) certify to the Secretary that each of the qualified
Native Hawaiian constituents proposed for inclusion on the
roll meets the definition set forth in section 3.
(G) Publication.--Upon certification by the Commission to
the Secretary that those listed on the roll meet the
definition of qualified Native Hawaiian constituent set forth
in section 3, the Commission shall publish the notice of the
certification of the roll in the Federal Register,
notwithstanding pending appeals pursuant to subparagraph (H).
(H) Appeal.--The Secretary, in consultation with the
Commission, shall establish a mechanism for an administrative
appeal for any person whose name is excluded from the roll
who claims to meet the definition of qualified Native
Hawaiian constituent in section 3.
(I) Publication; update.--The Commission shall--
(i) publish the notice of the certification of the roll
regardless of whether appeals are pending;
(ii) update the roll and provide notice of the updated roll
on the final disposition of any appeal;
(iii) update the roll to include any person who has been
certified by the Commission as meeting the definition of
qualified Native Hawaiian constituent in section 3 after the
initial publication of the roll or after any subsequent
publications of the roll; and
(iv) provide a copy of the roll and any updated rolls to
the Council.
(J) Effect of publication.--The publication of the initial
and updated roll shall serve as the basis for the eligibility
of qualified Native Hawaiian constituents whose names are
listed on those rolls to participate in the reorganization of
the Native Hawaiian governing entity.
(2) Organization of council.--
(A) Organization.--The Commission, in consultation with the
Secretary, shall hold a minimum of 3 meetings and each
meeting shall be at least 2 working days of the qualified
Native Hawaiian constituents listed on the roll established
under this section--
(i) to develop criteria for candidates to be elected to
serve on the Council;
(ii) to determine the structure of the Council, including
the number of Council members; and
(iii) to elect members from individuals listed on the roll
established under this subsection to the Council.
(B) Powers.--
(i) In general.--The Council--

(I) shall represent those listed on the roll established
under this section in the implementation of this Act; and
(II) shall have no powers other than powers given to the
Council under this Act.

(ii) Funding.--The Council may enter into a contract with,
or obtain a grant from, any Federal or State agency to carry
out clause (iii).
(iii) Activities.--

(I) In general.--The Council shall conduct, among the
qualified Native Hawaiian constituents listed on the roll
established under this subsection, a referendum for the
purpose of determining the proposed elements of the organic
governing documents of the Native Hawaiian governing entity,
including but not limited to--

(aa) the proposed criteria for future membership in the
Native Hawaiian governing entity;
(bb) the proposed powers and authorities to be exercised by
the Native Hawaiian governing entity, as well as the proposed
privileges and immunities of the Native Hawaiian governing
entity;
(cc) the proposed civil rights and protection of the rights
of the citizens of the Native Hawaiian governing entity and
all persons affected by the exercise of governmental powers
and authorities of the Native Hawaiian governing entity; and
(dd) other issues determined appropriate by the Council.

(II) Development of organic governing documents.--Based on
the referendum, the Council shall develop proposed organic
governing documents for the Native Hawaiian governing entity
and may seek technical assistance from the Secretary on the
draft organic governing documents to ensure that the draft
organic governing documents comply with this Act and other
Federal law.

[[Page S1983]]

(III) Distribution.--The Council shall publish to all
qualified Native Hawaiian constituents of the Native Hawaiian
governing entity listed on the roll published under this
subsection notice of the availability of--

(aa) a copy of the proposed organic governing documents, as
drafted by the Council; and
(bb) a brief impartial description of the proposed organic
governing documents;

(IV) Elections.--

(aa) In general.--Not sooner than 180 days after the
proposed organic governing documents are drafted and
distributed, the Council, with the assistance of the
Secretary, shall hold elections for the purpose of ratifying
the proposed organic governing documents.
(bb) Purpose.--The Council, with the assistance of the
Secretary, shall hold the election for the purpose of
ratifying the proposed organic governing documents 60 days
after publishing notice of an election.
(cc) Officers.--On certification of the organic governing
documents by the Secretary in accordance with paragraph (4),
the Council, with the assistance of the Secretary, shall hold
elections of the officers of the Native Hawaiian governing
entity pursuant to paragraph (5).
(3) Submittal of organic governing documents.--Following
the reorganization of the Native Hawaiian governing entity
and the adoption of organic governing documents, the Council
shall submit the organic governing documents of the Native
Hawaiian governing entity to the Secretary.
(4) Certifications.--
(A) In general.--Within the context of the future
negotiations to be conducted under the authority of section
9(b)(1), and the subsequent actions by the Congress and the
State of Hawaii to enact legislation to implement the
agreements of the 3 governments, not later than 180 days,
which may be extended an additional 90 days if the Secretary
deems necessary, after the date on which the Council submits
the organic governing documents to the Secretary, the
Secretary shall certify or decline to certify that the
organic governing documents--
(i) establish the criteria for membership in the Native
Hawaiian governing entity;
(ii) were adopted by a majority vote of those qualified
Native Hawaiian constituents whose names are listed on the
roll published by the Secretary and who voted in the
election;
(iii) provide authority for the Native Hawaiian governing
entity to negotiate with Federal, State, and local
governments, and other entities;
(iv) provide for the exercise of inherent and other
appropriate governmental authorities by the Native Hawaiian
governing entity;
(v) prevent the sale, disposition, lease, or encumbrance of
lands, interests in lands, or other assets of the Native
Hawaiian governing entity without the consent of the Native
Hawaiian governing entity;
(vi) provide for the protection of the civil rights of the
citizens of the Native Hawaiian governing entity and all
persons affected by the exercise of governmental powers and
authorities by the Native Hawaiian governing entity; and
(vii) are consistent with applicable Federal law.
(B) Resubmission in case of noncompliance.--
(i) Resubmission by the secretary.--If the Secretary
determines that the organic governing documents, or any part
of the documents, do not meet all of the requirements set
forth in subparagraph (A), the Secretary shall resubmit the
organic governing documents to the Council, along with a
justification for each of the Secretary's findings as to why
the provisions are not in full compliance.
(ii) Amendment and resubmission of organic governing
documents.--If the organic governing documents are
resubmitted to the Council by the Secretary under clause (i),
the Council shall--

(I) amend the organic governing documents to ensure that
the documents meet all the requirements set forth in
subparagraph (A); and
(II) resubmit the amended organic governing documents to
the Secretary for certification in accordance with this
paragraph.

(C) Certifications deemed made.--The certifications under
this paragraph shall be deemed to have been made if the
Secretary has not acted within 180 days after the date on
which the Council has submitted the organic governing
documents of the Native Hawaiian governing entity to the
Secretary.
(5) Elections.--On completion of the certifications by the
Secretary under paragraph (4), the Council, with the
assistance of the Secretary, shall hold elections of the
officers of the Native Hawaiian governing entity.
(6) Provision of roll.--The Council shall provide a copy of
the roll of qualified Native Hawaiian constituents to the
governing body of the Native Hawaiian governing entity.
(7) Termination.--The Council shall cease to exist and
shall have no power or authority under this Act after the
officers of the governing body who are elected as provided in
paragraph (5) are installed.
(8) Reaffirmation.--Notwithstanding any other provision of
law, the special political and legal relationship between the
United States and the Native Hawaiian people is hereby
reaffirmed and the United States extends Federal recognition
to the Native Hawaiian governing entity as the representative
sovereign governing body of the Native Hawaiian people
after--
(A) the approval of the organic governing documents by the
Secretary under subparagraph (A) or (C) of paragraph (4); and
(B) the officers of the Native Hawaiian governing entity
elected under paragraph (5) have been installed.

SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY TO
STATE OF HAWAII; NEGOTIATIONS; CLAIMS.

(a) Reaffirmation.--The delegation by the United States of
authority to the State of Hawaii to address the conditions of
the indigenous, native people of Hawaii contained in the Act
entitled ``An Act to provide for the admission of the State
of Hawaii into the Union'', approved March 18, 1959 (Public
Law 86-3; 73 Stat. 4), is reaffirmed.
(b) Negotiations.--
(1) In general.--Upon the reaffirmation of the special
political and legal relationship between the United States
and the Native Hawaiian governing entity, the United States
and the State of Hawaii may enter into negotiations with the
Native Hawaiian governing entity designed to lead to an
agreement or agreements addressing such matters as--
(A) the transfer of State of Hawaii lands and surplus
Federal lands, natural resources, and other assets, and the
protection of existing rights related to such lands or
resources;
(B) the exercise of governmental authority over any
transferred lands, natural resources, and other assets,
including land use;
(C) the exercise of civil and criminal jurisdiction;
(D) the exercise of other powers and authorities that are
recognized by the United States as powers and authorities
typically exercised by governments representing indigenous,
native people of the United States;
(E) any residual responsibilities of the United States and
the State of Hawaii; and
(F) grievances regarding assertions of historical wrongs
committed against Native Hawaiians by the United States or by
the State of Hawaii.
(2) Amendments to existing laws.--Upon agreement on any
matter or matters negotiated with the United States or the
State of Hawaii, and the Native Hawaiian governing entity,
the parties may submit--
(A) to the Committee on Indian Affairs of the Senate, the
Committee on Energy and Natural Resources of the Senate, and
the Committee on Natural Resources of the House of
Representatives recommendations for proposed amendments to
Federal law that will enable the implementation of agreements
reached between the governments; and
(B) to the Governor and the legislature of the State of
Hawaii, recommendations for proposed amendments to State law
that will enable the implementation of agreements reached
between the governments.
(3) Governmental authority and power.--The Native Hawaiian
governing entity shall be vested with the inherent powers and
privileges of self-government of a native government under
existing law, except as set forth in section 10(a). Said
powers and privileges may be modified by agreement between
the Native Hawaiian governing entity, the United States, and
the State pursuant to paragraph (1), subject to the limit
described by section 10(a). Unless so agreed, nothing in this
Act shall preempt Federal or State authority over Native
Hawaiians or their property under existing law or authorize
the State to tax or regulate the Native Hawaiian governing
entity.
(4) Membership.--Once the United States extends Federal
recognition to the Native Hawaiian governing entity, the
United States will recognize and affirm the Native Hawaiian
governing entity's inherent power and authority to determine
its own membership criteria, to determine its own membership,
and to grant, deny, revoke, or qualify membership without
regard to whether any person was or was not deemed to be a
qualified Native Hawaiian constituent under this Act.
(c) Claims.--Nothing in this Act--
(1) alters existing law, including case law, regarding
obligations of the United States or the State of Hawaii
relating to events or actions that occurred prior to
recognition of the Native Hawaiian governing entity;
(2) creates, enlarges, revives, modifies, diminishes,
extinguishes, waives, or otherwise alters any claim or cause
of action against the United States or its officers or the
State of Hawaii or its officers, or any defense (including
the defense of statute of limitations) to any such claim or
cause of action; or
(3) amends section 2409a of title 28, United States Code
(commonly known as the ``Quiet Title Act''), chapter 171 of
title 28, United States Code (commonly known as the ``Federal
Tort Claims Act''), section 1491 of title 28, United States
Code (commonly known as the ``Tucker Act''), section 1505 of
title 28, United States Code (commonly known as the ``Indian
Tucker Act''), the Hawaii Organic Act (31 Stat. 141), or any
other Federal statute, except as expressly amended by this
Act.

SEC. 10. APPLICABILITY OF CERTAIN FEDERAL LAWS.

(a) Indian Gaming Regulatory Act.--
(1) In general.--The Native Hawaiian governing entity and
Native Hawaiians may not conduct gaming activities as a
matter of claimed inherent authority or under the authority
of any Federal law, including the Indian Gaming Regulatory
Act (25 U.S.C. 2701 et seq.) or under any regulations
thereunder promulgated by the Secretary or the National
Indian Gaming Commission.

[[Page S1984]]

(2) Applicability.--The prohibition contained in paragraph
(1) regarding the use of Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) and inherent authority to game applies
regardless of whether gaming by Native Hawaiians or the
Native Hawaiian governing entity would be located on land
within the State of Hawaii or within any other State or
territory of the United States.
(b) Single Governing Entity.--This Act will result in the
recognition of the single Native Hawaiian governing entity.
Additional Native Hawaiian groups shall not be eligible for
acknowledgment pursuant to the Federal Acknowledgment Process
set forth in part 83 of title 25, Code of Federal
Regulations, or any other administrative acknowledgment or
recognition process.
(c) Indian Civil Rights Act of 1968.--The Council and the
subsequent governing entity recognized under this Act shall
be an Indian tribe, as defined in section 201 of the Indian
Civil Rights Act of 1968 (25 U.S.C. 1301) for purposes of
sections 201 through 203 of that Act (25 U.S.C. 1301-1303).
(d) Indian Programs, Services, and Laws.--
(1) In general.--Notwithstanding any other provision of
this Act, nothing in this Act extends eligibility for any
Indian program or service to the Native Hawaiian governing
entity or its members unless a statute governing such a
program or service expressly provides that Native Hawaiians
or the Native Hawaiian governing entity is eligible for such
program or service. Nothing in this Act affects the
eligibility of any person for any program or service under
any statute or law in effect before the date of enactment of
this Act.
(2) Applicability of other terms.--In Federal statutes or
regulations in force prior to the United States' recognition
of the Native Hawaiian governing entity, the terms ``Indian''
and ``Native American'', and references to Indian tribes,
bands, nations, pueblos, villages, or other organized groups
or communities, shall not apply to the Native Hawaiian
governing entity or its members, unless the Federal statute
or regulation expressly applies to Native Hawaiians or the
Native Hawaiian governing entity.
(e) Real Property Transfers.--Section 2116 of the Revised
Statutes (commonly known as the ``Indian Trade and
Intercourse Act'') (25 U.S.C. 177) does not apply to any
purchase, grant, lease, or other conveyance of lands, or of
any title or claim thereto, from Native Hawaiians, Native
Hawaiian entities, or the Kingdom of Hawaii that occurred
prior to the date of the United States' recognition of the
Native Hawaiian governing entity.

SEC. 11. SEVERABILITY.

If any section or provision of this Act is held invalid, it
is the intent of Congress that the remaining sections or
provisions shall continue in full force and effect.

SEC. 12. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as are
necessary to carry out this Act.
______

By Mr. AKAKA (for himself, Mr. Conrad, Mr. Franken, Mr. Inouye,
Mr. Johnson of South Dakota, Mr. Kerry, Mr. Tester, and Mr.
Udall of New Mexico):
S. 676. A bill to amend the Act of June 18, 1934, to reaffirm the
authority of the Secretary of the Interior to take land into trust for
Indian tribes; to the Committee on Indian Affairs.
Mr. AKAKA. Mr. President, I rise today to introduce a technical
amendment to the Act of June 18, 1934, the Indian Reorganization Act.
Trust land is essential to a tribe's ability to exercise their
inherent sovereignty. It allows Tribal Nations to protect their
historic, cultural and religious ties to the lands where their
ancestors lived. Trust lands are also vital to tribal economic
development and self-government as tribes provide a wide range of
governmental services to their members including, running schools,
community centers, health clinics, law enforcement and numerous other
social and governmental services.
Federal Indian policy regarding tribal lands has not always been
favorable to the Tribal governments and individuals. The General
Allotment Act of 1887 led to land losses of more than 100 million acres
of tribal homelands. Those land losses had a devastating effect on the
tribal communities, institutions and economies that relied on their
homelands. Seeking to address the consequences of that ill-advised
policy, Congress enacted the Indian Reorganization Act in 1934.
This act was intended to reverse the prior federal policy of
allotment. By passing the Indian Reorganization Act, Congress
recognized that a land base was essential for the economic advancement
and self-support of Indian communities. The IRA allowed tribes to
restore their homelands and to rehabilitate their economies and
communities. Restoration of land to tribal ownership was central to the
overall purposes of the Indian Reorganization Act.
Unfortunately, a recent Supreme Court decision has brought
uncertainty to 75 years interpretation regarding trust land acquisition
under the Indian Reorganization Act. On February 24, 2009, the Supreme
Court issued its decision in the Carcieri v. Salazar case. In that
decision the Supreme Court held that the Secretary of the Interior
exceeded his authority in taking land into trust for a tribe that was
not under Federal jurisdiction at the time the Indian Reorganization
Act was enacted in 1934. The Supreme Court decided that the act only
applied to tribes who were ``under federal jurisdiction'' when it was
passed in 1934.
The legislation I am introducing today is necessary to clarify the
continuing authority of the Secretary of the Interior, under the Indian
Reorganization Act of 1934, to take land into trust for all Indian
tribes that are federally recognized on the date the land is placed
into trust. The legislation also ratifies the prior trust acquisitions
of the Secretary, who for the past 75 years has been exercising his
authority to take lands into trust, as intended by the Indian
Reorganization Act.
Inaction by Congress on the Carcieri decision will create two classes
of tribes--those who are considered ``under federal jurisdiction'' and
can have lands taken into trust and those who cannot. Creating two
classes of tribes is unacceptable and runs counter to federal Indian
policy, the Indian Reorganization Act, and subsequent Congressional
Acts intended to ensure that all tribes are treated equally and have
the same sovereign rights. The decision will also significantly impact
planned development projects on Indian trust lands, such as housing,
schools, community, and health centers, and result in a loss of jobs in
an already challenging economic environment.
I want to thank Senators Conrad, Franken, Inouye, Johnson, Kerry,
Tester and Udall for their support on this critical legislation. My
cosponsors are well aware of the negative impact this decision has
already had, and would continue to have on our Native American
communities. Affected tribes deserve our timely consideration of this
bill. I urge my colleagues to join me in supporting the passage of this
legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 676

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. MODIFICATION OF DEFINITION.

(a) Modification.--
(1) In general.--The first sentence of section 19 of the
Act of June 18, 1934 (commonly known as the ``Indian
Reorganization Act'') (25 U.S.C. 479), is amended--
(A) by striking ``The term'' and inserting ``Effective
beginning on June 18, 1934, the term''; and
(B) by striking ``any recognized Indian tribe now under
Federal jurisdiction'' and inserting ``any federally
recognized Indian tribe''.
(2) Effective date.--The amendments made by paragraph (1)
shall take effect as if included in the Act of June 18, 1934
(commonly known as the ``Indian Reorganization Act'') (25
U.S.C. 479), on the date of enactment of that Act.
(b) Ratification and Confirmation of Prior Actions.--Any
action taken by the Secretary of the Interior pursuant to the
Act of June 18, 1934, (commonly known as the ``Indian
Reorganization Act'') (25 U.S.C. 461 et seq.) for any Indian
tribe that was federally recognized on the date of that
action is ratified and confirmed, to the extent that the
action is challenged based on the question of whether the
Indian tribe was federally recognized or under Federal
jurisdiction on June 18, 1934, as if the action had, by prior
act of Congress, been specifically authorized and directed.
(c) Effect on Other Laws.--
(1) In general.--Nothing in this Act or the amendments made
by this Act affects--
(A) the application or effect of any Federal law other than
the Act of June 18, 1934 (25 U.S.C. 461 et seq.) (as amended
by subsection (a)); or
(B) any limitation on the authority of the Secretary of the
Interior under any Federal law or regulation other than the
Act of June 18, 1934 (25 U.S.C. 461 et seq.) (as so amended).
(2) References in other laws.--An express reference to the
Act of June 18, 1934 (25 U.S.C. 461 et seq.) contained in any
other

[[Page S1985]]

Federal law shall be considered to be a reference to that Act
as amended by subsection (a).
______

By Mr. KOHL (for himself, Mr. Whitehouse, and Mr. Coons):
S. 678. A bill to increase the penalties for economic espionage; to
the Committee on the Judiciary.
Mr. KOHL. Mr. President, the ability of American companies to out
innovate and better compete with their global competitors is more
important today than ever. Yet, the FBI estimates that U.S. companies
lose billions of dollars each year to criminals who steal their trade
secrets--their innovative ideas, formulas, designs and other
proprietary information. For example, last year, a Chinese national
working for an American automobile manufacturer was convicted of
stealing trade secrets for a Chinese competitor. His actions were
estimated to cost the American company between $50 and $100 million.
That is why I rise today with Senators Whitehouse and Coons to
introduce the Economic Espionage Penalty Enhancement Act of 2011. This
bill is simple and straightforward--it increases the maximum penalties
for stealing a trade secret to benefit a foreign company. The measures
in this bill were recommended to Congress by the U.S. Intellectual
Property Enforcement Coordinator, in conjunction with the Departments
of Commerce, Homeland Security, Justice and State, and the U.S. Trade
Representative. The Economic Espionage Act Penalty Enhancement Act,
while a modest bill, is intended to be a starting point for a larger
discussion about the implementation of the Economic Espionage Act, EEA,
and whether additional updates and improvements are needed in light of
the global economy and advances in technology.
In 1996, Congress enacted the EEA, making it a federal crime to steal
a trade secret. Nearly fifteen years later, trade secret theft and
economic espionage continue to pose a threat to U.S. companies to the
tune of billions of dollars a year. As we reexamine the law, we will be
looking at how we can help prosecutors bring more of these criminals to
justice and companies better protect their trade secrets. Among the
issues we will look at are whether additional protections are needed
for trade secrets as part of EEA prosecutions, whether whistleblower
protections should be added, and whether we need a federal civil
private right of action.
Businesses spend every resource at their disposal to develop
proprietary economic information including their customer lists,
pricing schedules, business agreements, and manufacturing processes, to
name a few. This information is literally a business's lifeblood.
Stealing it can be the death knell for a company. The chief executive
of GM recently said that industrial espionage is a major threat to the
company and that he worries about it ``every day.'' But these thefts
have a much greater impact beyond the American company that falls
victim to an economic spy. The economic strength, competitiveness, and
security of our country rely upon the ability of industry to compete
without unfair interference from foreign governments and from their own
domestic competitors. Without freedom from economic sabotage, our
companies lose their hard-earned advantages and their competitive edge.
This problem is not new, but it has grown and evolved in the fifteen
years since the Economic Espionage Act became law. U.S. corporations
face intense competition at home and abroad. As much as 80 percent of
the assets of today's companies are intangible trade secrets. They must
be able to protect their trade secrets to remain competitive and keep
our economy strong. Advances in technology make the protection of trade
secrets more difficult and more critical than ever. Trade secrets can
simply be downloaded from a company's computer, uploaded to the
Internet, and transferred anywhere in the world in a matter of minutes.
Within a matter of days, a U.S. corporation can lose complete control
over its trade secrets. Unfortunately, we have many examples of the
risk and harm posed by economic espionage. In 2009, a Chinese-born
engineer who had been employed by a leading aerospace company was
convicted of economic espionage and sentenced to fifteen years in
prison for collecting sensitive information about the U.S. space
shuttle that he intended to share with the Chinese government. Prior to
his sentencing, the district court judge said that although we do not
know how much information he shared with China, we do know that he hurt
not only his former employer but also the national security of the
United States.
Domestic economic espionage, known as industrial espionage, can be
just as threatening to American companies. For example, just this month
a former computer programmer for a Wall Street bank was sentenced to
eight years in prison for stealing secret code used in the bank's
valuable high-frequency trading system. The trading system earned the
bank $300 million in 2009 alone. He took a job at a startup company
that was planning to directly compete with the Wall Street bank, and
gave that company the stolen code.
In my home State of Wisconsin a disgruntled employee of a company
that manufactures aftermarket airplane parts was prosecuted under the
economic espionage statute and sentenced to thirty months in prison for
attempting to sell trade secrets to competitors. The trade secret--
details and measurements of particular airplane parts--took years and
hundreds of thousands of dollars for the manufacturer to create, test
and gain Federal Aviation Administration approval. Fortunately, the
perpetrator was caught before he sold the trade secrets, but had he
been successful the manufacturer would likely have been forced out of
business.
The examples above illustrate the seriousness of these crimes. The
legislation that we introduce today will increase the maximum sentence
for economic espionage from 15 years to 20 years and to direct the
Sentencing Commission to consider increasing the penalty range for
theft of trade secrets and economic espionage. This is a first step in
our efforts to do more to stem the flow of valuable business
information out of our country. We must definitively punish anyone who
steals information from American companies. Over the coming months,
this measure will provide a framework for our discussions about how we
can do more to solve this problem. I look forward to working with my
colleagues on this critical problem.
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. 678

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 ``Economic Espionage Penalty
Enhancement Act''.

SEC. 2. AMENDMENT TO TITLE 18.

Section 1831(a) of title 18, United States Code, is amended
by striking ``15 years'' and inserting ``20 years''.

SEC. 3. DIRECTIVE TO SENTENCING COMMISSION.

Pursuant to its authority under section 994(p) of title 28,
United States Code, the United States Sentencing Commission
shall--
(1) review its guidelines and policy relating to a two-
level enhancement for economic espionage; and
(2) as a part of such review consider amending such
guidelines to--
(A) apply the two-level enhancement to the simple
misappropriation of a trade secret;
(B) apply an additional two-level enhancement if the
defendant transmits or attempts to transmit the stolen trade
secret outside of the United States and an additional three-
level enhancement if the defendant instead commits economic
espionage (i.e., he/she knew or intended that the offense
would benefit a foreign government, foreign instrumentality,
or foreign agent); and
(C) provide when a defendant transmits trade secrets
outside of the United States or commits economic espionage,
that the defendant should face a minimum offense level.
______

By Mr. SCHUMER (for himself, Mr. Alexander, Mr. Reid, Mr.
McConnell, Mr. Lieberman, Ms. Collins, Mr. Brown of
Massachusetts, Mr. Bingaman, Mr. Blumenthal, Mr. Durbin, Mr.
Johanns, Mr. Lugar, Mr. Reed, Mr. Whitehouse, Mr. Carper, and
Mr. Kyl):
S. 679. A bill to reduce the number of executive positions subject to
Senate confirmation; to the Committee on Homeland Security and
Governmental Affairs.
Mr. ALEXANDER. Mr. President, the Senator from New York and I are on
the Senate floor today to introduce

[[Page S1986]]

legislation that will help make the Senate a more effective place to
deal with the big issues facing our country, such as the debt, our
national defense, and other issues.
This is the result of discussions we have had over the last several
months with many Members of the Senate on both sides of the aisle. It
began with some reforms in Senate rules, which included eliminating the
so-called secret hold and doing other steps. It is the culmination of
work by a number of Senators on both sides of the aisle--including
Senator Lieberman; Senator Collins; the leaders, Senator Reid and
Senator McConnell, when they were whips; Senator Schumer and I; and
others. We had bipartisan breakfasts on these reforms a couple years
ago, and it came down to the questions: How many confirmations should
the Senate have? How many confirmations are enough confirmations? Is it
in the public interest to allow a new President, whether Democratic or
Republican, to staff the government promptly? And is it in the public
interest to get rid of this syndrome that is established in Washington,
which I call ``innocent until nominated,'' where we invite a
distinguished person to come in and run that person through a gauntlet
that makes him or her out to be a criminal for making some mistake in
the process of being confirmed?
We have worked together, and we have come up with legislation that
Senator Schumer is introducing on behalf of both of us--on behalf of
the leaders, Senator Reid and Senator McConnell, and on behalf of
Senator Lieberman and Senator Collins.
This legislation would answer the question, how many confirmations
are enough confirmations, by reducing or streamlining the nomination
process for about 450 nominees--out of a total of about 1,400
nominations. Over 1,000 Senate confirmed nominations will remain
unchanged. Just to put that into perspective, that is still more
confirmations than existed when President Clinton was President of the
United States. It is almost four times as many confirmations as existed
when President Kennedy was President of the United States. In other
words, like many things in government, the number of confirmations has
grown over time.
We have ended up confirming people we have no business confirming--
people who are public relations officers, people who are financial
information people--and we have made it difficult for the government to
be staffed.
Is it in our interest, and the citizens', to staff the government
promptly? Yes, I think it is. We have created this phenomenon where
Administrations are slow to get staffed up. For example, when President
Obama came in, Secretary Geithner, the Treasury Secretary, was sitting
over at Treasury almost home alone during the middle of the worst
recession since the Great Depression. According to news accounts, he
did not have much help. The key vacant positions in Treasury were
Assistant Secretary for Tax Policy, the Deputy Assistant Secretary for
Tax Policy, the Deputy Assistant Secretary for Tax Analysis, Deputy
Assistant Secretary for Tax, Trade, and Tariff Policy, and a variety of
others. That situation was not helping any of us. Whether we agreed
with President Obama or Secretary Geithner or not, after an election a
President should be able to promptly staff the government, and we in
the Senate should have procedures to give us a chance to review those
nominees and offer our advice and consent and confirm or reject those
nominees in a reasonable period of time.
If we are spending our time dealing with junior officials or PR
officers, we are spending less time dealing with the Assistant
Secretary for Tax Policy, on whom we should be focusing a lot of time,
and to whom we should be asking a lot of questions.
Then, there is this business of what I call ``innocent until
nominated''--all of us know this exists. It really exists by sloppiness
on our part, both in the legislative branch and the executive branch.
If you are asked to serve in the Federal Government--and I know this
because I was asked by the first President Bush--you fill out forms.
Well, there are many forms. There are many forms in the executive
branch. They have different definitions; for example, the definition of
``income.'' If you were to carelessly fill out the same definition of
``income'' on one form as another form, you might have been incorrect
on one of the forms, and then someone might say you were telling a lie
and were not fit to serve. That has been called by others, including
me, as being ``innocent until nominated.''
I remember when Ron Kirk, the former mayor of Dallas, was nominated
by President Obama to be the Trade Representative. There was some issue
about whether he had properly reported a speech fee he gave to charity.
What difference did it make in terms of his overall fitness to serve?
It held him up. It embarrassed him. It was not relevant to the inquiry.
So the legislation we have will do the following: It proposes
eliminating the need for Senate confirmation or streamlining over 450
positions. About 200 of these nominations will be eliminated as Senate
confirmations. These are the ones the Senate does not need to spend
time on. The other half will come directly to the desk. Then, unless an
individual Senator says: Send it on to committee to go through the
regular order, it will be expedited. That still leaves us with 1,000
Senate confirmations that we can have--1,000 hostages we can take. That
is more hostages than we could take under Bill Clinton. That is almost
four times as many hostages than the Senate could take under President
Kennedy. That ought to be plenty of hostages for any Senator to make
his or her point if that is what we seek to do.
Second, the legislation would set up a process whereby an executive
branch working group would review the various forms that nominees are
expected to fill out, and try to have a single smart form in the
executive branch. The working group will consult with committees of
Congress. It might make sense to see if we can do the same thing with
our forms, and make it possible that we can get all the information we
want without unnecessarily subjecting nominees to harassment or
trickery just because they are not wise enough to fill out different
forms with different definitions.
I think this is a substantial step forward. It may not sound like
much to those watching the Senate, but let me just say that both of our
leaders, Reid and McConnell, have said they tried this and could not
get it done. Senator Lieberman and Senator Collins have tried, and they
could not get it done. I worked with Senator Lieberman 2 years ago and
we could not get it done.
What has happened this time is a result of the discussion we had
earlier in the year about making the Senate a more effective place to
work--with the full support of the leaders, Reid and McConnell; with
the full support of Senator Lieberman and Senator Collins; and with the
good work of Senator Schumer. We have come up with a consensus piece of
legislation which has broad bipartisan support from both sides of the
aisle, including chairmen and ranking members of the committees you
would think might be the first ones to object. This legislation would
still leave the Senate with the prerogatives it ought to have in terms
of reviewing Presidential nominees and separates out those who take our
time away from the more important things we ought to be doing.
I thank the Senator from New York for the way he has worked on this
issue. He has been constructive and direct and helpful. I thank the
leaders for their support. I hope the committees will rapidly consider
the legislation Senator Schumer is introducing on our behalf, and I
hope it will show we can take another small step in making the Senate a
more effective place to work.
Mr. President, I ask unanimous consent to have printed in the Record
a document entitled ``List of Presidential Appointments No Longer
Requiring Senate Confirmation''--there are about 200 of those--and a
document entitled ``Privileged Nominations.'' Those are the ones that
will be expedited, unless a single Senator decides he or she wants to
have this nominee sent to committee, and that is about another 240.
There being no objection, the material was ordered to be printed in
the Record, as follows:

List of Presidential Appointments No Longer Requiring Senate
Confirmation

Agriculture (11): Assistant Secretary for Congressional
Relations, Department of Agriculture; Chief Financial
Officer, Department of Agriculture; Assistant Secretary for

[[Page S1987]]

Administration, Department of Agriculture; Rural Utilities
Service Administrator; Directors (7), Commodity Credit
Corporation.
Armed Services (12): Assistant Secretary of Defense
(Networks and Information Integration); Assistant Secretary
of Defense (Public Affairs); Assistant Secretary of Defense
(Legislative Affairs); Assistant Secretary of the Air Force
(Comptroller); Assistant Secretary of the Army (Comptroller);
Assistant Secretary of Navy (Comptroller); Members (6),
National Security Education Board.
Banking (8): Assistant Secretary for Administration, Human
Capital Officer, HUD; Chief Financial Officer, HUD; Assistant
Secretary for Congressional and Intergovernmental Relations,
HUD; Assistant Secretary for Public Affairs, HUD; Director of
the Mint, Department of the Treasury; Members (2), Council of
Economic Advisers; Administrator, Community Development
Financial Institution Fund.
Budget (0).
Commerce (14 regular positions and 319 NOAA Officer Corps
positions): Assistant Secretary for Legislative Affairs,
Department of Commerce; Assistant Secretary for
Administration and Chief Financial Officer, Department of
Commerce; Assistant Secretary for Communication and
Information, Department of Commerce; Chief Scientist, NOAA;
Assistant Secretary for Budget and Programs--CFO, Department
of Transportation; Assistant Secretary for Government
Affairs, Department of Transportation; Deputy Administrator,
Federal Aviation Administration (FAA); Chief Financial
Officer, NASA; Associate Director, Office of Science and
Technology Policy; Associate Director, Office of Science and
Technology Policy; Associate Director, Science, Office of
Science and Technology Policy; Associate Director,
Technology, Office of Science and Technology Policy;
Administrator, St. Lawrence Seaway Development Corporation;
Federal Coordinator, Alaska Natural Gas Transportation
Project; Officer Corps of NOAA (319 additional positions).
Energy (2): Chief Financial Officer, Department of Energy;
Assistant Secretary for Congressional and Intergovernmental
Affairs, Department of Energy.
Environment and Public Works (9): Alternate Federal Co-
Chairman, Appalachian Regional Commission; Chief Financial
Officer, EPA; Commissioners (7), Mississippi River
Corporation.
Finance (4): Deputy Under Secretary/Assistant Secretary for
Legislative Affairs, Department of Treasury; Assistant
Secretary for Public Affairs and Director of Policy Planning,
Department of Treasury; Assistant Secretary for Management
and Chief Financial Officer, Department of Treasury;
Treasurer of the United States.
Foreign Relations (14): Assistant Secretary for Legislative
and Intergovernmental Affairs, Department of State; Assistant
Secretary for Public Affairs, Department of State; Assistant
Secretary for Administration, Department of State; Chief
Financial Officer, Department of State; Assistant
Administrator for Legislative and Public Affairs, USAID;
Assistant Administrator for Management, USAID; Governor,
African Development Bank; Alternate Governor, African
Development Bank; Governor, Asian Development Bank; Alternate
Governor, Asian Development Bank; Governor, International
Monetary Fund and International Bank for Reconstruction and
Development; Alternate Governor, International Monetary Fund
and International Bank for Reconstruction and Development;
Governor, African Development Fund; Alternate Governor,
African Development Fund.
HELP (101 regular positions and 2,536 Public Health Service
Officer Corps positions): Chief Financial Officer, Department
of Education; Assistant Secretary for Management, Department
of Education; Assistant Secretary for Legislation and
Congressional Affairs, Department of Education;
Commissioner--Rehabilitation Services Administration;
Commissioner--Education Statistics; Assistant Secretary for
Resources and Technology/CFO, Department of HHS; Assistant
Secretary for Public Affairs, Department of HHS; Assistant
Secretary for Legislation, Department of HHS; Commissioner,
Administration for Children, Youth, Families; Commissioner,
Administration for Native Americans; Assistant Secretary for
Administration and Management, Department of Labor; Chief
Financial Officer, Department of Labor; Assistant Secretary
for Congressional Affairs, Department of Labor; Assistant
Secretary for Public Affairs, Department of Labor; Director
of the Women's Bureau, Department of Labor; Chairperson,
National Council on Disability; Vice Chairperson (2),
National Council on Disability; Members (12), National
Council on Disability; Members (24), National Science
Foundation; Managing Directors (2), Corporation on National
and Community Service; Members (15), National Board of
Education Sciences; Members (20), National Museum and Library
Services Board; Members (10), National Institute for Literary
Advisory Board; Public Health Services Corps (2,536
additional positions).
HSGAC (6): Chief Financial Officer, Department of Homeland
Security; Controller, Office of Federal Financial Management,
OMB; Director, Office of Counternarcotics Enforcement, DHS;
Assistant Secretary for Health Affairs Chief Medical Officer,
DHS; Administrator, U.S. Fire Administration, Department of
Homeland Security; Assistant Administrator, Grants, FEMA.
Indian Affairs (14): Commissioner, Navajo and Hopi
Relocation; Members (13), Board of Trustees, Institute of
American Indian and Alaska Native Culture.
Intelligence (0).
Judiciary (10): Assistant Attorney General--Legislative
Affairs, Department of Justice; Director, Bureau of Justice
Statistics; Director, Bureau of Justice Assistance; Director,
National Institute of Justice; Administrator, Office of
Juvenile Justice and Delinquency Prevention; Director, Office
for Victims of Crime; Deputy Director, National Drug Control
Policy; Deputy Director, Demand Reduction, National Drug
Control Policy; Deputy Director, State and Local Affairs,
National Drug Control Policy; Deputy Director, Supply
Reduction, National Drug Control Policy.
Rules (0).
Small Business (0).
Veterans Affairs (5): Assistant Secretary for Management,
Department of Veterans Affairs; Assistant Secretary for Human
Resources and Administration, Department of Veterans Affairs;
Assistant Secretary for Public and Intergovernmental Affairs,
Department of Veterans Affairs; Assistant Secretary for
Congressional and Legislative Affairs, Department of Veterans
Affairs; Assistant Secretary for Information and Technology,
Department of Veterans Affairs.
* Does not include NOAA Officer Corps and Public Health
Services Officer Corps.
____

Privileged Nominations

Agriculture (5): Members (5), Board of Directors, Federal
Agricultural Mortgage.
Armed Services (0).
Banking (23): Members (15), Board of Directors, National
Institute of Building Sciences; Members (3), Board of
Directors, National Consumer Cooperative Bank; Directors (5),
Securities Investors Protection Corporations.
Budget (0).
Commerce (8): Members (3), Board of Directors, Metropolitan
Washington Airport Authority; Members (5), St. Lawrence
Seaway Development Corporation.
Energy (0).
Environment and Public Works (9): Members (9), Board of
Trustees, Morris K. Udall Scholarship and Excellence in
National; Environmental Policy Foundation.
Finance (16): Member (7), IRS Oversight; Members (2), Board
of Trustees, Federal Hospital Insurance Trust Fund; Member
(2), Board of Trustees, Federal Old Age and Survivors Fund;
Members (2), Board of Trustees, Federal Supplemental
Insurance Trust Fund; Members (3), Social Secretary Advisory
Board.
Foreign Relations (59): Chairman, Advisory Board for Cuba
Broadcasting; Members (8), Advisory Board for Cuba
Broadcasting; Members (4), Millennium Challenge Corporation
Board of Directors; Board Members (8), Overseas Private
Investment Corporation; Members (15), National Peace Corps
Advisory Council; Commissioners (7), Commission on Public
Diplomacy; Members (9), Board of Directors, Inter-American
Foundation; Members (7), Board of Directors, African
Development Foundation.
HELP (104): Members (15), Corporation on National and
Community Service; Members (26), National Council on the
Humanities; Chairman, Board of Directors, US Institute of
Peace; Vice Chairman, Board of Directors, US Institute of
Peace; Members (10), Board of Directors, US Institute of
Peace; Members (8), Board of Trustees, Goldwater Scholarship;
Members (8), Board of Trustees, Truman Scholarship; Members
(6), Board of Trustees, Madison Fellowship; Members (11),
Board of Directors, Legal Services Corporation; Members (18),
National Council on the Arts.
HSGAC (5): Members (5), Federal Retirement Thrift
Investment Board.
Intelligence (0).
Judiciary (13): Members (2), Foreign Claims Settlement
Commission; Members (11), Board of Directors, State Justice
Institute.
Rules (0).
Small Business (0).
Veterans Affairs (0).

Mr. ALEXANDER. I thank the Presiding Officer, and I notice that the
Senator from New York is also on the Senate floor. I thank him for his
work on this issue.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, first, I thank my colleague from
Tennessee. He has been a great partner in this effort. In fact, I would
say it was his impetus that brought us here. He had thought about this
long and hard and worked on it previously. As usual, it has been a
pleasure to work with Senator Alexander on the Rules Committee or
anywhere else, and I thank him for spearheading this effort.
I also want to thank the two leaders, Senator Reid, of course, my
friend--and I am so proud to work under his leadership--and Senator
McConnell. I have to say this: Senator McConnell and I have our
differences, but on all of these issues of moving the Senate forward he
has been operating in good faith, and his support of this legislation
has allowed us to get here.
Also, the committee chair, Senator Lieberman, as well as Ranking
Member

[[Page S1988]]

Collins, have been equal partners in this legislation, and it will go
through their committee.
Finally, I thank all the committee chairs. They have been very
understanding of the need to do this. Obviously, committee chairs might
say: I want to have before my committee every single person, but
ultimately they have realized it slows down the Senate.
While we are introducing the legislation today, a number of committee
chairs on our side--probably with the consent of their ranking
members--have come to me and said there might be other positions they
want to add to the list. That would be a good idea. We have tried to be
careful. We do not want to step on any toes or prerogatives. In the
past, when this legislation was attempted, people said: Well, just, I
don't want this one; I don't want that one. So we were fairly minimal.
It will have a real effect on the Senate. It is close to one-third of
the appointments. But there may be different committees that say: I
don't need to approve this. In my committee, the committee on which I
am the chair, the committee on which I am the ranking member, we do not
need to approve these five or six more. Add them to your list.
We would hope our committee chairs would do that before the bill is
considered because it will be considered by Senator Lieberman's
committee, and there they could make such additions.
So let me say this about the process: One of the most important
duties of the Senate is the constitutional advice-and-consent power. We
were careful to balance this interest with the importance of making the
confirmation process more efficient--not only for the benefit of the
Senate but as well for the benefit of the administration, its agencies,
and, as Senator Alexander so aptly pointed out, for those individuals
who are nominated as well.
The Senate was designed to be a thoughtful and deliberative body, but
the confirmation process has often become dangerously close to being
gridlocked. The American public is harmed when we are not able to get
qualified people confirmed to positions in a timely manner. All of the
positions covered in this proposal tend to be noncontroversial and more
closely resemble appointments that are currently made without Senate
approval.
This legislation consists of a stand-alone bill, the Presidential
Appointment Efficiency and Streamlining Act, and a resolution. Senator
Alexander touched on the stand-alone bill, which will eliminate from
Senate confirmation over 200 executive nomination positions and nearly
3,000 additional officer corps positions. The resolution will create a
standing order that will streamline approval of almost 250 part-time
board members.
We intend to move both of these pieces together in an effort to
reform this process. Together, these two pieces will remove or
streamline, as I mentioned, nearly one-third of currently confirmable
Senate appointments.
The act will remove the need for confirmation for several categories
of positions, including legislative and public affairs positions, chief
financial officers, information technology administrators, internal
management and administrative positions, and deputies or non-policy-
related assistant secretaries who report to individuals who are Senate-
confirmed. Removing these positions from Senate confirmation will allow
a new administration to be set up with more efficiency and speed, thus
making government work better for the people.
In addition, we have removed thousands of positions from the Public
Health Service officers corps and the National Oceanic and Atmospheric
Administration officer corps in the process. They are noncontroversial,
and their removal will help prevent the possibility of further
gridlock.
This act will also create a working group--because this is a work in
progress, and Senator Alexander has been working on it longer than I
have or most of us in this body--that will provide recommendations on
the process to further streamline the appointment and confirmation
process. The group will make recommendations to the President and the
Senate about streamlining the paperwork process for nominees by
creating a single, searchable, electronic ``smart form'' and will also
conduct a review of the current background investigation requirements.
Senators Lieberman and Collins held a hearing on the confirmations
process last month in the Homeland Security and Governmental Affairs
Committee, which will have jurisdiction over this piece of the package.
The hearing was extremely helpful to our working group efforts and
further highlighted the fact that our system of dealing with executive
nominations needs reform.
The resolution piece of the package will create a streamlined process
for part-time positions on boards or commissions. A majority of these
boards require political balance--a certain number of Democrats and a
certain number of Republicans. We are doing this rather than
eliminating Senate consideration in its entirety in order to ensure
that these politically balanced boards remain bipartisan. This was
actually a recommendation, I believe, by Senator McConnell, and I think
it is an apt one.
The resolution creates a standing order that will provide for an
expedited process for this class of ``privileged nominations'' by
creating new pages on the Executive Calendar. When the Senate receives
a nomination from the President, it will be placed on a new section on
the Executive Calendar called ``Privileged Nomination--Information
Requested'' while the nominee submits paperwork to the committee of
jurisdiction. When the chair of that committee certifies that all
committee questionnaires have been received from the nominee, the
nomination will be placed on the ``Privileged Nomination--Information
Received'' section of the Executive Calendar.
As Senator Alexander mentioned, after 10 session days, the nomination
is placed on the full Executive Calendar and will await action by the
full Senate, with the presumption that these positions will be passed
by unanimous consent. So any single Senator can object, although we
doubt in almost every case that any will.
From the beginning of the process until the expiration of 10 session
days, any Member can request on his or her own behalf or on behalf of
any identified Member that the nomination be referred to committee. We
think that incorporating this safeguard is in line with our elimination
of secret holds earlier this year.
The presumption for these part-time positions is, as I said, that
they will be approved by unanimous consent and not be held up as part
of other battles or leverage or whatever else.
This resolution would come before the Rules Committee, which Senator
Alexander and I lead, and we hope to take action on it very soon. We
are confident this package will eliminate many of the delays in the
current confirmation process. These delays are very detrimental to the
efficient operation of government and to the efforts to recruit the
most qualified people to these Federal jobs.
The package we propose today is the first step in protecting the
American people's interests in having a newly elected President move
quickly and efficiently to set up a government.
Before I yield the floor, I note that the Senator from New Mexico,
Mr. Udall, in his impetus to reform the Senate, can claim some credit
for this move as well.
We are introducing this bipartisan legislation--Senator Alexander and
myself, along with Senators Reid, McConnell, Collins, Lieberman, and I
think about eight or nine other cosponsors as well--this afternoon.
Mr. LIEBERMAN. Mr. President, I rise today in support of legislation
offered by Senators Schumer and Alexander to streamline the nomination
process so incoming Presidents can get their teams in place more
quickly and put them to work doing the people's business.
On August 5, 1789, the Senate took up and confirmed 102 executive
nominations that had been sent up by President Washington just 2 days
earlier--rejecting only one nominee.
Our first President, in a letter to the Senate, complained about the
one he didn't get. If the Senate ever doubted the fitness of one of his
nominees it should--and I quote ``communicate that circumstance to me,
and thereby avail yourselves of the information which led me to make
them and which I would with pleasure lay before you.''

[[Page S1989]]

Modern Presidents of both parties would sigh over this bit of history
because nowadays the process by which a person is selected, vetted,
nominated, and then considered and confirmed by the Senate has become--
in the words of one scholar--``nasty and brutish, without being
short.''
One hundred days into President Obama's administration, only 14
percent of the Senate-confirmed positions in his administration had
been filled. After 18 months, 25 percent of these positions were still
vacant. This is not an aberration or anomaly. The timetables for
putting in place a leadership team across the government has been
pretty much the same each of the last three times there has been a
change of occupant in the White House.
We have known about this problem a long time, but failed to act.
In 2001, the then Governmental Affairs Committee under former
Chairman Fred Thompson, held hearings titled the State of the
Presidential Appointment Process and recommended legislation, which did
not pass.
In 2003, a bipartisan commission headed by Paul Volker recommended
ways to speed up the nominations process. That got nowhere.
In 2004, the 9-11 Commission said the delays in getting a new
government up and running actually pose a threat to our national
security and in its report it also recommended ways to speed up the
process.
Well after years of talk, it may be that we now finally have
bipartisan support for change, although as the saying goes: ``It ain't
over til it's over.''
In January, Majority Leader Reid and Minority Leader McConnell
established a working group on executive nominations and appointed
Senators Schumer and Alexander--chairman and ranking member,
respectively, of the Rules Committee--to lead it.
Senator Collins and I--as chairman and ranking member of the Homeland
Security and Governmental Affairs Committee--have been part of this
working group and the bill being introduced today has my full support.
In fact, we held a hearing earlier this month on the need for
nomination reform and the numbers showed just how compelling the case
for reform is.
A study by the Congressional Research Service says that delay occurs
not so much at the Cabinet level positions. Presidents Reagan, George
W. Bush, Clinton, and Obama all were able to get the vast majority of
their nominees for Cabinet Secretaries in place on or shortly after
Inauguration Day.
Where the delay is most pronounced, according to CRS, is in the sub-
cabinet level positions. Under President Reagan, nominees averaged 114
days from the President's election to final confirmation. Under
Clinton, George W. Bush, and Obama those numbers jumped to 185, 198,
and 195 respectively.
Part of the problem is that the number of positions requiring
confirmation has grown over time.
When President Reagan took office, he had 295 key policy positions
requiring confirmation. By the time President Obama was inaugurated,
that number had grown to 422 key positions, plus another nearly 800
lesser positions that also required Senate confirmation.
These numbers do not include foreign service officers, or public
health officials who also require Senate confirmation.
The legislation Senators Schumer and Alexander are introducing
recommends eliminating Senate confirmation for approximately 200
presidential appointments to positions in the Executive Branch,
including for legislative and public affairs positions, chief
information officers, and internal management positions at or below the
Assistant Secretary level.
This will free the Senate to concentrate on the more important
policy-making nominees.
The bill also calls for a working group to simplify, standardize and
centralize the forms and documentation required by both the White House
and Senate so a nominee isn't burdened with duplicative paperwork and
information requests.
Senators Schumer and Alexander are also introducing a standing order
this morning that would streamline the confirmation process for
approximately 200 other Presidential appointments that receive Senate
confirmation. Under the standing order, some nominees to part-time
boards and commissions could have their nominations expedited by being
held at the desk for a certain number of days and then placed directly
onto the Executive Calendar rather than being referred to a Senate
committee. I would also like to express my support for the standing
order.
In the past, nominations reform legislation has stalled because of
the perceived fears of some of our colleagues, particularly committee
chairs and ranking members, that they would be giving up some of their
jurisdiction and authority. But the simple truth is that some of these
nominations shouldn't require Senate confirmation and, frankly, take up
valuable time that should be used for more important work.
Nothing in the legislation we offer today will weaken in any way the
Senate's important Constitutional role of ``advice and consent'' or our
delicate system of checks and balances.
But if we don't fix what is broken in this system, I fear we risk
discouraging some of our nation's most talented individuals from
accepting nominations, thus leaving important positions unfilled.
If I may end with a little history, as Governeur Morris, one of the
architects of the Constitution, said when speaking in favor of the
``advice and consent'' clause: ``As the President was to nominate,
there would be responsibility. As the Senate was to concur, there would
be security.''
Those founding principals will be unaffected by the kinds of modest
changes this bill calls for, and I believe and hope we can get it done
this year.
I call on my fellow chairmen, ranking members, and colleagues on both
sides of the aisle to work with us on addressing this challenge so the
next new administration, regardless of party, can recruit the best
candidates and then put them to work quickly addressing the many
challenges our Nation faces.
Ms. COLLINS. Mr. President, I rise today to support the Presidential
Appointment Efficiency and Streamlining Act of 2011, as well as the
Senate resolution to create an expedited confirmation process for some
part-time boards and commissions.
I want to commend Senators Schumer and Alexander for their work on
this issue and to express my appreciation for all the members of the
nomination reform working group--Senators Reid, McConnell, and
Lieberman. I was pleased to be a part of what has truly been a
bipartisan effort.
The Constitution, in the Appointments Clause, makes the appointment
of senior Federal executive officers a joint responsibility of the
President and the Senate. The President determines who, in his view, is
the best qualified to serve in the most senior and critical positions
across the executive branch of our Government. It also requires that
we, the Senate, exercise our independent judgment and experience to
determine if nominees have the necessary qualifications and character
to serve our Nation in these important positions of public trust.
The confirmation process must be thorough enough for the Senate to
fulfill its Constitutional duty, but it should not be so onerous as to
deter qualified people from public service.
National security reasons also compel attention to this problem. The
National Journal has noted that ``[p]eriods of political transition
are, by their very nature, chaotic'' and that ``terrorists strike when
they believe governments will be caught off guard.''
Both the 1993 bombing of the World Trade Center and the attacks on
September 11th, 2001, occurred within eight months of a change in
presidential administrations. And in March 2004, just three days before
Spain's national elections, al Qaeda-linked terrorists bombed Madrid
commuter trains.
The 9/11 Commission found that ``[a]t the sub-cabinet level, there
were significant delays in the confirmation of key officials,
particularly at the Department of Defense,'' in 2001. It was not until
six months after President Bush took office that he had his national
security team in place.
Countless studies have been written and many experts have opined on
how to improve the nomination and confirmation process--from the
Brownlow Commission in 1937 to the 9/11 Commission in 2004.

[[Page S1990]]

This is also an issue that the Committee on Homeland Security and
Governmental Affairs has been working to address for a long time. For
example, in 2001, when Senator Fred Thompson chaired the Committee, we
held two hearings focusing on the state of the Presidential appointment
process. As a result of these hearings, the Committee reported out
legislation to address concerns that were raised. A few of the
provisions of this bill would later be included in the Intelligence
Reform and Terrorism Prevention Act of 2004.
But more work remains to be done. On March 2nd of this year, the
Committee held another hearing to review the nomination process. The
witnesses echoed the concerns that have been raised over the years by
the many commissions and that still remain unaddressed.
Based upon our review, there are a few areas in particular where
improvements should be made. The first is to reduce the sheer number of
positions subject to Senate confirmation.
In this regard, the National Commission on the Public Service,
commonly known as the Volcker Commission, gathered some very
illuminating statistics. When President Kennedy came to office, he had
286 positions to fill with the titles of Secretary, Deputy Secretary,
Under Secretary, Assistant Secretary, and Administrator. By the end of
the Clinton Administration, there were 914 positions with these titles.
Today, according to the Congressional Research Service, CRS, there
are more than 1,200 positions appointed by the President that require
the advice and consent of the Senate.
The large number of positions requiring confirmation leads to long
delays in selecting, vetting, and nominating these appointees.
Consequently, administrations can go for months without key officials
in many agencies. And when political appointees are finally in place,
their median tenure is only about two and a half years.
A second area ripe for reform is to develop a consistent, common form
for the nominees to complete in order to streamline the process, save
time, and increase accuracy. This also would reduce the cost and burden
on nominees.
The White House, Office of Government Ethics, and the Senate need to
work together to reconcile the various questions that are asked of
nominees. Currently, nominees will often find themselves repeating
variations of, or even the exact same, response over and over.
In this regard, I believe Clay Johnson, the former head of
Presidential Personnel from 2001 to 2003, made an excellent point. He
noted that there is a thick file in the White House ``with every
possible piece of relevant information on that person and yet none of
that is made available to the Senate.''
A consistent, common form, which a nominee can respond to online,
would help to facilitate the flow of information so the Senate can
begin its review of the nomination earlier.
Finally, the executive branch also needs to review its own role and
responsibilities in the process.
Specifically, the White House should review its background
investigation requirements. The extent of the investigation should be
tailored to the position. A person nominated to a non-national
security-related position should not have to undergo the same detailed
FBI background investigation as a nominee to a national security-
related position, such as the Secretary of Homeland Security. In
addition, the process should make some allowance for people who already
have undergone the FBI full-field investigation for a different Senate-
confirmed position. Reform of this process would help speed up the
review of nominees and aid in the task of recruiting talented people
for public service.
It also is the White House's responsibility to ensure that the Office
of Presidential Personnel has the appropriate staffing level to meet
the demands of a new administration.
As Mr. Johnson noted at our March 2nd hearing, ``[a] new
administration has never had the capacity in the first six months to
nominate persons for more than 250 cabinet and subcabinet positions,
let alone 400 positions, which government reform individuals and groups
suggest a new administration should be able to do.''
If these areas can be reformed, substantial time will be saved, and
key leadership posts at our federal agencies will not be vacant for
nearly as long.
Now, during this mid-term period, two years away from a Presidential
election, we have the opportunity to streamline the executive branch
nominations process. This can help ensure that the next presidential
transition will be as smooth as possible, thwarting the terrorists'
belief that they will be able to ``catch us off guard.''
The Schumer-Alexander bill and Senate Resolution go a long way to
addressing the concerns that I have highlighted.
The bill will make more than 200 positions direct Presidential
Appointments that would no longer require Senate confirmation. Many of
these positions have little or no policy role, such as the Assistant
Secretary for Legislative Affairs at the Department of Commerce, or are
internal management or administrative positions, such as chief
financial officers or assistant secretaries for public affairs.
By not requiring Senate confirmation, it will allow these positions
be filled at a much faster pace and free up Senate resources to focus
on more significant nominees.
The Senate resolution proposes that more than 240 positions on part-
time boards or commissions go through a new ``expedited'' confirmation
process. These positions will still require the nominee to respond to
all committee questionnaires and still provide for the opportunity for
closer scrutiny of the nominee, if warranted.
This retains the authority of the Senate over these positions, but
streamlines the process, lessening the burden on the Senate for
routine, non-controversial nominations and providing for a faster road
to confirmation as well.
While we must deliver on our duty to provide advice and consent,
reforms are needed to improve the effective operation of government. We
all want the most qualified people to serve the President and the
Nation. We should, therefore, ensure that the process is not
unnecessarily burdensome and that key leadership posts do not go
unfilled for long stretches of time. Most of all, we need to reform the
process so that good people, whose talents and energy we need, do not
become so discouraged that they give up their goal of serving the
public.
I am pleased to join Senators Schumer and Alexander as a cosponsor of
this legislation and the Senate resolution, both of which will help us
attract well-qualified people to public service.
______

By Ms. COLLINS (for herself, Ms. Mikulski, Mrs. Boxer, Mrs.
Hutchison, Mrs. Murray, Ms. Snowe, Ms. Landrieu, Ms. Stabenow,
Ms. Cantwell, Ms. Murkowski, Mrs. Shaheen, Mrs. Gillibrand, Mr.
Lieberman, Mr. Akaka, Mr. Pryor, Mr. Merkley, Mr. Begich, Mrs.
Feinstein, and Ms. Ayotte).
S. 680. A bill to authorize the Administrator of General Services to
convey a parcel of real property in the District of Columbia to provide
for the establishment of a National Women's History Museum; to the
Committee on Environment and Public Works.
Ms. COLLINS. Mr. President, I rise to introduce the National Women's
History Museum Act of 2011, a bill that would clear the way to locate a
long-overdue historical and educational resource in our nation's
capital city. I appreciate the co-sponsorship today from 16 of my
colleagues: Senators Mikulski, Boxer, Hutchison, Murray, Snowe,
Landrieu, Stabenow, Cantwell, Murkowski, Shaheen, Gillibrand,
Lieberman, Akaka, Pryor, Merkley, and Begich.
American women have made invaluable contributions to our country in
such diverse fields as government, business, medicine, law, literature,
sports, entertainment, the arts, and the military. A museum recognizing
the contributions of American women is long overdue.
A Presidential commission on commemorating women in American history
concluded that, ``Efforts to implement an appropriate celebration of
women's history in the next millennium should include the designation
of a focal point for women's history in our Nation's capital.''

[[Page S1991]]

That report was issued in 1999. Over a decade later, although
Congress has made commendable provisions for the National Museum for
African American History and Culture, the National Law Enforcement
Museum, and the National Museum of the American Indian, there is still
no institution in the capital region dedicated to women's roles in our
country's history.
It is important to note that taxpayers will not shoulder the funding
of this project. The proposed legislation calls for no new federal
program and no new claims on the budget. The bill would simply direct
the General Services Administration to negotiate and enter into an
occupancy agreement with the National Women's History Museum, Inc. to
establish a museum on a tract of land near the Smithsonian Museums
located at 12th Street, SW., and Independence Avenue, SW.
In fact, the Museum would be putting dollars in the federal
government's pocket in order to occupy this space because the
transaction would be at a fair-market value for the land. This bill
would be a win-win for the taxpayers and the Museum.
The National Women's History Museum is a non-profit, non-partisan,
educational institution based in the District of Columbia. Its mission
is to research and present the historic contributions that women have
made to all aspects of human endeavor, and to present the contributions
that women have made to the nation in their various roles in family,
the economy, and society.
This museum would help ensure that future generations understand what
we owe to the many generations of American women who have helped build,
sustain, and advance our society. They deserve a building to present
the stories of pioneering women like abolitionist Harriet Tubman,
founder of the Girl Scouts Juliette Gordon Low, Supreme Court Justice
Sandra Day O'Connor, and astronaut Sally Ride.
That women's roll of honor would also include a legendary predecessor
in the Senate seat I now hold: the late Senator Margaret Chase Smith,
the first woman nominated for President of the United States by a major
political party, and the first woman elected to both houses of
Congress. Senator Smith began representing Maine in the U.S. House of
Representatives in 1940, won election to the Senate in 1948, and
enjoyed bipartisan respect over her long career for her independence,
integrity, wisdom, and courage. She remains my role model and, through
the example of her public service, an exemplar of the virtues that
would be honored in the National Women's History Museum.
Again, I thank my colleagues for their past support of this effort,
and urge them to renew that support for this bill.
______

By Ms. SNOWE:
S. 681. A bill to provide greater accountability in the Small
Business Lending Fund; to the Committee on Small Business and
Entrepreneurship.
Ms. SNOWE. 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. 681

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 ``Greater Accountability in
the Lending Fund Act of 2011''.

SEC. 2. REPAYMENT DEADLINE UNDER THE SMALL BUSINESS LENDING
FUND PROGRAM.

(a) In General.--Section 4103(d)(5)(H) of the Small
Business Jobs Act of 2010 (12 U.S.C. 4741 note) is amended--
(1) in clause (i)--
(A) in subclause (I), by striking ``; or'' and inserting a
period;
(B) by striking subclause (II); and
(C) by striking ``will--'' and all that follows through
``be repaid'' and inserting ``will be repaid'';
(2) by striking clause (ii); and
(3) by striking ``that--'' and all that follows through
``includes,'' and inserting ``that includes,''.
(b) Effective Date; Applicability; Savings Clause.--
(1) Effective date; applicability.--The amendments made by
this section shall--
(A) take effect on the date of enactment of this Act; and
(B) apply to any investment made by the Secretary of the
Treasury under the Small Business Lending Fund Program
established under section 4103(a)(2) of the Small Business
Jobs Act of 2010 (12 U.S.C. 4741 note) (in this subsection
referred to as the ``Program'') on or after the date of
enactment of this Act.
(2) Savings clause.--Notwithstanding the amendments made by
this section, an investment made by the Secretary of the
Treasury under the Program before the date of enactment of
this Act shall remain in full force and effect under the
terms and conditions under the investment.

SEC. 3. SMALL BUSINESS LENDING FUND SUNSET.

Section 4109 of the Small Business Jobs Act of 2010 (12
U.S.C. 4741 note) is amended--
(1) in subsection (b), by inserting ``and shall be limited
by the termination date in subsection (c)'' before the period
at the end; and
(2) by adding at the end the following:
``(c) Termination of Program.--
``(1) Investments.--On and after the date that is 15 years
after the date of enactment of this Act, the Federal
Government may not own any preferred stock or other financial
instrument purchased under this subtitle or otherwise
maintain any capital investment in an eligible institution
made under this subtitle.
``(2) Authorities.--Except as provided in subsection (a),
all the authorities provided under this subtitle shall
terminate 15 years after the date of enactment of this
Act.''.

SEC. 4. SMALL BUSINESS LENDING FUND TRIGGER.

Section 4109 of the Small Business Jobs Act of 2010 (12
U.S.C. 4741 note), as amended by section 3, is amended by
adding at the end the following:
``(d) FDIC Receivership.--The Secretary may not make any
purchases, including commitments to purchase, under this
subtitle if the Federal Deposit Insurance Corporation is
appointed receiver of 5 percent or more of the number of
eligible institutions that receive a capital investment under
the Program.''.

SEC. 5. SMALL BUSINESS LENDING FUND LIMITATION.

(a) In General.--Section 4103(d) of the Small Business Jobs
Act of 2010 (12 U.S.C. 4741 note) is amended--
(1) by striking ``, less the amount of any CDCI investment
and any CPP investment'' each place it appears;
(2) by striking paragraph (7);
(3) by redesignating paragraphs (8), (9), and (10) as
paragraphs (7), (8), and (9), respectively; and
(4) by adding at the end the following:
``(10) Prohibition on tarp participants participating in
the program.--An institution in which the Secretary made a
investment under the CPP, the CDCI, or any other program
established by the Secretary under the Troubled Asset Relief
Program established under the Emergency Economic
Stabilization Act of 2008 (12 U.S.C. 5201 et seq.) shall not
be eligible to participate in the Program.''.
(b) Effective Date; Applicability; Savings Clause.--
(1) Effective date; applicability.--The amendments made by
this section shall--
(A) take effect on the date of enactment of this Act; and
(B) apply to any investment made by the Secretary of the
Treasury under the Small Business Lending Fund Program
established under section 4103(a)(2) of the Small Business
Jobs Act of 2010 (12 U.S.C. 4741 note) (in this subsection
referred to as the ``Program'') on or after the date of
enactment of this Act.
(2) Savings clause.--Notwithstanding the amendments made by
this section, an investment made by the Secretary of the
Treasury under the Program before the date of enactment of
this Act shall remain in full force and effect under the
terms and conditions under the investment.

SEC. 6. PRIVATE INVESTMENTS UNDER THE SMALL BUSINESS LENDING
FUND PROGRAM.

Section 4103(d)(3) of the Small Business Jobs Act of 2010
(12 U.S.C. 4741 note) is amended--
(1) in the paragraph heading, by striking ``matched''; and
(2) in subparagraph (B)(i), by striking ``both under the
Program and''.

SEC. 7. APPROVAL OF REGULATORS.

(a) In General.--Section 4103(d)(2) of the Small Business
Jobs Act of 2010 (12 U.S.C. 4741 note) is amended--
(1) in the paragraph heading, by striking ``Consultation
with'' and inserting ``Approval of'';
(2) in the matter preceding subparagraph (A), by striking
``the Secretary shall'' and inserting ``the Secretary may not
make a purchase under this subtitle unless'';
(3) in subparagraph (A)--
(A) by striking ``consult with''; and
(B) by striking ``to determine whether the eligible
institution may receive'' and inserting ``determines that,
based on the financial condition of the eligible institution,
the eligible institution should receive'';
(4) in subparagraph (B)--
(A) by striking ``consider any views received from''; and
(B) by striking ``regarding the financial condition of the
eligible institution'' and inserting ``determines that, based
on the financial condition of the eligible institution, the
eligible institution should receive such capital
investment''; and
(5) in subparagraph (C)--
(A) by striking ``consult with''; and

[[Page S1992]]

(B) by inserting ``determines that, based on the financial
condition of the eligible institution, the eligible
institution should receive such capital investment'' before
the period at the end.
(b) Conforming Amendments.--Section 4103(d)(3)(A) of the
Small Business Jobs Act of 2010 (12 U.S.C. 4741 note) is
amended--
(1) by striking ``to be consulted under paragraph (2) would
not otherwise recommend'' and inserting ``required to make a
determination under paragraph (2) does not approve'';
(2) by striking ``to be so consulted''; and
(3) by striking ``to be consulted would recommend'' and
insert ``would approve''.

SEC. 8. BENCHMARK FOR SMALL BUSINESS LENDING.

Section 4103(d)(5)(A)(ii) of the Small Business Jobs Act of
2010 (12 U.S.C. 4741 note) is amended by striking ``for the 4
full quarters immediately preceding the date of enactment of
this Act'' and inserting ``during calendar year 2007''.
______

By Mr. NELSON of Florida:
S. 692. A bill to improve hurricane preparedness by establishing the
National Hurricane Research Initiative, and for other purposes; to the
Committee on Commerce, Science, and Transportation.
Mr. NELSON of Florida. Mr. President, I rise today to introduce
legislation on a subject that is never far from the minds of citizens
in my home State of Florida, folks along the Gulf Coast, or on the
Atlantic seaboard: the threat of hurricanes, and the devastation that
these storms leave in their wake. This threat is ever nearer as we
approach the 2011 hurricane season.
Hurricane damage is certainly not new to Florida. On September 1926,
the Great Miami Hurricane was a harbinger of things to come. Two years
later, a category four hurricane caused Lake Okeechobee to flood its
banks killing 2500 out of South Florida's 50,000 residents. In August
1992, Hurricane Andrew struck South Florida causing an estimated $26
billion in damage to the United States. And we all when in August of
2005, Hurricane Katrina ripped through New Orleans and the Gulf Coast
region, causing more than $91 billion in economic losses, forcing more
than 770,000 people from their homes, and killing an estimated 1833
people.
According to the Insurance Information Institute, insurance companies
had estimated losses of $40.6 billion on 1.7 million claims in 6 States
from Hurricane Katrina, the largest loss in the history of insurance.
Insured losses are predicted to double every decade as development
along the Gulf and Atlantic Coasts increases.
The sheer magnitude of this loss is staggering and underscores the
need for increased funding for hurricane research and improved
forecasting. But hurricanes do not just affect those living along the
coasts. These extreme events have national consequences with increased
fuel prices and severe inland flooding.
U.S. Census data indicates that more than 35 million people live in
areas that are most vulnerable to hurricanes. Emergency managers need
to know exactly where a hurricane will strike and how hard it will
strike before they can issue an evacuation warning.
Improvements in track and intensity forecasts will translate into
better preparedness for coastal and inland communities, saving lives
and reducing devastating impacts.
The impacts felt in the wake of Hurricane Katrina--despite a good
meteorological forecast of the hurricane--emphasize the need for
additional research and development in these areas.
I am committed to the protection of life and property. Hurricanes
pose a serious threat to the Nation, and losses are growing. So today I
am introducing the National Hurricane Research Initiative. This bill
calls for prudent investments that will protect lives and prevent
economic devastation, reducing our vulnerability to hurricanes.
The National Hurricane Research Initiative will dramatically expand
the scope of fundamental research on hurricanes, including enhanced
data collection and analysis in critical research areas, and the
translation of research results into improved forecasts and planning.
Specifically, the National Hurricane Research Initiative will improve
our understanding and prediction of hurricanes and other tropical
cyclones, including, storm tracking and prediction, storm surge
modeling, and inland flood modeling. This research will expand our
understanding of the impacts of hurricanes on and response of society
and help us to develop infrastructure that is resilient to the forces
associated with hurricanes.
We never know when the next big storm will hit. This type of research
is urgently needed, and that research needs to be well coordinated. I
look forward to working with Chairman Rockefeller and the members of
the Senate Committee on Commerce, Science, and Transportation on this
important legislation.
Mr. President, I ask unanimous consent that 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. 692

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 ``National Hurricane Research
Initiative Act of 2011''.

SEC. 2. DEFINITIONS.

In this Act:
(1) Eligible entities.--The term ``eligible entities''
means Federal, State, regional, and local government agencies
and departments, tribal governments, universities, research
institutes, for-profit entities, and nongovernmental
organizations.
(2) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 102 of the Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).
(3) Initiative.--The term ``Initiative'' means the National
Hurricane Research Initiative established under section
3(a)(1).
(4) State.--The term ``State'' means any State of the
United States, the District of Columbia, American Samoa,
Guam, the Commonwealth of the Northern Mariana Islands,
Puerto Rico, and the Virgin Islands.
(5) Tribal government.--The term ``tribal government''
means the governing body of an Indian tribe.
(6) Under secretary.--The term ``Under Secretary'' means
the Under Secretary for Oceans and Atmosphere.

SEC. 3. NATIONAL HURRICANE RESEARCH INITIATIVE.

(a) Establishment.--
(1) In general.--The Under Secretary shall establish an
initiative to be known as the ``National Hurricane Research
Initiative'' for the purposes described in paragraph (2). The
Initiative shall consist of--
(A) the activities carried out under this section; and
(B) the research carried out under section 4.
(2) Purposes.--The purposes described in this paragraph are
as follows:
(A) To conduct research, incorporating to the maximum
extent practicable the needs of eligible entities, to enable
the following:
(i) Improvement of the understanding and prediction of
hurricanes and other tropical storms, including--

(I) storm tracking and prediction;
(II) forecasting of storm formation, intensity, and wind
and rain patterns, both within the tropics and as the storms
move poleward;
(III) storm surge modeling, inland flood modeling, and
coastal erosion;
(IV) the interaction with and impacts of storms with the
natural and built environment; and
(V) the impacts to and response of society to destructive
storms, including the socioeconomic impacts requiring
emergency management, response, and recovery.

(ii) Development of infrastructure that is resilient to the
forces associated with hurricanes and other tropical storms.
(iii) Mitigation of the impacts of hurricanes on coastal
populations, the coastal built environment, and natural
resources, including--

(I) coral reefs;
(II) mangroves;
(III) wetlands; and
(IV) other natural systems that can reduce hurricane wind
and flood forces.

(iv) Improvement of communication with the public about
hurricane forecasts and risks associated with hurricanes to
reduce the harmful impacts of hurricanes and improve the
response of society to destructive storms.
(B) To provide training for the next generation of
hurricane researchers and forecasters.
(b) Implementation Plan.--
(1) In general.--Not later than 1 year after the date of
the enactment of this Act, the Under Secretary shall, in
coordination with the Director of the National Science
Foundation, develop a detailed, 5-year implementation plan
for the Initiative that--
(A) incorporates the priorities for Federal science and
technology investments set forth in the June 2005
publication, ``Grand Challenges for Disaster Reduction'', and
in related 2008 implementation plans for hurricane and
coastal inundation hazards of the Subcommittee on Disaster
Reduction of the Committee on Environment and Natural
Resources of the National Science and Technology Council;
(B) to the extent practicable and as appropriate,
establishes strategic goals, benchmarks, milestones, and a
set of systematic criteria and performance metrics by which
the overall effectiveness of the Initiative

[[Page S1993]]

may be evaluated on a periodic basis, including evaluation of
mechanisms for the effective transition of research to
operations and the application of research results for
reducing hurricane losses and related public benefits; and
(C) identifies opportunities to leverage the results of the
research carried out under section 4 with other Federal and
non-Federal hurricane research, coordination, and loss-
reduction initiatives, such as--
(i) the National Windstorm Impact Reduction Program
established by section 204(a) of the National Windstorm
Impact Reduction Act of 2004 (15 U.S.C. 15703);
(ii) the National Flood Insurance Program established under
chapter 1 of the National Flood Insurance Act of 1968 (42
U.S.C. 4011 et seq.);
(iii) the initiatives of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.);
(iv) wind hazard mitigation initiatives carried out by a
State;
(v) the Science Advisory Board, Social Science Working
Group, and Hurricane Forecast Improvement Project of the
National Oceanic and Atmospheric Administration; and
(vi) the Working Group for Tropical Cyclone Research of the
Office of the Federal Coordinator for Meteorological Services
and Supporting Research.
(2) Review.--Not later than 1 year after the date of the
enactment of this Act, the Under Secretary shall make the
implementation plan required by paragraph (1) available for
review by the following:
(A) The Director of the National Science Foundation.
(B) The Secretary of Homeland Security.
(C) The Director of the National Institute for Standards
and Technology.
(D) The Commanding General of the U.S. Army Corps of
Engineers.
(E) The Commander of the Naval Meteorology and Oceanography
Command.
(F) The Associate Administrator for Science Mission
Directorate of the National Aeronautics and Space
Administration.
(G) The Director of the U.S. Geological Survey.
(H) The Director of the Office of Science and Technology
Policy.
(I) The Director of the National Economic Council.
(3) Revisions.--The Under Secretary shall revise the
implementation plan required by paragraph (1) not less
frequently than once every 5 years.
(c) Research.--
(1) Establishment of research objectives.--The Under
Secretary shall, in consultation with the Director of the
National Science Foundation, establish objectives for
research carried out pursuant to section 4 that are--
(A) consistent with the purposes described in subsection
(a)(2); and
(B) based on the findings of the expert assessments and
strategies published in the following:
(i) The June 2005 publication entitled, ``Grand Challenges
for Disaster Reduction'', and the related 2008 implementation
plans for hurricane and coastal inundation hazards of the
Subcommittee on Disaster Reduction of the Committee on
Environment and Natural Resources of the National Science and
Technology Council.
(ii) The January 2007 report by the National Science Board
entitled, ``Hurricane Warning: The Critical Need for a
National Hurricane Initiative''.
(iii) The February 2007 report by the Office of the Federal
Coordinator for Meteorological Services and Supporting
Research entitled, ``Interagency Strategic Research Plan for
Tropical Cyclones: The Way Ahead''.
(iv) Reports from the Hurricane Intensity Working Group of
the National Science Advisory Board of the National Oceanic
and Atmospheric Administration.
(2) Areas of concentration.--The objectives required by
paragraph (1) shall provide for 3 areas of concentration as
follows:
(A) Fundamental hurricane research, which may include
research to support continued development and maintenance of
community weather research and forecast models, including
advanced methods of observing storm structure and
assimilating observations into the models, in which the
agency or institution hosting the models ensures broad access
and use of the model by the civilian research community.
(B) Technology assessment and development.
(C) Research on integration, transition, and application of
research results.
(d) National Workshops and Conferences.--The Under
Secretary may, in coordination with the Director of the
National Science Foundation, carry out a series of national
workshops and conferences that assemble a broad collection of
scientific disciplines--
(1) to address hurricane-related research questions; and
(2) to encourage researchers to work collaboratively to
carry out the purposes described in subsection (a)(2).
(e) Public Internet Website.--The Under Secretary shall
facilitate the establishment of a public Internet website for
the Initiative--
(1) to foster collaboration and interactive dialogues among
the Under Secretary, the Director of the National Science
Foundation, and the public;
(2) to enhance public access to Initiative documents and
products, including--
(A) reports and publications of the Initiative;
(B) the most recent 5-year implementation plan developed
under subsection (b); and
(C) each annual cross-cut budget and report submitted to
Congress under subsection (f); and
(3) that includes a publicly accessible clearinghouse of
Federal research and development centers engaged in research
and development efforts that are complementary to the
Initiative.
(f) Annual Cross-Cut Budget and Report.--
(1) Requirement for annual cross-cut budget and report.--
Beginning with the first fiscal year beginning after the date
the Under Secretary completes the implementation plan
required by subsection (b), the Director of the Office of
Science and Technology Policy shall, in conjunction with the
Under Secretary, the Director of the National Science
Foundation, and the Director of the Office of Management and
Budget, submit to Congress each year, together with documents
submitted to Congress in support of the budget of the
President for the fiscal year beginning in such year (as
submitted pursuant to section 1105 of title 31, United States
Code)--
(A) a coordinated annual report for the Initiative for the
last fiscal year ending before the date on which the report
is submitted; and
(B) a cross-cut budget for the Initiative for the first
fiscal year beginning after the date on which the report is
submitted.
(2) Contents.--The report required by paragraph (1)(A)
shall--
(A) document the grants and contracts awarded to eligible
entities under section 4;
(B) for each eligible entity that receives a grant or
contract under section 4, identify what major activities were
undertaken with such funds, grants, and contracts; and
(C) for each research activity or group of activities in an
area of concentration described in subsection (c)(2), as
appropriate, identify any accomplishments, which may include
full or partial achievement of any strategic goals,
benchmarks, milestones, or systematic criteria and
performance metrics established for the implementation plan
under subsection (b)(1)(B).

SEC. 4. NATIONAL HURRICANE RESEARCH.

(a) National Science Foundation Competitive Grant Research
Program.--
(1) In general.--The Director of the National Science
Foundation shall, in coordination with the Under Secretary,
establish a program to award grants to eligible entities to
carry out research that is consistent with the research
objectives established under section 3(c)(1).
(2) Selection.--The National Science Foundation shall
select grant recipients under this section through its merit
review process.
(b) National Oceanic and Atmospheric Administration
Research Program.--
(1) In general.--The Under Secretary shall, in coordination
with the Director of the National Science Foundation, carry
out a program of research that is consistent with the
research objectives established under section 3(c)(1).
(2) Research activities.--Research carried out under
paragraph (1) may be carried out through--
(A) intramural research;
(B) awarding grants to eligible entities to carry out
research;
(C) contracting with eligible entities to carry out
research; or
(D) entering into cooperative agreements to carry out
research.
(3) Demonstration projects authorized.--Research carried
out under this subsection may include demonstration projects.
(c) Collaboration.--To the maximum extent practicable, each
entity carrying out research under this section shall
collaborate with existing Federal and Federally funded
research centers operating in related fields, for-profit
organizations, and international, regional, State, local, and
tribal governments--
(1) to gather and share experiential information; and
(2) to advance scientific and engineering knowledge,
technology transfer, and technology commercialization in the
course of conduct of hurricane-related research and its
application to mitigating the impacts of hurricanes and other
tropical storms on society.

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