[Congressional Record Volume 157, Number 65 (Thursday, May 12, 2011)]
[Senate]
[Pages S2932-S2956]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. CASEY (for himself, Mr. Isakson, Mr. Brown of Ohio, Mr.
Blunt, Mr. Kerry, Mr. Brown of Massachusetts, Mr. Blumenthal,
and Mr. Roberts):
S. 958. A bill to amend the Public Health Service Act to reauthorize
the program of payments to children's hospitals that operate graduate
medical education programs; to the Committee on Health, Education,
Labor, and Pensions.
Mr. CASEY. Mr. President, today Senator Isakson and I are introducing
the Children's Hospital GME Support Reauthorization Act of 2011. Since
its creation in 1999, this program has provided freestanding children's
hospitals with funding to support the training of medical residents.
While most hospitals receive support through the Medicare program,
freestanding children's hospitals are not eligible for that funding.
That is why reauthorizing this program is vital.
Prior to the enactment of CHGME, the number of residents in
children's hospitals' residency programs had declined over 13 percent.
The enactment of CHGME has enabled children's hospitals to reverse this
trend and to increase their training by 35 percent.
In Pennsylvania, we have three hospitals who participate in this
important program. This is a critical investment in our country's
medical future and guarantees that children will have continuing access
to the care they need across provider settings. Children are not little
adults. We must continue to ensure we have the specialized workforce to
care for them.
Perhaps the benefit of this program is best told in the words of the
residents themselves. Gabriela Marein-Efron is a resident at the
Children's
[[Page S2933]]
Hospital of Philadelphia. She shared this story with us.
``One of the most powerful experiences I've had during my training
has been in my primary care continuity clinic. Many of my patients are
now almost 3 years old, and I've been taking care of them since they
were newborns. My connection to these families, who are often
especially vulnerable because of barriers such as poverty or language
differences has influenced my ultimate career choice. In a few months
I'll become an Attending Physician at this urban clinic and continue to
take care of these underserved families and serve as their medical home
full-time.''
Chief Resident Dustin Haferbecker had an equally meaningful
experience. ``My training at CHOP allowed me the unique opportunity to
discover a need in the community, and ultimately help meet that need.
During residency, I was exposed to extreme lack of adequate health care
that was available to the large number of refugees that continue to
pour into the city, brought here by our government. Our CHGME funded
curriculum made it possible for myself and a group of residents to
investigate this problem, identify support from within the institution,
and establish a clinic dedicated to meeting their unique health care
needs. A family of three children that have spent their life a refugee
camp in Nepal, are now being treated for their vitamin D deficiency and
newly discovered latent tuberculosis.''
Pamela Puthoor is a resident at the Children's Hospital of
Pittsburgh. ``I had had almost zero exposure to pediatric specialists
before coming to Children's,'' she says. ``I knew that Children's
Hospital offered a rigorous primary care program and the depth and
breadth of specialty care, so I would be able to make an educated
choice. I have been able to learn from leaders in their fields, and
from that I have decided to go into pediatric gastroenterology.'' Dr.
Puthoor says that Children's also encouraged her to pursue her interest
in public health policy. ``Children's attracts passionate, altruistic
people devoted to taking care of kids. The support and encouragement we
receive is extraordinary,'' she says.
These residents and the stories they share are a testament of why we
must continue this program.
I want to thank Senator Isakson for leading this legislation with me.
I also want to thank Senators Sherrod Brown, Roy Blunt, John Kerry,
Scott Brown, Richard Blumenthal and Pat Roberts for signing on as
original cosponsors. I look forward to working with my colleagues to
get this legislation passed this year.
______
By Mr. KERRY (for himself, Mr. Alexander, and Mr. Wyden):
S. 960. A bill to provide for a study on issues relating to access to
intravenous immune globulin (IVG) for Medicare beneficiaries in all
care settings and a demonstration project to examine the benefits of
providing coverage and payment for items and services necessary to
administer IVG in the home; to the Committee on Finance.
Mr. KERRY. Mr. President, today along with Senator Alexander I am
introducing the Medicare IVIG Access Act to help patients with primary
immunodeficiency diseases, PIDD, who currently face a number of health
challenges. Today, Medicare beneficiaries with PIDD already have a Part
B benefit for home-based intravenous immune globulin, IVIG, treatment.
Unfortunately a gap in coverage exists so no payments are available for
the items and services necessary to administer the treatment.
Treatment in the home is more cost effective and also protects the
patient from the risk of exposure to additional illnesses in other
health care settings. This is of particular concern to PIDD patients,
since they already have weakened immune systems. A 2007 report from the
Department of Health and Human Services, HHS, Office of Inspector
General and the HHS Assistant Secretary for Planning and Evaluation
found that problems with payment exist, namely the absence of coverage
for required items and services associated with IVIG home infusion.
That is why I have worked with my colleague Senator Alexander to
introduce the Medicare IVIG Access Act to create a 3-year demonstration
project to provide for and evaluate the benefits of providing a payment
for items and services necessary to administer IVIG in the home. The
bill includes a study to explore issues surrounding IVIG treatment,
including the impact of the demonstration project on access to care,
and an analysis of the appropriateness of new payment methodology for
IVIG treatment in all settings.
This legislation is supported by a number of organizations including
the Immune Deficiency Foundation and the Clinical Immunology Society. I
ask all of my colleagues to support this important legislation.
______
By Mr. KERRY (for himself, Mrs. Murray, and Mr. Begich):
S. 961. A bill to create the income security conditions and family
supports needed to ensure permanency for the Nation's unaccompanied
youth, and for other purposes; to the Committee on Finance.
Mr. KERRY. Mr. President, today I am introducing the Reconnecting
Youth to Prevent Homelessness Act to improve training, educational
opportunities, and permanency planning for older foster youth and
reduce homelessness among our young people.
This year approximately 3.5 million people, including 1.5 million
children in the United States will experience homelessness at some
point. That is one out of every 50 kids. For children who were in the
foster system the chances of becoming homeless are even greater. Every
year approximately 30,000 children age out of the foster care system--
many with no family and nowhere to go. These children were placed in
the foster system at absolutely no fault of their own and too often
they leave the system without a place to call home.
We have a responsibility to take care of our young people and make
sure families have the resources they need to be able to keep a roof
over their heads. I developed this legislation after hearing troubling
stories from teenagers in Massachusetts. For example, I heard from one
15-year-old who has been in multiple foster care placements and is
expected to eventually age out of the system. He told me ``. . . I feel
the age 18 is too young, some of us don't always have somewhere to go .
. . if this bill gets passed it will greatly help a lot of people in so
many different ways . . . I thank you for giving us the opportunity to
help us better ourselves and letting us know that we are heard in this
world and someone cares deeply and truly about us.'' That is why I am
introducing the Reconnecting Youth to Prevent Homelessness Act. This
legislation will help ensure that regardless of where in the country a
foster child lives, they will not face the prospect of becoming a
homeless teenager by allowing them to remain in care until their 21st
birthday and improving permanency planning.
It provides support for States to work together to decrease barriers
that prohibit cooperation across State lines for placing foster
children in loving homes outside their state of residence. It provides
support for programs that improve family relationships and reduce
homelessness among youth who are lesbian, gay, bisexual, or
transgender. This legislation ensures that children in foster care
receive Social Security benefits they qualify for due to the death of a
parent or a disability.
The bill makes significant improvements to the Temporary Assistance
to Needy Families, TANF, program such as enhancing efforts to connect
families with education, training and housing resources. It also
increases the time frame for young parents to qualify for TANF benefits
if they are in an education or training program. Finally, it provides
more flexibility for states to work with young families to become
compliant with TANF requirements.
This legislation is supported by over 40 organizations, including the
American Bar Association, the National Coalition for the Homeless,
National Network for Youth, and Voice for Adoption. I thank my
colleagues Senator Murray and Senator Begich for their support and co-
sponsorship of this bill. It is my hope that we can move forward in a
bipartisan manner. I ask all of my colleagues to support this important
legislation.
______
By Mr. ALEXANDER (for himself, Mr. Graham, Mr. DeMint,
[[Page S2934]]
Mr. Paul, Mr. Cornyn, Mr. Lugar, Mr. Shelby, Mr. Isakson, Mr.
Risch, Mr. Boozman, Mr. Lee, Mr. Kyl, Mr. Vitter, Mr. Cochran,
Mr. Coburn, Mr. Grassley, Mrs. Hutchison, Mr. Hoeven, Mr.
Johanns, Mr. Johnson of Wisconsin, Mr. McConnell, Mr. Barrasso,
Mr. Burr, Mr. Roberts, Mr. Sessions, Mr. Hatch, Mr. Enzi, Mr.
Chambliss, Mr. Inhofe, Mr. Heller, Mr. McCain, Mr. Wicker, Mr.
Rubio, and Mr. Corker):
S. 964. A bill to amend the National Labor Relations Act to clarify
the applicability of such Act with respect to States that have right to
work laws in effect; to the Committee on Health, Education, Labor, and
Pensions.
Mr. ALEXANDER. Mr. President, I have come to the Senate floor today
to introduce, on behalf of 34 Senators, the Job Protection Act.
The Job Protection Act is occasioned by a decision by the acting
general counsel of the National Labor Relations Board that filed a
complaint to stop the Boeing Company from building airplanes at a
nonunion plant in South Carolina, suggesting that a unionized American
company cannot expand its operations in 1 of 22 States with a right-to-
work law.
The right-to-work law protects workers' rights to join or not join a
union. For example, in Tennessee we are a right-to-work State. In the
case of a Saturn employee, where United Auto Workers is the bargaining
agent, a worker doesn't have to join the union or pay dues, but he has
to accept the UAW as his bargaining agent.
At the Nissan plant a few miles away from the General Motors plant,
workers have three times elected not to have a union as their
bargaining agent. That is what a right-to-work State is. There are 22
of them. The State of New Hampshire is in the process of deciding
whether to become the 23rd. Their legislature is of one view, and their
Governor is of the other view.
The Job Protection Act, which I introduce today on behalf of 34
Senators, would preserve the Federal law's current protection of State
right-to-work laws in the National Labor Relations Act and provide
necessary clarity to prevent the NLRB from moving forward in their case
against Boeing or attempting a similar strategy against other
companies.
Specifically, the Job Protection Act would, first, explicitly clarify
that the board cannot order an employer to relocate jobs from one
location to another; two, it guarantees an employer the right to decide
where to do business within the United States; and, three, it protects
an employer's free speech regarding the costs associated with having a
unionized workforce without fear of such communication being used as
evidence in an anti-union discrimination suit.
Mr. President, I ask unanimous consent to have printed in the Record
the names of the 34 Senators who are original cosponsors of the Job
Protection Act.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Job Protection Act--Cosponsor List
Lamar Alexander, Lindsey Graham, Jim DeMint, Rand Paul,
John Cornyn, Richard Lugar, Richard Shelby, Johnny Isakson,
James Risch, John Boozman, Mike Lee, Jon Kyl, David Vitter,
Thad Cochran, Tom Coburn, Chuck Grassley, Kay Bailey
Hutchison.
John Hoeven, Mike Johanns, Ron Johnson, Mitch McConnell,
John Barrasso, Richard Burr, Pat Roberts, Jeff Sessions,
Orrin Hatch, Mike Enzi, Saxby Chambliss, Jim Inhofe, Dean
Heller, John McCain, Roger Wicker, Marco Rubio, Bob Corker.
Mr. ALEXANDER. Mr. President, I ask unanimous consent to have printed
in the Record at the end of my remarks two articles by the Wall Street
Journal, the first written by me on April 29 and the second written by
the president of the Boeing Company, Jim McNerney, who is also chairman
of President Obama's Export Council.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. ALEXANDER. Mr. President, now to make a few remarks about the
actions that have caused this.
I just left a hearing in the Health, Education, Labor, and Pensions
Committee on the middle class. One of the witnesses was the general
counsel of the Boeing Company. As might be expected, given the
notoriety of this case and the breathtaking scope of it, he got a lot
of questions.
Let me first say why there is such a breathtaking scope here. Up
until the filing of the complaint, one would assume that a
manufacturing company, such as Boeing or a smaller company that wanted
to open a new plant to create new jobs could make its own decision
about where to do that. Then in doing so, it could take into account
such factors as the cost of labor. It could take into account such
factors as the labor relations within a State, as well as the
geographical location of the State and many other factors.
The reason the decision by the acting general counsel has attracted
so much attention is it basically says--or at least it suggests--to any
company manufacturing a product in a State which is not a right-to-work
State, such as Washington, that you better think twice before you open
a new production line in one of the right-to-work States.
Let me talk for a moment about why that has an impact on the middle
class in America. Thirty years ago I was Governor of Tennessee. We were
the third poorest State. My goal was to raise family incomes and to
create an environment in which they could be raised. I was a young
Governor, but I knew enough to know the government did not raise the
incomes but it might create a good environment for that to happen.
I went to my first White House dinner with the President of the
United States. The President was then Jimmy Carter. The President said
to us Governors at a very nice dinner--just the Governors and their
spouses and the President and Mrs. Carter: Governors, go to Japan.
Persuade them to make in the United States what they sell in the United
States. I remember I called Dean Rusk, who had been Secretary of State,
and asked him to visit with me. I talked to him about how to do this.
Off I went to Japan, which is not something I planned to do when I
was walking across Tennessee trying to be the Governor. I met with the
Nissan officials in Tokyo in the fall of 1979. At that time, Japanese
companies seemed so powerful that there were books coming out saying
they might take over the United States economy, but they were not
making here what they sold here. They were making Nissan cars and
trucks in Japan. They were making a decision about where to locate in
our country. I took with me a photograph of the United States at night
taken from a satellite. They asked: Where is Tennessee? I said: It is
right in the middle of the lights. That reduced the shipping and
transportation costs. Then the next decision was: Where in the center
did they want to go? Every State north of us did not have a right-to-
work law. Tennessee and the States around us did. Nissan chose
Tennessee, and they and the General Motors plant that later came and
the Volkswagen plant and thousands of suppliers have helped our middle
class raise incomes over the last 30 years. A third of our jobs are
auto manufacturing jobs because we provided an environment in which
automakers can compete in the world marketplace.
Nissan said today that soon they will be making in the United States
85 percent of what they sell in the United States, which makes them a
very American company. That is what we want. But this decision says we
throw a big wet blanket over all the auto suppliers and manufacturers
who might be thinking about moving into Tennessee or opening new plants
in Tennessee or suppliers who might be wishing to follow Boeing to
South Carolina because it says you cannot make that decision.
We have never had that kind of law in the United States. We have had
a right-to-work law on the books since 1947. States have a right to
adopt it or not to adopt it. The legislation I am offering today on
behalf of 34 Senators does not change that, but it does preserve the
right of States to adopt a right-to-work law, the right of employees to
join or not to join a union, and the right of employers to make
decisions about where to locate their plants and their ability to speak
in public about what they are doing.
This is a most consequential decision. It is one that deserves the
attention of every Senator because as the Boeing chairman, who is the
head of President Obama's Export Council,
[[Page S2935]]
wrote in the Wall Street Journal this week, a union State would not be
able to attract a manufacturer because a manufacturer might be afraid
that any expansion could never be done in a right-to-work State. By
simple mathematics, if Boeing, which is our largest exporter--155,000
employees in the United States, another 15,000 around the world--has a
disincentive or if it cannot expand a new production line in a right-
to-work State and if it might think twice about expanding in any other
State, then where is it going to go? It is going to go to some other
country.
This decision by the acting general counsel of the National Labor
Relations Board is the single most important action I have seen in
years that would rush American jobs overseas in pursuit of an
environment in which they can build and manufacture competitively. It
is just the reverse of what President Carter said to the Governors 30
years ago when he said: Governors, go to Japan. Persuade them to make
here what they sell here.
We did that. They came here. They are making 85 percent of what they
sell here. We want Volkswagen to do that. We want General Motors to do
that. We want Ford to do that. We want Boeing to do that. And if we say
to them, But we are going to tell you, the Federal Government is going
to tell you where you have to locate your plants, you are going to
override section 14(b) of the Taft-Hartley Act which was passed in 1947
and which has created an environment which has permitted American
manufacturing to succeed.
All one has to do is read David Halberstam's book ``The Reckoning''
in the late 1980s to see that if our entire auto industry were still
locked in Detroit, it would not be as competitive as it is today--cars
made in America. I know that firsthand because I saw it happen when
Nissan came to Tennessee. They did not hire a bunch of people from
Japan to run the plant. They went to Detroit. They got Ford executives
who knew how to run a plant but were not allowed to by the environment
there, and they put them at a start-from-scratch place and created the
most efficient automobile plant in North America.
We welcome also the General Motors plant and the United Auto Workers
to their Spring Hill location in Tennessee. That is what a right-to-
work State is where you can choose to join a union or not to join a
union. Both can operate. Employees make the decision.
But when the Federal Government starts telling any company--a Boeing
or a Boeing supplier, an auto company or an auto supplier or any
manufacturing company--you cannot locate in a right-to-work State, they
probably will not locate in a non-right-to-work State. Where are they
likely to go? Mexico, Europe, Japan. Boeing sells airplanes all around
the world. It can make airplanes all around the world. If we persist in
policies such as this, instead of having a situation where our largest
exporter has 170,000 employees, more than 150,000 of which are in the
United States, we will turn that right upside down and they will be
making 85 percent of their airplanes in the countries where they sell
them, and the United States will have a lot fewer jobs.
This is a consequential matter that I hope attracts Democratic as
well as Republican support. It preserves the right-to-work law. It
preserves the choices of employees. It preserves the decision of
corporations to make their own decisions about where to locate. It
would stop a Federal Government regulation which is the single most
effective action I know about to chase American jobs overseas and lower
family incomes.
Exhibit 1
[From the Wall Street Journal, Apr. 29, 2011]
The White House vs. Boeing: A Tennessee Tale
(By Lamar Alexander)
The National Labor Relations Board has moved to stop Boeing
from building airplanes at a nonunion plant in South
Carolina, suggesting that a unionized American company cannot
expand its operations into one of the 22 states with right-
to-work laws, which protect a worker's right to join or not
join a union. (New Hampshire's legislature has just approved
its becoming the 23rd.)
This reminds me of a White House state dinner in February
1979, when I was governor of Tennessee. President Jimmy
Carter said, ``Governors, go to Japan. Persuade them to make
here what they sell here.''
``Make here what they sell here'' was then the union battle
cry, part of an effort to slow the tide of Japanese cars and
trucks entering the U.S. market.
Off I flew to Tokyo to meet with Nissan executives who were
deciding where to put their first U.S. manufacturing plant. I
carried with me a photograph taken at night from a satellite
showing the country at night with all its lights on.
``Where is Tennessee?'' the executives asked. ``Right in
the middle of the lights,'' I answered, pointing out that
locating a plant in the population center reduces the cost of
transporting cars to customers. That center had migrated
south from the Midwest, where most U.S. auto plants were, to
Kentucky and Tennessee.
Then the Japanese examined a second consideration:
Tennessee has a right-to-work law and Kentucky does not. This
meant that in Kentucky workers would have to join the United
Auto Workers union. Workers in Tennessee had a choice.
In 1980 Nissan chose Tennessee, a state with almost no auto
jobs. Today auto assembly plants and suppliers provide one-
third of our state's manufacturing jobs. Tennessee is the
home for production of the Leaf, Nissan's all-electric
vehicle, and the batteries that power it. Recently Nissan
announced that 85% of the cars and trucks it sells in the
U.S. will be made in the U.S.--making it one of the largest
``American'' auto companies and nearly fulfilling Mr.
Carter's request of 30 years ago.
But now unions want to make it illegal for a company that
has experienced repeated strikes to move production to a
state with a right-to-work law. What would this mean for the
future of American auto jobs? Jobs would flee overseas as
manufacturers look for a competitive environment in which to
make and sell cars around the world.
It's happened before. David Halberstam's 1986 book, ``The
Reckoning''--about the decline of the domestic American auto
industry--tells the story. Halberstam quotes American Motors
President George Romney, who criticized the ``shared
monopoly'' consisting of the Big Three Detroit auto
manufacturers and the UAW. ``There is nothing more vulnerable
than entrenched success,'' Romney warned. Detroit ignored
upstarts like Nissan who in the 1960s began selling funny
little cars to American consumers. We all know what happened
to employment in the Big Three companies.
Even when Detroit sought greener pastures in a right-to-
work state, its ``partnership'' with the United Auto Workers
could not compete. In 1985, General Motors located its $5
billion Saturn plant in Spring Hill, Tenn., 40 miles from
Nissan, hoping side-by-side competition would help the
Americans beat the Japanese. After 25 years, nonunion Nissan
operated the most efficient auto plant in North America. The
Saturn/UAW partnership never made a profit. GM closed Saturn
last year.
Nissan's success is one reason why Volkswagen recently
located in Chattanooga, and why Honda, Toyota, BMW, Kia,
Mercedes-Benz, Hyundai and thousands of suppliers have chosen
southeastern right-to-work states for their plants. Under
right-to-work laws, employees may join unions, but mostly
they have declined. Three times workers at the Nissan plant
in Smyrna, Tenn., rejected organizing themselves like Saturn
employees a few miles away.
Our goal should be to make it easier and cheaper to create
private-sector jobs in this country. Giving workers the right
to join or not to join a union helps to create a competitive
environment in which more manufacturers like Nissan can make
here 85% of what they sell here.
____
[From the Wall Street Journal, May 11, 2011]
Boeing Is Pro-Growth, Not Anti-Union
(By Jim McNerney)
Deep into the recent recession, Boeing decided to invest
more than $1 billion in a new factory in South Carolina.
Surging global demand for our innovative, new 787 Dreamliner
exceeded what we could build on one production line and we
needed to open another.
This was good news for Boeing and for the economy. The new
jetliner assembly plant would be the first one built in the
U.S. in 40 years. It would create new American jobs at a time
when most employers are hunkered down. It would expand the
domestic footprint of the nation's leading exporter and make
it more competitive against emerging plane makers from China,
Russia and elsewhere. And it would bring hope to a state
burdened by double-digit unemployment--with the construction
phase alone estimated to create more than 9,000 total jobs.
Eighteen months later, a North Charleston swamp has been
transformed into a state-of-the-art, green-energy powered,
1.2 million square-foot airplane assembly plant. One thousand
new workers are hired and being trained to start building
planes in July.
It is an American industrial success story by every
measure. With 9% unemployment nationwide, we need more of
them--and soon.
Yet the National Labor Relations Board (NLRB) believes it
was a mistake and that our actions were unlawful. It claims
we improperly transferred existing work, and that our
decision reflected ``animus'' and constituted ``retaliation''
against union-represented employees in Washington state. Its
remedy: Reverse course, Boeing, and build the assembly line
where we tell you to build it.
[[Page S2936]]
The NLRB is wrong and has far overreached its authority.
Its action is a fundamental assault on the capitalist
principles that have sustained America's competitiveness
since it became the world's largest economy nearly 140 years
ago. We've made a rational, legal business decision about the
allocation of our capital and the placement of new work
within the U.S. We're confident the federal courts will
reject the claim, but only after a significant and
unnecessary expense to taxpayers.
More worrisome, though, are the potential implications of
such brazen regulatory activism on the U.S. manufacturing
base and long-term job creation. The NLRB's overreach could
accelerate the overseas flight of good, middle-class American
jobs.
Contrary to the NLRB's claim, our decision to expand in
South Carolina resulted from an objective analysis of the
same factors we use in every site selection. We considered
locations in several states but narrowed the choice to either
North Charleston (where sections of the 787 are built
already) or Everett, Wash., which won the initial 787
assembly line in 2003.
Our union contracts expressly permit us to locate new work
at our discretion. However, we viewed Everett as an
attractive option and engaged voluntarily in talks with union
officials to see if we could make the business case work.
Among the considerations we sought were a long-term ``no-
strike clause'' that would ensure production stability for
our customers, and a wage and benefit growth trajectory that
would help in our cost battle against Airbus and other state-
sponsored competitors.
Despite months of effort, no agreement was reached. Union
leaders couldn't meet expectations on our key issues, and we
couldn't accept their demands that we remain neutral in all
union-organizing campaigns and essentially guarantee to build
every future Boeing airplane in the Puget Sound area. In
October 2009, we made the Charleston selection.
Important to our case is the basic fact that no existing
work is being transferred to South Carolina, and not a single
union member in Washington has been adversely affected by
this decision. In fact, we've since added more than 2,000
union jobs there, and the hiring continues. The 787
production line in Everett has a planned capacity of seven
airplanes per month. The line in Charleston will build three
additional airplanes to reach our 10-per-month capacity plan.
Production of the new U.S. Air Force aerial refueling tanker
will sustain and grow union jobs in Everett, too.
Before and after the selection, we spoke openly to
employees and investors about our competitive realities and
the business considerations of the decision. The NLRB now is
selectively quoting and mischaracterizing those comments in
an attempt to bolster its case. This is a distressing signal
from one arm of the government when others are pushing for
greater openness and transparency in corporate decision
making.
It is no secret that over the years Boeing and union
leaders have struggled to find the right way to work
together. I don't blame that all on the union, or all on the
company. Both sides are working to improve that dynamic,
which is also a top concern for customers. Virgin Atlantic
founder Richard Branson put it this way following the 2008
machinists' strike that shut down assembly for eight weeks:
``If union leaders and management can't get their act
together to avoid strikes, we're not going to come back here
again. We're already thinking, `Would we ever risk putting
another order with Boeing?' It's that serious.''
Despite the ups-and-downs, we hold no animus toward union
members, and we have never sought to threaten or punish them
for exercising their rights, as the NLRB claims. To the
contrary, union members are part of our company's fabric and
key to our success. About 40% of our 155,000 U.S. employees
are represented by unions--a ratio unchanged since 2003.
Nor are we making a mass exodus to right-to-work states
that forbid compulsory union membership. We have a sizable
presence in 34 states; half are unionized and half are right-
to-work. We make decisions on work placement based on
business principles--not out of emotion or spite. For
example, last year we added new manufacturing facilities in
Illinois and Montana. One work force is union-represented,
the other is not. Both decisions made business sense.
The world the NLRB wants to create with its complaint would
effectively prevent all companies from placing new plants in
right-to-work states if they have existing plants in
unionized states. But as an unintended consequence, forward-
thinking CEOs also would be reluctant to place new plants in
unionized states--lest they be forever restricted from
placing future plants elsewhere across the country.
U.S. tax and regulatory policies already make it more
attractive for many companies to build new manufacturing
capacity overseas. That's something the administration has
said it wants to change and is taking steps is to address. It
appears that message hasn't made it to the front offices of
the NLRB.
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. 964
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 ``Job Protection Act''.
SEC. 2. APPLICATION TO CERTAIN SPEECH, BUSINESS DECISIONS.
(a) Unfair Labor Practices.--Section 8(a)(3) of the
National Labor Relations Act (29 U.S.C. 158(a)(3)) is amended
by inserting before the semicolon at the end the following:
``: Provided further, That an employer's expression of any
views, argument, or opinion related to the costs associated
with collective bargaining, work stoppages, or strikes, or
the dissemination of such views, arguments, or opinions,
whether in written, printed, graphic, digital, or visual
form, shall not constitute or be evidence of antiunion animus
or unlawful motive, if such expression contains no threat of
reprisal or force or promise of benefit''.
(b) Prevention of Unfair Labor Practices.--Section 10 of
the National Labor Relations Act (29 U.S.C. 160) is amended--
(1) in subsection (a), by inserting after the period at the
end the following: ``: Provided further, That the Board shall
have no power to order any employer to relocate, shut down,
or transfer any existing or planned facility or work or
employment opportunity, or prevent any employer from making
such relocations, transfers, or expansions to new or existing
facilities in the future, or prevent any employer from
closing a facility, not developing a facility, or eliminating
any employment opportunity unless and until the employer has
been adjudicated finally to have unlawfully undertaken such
actions--
``(1) without advance notice to the labor organization, if
any, representing the bargaining unit of the affected
employees, of the economic reason(s) for the relocation, shut
down, or transfer of existing or future work; or
``(2) as a primary and direct response to efforts by a
labor organization to organize a previously unrepresented
workplace''; and
(2) by adding at the end the following:
``(n) Nothing in this Act shall prevent an employer from
choosing where to locate, develop, or expand its business or
facilities, or require any employer to move, transfer, or
relocate any facility, production line, or employment
opportunity, or require that an employer cease or refrain
from doing so, or prevent any employer from closing a
facility or eliminating any employment opportunity unless the
employer has been adjudicated finally to have unlawfully
undertaken such actions--
``(1) without advance notice to the labor organization, if
any, representing the bargaining unit of the affected
employees, of the economic reason(s) for the relocation, shut
down, or transfer of existing or future work; or
``(2) as a primary and direct response to efforts by a
labor organization to organize a previously unrepresented
workplace.''.
______
By Mr. LEAHY (for himself, Mr. Hatch, Mr. Grassley, Mr. Schumer,
Mrs. Feinstein, Mr. Whitehouse, Mr. Graham, Mr. Kohl, Mr.
Coons, Mr. Blumenthal, Ms. Klobuchar, and Mr. Franken):
S. 968. A bill to prevent online threats to economic creativity and
theft of intellectual property, and for other purposes; to the
Committee on the Judiciary.
Mr. LEAHY. Mr. President, few things are more important to the future
of the American economy and job creation than protecting our
intellectual property. At a time where our country is beginning to
regain its economic footing, businesses face an additional hurdle, the
severity of which is increasing by the day--digital theft.
Copyright infringement and the sale of counterfeit goods are reported
to cost American businesses billions of dollars, and result in hundreds
of thousands of lost jobs. Further, the Institute for Policy Innovation
estimates that copyright piracy online alone costs Federal, state and
local governments $2.6 billion in tax revenue. In today's business and
fiscal climate, the harm that intellectual property infringement causes
to the U.S. economy is unacceptable.
While the growth of the digital marketplace has been extraordinary,
and benefits businesses by enabling new opportunities to reach
consumers, it also brings with it the threat of copyright infringement
and counterfeiting. Internet purchases have become so commonplace that
consumers are less wary of online shopping and therefore more easily
victimized by online counterfeit products that may have health, safety
or other quality concerns when they are counterfeit.
Today, I am introducing the bipartisan PROTECT IP Act, which is based
on last year's Combating Online Infringements and Counterfeits Act. It
will provide the Justice Department
[[Page S2937]]
and rights holders with important new tools to crack down on rogue
websites dedicated to infringing activities. This legislation will
protect the investment American companies make in developing brands and
creating content and will protect the jobs associated with those
investments. It will also protect American consumers, who should feel
confident that the goods they purchase are of the type and quality they
expect.
Both law enforcement and rights holders are currently limited in the
remedies available to combat websites dedicated to offering infringing
content and products. These rogue websites are often foreign-owned and
operated, or reside at domain names that are not registered through a
U.S.-based registry or registrar. American consumers are too often
deceived into thinking the products they are purchasing at these
websites are legitimate because they are easily accessed through their
home's Internet service provider, found through well known search
engines, and are complete with corporate advertising, credit card
acceptance, and advertising links that make them appear legitimate.
The PROTECT IP Act authorizes the Justice Department to file a civil
action against the registrant or owner of a domain name that accesses a
foreign rogue website, or the foreign-registered domain name itself,
and to seek a preliminary order from the court that the site is
dedicated to infringing activities. The court is authorized to issue a
cease and desist order against a rogue website. If the court issues
that order, the Attorney General is authorized to serve that order,
with permission of the court, on specified U.S. based third-parties,
including Internet service providers, payment processors, online
advertising network providers, and search engines. These third parties
would then be required to take appropriate action to either prevent
access to the Internet site, in the case of an Internet service
provider or search engine, or cease doing business with the Internet
site, in the case of a payment processor or advertising network.
The act authorizes a rights holder who is the victim of the
infringement from a rogue website to bring a similar action against the
rogue site, whether domestic or foreign. If the court issues a cease
and desist order, the rights holder is authorized to serve that order,
if authorized by the court, on payment processors and online
advertising networks, to cut off the financial viability of the
criminal activity.
The legislation will also encourage voluntary action by Internet
partners that have credible evidence a rogue website is threatening the
public health by trafficking in counterfeit, adulterated, or misbranded
prescription medication.
Finally, the PROTECT IP Act will help law enforcement identify and
prevent counterfeit products from being imported into the United States
by ensuring law enforcement can share samples of packaging or labels of
suspected counterfeits with the relevant rights holders to determine
whether the shipment should be seized at the border. Similarly, it
ensures that law enforcement can share anti-circumvention devices that
have been seized with affected parties.
This legislation will provide law enforcement and rights holders with
an increased ability to protect American intellectual property. This
will benefit American consumers, American businesses, and American
jobs. We should not expect that enactment of the legislation will
completely solve the problem of online infringement, but it will make
it more difficult for foreign entities to profit off American hard work
and ingenuity. This bill targets the most egregious actors, and is an
important first step to putting a stop to online piracy and sale of
counterfeit goods.
Protecting intellectual property is not uniquely a Democratic or
Republican priority it is a bipartisan priority. I look forward to
working with all Senators to pass this important, bipartisan
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. 968
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 ``Preventing Real Online
Threats to Economic Creativity and Theft of Intellectual
Property Act of 2011'' or the ``PROTECT IP Act of 2011''.
SEC. 2. DEFINITIONS.
For purposes of this Act--
(1) the term ``domain name'' has the same meaning as in
section 45 of the Lanham Act (15 U.S.C. 1127);
(2) the term ``domain name system server'' means a server
or other mechanism used to provide the Internet protocol
address associated with a domain name;
(3) the term ``financial transaction provider'' has the
same meaning as in section 5362(4) of title 31, United States
Code;
(4) the term ``information location tool'' has the same
meaning as described in subsection (d) of section 512 of
title 17, United States Code;
(5) the term ``Internet advertising service'' means a
service that for compensation sells, purchases, brokers,
serves, inserts, verifies, or clears the placement of an
advertisement, including a paid or sponsored search result,
link, or placement that is rendered in viewable form for any
period of time on an Internet site;
(6) the term ``Internet site'' means the collection of
digital assets, including links, indexes, or pointers to
digital assets, accessible through the Internet that are
addressed relative to a common domain name;
(7) the term ``Internet site dedicated to infringing
activities'' means an Internet site that--
(A) has no significant use other than engaging in,
enabling, or facilitating the--
(i) reproduction, distribution, or public performance of
copyrighted works, in complete or substantially complete
form, in a manner that constitutes copyright infringement
under section 501 of title 17, United States Code;
(ii) violation of section 1201 of title 17, United States
Code; or
(iii) sale, distribution, or promotion of goods, services,
or materials bearing a counterfeit mark, as that term is
defined in section 34(d) of the Lanham Act; or
(B) is designed, operated, or marketed by its operator or
persons operating in concert with the operator, and facts or
circumstances suggest is used, primarily as a means for
engaging in, enabling, or facilitating the activities
described under clauses (i), (ii), or (iii) of subparagraph
(A);
(8) the term ``Lanham Act'' means the Act entitled ``An Act
to provide for the registration and protection of trademarks
used in commerce, to carry out the provisions of certain
international conventions, and for other purposes'', approved
July 5, 1946 (commonly referred to as the ``Trademark Act of
1946'' or the ``Lanham Act'');
(9) the term ``nondomestic domain name'' means a domain
name for which the domain name registry that issued the
domain name and operates the relevant top level domain, and
the domain name registrar for the domain name, are not
located in the United States;
(10) the term ``owner'' or ``operator'' when used in
connection with an Internet site shall include, respectively,
any owner of a majority interest in, or any person with
authority to operate, such Internet site; and
(11) the term ``qualifying plaintiff'' means--
(A) the Attorney General of the United States; or
(B) an owner of an intellectual property right, or one
authorized to enforce such right, harmed by the activities of
an Internet site dedicated to infringing activities occurring
on that Internet site.
SEC. 3. ENHANCING ENFORCEMENT AGAINST ROGUE WEBSITES OPERATED
AND REGISTERED OVERSEAS.
(a) Commencement of an Action.--
(1) In personam.--The Attorney General may commence an in
personam action against--
(A) a registrant of a nondomestic domain name used by an
Internet site dedicated to infringing activities; or
(B) an owner or operator of an Internet site dedicated to
infringing activities accessed through a nondomestic domain
name.
(2) In rem.--If through due diligence the Attorney General
is unable to find a person described in subparagraphs (A) or
(B) of paragraph (1), or no such person found has an address
within a judicial district of the United States, the Attorney
General may commence an in rem action against a nondomestic
domain name used by an Internet site dedicated to infringing
activities.
(b) Orders of the Court.--
(1) In general.--On application of the Attorney General
following the commencement of an action under this section,
the court may issue a temporary restraining order, a
preliminary injunction, or an injunction, in accordance with
rule 65 of the Federal Rules of Civil Procedure, against the
nondomestic domain name used by an Internet site dedicated to
infringing activities, or against a registrant of such domain
name, or the owner or operator of such Internet site
dedicated to infringing activities, to cease and desist from
undertaking any further activity as an Internet site
dedicated to infringing activities, if--
(A) the domain name is used within the United States to
access such Internet site; and
(B) the Internet site--
[[Page S2938]]
(i) conducts business directed to residents of the United
States; and
(ii) harms holders of United States intellectual property
rights.
(2) Determination by the court.--For purposes of
determining whether an Internet site conducts business
directed to residents of the United States under paragraph
(1)(B)(i), a court may consider, among other indicia,
whether--
(A) the Internet site is providing goods or services
described in section 2(7) to users located in the United
States;
(B) there is evidence that the Internet site is not
intended to provide--
(i) such goods and services to users located in the United
States;
(ii) access to such goods and services to users located in
the United States; and
(iii) delivery of such goods and services to users located
in the United States;
(C) the Internet site has reasonable measures in place to
prevent such goods and services from being accessed from or
delivered to the United States;
(D) the Internet site offers services obtained in the
United States; and
(E) any prices for goods and services are indicated in the
currency of the United States.
(c) Notice and Service of Process.--
(1) In general.--Upon commencing an action under this
section, the Attorney General shall send a notice of the
alleged violation and intent to proceed under this Act to the
registrant of the domain name of the Internet site--
(A) at the postal and e-mail address appearing in the
applicable publicly accessible database of registrations, if
any and to the extent such addresses are reasonably
available;
(B) via the postal and e-mail address of the registrar,
registry, or other domain name registration authority that
registered or assigned the domain name, to the extent such
addresses are reasonably available; and
(C) in any other such form as the court finds necessary,
including as may be required by Rule 4(f) of the Federal
Rules of Civil Procedure.
(2) Rule of construction.--For purposes of this section,
the actions described in this subsection shall constitute
service of process.
(d) Required Actions Based on Court Orders.--
(1) Service.--A Federal law enforcement officer, with the
prior approval of the court, may serve a copy of a court
order issued pursuant to this section on similarly situated
entities within each class described in paragraph (2). Proof
of service shall be filed with the court.
(2) Reasonable measures.--After being served with a copy of
an order pursuant to this subsection:
(A) Operators.--
(i) In general.--An operator of a nonauthoritative domain
name system server shall take the least burdensome
technically feasible and reasonable measures designed to
prevent the domain name described in the order from resolving
to that domain name's Internet protocol address, except
that--
(I) such operator shall not be required--
(aa) other than as directed under this subparagraph, to
modify its network, software, systems, or facilities;
(bb) to take any measures with respect to domain name
lookups not performed by its own domain name server or domain
name system servers located outside the United States; or
(cc) to continue to prevent access to a domain name to
which access has been effectively disable by other means; and
(II) nothing in this subparagraph shall affect the
limitation on the liability of such an operator under section
512 of title 17, United States Code.
(ii) Text of notice.--The Attorney General shall prescribe
the text of the notice displayed to users or customers of an
operator taking an action pursuant to this subparagraph. Such
text shall specify that the action is being taken pursuant to
a court order obtained by the Attorney General.
(B) Financial transaction providers.--A financial
transaction provider shall take reasonable measures, as
expeditiously as reasonable, designed to prevent, prohibit,
or suspend its service from completing payment transactions
involving customers located within the United States and the
Internet site associated with the domain name set forth in
the order.
(C) Internet advertising services.--An Internet advertising
service that contracts with the Internet site associated with
the domain name set forth in the order to provide advertising
to or for that site, or which knowingly serves advertising to
or for such site, shall take technically feasible and
reasonable measures, as expeditiously as reasonable, designed
to--
(i) prevent its service from providing advertisements to
the Internet site associated with such domain name; or
(ii) cease making available advertisements for that site,
or paid or sponsored search results, links or other
placements that provide access to the domain name.
(D) Information location tools.--An information location
tool shall take technically feasible and reasonable measures,
as expeditiously as possible, to--
(i) remove or disable access to the Internet site
associated with the domain name set forth in the order; or
(ii) not serve a hypertext link to such Internet site.
(3) Communication with users.--Except as provided under
paragraph (2)(A)(ii), an entity taking an action described in
this subsection shall determine whether and how to
communicate such action to the entity's users or customers.
(4) Rule of construction.--For purposes of an action
commenced under this section, the obligations of an entity
described in this subsection shall be limited to the actions
set out in each paragraph or subparagraph applicable to such
entity, and no order issued pursuant to this section shall
impose any additional obligations on, or require additional
actions by, such entity.
(5) Actions pursuant to court order.--
(A) Immunity from suit.--No cause of action shall lie in
any Federal or State court or administrative agency against
any entity receiving a court order issued under this
subsection, or against any director, officer, employee, or
agent thereof, for any act reasonably designed to comply with
this subsection or reasonably arising from such order, other
than in an action pursuant to subsection (e).
(B) Immunity from liability.--Any entity receiving an order
under this subsection, and any director, officer, employee,
or agent thereof, shall not be liable to any party for any
acts reasonably designed to comply with this subsection or
reasonably arising from such order, other than in an action
pursuant to subsection (e), and any actions taken by
customers of such entity to circumvent any restriction on
access to the Internet domain instituted pursuant to this
subsection or any act, failure, or inability to restrict
access to an Internet domain that is the subject of a court
order issued pursuant to this subsection despite good faith
efforts to do so by such entity shall not be used by any
person in any claim or cause of action against such entity,
other than in an action pursuant to subsection (e).
(e) Enforcement of Orders.--
(1) In general.--In order to compel compliance with this
section, the Attorney General may bring an action for
injunctive relief against any party receiving a court order
issued pursuant to this section that knowingly and willfully
fails to comply with such order.
(2) Rule of construction.--The authority granted the
Attorney General under paragraph (1) shall be the sole legal
remedy for enforcing the obligations under this section of
any entity described in subsection (d).
(3) Defense.--A defendant in an action under paragraph (1)
may establish an affirmative defense by showing that the
defendant does not have the technical means to comply with
the subsection without incurring an unreasonable economic
burden, or that the order is inconsistent with this Act. This
showing shall serve as a defense only to the extent of such
inability to comply or to the extent of such inconsistency.
(f) Modification or Vacation of Orders.--
(1) In general.--At any time after the issuance of an order
under subsection (b), a motion to modify, suspend, or vacate
the order may be filed by--
(A) any person, or owner or operator of property, bound by
the order;
(B) any registrant of the domain name, or the owner or
operator of the Internet site subject to the order;
(C) any domain name registrar or registry that has
registered or assigned the domain name of the Internet site
subject to the order; or
(D) any entity that has received a copy of an order
pursuant to subsection (d) requiring such entity to take
action prescribed in that subsection.
(2) Relief.--Relief under this subsection shall be proper
if the court finds that--
(A) the Internet site associated with the domain name
subject to the order is no longer, or never was, an Internet
site dedicated to infringing activities; or
(B) the interests of justice require that the order be
modified, suspended, or vacated.
(3) Consideration.--In making a relief determination under
paragraph (2), a court may consider whether the domain name
has expired or has been re-registered by a different party.
(g) Related Actions.--The Attorney General, if alleging
that an Internet site previously adjudicated to be an
Internet site dedicated to infringing activities is
accessible or has been reconstituted at a different domain
name, may commence a related action under this section
against the additional domain name in the same judicial
district as the previous action.
SEC. 4. ELIMINATING THE FINANCIAL INCENTIVE TO STEAL
INTELLECTUAL PROPERTY ONLINE.
(a) Commencement of an Action.--
(1) In personam.--A qualifying plaintiff may commence an in
personam action against--
(A) a registrant of a domain name used by an Internet site
dedicated to infringing activities; or
(B) an owner or operator of an Internet site dedicated to
infringing activities accessed through a domain name.
(2) In rem.--If through due diligence a qualifying
plaintiff is unable to find a person described in
subparagraphs (A) or (B) of paragraph (1), or no such person
found has an address within a judicial district of the United
States, the Attorney General may commence an in rem action
against a domain name used by an Internet site dedicated to
infringing activities.
(b) Orders of the Court.--
(1) In general.--On application of a qualifying plaintiff
following the commencement of an action under this section,
the court
[[Page S2939]]
may issue a temporary restraining order, a preliminary
injunction, or an injunction, in accordance with rule 65 of
the Federal Rules of Civil Procedure, against the domain name
used by an Internet site dedicated to infringing activities,
or against a registrant of such domain name, or the owner or
operator of such Internet site dedicated to infringing
activities, to cease and desist from undertaking any further
activity as an Internet site dedicated to infringing
activities, if--
(A) the domain name is registered or assigned by a domain
name registrar or domain name registry that located or doing
business in the United States; or
(B)(i) the domain name is used within the United States to
access such Internet site; and
(ii) the Internet site--
(I) conducts business directed to residents of the United
States; and
(II) harms holders of United States intellectual property
rights.
(2) Determination by the court.--For purposes of
determining whether an Internet site conducts business
directed to residents of the United States under paragraph
(1)(B)(ii)(I), a court may consider, among other indicia,
whether--
(A) the Internet site is providing goods or services
described in section 2(7) to users located in the United
States;
(B) there is evidence that the Internet site is not
intended to provide--
(i) such goods and services to users located in the United
States;
(ii) access to such goods and services to users located in
the United States; and
(iii) delivery of such goods and services to users located
in the United States;
(C) the Internet site has reasonable measures in place to
prevent such goods and services from being accessed from or
delivered to the United States;
(D) the Internet site offers services obtained in the
United States; and
(E) any prices for goods and services are indicated in the
currency of the United States.
(c) Notice and Service of Process.--
(1) In general.--Upon commencing an action under this
section, the qualifying plaintiff shall send a notice of the
alleged violation and intent to proceed under this Act to the
registrant of the domain name of the Internet site--
(A) at the postal and e-mail address appearing in the
applicable publicly accessible database of registrations, if
any and to the extent such addresses are reasonably
available;
(B) via the postal and e-mail address of the registrar,
registry, or other domain name registration authority that
registered or assigned the domain name, to the extent such
addresses are reasonably available; and
(C) in any other such form as the court finds necessary,
including as may be required by Rule 4(f) of the Federal
Rules of Civil Procedure.
(2) Rule of construction.--For purposes of this section,
the actions described in this subsection shall constitute
service of process.
(d) Required Actions Based on Court Orders.--
(1) Service.--A qualifying plaintiff, with the prior
approval of the court, may, serve a copy of a court order
issued pursuant to this section on similarly situated
entities within each class described in paragraph (2). Proof
of service shall be filed with the court.
(2) Reasonable measures.--After being served with a copy of
an order pursuant to this subsection:
(A) Financial transaction providers.--A financial
transaction provider shall take reasonable measures, as
expeditiously as reasonable, designed to prevent, prohibit,
or suspend its service from completing payment transactions
involving customers located within the United States and the
Internet site associated with the domain name set forth in
the order.
(B) Internet advertising services.--An Internet advertising
service that contracts with the Internet site associated with
the domain name set forth in the order to provide advertising
to or for that site, or which knowingly serves advertising to
or for such site, shall take technically feasible and
reasonable measures, as expeditiously as reasonable, designed
to--
(i) prevent its service from providing advertisements to
the Internet site associated with such domain name; or
(ii) cease making available advertisements for that site,
or paid or sponsored search results, links, or placements
that provide access to the domain name.
(3) Communication with users.--An entity taking an action
described in this subsection shall determine how to
communicate such action to the entity's users or customers.
(4) Rule of construction.--For purposes of an action
commenced under this section, the obligations of an entity
described in this subsection shall be limited to the actions
set out in each paragraph or subparagraph applicable to such
entity, and no order issued pursuant to this section shall
impose any additional obligations on, or require additional
actions by, such entity.
(5) Actions pursuant to court order.--
(A) Immunity from suit.--No cause of action shall lie in
any Federal or State court or administrative agency against
any entity receiving a court order issued under this
subsection, or against any director, officer, employee, or
agent thereof, for any act reasonably designed to comply with
this subsection or reasonably arising from such order, other
than in an action pursuant to subsection (e).
(B) Immunity from liability.--Any entity receiving an order
under this subsection, and any director, officer, employee,
or agent thereof, shall not be liable to any party for any
acts reasonably designed to comply with this subsection or
reasonably arising from such order, other than in an action
pursuant to subsection (e), and any actions taken by
customers of such entity to circumvent any restriction on
access to the Internet domain instituted pursuant to this
subsection or any act, failure, or inability to restrict
access to an Internet domain that is the subject of a court
order issued pursuant to this subsection despite good faith
efforts to do so by such entity shall not be used by any
person in any claim or cause of action against such entity,
other than in an action pursuant to subsection (e).
(e) Enforcement of Orders.--
(1) In general.--In order to compel compliance with this
section, the qualifying plaintiff may bring an action for
injunctive relief against any party receiving a court order
issued pursuant to this section that knowingly and willfully
fails to comply with such order.
(2) Rule of construction.--The authority granted a
qualifying plaintiff under paragraph (1) shall be the sole
legal remedy for enforcing the obligations under this section
of any entity described in subsection (d).
(3) Defense.--A defendant in an action commenced under
paragraph (1) may establish an affirmative defense by showing
that the defendant does not have the technical means to
comply with the subsection without incurring an unreasonable
economic burden, or that the order is inconsistent with this
Act. This showing shall serve as a defense only to the extent
of such inability to comply or to the extent of such
inconsistency.
(f) Modification or Vacation of Orders.--
(1) In general.--At any time after the issuance of an order
under subsection (b), a motion to modify, suspend, or vacate
the order may be filed by--
(A) any person, or owner or operator of property, bound by
the order;
(B) any registrant of the domain name, or the owner or
operator of the Internet site subject to the order;
(C) any domain name registrar or registry that has
registered or assigned the domain name of the Internet site
subject to the order; or
(D) any entity that has received a copy of an order
pursuant to subsection (d) requiring such entity to take
action prescribed in that subsection.
(2) Relief.--Relief under this subsection shall be proper
if the court finds that--
(A) the Internet site associated with the domain name
subject to the order is no longer, or never was, dedicated to
infringing activities as defined in this Act; or
(B) the interests of justice require that the order be
modified, suspended, or vacated.
(3) Consideration.--In making a relief determination under
paragraph (2), a court may consider whether the domain name
has expired or has been re-registered by a different party.
(g) Related Actions.--A qualifying plaintiff, if alleging
that an Internet site previously adjudicated to be an
Internet site dedicated to infringing activities is
accessible or has been reconstituted at a different domain
name, may commence a related action under this section
against the additional domain name in the same judicial
district as the previous action.
SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING AMERICAN
INTELLECTUAL PROPERTY.
(a) In General.--No financial transaction provider or
Internet advertising service shall be liable for damages to
any person for voluntarily taking any action described in
section 3(d) or 4(d) with regard to an Internet site if the
entity acting in good faith and based on credible evidence
has a reasonable belief that the Internet site is an Internet
site dedicated to infringing activities.
(b) Internet Sites Engaged in Infringing Activities That
Endanger the Public Health.--
(1) Refusal of service.--A domain name registry, domain
name registrar, financial transaction provider, information
location tool, or Internet advertising service, acting in
good faith and based on credible evidence, may stop providing
or refuse to provide services to an infringing Internet site
that endangers the public health.
(2) Immunity from liability.--An entity described in
paragraph (1), including its directors, officers, employees,
or agents, that ceases or refused to provide services under
paragraph (1) shall not be liable to any party under any
Federal or State law for such action.
(3) Definitions.--For purposes of this subsection--
(A) the term ``adulterated'' has the same meaning as in
section 501 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 351);
(B) an ``infringing Internet site that endangers the public
health'' means--
(i) an Internet site dedicated to infringing activities for
which the counterfeit products that it offers, sells,
dispenses, or distributes are controlled or non-controlled
prescription medication; or
(ii) an Internet site that has no significant use other
than, or is designed, operated, or marketed by its operator
or persons operating in concert with the operator, and facts
or circumstances suggest is used, primarily as a means for--
[[Page S2940]]
(I) offering, selling, dispensing, or distributing any
controlled or non-controlled prescription medication, and
does so regularly without a valid prescription; or
(II) offering, selling, dispensing, or distributing any
controlled or non-controlled prescription medication, and
does so regularly for medication that is adulterated or
misbranded;
(C) the term ``misbranded'' has the same meaning as in
section 502 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 352); and
(D) the term ``valid prescription'' has the same meaning as
in section 309(e)(2)(A) of the Controlled Substances Act (21
U.S.C. 829(e)(2)(A)).
SEC. 6. SAVINGS CLAUSES.
(a) Rule of Construction Relating to Civil and Criminal
Remedies.--Nothing in this Act shall be construed to limit or
expand civil or criminal remedies available to any person
(including the United States) for infringing activities on
the Internet pursuant to any other Federal or State law.
(b) Rule of Construction Relating to Vicarious or
Contributory Liability.--Nothing in this Act shall be
construed to enlarge or diminish vicarious or contributory
liability for any cause of action available under title 17,
United States Code, including any limitations on liability
under section 512 of such title 17, or to create an
obligation to take action pursuant to section 5 of this Act.
(c) Relationship With Section 512 of Title 17.--Nothing in
this Act, and no order issued or served pursuant to sections
3 or 4 of this Act, shall serve as a basis for determining
the application of section 512 of title 17, United States
Code.
SEC. 7. GUIDELINES AND STUDIES.
(a) Guidelines.--The Attorney General shall--
(1) publish procedures developed in consultation with other
relevant law enforcement agencies, including the United
States Immigration and Customs Enforcement, to receive
information from the public about Internet sites dedicated to
infringing activities;
(2) provide guidance to intellectual property rights
holders about what information such rights holders should
provide law enforcement agencies to initiate an investigation
pursuant to this Act;
(3) provide guidance to intellectual property rights
holders about how to supplement an ongoing investigation
initiated pursuant to this Act;
(4) establish standards for prioritization of actions
brought under this Act;
(5) provide appropriate resources and procedures for case
management and development to affect timely disposition of
actions brought under this Act; and
(6) develop a deconfliction process in consultation with
other law enforcement agencies, including the United States
Immigration and Customs Enforcement, to coordinate
enforcement activities brought under this Act.
(b) Reports.--
(1) Report on effectiveness of certain measures.--Not later
than 1 year after the date of enactment of this Act, the
Secretary of Commerce, in coordination with the Attorney
General, the Secretary of Homeland Security, and the
Intellectual Property Enforcement Coordinator, shall conduct
a study and report to the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives on the following:
(A) An assessment of the effects, if any, of the
implementation of section 3(d)(2)(A) on the accessibility of
Internet sites dedicated to infringing activity.
(B) An assessment of the effects, if any, of the
implementation of section 3(d)(2)(A) on the deployment,
security, and reliability of the domain name system and
associated Internet processes, including Domain Name System
Security Extensions.
(C) Recommendations, if any, for modifying or amending this
Act to increase effectiveness or ameliorate any unintended
effects of section 3(d)(2)(A).
(2) Report on overall effectiveness.--The Register of
Copyrights shall, in consultation with the appropriate
departments and agencies of the United States and other
stakeholders--
(A) conduct a study on--
(i) the enforcement and effectiveness of this Act; and
(ii) the need to modify or amend this Act to apply to
emerging technologies; and
(B) not later than 2 years after the date of enactment of
this Act, submit a report to the Committee on the Judiciary
of the Senate and the Committee on the Judiciary of the House
of Representatives on--
(i) the results of the study conducted under subparagraph
(A); and
(ii) any recommendations that the Register may have as a
result of the study.
Mr. HATCH. Mr. President, I rise to express support for S. 968, the
Preventing Real Online Threats to Economic Creativity and Theft of
Intellectual Property, PROTECT, Act as introduced by my colleague,
Senator Leahy. Chairman Leahy and I have worked together on the
protection of intellectual property rights on a number of occasions
over the years and I am pleased to partner with him once again on this
important bill. I also want to recognize the efforts of Senator
Grassley, the distinguished Ranking Minority Member of the Senate
Judiciary Committee. He is a valued friend and his support is greatly
appreciated as we move forward.
With this legislation, we are sending a strong message to those
selling or distributing counterfeit goods online, namely that the
United States will strongly protect its intellectual property, IP,
rights. Despite what seems to be a common assumption, just because
something is available on the Internet does not mean it is free. Fake
pharmaceuticals threaten people's lives. Stolen movies, music, and
other products threaten the jobs and livelihoods of many people. Every
year, these online thieves are making hundreds of millions of dollars
by stealing American IP, and this undermines legitimate commerce. This
is why protecting property rights is a critical imperative and is why
we have come together to introduce the PROTECT IP Act.
Utah is considered a very popular State for film and television
production activity. Indeed, many American classics have been filmed in
my home State. Nothing compares to the red rock of Southern Utah or the
sweeping grandeur of the Wasatch Mountains. Not to mention Utah's
workforce, which is one of the most highly educated and hardworking in
our country. It is estimated that the motion picture and television
industries are responsible for thousands of jobs and tens of millions
of dollars in wages in Utah. So, IP theft has a direct, negative impact
on Utah's economy and its workforce, and this same impact can be seen
nationwide.
There is no question that the legislative process can be tedious at
times, and often it takes multiple Congresses to get things right. We
witnessed this first hand in the patent reform debate. It took three
Congresses for the Senate to pass patent reform legislation. I was
pleased to be the lead Republican sponsor of the America Invents Act,
S. 23, which passed the Senate in March by a vote of 95 to 5. I can
confirm that the final Senate-passed bill was a product of countless
hours of negotiation and legislative fine-tuning. While I hope the bill
before us will not take nearly as long, I can confirm that significant
and positive changes have already occurred since we introduced the
bipartisan legislation last year. These changes include a narrower
definition of the type of Internet sites to which the bill applies,
specifically those ``dedicated to infringing activities;''
authorization for the Attorney General to serve an issued court order
on a search engine, in addition to payment processors, advertising
networks and Internet service providers; authorization for both the
Attorney General and rights holders to bring actions against online
infringers operating an Internet site or domain where the site is
``dedicated to infringing activities,'' but with remedies limited to
eliminating the financial viability of the site, not blocking access;
requirement of plaintiffs to attempt to bring an action against the
owner or registrant of the domain name used to access an Internet site
``dedicated to infringing activities'' before bringing an action
against the domain name itself; protection for domain name registries,
registrars, search engines, payment processors, and advertising
networks from damages resulting from their voluntary action against an
Internet site ``dedicated to infringing activities,'' where that site
also ``endangers the public health,'' by offering controlled or non-
controlled prescription medication.
It is worth underscoring that the purpose of the PROTECT IP Act is to
take down Internet sites dedicated to infringing activities, or in
other words, the most egregious offenders in the world of online IP
theft. Indeed, the bill authorizes the Department of Justice, DOJ, to
file a civil action against the registrant or owner of a domain name
that accesses a foreign infringing Internet site, or the foreign-
registered domain name itself. However, DOJ officials must seek
approval from a Federal court before taking any action. I trust that a
Federal judge will weigh all of the facts carefully before issuing an
order, in accordance with the Federal Rules of Civil Procedure, to shut
down a Web site dedicated to infringing activities.
There is no quick fix to this problem. But doing nothing is not an
option. We must explore ways, albeit in incremental steps, to take down
offending
[[Page S2941]]
Web sites. For this reason, I believe the PROTECT IP Act is a critical
step in our ongoing fight against online piracy and counterfeiting. I
am pleased with the progress that we have made so far on this bill and
look forward to working with my colleagues on further refinements as it
moves through the legislative process.
We must take steps to combat those Web sites that are profiting from
stolen American intellectual property.
______
By Mr. WYDEN (for himself and Mr. Thune):
S. 971. A bill to promote neutrality, simplicity, and fairness in the
taxation of digital goods and digital services; to the Committee on
Finance.
Mr. WYDEN. Mr. President, I rise today to introduce the Digital Goods
and Services Tax Fairness Act. I am pleased to be joined by my
colleague from South Dakota, Senator Thune, in introducing this needed
legislation.
The creation and consumption of downloadable digital goods, like
books, songs, ringtones and video games, and the provision of digital
services, like health care monitoring and cloud computing, represent a
rapidly growing segment of our national economy. These goods and
services, which are supporting a growing number of American jobs, are
sold over communications networks that transcend numerous state and
local boundaries. Tax law, not surprisingly, has failed to keep pace
with the rapidly changing technology and economy. The lack of a
national framework addressing how State and local taxes can be imposed
upon these products has led to a confusing process that will only grow
more burdensome for consumers and the providers of digital commerce as
new, innovative and emerging technologies become available.
Since digital goods and services can be downloaded in a mobile
environment, there is a significant question as to which jurisdiction
has the authority to tax such purchases. In fact, there is substantial
risk that, without a national framework, multiple States and localities
will claim they have authority to tax the same digital transaction. For
example, if a consumer is on vacation in another State and downloads a
song, the State the consumer is visiting, the State that houses the
server providing the song, and the consumer's home State could all
claim the authority to tax the purchase. This is not only an unfair tax
burden on the consumer, but also for the seller that is responsible for
identifying the jurisdiction on whose behalf it should be collecting
taxes. Left unchecked, these multiple taxes could stifle the digital
commerce and crush a growing industry that is creating the good jobs
that our country needs.
We can't let that happen. We need a uniform solution that will
modernize our State and local tax system to appropriately address the
inherent complexities that digital commerce presents.
Neutrality should guide tax policy and administration in the area of
digital commerce. Transactions involving similar types of goods and
services should be taxed fairly, regardless of the method and means of
distribution, whether through electronic transfer or through other
channels of commerce. To ensure neutrality and avoid multiple taxation,
rules should be adopted to reflect the unique nature of electronic
commerce and how digital goods and digital services are provided.
I am introducing the Digital Goods and Services Tax Fairness Act to
establish a framework for when and how local governments can tax
digital goods and services. The framework put forward in the
legislation respects States' authority to tax these products while also
fostering innovation and growth in this segment of global commerce.
In most cases, this legislation will use the address of the consumer
to determine which jurisdiction has the authority to tax a digital
purchase, as long as the State has passed a law to do so and is
lawfully able under the Internet Tax Freedom Act and the Supreme
Court's Quill decision. Similar to mobile phones, digital purchases
should be taxed by the State the consumer resides, not the State that
they may have been traveling through while they downloaded the digital
product.
This legislation would also preclude discriminatory taxes from being
imposed on digital goods and services solely because they are
transmitted over communication networks. Additionally, this legislation
would ensure that if States tax digital goods and services, they should
only be taxed at the same rate imposed upon other tangible goods taxed
under the general sales tax.
The Digital Goods and Services Tax Fairness Act of 2011 is structured
to provide discipline, but also certainty to States and local
governments that wish to tax digital commerce and to the businesses and
consumers that are engaged in this marketplace. Our economy is changing
in a variety of exciting ways. Congress must be responsive to this
reality and consider this legislation soon.
______
By Mr. WHITEHOUSE (for himself, Ms. Snowe, Mr. Rockefeller, Mr.
Nelson of Florida, Ms. Landrieu, and Ms. Stabenow):
S. 973. A bill to create the National Endowment for the Oceans to
promote the protection and conservation of the United States ocean,
coastal, and Great Lakes ecosystems, and for other purposes; to the
Committee on Commerce, Science, and Transportation.
Mr. WHITEHOUSE. Mr. President, I rise this afternoon to discuss an
important piece of bipartisan legislation that I am introducing today
with my friend and fellow New Englander, Senator Snowe, to establish a
national endowment for the study, conservation, and restoration of our
Nation's oceans, coasts, and Great Lakes.
Let me begin with a particular thank-you to our original cosponsors:
the chairman of the Commerce Committee, Senator Rockefeller of West
Virginia; the chairman of the Appropriations Committee, Senator Inouye
of Hawaii; my colleague from the great State of Michigan, Senator
Stabenow; and two colleagues from the Gulf of Mexico region, Senator
Bill Nelson of Florida and Senator Landrieu from Louisiana.
As any Rhode Islander can tell you, the ocean is central to our
State's way of life. I tell colleagues that Rhode Island's coast is one
of the most beautiful places on Earth. But we don't call Rhode Island
the Ocean State just because it is beautiful. We are the Ocean State
because from our earliest days we have relied on the ocean and our
beloved Narragansett Bay for trade, for food, for recreation, and for
jobs in the shipbuilding, shipping, fishing, and tourism industries.
And we are not alone--across America, our oceans and coasts directly
provide over $130 billion to our country's gross domestic product, and
support 2.3 million America jobs. But one impact goes far beyond that.
Our coastal zone areas generate nearly 50 percent of our Nation's
gross domestic product and support more than 28 million jobs.
In part, it is Americans' love of and reliance on the oceans that
drives the need now to protect and restore them. Coastal America is
experiencing a huge population boom, leading to more and more
construction that puts significant pressure on our natural coastline
and our wetlands.
Worldwide demand for seafood grows at a pace that our fish stocks
cannot keep pace with, and our demand for energy leads us ever deeper
into the ocean in search of fuel.
There is an old adage, that nothing focuses the mind like a crisis.
If this is true, it must be time to focus on taking care of our oceans,
because I believe that our oceans are facing what can be characterized
as nothing less than a crisis. Our oceans are facing an array of
threats, from marine debris aggregating in gyres the size of Texas, to
whales so full of bio-accumulative toxins that they constitute swimming
hazardous waste.
These are just a few of the headlines from just the past year:
This spring, we have watched in horror as Japan, already suffering
from a terrible earthquake and tsunami--and our hearts go out to them--
battled to keep the Fukushima Nuclear Plant intact. Leaks from the
plant have sent harmful levels of radiation into the ocean.
In July of 2010, the Midwest experienced its largest oil spill ever,
after a leaking Michigan pipeline poured oil into the Kalamazoo River
and thence into the Great Lakes.
Last June, the journal Science published a literature review by
researchers from the University of Queensland
[[Page S2942]]
and UNC Chapel Hill, revealing mounting evidence that:
Rapidly rising greenhouse gas concentrations are driving
ocean systems toward conditions not seen for millions of
years, with an associated risk of fundamental and
irreversible ecological transformation.
In my home State of Rhode Island, the Narragansett Bay has witnessed
a 4-degree increase in average annual winter water temperature, causing
what amounts to a full ecosystem shift.
And of course, in April 2010, we witnessed the horrific explosion of
the Deepwater Horizon, the tragic loss of life, and the unfolding of
the largest environmental disaster our country has ever seen. The Gulf
of Mexico, and the people who depend on this ecosystem for their
sustenance and livelihoods, are still struggling to recover.
We are now 13 months beyond the Deepwater Horizon explosion. Lives
are still shattered; livelihoods reliant on the gulf ecosystem are
still threatened. But we are within the window of action. It is not too
late to provide for short-term restoration of the gulf coast to enact
legislation that reduces the risk of future oilspills, and as my
cosponsors and I seek to provide dedicated funding to study, protect,
and restore the marine and coastal ecosystems within the United States'
boundaries.
The National Endowment for the Oceans is our proposal to meet this
last challenge. The Endowment would make grants available to coastal
and Great Lakes States, local government agencies, regional planning
bodies, academic institutions, and nonprofit organizations so these
entities could embark on projects to learn more about and do a better
job of protecting our precious natural resource. Projects that allow
researchers to hire technicians, mechanics, computer scientists and
students. Projects that put people to work relocating critical public
infrastructure jeopardized by sea level rise. Projects that solve
resource management problems and restore our natural ecosystems.
Projects that protect jobs by restoring commercial fisheries habitat,
and creating new fisheries gear for sustainable and profitable fishing.
The National Oceanic Atmospheric Administration received $167 million
for coastal restoration projects under the Recovery Act. More than 800
proposals for shovel-ready construction and engineering projects came
in, totaling $3 billion worth of work. But NOAA could only fund 50 of
the 800.
The National Endowment for the Oceans would help us move forward with
these projects and others that protect our oceans and drive our
economy. As I stand here today, more than a year after the beginning of
the oilspill in the gulf, and in the face of mounting evidence that our
oceans and coasts are truly facing a crisis, I understand the feelings
of concern and frustration. But, again, I believe it is not too late.
In fact, I believe the time is now to pass legislation that will help
to restore the gulf ecosystem. The time is now to pass legislation that
will reduce the risk of future oilspills. And it is time now to provide
dedicated funding for the study, restoration, and protection of our
Nation's ocean and coastal resources.
We need to put the stewardship of our natural resources, our ocean
resources, at the forefront of our national agenda. The National
Endowment for the Oceans, as I said, is bipartisan. I thank Senator
Olympia Snowe for her leadership in this effort. This legislation is
science based, with much of the money made available through a
competitive grant program. This legislation is cost effective,
coordinating existing efforts of Federal, local, and private programs,
reducing duplication of research efforts, and crossing political
borders to ensure that every dollar is spent with the greatest possible
effect.
Finally, this legislation is appropriately paid for with revenue
generated from the Oil Spill Liability Trust Fund, a portion of
royalties from Outer Continental Shelf energy development, and fines
and damages collected for violations of Federal law off our coastline.
Put simply, a small portion of the revenue we extract from our oceans
and great waters will be reinvested to now protect the long-term
viability of those oceans and great waters.
The ocean provides us with great bounty, and we will continue to take
advantage of that, as we should. We will fish, we will sail, and we
will trade. We will dispose of waste. We will extract fuel and
construct wind farms. Navies and cruise ships, sail boats and
supertankers will plow the ocean surface. We cannot change how reliant
we are on our ocean. What we can change is what we do in return.
We can for the first time give back. We can become stewards of our
oceans, not just takers but caretakers. The oceans contain immense
potential for new discoveries, immense potential for new jobs, and
immense potential for new solutions to the emerging oceans crisis. But
to meet the demands of this moment, we must respond to the challenges
before us. We must heed the alarm bells that are ringing from the
arctic seas to our tropic oceans, from the top of the food chain to the
bottom, alarm bells indeed are ringing.
I urge my colleagues to join Senator Snowe and myself in support of
the National Endowment for the Oceans. Let ours be the generation that
tips the increasingly troubling balance between mankind and our oceans
a little bit back toward the benefit of our oceans for the long-term
benefit of mankind.
______
By Ms. SNOWE (for herself and Ms. Landrieu):
S. 974. A bill to amend the Internal Revenue Code of 1986 to expand
the tip tax credit to employers of cosmetologists and to promote tax
compliance in the cosmetology sector; to the Committee on Finance.
Ms. SNOWE. Mr. President, as ranking member of the Senate Small
Business Committee, I am delighted to rise today, on the eve of
National Small Business Week, with Senator Landrieu, who is Chair of
the Committee, to introduce the Small Business Tax Equalization and
Compliance Act.
Our bipartisan measure is a pro-small business bill and would allow
the salon industry to have the same tax rules on tips paid to employees
as is permitted in the restaurant industry. The legislation would
increase compliance with payroll tax obligations and will make sure
that the women who work in the salon industry earn all the Social
Security retirement and disability benefits they should be entitled to.
It would also help to prevent salons that do not follow the tax law
from gaining a competitive disadvantage against those that do follow
the law. Congressman Sam Johnson, R-TX, is leading the charge on a
companion bill in the House.
Clearly this legislation will help all parts of the salon industry,
big and small, men and women. But the reality is that because 84
percent of the workforce in the salon industry is female, this issue
has special relevance for women. When women work as independent
contractors at hair salons, they are less likely to disclose all of
their tips for purposes of paying Social Security taxes. As a result,
they reduce their future right to earn retirement and disability
benefits in the Social Security system and reduce the size of any
benefit they do ultimately earn. Making sure that working women are
correctly paying into Social Security is critical to their future
retirement security because many of these women will have had no other
retirement benefits available to them.
We know that women are disproportionately dependent on Social
Security for their retirement benefits, a March 2010 study by the Women
for Women's Policy Research showed that women's Social Security
benefits in 2008 were only about 75 percent of the benefits earned by
men and it comprised about half of their total retirement income. By
contrast, Social Security benefits comprised roughly one-third of men's
retirement income. Earning the right to collect a decent Social
Security benefit is vital to women.
As a small business issue, salons are a quintessential small business
on Main Streets across America. According to the U.S. Census Bureau, 98
percent of salon industry firms have only one establishment; 92 percent
of salon establishments have sales of less than $500,000; and 82
percent of salon establishments have fewer than 10 employees. Extending
the tip tax credit to salon owners would allow them to reinvest in
their businesses and employees,
[[Page S2943]]
create new jobs, granting new economic and employment opportunities in
their local communities.
I specifically want to explain what this legislation would do. First,
it would provide to the salon industry with the same type of tax credit
currently available in the restaurant industry. The credit is for
employers to offset the matching Social Security and Medicare taxes
that the salon pays on the tips that employees receive from customers.
Next, the bill would help to make more even-handed IRS enforcement of
laws on payroll and income taxes. Without this legislation it is often
the lopsided practice of the IRS to seek back taxes from the employer
but rarely from the employee or independent contractor despite the
requirement that taxes be paid in equal measure.
The legislation will protect both legitimate independent contractors
and employees who pay their taxes but frees up IRS resources to focus
on those bad actors who are not complying with the law. Although non-
employer salons comprise 87 percent of establishments, their reported
sales represent only 36 percent of total salon industry revenues,
implying a significant underreporting of income in the non-employer
segment. This legislation includes education and reporting requirements
which will help address the ``tax gap'' and reveal a valuable new
source of tax revenues for the federal government. This is a win-win-
win for the salons, for employees, and for the government.
This bill is supported by the Professional Beauty Association, the
largest association in the professional beauty industry, which is
comprised of salon and spa owners, manufacturers and distributors of
salon and spa products, and individual licensed cosmetologists.
Finally, I want to thank two salon owners who brought this issue to
my attention, Alan Labos of Akari Salon in Portland, ME, Tiffany Conway
of bei capelli salon in Scarborough, ME.
In conclusion, I urge my colleagues on both sides of the aisle to
support our bill.
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. 974
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 ``Small Business Tax
Equalization and Compliance Act of 2011''.
SEC. 2. EXPANSION OF CREDIT FOR PORTION OF SOCIAL SECURITY
TAXES PAID WITH RESPECT TO EMPLOYEE TIPS.
(a) Expansion of Credit to Other Lines of Business.--
Paragraph (2) of section 45B(b) of the Internal Revenue Code
of 1986 is amended to read as follows:
``(2) Application only to certain lines of business.--In
applying paragraph (1), there shall be taken into account
only tips received from customers or clients in connection
with--
``(A) the providing, delivering, or serving of food or
beverages for consumption if the tipping of employees
delivering or serving food or beverages by customers is
customary, or
``(B) the providing of any cosmetology service for
customers or clients at a facility licensed to provide such
service if the tipping of employees providing such service is
customary.''.
(b) Definition of Cosmetology Service.--Section 45B of such
Code is amended by redesignating subsections (c) and (d) as
subsections (d) and (e), respectively, and by inserting after
subsection (b) the following new subsection:
``(c) Cosmetology Service.--For purposes of this section,
the term `cosmetology service' means--
``(1) hairdressing,
``(2) haircutting,
``(3) manicures and pedicures,
``(4) body waxing, facials, mud packs, wraps, and other
similar skin treatments, and
``(5) any other beauty-related service provided at a
facility at which a majority of the services provided (as
determined on the basis of gross revenue) are described in
paragraphs (1) through (4).''.
(c) Effective Date.--The amendments made by this section
shall apply to tips received for services performed after
December 31, 2010.
SEC. 3. INFORMATION REPORTING AND TAXPAYER EDUCATION FOR
PROVIDERS OF COSMETOLOGY SERVICES.
(a) In General.--Subpart B of part III of subchapter A of
chapter 61 of the Internal Revenue Code of 1986 is amended by
inserting after section 6050W the following new section:
``SEC. 6050X. RETURNS RELATING TO COSMETOLOGY SERVICES AND
INFORMATION TO BE PROVIDED TO COSMETOLOGISTS.
``(a) In General.--Every person (referred to in this
section as a `reporting person') who--
``(1) employs 1 or more cosmetologists to provide any
cosmetology service,
``(2) rents a chair to 1 or more cosmetologists to provide
any cosmetology service on at least 5 calendar days during a
calendar year, or
``(3) in connection with its trade or business or rental
activity, otherwise receives compensation from, or pays
compensation to, 1 or more cosmetologists for the right to
provide cosmetology services to, or for cosmetology services
provided to, third-party patrons,
shall comply with the return requirements of subsection (b)
and the taxpayer education requirements of subsection (c).
``(b) Return Requirements.--The return requirements of this
subsection are met by a reporting person if the requirements
of each of the following paragraphs applicable to such person
are met.
``(1) Employees.--In the case of a reporting person who
employs 1 or more cosmetologists to provide cosmetology
services, the requirements of this paragraph are met if such
person meets the requirements of sections 6051 (relating to
receipts for employees) and 6053(b) (relating to tip
reporting) with respect to each such employee.
``(2) Independent contractors.--In the case of a reporting
person who pays compensation to 1 or more cosmetologists
(other than as employees) for cosmetology services provided
to third-party patrons, the requirements of this paragraph
are met if such person meets the applicable requirements of
section 6041 (relating to returns filed by persons making
payments of $600 or more in the course of a trade or
business), section 6041A (relating to returns to be filed by
service-recipients who pay more than $600 in a calendar year
for services from a service provider), and each other
provision of this subpart that may be applicable to such
compensation.
``(3) Chair renters.--
``(A) In general.--In the case of a reporting person who
receives rent or other fees or compensation from 1 or more
cosmetologists for use of a chair or for rights to provide
any cosmetology service at a salon or other similar facility
for more than 5 days in a calendar year, the requirements of
this paragraph are met if such person--
``(i) makes a return, according to the forms or regulations
prescribed by the Secretary, setting forth the name, address,
and TIN of each such cosmetologist and the amount received
from each such cosmetologist, and
``(ii) furnishes to each cosmetologist whose name is
required to be set forth on such return a written statement
showing--
``(I) the name, address, and phone number of the
information contact of the reporting person,
``(II) the amount received from such cosmetologist, and
``(III) a statement informing such cosmetologist that (as
required by this section), the reporting person has advised
the Internal Revenue Service that the cosmetologist provided
cosmetology services during the calendar year to which the
statement relates.
``(B) Method and time for providing statement.--The written
statement required by clause (ii) of subparagraph (A) shall
be furnished (either in person or by first-class mail which
includes adequate notice that the statement or information is
enclosed) to the person on or before January 31 of the year
following the calendar year for which the return under clause
(i) of subparagraph (A) is to be made.
``(c) Taxpayer Education Requirements.--In the case of a
reporting person who is required to provide a statement
pursuant to subsection (b), the requirements of this
subsection are met if such person provides to each such
cosmetologist annually a publication, as designated by the
Secretary, describing--
``(1) in the case of an employee, the tax and tip reporting
obligations of employees, and
``(2) in the case of a cosmetologist who is not an employee
of the reporting person, the tax obligations of independent
contractors or proprietorships.
The publications shall be furnished either in person or by
first-class mail which includes adequate notice that the
publication is enclosed.
``(d) Definitions.--For purposes of this section--
``(1) Cosmetologist.--
``(A) In general.--The term `cosmetologist' means an
individual who provides any cosmetology service.
``(B) Anti-avoidance rule.--The Secretary may by regulation
or ruling expand the term `cosmetologist' to include any
entity or arrangement if the Secretary determines that
entities are being formed to circumvent the reporting
requirements of this section.
``(2) Cosmetology service.--The term `cosmetology service'
has the meaning given to such term by section 45B(c).
``(3) Chair.--The term `chair' includes a chair, booth, or
other furniture or equipment from which an individual
provides a cosmetology service (determined without regard to
whether the cosmetologist is entitled to use a specific
chair, booth, or other similar furniture or equipment or has
an exclusive right to use any such chair, booth, or other
similar furniture or equipment).
[[Page S2944]]
``(e) Exceptions for Certain Employees.--Subsection (c)
shall not apply to a reporting person with respect to an
employee who is employed in a capacity for which tipping (or
sharing tips) is not customary.''.
(b) Conforming Amendments.--
(1) Section 6724(d)(1)(B) of such Code (relating to the
definition of information returns) is amended by striking
``or'' at the end of clause (xxiv), by striking ``and'' at
the end of clause (xxv) and inserting ``or'', and by
inserting after clause (xxv) the following new clause:
``(xvi) section 6050X(a) (relating to returns by
cosmetology service providers), and''.
(2) Section 6724(d)(2) of such Code is amended by striking
``or'' at the end of subparagraph (GG), by striking the
period at the end of subparagraph (HH) and inserting ``,
or'', and by inserting after subparagraph (HH) the following
new subparagraph:
``(II) subsections (b)(3)(A)(ii) and (c) of section 6050X
(relating to cosmetology service providers) even if the
recipient is not a payee.''.
(3) The table of sections for subpart B of part III of
subchapter A of chapter 61 of such Code is amended by adding
after the item relating to section 6050W the following new
item:
``Sec. 6050X. Returns relating to cosmetology services and information
to be provided to cosmetologists.''.
(c) Effective Date.--The amendments made by this section
shall apply to calendar years after 2010.
______
By Mr. DURBIN (for himself, Mr. Lieberman, Mr. Whitehouse, Mr.
Cardin, and Mr. Reed):
S. 979. A bill to designate as wilderness certain Federal portions of
the red rock canyons of the Colorado Plateau and the Great Basin
Deserts in the State of Utah for the benefit of present and future
generations of people in the United States; to the Committee on Energy
and Natural Resources.
Mr. DURBIN. 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. 979
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``America's
Red Rock Wilderness Act of 2011''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--DESIGNATION OF WILDERNESS AREAS
Sec. 101. Great Basin Wilderness Areas.
Sec. 102. Grand Staircase-Escalante Wilderness Areas.
Sec. 103. Moab-La Sal Canyons Wilderness Areas.
Sec. 104. Henry Mountains Wilderness Areas.
Sec. 105. Glen Canyon Wilderness Areas.
Sec. 106. San Juan-Anasazi Wilderness Areas.
Sec. 107. Canyonlands Basin Wilderness Areas.
Sec. 108. San Rafael Swell Wilderness Areas.
Sec. 109. Book Cliffs and Uinta Basin Wilderness Areas.
TITLE II--ADMINISTRATIVE PROVISIONS
Sec. 201. General provisions.
Sec. 202. Administration.
Sec. 203. State school trust land within wilderness areas.
Sec. 204. Water.
Sec. 205. Roads.
Sec. 206. Livestock.
Sec. 207. Fish and wildlife.
Sec. 208. Management of newly acquired land.
Sec. 209. Withdrawal.
SEC. 2. DEFINITIONS.
In this Act:
(1) Secretary.--The term ``Secretary'' means the Secretary
of the Interior, acting through the Bureau of Land
Management.
(2) State.--The term ``State'' means the State of Utah.
TITLE I--DESIGNATION OF WILDERNESS AREAS
SEC. 101. GREAT BASIN WILDERNESS AREAS.
(a) Findings.--Congress finds that--
(1) the Great Basin region of western Utah is comprised of
starkly beautiful mountain ranges that rise as islands from
the desert floor;
(2) the Wah Wah Mountains in the Great Basin region are
arid and austere, with massive cliff faces and leathery
slopes speckled with pinon and juniper;
(3) the Pilot Range and Stansbury Mountains in the Great
Basin region are high enough to draw moisture from passing
clouds and support ecosystems found nowhere else on earth;
(4) from bristlecone pine, the world's oldest living
organism, to newly-flowered mountain meadows, mountains of
the Great Basin region are islands of nature that--
(A) support remarkable biological diversity; and
(B) provide opportunities to experience the colossal
silence of the Great Basin; and
(5) the Great Basin region of western Utah should be
protected and managed to ensure the preservation of the
natural conditions of the region.
(b) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(1) Antelope Range (approximately 17,000 acres).
(2) Barn Hills (approximately 20,000 acres).
(3) Black Hills (approximately 9,000 acres).
(4) Bullgrass Knoll (approximately 15,000 acres).
(5) Burbank Hills/Tunnel Spring (approximately 92,000
acres).
(6) Conger Mountains (approximately 21,000 acres).
(7) Crater Bench (approximately 35,000 acres).
(8) Crater and Silver Island Mountains (approximately
121,000 acres).
(9) Cricket Mountains Cluster (approximately 62,000 acres).
(10) Deep Creek Mountains (approximately 126,000 acres).
(11) Drum Mountains (approximately 39,000 acres).
(12) Dugway Mountains (approximately 24,000 acres).
(13) Essex Canyon (approximately 1,300 acres).
(14) Fish Springs Range (approximately 64,000 acres).
(15) Granite Peak (approximately 19,000 acres).
(16) Grassy Mountains (approximately 23,000 acres).
(17) Grouse Creek Mountains (approximately 15,000 acres).
(18) House Range (approximately 201,000 acres).
(19) Keg Mountains (approximately 38,000 acres).
(20) Kern Mountains (approximately 15,000 acres).
(21) King Top (approximately 110,000 acres).
(22) Ledger Canyon (approximately 9,000 acres).
(23) Little Goose Creek (approximately 1,200 acres).
(24) Middle/Granite Mountains (approximately 80,000 acres).
(25) Mount Escalante (approximately 18,000 acres).
(26) Mountain Home Range (approximately 90,000 acres).
(27) Newfoundland Mountains (approximately 22,000 acres).
(28) Ochre Mountain (approximately 13,000 acres).
(29) Oquirrh Mountains (approximately 9,000 acres).
(30) Painted Rock Mountain (approximately 26,000 acres).
(31) Paradise/Steamboat Mountains (approximately 144,000
acres).
(32) Pilot Range (approximately 45,000 acres).
(33) Red Tops (approximately 28,000 acres).
(34) Rockwell-Little Sahara (approximately 21,000 acres).
(35) San Francisco Mountains (approximately 39,000 acres).
(36) Sand Ridge (approximately 73,000 acres).
(37) Simpson Mountains (approximately 42,000 acres).
(38) Snake Valley (approximately 100,000 acres).
(39) Spring Creek Canyon (approximately 4,000 acres).
(40) Stansbury Island (approximately 10,000 acres).
(41) Stansbury Mountains (approximately 24,000 acres).
(42) Thomas Range (approximately 36,000 acres).
(43) Tule Valley (approximately 159,000 acres).
(44) Wah Wah Mountains (approximately 167,000 acres).
(45) Wasatch/Sevier Plateaus (approximately 29,000 acres).
(46) White Rock Range (approximately 5,200 acres).
SEC. 102. GRAND STAIRCASE-ESCALANTE WILDERNESS AREAS.
(a) Grand Staircase Area.--
(1) Findings.--Congress finds that--
(A) the area known as the Grand Staircase rises more than
6,000 feet in a series of great cliffs and plateaus from the
depths of the Grand Canyon to the forested rim of Bryce
Canyon;
(B) the Grand Staircase--
(i) spans 6 major life zones, from the lower Sonoran Desert
to the alpine forest; and
(ii) encompasses geologic formations that display
3,000,000,000 years of Earth's history;
(C) land managed by the Secretary lines the intricate
canyon system of the Paria River and forms a vital natural
corridor connection to the deserts and forests of those
national parks;
(D) land described in paragraph (2) (other than East of
Bryce, Upper Kanab Creek, Moquith Mountain, Bunting Point,
and Vermillion Cliffs) is located within the Grand Staircase-
Escalante National Monument; and
(E) the Grand Staircase in Utah should be protected and
managed as a wilderness area.
(2) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(A) Bryce View (approximately 4,500 acres).
(B) Bunting Point (approximately 11,000 acres).
[[Page S2945]]
(C) Canaan Mountain (approximately 16,000 acres in Kane
County).
(D) Canaan Peak Slopes (approximately 2,300 acres).
(E) East of Bryce (approximately 750 acres).
(F) Glass Eye Canyon (approximately 24,000 acres).
(G) Ladder Canyon (approximately 14,000 acres).
(H) Moquith Mountain (approximately 16,000 acres).
(I) Nephi Point (approximately 14,000 acres).
(J) Orderville Canyon (approximately 9,200 acres)
(K) Paria-Hackberry (approximately 188,000 acres).
(L) Paria Wilderness Expansion (approximately 3,300 acres).
(M) Parunuweap Canyon (approximately 43,000 acres).
(N) Pine Hollow (approximately 11,000 acres).
(O) Slopes of Bryce (approximately 2,600 acres).
(P) Timber Mountain (approximately 51,000 acres).
(Q) Upper Kanab Creek (approximately 49,000 acres).
(R) Vermillion Cliffs (approximately 26,000 acres).
(S) Willis Creek (approximately 21,000 acres).
(b) Kaiparowits Plateau.--
(1) Findings.--Congress finds that--
(A) the Kaiparowits Plateau east of the Paria River is 1 of
the most rugged and isolated wilderness regions in the United
States;
(B) the Kaiparowits Plateau, a windswept land of harsh
beauty, contains distant vistas and a remarkable variety of
plant and animal species;
(C) ancient forests, an abundance of big game animals, and
22 species of raptors thrive undisturbed on the grassland
mesa tops of the Kaiparowits Plateau;
(D) each of the areas described in paragraph (2) (other
than Heaps Canyon, Little Valley, and Wide Hollow) is located
within the Grand Staircase-Escalante National Monument; and
(E) the Kaiparowits Plateau should be protected and managed
as a wilderness area.
(2) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(A) Andalex Not (approximately 18,000 acres).
(B) The Blues (approximately 21,000 acres).
(C) Box Canyon (approximately 2,800 acres).
(D) Burning Hills (approximately 80,000 acres).
(E) Carcass Canyon (approximately 83,000 acres).
(F) The Cockscomb (approximately 11,000 acres).
(G) Fiftymile Bench (approximately 12,000 acres).
(H) Fiftymile Mountain (approximately 203,000 acres).
(I) Heaps Canyon (approximately 4,000 acres).
(J) Horse Spring Canyon (approximately 31,000 acres).
(K) Kodachrome Headlands (approximately 10,000 acres).
(L) Little Valley Canyon (approximately 4,000 acres).
(M) Mud Spring Canyon (approximately 65,000 acres).
(N) Nipple Bench (approximately 32,000 acres).
(O) Paradise Canyon-Wahweap (approximately 262,000 acres).
(P) Rock Cove (approximately 16,000 acres).
(Q) Warm Creek (approximately 23,000 acres).
(R) Wide Hollow (approximately 6,800 acres).
(c) Escalante Canyons.--
(1) Findings.--Congress finds that--
(A) glens and coves carved in massive sandstone cliffs,
spring-watered hanging gardens, and the silence of ancient
Anasazi ruins are examples of the unique features that entice
hikers, campers, and sightseers from around the world to
Escalante Canyon;
(B) Escalante Canyon links the spruce fir forests of the
11,000-foot Aquarius Plateau with winding slickrock canyons
that flow into Glen Canyon;
(C) Escalante Canyon, 1 of Utah's most popular natural
areas, contains critical habitat for deer, elk, and wild
bighorn sheep that also enhances the scenic integrity of the
area;
(D) each of the areas described in paragraph (2) is located
within the Grand Staircase-Escalante National Monument; and
(E) Escalante Canyon should be protected and managed as a
wilderness area.
(2) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(A) Brinkerhof Flats (approximately 3,000 acres).
(B) Colt Mesa (approximately 28,000 acres).
(C) Death Hollow (approximately 49,000 acres).
(D) Forty Mile Gulch (approximately 6,600 acres).
(E) Hurricane Wash (approximately 9,000 acres).
(F) Lampstand (approximately 7,900 acres).
(G) Muley Twist Flank (approximately 3,600 acres).
(H) North Escalante Canyons (approximately 176,000 acres).
(I) Pioneer Mesa (approximately 11,000 acres).
(J) Scorpion (approximately 53,000 acres).
(K) Sooner Bench (approximately 390 acres).
(L) Steep Creek (approximately 35,000 acres).
(M) Studhorse Peaks (approximately 24,000 acres).
SEC. 103. MOAB-LA SAL CANYONS WILDERNESS AREAS.
(a) Findings.--Congress finds that--
(1) the canyons surrounding the La Sal Mountains and the
town of Moab offer a variety of extraordinary landscapes;
(2) outstanding examples of natural formations and
landscapes in the Moab-La Sal area include the huge sandstone
fins of Behind the Rocks, the mysterious Fisher Towers, and
the whitewater rapids of Westwater Canyon; and
(3) the Moab-La Sal area should be protected and managed as
a wilderness area.
(b) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(1) Arches Adjacent (approximately 12,000 acres).
(2) Beaver Creek (approximately 41,000 acres).
(3) Behind the Rocks and Hunters Canyon (approximately
22,000 acres).
(4) Big Triangle (approximately 20,000 acres).
(5) Coyote Wash (approximately 28,000 acres).
(6) Dome Plateau-Professor Valley (approximately 35,000
acres).
(7) Fisher Towers (approximately 18,000 acres).
(8) Goldbar Canyon (approximately 9,000 acres).
(9) Granite Creek (approximately 5,000 acres).
(10) Mary Jane Canyon (approximately 25,000 acres).
(11) Mill Creek (approximately 14,000 acres).
(12) Porcupine Rim and Morning Glory (approximately 20,000
acres).
(13) Renegade Point (approximately 6,600 acres).
(14) Westwater Canyon (approximately 37,000 acres).
(15) Yellow Bird (approximately 4,200 acres).
SEC. 104. HENRY MOUNTAINS WILDERNESS AREAS.
(a) Findings.--Congress finds that--
(1) the Henry Mountain Range, the last mountain range to be
discovered and named by early explorers in the contiguous
United States, still retains a wild and undiscovered quality;
(2) fluted badlands that surround the flanks of 11,000-foot
Mounts Ellen and Pennell contain areas of critical habitat
for mule deer and for the largest herd of free-roaming
buffalo in the United States;
(3) despite their relative accessibility, the Henry
Mountain Range remains 1 of the wildest, least-known ranges
in the United States; and
(4) the Henry Mountain range should be protected and
managed to ensure the preservation of the range as a
wilderness area.
(b) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(1) Bull Mountain (approximately 16,000 acres).
(2) Bullfrog Creek (approximately 35,000 acres).
(3) Dogwater Creek (approximately 3,400 acres).
(4) Fremont Gorge (approximately 20,000 acres).
(5) Long Canyon (approximately 16,000 acres).
(6) Mount Ellen-Blue Hills (approximately 140,000 acres).
(7) Mount Hillers (approximately 21,000 acres).
(8) Mount Pennell (approximately 147,000 acres).
(9) Notom Bench (approximately 6,200 acres).
(10) Oak Creek (approximately 1,700 acres).
(11) Ragged Mountain (approximately 28,000 acres).
SEC. 105. GLEN CANYON WILDERNESS AREAS.
(a) Findings.--Congress finds that--
(1) the side canyons of Glen Canyon, including the Dirty
Devil River and the Red, White and Blue Canyons, contain some
of the most remote and outstanding landscapes in southern
Utah;
(2) the Dirty Devil River, once the fortress hideout of
outlaw Butch Cassidy's Wild Bunch, has sculpted a maze of
slickrock canyons through an imposing landscape of monoliths
and inaccessible mesas;
(3) the Red and Blue Canyons contain colorful Chinle/
Moenkopi badlands found nowhere else in the region; and
(4) the canyons of Glen Canyon in the State should be
protected and managed as wilderness areas.
(b) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
[[Page S2946]]
(1) Cane Spring Desert (approximately 18,000 acres).
(2) Dark Canyon (approximately 134,000 acres).
(3) Dirty Devil (approximately 242,000 acres).
(4) Fiddler Butte (approximately 92,000 acres).
(5) Flat Tops (approximately 30,000 acres).
(6) Little Rockies (approximately 64,000 acres).
(7) The Needle (approximately 11,000 acres).
(8) Red Rock Plateau (approximately 213,000 acres).
(9) White Canyon (approximately 98,000 acres).
SEC. 106. SAN JUAN-ANASAZI WILDERNESS AREAS.
(a) Findings.--Congress finds that--
(1) more than 1,000 years ago, the Anasazi Indian culture
flourished in the slickrock canyons and on the pinon-covered
mesas of southeastern Utah;
(2) evidence of the ancient presence of the Anasazi
pervades the Cedar Mesa area of the San Juan-Anasazi area
where cliff dwellings, rock art, and ceremonial kivas
embellish sandstone overhangs and isolated benchlands;
(3) the Cedar Mesa area is in need of protection from the
vandalism and theft of its unique cultural resources;
(4) the Cedar Mesa wilderness areas should be created to
protect both the archaeological heritage and the
extraordinary wilderness, scenic, and ecological values of
the United States; and
(5) the San Juan-Anasazi area should be protected and
managed as a wilderness area to ensure the preservation of
the unique and valuable resources of that area.
(b) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(1) Allen Canyon (approximately 5,900 acres).
(2) Arch Canyon (approximately 30,000 acres).
(3) Comb Ridge (approximately 15,000 acres).
(4) East Montezuma (approximately 45,000 acres).
(5) Fish and Owl Creek Canyons (approximately 73,000
acres).
(6) Grand Gulch (approximately 159,000 acres).
(7) Hammond Canyon (approximately 4,400 acres).
(8) Nokai Dome (approximately 93,000 acres).
(9) Road Canyon (approximately 63,000 acres).
(10) San Juan River (Sugarloaf) (approximately 15,000
acres).
(11) The Tabernacle (approximately 7,000 acres).
(12) Valley of the Gods (approximately 21,000 acres).
SEC. 107. CANYONLANDS BASIN WILDERNESS AREAS.
(a) Findings.--Congress finds that--
(1) Canyonlands National Park safeguards only a small
portion of the extraordinary red-hued, cliff-walled
canyonland region of the Colorado Plateau;
(2) areas near Arches National Park and Canyonlands
National Park contain canyons with rushing perennial streams,
natural arches, bridges, and towers;
(3) the gorges of the Green and Colorado Rivers lie on
adjacent land managed by the Secretary;
(4) popular overlooks in Canyonlands Nations Park and Dead
Horse Point State Park have views directly into adjacent
areas, including Lockhart Basin and Indian Creek; and
(5) designation of those areas as wilderness would ensure
the protection of this erosional masterpiece of nature and of
the rich pockets of wildlife found within its expanded
boundaries.
(b) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(1) Bridger Jack Mesa (approximately 33,000 acres).
(2) Butler Wash (approximately 27,000 acres).
(3) Dead Horse Cliffs (approximately 5,300 acres).
(4) Demon's Playground (approximately 3,700 acres).
(5) Duma Point (approximately 14,000 acres).
(6) Gooseneck (approximately 9,000 acres).
(7) Hatch Point Canyons/Lockhart Basin (approximately
149,000 acres).
(8) Horsethief Point (approximately 15,000 acres).
(9) Indian Creek (approximately 28,000 acres).
(10) Labyrinth Canyon (approximately 150,000 acres).
(11) San Rafael River (approximately 101,000 acres).
(12) Shay Mountain (approximately 14,000 acres).
(13) Sweetwater Reef (approximately 69,000 acres).
(14) Upper Horseshoe Canyon (approximately 60,000 acres).
SEC. 108. SAN RAFAEL SWELL WILDERNESS AREAS.
(a) Findings.--Congress finds that--
(1) the San Rafael Swell towers above the desert like a
castle, ringed by 1,000-foot ramparts of Navajo Sandstone;
(2) the highlands of the San Rafael Swell have been
fractured by uplift and rendered hollow by erosion over
countless millennia, leaving a tremendous basin punctuated by
mesas, buttes, and canyons and traversed by sediment-laden
desert streams;
(3) among other places, the San Rafael wilderness offers
exceptional back country opportunities in the colorful Wild
Horse Badlands, the monoliths of North Caineville Mesa, the
rock towers of Cliff Wash, and colorful cliffs of Humbug
Canyon;
(4) the mountains within these areas are among Utah's most
valuable habitat for desert bighorn sheep; and
(5) the San Rafael Swell area should be protected and
managed to ensure its preservation as a wilderness area.
(b) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System:
(1) Cedar Mountain (approximately 15,000 acres).
(2) Devils Canyon (approximately 23,000 acres).
(3) Eagle Canyon (approximately 38,000 acres).
(4) Factory Butte (approximately 22,000 acres).
(5) Hondu Country (approximately 20,000 acres).
(6) Jones Bench (approximately 2,800 acres).
(7) Limestone Cliffs (approximately 25,000 acres).
(8) Lost Spring Wash (approximately 37,000 acres).
(9) Mexican Mountain (approximately 100,000 acres).
(10) Molen Reef (approximately 33,000 acres).
(11) Muddy Creek (approximately 240,000 acres).
(12) Mussentuchit Badlands (approximately 25,000 acres).
(13) Pleasant Creek Bench (approximately 1,100 acres).
(14) Price River-Humbug (approximately 120,000 acres).
(15) Red Desert (approximately 40,000 acres).
(16) Rock Canyon (approximately 18,000 acres).
(17) San Rafael Knob (approximately 15,000 acres).
(18) San Rafael Reef (approximately 114,000 acres).
(19) Sids Mountain (approximately 107,000 acres).
(20) Upper Muddy Creek (approximately 19,000 acres).
(21) Wild Horse Mesa (approximately 92,000 acres).
SEC. 109. BOOK CLIFFS AND UINTA BASIN WILDERNESS AREAS.
(a) Findings.--Congress finds that--
(1) the Book Cliffs and Uinta Basin wilderness areas
offer--
(A) unique big game hunting opportunities in verdant high-
plateau forests;
(B) the opportunity for float trips of several days
duration down the Green River in Desolation Canyon; and
(C) the opportunity for calm water canoe weekends on the
White River;
(2) the long rampart of the Book Cliffs bounds the area on
the south, while seldom-visited uplands, dissected by the
rivers and streams, slope away to the north into the Uinta
Basin;
(3) bears, Bighorn sheep, cougars, elk, and mule deer
flourish in the back country of the Book Cliffs; and
(4) the Book Cliffs and Uinta Basin areas should be
protected and managed to ensure the protection of the areas
as wilderness.
(b) Designation.--In accordance with the Wilderness Act (16
U.S.C. 1131 et seq.), the following areas in the State are
designated as wilderness areas and as components of the
National Wilderness Preservation System.
(1) Bourdette Draw (approximately 15,000 acres).
(2) Bull Canyon (approximately 2,800 acres).
(3) Chipeta (approximately 95,000 acres).
(4) Dead Horse Pass (approximately 8,000 acres).
(5) Desbrough Canyon (approximately 13,000 acres).
(6) Desolation Canyon (approximately 555,000 acres).
(7) Diamond Breaks (approximately 9,000 acres).
(8) Diamond Canyon (approximately 166,000 acres).
(9) Diamond Mountain (also known as ``Wild Mountain'')
(approximately 27,000 acres).
(10) Dinosaur Adjacent (approximately 10,000 acres).
(11) Goslin Mountain (approximately 4,900 acres).
(12) Hideout Canyon (approximately 12,000 acres).
(13) Lower Bitter Creek (approximately 14,000 acres).
(14) Lower Flaming Gorge (approximately 21,000 acres).
(15) Mexico Point (approximately 15,000 acres).
(16) Moonshine Draw (also known as ``Daniels Canyon'')
(approximately 10,000 acres).
(17) Mountain Home (approximately 9,000 acres).
(18) O-Wi-Yu-Kuts (approximately 13,000 acres).
(19) Red Creek Badlands (approximately 3,600 acres).
[[Page S2947]]
(20) Seep Canyon (approximately 21,000 acres).
(21) Sunday School Canyon (approximately 18,000 acres).
(22) Survey Point (approximately 8,000 acres).
(23) Turtle Canyon (approximately 39,000 acres).
(24) White River (approximately 23,000 acres).
(25) Winter Ridge (approximately 38,000 acres).
(26) Wolf Point (approximately 15,000 acres).
TITLE II--ADMINISTRATIVE PROVISIONS
SEC. 201. GENERAL PROVISIONS.
(a) Names of Wilderness Areas.--Each wilderness area named
in title I shall--
(1) consist of the quantity of land referenced with respect
to that named area, as generally depicted on the map entitled
``Utah BLM Wilderness Proposed by S. [___], 112th Congress'';
and
(2) be known by the name given to it in title I.
(b) Map and Description.--
(1) In general.--As soon as practicable after the date of
enactment of this Act, the Secretary shall file a map and a
legal description of each wilderness area designated by this
Act with--
(A) the Committee on Natural Resources of the House of
Representatives; and
(B) the Committee on Energy and Natural Resources of the
Senate.
(2) Force of law.--A map and legal description filed under
paragraph (1) shall have the same force and effect as if
included in this Act, except that the Secretary may correct
clerical and typographical errors in the map and legal
description.
(3) Public availability.--Each map and legal description
filed under paragraph (1) shall be filed and made available
for public inspection in the Office of the Director of the
Bureau of Land Management.
SEC. 202. ADMINISTRATION.
Subject to valid rights in existence on the date of
enactment of this Act, each wilderness area designated under
this Act shall be administered by the Secretary in accordance
with--
(1) the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.); and
(2) the Wilderness Act (16 U.S.C. 1131 et seq.).
SEC. 203. STATE SCHOOL TRUST LAND WITHIN WILDERNESS AREAS.
(a) In General.--Subject to subsection (b), if State-owned
land is included in an area designated by this Act as a
wilderness area, the Secretary shall offer to exchange land
owned by the United States in the State of approximately
equal value in accordance with section 603(c) of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1782(c))
and section 5(a) of the Wilderness Act (16 U.S.C. 1134(a)).
(b) Mineral Interests.--The Secretary shall not transfer
any mineral interests under subsection (a) unless the State
transfers to the Secretary any mineral interests in land
designated by this Act as a wilderness area.
SEC. 204. WATER.
(a) Reservation.--
(1) Water for wilderness areas.--
(A) In general.--With respect to each wilderness area
designated by this Act, Congress reserves a quantity of water
determined by the Secretary to be sufficient for the
wilderness area.
(B) Priority date.--The priority date of a right reserved
under subparagraph (A) shall be the date of enactment of this
Act.
(2) Protection of rights.--The Secretary and other officers
and employees of the United States shall take any steps
necessary to protect the rights reserved by paragraph (1)(A),
including the filing of a claim for the quantification of the
rights in any present or future appropriate stream
adjudication in the courts of the State--
(A) in which the United States is or may be joined; and
(B) that is conducted in accordance with section 208 of the
Department of Justice Appropriation Act, 1953 (66 Stat. 560,
chapter 651).
(b) Prior Rights Not Affected.--Nothing in this Act
relinquishes or reduces any water rights reserved or
appropriated by the United States in the State on or before
the date of enactment of this Act.
(c) Administration.--
(1) Specification of rights.--The Federal water rights
reserved by this Act are specific to the wilderness areas
designated by this Act.
(2) No precedent established.--Nothing in this Act related
to reserved Federal water rights--
(A) shall establish a precedent with regard to any future
designation of water rights; or
(B) shall affect the interpretation of any other Act or any
designation made under any other Act.
SEC. 205. ROADS.
(a) Setbacks.--
(1) Measurement in general.--A setback under this section
shall be measured from the center line of the road.
(2) Wilderness on 1 side of roads.--Except as provided in
subsection (b), a setback for a road with wilderness on only
1 side shall be set at--
(A) 300 feet from a paved Federal or State highway;
(B) 100 feet from any other paved road or high standard
dirt or gravel road; and
(C) 30 feet from any other road.
(3) Wilderness on both sides of roads.--Except as provided
in subsection (b), a setback for a road with wilderness on
both sides (including cherry-stems or roads separating 2
wilderness units) shall be set at--
(A) 200 feet from a paved Federal or State highway;
(B) 40 feet from any other paved road or high standard dirt
or gravel road; and
(C) 10 feet from any other roads.
(b) Setback Exceptions.--
(1) Well-defined topographical barriers.--If, between the
road and the boundary of a setback area described in
paragraph (2) or (3) of subsection (a), there is a well-
defined cliff edge, stream bank, or other topographical
barrier, the Secretary shall use the barrier as the
wilderness boundary.
(2) Fences.--If, between the road and the boundary of a
setback area specified in paragraph (2) or (3) of subsection
(a), there is a fence running parallel to a road, the
Secretary shall use the fence as the wilderness boundary if,
in the opinion of the Secretary, doing so would result in a
more manageable boundary.
(3) Deviations from setback areas.--
(A) Exclusion of disturbances from wilderness boundaries.--
In cases where there is an existing livestock development,
dispersed camping area, borrow pit, or similar disturbance
within 100 feet of a road that forms part of a wilderness
boundary, the Secretary may delineate the boundary so as to
exclude the disturbance from the wilderness area.
(B) Limitation on exclusion of disturbances.--The Secretary
shall make a boundary adjustment under subparagraph (A) only
if the Secretary determines that doing so is consistent with
wilderness management goals.
(C) Deviations restricted to minimum necessary.--Any
deviation under this paragraph from the setbacks required
under in paragraph (2) or (3) of subsection (a) shall be the
minimum necessary to exclude the disturbance.
(c) Delineation Within Setback Area.--The Secretary may
delineate a wilderness boundary at a location within a
setback under paragraph (2) or (3) of subsection (a) if, as
determined by the Secretary, the delineation would enhance
wilderness management goals.
SEC. 206. LIVESTOCK.
Within the wilderness areas designated under title I, the
grazing of livestock authorized on the date of enactment of
this Act shall be permitted to continue subject to such
reasonable regulations and procedures as the Secretary
considers necessary, as long as the regulations and
procedures are consistent with--
(1) the Wilderness Act (16 U.S.C. 1131 et seq.); and
(2) section 101(f) of the Arizona Desert Wilderness Act of
1990 (Public Law 101-628; 104 Stat. 4469).
SEC. 207. FISH AND WILDLIFE.
Nothing in this Act affects the jurisdiction of the State
with respect to wildlife and fish on the public land located
in the State.
SEC. 208. MANAGEMENT OF NEWLY ACQUIRED LAND.
Any land within the boundaries of a wilderness area
designated under this Act that is acquired by the Federal
Government shall--
(1) become part of the wilderness area in which the land is
located; and
(2) be managed in accordance with this Act and other laws
applicable to wilderness areas.
SEC. 209. WITHDRAWAL.
Subject to valid rights existing on the date of enactment
of this Act, the Federal land referred to in title I is
withdrawn from all forms of--
(1) entry, appropriation, or disposal under public law;
(2) location, entry, and patent under mining law; and
(3) disposition under all laws pertaining to mineral and
geothermal leasing or mineral materials.
______
By Mr. LEVIN (for himself and Mr. McCain) (by request):
S. 981. A bill to authorize appropriations for fiscal year 2012 for
military activities of the Department of Defense and for military
construction, to prescribe military personnel strengths for fiscal year
2012, and for other purposes; to the Committee on Armed Services.
Mr. LEVIN. Mr. President, Senator McCain and I are today introducing,
by request, the Obama administration's proposed National Defense
Authorization Act for fiscal year 2012. As is the case with any bill
that is introduced by request, we introduce this bill for the purpose
of placing the Administration's proposals before Congress and the
public without expressing our own views on the substance of these
proposals. As Chairman and Ranking Member of the Armed Services
Committee, we look forward to giving the Administration's requested
legislation our most careful review and thoughtful consideration.
______
By Ms. AYOTTE (for herself, Mr. Graham, Mr. Lieberman, Mr.
Chambliss, Mr. Brown of Massachusetts, Mr. Rubio, and Mr.
Webb):
[[Page S2948]]
S. 982. A bill to reaffirm the authority of the Department of Defense
to maintain United States Naval Station, Guantanamo Bay, Cuba, as a
location for the detention of unprivileged enemy belligerents held by
the Department of Defense, and for other purposes; to the Committee on
Armed Services.
Ms. AYOTTE. 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. 982
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 ``Detaining Terrorists to
Secure America Act of 2011.''
SEC. 2. FINDINGS.
Congress makes the following finding:
(1) The United States and its international partners are in
an armed conflict with violent Islamist extremist groups,
including al Qaeda and associated terrorist organizations,
that are committed to killing Americans and our allies.
(2) In the last 2 years, terrorists have repeatedly
attempted to kill Americans both here at home and abroad,
including the following attacks, plots, or alleged plots and
attacks:
(A) A September 2009 plot by Najibullah Zazi--who received
training from al Qaeda in Pakistan--to conduct a suicide bomb
attack on the New York, New York, subway system.
(B) A November 2009 attack by Nidal Malik Hasan at Fort
Hood, Texas, that killed 13 people and wounded 32.
(C) A Christmas Day 2009 attempt by Umar Farouk
Abdulmutallab to detonate a bomb sewn into his underwear on
an international flight to Detroit, Michigan.
(D) A May 2010 attempt by Faisal Shahzad to bomb Times
Square in New York, New York, on a crowded Saturday evening,
an attack that was unsuccessful only because the car bomb
failed to detonate.
(E) An October 2010 attempt by terrorists in Yemen to send,
via commercial cargo flights, 2 packages of explosives to
Jewish centers in Chicago, Illinois.
(F) A February 2011 plot by Khaled Aldawsari, a Saudi-born
student, to manufacture explosives and potentially attack New
York, New York, the Dallas, Texas, home of former President
George W. Bush, as well as hydroelectric dams, nuclear power
plants, and a nightclub.
(3) Since the September 11, 2001, attacks on our Nation,
the United States and allied forces have captured thousands
of individuals fighting for or supporting al Qaeda and
associated terrorist organizations that do not abide by the
law of war, including detainees at United States Naval
Station, Guantanamo Bay, Cuba, who served as planners of
those attacks, trainers of terrorists, financiers of
terrorists, bomb makers, bodyguards for Osama bin Laden,
recruiters of terrorists, and facilitators of terrorism.
(4) Many of the detainees at United States Naval Station,
Guantanamo Bay provided valuable intelligence that gave the
United States insight into al Qaeda and its methods,
prevented terrorist attacks, and saved lives.
(5) Intelligence obtained from detainees at United States
Naval Station, Guantanamo Bay was critical to eventually
identifying the location of Osama bin Laden.
(6) In a February 17, 2011, hearing of the Committee on
Armed Services of the Senate, the Secretary of Defense
confirmed that approximately 25 percent of detainees released
from the detention facility at United States Naval Station,
Guantanamo Bay are confirmed to have reengaged in hostilities
or are suspected of having reengaged in hostilities against
the United States or our allies.
(7) Al Qaeda in the Arabian Peninsula, an organization that
includes former detainees at United States Naval Station,
Guantanamo Bay among its leadership and ranks, has claimed
responsibility for several of the recent plots and attacks
against the United States.
(8) Detention according to the law of war is a matter of
national security and military necessity and has long been
recognized as legitimate under international law.
(9) Detaining unprivileged enemy belligerents prevents them
from returning to the battlefield to attack United States and
allied military personnel and engaging in future terrorist
attacks against innocent civilians.
(10) The Joint Task Force-Guantanamo provides for the
humane, legal, and transparent care and custody of detainees
at United States Naval Station, Guantanamo Bay,
notwithstanding regular assaults on the guard force by some
detainees.
(11) The International Committee of the Red Cross visits
detainees at United States Naval Station, Guantanamo Bay on a
quarterly basis.
(12) The detention facility at United States Naval Station,
Guantanamo Bay benefits from robust oversight by Congress.
SEC. 3. REAFFIRMATION OF AUTHORITY TO MAINTAIN UNITED STATES
NAVAL STATION, GUANTANAMO BAY, CUBA, AS A
LOCATION FOR THE DETENTION OF UNPRIVILEGED
ENEMY BELLIGERENTS HELD BY THE DEPARTMENT OF
DEFENSE.
(a) Reaffirmation of Authority as Location for Detention of
Unprivileged Enemy Belligerents.--United States Naval
Station, Guantanamo Bay, Cuba, is and shall be a location for
the detention of individuals in the custody or under the
control of the Department of Defense who have engaged in, or
supported, hostilities against the United States or its
coalition partners on behalf of al Qaeda, the Taliban, or an
affiliated group to which the Authorization for Use of
Military Force (Public Law 107-40) applies.
(b) Maintenance as an Operational Facility for Detention.--
The Secretary of Defense shall take appropriate actions to
maintain United States Naval Station, Guantanamo Bay, Cuba,
as an open and operating facility for the detention of
current and future individuals as described in subsection
(a).
(c) Permanent Extension and Expansion of Certain
Limitations Relating to Detainees and Detention Facilities.--
(1) Limitation on transfer of detainees to foreign
entities.--Section 1033 of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011 (Public Law 111-383;
124 Stat. 4351) is amended--
(A) in subsection (a)(1), by striking ``during the one-year
period'' and all that follows through ``by this Act'' and
inserting ``the Secretary of Defense may not use any amounts
authorized to be appropriated''; and
(B) in subsection (d)(1), by striking ``as of October 1,
2009,'' and inserting ``as of or after October 1, 2009,''.
(2) Prohibition on construction of detention facilities in
united states.--Section 1034 of such Act (124 Stat. 4353) is
amended--
(A) in subsection (a), by striking ``None of the funds
authorized to be appropriated by this Act'' and inserting
``No funds authorized to be appropriated or otherwise made
available to the Department of Defense, or to or for any
other department or agency of the United States
Government,''; and
(B) in subsection (c), by striking ``as of October 1,
2009,'' and inserting ``as of or after October 1, 2009,''.
(d) Supersedure of Executive Order.--Sections 3, 4(c)(2),
4(c)(3), 4(c)(5), and 7 of Executive Order No. 13492, dated
January 22, 2009, shall have no further force or effect.
______
By Mr. HARKIN (for himself, Ms. Mikulski, Mrs. Murray, Mr.
Sanders, Mr. Casey, Mr. Merkley, Mr. Franken, Mr. Whitehouse,
Mr. Blumenthal, Mr. Inouye, Mr. Levin, Mr. Kerry, Mr. Akaka,
Mr. Durbin, Mr. Schumer, Mr. Lautenberg, Mr. Brown of Ohio, and
Mrs. Gillibrand):
S. 984. A bill to allow Americans to earn paid sick time so that they
can address their own health needs and the health needs of their
families; to the Committee on Health, Education, Labor, and Pensions.
Mr. HARKIN. Mr. President, last weekend we observed Mother's Day and
celebrated our families. When we reflect on our own mothers, many of us
think about the woman who nursed us when we were sick, took us to the
doctor for checkups, and cared for our grandparents as they aged, while
at the same time working to put food on the table.
These balancing acts are hard enough. But for many moms, and dads,
across the country, juggling all these roles means making impossible
choices. This is especially true for people who do not have the basic
right of paid sick days. For these workers, missing work due to an
illness, injury, or doctor's appointment can mean putting their job and
their family's financial security in jeopardy. So they are forced to
choose between the jobs they need and the families they love. In these
difficult economic times, no one should have to make that choice.
But for a huge segment of the American workforce, these difficult
choices are a daily reality. Four in ten U.S. workers have no paid sick
days, they cannot miss a day of work with the guarantee of their pay or
the assurance that their job will be there when they come back. What is
more, 2/3 of low-wage workers, those who can least afford to lose a
paycheck or a job, have no paid sick days. This means many of these
workers report to work sick or send their children to school or day
care sick, spreading their illness to others.
This robs workers of their basic dignity, and that shouldn't happen
in a country as wealthy and successful as America. In fact, the U.S. is
the only developed country that does not guarantee paid sick days to
its workers, and our workers are the most productive in the world!
America's workers deserve to earn a decent living; a living where they
can provide for their families without being punished when they or
their children catch the flu. America's workers deserve paid sick days.
[[Page S2949]]
Lack of access to paid sick days isn't just a crisis for individual
families--it's a public health crisis as well. Health officials urge
people with contagious illnesses to stay home from work to avoid
spreading disease. But the workers in industries with the most contact
with the public, such as food service and hospitality, are the least
likely to have paid sick days. A recent survey shows that nearly two-
thirds of restaurant workers, 3/4 of whom don't have paid sick days,
report cooking or serving food while sick. This puts the health of all
of us in jeopardy. And not having paid sick days puts these workers in
the terrible position of choosing between the health of their customers
and their family's health and economic security.
But this doesn't have to be the case. We can give working people the
tools they need to protect their health and their families' health
while also safeguarding the public health. Workers want to do the right
thing and stay home when they are ill or stay home with their sick
children rather than sending them to school. But our current laws
simply do not protect them.
This is why Congresswoman Rosa DeLauro and I are introducing the
Healthy Families Act, which will allow U.S. workers to earn up to 7
paid sick days per year to recover from short-term illness, care for a
sick family member, seek routine medical care, or seek help if they are
victims of domestic violence. This important legislation will provide
much-needed security for hardworking families struggling to balance the
obligations of work and family. It will improve public health and
decrease health costs by preventing the spread of disease and giving
employees the access they need to obtain preventive care and treatment.
It will also help victims of domestic violence to protect their
families and their futures.
Providing paid sick days to workers will be good for working people
and their families, and good for our businesses and our economy as
well. Allowing workers to tend to their health or their families'
engenders good will and loyalty, and boosts morale at the workplace.
Businesses will save because the greatest cause of lost productivity
due to illness is not absenteeism but ``presenteeism,'' the practice of
sick workers coming to work, infecting their colleagues, and being less
productive themselves. Businesses whose workers have paid sick days
will also benefit from reduced turnover, and its high associated costs,
when workers can hold on to their jobs. Experience bears this out, in
San Francisco, where workers have had guaranteed paid sick days since
2007, surveys show that 6 out of 7 employers found no negative effect
on profit. Indeed, 4 years after implementation, two-thirds of surveyed
employers were supportive of the city's paid sick days law.
The overall economy will benefit from reduced health costs as well.
Ensuring that workers are able to seek preventive care as well as care
in a doctor's office, rather than the ER, will minimize health care
costs. Reducing the spread of contagious illnesses by allowing workers
or children to stay at home where they won't infect their coworkers or
classmates will also reduce health costs by keeping more people healthy
in the first place.
Most of all, workers will have peace of mind and financial security.
They won't be faced with a potentially long search for new work, while
collecting unemployment benefits. They won't face reduced income and
having to cut back on their spending on food, medicine, and other
necessities bought in their local communities. Working people will have
the security of knowing that if illness strikes, they will be able to
tend to their families without losing their jobs or their paychecks.
The Healthy Families Act has had the strongest of Senate champions
who have led the fight for workers' rights, Senator Kennedy and Senator
Dodd. I am proud to be the new leader for this vital piece of
legislation. I thank my colleagues who are joining me today as original
cosponsors, and I encourage all Senators to join us in supporting the
Healthy Families Act. This bill will provide health, peace of mind, and
security for America's workers and their families. At a time when the
American Dream and the middle class seem to be slipping away, these
goals could never be more important.
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. 984
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 ``Healthy Families Act''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Working Americans need time to meet their own health
care needs and to care for family members, including their
children, spouse, parents, and parents-in-law, and other
children and adults for whom they are caregivers.
(2) Health care needs include preventive health care,
diagnostic procedures, medical treatment, and recovery in
response to short- and long-term illnesses and injuries.
(3) Providing employees time off to meet health care needs
ensures that they will be healthier in the long run.
Preventive care helps avoid illnesses and injuries and
routine medical care helps detect illnesses early and shorten
their duration.
(4) When parents are available to care for their children
who become sick, children recover faster, more serious
illnesses are prevented, and children's overall mental and
physical health improve. In a 2009 study published in the
American Journal of Public Health, 81 percent of parents of a
child with special health care needs reported that taking
leave from work to be with their child had a ``good'' or
``very good'' effect on their child's physical health.
Similarly, 85 percent of parents of such a child found that
taking such leave had a ``good'' or ``very good'' effect on
their child's emotional health.
(5) When parents cannot afford to miss work and must send
children with contagious illnesses to child care centers or
schools, infection can spread rapidly through child care
centers and schools.
(6) Providing paid sick time improves public health by
reducing infectious disease. Policies that make it easier for
sick adults and children to be isolated at home reduce the
spread of infectious disease.
(7) Routine medical care reduces medical costs by detecting
and treating illness and injury early, decreasing the need
for emergency care. These savings benefit public and private
payers of health insurance, including private businesses.
(8) The provision of individual and family sick time by
large and small businesses, both here in the United States
and elsewhere, demonstrates that policy solutions are both
feasible and affordable in a competitive economy. A 2009
study by the Center for Economic and Policy Research found
that, of 22 countries with comparable economies, the United
States was 1 of only 3 countries that did not provide any
paid time off for workers with short-term illnesses.
(9) Measures that ensure that employees are in good health
and do not need to worry about unmet family health problems
help businesses by promoting productivity and reducing
employee turnover.
(10) The American Productivity Audit completed in 2003
found that lost productivity due to illness costs
$226,000,000,000 annually, and that 71 percent of that cost
stems from presenteeism, the practice of employees coming to
work despite illness. Studies in the Journal of Occupational
and Environmental Medicine, the Employee Benefit News, and
the Harvard Business Review show that presenteeism is a
larger productivity drain than either absenteeism or short-
term disability.
(11) The absence of paid sick time has forced Americans to
make untenable choices between needed income and jobs on the
one hand and caring for their own and their family's health
on the other.
(12) Nearly 40 percent of the private-sector workforce
(about 40,000,000 workers) lack paid sick time. Another
4,000,000 theoretically have access to sick time, but have
not been on the job long enough to use it. Millions more lack
sick time they can use to care for a sick child or ill family
member.
(13) Workers' access to paid sick time varies dramatically
by wage level. For private-sector workers in the lowest
quartile of earners, 68 percent lack paid sick time. For
workers in the next 2 quartiles, 34 and 25 percent,
respectively, lack paid sick time. Even for workers in the
highest income quartile, 16 percent lack paid sick time. In
addition, millions of workers cannot use paid sick time to
care for ill family members.
(14) Due to the roles of men and women in society, the
primary responsibility for family caregiving often falls on
women, and such responsibility affects the working lives of
women more than it affects the working lives of men.
(15) An increasing number of men are also taking on
caregiving obligations, and men who request paid time for
caregiving purposes are often denied accommodation or
penalized because of stereotypes that caregiving is only
``women's work''.
(16) Employers' reliance on persistent stereotypes about
the ``proper'' roles of both men and women in the workplace
and in the home continues a cycle of discrimination and
fosters stereotypical views about women's commitment to work
and their value as employees.
[[Page S2950]]
(17) Employment standards that apply to only one gender
have serious potential for encouraging employers to
discriminate against employees and applicants for employment
who are of that gender.
(18) It is in the national interest to ensure that all
Americans can care for their own health and the health of
their families while prospering at work.
(19) Nearly 1 in 3 American women report physical or sexual
abuse by a husband or boyfriend at some point in their lives.
Domestic violence also affects men. Women account for about
85 percent of the victims of domestic violence and men
account for approximately 15 percent of the victims.
Therefore, women disproportionately need time off to care for
their health or to find solutions, such as obtaining a
restraining order or finding housing, to avoid or prevent
physical or sexual abuse.
(20) One study showed that 85 percent of domestic violence
victims at a women's shelter who were employed missed work
because of abuse. The mean number of days of paid work lost
by a rape victim is 8.1 days, by a victim of physical assault
is 7.2 days, and by a victim of stalking is 10.1 days.
Nationwide, domestic violence victims lose almost 8,000,000
days of paid work per year.
(21) Without paid sick days that can be used to address the
effects of domestic violence, these victims are in grave
danger of losing their jobs. One survey found that 96 percent
of employed domestic violence victims experienced problems at
work related to the violence. The Government Accountability
Office similarly found that 24 to 52 percent of victims
report losing a job due, at least in part, to domestic
violence. The loss of employment can be particularly
devastating for victims of domestic violence, who often need
economic security to ensure safety.
(22) The Centers for Disease Control and Prevention has
estimated that domestic violence costs over $700,000,000
annually due to the victims' lost productivity in employment.
(23) Efforts to assist abused employees result in positive
outcomes for employers as well as employees because employers
can retain workers who might otherwise be compelled to leave.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to ensure that all working Americans can address their
own health needs and the health needs of their families by
requiring employers to permit employees to earn up to 56
hours of paid sick time including paid time for family care;
(2) to diminish public and private health care costs by
enabling workers to seek early and routine medical care for
themselves and their family members;
(3) to assist employees who are, or whose family members
are, victims of domestic violence, sexual assault, or
stalking, by providing the employees with paid time away from
work to allow the victims to receive treatment and to take
the necessary steps to ensure their protection;
(4) to accomplish the purposes described in paragraphs (1)
through (3) in a manner that is feasible for employers; and
(5) consistent with the provision of the 14th amendment to
the Constitution relating to equal protection of the laws,
and pursuant to Congress' power to enforce that provision
under section 5 of that amendment--
(A) to accomplish the purposes described in paragraphs (1)
through (3) in a manner that minimizes the potential for
employment discrimination on the basis of sex by ensuring
generally that paid sick time is available for eligible
medical reasons on a gender-neutral basis; and
(B) to promote the goal of equal employment opportunity for
women and men.
SEC. 4. DEFINITIONS.
In this Act:
(1) Child.--The term ``child'' means a biological, foster,
or adopted child, a stepchild, a legal ward, or a child of a
person standing in loco parentis, who is--
(A) under 18 years of age; or
(B) 18 years of age or older and incapable of self-care
because of a mental or physical disability.
(2) Domestic violence.--The term ``domestic violence'' has
the meaning given the term in section 40002(a) of the
Violence Against Women Act of 1994 (42 U.S.C. 13925(a)),
except that the reference in such section to the term
``jurisdiction receiving grant monies'' shall be deemed to
mean the jurisdiction in which the victim lives or the
jurisdiction in which the employer involved is located.
(3) Employee.--The term ``employee'' means an individual
who is--
(A)(i) an employee, as defined in section 3(e) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(e)), who is not
covered under subparagraph (E), including such an employee of
the Library of Congress, except that a reference in such
section to an employer shall be considered to be a reference
to an employer described in clauses (i)(I) and (ii) of
paragraph (4)(A); or
(ii) an employee of the Government Accountability Office;
(B) a State employee described in section 304(a) of the
Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
16c(a));
(C) a covered employee, as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301),
other than an applicant for employment;
(D) a covered employee, as defined in section 411(c) of
title 3, United States Code; or
(E) a Federal officer or employee covered under subchapter
V of chapter 63 of title 5, United States Code.
(4) Employer.--
(A) In general.--The term ``employer'' means a person who
is--
(i)(I) a covered employer, as defined in subparagraph (B),
who is not covered under subclause (V);
(II) an entity employing a State employee described in
section 304(a) of the Government Employee Rights Act of 1991;
(III) an employing office, as defined in section 101 of the
Congressional Accountability Act of 1995;
(IV) an employing office, as defined in section 411(c) of
title 3, United States Code; or
(V) an employing agency covered under subchapter V of
chapter 63 of title 5, United States Code; and
(ii) is engaged in commerce (including government), or an
industry or activity affecting commerce (including
government), as defined in subparagraph (B)(iii).
(B) Covered employer.--
(i) In general.--In subparagraph (A)(i)(I), the term
``covered employer''--
(I) means any person engaged in commerce or in any industry
or activity affecting commerce who employs 15 or more
employees for each working day during each of 20 or more
calendar workweeks in the current or preceding calendar year;
(II) includes--
(aa) any person who acts, directly or indirectly, in the
interest of an employer to any of the employees of such
employer; and
(bb) any successor in interest of an employer;
(III) includes any ``public agency'', as defined in section
3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C.
203(x)); and
(IV) includes the Government Accountability Office and the
Library of Congress.
(ii) Public agency.--For purposes of clause (i)(III), a
public agency shall be considered to be a person engaged in
commerce or in an industry or activity affecting commerce.
(iii) Definitions.--For purposes of this subparagraph:
(I) Commerce.--The terms ``commerce'' and ``industry or
activity affecting commerce'' mean any activity, business, or
industry in commerce or in which a labor dispute would hinder
or obstruct commerce or the free flow of commerce, and
include ``commerce'' and any ``industry affecting commerce'',
as defined in paragraphs (1) and (3) of section 501 of the
Labor Management Relations Act, 1947 (29 U.S.C. 142 (1) and
(3)).
(II) Employee.--The term ``employee'' has the same meaning
given such term in section 3(e) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203(e)).
(III) Person.--The term ``person'' has the same meaning
given such term in section 3(a) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203(a)).
(C) Predecessors.--Any reference in this paragraph to an
employer shall include a reference to any predecessor of such
employer.
(5) Employment benefits.--The term ``employment benefits''
means all benefits provided or made available to employees by
an employer, including group life insurance, health
insurance, disability insurance, sick leave, annual leave,
educational benefits, and pensions, regardless of whether
such benefits are provided by a practice or written policy of
an employer or through an ``employee benefit plan'', as
defined in section 3(3) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1002(3)).
(6) Health care provider.--The term ``health care
provider'' means a provider who--
(A)(i) is a doctor of medicine or osteopathy who is
authorized to practice medicine or surgery (as appropriate)
by the State in which the doctor practices; or
(ii) is any other person determined by the Secretary to be
capable of providing health care services; and
(B) is not employed by an employer for whom the provider
issues certification under this Act.
(7) Paid sick time.--The term ``paid sick time'' means an
increment of compensated leave that can be earned by an
employee for use during an absence from employment for any of
the reasons described in paragraphs (1) through (4) of
section 5(b).
(8) Parent.--The term ``parent'' means a biological,
foster, or adoptive parent of an employee, a stepparent of an
employee, or a legal guardian or other person who stood in
loco parentis to an employee when the employee was a child.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(10) Sexual assault.--The term ``sexual assault'' has the
meaning given the term in section 40002(a) of the Violence
Against Women Act of 1994 (42 U.S.C. 13925(a)).
(11) Spouse.--The term ``spouse'', with respect to an
employee, has the meaning given such term by the marriage
laws of the State in which the employee resides.
(12) Stalking.--The term ``stalking'' has the meaning given
the term in section 40002(a) of the Violence Against Women
Act of 1994 (42 U.S.C. 13925(a)).
(13) Victim services organization.--The term ``victim
services organization'' means a nonprofit, nongovernmental
organization that provides assistance to victims of domestic
violence, sexual assault, or stalking or advocates for such
victims, including a rape crisis center, an organization
carrying out a domestic violence, sexual assault, or stalking
prevention or treatment program, an organization operating a
shelter or providing
[[Page S2951]]
counseling services, or a legal services organization or
other organization providing assistance through the legal
process.
SEC. 5. PROVISION OF PAID SICK TIME.
(a) Accrual of Paid Sick Time.--
(1) In general.--An employer shall permit each employee
employed by the employer to earn not less than 1 hour of paid
sick time for every 30 hours worked, to be used as described
in subsection (b). An employer shall not be required to
permit an employee to earn, under this section, more than 56
hours of paid sick time in a calendar year, unless the
employer chooses to set a higher limit.
(2) Exempt employees.--
(A) In general.--Except as provided in paragraph (3), for
purposes of this section, an employee who is exempt from
overtime requirements under section 13(a)(1) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 213(a)(1)) shall be
assumed to work 40 hours in each workweek.
(B) Shorter normal workweek.--If the normal workweek of
such an employee is less than 40 hours, the employee shall
earn paid sick time based upon that normal work week.
(3) Dates of accrual and use.--Employees shall begin to
earn paid sick time under this section at the commencement of
their employment. An employee shall be entitled to use the
earned paid sick time beginning on the 60th calendar day
following commencement of the employee's employment. After
that 60th calendar day, the employee may use the paid sick
time as the time is earned. An employer may, at the
discretion of the employer, loan paid sick time to an
employee in advance of the earning of such time under this
section by such employee.
(4) Carryover.--
(A) In general.--Except as provided in subparagraph (B),
paid sick time earned under this section shall carry over
from 1 calendar year to the next.
(B) Construction.--This Act shall not be construed to
require an employer to permit an employee to accrue more than
56 hours of earned paid sick time at a given time.
(5) Employers with existing policies.--Any employer with a
paid leave policy who makes available an amount of paid leave
that is sufficient to meet the requirements of this section
and that may be used for the same purposes and under the same
conditions as the purposes and conditions outlined in
subsection (b) shall not be required to permit an employee to
earn additional paid sick time under this section.
(6) Construction.--Nothing in this section shall be
construed as requiring financial or other reimbursement to an
employee from an employer upon the employee's termination,
resignation, retirement, or other separation from employment
for earned paid sick time that has not been used.
(7) Reinstatement.--If an employee is separated from
employment with an employer and is rehired, within 12 months
after that separation, by the same employer, the employer
shall reinstate the employee's previously earned paid sick
time. The employee shall be entitled to use the earned paid
sick time and earn additional paid sick time at the
recommencement of employment with the employer.
(8) Prohibition.--An employer may not require, as a
condition of providing paid sick time under this Act, that
the employee involved search for or find a replacement worker
to cover the hours during which the employee is using paid
sick time.
(b) Uses.--Paid sick time earned under this section may be
used by an employee for any of the following:
(1) An absence resulting from a physical or mental illness,
injury, or medical condition of the employee.
(2) An absence resulting from obtaining professional
medical diagnosis or care, or preventive medical care, for
the employee.
(3) An absence for the purpose of caring for a child, a
parent, a spouse, or any other individual related by blood or
affinity whose close association with the employee is the
equivalent of a family relationship, who--
(A) has any of the conditions or needs for diagnosis or
care described in paragraph (1) or (2); and
(B) in the case of someone who is not a child, is otherwise
in need of care.
(4) An absence resulting from domestic violence, sexual
assault, or stalking, if the time is to--
(A) seek medical attention for the employee or the
employee's child, parent, or spouse, or an individual related
to the employee as described in paragraph (3), to recover
from physical or psychological injury or disability caused by
domestic violence, sexual assault, or stalking;
(B) obtain or assist a related person described in
paragraph (3) in obtaining services from a victim services
organization;
(C) obtain or assist a related person described in
paragraph (3) in obtaining psychological or other counseling;
(D) seek relocation; or
(E) take legal action, including preparing for or
participating in any civil or criminal legal proceeding
related to or resulting from domestic violence, sexual
assault, or stalking.
(c) Scheduling.--An employee shall make a reasonable effort
to schedule a period of paid sick time under this Act in a
manner that does not unduly disrupt the operations of the
employer.
(d) Procedures.--
(1) In general.--Paid sick time shall be provided upon the
oral or written request of an employee. Such request shall--
(A) include the expected duration of the period of such
time;
(B) in a case in which the need for such period of time is
foreseeable at least 7 days in advance of such period, be
provided at least 7 days in advance of such period; and
(C) otherwise, be provided as soon as practicable after the
employee is aware of the need for such period.
(2) Certification in general.--
(A) Provision.--
(i) In general.--Subject to subparagraph (C), an employer
may require that a request for paid sick time under this
section for a purpose described in paragraph (1), (2), or (3)
of subsection (b) be supported by a certification issued by
the health care provider of the eligible employee or of an
individual described in subsection (b)(3), as appropriate, if
the period of such time covers more than 3 consecutive
workdays.
(ii) Timeliness.--The employee shall provide a copy of such
certification to the employer in a timely manner, not later
than 30 days after the first day of the period of time. The
employer shall not delay the commencement of the period of
time on the basis that the employer has not yet received the
certification.
(B) Sufficient certification.--
(i) In general.--A certification provided under
subparagraph (A) shall be sufficient if it states--
(I) the date on which the period of time will be needed;
(II) the probable duration of the period of time;
(III) the appropriate medical facts within the knowledge of
the health care provider regarding the condition involved,
subject to clause (ii); and
(IV)(aa) for purposes of paid sick time under subsection
(b)(1), a statement that absence from work is medically
necessary;
(bb) for purposes of such time under subsection (b)(2), the
dates on which testing for a medical diagnosis or care is
expected to be given and the duration of such testing or
care; and
(cc) for purposes of such time under subsection (b)(3), in
the case of time to care for someone who is not a child, a
statement that care is needed for an individual described in
such subsection, and an estimate of the amount of time that
such care is needed for such individual.
(ii) Limitation.--In issuing a certification under
subparagraph (A), a health care provider shall make
reasonable efforts to limit the medical facts described in
clause (i)(III) that are disclosed in the certification to
the minimum necessary to establish a need for the employee to
utilize paid sick time.
(C) Regulations.--Regulations prescribed under section 13
shall specify the manner in which an employee who does not
have health insurance shall provide a certification for
purposes of this paragraph.
(D) Confidentiality and nondisclosure.--
(i) Protected health information.--Nothing in this Act
shall be construed to require a health care provider to
disclose information in violation of section 1177 of the
Social Security Act (42 U.S.C. 1320d-6) or the regulations
promulgated pursuant to section 264(c) of the Health
Insurance Portability and Accountability Act of 1996 (42
U.S.C. 1320d-2 note).
(ii) Health information records.--If an employer possesses
health information about an employee or an employee's child,
parent, spouse or other individual described in subsection
(b)(3), such information shall--
(I) be maintained on a separate form and in a separate file
from other personnel information;
(II) be treated as a confidential medical record; and
(III) not be disclosed except to the affected employee or
with the permission of the affected employee.
(3) Certification in the case of domestic violence, sexual
assault, or stalking.--
(A) In general.--An employer may require that a request for
paid sick time under this section for a purpose described in
subsection (b)(4) be supported by 1 of the following forms of
documentation:
(i) A police report indicating that the employee, or a
member of the employee's family described in subsection
(b)(4), was a victim of domestic violence, sexual assault, or
stalking.
(ii) A court order protecting or separating the employee or
a member of the employee's family described in subsection
(b)(4) from the perpetrator of an act of domestic violence,
sexual assault, or stalking, or other evidence from the court
or prosecuting attorney that the employee or a member of the
employee's family described in subsection (b)(4) has appeared
in court or is scheduled to appear in court in a proceeding
related to domestic violence, sexual assault, or stalking.
(iii) Other documentation signed by an employee or
volunteer working for a victim services organization, an
attorney, a police officer, a medical professional, a social
worker, an antiviolence counselor, or a member of the clergy,
affirming that the employee or a member of the employee's
family described in subsection (b)(4) is a victim of domestic
violence, sexual assault, or stalking.
(B) Requirements.--The requirements of paragraph (2) shall
apply to certifications under this paragraph, except that--
(i) subclauses (III) and (IV) of subparagraph (B)(i) and
subparagraph (B)(ii) of such paragraph shall not apply;
(ii) the certification shall state the reason that the
leave is required with the facts to
[[Page S2952]]
be disclosed limited to the minimum necessary to establish a
need for the employee to be absent from work, and the
employee shall not be required to explain the details of the
domestic violence, sexual assault, or stalking involved; and
(iii) with respect to confidentiality under subparagraph
(D) of such paragraph, any information provided to the
employer under this paragraph shall be confidential, except
to the extent that any disclosure of such information is--
(I) requested or consented to in writing by the employee;
or
(II) otherwise required by applicable Federal or State law.
SEC. 6. POSTING REQUIREMENT.
(a) In General.--Each employer shall post and keep posted a
notice, to be prepared or approved in accordance with
procedures specified in regulations prescribed under section
13, setting forth excerpts from, or summaries of, the
pertinent provisions of this Act including--
(1) information describing paid sick time available to
employees under this Act;
(2) information pertaining to the filing of an action under
this Act;
(3) the details of the notice requirement for a foreseeable
period of time under section 5(d)(1)(B); and
(4) information that describes--
(A) the protections that an employee has in exercising
rights under this Act; and
(B) how the employee can contact the Secretary (or other
appropriate authority as described in section 8) if any of
the rights are violated.
(b) Location.--The notice described under subsection (a)
shall be posted--
(1) in conspicuous places on the premises of the employer,
where notices to employees (including applicants) are
customarily posted; or
(2) in employee handbooks.
(c) Violation; Penalty.--Any employer who willfully
violates the posting requirements of this section shall be
subject to a civil fine in an amount not to exceed $100 for
each separate offense.
SEC. 7. PROHIBITED ACTS.
(a) Interference With Rights.--
(1) Exercise of rights.--It shall be unlawful for any
employer to interfere with, restrain, or deny the exercise
of, or the attempt to exercise, any right provided under this
Act, including--
(A) discharging or discriminating against (including
retaliating against) any individual, including a job
applicant, for exercising, or attempting to exercise, any
right provided under this Act;
(B) using the taking of paid sick time under this Act as a
negative factor in an employment action, such as hiring,
promotion, or a disciplinary action; or
(C) counting the paid sick time under a no-fault attendance
policy or any other absence control policy.
(2) Discrimination.--It shall be unlawful for any employer
to discharge or in any other manner discriminate against
(including retaliating against) any individual, including a
job applicant, for opposing any practice made unlawful by
this Act.
(b) Interference With Proceedings or Inquiries.--It shall
be unlawful for any person to discharge or in any other
manner discriminate against (including retaliating against)
any individual, including a job applicant, because such
individual--
(1) has filed an action, or has instituted or caused to be
instituted any proceeding, under or related to this Act;
(2) has given, or is about to give, any information in
connection with any inquiry or proceeding relating to any
right provided under this Act; or
(3) has testified, or is about to testify, in any inquiry
or proceeding relating to any right provided under this Act.
(c) Construction.--Nothing in this section shall be
construed to state or imply that the scope of the activities
prohibited by section 105 of the Family and Medical Leave Act
of 1993 (29 U.S.C. 2615) is less than the scope of the
activities prohibited by this section.
SEC. 8. ENFORCEMENT AUTHORITY.
(a) In General.--
(1) Definition.--In this subsection:
(A) the term ``employee'' means an employee described in
subparagraph (A) or (B) of section 4(3); and
(B) the term ``employer'' means an employer described in
subclause (I) or (II) of section 4(4)(A)(i).
(2) Investigative authority.--
(A) In general.--To ensure compliance with the provisions
of this Act, or any regulation or order issued under this
Act, the Secretary shall have, subject to subparagraph (C),
the investigative authority provided under section 11(a) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)), with
respect to employers, employees, and other individuals
affected.
(B) Obligation to keep and preserve records.--An employer
shall make, keep, and preserve records pertaining to
compliance with this Act in accordance with section 11(c) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 211(c)) and
in accordance with regulations prescribed by the Secretary.
(C) Required submissions generally limited to an annual
basis.--The Secretary shall not require, under the authority
of this paragraph, an employer to submit to the Secretary any
books or records more than once during any 12-month period,
unless the Secretary has reasonable cause to believe there
may exist a violation of this Act or any regulation or order
issued pursuant to this Act, or is investigating a charge
pursuant to paragraph (4).
(D) Subpoena authority.--For the purposes of any
investigation provided for in this paragraph, the Secretary
shall have the subpoena authority provided for under section
9 of the Fair Labor Standards Act of 1938 (29 U.S.C. 209).
(3) Civil action by employees or individuals.--
(A) Right of action.--An action to recover the damages or
equitable relief prescribed in subparagraph (B) may be
maintained against any employer in any Federal or State court
of competent jurisdiction by one or more employees or
individuals or their representative for and on behalf of--
(i) the employees or individuals; or
(ii) the employees or individuals and others similarly
situated.
(B) Liability.--Any employer who violates section 7
(including a violation relating to rights provided under
section 5) shall be liable to any employee or individual
affected--
(i) for damages equal to--
(I) the amount of--
(aa) any wages, salary, employment benefits, or other
compensation denied or lost by reason of the violation; or
(bb) in a case in which wages, salary, employment benefits,
or other compensation have not been denied or lost, any
actual monetary losses sustained as a direct result of the
violation up to a sum equal to 56 hours of wages or salary
for the employee or individual;
(II) the interest on the amount described in subclause (I)
calculated at the prevailing rate; and
(III) an additional amount as liquidated damages; and
(ii) for such equitable relief as may be appropriate,
including employment, reinstatement, and promotion.
(C) Fees and costs.--The court in an action under this
paragraph shall, in addition to any judgment awarded to the
plaintiff, allow a reasonable attorney's fee, reasonable
expert witness fees, and other costs of the action to be paid
by the defendant.
(4) Action by the secretary.--
(A) Administrative action.--The Secretary shall receive,
investigate, and attempt to resolve complaints of violations
of section 7 (including a violation relating to rights
provided under section 5) in the same manner that the
Secretary receives, investigates, and attempts to resolve
complaints of violations of sections 6 and 7 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 206 and 207).
(B) Civil action.--The Secretary may bring an action in any
court of competent jurisdiction to recover the damages
described in paragraph (3)(B)(i).
(C) Sums recovered.--Any sums recovered by the Secretary
pursuant to subparagraph (B) shall be held in a special
deposit account and shall be paid, on order of the Secretary,
directly to each employee or individual affected. Any such
sums not paid to an employee or individual affected because
of inability to do so within a period of 3 years shall be
deposited into the Treasury of the United States as
miscellaneous receipts.
(5) Limitation.--
(A) In general.--Except as provided in subparagraph (B), an
action may be brought under paragraph (3), (4), or (6) not
later than 2 years after the date of the last event
constituting the alleged violation for which the action is
brought.
(B) Willful violation.--In the case of an action brought
for a willful violation of section 7 (including a willful
violation relating to rights provided under section 5), such
action may be brought within 3 years of the date of the last
event constituting the alleged violation for which such
action is brought.
(C) Commencement.--In determining when an action is
commenced under paragraph (3), (4), or (6) for the purposes
of this paragraph, it shall be considered to be commenced on
the date when the complaint is filed.
(6) Action for injunction by secretary.--The district
courts of the United States shall have jurisdiction, for
cause shown, in an action brought by the Secretary--
(A) to restrain violations of section 7 (including a
violation relating to rights provided under section 5),
including the restraint of any withholding of payment of
wages, salary, employment benefits, or other compensation,
plus interest, found by the court to be due to employees or
individuals eligible under this Act; or
(B) to award such other equitable relief as may be
appropriate, including employment, reinstatement, and
promotion.
(7) Solicitor of labor.--The Solicitor of Labor may appear
for and represent the Secretary on any litigation brought
under paragraph (4) or (6).
(8) Government accountability office and library of
congress.--Notwithstanding any other provision of this
subsection, in the case of the Government Accountability
Office and the Library of Congress, the authority of the
Secretary of Labor under this subsection shall be exercised
respectively by the Comptroller General of the United States
and the Librarian of Congress.
(b) Employees Covered by Congressional Accountability Act
of 1995.--The powers, remedies, and procedures provided in
the Congressional Accountability Act of 1995 (2 U.S.C. 1301
et seq.) to the Board (as defined in section 101 of that Act
(2 U.S.C. 1301)), or any person, alleging a violation of
section 202(a)(1) of that Act (2 U.S.C. 1312(a)(1)) shall be
the powers, remedies, and procedures this
[[Page S2953]]
Act provides to that Board, or any person, alleging an
unlawful employment practice in violation of this Act against
an employee described in section 4(3)(C).
(c) Employees Covered by Chapter 5 of Title 3, United
States Code.--The powers, remedies, and procedures provided
in chapter 5 of title 3, United States Code, to the
President, the Merit Systems Protection Board, or any person,
alleging a violation of section 412(a)(1) of that title,
shall be the powers, remedies, and procedures this Act
provides to the President, that Board, or any person,
respectively, alleging an unlawful employment practice in
violation of this Act against an employee described in
section 4(3)(D).
(d) Employees Covered by Chapter 63 of Title 5, United
States Code.--The powers, remedies, and procedures provided
in title 5, United States Code, to an employing agency,
provided in chapter 12 of that title to the Merit Systems
Protection Board, or provided in that title to any person,
alleging a violation of chapter 63 of that title, shall be
the powers, remedies, and procedures this Act provides to
that agency, that Board, or any person, respectively,
alleging an unlawful employment practice in violation of this
Act against an employee described in section 4(3)(E).
(e) Remedies for State Employees.--
(1) Waiver of sovereign immunity.--A State's receipt or use
of Federal financial assistance for any program or activity
of a State shall constitute a waiver of sovereign immunity,
under the 11th amendment to the Constitution or otherwise, to
a suit brought by an employee of that program or activity
under this Act for equitable, legal, or other relief
authorized under this Act.
(2) Official capacity.--An official of a State may be sued
in the official capacity of the official by any employee who
has complied with the procedures under subsection (a)(3), for
injunctive relief that is authorized under this Act. In such
a suit the court may award to the prevailing party those
costs authorized by section 722 of the Revised Statutes (42
U.S.C. 1988).
(3) Applicability.--With respect to a particular program or
activity, paragraph (1) applies to conduct occurring on or
after the day, after the date of enactment of this Act, on
which a State first receives or uses Federal financial
assistance for that program or activity.
(4) Definition of program or activity.--In this subsection,
the term ``program or activity'' has the meaning given the
term in section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a).
SEC. 9. COLLECTION OF DATA ON PAID SICK TIME AND FURTHER
STUDY.
(a) Compilation of Information.--Effective 90 days after
the date of enactment of this Act, the Commissioner of Labor
Statistics shall annually compile information on the
following:
(1) The number of employees who used paid sick time.
(2) The number of hours of paid sick time used.
(3) The number of employees who used paid sick time for
absences necessary due to domestic violence, sexual assault,
or stalking.
(4) The demographic characteristics of employees who were
eligible for and who used paid sick time.
(b) GAO Study.--
(1) In general.--The Comptroller General of the United
States shall annually conduct a study to determine the
following:
(A)(i) The number of days employees used paid sick time and
the reasons for the use.
(ii) The number of employees who used the paid sick time
for periods of time covering more than 3 consecutive
workdays.
(B) The cost and benefits to employers of implementing the
paid sick time policies.
(C) The cost to employees of providing certification to
obtain the paid sick time.
(D) The benefits of the paid sick time to employees and
their family members, including effects on employees' ability
to care for their family members or to provide for their own
health needs.
(E) Whether the paid sick time affected employees' ability
to sustain an adequate income while meeting needs of the
employees and their family members.
(F) Whether employers who administered paid sick time
policies prior to the date of enactment of this Act were
affected by the provisions of this Act.
(G) Whether other types of leave were affected by this Act.
(H) Whether paid sick time affected retention and turnover
and costs of presenteeism.
(I) Whether the paid sick time increased the use of less
costly preventive medical care and lowered the use of
emergency room care.
(J) Whether the paid sick time reduced the number of
children sent to school when the children were sick.
(2) Aggregating data.--The data collected under
subparagraphs (A) and (D) of paragraph (1) shall be
aggregated by gender, race, disability, earnings level, age,
marital status, family type, including parental status, and
industry.
(3) Reports.--
(A) In general.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General of the United
States shall prepare and submit a report to the appropriate
committees of Congress concerning the results of the study
conducted pursuant to paragraph (1) and the data aggregated
under paragraph (2).
(B) Followup report.--Not later than 5 years after the date
of enactment of this Act, the Comptroller General of the
United States shall prepare and submit a followup report to
the appropriate committees of Congress concerning the results
of the study conducted pursuant to paragraph (1) and the data
aggregated under paragraph (2).
SEC. 10. EFFECT ON OTHER LAWS.
(a) Federal and State Antidiscrimination Laws.--Nothing in
this Act shall be construed to modify or affect any Federal
or State law prohibiting discrimination on the basis of race,
religion, color, national origin, sex, age, or disability.
(b) State and Local Laws.--Nothing in this Act shall be
construed to supersede (including preempting) any provision
of any State or local law that provides greater paid sick
time or leave rights (including greater paid sick time or
leave, or greater coverage of those eligible for paid sick
time or leave) than the rights established under this Act.
SEC. 11. EFFECT ON EXISTING EMPLOYMENT BENEFITS.
(a) More Protective.--Nothing in this Act shall be
construed to diminish the obligation of an employer to comply
with any contract, collective bargaining agreement, or any
employment benefit program or plan that provides greater paid
sick leave or other leave rights to employees or individuals
than the rights established under this Act.
(b) Less Protective.--The rights established for employees
under this Act shall not be diminished by any contract,
collective bargaining agreement, or any employment benefit
program or plan.
SEC. 12. ENCOURAGEMENT OF MORE GENEROUS LEAVE POLICIES.
Nothing in this Act shall be construed to discourage
employers from adopting or retaining leave policies more
generous than policies that comply with the requirements of
this Act.
SEC. 13. REGULATIONS.
(a) In General.--
(1) Authority.--Except as provided in paragraph (2), not
later than 180 days after the date of enactment of this Act,
the Secretary shall prescribe such regulations as are
necessary to carry out this Act with respect to employees
described in subparagraph (A) or (B) of section 4(3) and
other individuals affected by employers described in
subclause (I) or (II) of section 4(4)(A)(i).
(2) Government accountability office; library of
congress.--The Comptroller General of the United States and
the Librarian of Congress shall prescribe the regulations
with respect to employees of the Government Accountability
Office and the Library of Congress, respectively and other
individuals affected by the Comptroller General of the United
States and the Librarian of Congress, respectively.
(b) Employees Covered by Congressional Accountability Act
of 1995.--
(1) Authority.--Not later than 120 days after the date of
enactment of this Act, the Board of Directors of the Office
of Compliance shall prescribe (in accordance with section 304
of the Congressional Accountability Act of 1995 (2 U.S.C.
1384)) such regulations as are necessary to carry out this
Act with respect to employees described in section 4(3)(C)
and other individuals affected by employers described in
section 4(4)(A)(i)(III).
(2) Agency regulations.--The regulations prescribed under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary to carry out this Act except
insofar as the Board may determine, for good cause shown and
stated together with the regulations prescribed under
paragraph (1), that a modification of such regulations would
be more effective for the implementation of the rights and
protections involved under this section.
(c) Employees Covered by Chapter 5 of Title 3, United
States Code.--
(1) Authority.--Not later than 120 days after the date of
enactment of this Act, the President (or the designee of the
President) shall prescribe such regulations as are necessary
to carry out this Act with respect to employees described in
section 4(3)(D) and other individuals affected by employers
described in section 4(4)(A)(i)(IV).
(2) Agency regulations.--The regulations prescribed under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary to carry out this Act except
insofar as the President (or designee) may determine, for
good cause shown and stated together with the regulations
prescribed under paragraph (1), that a modification of such
regulations would be more effective for the implementation of
the rights and protections involved under this section.
(d) Employees Covered by Chapter 63 of Title 5, United
States Code.--
(1) Authority.--Not later than 120 days after the date of
enactment of this Act, the Director of the Office of
Personnel Management shall prescribe such regulations as are
necessary to carry out this Act with respect to employees
described in section 4(3)(E) and other individuals affected
by employers described in section 4(4)(A)(i)(V).
(2) Agency regulations.--The regulations prescribed under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary to carry out this Act except
insofar as the Director may determine, for good cause shown
and stated together with the regulations prescribed under
paragraph (1), that a modification of such regulations would
be more effective for the implementation of the rights and
protections involved under this section.
[[Page S2954]]
SEC. 14. EFFECTIVE DATES.
(a) Effective Date.--This Act shall take effect 6 months
after the date of issuance of regulations under section
13(a)(1).
(b) Collective Bargaining Agreements.--In the case of a
collective bargaining agreement in effect on the effective
date prescribed by subsection (a), this Act shall take effect
on the earlier of--
(1) the date of the termination of such agreement; or
(2) the date that occurs 18 months after the date of
issuance of regulations under section 13(a)(1).
______
By Mrs. BOXER:
S. 992. A bill to amend the Public Health Service Act to establish
direct care registered nurse-to-patient staffing ratio requirements in
hospitals, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mrs. BOXER. Mr. President, as we mark the end of National Nurses
Week, I want to express my heartfelt appreciation to the nurses who
serve on the front lines of our health care system. Nurses are heroes,
not just to their patients, but to the families and loved ones who rely
on their compassion and care.
While we celebrate nurses this week, we must also acknowledge that
too many nurses are overworked because of staffing levels that are
simply inadequate.
For decades nurses have been telling us that we need more of them to
provide quality care to our loved ones, especially in hospitals. Study
after study has been done, we know there is a nationwide nursing
shortage.
By 2020, it is estimated that the demand for full time nurses will
exceed supply by 1 million nurses.
That is why I am introducing the National Nursing Shortage Reform and
Patient Advocacy Act, which will not only help address the nationwide
shortage of skilled nurses, it will improve the quality of health care
for all Americans.
The National Nursing Shortage Reform and Patient Advocacy Act
champions nursing rights, nursing ratios, and nursing reform.
This bill protects the rights of nurses to speak out for their
patients and to speak out for themselves, without the fear of
discrimination or retaliation, because if there is a problem in a
hospital nurses should be able to talk about it.
This bill sets minimum nurse to patient ratios, because if we expect
nurses to give patients high quality care we need to give nurses the
time to provide it. It lays out a transparent process for establishing
staffing plans in hospitals and puts forward the tools for nurses to
report inadequate staffing or care.
This bill reforms the role of hospitals not just in working with
nurses to improve care, but also in training nurses. It creates
mentorship and preceptorship programs to support nurses as they adapt
to the hospital setting and grow in their profession.
Twelve years ago, nurses in California fought and won a major battle
for their patients and for themselves, and the results were minimum
nurse to patient ratios in California hospitals.
I am proud to join with nurses in their effort to improve care for
their patients, and introduce Federal legislation that would extend
these rights, ratios and reforms to nurses in hospitals across the
country.
Reports on California ratios have only begun to show what so many of
the nurses I meet already know, that setting a minimum standard for
safe staffing can mean the difference between life and death of
patients.
A 2002 study found that for every patient added to a nurse's workload
there is a 7 percent increase in the chance of death following common
surgeries.
In California, the hospitals that have seen the greatest effect in
reduced mortality were the ones that started with the worst staffing
ratios.
We also know that hospitals are losing good nurses because of these
staffing shortages. A poll of nurses nationwide found that almost half
of the nurses who plan to quit their job say that inadequate staffing
is the reason they are leaving. The cost of replacing these valuable
workers has been estimated at $25,000 to $60,000 per nurse. That is an
added cost that we know our health care system cannot afford.
Too many nurses get burned out by being overloaded with too many
patients. Too many nurses have given up on serving in hospitals because
the hospitals have given up on providing a better environment for both
nurses and patients.
Investing more in nursing staff will help hospitals avoid costly
medical mistakes and provide better care for their patients and most
importantly, will save lives.
I joined many of my colleagues in supporting provisions of health
care reform that invested in our health care workforce. At 2.9 million
strong, nurses are the largest health care workforce in our country,
and this investment is long overdue.
I am pleased to share that this bill has the support of the
California Nurses Association as well as AFSCME-United Nurses of
America.
Nurses are not just the face of the movement to improve health care
in our country, they are the face of health care in our country. This
bill is for them and the patients they so faithfully serve.
______
By Mr. KIRK (for himself, Mr. Menendez, Mr. Lautenberg, and Mr.
Durbin):
S. 994. A bill to amend title 23, United States Code, to protect
States that have in effect laws or orders with respect to pay-to-play
reform, and for other purposes; to the Committee on Environment and
Public Works.
Mr. KIRK. Mr. President, I am pleased to join my colleagues Senators
Menendez, Lautenberg and Durbin in introducing the State Ethics Law
Protection Act. This legislation would ensure that States are allowed
to pass meaningful ethics reform laws without being penalized by the
Federal government.
Current law allows the Federal Highway Administration, FHWA, to
withhold Federal highway funds from States that ban pay-to-play
contracting. At least 9 States and 60 cities have enacted anti pay-to-
play laws. These laws vary widely, but they generally limit political
contributions from entities doing business with the state. The FHWA
claims that these laws could reduce the number of potential bidders,
thus violating an unrestricted bidding requirement set forth in Federal
law. FHWA has selectively threatened to withhold money to certain
States. In my home State of Illinois, the State legislature was forced
to change its pay-to-play law just days after our former governor was
indicted for allegedly engaging in numerous pay-to-play schemes.
Illinois was forced to create a giant loophole in the ethics law so as
not to lose out on millions in Federal transportation funds.
States have the right to ensure their contracting processes adhere to
the highest ethical standards and offer the best protection to the
taxpayers. Selected Federal intervention is an unwarranted and
unhelpful power grab by Federal regulators. Pay-to-play laws are
designed to enhance, not undermine, competitive bidding. They are
designed to ensure that the competitive bidding process is open and
fair, not motivated by political considerations.
Our legislation would allow States to pass ethics laws that are in
their best interests, without fear of Federal retaliation, by amending
FHWA's contracting requirements to explicitly provide that no State or
locality shall be considered in violation of the competitive bidding
requirements based on political contributions. The legislation does not
prescribe any new requirements for states, nor does it advocate for the
passage of any single ethics law. The bill simply allows States to
enact meaningful anti-corruption laws if they choose to do so. As
Federal budgets tighten in these challenging economic times, it is
imperative that we not hamstring States even further by denying them
Federal funds for trying to limit public corruption.
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. 994
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 ``State Ethics Law Protection
Act of 2011''.
SEC. 2. PAY-TO-PLAY REFORM.
Section 112 of title 23, United States Code, is amended by
adding at the end the following:
[[Page S2955]]
``(h) Pay-To-Play Reform.--A State transportation
department shall not be considered to have violated a
requirement of this section solely because the State in which
that State transportation department is located, or a local
government within that State, has in effect a law or an order
that limits the amount of money an individual or entity that
is doing business with a State or local agency with respect
to a Federal-aid highway project may contribute to a
political party, campaign, candidate, or elected official.''.
______
By Mr. KIRK:
S. 995. A bill to amend title 18, United States Code, to prohibit
public officials from engaging in undisclosed self-dealing; to the
Committee on the Judiciary.
Mr. KIRK. Mr. President, I am pleased to introduce the Public
Officials Accountability Act, to ensure that our elected leaders cannot
use their office for their own personal benefit. Public corruption has
turned the ``Land of Honest Abe'' into the ``Land of Political
Corruption.'' Illinois is the 6th most corrupt state in the Union,
based on the number of public corruption convictions over the last
decade. If just the northern district of Illinois were a state, it
would have had the 7th highest number of public corruption convictions
in the country in 2009. Illinois taxpayers pay the price for this in
the form of a hidden public corruption tax. We need to make sure our
laws help Federal prosecutors crack down on public corruption and
restore integrity to Illinois. One such tool is the honest services
law.
For the past 30 years, the Department of Justice has fought public
corruption by convicting scores of public officials who deny citizens
the right to ``honest services.'' We are all too familiar with
politicians failing to perform their public duties honestly in
Illinois.
The most famous Illinois politicians to be convicted of honest
services fraud include former Governor Otto Kerner, late Congressman
Dan Rostenkowski, former city of Chicago official Robert Sorich, and
former Governor George Ryan. William Jefferson and Congressman Bob Ney
are a few notable national figures to be convicted of this crime.
Back in Illinois, our former governor Rod Blagojevich is currently on
trial after having turned Illinois into a corrupt political circus and
a national joke. A number of charges in his original indictment were
based on honest services fraud, including those related to his alleged
scheme to sell President Obama's U.S. Senate seat for his own personal
gain.
Unfortunately, last year the Supreme court drastically narrowed the
scope of the honest services law in the famous 2010 Enron decision,
Skilling v. U.S. The Court struck down a significant portion of the law
because it was unconstitutionally vague. As a result of the Supreme
Court review, U.S. prosecutors reindicted Blagojevich, leaving out all
honest services charges so as not to complicate the case. Blagojevich
later was convicted on just one charge.
The Blagojevich case was not the only one affected by the decision.
According to the Wall Street Journal, ``In 2008 and 2009, the
government brought honest services fraud charges in more than 100 cases
a year,'' but in 2010 ``new prosecutions using the statute slowed to a
trickle'' due to the Supreme Court review of the issue.
In order to continue fighting public corruption effectively, the
Department of Justice asked Congress to enact a clear and specific
honest services law to withstand any constitutional review. Our bill,
the Public Officials Accountability Act, would do just that. It would
very clearly reinstate the portion of the law the Supreme Court struck
down in terms that remove all ambiguity. The Public Officials
Accountability Act would restore one of prosecutors' most important
tools and decades of congressional intent to ensure elected leaders
cannot use their office to further their own careers or pocketbooks.
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. 995
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 ``Public Officials
Accountability Act''.
SEC. 2. PROHIBITION ON UNDISCLOSED SELF-DEALING BY PUBLIC
OFFICIALS.
(a) In General.--Chapter 63 of title 18, United States
Code, is amended by inserting after section 1346 the
following new section:
``Sec. 1346A. Undisclosed self-dealing by public officials
``(a) Undisclosed Self-Dealing by Public Officials.--For
purposes of this chapter, the term `scheme or artifice to
defraud' also includes a scheme or artifice by a public
official to engage in undisclosed self-dealing.
``(b) Definitions.--As used in this section:
``(1) Official act.--The term `official act'--
``(A) includes any act within the range of official duty,
and any decision, recommendation, or action on any question,
matter, cause, suit, proceeding, or controversy, which may at
any time be pending, or which may by law be brought before
any public official, in such public official's official
capacity or in such official's place of trust or profit;
``(B) may be a single act, more than one act, or a course
of conduct; and
``(C) includes a decision or recommendation that a
government should not take action.
``(2) Public official.--The term `public official' means an
officer, employee, or elected or appointed representative, or
person acting for or on behalf of, the United States, a
State, or a subdivision of a State, or any department, agency
or branch of government thereof, in any official function,
under or by authority of any such department, agency, or
branch of government.
``(3) State.--The term `State' includes a State of the
United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
``(4) Undisclosed self-dealing.--The term `undisclosed
self-dealing' means that--
``(A) a public official performs an official act for the
purpose, in whole or in part, of benefitting or furthering a
financial interest of--
``(i) the public official;
``(ii) the spouse or minor child of a public official;
``(iii) a general business partner of the public official;
``(iv) a business or organization in which the public
official is serving as an employee, officer, director,
trustee, or general partner; or
``(v) an individual, business, or organization with whom
the public official is negotiating for, or has any
arrangement concerning, prospective employment or financial
compensation; and
``(B) the public official knowingly falsifies, conceals,
covers up, or fails to disclose material information
regarding that financial interest that is required to be
disclosed by any Federal, State, or local statute, rule,
regulation, or charter applicable to the public official.''.
(b) Conforming Amendment.--The table of sections for
chapter 63 of title 18, United States Code, is amended by
inserting after the item relating to section 1346 the
following new item:
``1346A. Undisclosed self-dealing by public officials.''.
(c) Applicability.--The amendments made by this section
apply to acts engaged in on or after the date of the
enactment of this Act.
______
By Mr. AKAKA (for himself, Mr. Harkin, and Mr. Durbin):
S. 998. A bill to amend title IV of the Employee Retirement Income
Security Act of 1974 to require the Pension Benefit Guaranty
Corporation, in the case of airline pilots who are required by
regulation to retire at age 60, to compute the actuarial value of
monthly benefits in the form of a life annuity commencing at age 60; to
the Committee on Health, Education, Labor, and Pensions.
Mr. AKAKA. Mr. President, today I am introducing the Pension Benefit
Guaranty Corporation Pilots Equitable Treatment Act to ensure fair
treatment of commercial airline pilot retirees. Joining me in this
effort are Senators Harkin and Durbin, as well as Representative George
Miller, who is introducing the companion bill in the House of
Representatives today.
The Pension Benefit Guaranty Corporation, PBGC, is the Federal agency
that assumes responsibility for pension plans that are terminated
because they do not have enough money to pay all benefits. PBGC's
insurance program pays monthly benefits to the retirees that the
pension plan provided, up to the limits set by law. PBGC requires
individuals to retire at age 65 to receive the maximum retirement
benefit. For years, this law was in conflict with the Federal Aviation
Administration, FAA, requirement that pilots retire by age 60. For
commercial airline pilots caught between these conflicting policies,
their retirement benefits were significantly reduced.
Congress partially addressed this issue with the passage of the Fair
Treatment of Experienced Pilots Act, which was signed into law on
December
[[Page S2956]]
13, 2007. The Act increased the FAA mandatory retirement age for pilots
to age 65. However, the change did nothing to help those pilots who had
already retired. As such, pilots who retired while the FAA age 60 rule
was in effect are still denied the maximum pension benefit administered
by the PBGC and are unable to rejoin the workforce as pilots.
The conflicting FAA and PBGC requirements have had a substantial
adverse effect on thousands of retired pilots. In general, these pilots
have had their maximum retirement benefit reduced by one-third. For
example, the maximum benefit from the PBGC for someone that retired at
age 65 in 2006 is $47,659 a year. For those who retired at age 60 of
that same year, the maximum is $30,978. Our legislation ends this
unfair penalty. The Pension Benefit Guaranty Corporation Pilots
Equitable Treatment Act would direct the PBGC to calculate pension
benefits based on retirement eligibility beginning at age 60 instead of
age 65 for retired pilots whose pensions are affected by the
discrepancy between the FAA and PBGC retirement requirements. We must
pass this bill to provide some relief for pilots from Aloha Airlines,
Delta, TWA, United Airlines, and US Airways, as well as other pilots
who have had their pensions terminated and taken over by the PBGC and
suffer from this wrongly imposed penalty.
I urge my colleagues to support this bill so that we can finally
correct this wrong.
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. 998
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 ``Pension Benefit Guaranty
Corporation Pilots Equitable Treatment Act''.
SEC. 2. AGE REQUIREMENT FOR AIRLINE PILOTS.
(a) Single-Employer Plan Benefits Guaranteed.--Section
4022(b)(3) of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1322(b)(3)) is amended by inserting at the
end the following: ``If, at the time of termination of a plan
under this title, or at the time of freezing benefit accruals
under a plan pursuant to subsections (a)(1) and (b) of
section 402 of the Pension Protection Act of 2006,
regulations prescribed by the Federal Aviation Administration
required an individual to separate from service as a
commercial airline pilot after attaining any age before age
65, this paragraph shall be applied to an individual who is a
participant in the plan by reason of such service by
substituting such age for age 65. The calculation of benefit
liabilities and unfunded benefit liabilities under this
section, and the allocation of assets under section 4044,
shall not reflect any additional benefits the corporation
must guarantee due to the application of the preceding
sentence.''.
(b) Aggregate Limit on Benefits Guaranteed; Criteria
Applicable.--Section 4022B(a) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1322b(a)) is amended
by adding at the end the following: ``If, at the time of
termination of a plan under this title, or at the time of
freezing benefit accrual under a plan pursuant to subsections
(a)(1) and (b) of section 402 of the Pension Protection Act
of 2006, regulations prescribed by the Federal Aviation
Administration required an individual to separate from
service as a commercial airline pilot after attaining any age
before age 65, this subsection shall be applied to an
individual who is a participant in the plan by reason of such
service by substituting such age for age 65.''.
SEC. 3. EFFECTIVE DATE.
The amendments made by this Act shall apply to benefits
payable on or after the date of enactment of this Act.
______
By Mr. ENZI (for himself, Mr. Barrasso, Mr. Hatch, Mr. Risch, and
Mr. Cornyn):
S.J. Res. 12. A joint resolution proposing an amendment to the
Constitution of the United States to give States the right to repeal
Federal laws and regulations when ratified by the legislatures of two-
thirds of the several States; to the Committee on the Judiciary.
Mr. ENZI. Mr. President, I rise today to discuss the growing burdens
placed on states by our Federal Government in recent years and how we
can stop this trend.
Our States have faced many Federal mandates in recent years that have
hurt, not helped, the citizenry of our country. In 2009 alone, the
Federal Government issued over 3,300 new rules and regulations. This
puts the total number of Federal rules and regulations placed on our
States and citizens at around 75,000 as of 2010. In addition,
incredible price tags have been placed on our citizens due to these
laws and regulations. Our country is facing trillions of dollars in
debt and forcing further expenses onto our taxpayers is inexcusable.
This Federal top-down approach does not encourage a strong economy.
States and local governments should have the ability to address the
needs of their citizens in ways that actually fix the problem without
their hands being tied by burdensome Federal rules, regulations, and
laws. I have always believed that the ingenuity of individuals should
not be hampered and top-down approaches do just that. As of now, states
have one recourse, go through the court system which is already
backlogged.
No matter who has the political power within our Federal Government,
States need to have the ability to force the Federal Government to
reconsider laws and regulations that do not support them. Providing
states with the option of repealing any Federal law or regulation is
the next step. Allowing a repeal option would also institute a check
against egregious congressional actions and especially un-elected
bureaucratic action.
Today, I am introducing the Repeal Amendment to address this issue.
My colleague Representative Rob Bishop of Utah is introducing this
important piece of legislation in the House of Representatives so that
we can give the states a real voice. Allowing States the option to say
no will allow them the breathing room to decide what policies are best
for them.
The Repeal Amendment would allow States to remove unnecessary and
burdensome Federal laws and regulations. When 2/3 of the States
collectively find a Federal law or regulation so out of touch and
destructive, they will have the power to repeal it if they so choose.
States must be given back their role as an equal partner in
addressing the needs and issues of the people of the United States. The
growing Federal Government must be put in check and I believe that the
Repeal Amendment will do just that.
____________________