Congressional Record, Volume 157 Issue 70 (Thursday, May 19, 2011)

[Congressional Record Volume 157, Number 70 (Thursday, May 19, 2011)]
[Senate]
[Pages S3173-S3184]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LEAHY (for himself and Mr. Graham).
S. 1025. A bill to amend title 10, United States Code, to enhance the
national defense through empowerment of the National Guard, enhancement
of the functions of the National Guard Bureau, and improvement of
Federal-State military coordination in domestic emergency response, and
for other purposes; to the Committee on Armed Services.
Mr. LEAHY. Mr. President, today I am proud to introduce the National
Guard Empowerment and State-National Defense Integration Act of 2011
along with my National Guard Caucus Co-Chair, Senator Lindsey Graham.
Our bill builds upon earlier reforms proposed and enacted through the
work of the Guard Caucus to give the Guard and Reserve a seat at the
Pentagon's budget and policymaking tables and to update jurisdictional
and operational lines of authority in Guard matters, recognizing that
the Guard has evolved to become a front-line, 21st Century force that
is still trapped in a 20th Century Pentagon bureaucracy. This bill
represents a bipartisan effort to do the right thing by the men and
women of our National Guard, and Senator Graham and I hope that it will
receive speedy consideration and passage.
Ten years ago, the National Guard of the United States was very
different than the Guard protecting our country today. A young private
joining the National Guard on September 10, 2001, was joining a force
designed to participate in an all-out, no-holds-barred war with the
Soviet Union, even though the Soviet Union had ceased to exist a decade
before. When that private showed up for drill, he or she found
facilities in disrepair, a Guard demoralized by inattention from
Pentagon leaders, and equipment that seemed to predate the Cold War. Of
course, the life of that private, and of our entire nation, would
change dramatically in the days to come.
September 11, 2001, woke us up to new realities. Yes, the United
States still faced threats from overseas, and like the rest of us, the
National Guard wanted to do its part. But as we began to call on the
Guard to deploy, those of us who pay special attention to the Guard
started to ask questions. Was the Pentagon actually going to send our
Guard overseas to fight with its ancient and decrepit fleet of
vehicles? What about training? Who would help get these units ready for
the battlefield?
Senator Graham and I wish we could say that every necessary measure
was taken to correct these problems before our National Guard deployed.
But we are still correcting them, and that's what this piece of
legislation is all about. Ever since 9/11, I worked with my friend
Senator Bond to make sure that these equipment, staffing, training, and
other issues that our National Guard faced would be fixed. Our efforts
culminated just a few years ago in the first National Guard Empowerment
Act, which accomplished things like getting the Chief of the National
Guard Bureau a fourth star--and a louder voice in the Pentagon
bureaucracy. Now Senator Graham and I are continuing that work. We will
not rest until every soldier and airman in the Guard has the training,
equipment, and leadership he or she needs to accomplish the mission.
I would like to highlight a few things the bill will do. It will make
the Chief of the National Guard Bureau a statutory member of the Joint
Chiefs of Staff, a change we have needed for a full decade to make sure
Pentagon decision makers consider the unique nature of the Guard when
making decisions. The bill authorizes appropriations for Guard domestic
operations. It authorizes the State Partnership Program, which has had
such great success in my home state of Vermont. The bill will also help
our emergency response operations. During Hurricane Katrina, we saw
military forces so confused by state and federal distinctions. This
bill includes a section focused on a new unity of effort plan that the
Pentagon and the Department of Homeland Security have been working on
with the Council of Governors and others. The bill will also clarify
the relationship between the National Guard Bureau and the U.S.
Northern and Pacific Commands and increase the Guard representation in
U.S. Northern Command.
Overall, this bill moves our Guard and our country forward. It makes
our Guard more effective in accomplishing the missions assigned to it.
We ask so much of our men and women in the Guard. Senator Graham and I
are proud today to continue looking out for them and empowering them to
get the job done when we call them away from civilian life to put on
the uniform. We look forward to many of our colleagues joining us in
this effort.
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. 1025

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``National Guard Empowerment
and State-National Defense Integration Act of 2011''.

SEC. 2. REESTABLISHMENT OF POSITION OF VICE CHIEF OF THE
NATIONAL GUARD BUREAU AND TERMINATION OF
POSITION OF DIRECTOR OF THE JOINT STAFF OF THE
NATIONAL GUARD BUREAU.

(a) Reestablishment and Termination of Positions.--Section
10505 of title 10, United States Code, is amended to read as
follows:

``Sec. 10505. Vice Chief of the National Guard Bureau

``(a) Appointment.--(1) There is a Vice Chief of the
National Guard Bureau, selected by the Secretary of Defense
from officers of the Army National Guard of the United States
or the Air National Guard of the United States who--
``(A) are recommended for such appointment by their
respective Governors or, in the case of the District of
Columbia, the commanding general of the District of Columbia
National Guard;
``(B) have had at least 10 years of federally recognized
service in an active status in the National Guard; and
``(C) are in a grade above the grade of colonel.
``(2) The Chief and Vice Chief of the National Guard Bureau
may not both be members of the Army or of the Air Force.
``(3)(A) Except as provided in subparagraph (B), an officer
appointed as Vice Chief of the National Guard Bureau serves
for a term of four years, but may be removed from office at
any time for cause.
``(B) The term of the Vice Chief of the National Guard
Bureau shall end within a reasonable time (as determined by
the Secretary of Defense) following the appointment of a
Chief of the National Guard Bureau who is a member of the
same armed force as the Vice Chief.
``(b) Duties.--The Vice Chief of the National Guard Bureau
performs such duties as may be prescribed by the Chief of the
National Guard Bureau.
``(c) Grade.--The Vice Chief of the National Guard Bureau
shall be appointed to serve in the grade of lieutenant
general.
``(d) Functions as Acting Chief.--When there is a vacancy
in the office of the Chief of the National Guard Bureau or in
the absence or disability of the Chief, the Vice Chief of the
National Guard Bureau acts as Chief and performs the duties
of the Chief until a successor is appointed or the absence of
disability ceases.''.
(b) Conforming Amendments.--
(1) Section 10502 of such title is amended by striking
subsection (e).
(2) Section 10506(a)(1) of such title is amended by
striking ``and the Director of the Joint Staff of the
National Guard Bureau'' and inserting ``and the Vice Chief of
the National Guard Bureau''.
(c) Clerical Amendments.--
(1) Heading amendment.--The heading of section 10502 of
such title is amended to read as follows:

``Sec. 10502. Chief of the National Guard Bureau:
appointment; advisor on National Guard matters; grade''.

(2) Table of sections.--The table of sections at the
beginning of chapter 1011 of such title is amended--
(A) by striking the item relating to section 10502 and
inserting the following new item:

``10502. Chief of the National Guard Bureau: appointment; advisor on
National Guard matters; grade.''; and

(B) by striking the item relating to section 10505 and
inserting the following new item:

[[Page S3174]]

``10505. Vice Chief of the National Guard Bureau.''.

SEC. 3. MEMBERSHIP OF THE CHIEF OF THE NATIONAL GUARD BUREAU
ON THE JOINT CHIEFS OF STAFF.

(a) Membership on Joint Chiefs of Staff.--Section 151(a) of
title 10, United States Code, is amended by adding at the end
the following new paragraph:
``(7) The Chief of the National Guard Bureau.''.
(b) Conforming Amendments.--Section 10502 of such title, as
amended by section 2(b)(1) of this Act, is further amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following new
subsection (d):
``(d) Member of Joint Chiefs of Staff.--The Chief of the
National Guard Bureau shall perform the duties prescribed for
him or her as a member of the Joint Chiefs of Staff under
section 151 of this title.''.

SEC. 4. CONTINUATION AS A PERMANENT PROGRAM AND ENHANCEMENT
OF ACTIVITIES OF TASK FORCE FOR EMERGENCY
READINESS PILOT PROGRAM OF THE FEDERAL
EMERGENCY MANAGEMENT AGENCY.

(a) Continuation.--
(1) Continuation as permanent program.--The Administrator
of the Federal Emergency Management Agency shall continue the
Task Force for Emergency Readiness (TFER) pilot program of
the Federal Emergency Management Agency as a permanent
program of the Agency.
(2) Limitation on termination.--The Administrator may not
terminate the Task Force for Emergency Readiness program, as
so continued, until authorized or required to terminate the
program by law.
(b) Expansion of Program Scope.--As part of the
continuation of the Task Force for Emergency Readiness
program pursuant to subsection (a), the Administrator shall
carry out the program in at least five States in addition to
the five States in which the program is carried out as of the
date of the enactment of this Act.
(c) Additional FEMA Activities.--As part of the
continuation of the Task Force for Emergency Readiness
program pursuant to subsection (a), the Administrator shall--
(1) establish guidelines and standards to be used by the
States in strengthening the planning and planning capacities
of the States with respect to responses to catastrophic
disaster emergencies; and
(2) develop a methodology for implementing the Task Force
for Emergency Readiness that includes goals and standards for
assessing the performance of the Task Force.
(d) National Guard Bureau Activities.--As part of the
continuation of the Task Force for Emergency Readiness
program pursuant to subsection (a), the Chief of the National
Guard Bureau shall--
(1) assist the Administrator in the establishment of the
guidelines and standards, implementation methodology, and
performance goals and standards required by subsection (c);
(2) in coordination with the Administrator--
(A) identify, using catastrophic disaster response plans
for each State developed under the program, any gaps in State
civilian and military response capabilities that Federal
military capabilities are unprepared to fill; and
(B) notify the Secretary of Defense, the Commander of the
United States Northern Command, and the Commander of the
United States Pacific Command of any gaps in capabilities
identified under subparagraph (A); and
(3) acting through and in coordination with the Adjutants
General of the States, assist the States in the development
of State plans on responses to catastrophic disaster
emergencies.
(e) Annual Reports.--The Administrator and the Chief of the
National Guard Bureau shall jointly submit to the appropriate
committees of Congress each year a report on activities under
the Task Force for Emergency Readiness program during the
preceding year. Each report shall include a description of
the activities under the program during the preceding year
and a current assessment of the effectiveness of the program
in meeting its purposes.
(f) Appropriate Committees of Congress Defined.--In this
section, the term ``appropriate committees of Congress''
means--
(1) the Committee on Armed Services and the Committee on
Homeland Security and Governmental Affairs of the Senate; and
(2) the Committee on Armed Services and the Committee on
Homeland Security of the House of Representatives.

SEC. 5. MEMORANDUM OF UNDERSTANDING BETWEEN DEPARTMENT OF
DEFENSE AND DEPARTMENT OF HOMELAND SECURITY ON
UNITY OF EFFORT IN RESPONSE OF MILITARY FORCES
TO DOMESTIC EMERGENCIES.

(a) Memorandum of Understanding Required.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Defense and the
Secretary of Homeland Security shall enter into a memorandum
of understanding on coordination between the Department of
Defense and the Department of Homeland Security, and between
the Departments and the States, in the use of military forces
in response to domestic emergencies.
(2) Purpose.--The purpose of the memorandum is to ensure,
to the maximum extent practicable, a unity of effort within
the Federal Government, and between the Federal Government
and the States, regarding the use of military forces in
response to domestic emergencies.
(b) Consultation With the States.--In entering into the
memorandum of understanding required by subsection (a), the
Secretary of Defense and the Secretary of Homeland Security
shall jointly consult with the Council of Governors
established by Executive Order No. 13528 for purposes of
coordinating plans under the memorandum of understanding with
the plans of the States for the use of military forces of the
States in response to domestic emergencies.
(c) Submittal to Congress.--Upon entry into the memorandum
of understanding required by subsection (a), the Secretary of
Defense and the Secretary of Homeland Security shall jointly
submit to the appropriate committees of Congress a report on
the memorandum of understanding. The report shall include the
following:
(1) The memorandum of understanding.
(2) A comprehensive description of the manner in which the
mechanisms set forth in the memorandum of understanding will
ensure a unity of effort within the Federal Government, and
between the Federal Government and the State or States
concerned, regarding the use of military forces in response
to domestic emergencies, including, in particular, the manner
in which such mechanisms will ensure a unity of such effort
between the Federal Government and the States in the use of
such forces in such response.
(3) Such other matters as the Secretaries jointly consider
appropriate.
(d) Appropriate Committees of Congress Defined.--In this
section, the term ``appropriated committees of Congress''
means--
(1) the Committees on Armed Services, Homeland Security and
Governmental Affairs, and Appropriations of the Senate; and
(2) the Committees on Armed Services, Homeland Security,
and Appropriations of the House of Representatives.

SEC. 6. REPORT ON COMPARATIVE ANALYSIS OF COSTS OF COMPARABLE
UNITS OF THE RESERVE COMPONENTS AND THE REGULAR
COMPONENTS OF THE ARMED FORCES.

(a) Report Required.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Defense shall
submit to the congressional defense committees a report
setting forth a comparative analysis of the costs of units of
the regular components of the Armed Forces with the costs of
similar units of the reserve components of the Armed Forces.
The analysis shall include a separate comparison of the costs
of units in the aggregate and of the costs of units solely
when on active duty.
(2) Similar units.--For purposes of this subsection, units
of the regular components and reserve components shall be
treated as similar if such units have the same general
structure, personnel, or function, or are substantially
composed of personnel having identical or similar military
occupational specialties (MOS).
(b) Assessment of Increased Reserve Component Presence in
Total Force Structure.--The Secretary shall include in the
report required by subsection (a) an assessment of the
advisability of increasing the number of units and members of
the reserve components of the Armed Forces within the total
force structure of the Armed Forces. The assessment shall
take into account the comparative analysis conducted for
purposes of subsection (a) and such other matters as the
Secretary considers appropriate for purposes of the
assessment.
(c) Comptroller General Report.--Not later than 180 days
after the date of the submittal of the report required by
subsection (a), the Comptroller General of the United States
shall submit to the congressional defense committees a report
setting forth a review of such report by the Comptroller
General. The report of the Comptroller General shall include
an assessment of the comparative analysis contained in the
report required by subsection (a) and of the assessment of
the Secretary pursuant to subsection (b).
(d) Congressional Defense Committees Defined.--In this
section, the term ``congressional defense committees'' has
the meaning given that term in section 101(a)(16) of title
10, United States Code.

SEC. 7. DISPLAY OF PROCUREMENT OF EQUIPMENT FOR THE RESERVE
COMPONENTS OF THE ARMED FORCES UNDER ESTIMATED
EXPENDITURES FOR PROCUREMENT IN FUTURE-YEARS
DEFENSE PROGRAMS.

Each future-years defense program submitted to Congress
under section 221 of title 10, United States Code, shall, in
setting forth estimated expenditures and item quantities for
procurement for the Armed Forces for the fiscal years covered
by such program, display separately under such estimated
expenditures and item quantities the estimated expenditures
for each such fiscal year for equipment for each reserve
component of the Armed Forces that will receive items in any
fiscal year covered by such program.

SEC. 8. FISCAL YEAR 2012 FUNDING FOR THE NATIONAL GUARD FOR
CERTAIN DOMESTIC ACTIVITIES.

(a) Continuity of Operations, Continuity of Government, and
Consequence Management.--

[[Page S3175]]

(1) Authorization of appropriations.--There is hereby
authorized to be appropriated for fiscal year 2012 for the
Department of Defense amounts as follows:
(A) For National Guard Personnel, Army, $11,000,000.
(B) For National Guard Personnel, Air Force, $3,500,000.
(C) For Operation and Maintenance, Army National Guard,
$11,000,000.
(2) Availability.--The amounts authorized to be
appropriated by paragraph (1) shall be available to the Army
National Guard and the Air National Guard, as applicable, for
costs of personnel in training and operations with respect to
continuity of operations, continuity of government, and
consequence management in connection with response to
terrorist and other attacks on the United States homeland and
natural and man-made catastrophes in the United States.
(b) Domestic Operations.--
(1) Authorization of appropriations.--There is hereby
authorized to be appropriated for fiscal year 2012 for the
Department of Defense, $300,000,000 for Operation and
Maintenance, Defense-wide.
(2) Availability.--The amount authorized to be appropriated
by paragraph (1) shall be available for the Army National
Guard and the Air National Guard for emergency preparedness
and response activities of the National Guard while in State
status under title 32, United States Code.
(3) Transfer.--Amounts under the amount authorized to be
appropriated by paragraph (1) shall be available for transfer
to accounts for National Guard Personnel, Army, and National
Guard Personnel, Air Force, for purposes of the pay and
allowances of members of the National Guard in conducting
activities described in paragraph (2).
(c) Joint Operations Coordination Centers.--
(1) Authorization of appropriations.--There is hereby
authorized to be appropriated for fiscal year 2012 for the
Department of Defense amounts as follows:
(A) For National Guard Personnel, Army, $28,000,000.
(B) For National Guard Personnel, Air Force, $7,000,000.
(2) Availability.--The amounts authorized to be
appropriated by paragraph (1) shall be available to the Army
National Guard and the Air National Guard, as applicable, for
costs of personnel in continuously staffing a Joint
Operations Coordination Center (JOCC) in the Joint Forces
Headquarters of the National Guard in each State and
Territory for command and control and activation of forces in
response to terrorist and other attacks on the United States
homeland and natural and man-made catastrophes in the United
States.
(d) Supplement Not Supplant.--The amounts authorized to be
appropriated by subsections (a), (b), and (c) for the
purposes set forth in such subsections are in addition to any
other amounts authorized to be appropriated for fiscal year
2012 for the Department of Defense for such purposes.

SEC. 9. ENHANCEMENT OF AUTHORITIES RELATING TO THE UNITED
STATES NORTHERN COMMAND AND OTHER COMBATANT
COMMANDS.

(a) Commands Responsible for Support to Civil Authorities
in the United States.--The United States Northern Command and
the United States Pacific Command shall be the combatant
commands of the Armed Forces that are principally responsible
for the support of civil authorities in the United States by
the Armed Forces.
(b) Discharge of Responsibility.--In discharging the
responsibility set forth in subsection (a), the Commander of
the United States Northern Command and the Commander of the
United States Pacific Command shall each--
(1) in consultation with and acting through the Chief of
the National Guard Bureau and the Joint Force Headquarters of
the National Guard of the State or States concerned, assist
the States in the employment of the National Guard under
State control, including National Guard operations conducted
in State active duty or under title 32, United States Code;
and
(2) facilitate the deployment of the Armed Forces on active
duty under title 10, United States Code, as necessary to
augment and support the National Guard in its support of
civil authorities when National Guard operations are
conducted under State control, whether in State active duty
or under title 32, United States Code.
(c) Memorandum of Understanding.--
(1) Memorandum required.--Not later than 180 days after the
date of the enactment of this Act, the Commander of the
United States Northern Command, the Commander of the United
States Pacific Command, and the Chief of the National Guard
Bureau shall, with the approval of the Secretary of Defense,
jointly enter into a memorandum of understanding setting
forth the operational relationships, and individual roles and
responsibilities, during responses to domestic emergencies
among the United States Northern Command, the United States
Pacific Command, and the National Guard Bureau.
(2) Modification.--The Commander of the United States
Northern Command, the Commander of the United States Pacific
Command, and the Chief of the National Guard Bureau may from
time to time modify the memorandum of understanding under
this subsection to address changes in circumstances and for
such other purposes as the Commander of the United States
Northern Command, the Commander of the United States Pacific
Command, and the Chief of the National Guard Bureau jointly
consider appropriate. Each such modification shall be subject
to the approval of the Secretary of Defense.
(d) Authority To Modify Assignment of Command
Responsibility.--Nothing in this section shall be construed
as altering or limiting the power of the President or the
Secretary of Defense to modify the Unified Command Plan in
order to assign all or part of the responsibility described
in subsection (a) to a combatant command other than the
United States Northern Command or the United States Pacific
Command.
(e) Regulations.--The Secretary of Defense shall prescribe
regulations for purposes of aiding the expeditious
implementation of the authorities and responsibilities in
this section.

SEC. 10. REQUIREMENTS RELATING TO NATIONAL GUARD OFFICERS IN
CERTAIN COMMAND POSITIONS.

(a) Commander of Army North Command.--The officer serving
in the position of Commander, Army North Command, shall be an
officer in the Army National Guard of the United States.
(b) Commander of Air Force North Command.--The officer
serving in the position of Commander, Air Force North
Command, shall be an officer in the Air National Guard of the
United States.
(c) Sense of Congress.--It is the sense of Congress that,
in assigning officers to the command positions specified in
subsections (a) and (b), the President should afford a
preference in assigning officers in the Army National Guard
of the United States or Air National Guard of the United
States, as applicable, who have served as the adjutant
general of a State.

SEC. 11. AVAILABILITY OF FUNDS UNDER STATE PARTNERSHIP
PROGRAM FOR ADDITIONAL NATIONAL GUARD CONTACTS
ON MATTERS WITHIN THE CORE COMPETENCIES OF THE
NATIONAL GUARD.

(a) In General.--The Secretary of Defense shall, in
consultation with the Secretary of State, modify the
regulations prescribed pursuant to section 1210 of the
National Defense Authorization Act for Fiscal Year 2010
(Public Law 111-84; 123 Stat. 2517; 32 U.S.C. 107 note) to
provide for the use of funds available pursuant to such
regulations for contacts between members of the National
Guard and civilian personnel of foreign governments outside
the ministry of defense on matters within the core
competencies of the National Guard such as the following:
(1) Disaster response and mitigation.
(2) Defense support to civilian authorities.
(3) Consequence management and installation protection.
(4) Chemical, biological, radiological, or nuclear event
(CBRNE) response.
(5) Border and port security and cooperation with civilian
law enforcement.
(6) Search and rescue.
(7) Medical matters.
(8) Counterdrug and counternarcotics activities.
(9) Public affairs.
(10) Employer and family support of reserve forces.
(11) Such other matters within the core competencies of the
National Guard and suitable for contacts under the State
Partnership Program as the Secretary of Defense shall
specify.
(b) Funding for Fiscal Year 2012.--There is hereby
authorized to be appropriated for fiscal year 2012 for the
Department of Defense for the National Guard, $50,000,000 to
be available for contacts under the State Partnership Program
authorized pursuant to the modification of regulations
required by subsection (a).
______

By Mr. ENZI (for himself, Mr. Johnson of South Dakota, Mr.
Grassley, and Mr. Tester).
S. 1026. A bill to amend the Packers and Stockyard Act, 1921, to
prohibit the use of certain anti-competitive forward contracts; to the
Committee on Agriculture, Nutrition, and Forestry.
Mr. ENZI. Mr. President, I wish to speak on the introduction of the
Livestock Marketing Fairness Act. I want to also acknowledge that I am
joined in introducing this legislation by Senators Tim Johnson,
Grassley, and Tester. Without their support this bill would not be
possible. We have always enjoyed bipartisan support on this issue and I
want to thank them for their work in making sure that our livestock
markets remain competitive.
Our Nation's ranchers and family farmers aren't looking for handouts
when they take their animals to the auction barn, they simply expect
that they will receive the price they deserve for the quality they
produce. However, there is evidence that there are bad actors out there
who stack the deck when it comes to the prices they use in livestock
contracts. The Packers & Stockyards Act was enacted at a time when
there was significant concentration in the livestock and poultry
industry. That law since that time has provided protection and remedy
from manipulative market practices but the growth

[[Page S3176]]

of our markets in recent decades has opened up opportunities for new
abuses that the original law never could have expected.
These opportunities for manipulation have developed as our markets
have become increasingly more consolidated. The top four firms control
over 69 percent of the domestic cattle slaughter and this statistic
doesn't even include the acquisitions that have taken place in the
industry in recent years. Gone are the days when a simple handshake
between buyer and seller was all you needed.
The Livestock Marketing Fairness Act strikes at the heart of one
particular anti-competitive practice. Over the years, livestock
producers, feeders, and packers have been given a number of new
marketing tools for price discovery and hedging risk. One of those
tools is the forward contract where a buyer and seller agree to a
transaction at a specified point of time in the future. However,
certain types of forward contracting agreements have become ripe for
price manipulation. This is because a growing number of packing
operations own their own livestock or control them through marketing
agreements. These firms then can buy from themselves when prices are
high and buy from others when prices are low. Captive supplies are
animals that packers own and control prior to slaughter. The Livestock
Marketing Fairness Act prohibits certain arrangements that provide
packers with the opportunity use their captive supplies to manipulate
local market prices. First, the legislation requires that forward
contracts contain a ``firm base price'' which is derived from an
external source. Though not outlined in the legislation, commonly used
external sources of price include the live cattle futures market or
wholesale beef market. This ensures that both buyers and sellers have a
basis for how pricing in a contract will be derived at the time the
contract is agreed upon. Second, the bill requires that forward
contracts be traded in open, public markets. This guarantees that
multiple buyers and sellers can witness bids as well as offer their
own. Some livestock markets already do this to ensure transparency but
there are others who allow transactions to happen behind closed doors.
The Livestock Marketing Fairness Act also ensures that trading of
contracts be done in a manner that provides both small and large buyers
and sellers access to the market. Contracts are to be traded in sizes
approximate to the common number of cattle or pigs transported in a
trailer, but the law does not prohibit trading from occurring in
multiples of those contracts for larger livestock orders.
I travel to Wyoming nearly every weekend and have heard the same
concerns from many of our ranchers. They want to be competitive in the
market and sell the best animals possible so that they can continue the
work that so many in their family have done for so many years. However,
this problem is not isolated to Wyoming. Livestock producers from coast
to coast are finding that with consolidation there are fewer and fewer
buyers for their animals and their options for marketing too are being
lost. This legislation not only increases openness in forward
contracting but preserves the right for ranchers to choose the best
methods for selling their animals without worry that their agreements
will be subject to manipulation. The bill does not apply to producer
cooperatives who often own their processing facility. The legislation
also carefully targets the problem, large packers owning captive
supplies, by also exempting packers that only own one facility and
those that do not report for mandatory price reporting. The Livestock
Marketing Fairness Act does not apply to agreements based on quality
grading nor does it affect a producer's ability to negotiate contracts
one-on-one with buyers. Therefore, sellers can still choose from a
variety of methods including the spot market, futures market, or other
alternative marketing arrangements.
This bill is common sense and ensures that our ranchers have access
to a competitive market in these difficult economic times. All our
livestock producers are asking for is a level playing field and this
bill helps them do what they do best, continue producing the finest
meat in the world.
By Mr. UDALL of Colorado (for himself and Mr. Brown of
Massachusetts):
S. 1029. A bill to amend the Public Utility Regulatory Policies Act
of 1978 to provide electric consumers the right to access certain
electric energy information, and for other purposes; to the Committee
on Energy and Natural Resources.
Mr. UDALL of Colorado. Mr. President, I rise today to discuss an
important issue, energy consumption. Do each of us know how much energy
we actually consume? How much does our energy use affect our
pocketbooks? Consumers should be able to answer these questions. That
is why I am introducing the Electric Consumer Right to Know Act today.
This legislation takes a common-sense step toward broadening
consumers' access to data about their electricity usage. I first began
working on this issue while serving in the Colorado General Assembly
back in 1997, when I introduced a bill that would have given consumers
information about the price, water consumption, pollutants, and
emissions used to generate the electricity they were sold. However, I
am proud to say that this refined transparency bill--which gives
consumers access to their energy use and price--was developed directly
from the input of Coloradans who participated in my energy jobs summit
in Denver in February 2010.
In today's marketplace, consumers have a clear understanding of what
their car mileage means for their wallet. They also have ready access
to the number of minutes remaining on their cell phone. However,
consumers lack clear, timely data about their electricity use and its
price. Providing increased transparency will help consumers with their
decisions about electricity usage in their homes or businesses.
The Electric Consumer Right to Know Act, or E-Know Act, would provide
this transparency by establishing consumers' clear right to access data
on their own electricity usage. This right is an important step toward
a more effective, reliable and efficient electric grid, and a step
toward helping consumers use electricity more efficiently and save
money on their electric bills.
For the past two years, I have been traveling across Colorado as part
of a work force tour to talk directly to Coloradans and hear their
innovative policy ideas to create jobs. I also hosted an Energy Jobs
Summit in Denver in February 2010. As part of this summit, we asked
experts in energy policy and business to join us for a conversation
about how we can better position Colorado and the United States to lead
in the 21st century clean energy economy and win the global economic
race.
We heard from U.S. Energy Secretary Steven Chu, then-Governor Bill
Ritter, Senator Michael Bennet, and Congressman Ed Perlmutter. But,
more importantly, we heard from Coloradans who came to share their
views on what the federal government can do, or in some instances not
do, to support job creation and transition to cleaner and more
efficient energy use.
One consumer participant at the summit noted that even though he had
a smart meter at his home, his power company would not let him access
his electrical meter readings to learn how he was using electricity. If
he could access those readings, he could better understand his energy
use, learn how to be more energy efficient and save money. That is why
I am reintroducing E-Know Act today, to improve communication between
the consumers and their utility and spur innovation in developing
creative technologies that will save energy.
The bill directs the Federal Regulatory Energy Commission to convene
an open, extensive and inclusive stakeholder process to work through
the details of this measure to ensure that implementing the consumers'
right to access their information also retains consumer privacy, and
ensures the integrity and reliability of the grid.
The outcome of this process will create national guidelines
establishing the right of consumers to access their electricity data,
including minimum national standards that utilities must meet to ensure
that right of access. In developing those minimum standards, the FERC
will take into consideration the ongoing and important work at the
National Institute of Standards and

[[Page S3177]]

Technology in developing a smart grid roadmap, as well as the
innovative state and local programs already being developed across the
country to integrate smart meters into the electrical grid, including
Colorado, California, Texas, Pennsylvania, and others.
In my home state of Colorado, Xcel Energy has been working with the
city of Boulder on a pilot program called SmartGridCity to develop a
community-scale smart grid with over 20,000 residents participating. In
Fort Collins, Colorado, the business community and utilities have
teamed up to form the FortZED project with the goal of turning the
downtown into a net zero energy district using smart technology. I am
proud to see Coloradans and others around the country taking important
steps together in learning how to make the grid more reliable,
efficient, and help save everyone money.
Finally, part of ensuring the right to access your data includes the
right to retain the privacy of your data. When consumers gain access to
their data, they will also need to clearly understand how it will be
used, especially when consumers grant third-party access to it. This is
why this bill states that the FERC will establish, among other
important measures, guidelines for consumer consent requirements.
Retaining privacy is critical to building consumer trust in the smart
grid and facilitating the transition of the smart grid to an integral
part of everyday life for every American family.
I look forward to working with my colleagues from both parties and
all interested stakeholders in establishing this right, defining it in
a way that eliminates unintended consequences, and enforcing this right
in a way that promotes the efficient use of electrical energy.
This bill is an important first step in implementing smart meters
across the country, moving us toward an electrical grid that is more
reliable and more efficient, a ``smart grid,'' if you will. There are
several pieces of the puzzle that will be required to realize that
future, and one critical part of that puzzle is the right of consumers
to access their electricity data. I urge my colleagues of both parties
to join me in supporting this important legislation.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 1029

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 ``Electric Consumer Right to
Know Act'' or the ``e-KNOW Act''.

SEC. 2. FINDINGS.

Congress finds that--
(1) improving consumers' understanding of and access to the
electric energy usage information of the consumers will help
consumers more effectively manage usage;
(2) consumers have a right of access to the electric energy
usage information of the consumers;
(3) the right of access to electric energy usage
information should be based on the need to have access to the
information rather than on a specific type of smart metering
technology and, as a result, all usage information platforms
can compete and innovation will be fostered;
(4) utilities should provide electric energy usage
information based on the best capabilities of the metering
technology currently deployed in the respective service areas
or, on upgrade, based on standards recognized by the National
Institute of Standards and Technology;
(5) consumers should have the ability to access unaudited
usage information directly from the electric meters of the
consumers or from sources independent of the electric meters,
and from sources independent of the utilities of the
consumers;
(6) consumers should retain the right to the privacy and
security of electric energy usage information of the
consumers created through usage;
(7) consumers should have the right to control the electric
energy usage information of the consumers and the right to
privacy for the information when third party aggregators of
data are involved in creation, management, or collection of
the information; and
(8) consumers should have the right to know how the
authorized third-party data manager of the consumers will
manage the retail electric energy information of the
consumers once the manager has accessed the information.

SEC. 3. ELECTRIC CONSUMER RIGHT TO ACCESS ELECTRIC ENERGY
INFORMATION.

(a) In General.--Title II of the Public Utility Regulatory
Policies Act of 1978 (16 U.S.C. 824 et seq.) is amended by
adding at the end the following:

``SEC. 215. ELECTRIC CONSUMER RIGHT TO ACCESS ELECTRIC ENERGY
INFORMATION.

``(a) Definitions.--In this section:
``(1) Retail electric energy information.--The term `retail
electric energy information' means--
``(A) the electric energy consumption of an electric
consumer over a defined time period;
``(B) the retail electric energy prices or rates applied to
the electricity usage for the defined time period described
in subparagraph (A) for the electric consumer;
``(C) the cost of usage by the consumer, including (if
smart meter usage information is available) the estimated
cost of usage since the last billing cycle of the consumer;
and
``(D) in the case of nonresidential electric meters, any
other electrical information that the meter is programmed to
record (such as demand measured in kilowatts, voltage,
frequency, current, and power factor).
``(2) Smart meter.--Except as provided in subsection (e),
the term `smart meter' means the device used by an electric
utility that--
``(A)(i) measures electric energy consumption by an
electric consumer at the home or facility of the electric
consumer in intervals of 1 hour or less; and
``(ii) is capable of sending electric energy usage
information through a communications network to the electric
utility; or
``(B) meets the guidelines issued under subsection (h).
``(b) Consumer Rights.--
``(1) In general.--Each electric consumer in the United
States shall have the right to access (and to authorize 1 or
more third parties to access) retail electric energy
information of the electric consumer in--
``(A) an electronic form, free of charge, in conformity
with nationally recognized open standards developed by a
nationally recognized standards organization; and
``(B) a manner that is timely and convenient and provides
adequate protections for the security of the information and
the privacy of the electric consumer.
``(2) Smart meters.--In the case of an electric consumer
that is served by a smart meter that can also communicate
energy usage information to a device or network of an
electric consumer or a device or network of a third party
authorized by the consumer, the consumer shall, at a minimum,
have the right to access (and to authorize 1 or more third
parties to access) usage information in read-only format
directly from the smart meter.
``(3) Provider of information.--The information required
under this subsection shall be provided by the electric
utility of the consumer or such other entity as may be
designated by the applicable electric retail regulatory
authority.
``(c) Information.--The right to access retail electric
energy information under subsection (b) includes, at a
minimum--
``(1)(A) in the case of an electric consumer that is served
by a smart meter, the right to access retail electric energy
information--
``(i) in machine readable form, not more than 48 hours
after consumption has occurred; or
``(ii) in accordance with the guidelines issued under
subsection (h); or
``(B) in the case of an electric consumer that is not
served by a smart meter, the right to access retail electric
energy information in machine readable form as expeditiously
after the time of receipt in a data center (including
information provided by third party services) as is
reasonably practicable and as prescribed by the applicable
electric retail regulatory authority; and
``(2) except as otherwise provided in subsection (d)--
``(A) in the case of an electric consumer that is served by
a smart meter, data at a granularity that is--
``(i) not less granular than the intervals at which the
data is recorded and stored by the billing meter in use at
the premise of the electric consumer; or
``(ii) in accordance with the guidelines issued under
subsection (h); and
``(B) in the case of an electric consumer that is not
served by a smart meter, data at granularity equal to the
data used for billing the electric consumer, or more precise
granularity, as prescribed by the applicable electric retail
regulatory authority.
``(d) Electric Energy Information Retention.--An electric
consumer shall have the right to access the retail electric
energy information of the consumer, through the website of
the electric utility or other electronic access authorized by
the electric consumer, for a period of at least 13 months
after the date on which the usage occurred, unless a
different period is prescribed by the applicable electric
retail regulatory authority.
``(e) Data Security.--Access described in subsection (d)
shall not interfere with or compromise the integrity,
security, or privacy of the operations of a utility and the
electric consumer, in accordance with the guidelines issued
by the Commission under subsection (h).
``(f) Cost Recovery.--An electric utility providing retail
electric energy information in accordance with otherwise
applicable regulation of rates for the retail sale and
delivery of electricity may recover in rates the cost of
providing the information, if the cost is determined
reasonable and prudent by the applicable electric retail
regulatory authority.
``(g) Additional Available Information.--The right to
access electric energy information shall extend to usage
information generated by devices in or on the property of the

[[Page S3178]]

consumer that is transmitted to the electric utility.
``(h) Guidelines for Electric Consumer Access.--
``(1) In general.--Not later than 180 days after the date
of enactment of this section, the Commission shall (after
consultation with State and local regulatory authorities,
including the National Association of Regulatory Utility
Commissioners, the Secretary of Energy, other appropriate
Federal agencies, including the National Institute of
Standards and Technology, consumer advocacy groups,
utilities, and other appropriate entities, and after notice
and opportunity for comment) issue guidelines that establish
minimum national standards for implementation of the electric
consumer right to access retail electric energy information
under subsection (b).
``(2) State and local regulatory action.--In issuing the
guidelines, the Commission shall, to the maximum extent
practicable, be guided by actions taken by State and local
regulatory authorities to ensure electric consumer access to
retail electric energy information, including actions taken
after consideration of the standard under section 111(d)(17).
``(3) Content.--The guidelines shall provide guidance on
issues necessary to carry out this section, including--
``(A) the timeliness and granularity of retail electric
energy information;
``(B) appropriate nationally recognized open standards for
data;
``(C) a definition of the term `smart meters'; and
``(D) protection of data security and electric consumer
privacy, including consumer consent requirements.
``(4) Revisions.--The Commission shall periodically review
and, as necessary, revise the guidelines to reflect changes
in technology and the market for electric energy and
services.
``(i) Enforcement.--
``(1) Enforcement by state attorneys general.--If the
attorney general of a State, or another official or agency of
a State with competent authority under State law, has reason
to believe that any electric utility that delivers electric
energy at retail in the applicable State is not complying
with the minimum standards established by the guidelines
under subsection (h), the attorney general, official, or
agency of the State, as parens patriae, may bring a civil
action against the electric utility, on behalf of the
electric consumers receiving retail service from the electric
utility, in a district court of the United States of
appropriate jurisdiction, to compel compliance with the
standards.
``(2) Safe harbor.--
``(A) In general.--No civil action may be brought against
an electric utility under paragraph (1) if the Commission
has, during the 2-year period ending on the date of the
determination, determined that the electric utility adopted
policies, requirements, and measures, as necessary, that
comply with the standards established by the guidelines under
subsection (h).
``(B) Procedures.--The Commission shall establish
procedures to review the policies, requirements, and measures
of electric utilities to assess, and issue determinations
with regard to, compliance with the standards.
``(3) Effective date.--This subsection takes effect on the
date that is 2 years after the date the guidelines under
subsection (h) are issued.''.
(b) Conforming Amendment.--The table of contents for the
Public Utility Regulatory Policies Act of 1978 is amended by
adding at the end of the items relating to title II the
following:

``Sec. 215. Electric consumer right to access electric energy
information.''.
______

By Mr. WYDEN:
S. 1033. A bill to amend the Reclamation Wastewater and Groundwater
Study and Facilities Act to authorize the Secretary of the Interior to
participate in the City of Hermiston, Oregon, water recycling and reuse
project, and for other purposes; to the Committee on Energy and Natural
Resources.
Mr. WYDEN. Mr. President, today I am reintroducing legislation to
authorize the Bureau of Reclamation to share in the cost of the
construction of a new wastewater treatment plant for Hermiston, Oregon.
The bill is identical to legislation which passed the House of
Representatives in the previous Congress, by voice vote, and which was
reported by the Senate Energy and Natural Resources Committee without
opposition last year.
The reason for involving the Bureau in this project is quite simple.
Once constructed, the plant will provide the Bureau-authorized West
Extension Irrigation District with enough additional high-quality water
per year to irrigate approximately 600 acres of high value crops. This
will have a significant, long-term benefit to the farming industry in
the Hermiston area.
The Hermiston project has gotten the sign off at every level from the
local irrigation district to Federal agencies. The City and the Bureau
have completed the required feasibility report and the Bureau of
Reclamation has formally concluded that the project meets the
requirements of the Title XVI cost-sharing program. The regional office
of the National Marine Fisheries Service at NOAA has completed a
biological opinion approving the project. The City and the West
Extension Irrigation District have signed a memorandum of understanding
to work together to develop the project. The Bureau has concluded its
environmental review of the authorization to transfer the water to the
District and issued a finding of no significant impact or FONSI.
Although the Bureau will be sharing in the cost of the project, I
want my colleagues to know that the City, not the Bureau, will be
responsible for the bulk of the expense. CBO has estimated that the
Federal share of the $26 million project would be $7 million or just
over one-quarter of the cost.
The Confederated Tribes of the Umatilla Indian Reservation have also
recognized the benefits of the project and support it. These benefits
include a significant improvement in the quality of water discharged to
the Umatilla River in winter and protection of sensitive fish habitat
during summer. These benefits have led the tribe to endorse
construction of the Hermiston Water Recycling System Improvement
Project and the City's effort to obtain federal funding.
This project will increase agricultural production while improving
the local economy, the environment and habitat for endangered fish. I
look forward to working with my colleagues to complete action on this
legislation after it had advanced so far in the last Congress.
______

By Mr. CARDIN (for himself and Mr. Vitter):
S. 1036. A bill to amend title 40, United States Code, to ensure that
job opportunities for people who are blind and people with significant
disabilities are met by requiring the application of the Javits-Wagner-
O'Day Act to certain lease agreements entered into by the Federal
Government for private buildings or improvements; to the Committee on
Environment and Public Works.
Mr. CARDIN. Mr. President, today Senator Vitter and I are introducing
legislation to ensure and protect the jobs of thousands of individuals
who are blind or have significant disabilities and provide important
services to the U.S. Government and taxpayers alike.
In 1938, during the Franklin Delano Roosevelt Administration,
Congress passed the Wagner-O'Day Act to help provide employment
opportunities for people who are blind. At the time, most of the work
the Wagner-O'Day Act created was in manufacturing mops and brooms that
would be sold for use in Federal Government buildings and facilities.
In 1971, under the leadership of New York Republican Senator Jacob
Javits, Congress amended the act to include people with significant
disabilities and expand the program to also include services provided
to the Federal Government.
The Javits-Wagner-O'Day Program eventually changed its name to
``AbilityOne.'' Today, this expanded work program for people who are
blind or have significant disabilities provides Federal customers,
including the U.S. Senate, with a wide array of products, like wall
mounted clocks, paint, military uniforms, hardware and cleaning
supplies. AbilityOne also helps put people to work in service
positions, like call center operations, grounds-keeping, food service,
administration and processing positions, and vehicle fleet maintenance.
People who are blind or have significant disabilities struggle
particularly hard to find work. While the current job climate is
challenging for all Americans, the employment rate for individuals in
this group hovers around 30 percent. Oftentimes these individuals must
rely on taxpayer funded government entitlement programs like Medicaid,
SNAPS--food stamps--supplemental security income, and subsidized
housing. AbilityOne helps these Americans find jobs and alleviates the
expenditures of these entitlement programs.
Recent independent studies of the AbilityOne Program found that in
just the four business lines analyzed, the AbilityOne Program saved the
Government $34 million in both reduction of

[[Page S3179]]

entitlements and increases in income and payroll taxes.
AbilityOne provides nearly 48,000 people who are blind or who have
significant disabilities with quality job opportunities, to earn a
living which provides a pathway towards increased independence.
There are nearly 600 nonprofit organizations across the country
working to find job opportunities for people who are blind or have
significant disabilities, through the AbilityOne program. With
Maryland's proximity to the seat of the Federal Government, AbilityOne
creates considerable job opportunities in the service sector for
Marylanders with disabilities.
However, there is a growing trend among Federal facilities that is
undoing the progress that the AbilityOne Program has made and in turn
is contributing to the growth of unemployment for Americans with
disabilities. The bill Senator Vitter and I are introducing today aims
to address this problem.
More and more Federal facilities are moving out of federally owned
and operated properties and into leased space in privately owned
buildings and facilities. The General Services Administration estimates
that the Federal Government leases more than 7,300 buildings in more
than 2,000 communities across the country. When GSA has sought lease
space in Maryland I have generally supported these moves.
Federally leased properties create terrific economic opportunities
for the business districts they come to. Federally leased properties
bring revenues for State and local governments, increase the tax base
of the regions they come to and often provide the backbone for small
business growth and consulting services around the federally leased
facilities.
The economic opportunities a Federal lease on private real estate
provides for a community are great for everyone except for service
workers with disabilities who are no longer helped by AbilityOne
because federally leased space falls outside the scope of the Javits-
Wagner-O'Day Act.
As the law is written, Javits-Wagner-O'Day only applies to federally
owned and operated facilities.
Our bill makes a simple and practical fix to the Javits-Wagner-O'Day
Act to apply the AbilityOne Program services to federally leased space.
My bill states that when the Federal Government occupies 60 percent or
more of the usable space within a private building or facility that the
Federal Government, the lessor, or property manager must comply with
the service contract procurement requirements of the Javits-Wagner-
O'Day Act.
The Javits-Wagner-O'Day Act, and the thousands of men and women who
have found employment opportunities through the AbilityOne Program,
have a proven track record of success in terms of providing exceptional
services and products for the Federal Government at rates that make for
very sound spending of taxpayer dollars.
Finding job opportunities has always been a challenge for individuals
who are blind or have significant disabilities. We must maintain the
Federal Government's commitment to these hard working Americans.
I urge my colleagues to join Senator Vitter and me in cosponsoring
the AbilityOne Improvements Act.
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. 1036

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 ``AbilityOne Improvements
Act''.

SEC. 2. APPLICABILITY OF JAVITS-WAGNER-O'DAY ACT.

Section 585(a) of title 40, United States Code, is amended
by adding at the end the following:
``(3) Applicability of javits-wagner-o'day act.--A lease
agreement for space under this section for the accommodation
of a federal agency as described in paragraph (1) that is
issued or renewed after the date of enactment of this
paragraph shall require the federal agency, lessor, or
property manager to comply with provisions of the Javits-
Wagner-O'Day Act (41 U.S.C. 46 et seq.) that are applicable
to federal buildings if--
``(A) the lease is for 60 percent or more of the useable
space on the property or improvement in which 1 or more
federal agencies are to be accommodated, as determined by the
Administrator; or
``(B) the federal agency to be accommodated under the lease
is, as of the date of the lease, required to contract
pursuant to that Act for services being transitioned to the
leased space.''.
______

By Mr. REID (for himself and Mr. McConnell):
S. 1038. A bill to extend the expiring provisions of the USA PATRIOT
Improvement and Reauthorization Act of 2005 and the Intelligence Reform
and Terrorism Prevention Act of 2004 until June 1, 2015, and for other
purposes; read twice.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 1038

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 ``PATRIOT Sunsets Extension
Act of 2011''.

SEC. 2. SUNSET EXTENSIONS.

(a) USA PATRIOT Improvement and Reauthorization Act of
2005.--Section 102(b)(1) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C.
1805 note, 50 U.S.C. 1861 note, and 50 U.S.C. 1862 note) is
amended by striking ``May 27, 2011'' and inserting ``June 1,
2015''.
(b) Intelligence Reform and Terrorism Prevention Act of
2004.--Section 6001(b)(1) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (Public Law 108-458; 50
U.S.C. 1801 note) is amended by striking ``May 27, 2011'' and
inserting ``June 1, 2015''.
______

By Mr. CARDIN (for himself, Mr. McCain, Ms. Ayotte, Mr. Begich,
Mr. Blumenthal, Mr. Durbin, Mr. Johanns, Mr. Kirk, Mr. Kyl, Mr.
Lieberman, Mr. Rubio, Mrs. Shaheen, Mr. Whitehouse, and Mr.
Wicker):
S. 1039. A bill to impose sanctions on persons responsible for the
detention, abuse, or death of Sergei Magnitsky, for the conspiracy to
defraud the Russian Federation of taxes on corporate profits through
fraudulent transactions and lawsuits against Hermitage, and for other
gross violations of human rights in the Russian Federation, and for
other purposes; to the Committee on Foreign Relations.
Mr. CARDIN. Mr. President, I rise today to introduce the Sergei
Magnitsky Rule of Law Accountability Act of 2011.
While this bill bears Sergei Magnitsky's name in honor of his
sacrifice, the language addresses the overall issue of the erosion of
the rule of law and human rights in Russia. It offers hope to those who
suffer in silence, whose cases may be less known or not known at all.
While there are many aspects of Sergei's and other tragic cases which
are difficult to pursue here in the United States, there are steps we
can take and an obvious and easy one is to deny the privilege of
visiting our country to individuals involved in gross violations of
human rights. Visas are privileges not rights and we must be willing to
see beyond the veil of sovereignty that kleptocrats often hide behind.
They do this by using courts, prosecutors, and police as instruments of
advanced corporate raiding and hope outsiders are given pause by their
official trappings of office and lack of criminal records. Further, we
must protect our strategic financial infrastructure from those who
would use it to launder or shelter ill-gotten gains.
Despite occasional rhetoric from the Kremlin, the Russian leadership
has failed to follow through with any meaningful action to stem rampant
corruption or bring the perpetrators of numerous and high-profile human
rights abuses to justice.
My legislation simply says if you commit gross violations of human
rights don't expect to visit Disneyland, Aspen, or South Beach and
expect your accounts to be frozen if you bank with us. This may not
seem like much, but in Russia the richer and more powerful you get the
more danger you are exposed to from others harboring designs on your
fortune and future.
Thus many are standing near the doors and we can certainly close at
least one of those doors. I know that others, especially in Europe and
Canada are working on similar sanctions.
I first learned about Sergei Magnitsky while he was still alive

[[Page S3180]]

when his client William Browder, CEO of Hermitage Capital, testified at
a hearing on Russia that I held as Chairman of the Commission on
Security and Cooperation in Europe in June 2009.
At the Helsinki Commission we hear so many heartbreaking stories of
the human cost of trampling fundamental freedoms and it's a challenge
not to give up hope and yield to the temptation of cynicism and become
hardened to the suffering around us or to reduce a personal tragedy to
yet another issue. While we use trends, numbers, and statistics to help
us understand and deal with human rights issues, we must never forget
the face of the individual person whose reality is the issue and the
story of Sergei Magnitsky is as unforgettable as it is heartbreaking.
Sergei Magnitsky was a young Russian tax lawyer employed by an
American law firm in Moscow who blew the whistle on the largest known
tax fraud in Russian history. After discovering this elaborate scheme,
Sergei Magnitsky testified to the authorities detailing the conspiracy
to defraud the Russian people of approximately $230 million and naming
the names of those officials involved. Shortly after his testimony,
Sergei was arrested by subordinates of the very law enforcement
officers he had implicated in this crime. He was held in detention for
nearly a year without trial under torturous conditions. He developed
severe medical complications, which went deliberately untreated and he
died in an isolation cell while prison doctors waited outside his door
on November 16, 2009.
Sadly, Sergei Magnitsky joins the ranks of a long list of Russian
heroes who lost their lives because they stood up for principle and for
truth. These ranks include Natalia Estemirova a brave human rights
activist shot in the head and chest and stuffed into the trunk of a
car, Anna Politkovskaya an intrepid reporter shot while coming home
with an arm full of groceries, and too many others.
Often in these killings there is a veil of plausible deniability,
gunmen show up in the dark and slip away into the shadows, but Sergei,
in inhuman conditions, managed to document in 450 complaints exactly
who bears responsibility for his false arrest and death. We must honor
his sacrifice and do all we can to learn from this tragedy that others
may not share his fate.
Few are made in the mold of Sergei Magnitsky, able to withstand
barbaric deprivations and cruelty without breaking and certainly none
of us would want to be put to the test. A man of such character is
fascinating and in some ways disquieting because we suspect deep down
that we might not have what it takes to stay loyal to the truth under
such pressure. Magnitsky's life and tragic death remind us all that
some things are more valuable than success, comfort, or even life
itself--truth is one of those things. May his example be a rebuke to
those whose greed or cowardice has blinded them to their duties, an
inspiration to still greater integrity for those laboring quietly in
the mundane yet necessary tasks of life, and a comfort to those wrongly
accused.
The Wall Street Journal described Sergei Magnitsky's death as a
``slow-motion assassination,'' while the Moscow Prison Oversight
Committee called it a ``murder to conceal a fraud.'' Pulitzer Prize-
winning reporter Ellen Barry writing in the New York Times stated that,
``Magnitsky's death in pretrial detention at the age of 37 . . . sent
shudders through Moscow's elite. They saw him--a post-Soviet young
urban professional, as someone uncomfortably like themselves.''
Outside the media, President of the European Parliament Jerzy Buzek
noted that ``Sergei Magnitsky was a brave man, who in his fight against
corruption was unjustifiably imprisoned under ruthless conditions and
then died in jail without receiving appropriate medical care.'' While
Transparency International observed that, ``Sergei did what to most
people seems impossible: he battled as a lone individual against the
power of an entire state. He believed in the rule of law and integrity,
and died for his belief.''
One might have thought that after the worldwide condemnation of
Sergei Magnitsky's arrest, torture, and death in the custody, the
Russian government would have identified and prosecuted those
responsible for this heinous crime. Instead, the government has not
prosecuted a single person and many of the key perpetrators went on to
receive promotions and the highest state honors from the Russian
Interior Ministry. Moreover, the officers involved feel such a sense of
impunity that they are now using all instruments of the Russian state
to pursue and punish Magnitsky's friends and colleagues who have been
publicly fighting for justice in his case.
They have forced the American founding partner of Magnitsky's firm,
Jamison Firestone, to flee Russia in fear for his safety in the months
following his colleague's death after learning that the same people
were attempting to take control of an American client's Russian
companies and commit a similar fraud. And they have used the same
criminal case that was used to falsely arrest Magnitsky to indict
Sergei's client Bill Browder. They have opened up retaliatory criminal
cases against many of Hermitage's employees and all of its lawyers, who
were forced to leave Russia to save their own lives. These attacks have
only intensified since my colleague and friend Congressman Jim McGovern
introduced the Justice for Sergei Magnitsky Act of 2011, a similar
measure in the House of Representatives, last month.
In the struggle for human rights we must never be indifferent. On
this point, I am reminded of Elie Wiesel's hauntingly eloquent speech,
The Perils of Indifference which he delivered at the White House in
1999. On this ever-present danger and demoralizer he cautions us,
``Indifference elicits no response. Indifference is not a response.
Indifference is not a beginning, it is an end. And, therefore,
indifference is always the friend of the enemy, for it benefits the
aggressor--never his victim, whose pain is magnified when he or she
feels forgotten. The political prisoner in his cell, the hungry
children, the homeless refugees--not to respond to their plight, not to
relieve their solitude by offering them a spark of hope is to exile
them from human memory. And in denying their humanity we betray our
own.''
Speaking of our humanity, I offer the following words as a contrast.
They are from Russian playwright Mikhail Ugarov who created One Hour
Eighteen, which is the exact amount of time it took for Sergei
Magnitsky to die in his isolation cell at Moscow's Matrosskaya Tishina
prison. Ugarov asks, ``When a person puts on the uniform of a public
prosecutor, the white lab coat of a doctor, or the black robe of a
judge, does he or she inevitably lose their humanity? Do they lose
their ability to--even in a small way--empathize with a fellow human
being? In the case of Sergei Magnitsky, each of the people who assumed
these professional duties in the case left their humanity behind.''
The coming year will be a significant moment in the evolution of
Russian politics. With Duma elections scheduled for the end of 2011 and
presidential elections for early 2012, there is an opportunity for the
Russian government to reverse what has been a steady trajectory away
from the rule of law and respect for human rights and toward
authoritarianism.
Private and even public expressions of concern are not a substitute
for a real policy nor are they enough, it's time for consequences. The
bill I introduce today sends a strong message to those who are
currently acting with impunity in Russia that there will be
consequences for corruption should you wish to travel to and invest in
the United States. Such actions will provide needed moral support for
those in Russia doing the really heavy-lifting in fighting corruption
and promoting the rule of law, but they will also protect our own
interests--values or business related.
We see before us a tale of two Russias, the double headed eagle if
you will. To whom does the future of Russia belong? Does it belong to
the Yevgenia Chirikovas, Alexey Navalnys, Oleg Orlovs and countless
other courageous, hard working, and patriotic Russians who expose
corruption and fight for human rights or those who inhabit the shadows
abusing and stealing from their fellow citizens?
Let us not put aside our humanity out of exaggerated and excessively
cautious diplomatic concerns for the broader relationship. Let us take
the long view and stand on the right side--

[[Page S3181]]

and I believe the wise side--with the Russian people who have suffered
so much for the cause of liberty and human dignity. They are the ones
who daily risk their safety and freedom to promote those basic
principles enshrined in Russian law and many international commitments
including the Helsinki Final Act. They are the conscience of Russia.
Let us tell them with one voice that they are not alone and that
concepts like the rule of law and human rights are not empty words for
this body and for our government. I urge my colleagues to support this
bill.
I ask unanimous consent that the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 1039

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 ``Sergei Magnitsky Rule of Law
Accountability Act of 2011''.

SEC. 2. FINDINGS.

Congress finds the following:
(1) The United States supports the people of the Russian
Federation in their efforts to realize their full economic
potential and to advance democracy, human rights, and the
rule of law.
(2) The Russian Federation--
(A) is a member of the United Nations, the Organization for
Security and Co-operation in Europe, the Council of Europe,
and the International Monetary Fund;
(B) has ratified the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, the
International Covenant on Civil and Political Rights, and the
United Nations Convention against Corruption; and
(C) is bound by the legal obligations set forth in the
European Convention on Human Rights.
(3) States voluntarily commit themselves to respect
obligations and responsibilities through the adoption of
international agreements and treaties, which must be observed
in good faith in order to maintain the stability of the
international order. Human rights are an integral part of
international law, and lie at the foundation of the
international order. The protection of human rights,
therefore, particularly in the case of a country that has
incurred obligations to protect human rights under an
international agreement to which it is a party, is not left
exclusively to the internal affairs of that country.
(4) Good governance and anti-corruption measures are
instrumental in the protection of human rights and in
achieving sustainable economic growth, which benefits both
the people of the Russian Federation and the international
community through the creation of open and transparent
markets.
(5) Systemic corruption erodes trust and confidence in
democratic institutions, the rule of law, and human rights
protections. This is the case when public officials are
allowed to abuse their authority with impunity for political
or financial gains in collusion with private entities.
(6) The Russian nongovernmental organization INDEM has
estimated that corruption amounts to hundreds of billions of
dollars a year, an increasing share of the gross domestic
product of the Russian Federation.
(7) The President of the Russian Federation, Dmitry
Medvedev, has addressed corruption in many public speeches,
including stating in his 2009 address to Russia's Federal
Assembly, ``[Z]ero tolerance of corruption should become part
of our national culture. . . . In Russia we often say that
there are few cases in which corrupt officials are
prosecuted. . . . [S]imply incarcerating a few will not
resolve the problem. But incarcerated they must be.''.
President Medvedev went on to say, ``We shall overcome
underdevelopment and corruption because we are a strong and
free people, and deserve a normal life in a modern,
prosperous democratic society.''. Furthermore, President
Medvedev has acknowledged Russia's disregard for the rule of
law and used the term ``legal nihilism'' to describe a
criminal justice system that continues to imprison innocent
people.
(8) The systematic abuse of Sergei Magnitsky, including his
repressive arrest and torture in custody by the same officers
of the Ministry of the Interior of the Russian Federation
that Mr. Magnitsky had implicated in the embezzlement of
funds from the Russian Treasury and the misappropriation of 3
companies from his client, Hermitage, reflects how deeply the
protection of human rights is affected by corruption.
(9) The politically motivated nature of the persecution of
Mr. Magnitsky is demonstrated by--
(A) the denial by all state bodies of the Russian
Federation of any justice or legal remedies to Mr. Magnitsky
during the nearly 12 full months he was kept without trial in
detention; and
(B) the impunity of state officials he testified against
for their involvement in corruption and the carrying out of
his repressive persecution since his death.
(10) Mr. Magnitsky died on November 16, 2009, at the age of
37, in Matrosskaya Tishina Prison in Moscow, Russia, and is
survived by a mother, a wife, and 2 sons.
(11) The Public Oversight Commission of the City of Moscow
for the Control of the Observance of Human Rights in Places
of Forced Detention, an organization empowered by Russian law
to independently monitor prison conditions, concluded, ``A
man who is kept in custody and is being detained is not
capable of using all the necessary means to protect either
his life or his health. This is a responsibility of a state
which holds him captive. Therefore, the case of Sergei
Magnitsky can be described as a breach of the right to life.
The members of the civic supervisory commission have reached
the conclusion that Magnitsky had been experiencing both
psychological and physical pressure in custody, and the
conditions in some of the wards of Butyrka can be justifiably
called torturous. The people responsible for this must be
punished.''.
(12) According to the Financial Times, ``A commission
appointed by President Dmitry Medvedev has found that Russian
police fabricated charges against an anti-corruption lawyer
[Sergei Magnitsky], whose death in prison in 2009 has come to
symbolise pervasive corruption in Russian law enforcement.''.
(13) The second trial and verdict against former Yukos
executives Mikhail Khodorkovsky and Platon Lebedev evokes
serious concerns about the right to a fair trial and the
independence of the judiciary in the Russian Federation. The
lack of credible charges, intimidation of witnesses,
violations of due process and procedural norms, falsification
or withholding of documents, denial of attorney-client
privilege, and illegal detention in the Yukos case are highly
troubling. The Council of Europe, Freedom House, and Amnesty
International, among others, have concluded that they were
charged and imprisoned in a process that did not follow the
rule of law and was politically influenced. Furthermore,
senior officials of the Government of the Russian Federation
have acknowledged that the arrest and imprisonment of
Khodorkovsky were politically motivated.
(14) According to Freedom House's 2011 report entitled
``The Perpetual Battle: Corruption in the Former Soviet Union
and the New EU Members'', ``[t]he highly publicized cases of
Sergei Magnitsky, a 37-year-old lawyer who died in pretrial
detention in November 2009 after exposing a multimillion-
dollar fraud against the Russian taxpayer, and Mikhail
Khodorkovsky, the jailed business magnate and regime critic
who was sentenced at the end of 2010 to remain in prison
through 2017, put an international spotlight on the Russian
state's contempt for the rule of law. . . . By silencing
influential and accomplished figures such as Khodorkovsky and
Magnitsky, the Russian authorities have made it abundantly
clear that anyone in Russia can be silenced.''.
(15) Sergei Magnitsky's experience, while particularly
illustrative of the negative effects of official corruption
on the rights of an individual citizen, appears to be
emblematic of a broader pattern of disregard for the numerous
domestic and international human rights commitments of the
Russian Federation and impunity for those who violate basic
human rights and freedoms.
(16) The tragic and unresolved murders of Nustap
Abdurakhmanov, Maksharip Aushev, Natalya Estemirova, Akhmed
Hadjimagomedov, Umar Israilov, Paul Klebnikov, Anna
Politkovskaya, Saihadji Saihadjiev, and Magomed Y. Yevloyev,
the death in custody of Vera Trifonova, the disappearances of
Mokhmadsalakh Masaev and Said-Saleh Ibragimov, the torture of
Ali Israilov and Islam Umarpashaev, the near-fatal beatings
of Mikhail Beketov, Oleg Kashin, Arkadiy Lander, and Mikhail
Vinyukov, and the harsh and ongoing imprisonment of Mikhail
Khodorkovsky, Alexei Kozlov, Platon Lebedev, and Fyodor
Mikheev further illustrate the grave danger of exposing the
wrongdoing of officials of the Government of the Russian
Federation, including Chechen leader Ramzan Kadyrov, or of
seeking to obtain, exercise, defend, or promote
internationally recognized human rights and freedoms.

SEC. 3. DEFINITIONS.

In this Act:
(1) Admitted; alien.--The terms ``admitted'' and ``alien''
have the meanings given those terms in section 101 of the
Immigration and Nationality Act (8 U.S.C. 1101).
(2) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Financial Services, the Committee on
Foreign Affairs, and the Committee on the Judiciary of the
House of Representatives; and
(B) the Committee on Banking, Housing, and Urban Affairs,
the Committee on Foreign Relations, and the Committee on the
Judiciary of the Senate.
(3) Financial institution; domestic financial agency;
domestic financial institution.--The terms ``financial
institution'', ``domestic financial agency'', and ``domestic
financial institution'' have the meanings given those terms
in section 5312 of title 31, United States Code.
(4) United states person.--The term ``United States
person'' means--
(A) a United States citizen or an alien lawfully admitted
for permanent residence to the United States; or
(B) an entity organized under the laws of the United States
or of any jurisdiction within the United States, including a
foreign branch of such an entity.

[[Page S3182]]

SEC. 4. IDENTIFICATION OF PERSONS RESPONSIBLE FOR THE
DETENTION, ABUSE, AND DEATH OF SERGEI
MAGNITSKY, THE CONSPIRACY TO DEFRAUD THE
RUSSIAN FEDERATION OF TAXES ON CERTAIN
CORPORATE PROFITS, AND OTHER GROSS VIOLATIONS
OF HUMAN RIGHTS.

(a) In General.--Not later than 90 days after the date of
the enactment of this Act, the Secretary of State, in
consultation with the Secretary of the Treasury, shall
publish a list of each person the Secretary of State has
reason to believe--
(1)(A) is responsible for the detention, abuse, or death of
Sergei Magnitsky;
(B) participated in efforts to conceal the legal liability
for the detention, abuse, or death of Sergei Magnitsky; or
(C) committed those frauds discovered by Sergei Magnitsky,
including conspiring to defraud the Russian Federation of
taxes on corporate profits through fraudulent transactions
and lawsuits against the foreign investment company known as
Hermitage and to misappropriate entities owned or controlled
by Hermitage; or
(2) is responsible for extrajudicial killings, torture, or
other gross violations of human rights committed against
individuals seeking--
(A) to expose illegal activity carried out by officials of
the Government of the Russian Federation; or
(B) to obtain, exercise, defend, or promote internationally
recognized human rights and freedoms, such as the freedoms of
religion, expression, association, and assembly and the
rights to a fair trial and democratic elections.
(b) Updates.--The Secretary of State shall update the list
required by subsection (a) as new information becomes
available.
(c) Notice.--The Secretary of State shall--
(1) to the extent practicable, provide notice and an
opportunity for a hearing to a person before the person is
added to the list required by subsection (a); and
(2) remove a person from the list if the person
demonstrates to the satisfaction of the Secretary that the
person did not engage in the activity for which the person
was added to the list.
(d) Requests by Members of Congress.--Not later than 30
days after receiving a written request from a Member of
Congress with respect to whether a person meets the criteria
for being added to the list required by subsection (a), the
Secretary of State shall inform that Member of the
determination of the Secretary with respect to whether or not
that person meets those criteria.

SEC. 5. INADMISSIBILITY OF CERTAIN ALIENS.

(a) Ineligibility for Visas.--An alien is ineligible to
receive a visa to enter the United States and ineligible to
be admitted to the United States if the alien is on the list
required by section 4(a).
(b) Current Visas Revoked.--The Secretary of State shall
revoke, in accordance with section 221(i) of the Immigration
and Nationality Act (8 U.S.C. 1201(i)), the visa or other
documentation of any alien who would be ineligible to receive
such a visa or documentation under subsection (a).
(c) Waiver for National Interests.--The Secretary of State
may waive the application of subsection (a) or (b) in the
case of an alien if the Secretary determines that such a
waiver is in the national interests of the United States.
Upon granting such a waiver, the Secretary shall provide to
the appropriate congressional committees notice of, and a
justification for, the waiver.

SEC. 6. FINANCIAL MEASURES.

(a) Special Measures.--Not later than 120 days after the
date of the enactment of this Act, the Secretary of the
Treasury shall investigate money laundering relating to the
conspiracy described in section 4(a)(1)(C). If the Secretary
of the Treasury makes a determination under section 5318A of
title 31, United States Code, with respect to such money
laundering, the Secretary of the Treasury shall instruct
domestic financial institutions and domestic financial
agencies to take 1 or more special measures described in
section 5318A(b) of such title.
(b) Freezing of Assets.--The Secretary of the Treasury
shall freeze and prohibit all transactions in all property
and interests in property of a person that are in the United
States, that come within the United States, or that are or
come within the possession or control of a United States
person if the person--
(1) is on the list required by section 4(a); or
(2) acts as an agent of or on behalf of a person on that
list in a matter relating to the activity for which the
person was added to that list.
(c) Waiver for National Interests.--The Secretary of the
Treasury may waive the application of subsection (a) or (b)
if the Secretary determines that such a waiver is in the
national interests of the United States. Upon granting such a
waiver, the Secretary shall provide to the appropriate
congressional committees notice of, and a justification for,
the waiver.
(d) Enforcement.--
(1) Penalties.--A person that violates, attempts to
violate, conspires to violate, or causes a violation of this
section or any regulation, license, or order issued to carry
out this section shall be subject to the penalties set forth
in subsections (b) and (c) of section 206 of the
International Emergency Economic Powers Act (50 U.S.C. 1705)
to the same extent as a person that commits an unlawful act
described in subsection (a) of such section.
(2) Requirements for financial institutions.--
(A) In general.--Not later than 120 days after the date of
the enactment of this Act, the Secretary of the Treasury
shall prescribe regulations to require each financial
institution that is a United States person--
(i) to perform an audit of the assets within the possession
or control of the financial institution to determine whether
any of such assets are required to be frozen pursuant to
subsection (b); and
(ii) to submit to the Secretary--

(I) a report containing the results of the audit; and
(II) a certification that, to the best of the knowledge of
the financial institution, the financial institution has
frozen all assets within the possession or control of the
financial institution that are required to be frozen pursuant
to subsection (b).

(B) Penalties.--The penalties provided for in sections
5321(a) and 5322 of title 31, United States Code, shall apply
to a financial institution that violates a regulation
prescribed under subparagraph (A) in the same manner and to
the same extent as such penalties would apply to any person
that is otherwise subject to such section 5321(a) or 5322.
(e) Regulatory Authority.--The Secretary of the Treasury
shall issue such regulations, licenses, and orders as are
necessary to carry out this section.

SEC. 7. REPORT TO CONGRESS.

Not later than 180 days after the date of the enactment of
this Act, and annually thereafter, the Secretary of State and
the Secretary of the Treasury shall submit to the appropriate
congressional committees a report on--
(1) the actions taken to carry out this Act, including--
(A) the number of times and the circumstances in which
persons described in section 4(a) have been added to the list
required by that section during the year preceding the
report; and
(B) if few or no such persons have been added to that list
during that year, the reasons for not adding more such
persons to the list; and
(2) efforts to encourage the governments of other countries
to impose sanctions that are similar to the sanctions imposed
under this Act.
______

By Mr. LIEBERMAN (for himself and Mr. McCain):
S. 1040. A bill to enhance public safety by making more spectrum
available to public safety entities, to facilitate the development of a
public safety broadband network, to provide standards for the spectrum
needs of public safety entities, and for other purposes; to the
Committee on Commerce, Science, and Transportation.
Mr. LIEBERMAN. Mr. President, I rise today, with my colleague Senator
McCain, to introduce legislation to ensure that we take advantage of a
once-in-a-lifetime opportunity to build a coast-to-coast communications
network for our Nation's first responders that is secure, interoperable
and resilient.
As it stands now, the mobile device the average teenager carries has
more capability than those of the men and women who put their lives on
the line for us each and every day and that is just wrong.
Today, we introduce the Broadband for First Responders Act of 2011,
which will set aside the so-called D Block of spectrum for public
safety entities and provide them the bandwidth they need to communicate
effectively in an emergency. Companion legislation has been introduced
in the House of Representatives by Representatives Peter T. King and
Bennie G. Thompson, the Chairman and Ranking Member of the House
Committee on Homeland Security.
I am proud to stand with the representatives of more than 40
organizations representing public safety officials, and with the ``Big
7'' associations representing State and local governments, to call on
Congress to put the D Block in the hands of public safety. Those groups
include the International Association of Chiefs of Police, the
International Association of Fire Chiefs, the National Sheriffs
Association, the Major Cities Chiefs Association, the Major County
Sheriffs Association, the Metropolitan Fire Chiefs Association, the
Association of Public-Safety Communications Officials--International,
APCO International, the National Emergency Management Association, the
National Association of State EMS Officials, the National Governors
Association, the National Conference of State Legislatures, the Council
of State Governments, the National Association of Counties, the
National League of Cities, the U.S. Conference of Mayors, and the
International City/County Management Association.
I am pleased that President Obama has pledged his commitment to
reserve

[[Page S3183]]

the D Block for public safety. I also look forward to working with
Senator Rockefeller, the Chairman of the Committee on Commerce,
Science, and Transportation, who has championed this cause and has
signaled his determination to see a bill move through Congress this
year.
Today, public safety communicates on slices of scattered spectrum
that prevent interoperable communications among agencies and
jurisdictions, and that do not allow the large data transmissions that
we take for granted in today's commercial communications.
Securing the D Block for public safety will allow us to build a
nationwide interoperable network for emergency communications that
could prevent the kinds of communication meltdowns we had during 9-11
and Hurricane Katrina.
But setting aside the D Block will also allow first responders to
send video, maps, and other large data transmissions over their mobile
devices. For example, firefighters' lives may be saved because they
will be able to access building specifications on their handhelds and
know all the exits of a burning building before they enter it. A police
officer at the scene of a crime would be able to feed video back to
headquarters. Emergency response officials would be able to exchange
data with hospitals while treating patients at the scene of an
accident.
I do not think it is wise, as the Federal Communications Commission,
FCC, proposed in its National Broadband Plan, to auction the D Block to
commercial interests and then to hope that public safety will be able
to piggy-back on it. In a crisis, first responders need secure,
reliable and quick communications that are not disrupted by commercial
traffic.
The Broadband for First Responders Act of 2011 would ensure that the
D Block is licensed to the same public safety broadband licensee that
currently holds the license for 10 MHz in the 700 MHz band. The bill
would also provide up to $5.5 billion for a construction fund to assist
with the costs of constructing the network and up to $5.5 billion for
an operation and maintenance fund for long-term maintenance. These
funds would come from revenues generated by the auction of different
bands of spectrum to commercial carriers. By dedicating those auction
revenues to the public safety network, we can help public safety
officials build the system they need without adding to the deficit.
Under our bill, the FCC would set rules for the public safety
network, ensuring interoperability across the nationwide system. The
rules would also allow public safety to share spectrum with other
governmental and private entities, as long as public safety services
retain priority access to the spectrum. This authority would help hold
down costs of the system by allowing public safety to leverage existing
infrastructure.
The grants to build and maintain the public safety network would be
administered by the Department of Homeland Security and would be
awarded directly to States and municipalities, who are in the best
position to know how to deploy the network in their jurisdictions.
Achieving nationwide interoperability through adequate spectrum is a
major recommendation of the 9/11 Commission that is unfulfilled. We
should not let the 10th anniversary of 9/11 pass without legislating to
remedy that failure. The Chairman and Vice-Chairman of the Commission,
the Honorable Thomas H. Kean and the Honorable Lee H. Hamilton,
appeared before our Committee on Homeland Security and Governmental
Affairs in March and urged the immediate allocation of the D Block to
public safety, bluntly, and rightfully, delivering a message to
Congress that further delay is intolerable. I urge my colleagues to
take bold action to remedy Congress's past inaction by promptly passing
the Broadband for First Responders Act of 2011.
Mr. McCAIN. Mr, President, today I share the honor with Chairman
Lieberman of introducing the First Responders Protection Act of 2011.
This bill would provide 10 MHz of spectrum in the 700 MHz spectrum band
to the public safety broadband licensee, make available funding for the
construction, operation and maintenance of a nationwide interoperable
communications network, and ensure proper governance.
In 2004, the 9/11 Commission's Final Report recommended the
``expedited and increased assignment of radio spectrum to public safety
entities.'' Shortly thereafter, Senator Lieberman and I introduced a
bill to provide spectrum to public safety; however the Senate voted
down that bill. We reintroduced the bill in 2005, month before
Hurricane Katrina hit the Gulf Coast. But our efforts were blocked.
Fortunately, Congress finally wrestled some spectrum away from the
television broadcasters in 2009 and provided it to public safety.
However, public safety has additional spectrum needs.
Almost every other recommendation of the 9/11 Commission has been
implemented, but this important recommendation remains unfulfilled. I
can only imagine how many lives could have been saved on 9/11 if this
spectrum had been available at that time. How many firefighters would
be alive today if they could have communicated with their battalion
chief at the base of the World Trade Center?
In 2007, I introduced legislation to auction the remaining public
safety spectrum to a commercial carrier that would then build out a
network for public safety. The FCC held such an auction, but no bidder
met the reserve price. Ten megahertz of spectrum remains available for
public safety's needs. The FCC had announced its intention to auction
this spectrum to a commercial provider. Thankfully, the White House
announced late last year that it now supports the spectrum being
provided to first responders for the construction of a nationwide
public safety network, as did the Chairman and Ranking Member of the
Senate Commerce Committee.
Specifically, this legislation would license the remaining spectrum
to the public safety broadband licensee that has been previously
approved by the FCC as a qualified licensee and represents more than
three dozen national public safety organizations. The legislation
provides authority to local jurisdictions to make decisions on the
spectrum use, network build-out and equipment. The men and women
fighting crime and saving lives know what communications systems and
technology are best for them. Not Washington.
Lastly, this bill provides funds for grants to localities for the
construction, operation and maintenance of an interoperable
communications network. These funds will come from the proceeds of a
commercial spectrum auction, thereby not adding to our Nation's
burgeoning debt or raising taxes on all Americans.
As we approach the 10 year commemoration of the horrific events on
September 11th and the six year remembrance of the devastating tragedy
of Hurricane Katrina, it is a disgrace that police officers, sheriffs
and fire fighters still don't have a nation-wide interoperable
communications system. Our legislation provides the spectrum and
funding to first responders, while being fiscally responsible and
ensuring local control and conscientious governance.
Providing ten megahertz of spectrum to public safety, as this bill
does, is supported by the International Association of Chiefs of
Police, the International Association of Fire Chiefs, the National
Sheriffs Association, the Major Cities Chiefs Association, the Major
County Sheriffs Association, the Metropolitan Fire Chiefs Association,
the Association of Public-Safety Communications Officials,
International, APCO, the National Emergency Managers Association, the
National Governors Association, the National Conference of State
Legislatures, the Council of State Governments, the National
Association of Counties, the National League of Cities, the U.S.
Conference of Mayors, and the International City/County Management
Association.
We have slightly more than one hundred days until the ten year
anniversary of the horrific events of 9/11. I hope over the next 100
days the Senate Majority Leader will consider bringing this bill to the
floor for full consideration and that at that time my colleagues will
join me and Senator Lieberman in providing public safety with the
interoperable communications network they deserve. It is the least we
can do for those who put their lives in danger each and every day to
protect all of us.

[[Page S3184]]

____________________