Congressional Record, Volume 157 Issue 85 (Tuesday, June 14, 2011)

[Congressional Record Volume 157, Number 85 (Tuesday, June 14, 2011)]
[Senate]
[Pages S3773-S3784]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. BROWN of Ohio:
S. 1188. A bill to require the purchase of domestically made flags of
the United States of America for use by the Federal Government; to the
Committee on Homeland Security and Governmental Affairs.
Mr. BROWN of Ohio. Mr. President, I rise today to introduce the All-
American Made Flag Act, on this 234th celebration of Flag Day in our
Nation, On June 14, 1777, the Second Continental Congress first adopted
a flag for our new country, bestowing a meaning to the stars and
stripes of our founding commitment to freedom and democracy.
Our flag inspires servicemembers in times of war; it looks over state
capitals and schools, stadiums and veterans halls as a reminder of the
price of our peace and security. It stood through the smoke in Pearl
Harbor on December 7, 1941, and the rubble in New York City and
Washington D.C. on September 11, 2001. The flag instills hope of a
better life for generations of immigrants, embodying an aspiration of
free people around the world. Americans pledge allegiance to the flag,
reminding us about our Nation's history, and the system of checks and
balances and separation of powers that tenders the balance of our laws
and freedoms.
The flag that inspired our national anthem rests in the Smithsonian's
National Museum of American History. Smaller, hand-held flags are
waived during Fourth of July Parades and on Memorial Day are placed
alongside headstones. But whether in museums or in parades or upon
memorials, the American flag reaffirms the power and meaning first
ascribed to it by our founders.
And what better way to celebrate its meaning, our Nation's history
and virtue, than to ensure it is stamped with the Made-in-America
label. On this day, I introduce the All-American Made Flag Act, which
would require that American flags purchased by the Federal Government
are entirely made in America.
Across the nation, and especially in Ohio, manufacturers and
businesses have been making and selling American flags for generations.
In Coschocton, Ohio, the nation's oldest and largest producer of
American flags has been doing so since 1851. From the first World's
Fair in New York City, through the Civil War and World War II, and into
the universe and onto the moon these flags, made in Coschocton, have
played a role in our nation's history. Today, on Flag Day, it joins
other businesses that sell All-American made American flags, from
Cincinnati to Dayton to Columbus to Cleveland.
Few things can give better meaning to the Made-in-America label than
our own flag. The All-American Made Flag Act would provide that
meaning, and in doing so, would invest in America's workers and
manufacturers who embody the ingenuity and patriotism embodied in the
very flag itself.
______

By Mr. BEGICH:
S. 1192. A bill to supplement State jurisdiction in Alaska Native
villages with Federal and tribal resources to improve the quality of
life in rural Alaska while reducing domestic violence against Native
women and children and to reduce alcohol and drug abuse and for other
purposes; to the Committee on Indian Affairs.
Mr. BEGICH. Mr. President, today I introduce legislation to address
issues of great concern to me and to all who care about public safety
in Alaska Native villages.
Last year President Obama signed the Tribal Law and Order bill into
law. That legislation passed because Congress recognized the great need
to provide more support for the criminal justice system and communities
in Indian Country. While this law has some important provisions that
will benefit Alaska Native communities, I believe the remoteness and
other unique conditions in many Native villages in my State compel us
to do more. That is why I am introducing the Alaska Safe Families and
Villages Act of 2011.
My bill will establish a demonstration project allowing Alaska Native
tribes to set up tribal courts, establish tribal ordinances, and impose
sanctions on those people who violate the ordinances. It would enhance
current tribal

[[Page S3774]]

authority, while maintaining the State's primary role and
responsibility in criminal matters. Additionally, those communities
selected to be part of the demonstration project would be eligible for
an Alaska Village Peace Officer grant, enabling a Peace Officer to
serve participating communities in a holistic manner.
Due to the vastness of Alaska, too many of our small remote villages
lack any law enforcement. Too often, minor cases involving alcohol and
domestic abuse go unreported because the nearest State Trooper resides
in a distant hub community, located a long and expensive airplane ride
away. Frequently, harsh weather prevents the Troopers from flying into
a community even when the most heinous acts have occurred.
Approximately 71 villages have a sole, unarmed Village Patrol Safety
Officer, VPSO, who must be on duty 24 hours a day and 7 days a week.
Compounding the challenges of a small number of local law enforcement,
these few hard-working VPSOs are often underpaid. While communities try
to provide some housing and heating assistance, in places where fuel
oil can cost as much as $10 a gallon, it can be difficult to retain
qualified VPSOs and also sustain the funding for these public servants.
As one who believes whole-heartedly in community involvement, I
strongly believe tribes in Alaska should benefit from true self-
determination and have a role in their law enforcement needs. This
local control not only provides security for communities, but also
encourages local acceptance of the established or existing judicial
system as a whole. With the changes in place that my bill would
require, residents of Alaska Native villages will see a culturally-
relevant system replacing a crisis-management system that is set in
place after a tragedy has occurred.
Unfortunately, Alaska Native communities have grown all too familiar
with alarming suicide rates. In the Yukon-Kuskokwim Delta, over a two-
month period during the summer of 2010, there were at least nine self-
inflicted deaths in several of the region's villages. Nick Tucker, an
elder in the village of Emmonak, wrote a letter to the State of
Alaska's rural affairs advisor to try to bring attention to the issue.
Part of Mr. Tucker's letter begged for the Governor to call the
Legislature into session to address the issue. He also said it is no
longer acceptable for village residents to wait for State Troopers
because ``in the villages, they take forever.''
Part of the disturbing cycle of suicide in rural Alaska can be
attributed to the presence of drugs and alcohol. Despite the knowledge
that an individual can speak with an elder and learn who is bootlegging
alcohol or selling drugs, predators do not fear law enforcement
intervention because there is no consistent police or State Trooper
presence.
Further, despite many Alaska Native communities' wealth of cultural
heritage and tradition, many suffer from economic, cultural, and
educational depression. Villages often experience high unemployment
rates, above 20 percent, due to their remoteness and lack of economic
opportunity. Most economic development in Alaska is centered in either
the metropolitan areas, or in very remote areas where local residents
are able to develop local resources. This economic depression, coupled
with the 10,000-year practice of subsistence, means Alaska Natives'
physical and spiritual survival remains highly dependent on the land.
They subsist on game, berries, and fish. However, as hunting and
fishing stocks dwindle, many of these Alaskans are feeling disconnected
from their heritage and, at times, have turned to drugs and alcohol.
Though educational attainment in the last 40 years has increased
dramatically, the dropout rate in Alaska still hovers at 40 percent.
Too many of our young men and women have lost hope and are losing a
sense of community.
We must give our Nation's communities the tools necessary to protect
themselves. Too often, we pour resources into urban areas, but decry
lack of resources when we try to work toward innovative solutions for
our most remote communities. We should no longer allow the answer from
anyone to be ``we don't have the resources.'' Alaska Native villages
are vibrant, strong communities and we should do everything in our
power to answer their calls for help. I am hoping the Alaska Safe
Families and Villages Act of 2011 will be just one piece of the puzzle.
I encourage my colleagues to join me on this legislation, and ask for
the full Senate to consider and pass it--providing much-needed help and
resources to some of our country's neediest places.
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. 1192

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 ``Alaska Safe Families and
Villages Act of 2011''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress finds that--
(1) while the State of Alaska and numerous Alaska
organizations have struggled for years to address crime and
substance abuse problems in Alaska, Native Villages continue
to suffer from disproportionally high rates of illicit drug
use, alcohol abuse, suicide, and domestic violence;
(2) the suicide rate in Alaska Native villages is 6 times
the national average, and the alcohol-related mortality rate
is 3.5 times that of the general national population;
(3) Alaska Native women suffer the highest rate of forcible
sexual assault in the United States, and an Alaska Native
woman is sexually assaulted every 18 hours;
(4) according to the 2006 Initial Report and
Recommendations of the Alaska Rural Justice and Law
Enforcement Commission more than 95 percent of all crimes
committed in rural Alaska can be attributed to alcohol;
(5) the cost of drug and alcohol abuse in Alaska is
estimated at $525,000,000 per year;
(6) the State of Alaska's public safety system does not
effectively serve vast areas of the State in which many
remote Alaska Native villages are located, except in response
to serious crimes involving severe injury or death, which are
handled by Alaska State Troopers who are located in only a
small number of hub communities around the State;
(7) extreme weather conditions often prevent or delay
travel into remote Alaska Native villages, forcing residents
to wait for several days for an Alaska State Trooper to
arrive and respond to these crimes, compared to a law
enforcement response time normally within minutes for
residents of urban communities;
(8) in many rural Alaska Native villages, there is no local
law enforcement presence whatsoever;
(9) to the extent there are resident law enforcement
officers in rural villages, they consist of Village Public
Safety Officers (VPSOs) through the State VPSO Program, and a
very limited number of other peace officers such as Village
Police Officers (VPOs), Tribal Police Officers (TPOs) and
Community Peace Officers (CPOs) who tend to have only minimal
training and experience;
(10) the VPSO Program is not able to adequately serve all
remote Alaska Native villages because there is insufficient
funding or officers to address the urgent need for additional
law enforcement in these communities;
(11) the number of VPSOs currently serving in Alaska is
approximately 71, yet there are about 200 remote villages in
Alaska, all of which could benefit from a law enforcement
presence;
(12) studies have concluded that the lack of effective law
enforcement in Alaska Native villages contributes
significantly to increased crime, alcohol abuse, drug abuse,
domestic violence, and rates of suicide, poor educational
achievement, and a lack of economic development in those
communities;
(13) law enforcement that is created and administered by
Indian tribes in Alaska will be more responsive to the need
for greater local control, local responsibility, and local
accountability in the administration of justice; and
(14) it is necessary to invoke the plenary authority of
Congress over Indian affairs under section 8 of clause 3 of
Article I of the Constitution, in order to improve law
enforcement conditions in Alaska Native villages.
(b) Purposes.--The purposes of this Act are--
(1) to establish a demonstration project under which a
limited number of Indian tribes in Alaska Native villages
will exercise local law enforcement responsibilities to
combat alcohol and drug abuse and to enhance existing tribal
authority over domestic violence and child abuse and neglect;
(2) to enhance coordination and communication among
Federal, State, tribal, and local law enforcement agencies;
and
(3) to increase funding for, and therefore availability of,
local law enforcement.

SEC. 3. DEFINITIONS.

In this Act:
(1) Indian tribe.--The term ``Indian tribe'' means any
Indian tribe, band, nation, or other organized group or
community of Indians recognized as eligible for the services
provided to Indians by the Secretary because of their status
as Indians, including any Alaska Native village as defined in
section

[[Page S3775]]

3(c) of the Alaska Native Claims Settlement Act (43 U.S.C.
1602(c)).
(2) Project.--The term ``Project'' means the Alaska Safe
Families and Villages Demonstration Project established by
section 4(a).
(3) Project area.--The term ``Project Area'' means the
geographical area within which an Indian tribe proposes to
enforce the laws of the Indian tribe developed under the
Project, as determined by the tribal government of the
applicable Indian tribe and as approved by the Office of
Justice Programs upon a showing that the extension of
jurisdiction to such area is in the interest of justice.
(4) Tribal court.--The term ``tribal court'' means any
court, council, or other mechanism sanctioned by an Indian
tribe for the adjudication of disputes, including the
violation of tribal laws, ordinances, or regulations.
(5) Tribal organization.--The term ``tribal organization''
has the meaning given the term in section 4 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450b).

SEC. 4. ALASKA SAFE FAMILIES AND VILLAGES DEMONSTRATION
PROJECT.

(a) Establishment of Project.--The Office of Justice
Programs of the Department of Justice shall carry out the
Alaska Safe Families and Villages Demonstration Project as
provided by this section.
(b) Number of Tribes.--The Office of Justice Programs shall
select not more than 9 Indian tribes in Alaska to participate
in the Project in Alaska over a 3-year period, with not more
than 3 Indian tribes selected during each of fiscal years
2012, 2013, and 2014.
(c) Duration of Project.--Each Indian tribe selected to
participate in the Project shall remain in the Project for a
period of 5 years.
(d) Annual Report.--
(1) In general.--On or before May 1 of each year, the
Attorney General shall provide to the Committee on Indian
Affairs of the Senate and the Committee on Natural Resources
of the House of Representatives a brief annual report
detailing activities undertaken under the Project and setting
forth an assessment of the Project, together with any
recommendations of the Attorney General for further action by
Congress.
(2) Requirements.--Each report submitted under this
subsection shall be prepared--
(A) in consultation with the governments of Indian tribes
in Alaska; and
(B) after those governments and the State of Alaska have an
opportunity to comment on each report prior to the
finalization of the report.
(e) Applications.--
(1) Criteria.--To qualify to participate in the Project, an
Indian tribe in Alaska shall--
(A) request participation by resolution or other official
action by the governing body of the Indian tribe;
(B) have for the preceding 3 fiscal years no uncorrected
significant and material audit exceptions regarding any
Federal contracts or grants;
(C) demonstrate to the Attorney General sufficient
governance capacity to conduct the Project, as evidenced by
the history of the Indian tribe in operating government
services, including public utilities, children's courts, law
enforcement, social service programs, or other activities;
(D) demonstrate the ability to sustain the goals and
purposes of the Project after funding for the Project has
expired; and
(E) meet such other criteria as the Attorney General may
promulgate, after providing for public notice.
(2) Copy to the alaska ag.--Each Indian tribe shall send a
copy of its application submitted under this section to the
Attorney General of Alaska.
(f) Tribal Reporting.--The Attorney General may by
regulation promulgate such minimum reporting requirements as
the Attorney General determines are reasonably necessary to
carry out this Act.
(g) Public Comment.--All applications submitted pursuant to
subsection (e) shall be subject to public comment for a
period of not less than 30 days following publication of
notice in a newspaper or other publication of general
circulation in the vicinity of the Alaska Native village of
the Indian tribe requesting participation in the Project.
(h) Planning Phase.--Each Indian tribe selected for
participation in the Project shall complete a planning phase
that includes--
(1) internal governmental and organizational planning;
(2) the development of written tribal law or ordinances
detailing the structure and procedures of the tribal court;
(3) enforcement mechanisms; and
(4) those aspects of drug or alcohol related matters that
the Indian tribe proposes to regulate.
(i) Certification.--
(1) In general.--Upon completion of the planning phase
under subsection (h), an Indian tribe shall provide to the
Office of Tribal Justice--
(A) the constitution of the Indian tribe (or equivalent
organic documents showing the structure of the tribal
government and the placement and authority of the tribal
court within that structure);
(B) the written tribal laws or ordinances of the Indian
tribe governing court procedures and the regulation and
enforcement of drugs, alcohol, and related matters;
(C) a map depicting the Project Area of the Indian tribe;
and
(D) such other information or materials as the Attorney
General may by public notice require.
(2) Certification.--The Office of Tribal Justice shall
certify the completion of the planning phase under this
section.
(3) Timing.--Certification under paragraph (2) may occur at
the time at which an Indian tribe applies for participation
in the Project if the Indian tribe demonstrates that the
Indian tribe has already met the requirements of the planning
phase.
(j) Effect of Certification.--
(1) In general.--Commencing 30 days after the certification
described in subsection (i) and except as provided in
paragraph (2), an Indian tribe participating in the Project
shall exercise jurisdiction, concurrent with the civil
jurisdiction of the State of Alaska under State law, over--
(A) the drug, alcohol, or related matters described in
subsection (i) within the Project Area of the Indian tribe;
and
(B) persons of Indian or Alaska Native descent or other
persons with consensual relationships with the Indian tribe
or a member of the Indian tribe.
(2) Sanctions.--An Indian tribe participating in the
Project shall impose such sanctions as shall be determined by
the tribal court to be appropriate, consistent with the
Indian Civil Rights Act and tribal law, including such
measures as--
(A) restorative justice;
(B) community service;
(C) fines;
(D) forfeitures;
(E) commitments for treatment;
(F) restraining orders; and
(G) emergency detentions.
(3) Agreement required.--A person may not be incarcerated
by an Indian tribe participating in the Project except
pursuant to an agreement entered into under section 7.
(4) Treatment of protective orders.--For purposes of this
subsection, the protective order of an Indian tribe
participating in the Project excluding any member or non-
member from a community shall be considered a civil remedy.
(5) Emergency circumstances.--Nothing in this subsection
shall prevent an Indian tribe participating in the Project
from acting in the following emergency circumstances:
(A) A tribe may assume protective custody of a tribal
member or otherwise take action to prevent imminent harm to
self or others.
(B) A tribe may take immediate, temporary protective
measures to address situations involving an imminent threat
of harm to self or others by a non-member.
(k) Effect of Act.--Nothing in this Act--
(1) limits, alters, or diminishes the civil or criminal
jurisdiction of the State of Alaska, or any subdivision of
that State, the United States, or any Indian tribe in Alaska,
including existing inherent and statutory authority of the
tribes over child protection, child custody, and domestic
violence;
(2) confirms or denies that any area of Alaska does or does
not constitute Indian country;
(3) diminishes the trust responsibility of the United
States to Indian tribes in Alaska, or abridges or diminishes
the sovereign immunity of any Indian tribe in Alaska;
(4) alters the jurisdiction of the Metlakatla Indian
Community within the Annette Islands Reservation;
(5) limits in any manner the eligibility of the State of
Alaska, any political subdivision of the State, or any Indian
tribe in Alaska, for any other Federal assistance under any
other law; or
(6) shall be construed to alter the tribes' existing
jurisdictional authority over domestic violence under the
Violence Against Women Act.
(l) Liability of State of Alaska.--The State of Alaska and
any political subdivision of the State shall not be liable
for any act or omission of an Indian tribe participating in
the Project, including acts or omissions undertaken pursuant
to an intergovernmental agreement entered into under section
7.
(m) Contracts.--
(1) In general.--Each Indian tribe participating in the
Project shall be eligible for a contract from the Office of
Justice Programs, in an amount not to exceed $250,000 per
year, for use in defraying costs associated with the Project,
including costs relating to--
(A) tribal court operations and personnel;
(B) utility and maintenance;
(C) overhead;
(D) equipment; and
(E) continuing education (including travel).
(2) Requirements.--The contracts made available under this
subsection shall be--
(A) in addition to such grants as may be available under
this Act or other provisions of law; and
(B) awarded as contracts in a form authorized by the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450 et seq.).
(3) Tribal organizations.--A tribal organization may enter
into contracts on behalf of an Indian tribe participating in
the Project upon express written delegation of authority of
the Indian tribe to the tribal organization.
(n) Regulations.--The Attorney General may promulgate such
regulations as the Attorney General determines to be
necessary to carry out this section.
(o) Full Faith and Credit.--

[[Page S3776]]

(1) In general.--Each State shall give full faith and
credit to all official acts and decrees of the tribal court
of an Indian tribe participating in the Project to the same
extent and in the same manner as such State accords full
faith and credit to the official acts and decrees of other
States.
(2) Other law.--Nothing in this subsection impairs the duty
of a State to give full faith and credit under any other law.
(p) Federal Jurisdiction.--
(1) In general.--Subject to paragraph (2), Project Areas
and Indian tribes participating in the Project shall be
eligible for the same law enforcement programs of the Bureau
of Indian Affairs and the Office of Justice Programs, as are
applicable to those areas under section 401 of Public Law 90-
284 (25 U.S.C. 1321).
(2) Applicability in alaska.--Nothing in this Act limits
the application in Alaska of any provision of title II of
Public Law 111-211.
(q) Authorization of Appropriations.--There is authorized
to be appropriated to carry out subsection (m) $2,500,000 for
each of fiscal years 2012 through 2018.

SEC. 5. ALASKA VILLAGE PEACE OFFICERS.

(a) Establishment of Alaska Village Peace Officer Grants
Program.--The Office of Justice Services of the Department of
the Interior shall carry out a contract program for the
employment by Indian tribes of Village Peace Officers in
Alaska Native villages as provided in this section.
(b) Application Criteria.--
(1) In general.--To qualify for a contract under this
section, an applicant shall--
(A) be an Indian tribe in Alaska that participated in a
Project;
(B) demonstrate the lack of other resident law enforcement
in the applicable Alaska Native village; and
(C) satisfy such other criteria as may be established by
notice by the Office of Justice Services.
(2) Limitation.--Each contract awarded under this section
shall be in an amount not to exceed $100,000 for the salary
and related costs of employing and equipping 1 Village Peace
Officer, except that the Office of Justice Services shall be
authorized to waive the 1-officer limitation upon a showing
of compelling circumstances.
(c) Contracts.--At the request of an applicant Indian
tribe, the Office of Justice Services shall disburse funds
awarded under this section through modifications to existing
self-determination contracts or self-governance compacts
authorized under the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.), or by contract to a
political subdivision of the State of Alaska pursuant to an
agreement, if any, under section 7.
(d) Eligibility for BIA Training.--Village peace officers
hired pursuant to this section shall be eligible to attend
the Bureau of Indian Affairs Police Officer Training Program.
(e) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $5,000,000 for
each of fiscal years 2012 through 2018.

SEC. 6. TECHNICAL ASSISTANCE.

(a) In General.--The Attorney General may enter into 18-
month contracts with tribal organizations in Alaska to
provide training and technical assistance on tribal court
development to any Indian tribes in Alaska.
(b) Cooperation.--Tribal organizations may cooperate with
other entities for the provision of services under contracts
described in subsection (a).
(c) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $2,000,000.

SEC. 7. INTERGOVERNMENTAL AGREEMENTS.

(a) In General.--The State of Alaska, political
subdivisions of that State, Indian tribes in Alaska, and the
United States are each authorized and encouraged to enter
into intergovernmental agreements, including agreements
concerning--
(1) the employment of law enforcement officers, probation,
and parole officers;
(2) cross-appointment and cross-deputization of tribal,
State, municipal, or Federal officials;
(3) the detention or incarceration of offenders; and
(4) jurisdictional or financial matters.
(b) Rule of Construction.--Nothing in this section shall be
construed as restricting the right of the judicial system of
Alaska to enter into agreements with the tribal courts.
______

By Mr. CARDIN:
S. 1193. A bill to amend title 23, United States Code, to preserve
and renew Federal-aid highways to reduce long-term costs, improve
safety, and improve the condition of Federal-aid highways; to the
Committee on Environment and Public Works.
Mr. CARDIN. Mr. President, today I am introducing legislation to help
improve and extend the value of our Nation's highways and bridges. This
bill will help ensure that the Federal Government makes better
investments of the taxpayer dollars spent on transportation
infrastructure. Helping build the roads and bridges of this Nation has
been one the best Federal investments our government has made and it is
an investment that is worth taking care of to ensure the lasting value,
efficiency and safety of our Nation's highways and bridges.
It was during the Thomas Jefferson Administration that the Federal
Government developed the concept of a ``Federal-Aid'' Highway. In 1806,
Congress authorized federal funding to build the ``National Road.''
Much like the National Highway System of today, the purpose of the
National Road was to facilitate interstate commerce between the large
commercial centers of the Eastern United States to points west.
Construction on the National Road began in 1811 in Cumberland, MD, 200
years, and trillions of dollars, later the United States has one of the
world's most expansive highway networks.
The age and expanse of this system underscores the importance of
ensuring adequate and consistent investments in our existing
transportation infrastructure. The need for performance measures and
national state-of-good repair standards are long overdue. Implementing
such policies are essential ensuring the quality of the road condition,
the economic value of our Nation's transportation infrastructure, and
the wise investment of taxpayer dollars on transportation
infrastructure.
The American Society of Civil Engineers, ASCE, gave our Nation's
highways and bridges a grade of ``D-'' in its 2009 ``Report Card for
America's Infrastructure.'' These poor road conditions are costing
motorists time, money, and in the worst and most unfortunate
situations, costing motorists their lives.
A 2011 transportation infrastructure study produced by TRIP, a non-
partisan non-profit transportation research organization sponsored by
various transportation stakeholder industries, found that 32 percent of
America's major roads are in poor or mediocre condition. Poor road
conditions take a major toll on the repair and operating costs of
motorist's vehicles to the tune of $67 billion a year, or approximately
$333 per driver. Poor road conditions contribute to 42 percent of
America's urban highways being congested. Traffic congestion costs
American motorists more than $78 billion in wasted fuel and lost
productivity, and more than 4 billion hours of wasted time that drivers
could have otherwise spent with family, earning income or engaged in
personal activities. Poor road conditions are a ``significant factor''
in approximately one-third of fatal traffic accidents.
It is Congress's responsibility to ensure that Federal transportation
dollars are spent wisely to improve the safety and efficiency of our
roads. Making repair and maintenance of our existing infrastructure a
priority, during these times of fiscal restraint, is a wise approach to
Federal transportation infrastructure. Ignoring maintenance and repair
needs on Federal-Aid highways, while advancing capacity expansion
projects at the expense of neglected existing infrastructure,
exacerbates the decline in the state-of-good repair of our country's
roads and bridges and exemplifies irresponsible spending of Federal
taxpayer dollars.
ASCE put the cost of the maintenance and repair backlog for roads and
bridges at $930 billion. Therefore it is important to understand that
this is an infrastructure issue will not be achieved of the course of
one surface transportation authorization cycle. However, we can change
our Federal policies in such a way that improves how Federal dollars
are spent on highway and bridge maintenance so that the taxpayer gets a
better return on their transportation taxes.
Breaking the cycle of neglected road and bridge maintenance that
stems from allowing a highway facility to decline to into poor or very
poor condition in the first place is critical to improving the quality
of investment of Federal transportation dollars.
Highway investment figures from the American Association of State
Highway and Transportation Officials: ``Rough Roads Ahead: Fix It Now
or Pay for It Later'' demonstrate that neglecting maintenance and
instead waiting for the road surface to reach a condition rating of
``very poor'', on average 16 years, before repairing the road cost
nearly twice as much, on average, as compared with making biannual
investments to maintain a ``very good'' road condition over that same
16-year period. Not to mention the costs in

[[Page S3777]]

damage to vehicles that is caused by the years that a road spends in
fair, poor, or very poor condition.
My Preservation and Renewal of Federal-Aid Highways Act aims to
create a culture of sound transportation investment while providing the
States improved resources and flexibility to keep their highway
facilities in a state of good repair.
The Preservation and Renewal of Federal-Aid Highways Act will
establish policies that require the Secretary of Transportation to
establish ``state of good repair standards'' for the various classes of
Federal-Aid highways to serve as benchmarks of achievement for States
to reach.
The act will require States to use an ``Asset Management Process'' to
develop ``State System Preservation and Renewal Plans'' and ``State
System Preservation and Renewal Performance Targets'' to ensure that
their Federal-Aid roads are being kept in a state of good repair.
The act will consolidate the Interstate Maintenance program, Highway
Bridge program and half of the National Highway System Federal-Aid
highway programs funds together to create a flexible System
Preservation and Renewal Program Fund for the States to use as they see
fit to meet the goals of their System Preservation and Renewal Plans
and Performance Targets.
Both the Federal Government and the States are facing enormous
challenges to deliver essential services, like well-maintained, safe
and efficient roads, for the country. As with any proposal that calls
for a change in the way business is done there needs to be adequate
time for transition. My bill, while establishing new standards for
maintaining the quality of highways and bridges, also takes special
care to grant leeway during emergency circumstances, when essential
defense infrastructure investments are needed, and gives consideration
to States that have planned to use these newly consolidated funds prior
to how these funds would be repurposed under this legislation.
The backlog of maintenance and repair on our existing transportation
infrastructure can no longer be ignored. In recent years, our country
has experienced a number of tragic incidents that resulted in the loss
of life as a direct result of the poor condition of transportation
infrastructure. These are preventable incidents that are costly in so
many ways. We must make transportation system preservation and renewal
a priority because it makes good fiscal sense, good safety sense, and
good business sense for our country. My bill does this in a
collaborative way between the States and the U.S. Department of
Transportation.
I urge my colleagues to support my effort to make improved
investments in our existing transportation infrastructure so as to
ensure its continued excellence for years to come by co-sponsoring the
Preservation and Renewal of Federal-Aid Highways 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. 1193

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 ``Federal-Aid Highway
Preservation and Renewal Program Act of 2011''.

SEC. 2. SYSTEM PRESERVATION AND RENEWAL PROGRAM.

(a) In General.--Section 119 of title 23, United States
Code, is amended to read as follows:

``Sec. 119. System preservation and renewal program

``(a) Definitions.--In this section:
``(1) Asset management.--The term `asset management' means
a strategic process for the management of transportation
infrastructure that takes into consideration economic and
engineering factors to make cost-effective investment
decisions to improve the overall state of good repair of
facilities.
``(2) Eligible cost.--The term `eligible cost' means, with
respect to costs incurred for a project, costs of--
``(A) development and implementation of asset management
systems in support of system preservation and renewal plans;
``(B) inspection activities for highway bridges and tunnels
in the State;
``(C) reducing or eliminating an identified highway or
bridge safety problem;
``(D) training of personnel responsible for inspection of
highway tunnels and inspection and load rating of highway
bridges in the State;
``(E) data collection to monitor the condition of highways
and highway bridges in the State;
``(F) environmental restoration and pollution abatement to
offset or mitigate the impacts of a project eligible under
subparagraph (A);
``(G) control of terrestrial and aquatic noxious weeds and
establishment of non-native plant species within the limits
of a project eligible under subparagraph (A); and
``(H) implementation of the policy established pursuant to
subsection (l)(1).
``(3) Eligible highway facility.--The term `eligible
highway facility' means--
``(A) a highway located on a Federal-aid highway;
``(B) a bridge located on a Federal-aid highway;
``(C) a bridge not located on a Federal-aid highway; and
``(D) a bicycle or pedestrian lane, path, walkway, or
similar travel surface located within the right-of-way of a
Federal-aid highway.
``(4) Eligible project.--The term `eligible project' means
a project that is--
``(A)(i) a project for resurfacing, restoration,
rehabilitation, replacement, or reconstruction of an eligible
highway facility;
``(ii) a project for preservation, protection, or other
preventive repair of an eligible highway facility; or
``(iii) a project to reduce or eliminate an identified
highway safety problem, if the project--
``(I) is eligible under section 148; and
``(II) has a cost of less than $10,000,000; and
``(B) consistent with the investment strategy of the State
in which the project is to be carried out.
``(5) Investment strategy.--The term `investment strategy'
means a State investment strategy established under
subsection (h)(2)(B).
``(6) Overall state of good repair standards.--The term
`overall state of good repair standards' means the
performance standards established under subsection (f)(1)(B).
``(7) Preservation.--
``(A) In general.--The term `preservation' means any cost-
effective activity to prevent, delay, or reduce deterioration
on an eligible highway facility, including preventive and
corrective actions.
``(B) Exclusion.--The term `preservation' does not include
structural or operational improvement beyond the originally
designed traffic capacity of an existing highway facility
except to the extent the improvement occurs as an incidental
result of the preservation activity or improves safety.
``(8) Program.--The term `program' means the system
preservation and renewal program established under subsection
(b).
``(9) Protection.--The term `protection', with respect to a
highway, means the conduct of an activity or action
associated with the design and construction of measures to
protect highways from hazards such as earthquakes, floods,
scour, icing, vessel collision, vehicular impact, and
security threats.
``(10) State of good repair performance target.--The term
`state of good repair performance target' means a performance
target established under subsection (f)(2).
``(11) System preservation and renewal funds.--The term
`system preservation and renewal funds' means funds
apportioned under sections 104(b)(4), 104(m), and 144(e) for
the program.
``(12) System preservation and renewal plan.--The term
`system preservation and renewal plan' means a system
preservation and renewal plan established by a State under
subsection (h).
``(b) Establishment.--The Secretary shall establish and
implement a surface transportation infrastructure
preservation and renewal program designed to maintain and
preserve the quality, efficiency, safety, and value of
Federal-aid highways and Federal-aid and non-Federal-aid
bridges in accordance with this section.
``(c) Purposes.--The purposes of the program shall be--
``(1) to establish national priorities and goals for
bringing Federal-aid highways and Federal-aid and non-
Federal-aid bridges into a state of good repair and
preserving that state of good repair;
``(2) to focus Federal investment on preserving and
improving the condition of roadways and bridges; and
``(3) to strengthen the connection between the use by a
State of Federal surface transportation funding and the
accomplishment of performance outcomes.
``(d) Use of Apportioned Funds.--
``(1) In general.--A State may obligate funds apportioned
to the State under the program for--
``(A) eligible projects; and
``(B) eligible costs.
``(2) Priority for national highway system projects.--
``(A) In general.--Except as provided in subparagraph (B),
a State shall give priority to eligible projects that help
meet the overall state of good repair standards for the
National Highway System under subsection (f)(1)(B).
``(B) Exception.--This paragraph shall not apply to any
State that is meeting the overall state of good repair
standards for the National Highway System established under
subsection (f)(1)(B), as determined by the Secretary.

[[Page S3778]]

``(3) Limitation.--
``(A) In general.--A project cost attributable to expansion
of the capacity of a highway located on a Federal-aid
highways shall not be eligible for funding under this section
if the new capacity consists of 1 or more new travel lanes
that are not auxiliary lanes.
``(B) Non-federal-aid bridges.--
``(i) In general.--Not less than 15 percent of the amount
apportioned to each State under section 144(e) for each of
fiscal years 2012 through 2017 shall be expended for projects
to preserve, rehabilitate, protect, or replace highway
bridges, other than those bridges on Federal-aid highways.
``(ii) Reduction in expenditures.--The Secretary, after
consultation with State and local officials, may reduce the
amount required to be expended under clause (i) for bridges
in the State that are not located on a Federal-aid highway if
the Secretary determines that the State has inadequate needs
to justify the expenditure.
``(4) Exception.--
``(A) Debt financing instruments.--Prior to the
apportionment of funds made available for a program, a State
may deduct amounts sufficient for the payment of any debt-
financing instruments committed, guaranteed, or obligated to
a third party before the date of enactment of the Federal-Aid
Highway Preservation and Renewal Program Act of 2011 for
eligible projects under this title (including this section)
and title 49.
``(B) Defense base closure and realignment impacts.--Before
October 1, 2013, a State may use up to 25 percent of the
funds of the State for system preservation and renewal for
projects to address transportation impacts relating to
decisions of the Defense Base Closure and Realignment
Commission.
``(e) Other Eligible Costs.--In addition to the funds
obligated for eligible projects, a State may obligate, in the
aggregate, not to exceed 5 percent of the funds apportioned
to the State under the program for a fiscal year to pay other
eligible costs.
``(f) System Preservation and Renewal Performance Standards
and Targets.--
``(1) Secretary responsibilities.--Not later than 1 year
after the date of enactment of the Federal-Aid Highway
Preservation and Renewal Program Act of 2011, the Secretary
shall, by regulation and in consultation with States,
establish--
``(A) criteria for determining the state of good repair of
eligible highway facilities, based on highway pavement
condition or bridge structural adequacy, as applicable; and
``(B) overall state of good repair standards for each class
of infrastructure described in paragraph (3), based on the
criteria established under subparagraph (A).
``(2) State responsibilities.--Not later than 2 years after
the date of enactment of the Federal-Aid Highway Preservation
and Renewal Program Act of 2011, and every 2 years
thereafter, each State, in conjunction with the development
of the system preservation and renewal plan of the State,
shall establish or revise, for each class of infrastructure
described in paragraph (3), quantifiable State of good repair
performance targets that, at a minimum, estimate the
projected percentage change over a 2-year period of
infrastructure that is rated as being not in state of good
repair based on the criteria established under paragraph
(1)(B).
``(3) Classes of infrastructure.--The classes of
infrastructure referred to in paragraph (1) are--
``(A) the total deck area of highway bridges in a State
that are located on the National Highway System;
``(B) the total deck area of highway bridges in a State
that are located on Federal-aid highways;
``(C) the total lane miles in a State that are located on
the National Highway System; and
``(D) the total lane miles in a State that are located on
Federal-aid highways.
``(4) Compliance.--If a State meets an overall state of
good repair standard established under paragraph (1)(B) for a
class of infrastructure described in paragraph (3), that
class of infrastructure in the State shall be considered to
be in a state of good repair.
``(5) Applicability.--No State shall be required to
establish state of good repair performance targets under
paragraph (2) for any class of infrastructure that a State
certifies as meeting the overall state of good repair
standard under paragraph (1)(B).
``(g) State Asset Management Process.--
``(1) In general.--Not later than 1 year after the date of
enactment of the Federal-Aid Highway Preservation and Renewal
Program Act of 2011, a State shall develop an asset
management process to support the development and
implementation of system preservation and renewal plans under
subsection (h).
``(2) Requirements.--The process developed under paragraph
(1) shall be based on analytical mechanisms to identify cost-
effective investments to preserve, rehabilitate, restore,
resurface, reconstruct, protect, or replace Federal-aid
highways and highway bridges on Federal-aid highways to
improve the overall state of good repair of those highways
and bridges.
``(h) State System Preservation and Renewal Plans.--
``(1) Submission of plans.--Not later than 2 years after
the date of enactment of the Federal-Aid Highway Preservation
and Renewal Program Act of 2011 and biennially thereafter, a
State shall develop or update, as applicable, and submit to
the Secretary for approval, a system preservation and renewal
plan.
``(2) Plan requirements.--A system preservation plan of a
State and any update of such a plan shall--
``(A) include documentation on the state of good repair
based on the criteria under paragraph (f)(1) and each class
of infrastructure described in subsection (f)(3);
``(B) include an investment strategy that--
``(i) covers a period of 6 years; and
``(ii) describes the manner in which the State will
allocate funds apportioned to the State to carry out this
section among, at a minimum--

``(I) facilities in good condition, fair condition, and
poor condition;
``(II) projects located on each class of infrastructure
described in subsection (f)(2);
``(III) projects that vary with respect to geographical
location, as determined by the State; and
``(IV) other eligible costs;

``(iii) is based on an asset management process under
subsection (g);
``(iv) describes any Federal, State, local, or private
funds that the State plans to use, in addition to system
preservation and renewal funds, on projects that would help
to meet the state of good repair performance targets
established under this section;
``(v) indicates the number of lane miles of highways and
quantity of deck area on highway bridges that the State would
address through the allocations described in clause (ii); and
``(vi) subject to subsection (d)(2), provides for
investment in projects that, once completed, would allow the
State to meet the applicable state of good repair performance
targets;
``(C) include a description of the extent to which the use
by the State of system preservation and renewal funds
apportioned to the State during the 2 most recent fiscal
years was consistent with the investment strategy of the
State, including--
``(i) an identification of the number of lane miles of
highways and quantity of deck area on highway bridges on
which the State has used those funds during those 2 fiscal
years;
``(ii) an identification of the distribution of highway and
bridge facilities, by level of ownership (Federal, State,
tribal, and local) and by functional classification, on which
the State has obligated those funds during those 2 fiscal
years;
``(iii) an assessment of the progress that the State has
made toward meeting each of the state of good repair
performance targets of the State based on the projects that
the State has carried out under this section and the
contribution that those projects have made or would make,
once complete, to the State meeting those performance
targets; and
``(iv) a description of the expenditure of funds on a
geographical basis, as determined by the State; and
``(D) describe the manner in which the investment strategy
of the State would enable the State--
``(i) to meet the state of good repair performance targets
of the State; and
``(ii) improve the condition of the classes of
infrastructure described in subsection (f)(3) in the State.
``(3) Public availability of plan.--A State shall make the
system preservation and renewal plan of the State, and each
update of the plan, available to the public.
``(i) Failure to Meet State of Good Repair Performance
Targets.--
``(1) In general.--If a State does not meet the biennial
system preservation and renewal performance targets under
this section, the State shall coordinate with the Secretary
to direct portions of Federal funds available under this
title to the State toward projects eligible under this
section in order to meet the state of good repair performance
targets under this section.
``(2) Waiver.--The Secretary may temporarily waive the
application of this subsection if--
``(A) unforeseen events significantly impact the ability of
a State to meet the biennial state of good repair performance
targets; or
``(B) eligible facilities under this section in the State
have suffered serious damage due to an event that results in
the declaration of--
``(i) an emergency by the Governor of the State; or
``(ii) a major disaster by the President under the Robert
T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5121 et seq.).
``(j) Oversight.--Beginning for the third fiscal year after
the date of enactment of the Federal-Aid Highway Preservation
and Renewal Program Act of 2011, and at least biennially
thereafter or at such other times or intervals as are
determined to be necessary by the Secretary, the Secretary,
in conjunction with the submission of the State system
preservation and renewal plan under subsection (g), shall
conduct oversight activities to assess whether the use by
each State of funds under this section is consistent with the
investment strategy of the State under this section.
``(k) Biennial Report to Congress.--Not later than
September 30, 2013, and biennially thereafter, the Secretary
shall submit to the Committee on Transportation and
Infrastructure of the House of Representatives and the
Committee on Environment and Public Works of the Senate a
report containing--
``(1) an evaluation of the performance of each State with
respect to--

[[Page S3779]]

``(A) the investment strategy of the State under this
section; and
``(B) the system preservation and renewal performance
targets established for the State under this section; and
``(2) such recommendations as the Secretary may provide for
improvements of the program.
``(l) Additional Requirements.--
``(1) Safe streets policy.--Not later than 2 years after
the date of enactment of the Federal-Aid Highway Preservation
and Renewal Program Act of 2011, each State shall develop a
policy applicable to any project funded, in whole or in part,
under the program that--
``(A) ensures the adequate accommodation, in all phases of
project planning and development, of all users of the
transportation system, including--
``(i) pedestrians;
``(ii) bicyclists;
``(iii) public transit users;
``(iv) older individuals;
``(v) motorists;
``(vi) individuals with disabilities; and
``(vii) users of motor vehicles with a taxable gross weight
(as defined in section 4481 of the Internal Revenue Code of
1986) in excess of 55,000 pounds;
``(B) ensures the consideration of the safety and
convenience of all users in all phases of project planning
and development; and
``(C) delineates a clear procedure that gives due
consideration to the geographical location, road
classification, population density, and other demographic
factors by which projects funded, in whole or in part, under
this program may be exempted from complying with the policy.
``(2) Categorical exclusions.--To the extent appropriate,
the Secretary shall develop categorical exclusions from the
requirement that an environmental assessment or an
environmental impact statement under section 102 of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332) be
prepared for transportation activities located within an
existing right-of-way funded under the program.
``(3) Maintenance of effort provision.--
``(A) In general.--For any fiscal year for which a State
receives funds pursuant to this section, the State shall
certify to the Secretary that the State will expend funds for
the maintenance and operations of facilities in an amount
that is at least equal to the average annual amount of funds
expended over the preceding 3 fiscal years.
``(B) Form and deadline.--A certification described in
subparagraph (A) shall be submitted in such form and not
later than such date as shall be determined by the Secretary.
``(C) Penalty for noncompliance.--If a State fails to
provide a certification to the Secretary in accordance with
subparagraph (A), the Secretary shall withhold from the
State, for each fiscal year until such time as the State
submits the certification in accordance with subparagraph
(A), an amount equal to 10 percent of the amounts the State
would have received under this section for the fiscal year.
``(D) Waiver.--The Secretary may temporarily waive the
application of this paragraph if unforeseen events
significantly impact the ability of a State to meet the
biennial state of good repair performance targets.
``(m) Applicability of Planning Requirements.--Nothing in
this section limits the applicability of sections 134 and 135
to projects carried out under this section.
``(n) Continuation of Current Review Practice.--Because
each individual project that is carried out under the
investment strategy described in the system preservation and
renewal plan of a State is subject to review under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.), a decision by the Secretary concerning a system
preservation and renewal plan or an update of the plan in
connection with this section shall not be considered to be a
Federal action subject to review under that Act.
``(o) Transfer of NHS, Bridge Program, and Interstate
Maintenance Apportionments.--On application by a State and
approval by the Secretary, the Secretary may transfer to the
apportionment of the State under section 104(b)(1) the amount
of funds apportioned to the State for a fiscal year ending
before October 1, 2010, under paragraphs (1) and (4) of
section 104(b), and section 144(e) (as those sections were in
effect on the day before the date of enactment of the
Federal-Aid Highway Preservation and Renewal Program Act of
2011), that remains available for expenditure by the State.
``(p) Regulations on Performance Measures of Structural
Adequacy.--Not later than 1 year after the date of enactment
of the Federal-Aid Highway Preservation and Renewal Program
Act of 2011, the Secretary shall promulgate such regulations
as are necessary to carry out this section.''.
(b) Application to System Preservation and Renewal Funds.--
Section 126 of title 23, United States Code, is amended--
(1) in subsection (a), by striking ``subsections (b) and
(c)'' and inserting ``subsections (b), (c) and (d)''; and
(2) by adding at the end the following:
``(d) Application to System Preservation and Renewal
Funds.--
``(1) In general.--A State may transfer funds apportioned
to the State under section 104(m) for the system preservation
and renewal program if the State meets the overall state of
good repair standards established under section 119(f)(1)(B)
for classes of infrastructure under subparagraphs (A) and (C)
of sections 119(f)(3).
``(2) Good repair standards.--A State may transfer funds
apportioned to the State under sections 104(b)(4) and 144(e)
for the system preservation and renewal program if the State
meets each of the overall state of good repair standards
established under section 119(f)(1)(B).''.
(c) Clerical Amendment.--The analysis for chapter 1 of
title 23, United States Code, is amended by striking the item
relating to section 119 and inserting the following:

``Sec. 119. System preservation and renewal program.''.

(d) Conforming Amendments.--
(1) Section 104 of title 23, United States Code, is amended
by adding at the end the following:
``(m) System Preservation and Renewal.--Notwithstanding any
other provision of this section, \1/2\ of the funds
apportioned to a State under subsection (b)(1) shall be used
for system preservation and renewal under section 119 of
title 23, United States Code.''.
(2) Section 105 of title 23, United States Code, is amended
in each of subsections (a)(2) and (b)(2) by striking ``the
Interstate maintenance program'' each place it appears and
inserting ``the system preservation and renewal program''.
(3) Section 118 of title 23, United States Code, is
amended--
(A) by striking subsection (c); and
(B) by redesignating subsections (d) and (e) as subsections
(c) and (d), respectively.
______

By Mr. LEAHY:
S. 1194. A bill to facilitate compliance with Article 36 of the
Vienna Convention on Consular Relations, done at Vienna April 24, 1963,
and for other purposes; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today, I am introducing the Consular
Notification Compliance Act. This legislation will help bring the
United States into compliance with its obligations under the Vienna
Convention on Consular Relations, VCCR, and is critical to ensuring the
protection of Americans traveling overseas.
Each year, thousands of Americans are arrested and imprisoned when
they are in foreign countries studying, working, serving the military,
or traveling. From the moment they are detained, their safety and well-
being depends, often entirely, on the ability of United States consular
officials to meet with them, monitor their treatment, help them obtain
legal assistance, and connect them to family back home. That access is
protected by the consular notification provisions of the VCCR, but it
only functions effectively if every country meets its obligations under
the treaty--including the United States.
Unfortunately, in some instances, the United States has not been
meeting those obligations. There are currently more than 100 foreign
nationals on death row in the United States, most of whom were never
told of their right to contact their consulate and their consulate was
never notified of their arrest, trial, conviction, or sentence. There
are many other foreigners in U.S. prisons awaiting trial for non-
capital crimes, some facing life sentences, who were similarly denied
consular access. This failure to comply with our treaty obligations
undercuts our ability to protect Americans abroad and deeply damages
our image as a country that abides by its promises and the rule of law.
It would also be completely unacceptable to us if our citizens were
treated in this manner.
The Consular Notification Compliance Act seeks to bring the United
States one step closer to compliance with the convention. It is not
perfect. It focuses only on the most serious cases--those involving the
death penalty--but it is a significant step in the right direction and
we need to work together to pass it quickly. Texas is poised to execute
the next foreign national affected by this failure to comply with the
treaty on July 7, 2011. He was not notified of his right to consular
assistance, and the Government of Mexico has expressed grave concerns
about the case. We do not want this execution to be interpreted as a
sign that the United States does not take its treaty obligations
seriously. That message puts American lives at risk. The Government of
Great Britain has expressed similar concerns about a case involving a
British citizen facing the death penalty here, who was denied consular
access.
The bill I am introducing would allow foreign nationals who have been
convicted and sentenced to death to ask a court to review their cases
and determine if the failure to provide consular notification led to an
unfair conviction or sentence.

[[Page S3780]]

The bill also recognizes that law enforcement and the courts must do
a better job in the future to promptly notify individuals of their
right to consular assistance so the United States does not find itself
in this precarious position again. To that end, the bill reaffirms that
the obligations under the treaty are Federal law and apply to all
foreign nationals arrested or detained in the United States. For
individuals arrested on charges that carry a possible punishment of
death, the bill ensures adequate opportunity for consular assistance
before a trial begins.
This bill offers very limited remedies to a very limited number of
people. I am troubled that it has to be so narrow, as we demand far
broader protection for American citizens abroad every day. However,
carrying out a death sentence is an irreversible action, and I believe
that we must act quickly. I understand that a limited bill has the best
chance of achieving the bipartisan support needed to move forward on
such an important issue at this time.
Compliance with our consular notification obligations is not a
question of partisan interest. There should be unanimous support for
this bill. The VCCR was negotiated under President Kennedy, ratified
during the Nixon administration, and it has been fully supported by
every President since. President George W. Bush understood the critical
need to honor our obligations under this treaty. Although he was
ultimately unsuccessful, he vigorously worked to bring the United
States into compliance, and he supported action along the lines of what
I propose today. He understood the implications of non-compliance for
our citizens, our businesses, and our military. I have no doubt
President Obama shares the same commitment to resolving this issue.
I saw the need to resolve this issue first-hand this spring when a
young, innocent Vermont college student was detained by Syrian police
simply for taking photos of a demonstration. I worked hard with the
U.S. consulate in Syria to obtain access to him. His safety depended on
the ability of our consular officers to see him, provide assistance,
and monitor his condition.
Similarly, the United States invoked the VCCR to seek access to the
three American hikers detained in Iran after accidently crossing an
unmarked border in 2009. In 2001, when a U.S. Navy surveillance plane
made an emergency landing in Chinese territory, the State Department
cited the VCCR in demanding immediate access to the plane's crew.
I doubt there are many Members of Congress who have not sought
similar help from our consulates when their constituents have been
arrested overseas. We know how critically important this access is, and
we expect other governments to provide it. Those governments expect no
less of us.
This bill has the support of the Obama administration, including the
Department of Justice, the Department of Defense, the Department of
Homeland Security, and the Department of State. I have heard from
retired members of the military urging passage of the bill to protect
service men and women and their families overseas, and from former
diplomats of both political parties who know that compliance with our
treaty obligations is critical for America's national security and
commercial interests.
Given the long history of bipartisan support for the VCCR, there
should be unanimous support for this legislation to uphold our treaty
obligations. A failure to act places Americans at risk.
Mr. President, I ask unanimous consent that the text of the bill and
letters of support be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 1194

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 ``Consular Notification
Compliance Act of 2011''.

SEC. 2. PURPOSE AND STATEMENT OF AUTHORITY.

(a) Purpose.--The purpose of this Act is to facilitate
compliance with Article 36 of the Vienna Convention on
Consular Relations, done at Vienna April 24, 1963 and any
comparable provision of a bilateral international agreement
addressing consular notification and access.
(b) Statement of Authority.--This Act is enacted pursuant
to authority contained in articles I and VI of the
Constitution of the United States.

SEC. 3. CONSULAR NOTIFICATION AND ACCESS.

(a) In General.--As required under, and consistent with,
Article 36 of the Vienna Convention on Consular Relations,
done at Vienna April 24, 1963 and any comparable provision of
a bilateral international agreement addressing consular
notification and access, if an individual who is not a
national of the United States is detained or arrested by an
officer or employee of the Federal Government or a State or
local government, the arresting or detaining officer or
employee, or other appropriate officer or employee of the
Federal Government or a State or local government, shall
notify that individual without delay that the individual may
request that the consulate of the foreign state of which the
individual is a national be notified of the detention or
arrest.
(b) Notice.--
(1) In general.--The consulate of the foreign state of
which an individual detained or arrested is a national shall
be notified without delay if the individual requests consular
notification under subsection (a), and an appropriate officer
or employee of the Federal Government or a State or local
government shall provide any other consular notification
required by an international agreement.
(2) First appearance.--If an appropriate officer or
employee of the Federal Government or a State or local
government has not notified the consulate described in
paragraph (1) regarding an individual who is detained pending
criminal charges and the individual requests notification or
notification is mandatory under a bilateral international
agreement, notification shall occur not later than the first
appearance of the individual before the court with
jurisdiction over the charge.
(c) Communication and Access.--An officer or employee of
the Federal Government or a State or local government
(including an officer or employee in charge of a facility
where an individual who is not a national of the United
States is held following detention or arrest) shall
reasonably ensure that the individual detained or arrested is
able to communicate freely with, and be visited by, officials
of the consulate of the foreign state of which the individual
detained or arrested is a national, consistent with the
obligations described in section 2(a).
(d) No Cause of Action.--Nothing in this section is
intended to create any judicially or administratively
enforceable right or benefit, substantive or procedural, by
any party against the United States, its departments,
agencies, or other entities, its officers or employees, or
any other person or entity, including, an officer, employee,
or agency of a State or local government.

SEC. 4. PETITION FOR REVIEW.

(a) In General.--
(1) Jurisdiction.--Notwithstanding any other provision of
law, a Federal court shall have jurisdiction to review the
merits of a petition claiming a violation of Article 36(1)(b)
or (c) of the Vienna Convention on Consular Relations, done
at Vienna April 24, 1963, or a comparable provision of a
bilateral international agreement addressing consular
notification and access, filed by an individual convicted and
sentenced to death by any Federal or State court before the
date of enactment of this Act.
(2) Date for execution.--If a date for the execution of an
individual described in paragraph (1) has been set, the court
shall grant a stay of execution if necessary to allow the
court to review a petition filed under paragraph (1).
(3) Standard.--To obtain relief, an individual described in
paragraph (1) shall make a showing of actual prejudice to the
criminal conviction or sentence as a result of the violation.
The court may conduct an evidentiary hearing if necessary to
supplement the record and, upon a finding of actual
prejudice, shall order a new trial or sentencing proceeding.
(4) Limitations.--
(A) In general.--A petition for review under this section
shall be filed within 1 year of the later of--
(i) the date of enactment of this Act;
(ii) the date on which the Federal or State court judgment
against the individual described in paragraph (1) became
final by the conclusion of direct review or the expiration of
the time for seeking such review; or
(iii) the date on which the impediment to filing a petition
created by Federal or State action in violation of the
Constitution or laws of the United States is removed, if the
individual described in paragraph (1) was prevented from
filing by such Federal or State action.
(B) Tolling.--The time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending shall not be counted toward the 1-year period of
limitation.
(5) Habeas petition.--A petition for review under this
section shall be part of the first Federal habeas corpus
application or motion for Federal collateral relief under
chapter 153 of title 28, United States Code, filed by an
individual, except that if an individual filed a Federal
habeas corpus application or motion for Federal collateral
relief before the date of enactment of this Act or if such
application is required to be filed before the date that is 1
year after the date of enactment of this Act, such petition
for review under this section shall be filed not later

[[Page S3781]]

than 1 year after the enactment date or within the period
prescribed by paragraph (4)(A)(iii), whichever is later. No
petition filed in conformity with the requirements of the
preceding sentence shall be considered a second or successive
habeas corpus application or subjected to any bars to relief
based on pre-enactment proceedings other than as specified in
paragraph (3).
(6) Appeal.--
(A) In general.--A final order on a petition for review
under paragraph (1) shall be subject to review on appeal by
the court of appeals for the circuit in which the proceeding
is held.
(B) Appeal by petitioner.--An individual described in
paragraph (1) may appeal a final order on a petition for
review under paragraph (1) only if a district or circuit
judge issues a certificate of appealability. A district judge
or circuit judge may issue a certificate of appealability
under this subparagraph if the individual has made a
substantial showing of actual prejudice to the criminal
conviction or sentence of the individual as a result of a
violation of Article 36(1) of the Vienna Convention on
Consular Relations, done at Vienna April 24, 1963, or a
comparable provision of a bilateral international agreement
addressing consular notification and access.
(b) Violation.--
(1) In general.--An individual not covered by subsection
(a) who is arrested, detained, or held for trial on a charge
that would expose the individual to a capital sentence if
convicted may raise a claim of a violation of Article
36(1)(b) or (c) of the Vienna Convention on Consular
Relations, done at Vienna April 24, 1963, or of a comparable
provision of a bilateral international agreement addressing
consular notification and access, at a reasonable time after
the individual becomes aware of the violation, before the
court with jurisdiction over the charge. Upon a finding of
such a violation--
(A) the consulate of the foreign state of which the
individual is a national shall be notified immediately by the
detaining authority, and consular access to the individual
shall be afforded in accordance with the provisions of the
Vienna Convention on Consular Relations, done at Vienna April
24, 1963, or the comparable provisions of a bilateral
international agreement addressing consular notification and
access; and
(B) the court--
(i) shall postpone any proceedings to the extent the court
determines necessary to allow for adequate opportunity for
consular access and assistance; and
(ii) may enter necessary orders to facilitate consular
access and assistance.
(2) Evidentiary hearings.--The court may conduct
evidentiary hearings if necessary to resolve factual issues.
(3) Rule of construction.--Nothing in this subsection shall
be construed to create any additional remedy.

SEC. 5. DEFINITIONS.

In this Act--
(1) the term ``national of the United States'' has the
meaning given that term in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22)); and
(2) the term ``State'' means any State of the United
States, the District of Columbia, the Commonwealth of Puerto
Rico, and any territory or possession of the United States.
____

June 14, 2011.
Re The Consular Notification Compliance Act.

Hon. Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Hon. Charles E. Grassley,
Ranking Member, U.S. Senate Committee on the Judiciary,
Washington, DC.
Dear Chairman Leahy and Ranking Member Grassley: We write
to urge you to support prompt passage of the Consular
Notification Compliance Act, legislation that would give
domestic legal effect to U.S. obligations under the Vienna
Convention on Consular Relations (Vienna Convention) to
provide consular access to foreign nationals in U.S. law
enforcement custody by providing for judicial review of
certain claims that this obligation has not been satisfied.
International consular notification and access obligations
are essential to ensuring humane, non-discriminatory
treatment for both non-citizens in U.S. custody and U.S.
citizens in the custody of foreign governments. As retired
military leaders, we understand that the preservation of
consular access protections is especially important for U.S.
military personnel, who when serving our country overseas are
at greater risk of being arrested by a foreign government.
U.S. military personnel are at risk for being taken into
foreign custody after accidental incursions into foreign
territories, while on leave or furlough, or while stationed
abroad pursuant to, or in absence of a Status of Forces
Agreement (SOFA). When American military personnel or their
family members find themselves in foreign custody, consular
access is indispensable in allowing the U.S. government to
fulfill its duty to ensure fair and humane treatment for such
individuals.
For example, in 2001 when a U.S. Navy surveillance plane
made an emergency landing in Chinese territory after
colliding with a Chinese jet, the State Department cited the
Vienna Convention and other consular treaties in demanding
immediate access to the plane's crew. Chinese authorities
responded by granting consular visits to the crew members,
who were detained in China for 11 days. Moreover, military
regulations implementing SOFA requirements anticipate that
consular officers will assist the designated commanding
officer in key areas such as protesting inhumane treatment
and ensuring that the individual has access to an adequate
defense.
The strength of consular access protections for U.S.
military personnel abroad is dependent on the United States'
reciprocal commitment to fulfill its obligations at home. But
given the Supreme Court's 2008 decision in Medellin v. Texas,
the executive branch is unable, without further action by
Congress, to enforce certain consular protections under the
Vienna Convention with regards to U.S. state law enforcement
personnel. In light of the Medellin decision, additional
legislation is needed to ensure the integrity of the consular
notification and access rights upon which U.S. service
members rely.
Legislation to ensure review and appropriate relief if
needed when a foreign national faces or is sentenced to
death, while relatively limited in scope, would improve
foreign governments' confidence in the United States' ability
to uphold its consular access obligations, making it more
likely that such governments will giant this access to
Americans in their custody.
Improving U.S. enforcement of its consular notification and
access legal obligations will help protect American citizens
detained abroad, including U.S. military personnel and their
families stationed overseas. We urge you to support those who
are serving our country overseas by ensuring swift passage of
the Consular Notification Compliance Act to meet our
international responsibilities.
Sincerely,
Rear Admiral Don Guter, USN (Ret.).
Rear Admiral John D. Hutson, USN (Ret.).
Brigadier General James P. Cullen, USA (Ret.).
Brigadier General David R. Irvine, USA (Ret.).
Brigadier General Murray G. Sagsveen, USA (Ret.).
Colonel Lawrence B. Wilkerson, USA (Ret.).
____

June 14, 2011.
Re The Consular Notification Compliance Act.

Hon. Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Hon. Charles E. Grassley,
Ranking Member, U.S. Senate Committee on the Judiciary,
Washington, DC.
Dear Chairman Leahy and Ranking Member Grassley: As former
U.S. diplomats and State Department officials, we write to
urge your support for the Consular Notification Compliance
Act, legislation that we believe is vitally important to
meeting the United States' foreign policy objectives and to
protecting the interests of its citizens abroad. We urge you
to act promptly to enact this legislation that would secure
compliance with the United States' binding treaty obligations
by providing a review mechanism for the cases of foreign
nationals who--without the benefit of timely consular
notification and access--were convicted and received death
sentences.
Each year, thousands of Americans are detained abroad.
Prompt knowledge of and access to our fellow-citizens held in
foreign jails ensures that U.S. consular officers can help
them obtain legal assistance, monitor their treatment, and
connect them to family and friends back home. This crucial
lifeline of consular support can only function effectively if
the detaining authorities comply with their obligations under
Article 36 of the Vienna Convention on Consular Relations,
which grants all foreigners in custody the right to consular
notification, communication and access ``without delay.''
Insisting on compliance with and protesting violations of
Article 36 provisions has thus long been an integral element
of the U.S. policy of providing protective consular services
to detained Americans overseas.
For instance, when three Americans were detained after
accidentally crossing an unmarked border into Iran in 2009, a
State Department spokesperson insisted that ``Iran has
obligations under the Vienna Convention, and we demand
consular access at the first opportunity.'' The Secretary of
State later called on the Iranian government ``to live up to
its obligations under the Vienna Convention by granting
consular access and releasing these three young Americans
without further delay.'' Once consular access was finally
granted, the State Department ``welcome[d] the fact that Iran
is meeting up to its obligations under the Vienna
Convention''.
Unfortunately, the United States has sometimes violated
Article 36 requirements even as we call on foreign
governments to comply with its terms. In 2004, the
International Court of Justice (ICJ) determined that some
fifty Mexican nationals were entitled to judicial hearings to
determine if Article 36 breaches, which were proven to have
occurred, affected the fairness of their capital murder
convictions and/or sentences.

[[Page S3782]]

The United States is required by the U.N. Charter to comply
with decisions of the ICJ. President George W. Bush attempted
to enforce this decision at the state court level, but the
U.S. Supreme Court later ruled in Medellin v. Texas that only
Congress could ensure compliance by adopting legislation
providing for the compulsory review and reconsideration
mandated by the ICJ. The Supreme Court also observed that the
ICJ decision undeniably bound the United States under
international law and that ``plainly compelling'' reasons
existed for its domestic implementation. ``In this case,''
the Medellin Court noted, ``the President seeks to vindicate
United States interests in ensuring the reciprocal observance
of the Vienna Convention, protecting relations with foreign
governments, and demonstrating commitment to the role of
international law.''
Clearly, the safety and well-being of Americans abroad is
endangered by the United States maintaining the double
standard of protesting denials of consular notification and
access to its own citizens while simultaneously failing to
comply with its obligation to remedy identical violations. We
cannot realistically expect other nations to continue to
comply with consular treaty commitments that we refuse to
uphold. For that reason alone, it is essential that Congress
act swiftly to provide the limited procedural remedy that
both our Executive and Judicial Branches have so clearly
indicated is in the national interest.
As the Supreme Court pointed out, however, the United
States' interest in implementing these international
obligations goes beyond protecting the reciprocal rights and
safety of its overseas citizens. Our national security,
effective commercial and trade relations relating to our
prosperity and almost every matter of national interest,
large and small, is covered by reciprocal treaty obligations.
We risk jeopardizing these interests if we practice an
indifference to these obligations in this or other arenas. We
believe that continued non-compliance will surely alienate
this nation from its allies. We also believe that any further
failure to provide the modest remedy of ``review and
reconsideration'' required in these cases will undermine
America's credibility as a global champion of the rule of
law, thereby seriously hindering our foreign policy
objectives. It is worth noting the United States agreed to be
bound by the ICJ's decision both before and after the case
was heard and has consistently advised multiple international
and domestic courts that it is doing everything within its
power to comply with this decision. Passing legislation to
ensure our nation's compliance needs to be accomplished in
order to make good on this representation.
The ability of the United States to secure future
international agreements vital to our commercial interests
and national security depends largely on whether this nation
is perceived as honoring its international obligations. It is
vitally important for Congress to mandate judicial
enforcement of America's treaty obligations. Anything less
jeopardizes our global reputation as a dependable treaty
partner. We therefore urge you to support the rapid passage
of the Consular Notification Compliance Act to accomplish
this end, and thank you for your attention to this important
matter.
Sincerely,
Harry Barnes, Jr., U.S. Ambassador to Chile, 1985-1988;
U.S. Ambassador to India, 1981-1985; Director General of the
Foreign Service 1977-1981; U.S. Ambassador to Romania, 1974-
1977.
John B. Bellinger, III, Partner, Arnold & Porter LLP; Legal
Advisor to the Department of State, 2005-2009; Legal Advisor
to the National Security Council, 2001-2005.
David E. Birenbaum, of Counsel, Fried, Frank, Harris,
Shriver & Jacobson LLP; Senior Scholar, Woodrow Wilson
International Center for Scholars; U.S. Ambassador to the UN
for UN Management and Reform, 1994-96.
James R. Jones, U.S. Ambassador to Mexico, 1993-1997;
Member of U.S. Congress (D-OK), 1973-1987.
David Charles Miller, Jr., Special Assistant to the
President, National Security Council, 1989-1990; U.S.
Ambassador to Zimbabwe, 1984-1986; U.S. Ambassador to
Tanzania, 1981-1984.
Thomas R. Pickering, Undersecretary of State for Political
Affairs, 1997-2000; U.S. Ambassador and Representative to the
United Nations, 1989-1992.
William H. Taft, IV, Legal Advisor, U.S. Department of
State, 2001-2005; U.S. Ambassador to NATO, 1989-1992.
____

June 7, 2011.
Governor Rick Perry,
Office of the Governor, Austin, Texas.
Texas Board of Pardons and Paroles,
Austin, Texas.
Dear Governor Perry and Members of the Texas Board of
Pardons and Paroles: As former prosecutors and judges, we are
strong supporters of a robust and accurate criminal justice
system. We are well aware that international consular
notification and access, as required under the Vienna
Convention on Consular Relations (Vienna Convention), is
essential to such a system, and to ensuring non-
discriminatory treatment for both non-citizens in U.S.
custody and U.S. citizens in the custody of foreign
governments; and is also critical to the efficient,
effective, and fair operations of criminal justice systems
throughout the United States. In light of these important
considerations and out of concern for the domestic and
international implications of an execution without proper
compliance with U.S. international obligations, we are
writing to urge you to grant a reprieve in the case of
Humberto Leal Garcia. We take no position on the merits of
his petition, but believe that a reprieve should take place
pending congressional enactment of legislation that would
allow foreign nationals who were denied consular access while
in law enforcement custody and face the death penalty to
receive appropriate review of that failure.
It is appropriate to ensure that our country complies with
the laws to which it has obligated itself, and to ensure that
those laws apply to our own citizens as well. At all stages
of the proceedings, foreign nationals--whether our own
citizens in other countries or those from other countries in
the United States--face unique disadvantages and challenges
when confronted with prosecution and imprisonment under the
legal system of another nation. Prompt consular access
ensures that they have the means necessary to be advised of
their rights and to prepare an adequate defense.
Ensuring prompt consular access to foreigners arrested in
the United States also enhances the truth-seeking function
that lies at the heart of American justice. Much in the same
way as the right to counsel under the Sixth Amendment,
consular notification is essential to enabling fair access
for those who are unfamiliar with our legal system. As Chief
Judge Juan Torruella of the United States Court of Appeals
for the First Circuit observed, ``Without [consular access],
I think that we presume too much to think that an alien can
present his defense with even a minimum of effectiveness. The
result is injury not only to the individual alien, but also
to the equity and efficacy of our criminal justice system.''
U.S. v. Li, 206 F.3d 56, 78 (1st Cir. 2000) (Torruella, C.J.,
concurring in part and dissenting in part).
Consular assistance provides a unique and indispensable
protection for foreign nationals who are unfamiliar with the
U.S. criminal justice system. This is true with regard to our
own citizens abroad as well. As many domestic courts have
recognized, consulates can provide essential resources that
are simply not available through other means, particularly in
identifying and explaining the ways in which the U.S.
criminal justice system differs from their native systems.
Early consular access can prevent misunderstandings and
missteps by a foreign national that might otherwise prejudice
their ability to obtain a fair trial. Consulates can assist
defense counsel in locating crucial documents, witnesses, and
exonerating evidence available only in their native country
and can assist in translations that in too many cases have
been demonstrated to be erroneous, thus jeopardizing the
accuracy of the proceedings. This can mean the difference
between conviction and acquittal, or between life and death.
We want to emphasize that demonstrating our nation's
commitment to complying with Vienna Convention obligations is
also critical to ensuring the safety of Americans traveling,
living and working abroad. The United States expects
countries to grant consular notification and access to
Americans in law enforcement custody. In return, we pledge to
accord the same right to foreign nationals within our
borders. In addition, particularly in states bordering Mexico
and Canada, cooperation between law enforcement agencies is
critical to ensuring the safety of citizens on all sides of
the border. These accords are threatened when the United
States erects procedural hurdles that prevent foreign
nationals from obtaining meaningful judicial review when
denied consular notification and access and may well mean
that our own citizens' rights will be jeopardized in
countries whose citizens' rights have not been respected by
the United States.
Providing meaningful enforcement of the Vienna Convention's
consular notification and access requirements will increase
the efficient, effective, and fair operations of our criminal
justice system and protect U.S. citizens abroad. Delaying the
execution of Humberto Leal Garcia to ensure full opportunity
for congressional action and appropriate review of the case
will demonstrate to foreign governments the United States'
good faith in upholding its consular access obligations,
increasing the likelihood that foreign governments will grant
access to Americans in their custody. For these reasons, we
strongly urge you to support a reprieve in this case pending
congressional action on these matters.
Sincerely,
Hon. Charles F. Baird, Former Judge, Texas Court of
Criminal Appeals; Former Judge, 299th District Court of
Travis County, Texas.
Hon. William G. Bassler, Former Judge, United States
District Court for the District of New Jersey (1991-2006);
Former Judge, Superior Court of New Jersey (1988-1991).
A. Bates Butler III, United States Attorney, District of
Arizona (1980-81); First Assistant United States Attorney,
District of Arizona (1977-80).
Robert J. Del Tufo, Attorney General, State of New Jersey
(1990-1993); United States Attorney, District of New Jersey
(1977-1980); Former First Assistant State Attorney General
and Director of New Jersey's Division of Criminal Justice.
W. Thomas Dillard, United States Attorney, Northern
District of Florida (1983-1986); United States Attorney,
Eastern District of Tennessee (1981).
Hon. Bruce J. Einhorn, Former United States Immigration
Judge (1990-2007); Special Prosecutor and Chief of
Litigation,

[[Page S3783]]

United States Department of Justice Office of Special
Investigations (1979-1990).
Hon. Shirley M. Hufstedler, United States Secretary of
Education (1979-1981); Former Judge, United States Court of
Appeals for the Ninth Circuit (1968-1979); Former Associate
Justice, California Court of Appeal (1966-1968); Former
Judge, Los Angeles County Superior Court (1961-1966).
Hon. John J. Gibbons, Former Judge, United States Court of
Appeals for the Third Circuit (1970-1990) (Chief Judge (1987-
1990)).
Hon. Nathaniel R. Jones, Former Judge, United States Court
of Appeals for the Sixth Circuit, (1979-2002); Assistant
United States Attorney, Northern District of Ohio (1962-
1967).
Hon. Gerald Kogan, Former Chief Justice, Supreme Court of
the State of Florida; Former Chief Prosecutor, Homicide and
Capital Crimes Division, Dade County, Florida.
Kenneth J. Mighell, United States Attorney, Northern
District of Texas (1977-1981); Assistant United States
Attorney, Northern District of Texas (1961-1977).
Hon. Stephen M. Orlofsky, Former Judge, United States
District Court for the District of New Jersey (1995-2003);
Magistrate Judge, United States District Court for the
District of New Jersey (1976-1980).
Professor Mark Osler, Professor of Law, University of St.
Thomas, Minnesota; Former Professor of Law, Baylor
University, Texas; Former Assistant United States Attorney,
Eastern District of Michigan.
H. James Pickerstein, United States Attorney, District of
Connecticut (1974); Chief Assistant United States Attorney,
District of Connecticut (1974-1986).
James H. Reynolds, United States Attorney, Northern
District of Iowa (1976-1982).
Hon. William S. Sessions, Director of the FBI (1987-1993);
Former Judge, United States District Court for the Western
District of Texas (1974-1987) (Chief Judge (1980-1987));
United States Attorney, Western District of Texas (1971-
1974).
John Van de Kamp, Attorney General of California (1983-
1991); District Attorney of Los Angeles County (1975-1983).
Mark White, Governor of Texas (1983-1987); Attorney
General, State of Texas (1979-1983); Secretary of State of
Texas (1973-1977); Assistant Attorney General, State of Texas
(1965-1969).
Hon. Michael Zimmerman, Former Justice, Supreme Court of
Utah (1984-2000) (Chief Justice (1994-1998)).
______

By Mr. GRASSLEY (for himself, Mr. Sessions, Mr. Rubio, Mr.
Wicker, Mr. Boozman, Mr. Lee, Mr. Hatch, Mr. Vitter, Mr.
Coburn, and Mr. Corker):
S. 1196. A bill to expand the use of E-Verify, to hold employers
accountable, and for other purposes; to the Committee on the Judiciary.
Mr. GRASSLEY. Mr. President, today, I am introducing legislation to
expand the E-Verify program and enhance our ability to hold employers
accountable for their hiring practices. I am pleased that several of my
colleagues have joined me in cosponsoring this commonsense bill titled
Accountability Through Electronic Verification Act.
Known as the Basic Pilot Program, E-Verify currently provides
employers with a simple, web-based tool to verify the work eligibility
of new hires. In 1986, Congress made it unlawful for employers to
knowingly hire or employ aliens not eligible to work in the United
States. Under current law, if the documents provided by an employee
reasonably appear on their face to be genuine, the employer has met its
obligation to review the worker's documents.
Unfortunately, since then, identity theft has soared and counterfeit
documents have become a thriving industry. Because of this, Congress
created the Basic Pilot Program in 1996. Employers in this program can
electronically verify a new hires employment authorization with more
than 455 million Social Security Administration records, more than 122
million Department of State passport records, and more than 80 million
Department of Homeland Security immigration records.
This program is voluntary and free for all employers to use. In fact,
it is currently used by 269,913 employers representing 903,358 hiring
sites. More than 11.3 million queries have been made this year. During
fiscal year 2010, more than 98.3 percent of those were verified almost
instantly.
Less than 1.7 percent of employees receive a tentative non-
confirmation, and must sort out their records with the Social Security
Administration. Many times, it is a simple misunderstanding relating
from a typo to neglecting to update records after a name change.
With the program set to expire in a little over a year, I see the
need to continue its use, without an expiration date. E-Verify is a
proven tool in combatting illegal immigration. With the unemployment
rate hovering around 9.1 percent, can we afford not to use every
instrument available to ensure Americans and legal workers are the ones
obtaining employment?
My legislation would make E-Verify a staple in the workplace so that
American workers are on a level playing field with cheaper labor.
Should an employer refuse to participate, my bill increases the
penalties currently used under the Immigration and Nationality Act.
Employers would be required to check the status of current employees
within 3 years, and would allow employers to run a check prior to
offering a job, saving that employer valuable time and resources.
Employers will also be required to re-check those workers whose
authorization is about to expire, such as those who come to the United
States on visas. These visas have expiration dates, and it is
imperative we do not allow employers to aide in the overstaying of any
alien.
A commonsense fix that is also included would require the Social
Security Administration to develop algorithm technology that would flag
social security numbers that are being used more than once. You would
think the Social Security Administration would already have this in
place, but sadly they do not. This provision alone will save many from
falling victim to identity theft.
For those who do find themselves victim of identity theft, this bill
would amend the criminal code to clarify identity fraud is punishable
regardless if the defendant did not have knowledge of the victim. This
provision stems from the 2009 Supreme Court decision holding that
identity theft requires proof that an individual knew the number being
used belonged to an actual person. This is a commonsense and long
overdue provision. Anyone who has had their identity stolen by an
illegal alien would agree. We need to strengthen our laws to deter the
robust black market for fraudulent documents.
Another provision in the bill, which I know will benefit many rural
areas such as small towns in Iowa, would help those businesses without
internet capabilities to participate in E-Verify. Requiring the U.S.
Citizenship and Immigration Services to establish a demonstration
project in these rural areas will greatly measure the needs of our
rural employers and involve the small business community.
Some may want to criticize the database used to check employees, but
with continued enhancements, we are making great strides. For instance,
just this past March, the Department of Homeland Security initiated the
``Self Check'' program to allow workers in five States and the District
of Columbia to self-check employment eligibility. One of my staffers
used Self Check and received confirmation of work authorization almost
instantly. The entire process took her less than 90 seconds.
Another development is the recent launch to include U.S. passport
photo matching capabilities. This further enhances the integrity of the
program by enabling E-Verify to automatically check the validity and
authenticity of all U.S. passports and passport cards presented for
employment verification checks. E-Verify is supported by many. Most
notably by DHS Secretary Janet Napolitano who has said, ``E-Verify is a
smart, simple, and effective tool that allows us to work with employers
to help them maintain a legal workforce.'' According to DHS, the ``E-
Verify program infrastructure is capable of handling the volume of
queries that would be necessary for a nationwide mandatory employment
verification system.'' DHS has been preparing for such an occasion, and
I'm pleased to put forward my proposal today.
For those who were here during the 2007 immigration debate, you may
remember that I, Senator Baucus and then-Senator Obama worked very
closely on the issue of employment verification. I have kept many of
the principles agreed upon in 2007 and included them in this bill. With
that said, I look forward to hearing from my colleagues with any ideas
they may have to strengthen this system.
While everyone may not agree with every aspect of this bill, it
serves as a starting point for a much-needed conversation about illegal
immigration and our struggling job market. People

[[Page S3784]]

back home want employers to be held accountable. They want to see our
government do more to make sure we are reducing the magnet for people
to cross our borders illegally. I hope more colleagues will join me in
my effort to achieve accountability through electronic verification.
______

By Mr. HATCH (for himself, Mr. Baucus, Mr. Barrasso, Mr. Inhofe,
Mr. Vitter, Mr. Lugar, and Mr. Grassley):
S.J. Res. 19. A joint resolution proposing an amendment to the
Constitution of the United States authorizing Congress to prohibit the
physical desecration of the flag of the United States; to the Committee
on the Judiciary.
Mr. HATCH. Mr. President, today is Flag Day and it is the perfect day
to re-introduce a constitutional amendment that would allow Congress to
protect the American flag from physical desecration. I am joined in
doing so today by my friend, the distinguished Senator from Montana,
Senator Baucus. He was an original cosponsor of this amendment on 6
previous occasions when I have introduced it, including in the 109th
Congress when this body came within one vote of approving it.
The American flag is a unique symbol of our country, of its history,
and of our shared values. There is, in fact, no more powerful unifying
general symbol. At the same time, the flag no doubt means different
specific things to different individuals; Congress cannot, and should
not attempt to, dictate what Americans believe, think, or say about the
flag and whatever it represents to individuals.
That said, Congress should have authority to protect this unique
symbol from at least physical desecration. The Supreme Court stripped
even that authority from Congress in 1990 when it held that physical
desecration is ``speech'' protected by the First Amendment. I believe
the Court was wrong in that conclusion, but because the Court claimed
to speak for the Constitution, the only way for Congress once again to
have authority to protect the flag is by amending the Constitution.
In his farewell address in 1796, President George Washington said
that the very basis of our political system is the right of the people
to make and to alter the Constitution. The Constitution belongs to the
people, not to the Supreme Court. As a result, the American people must
have the opportunity to decide whether their Constitution should allow
Congress to protect the flag.
The amendment we introduce today is as simple as it can be. It
states: ``The Congress shall have power to prohibit the physical
desecration of the flag of the United States.'' Unfortunately,
simplicity does not prevent distortion, either by negligence or
intention. Critics and some in the media have led many to believe that
this amendment by itself bans flag desecration. It does not. In fact,
should Congress propose and the states ratify this amendment, it might
not result in any change in the law at all. That would be up to
Congress and the people we represent to decide.
The issue is that today Congress is today prohibited by the Supreme
Court from passing laws that protect the flag even if 100 percent of
the American people wanted those laws and the Congress was ready to
enact them.
The American people should be given the opportunity to decide whether
they want their Constitution to allow their Congress to pass laws
protecting the American flag. That is the way a representative
democracy like ours should function. The Supreme Court distorted that
process and this amendment will correct the Court's error. I urge my
colleagues on both sides of the aisle, as many of you have done in the
past, to support this amendment and to give this decision back to the
American people.

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