[Congressional Record Volume 157, Number 86 (Wednesday, June 15, 2011)]
[Senate]
[Pages S3817-S3841]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mrs. FEINSTEIN (for herself, Ms. Snowe, and Mr. Leahy):
S. 1199. A bill to amend title 18, United States Code, to limit the
misuse of Social Security numbers, to establish criminal penalties for
such misuse, and for other purposes; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I am pleased to introduce, together
with Senator Snowe, legislation today to protect one of Americans' most
valuable but vulnerable assets: Social Security numbers.
The Protecting the Privacy of Social Security Numbers Act would
protect personal privacy and reduce identity theft by eliminating the
unnecessary use and display of Social Security numbers.
Since the 106th Congress, I have worked to safeguard Social Security
numbers. I believe that the widespread display and use of these numbers
poses a significant, and entirely preventable, threat to Americans'
personal privacy.
In 1935, Congress authorized the Social Security Administration to
issue Social Security numbers as part of the Social Security program.
Since that time, Social Security numbers have become the best known and
easiest way to identify individuals in the United States.
Use of these numbers has expanded well beyond their original purpose.
Social Security numbers are now used for everything from credit checks
to rental agreements to employment verifications, among other purposes.
They can be found in privately held databases and on public records,
including marriage licenses, professional certifications, and countless
other public documents, many of which are available on the Internet.
Once accessed, the numbers act like keys, allowing thieves to open
credit card and bank accounts and even begin applying for government
benefits.
According to the Federal Trade Commission, between 8 and 10 million
Americans have their identities stolen by such thieves each year, at a
combined cost of billions of dollars.
What's worse, victims often do not realize that a theft has occurred
until much later, when they learn that their credit has been destroyed
by unpaid debt on fraudulently opened accounts.
One thief stole a retired Army Captain's military identification card
and used his Social Security number, listed on the card, to go on a 6-
month, $260,000 shopping spree. By the time the Army Captain realized
what had happened, the thief had opened more than 60 fraudulent
accounts.
A single mother of two went to file her taxes and learned that a
fraudulent return had already been filed in her name by someone else, a
thief who wanted her refund check.
A former pro-football player received a phone call notifying him that
a $1 million home mortgage loan had been approved in his name even
though he had never applied for such a loan.
Identity theft is serious. Once an individual's identity is stolen,
people are often subjected to countless hours and costs attempting to
regain their good name and credit. In 2004, victims spent an average of
300 hours recovering from the crime. The crime disrupts lives and can
destroy finances.
It also hurts American businesses. A 2006 online survey by the
Business Software Alliance and Harris Interactive found that nearly 30
percent of adults decided to shop online less or not at all during the
holiday season because of fears about identity theft.
When people's identities are stolen, they often do not know how the
thieves obtained their personal information. Social security numbers
and other key identifying data are displayed and used in such a
widespread manner that individuals could not successfully restrict
access themselves.
Limitations on the display of Social Security numbers are critically
needed.
In the last Congress, Senator Judd Gregg of New Hampshire and I
worked together to pass a bill to prevent Federal, State, and local
entities from printing social security numbers on government checks and
to prohibit government entities from employing prisoners in jobs like
data entry that gave them access to people's social security numbers.
But comprehensive legislation is still needed.
The U.S. Government Accountability Office conducted studies of this
problem in 2002 and 2007. Both times--in studies entitled Social
Security Numbers Are Widely Used by Government and Could Be Better
Protected and Social Security numbers: Use Is Widespread and Could Be
Improved, the GAO concluded that current protections are insufficient
and that serious vulnerabilities remain.
The Protecting the Privacy of Social Security Numbers Act would
require government agencies and businesses to do more to protect
Americans' Social Security numbers. The bill would stop the sale or
display of a person's Social Security number without his or her express
consent; prevent Federal, State, and local governments from displaying
Social Security numbers on public records posted on the Internet; limit
the circumstances in which businesses could ask a customer for his or
her Social Security number; commission a study by the Attorney General
regarding the current uses of Social Security numbers and the impact on
privacy and data security; and institute criminal and civil penalties
for misuse of Social Security numbers.
I believe this legislation could play a critical role in halting the
growing epidemic of identity theft that has been plaguing America and
its citizens.
As President George W. Bush's Identity Theft Task Force reported to
us now three years ago, ``[i]dentity theft depends on access to . . .
data. Reducing the opportunities for thieves to get the data is
critical to fighting the crime.''
Every agency to study this problem has agreed that the problem will
continue to grow over time and that action is needed.
I urge my colleagues to support the Protecting the Privacy of Social
Security Numbers 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. 1199
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Protecting
the Privacy of Social Security Numbers Act''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Prohibition of the display, sale, or purchase of Social
Security numbers.
Sec. 4. Application of Prohibition of the display, sale, or purchase of
Social Security numbers to public records.
Sec. 5. Rulemaking authority of the Attorney General.
Sec. 6. Limits on personal disclosure of a Social Security number for
consumer transactions.
Sec. 7. Extension of civil monetary penalties for misuse of a Social
Security number.
Sec. 8. Criminal penalties for the misuse of a Social Security number.
Sec. 9. Civil actions and civil penalties.
Sec. 10. Federal injunctive authority.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The inappropriate display, sale, or purchase of Social
Security numbers has contributed to a growing range of
illegal activities, including fraud, identity theft, and, in
some cases, stalking and other violent crimes.
[[Page S3818]]
(2) While financial institutions, health care providers,
and other entities have often used Social Security numbers to
confirm the identity of an individual, the general display to
the public, sale, or purchase of these numbers has been used
to commit crimes, and also can result in serious invasions of
individual privacy.
(3) The Federal Government requires virtually every
individual in the United States to obtain and maintain a
Social Security number in order to pay taxes, to qualify for
Social Security benefits, or to seek employment. An
unintended consequence of these requirements is that Social
Security numbers have become one of the tools that can be
used to facilitate crime, fraud, and invasions of the privacy
of the individuals to whom the numbers are assigned. Because
the Federal Government created and maintains this system, and
because the Federal Government does not permit individuals to
exempt themselves from those requirements, it is appropriate
for the Federal Government to take steps to stem the abuse of
Social Security numbers.
(4) The display, sale, or purchase of Social Security
numbers in no way facilitates uninhibited, robust, and wide-
open public debate, and restrictions on such display, sale,
or purchase would not affect public debate.
(5) No one should seek to profit from the display, sale, or
purchase of Social Security numbers in circumstances that
create a substantial risk of physical, emotional, or
financial harm to the individuals to whom those numbers are
assigned.
(6) Consequently, this Act provides each individual that
has been assigned a Social Security number some degree of
protection from the display, sale, and purchase of that
number in any circumstance that might facilitate unlawful
conduct.
SEC. 3. PROHIBITION OF THE DISPLAY, SALE, OR PURCHASE OF
SOCIAL SECURITY NUMBERS.
(a) Prohibition.--
(1) In general.--Chapter 47 of title 18, United States
Code, is amended by inserting after section 1028A the
following:
``Sec. 1028B. Prohibition of the display, sale, or purchase
of Social Security numbers
``(a) Definitions.--In this section:
``(1) Display.--The term `display' means to intentionally
communicate or otherwise make available (on the Internet or
in any other manner) to the general public an individual's
Social Security number.
``(2) Person.--The term `person' means any individual,
partnership, corporation, trust, estate, cooperative,
association, or any other entity.
``(3) Purchase.--The term `purchase' means providing
directly or indirectly, anything of value in exchange for a
Social Security number.
``(4) Sale.--The term `sale' means obtaining, directly or
indirectly, anything of value in exchange for a Social
Security number.
``(5) State.--The term `State' means any State of the
United States, the District of Columbia, Puerto Rico, the
Northern Mariana Islands, the United States Virgin Islands,
Guam, American Samoa, and any territory or possession of the
United States.
``(b) Limitation on Display.--Except as provided in section
1028C, no person may display any individual's Social Security
number to the general public without the affirmatively
expressed consent of the individual.
``(c) Limitation on Sale or Purchase.--Except as otherwise
provided in this section, no person may sell or purchase any
individual's Social Security number without the affirmatively
expressed consent of the individual.
``(d) Prerequisites for Consent.--In order for consent to
exist under subsection (b) or (c), the person displaying or
seeking to display, selling or attempting to sell, or
purchasing or attempting to purchase, an individual's Social
Security number shall--
``(1) inform the individual of the general purpose for
which the number will be used, the types of persons to whom
the number may be available, and the scope of transactions
permitted by the consent; and
``(2) obtain the affirmatively expressed consent
(electronically or in writing) of the individual.
``(e) Exceptions.--Nothing in this section shall be
construed to prohibit or limit the display, sale, or purchase
of a Social Security number--
``(1) required, authorized, or excepted under any Federal
law;
``(2) for a public health purpose, including the protection
of the health or safety of an individual in an emergency
situation;
``(3) for a national security purpose;
``(4) for a law enforcement purpose, including the
investigation of fraud and the enforcement of a child support
obligation;
``(5) if the display, sale, or purchase of the number is
for a use occurring as a result of an interaction between
businesses, governments, or business and government
(regardless of which entity initiates the interaction),
including, but not limited to--
``(A) the prevention of fraud (including fraud in
protecting an employee's right to employment benefits);
``(B) the facilitation of credit checks or the facilitation
of background checks of employees, prospective employees, or
volunteers;
``(C) the retrieval of other information from other
businesses, commercial enterprises, government entities, or
private nonprofit organizations; or
``(D) when the transmission of the number is incidental to,
and in the course of, the sale, lease, franchising, or merger
of all, or a portion of, a business;
``(6) if the transfer of such a number is part of a data
matching program involving a Federal, State, or local agency;
or
``(7) if such number is required to be submitted as part of
the process for applying for any type of Federal, State, or
local government benefit or program;
except that, nothing in this subsection shall be construed as
permitting a professional or commercial user to display or
sell a Social Security number to the general public.
``(f) Limitation.--Nothing in this section shall prohibit
or limit the display, sale, or purchase of Social Security
numbers as permitted under title V of the Gramm-Leach-Bliley
Act, or for the purpose of affiliate sharing as permitted
under the Fair Credit Reporting Act, except that no entity
regulated under such Acts may make Social Security numbers
available to the general public, as may be determined by the
appropriate regulators under such Acts. For purposes of this
subsection, the general public shall not include affiliates
or unaffiliated third-party business entities as may be
defined by the appropriate regulators.''.
(2) Conforming amendment.--The chapter analysis for chapter
47 of title 18, United States Code, is amended by inserting
after the item relating to section 1028 the following:
``1028B. Prohibition of the display, sale, or purchase of Social
Security numbers.''.
(b) Study; Report.--
(1) In general.--The Attorney General shall conduct a study
and prepare a report on all of the uses of Social Security
numbers permitted, required, authorized, or excepted under
any Federal law. The report shall include a detailed
description of the uses allowed as of the date of enactment
of this Act, the impact of such uses on privacy and data
security, and shall evaluate whether such uses should be
continued or discontinued by appropriate legislative action.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Attorney General shall report to
Congress findings under this subsection. The report shall
include such recommendations for legislation based on
criteria the Attorney General determines to be appropriate.
(c) Effective Date.--The amendments made by this section
shall take effect on the date that is 30 days after the date
on which the final regulations promulgated under section 5
are published in the Federal Register.
SEC. 4. APPLICATION OF PROHIBITION OF THE DISPLAY, SALE, OR
PURCHASE OF SOCIAL SECURITY NUMBERS TO PUBLIC
RECORDS.
(a) Public Records Exception.--
(1) In general.--Chapter 47 of title 18, United States Code
(as amended by section 3(a)(1)), is amended by inserting
after section 1028B the following:
``Sec. 1028C. Display, sale, or purchase of public records
containing Social Security numbers
``(a) Definition.--In this section, the term `public
record' means any governmental record that is made available
to the general public.
``(b) In General.--Except as provided in subsections (c),
(d), and (e), section 1028B shall not apply to a public
record.
``(c) Public Records on the Internet or in an Electronic
Medium.--
``(1) In general.--Section 1028B shall apply to any public
record first posted onto the Internet or provided in an
electronic medium by, or on behalf of a government entity
after the date of enactment of this section, except as
limited by the Attorney General in accordance with paragraph
(2).
``(2) Exception for government entities already placing
public records on the internet or in electronic form.--Not
later than 60 days after the date of enactment of this
section, the Attorney General shall issue regulations
regarding the applicability of section 1028B to any record of
a category of public records first posted onto the Internet
or provided in an electronic medium by, or on behalf of a
government entity prior to the date of enactment of this
section. The regulations will determine which individual
records within categories of records of these government
entities, if any, may continue to be posted on the Internet
or in electronic form after the effective date of this
section. In promulgating these regulations, the Attorney
General may include in the regulations a set of procedures
for implementing the regulations and shall consider the
following:
``(A) The cost and availability of technology available to
a governmental entity to redact Social Security numbers from
public records first provided in electronic form after the
effective date of this section.
``(B) The cost or burden to the general public, businesses,
commercial enterprises, non-profit organizations, and to
Federal, State, and local governments of complying with
section 1028B with respect to such records.
``(C) The benefit to the general public, businesses,
commercial enterprises, non-profit organizations, and to
Federal, State, and local governments if the Attorney General
were to determine that section 1028B should apply to such
records.
Nothing in the regulation shall permit a public entity to
post a category of public records on the Internet or in
electronic form after the effective date of this section if
such category had not been placed on the Internet or in
electronic form prior to such effective date.
[[Page S3819]]
``(d) Harvested Social Security Numbers.--Section 1028B
shall apply to any public record of a government entity which
contains Social Security numbers extracted from other public
records for the purpose of displaying or selling such numbers
to the general public.
``(e) Attorney General Rulemaking on Paper Records.--
``(1) In general.--Not later than 60 days after the date of
enactment of this section, the Attorney General shall
determine the feasibility and advisability of applying
section 1028B to the records listed in paragraph (2) when
they appear on paper or on another nonelectronic medium. If
the Attorney General deems it appropriate, the Attorney
General may issue regulations applying section 1028B to such
records.
``(2) List of paper and other nonelectronic records.--The
records listed in this paragraph are as follows:
``(A) Professional or occupational licenses.
``(B) Marriage licenses.
``(C) Birth certificates.
``(D) Death certificates.
``(E) Other short public documents that display a Social
Security number in a routine and consistent manner on the
face of the document.
``(3) Criteria for attorney general review.--In determining
whether section 1028B should apply to the records listed in
paragraph (2), the Attorney General shall consider the
following:
``(A) The cost or burden to the general public, businesses,
commercial enterprises, non-profit organizations, and to
Federal, State, and local governments of complying with
section 1028B.
``(B) The benefit to the general public, businesses,
commercial enterprises, non-profit organizations, and to
Federal, State, and local governments if the Attorney General
were to determine that section 1028B should apply to such
records.''.
(2) Conforming amendment.--The chapter analysis for chapter
47 of title 18, United States Code (as amended by section
3(a)(2)), is amended by inserting after the item relating to
section 1028B the following:
``1028C. Display, sale, or purchase of public records containing Social
Security numbers.''.
(b) Study and Report on Social Security Numbers in Public
Records.--
(1) Study.--The Comptroller General of the United States
shall conduct a study and prepare a report on Social Security
numbers in public records. In developing the report, the
Comptroller General shall consult with the Administrative
Office of the United States Courts, State and local
governments that store, maintain, or disseminate public
records, and other stakeholders, including members of the
private sector who routinely use public records that contain
Social Security numbers.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Comptroller General of the United
States shall submit to Congress a report on the study
conducted under paragraph (1). The report shall include a
detailed description of the activities and results of the
study and recommendations for such legislative action as the
Comptroller General considers appropriate. The report, at a
minimum, shall include--
(A) a review of the uses of Social Security numbers in non-
federal public records;
(B) a review of the manner in which public records are
stored (with separate reviews for both paper records and
electronic records);
(C) a review of the advantages or utility of public records
that contain Social Security numbers, including the utility
for law enforcement, and for the promotion of homeland
security;
(D) a review of the disadvantages or drawbacks of public
records that contain Social Security numbers, including
criminal activity, compromised personal privacy, or threats
to homeland security;
(E) the costs and benefits for State and local governments
of removing Social Security numbers from public records,
including a review of current technologies and procedures for
removing Social Security numbers from public records; and
(F) an assessment of the benefits and costs to businesses,
their customers, and the general public of prohibiting the
display of Social Security numbers on public records (with
separate assessments for both paper records and electronic
records).
(c) Effective Date.--The prohibition with respect to
electronic versions of new classes of public records under
section 1028C(b) of title 18, United States Code (as added by
subsection (a)(1)) shall not take effect until the date that
is 60 days after the date of enactment of this Act.
SEC. 5. RULEMAKING AUTHORITY OF THE ATTORNEY GENERAL.
(a) In General.--Except as provided in subsection (b), the
Attorney General may prescribe such rules and regulations as
the Attorney General deems necessary to carry out the
provisions of section 1028B(e)(5) of title 18, United States
Code (as added by section 3(a)(1)).
(b) Display, Sale, or Purchase Rulemaking With Respect to
Interactions Between Businesses, Governments, or Business and
Government.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Attorney General, in consultation
with the Commissioner of Social Security, the Chairman of the
Federal Trade Commission, and such other heads of Federal
agencies as the Attorney General determines appropriate,
shall conduct such rulemaking procedures in accordance with
subchapter II of chapter 5 of title 5, United States Code, as
are necessary to promulgate regulations to implement and
clarify the uses occurring as a result of an interaction
between businesses, governments, or business and government
(regardless of which entity initiates the interaction)
permitted under section 1028B(e)(5) of title 18, United
States Code (as added by section 3(a)(1)).
(2) Factors to be considered.--In promulgating the
regulations required under paragraph (1), the Attorney
General shall, at a minimum, consider the following:
(A) The benefit to a particular business, to customers of
the business, and to the general public of the display, sale,
or purchase of an individual's Social Security number.
(B) The costs that businesses, customers of businesses, and
the general public may incur as a result of prohibitions on
the display, sale, or purchase of Social Security numbers.
(C) The risk that a particular business practice will
promote the use of a Social Security number to commit fraud,
deception, or crime.
(D) The presence of adequate safeguards, procedures, and
technologies to prevent--
(i) misuse of Social Security numbers by employees within a
business; and
(ii) misappropriation of Social Security numbers by the
general public, while permitting internal business uses of
such numbers.
(E) The presence of procedures to prevent identity thieves,
stalkers, and other individuals with ill intent from posing
as legitimate businesses to obtain Social Security numbers.
(F) The impact of such uses on privacy.
SEC. 6. LIMITS ON PERSONAL DISCLOSURE OF A SOCIAL SECURITY
NUMBER FOR CONSUMER TRANSACTIONS.
(a) In General.--Part A of title XI of the Social Security
Act (42 U.S.C. 1301 et seq.) is amended by adding at the end
the following:
``SEC. 1150A. LIMITS ON PERSONAL DISCLOSURE OF A SOCIAL
SECURITY NUMBER FOR CONSUMER TRANSACTIONS.
``(a) In General.--A commercial entity may not require an
individual to provide the individual's Social Security number
when purchasing a commercial good or service or deny an
individual the good or service for refusing to provide that
number except--
``(1) for any purpose relating to--
``(A) obtaining a consumer report for any purpose permitted
under the Fair Credit Reporting Act;
``(B) a background check of the individual conducted by a
landlord, lessor, employer, voluntary service agency, or
other entity as determined by the Attorney General;
``(C) law enforcement; or
``(D) a Federal, State, or local law requirement; or
``(2) if the Social Security number is necessary to verify
the identity of the consumer to effect, administer, or
enforce the specific transaction requested or authorized by
the consumer, or to prevent fraud.
``(b) Application of Civil Money Penalties.--A violation of
this section shall be deemed to be a violation of section
1129(a)(3)(F).
``(c) Application of Criminal Penalties.--A violation of
this section shall be deemed to be a violation of section
208(a)(8).
``(d) Limitation on Class Actions.--No class action
alleging a violation of this section shall be maintained
under this section by an individual or any private party in
Federal or State court.
``(e) State Attorney General Enforcement.--
``(1) In general.--
``(A) Civil actions.--In any case in which the attorney
general of a State has reason to believe that an interest of
the residents of that State has been or is threatened or
adversely affected by the engagement of any person in a
practice that is prohibited under this section, the State, as
parens patriae, may bring a civil action on behalf of the
residents of the State in a district court of the United
States of appropriate jurisdiction to--
``(i) enjoin that practice;
``(ii) enforce compliance with such section;
``(iii) obtain damages, restitution, or other compensation
on behalf of residents of the State; or
``(iv) obtain such other relief as the court may consider
appropriate.
``(B) Notice.--
``(i) In general.--Before filing an action under
subparagraph (A), the attorney general of the State involved
shall provide to the Attorney General--
``(I) written notice of the action; and
``(II) a copy of the complaint for the action.
``(ii) Exemption.--
``(I) In general.--Clause (i) shall not apply with respect
to the filing of an action by an attorney general of a State
under this subsection, if the State attorney general
determines that it is not feasible to provide the notice
described in such subparagraph before the filing of the
action.
``(II) Notification.--With respect to an action described
in subclause (I), the attorney general of a State shall
provide notice and a copy of the complaint to the Attorney
General at the same time as the State attorney general files
the action.
``(2) Intervention.--
``(A) In general.--On receiving notice under paragraph
(1)(B), the Attorney General
[[Page S3820]]
shall have the right to intervene in the action that is the
subject of the notice.
``(B) Effect of intervention.--If the Attorney General
intervenes in the action under paragraph (1), the Attorney
General shall have the right to be heard with respect to any
matter that arises in that action.
``(3) Construction.--For purposes of bringing any civil
action under paragraph (1), nothing in this section shall be
construed to prevent an attorney general of a State from
exercising the powers conferred on such attorney general by
the laws of that State to--
``(A) conduct investigations;
``(B) administer oaths or affirmations; or
``(C) compel the attendance of witnesses or the production
of documentary and other evidence.
``(4) Actions by the attorney general of the united
states.--In any case in which an action is instituted by or
on behalf of the Attorney General for violation of a practice
that is prohibited under this section, no State may, during
the pendency of that action, institute an action under
paragraph (1) against any defendant named in the complaint in
that action for violation of that practice.
``(5) Venue; service of process.--
``(A) Venue.--Any action brought under paragraph (1) may be
brought in the district court of the United States that meets
applicable requirements relating to venue under section 1391
of title 28, United States Code.
``(B) Service of process.--In an action brought under
paragraph (1), process may be served in any district in which
the defendant--
``(i) is an inhabitant; or
``(ii) may be found.
``(f) Sunset.--This section shall not apply on or after the
date that is 6 years after the effective date of this
section.''.
(b) Evaluation and Report.--Not later than the date that is
6 years and 6 months after the date of enactment of this Act,
the Attorney General, in consultation with the chairman of
the Federal Trade Commission, shall issue a report evaluating
the effectiveness and efficiency of section 1150A of the
Social Security Act (as added by subsection (a)) and shall
make recommendations to Congress as to any legislative action
determined to be necessary or advisable with respect to such
section, including a recommendation regarding whether to
reauthorize such section.
(c) Effective Date.--The amendment made by subsection (a)
shall apply to requests to provide a Social Security number
occurring after the date that is 1 year after the date of
enactment of this Act.
SEC. 7. EXTENSION OF CIVIL MONETARY PENALTIES FOR MISUSE OF A
SOCIAL SECURITY NUMBER.
(a) Treatment of Withholding of Material Facts.--
(1) Civil penalties.--The first sentence of section
1129(a)(1) of the Social Security Act (42 U.S.C. 1320a-
8(a)(1)) is amended--
(A) by striking ``who'' and inserting ``who--'';
(B) by striking ``makes'' and all that follows through
``shall be subject to'' and inserting the following:
``(A) makes, or causes to be made, a statement or
representation of a material fact, for use in determining any
initial or continuing right to or the amount of monthly
insurance benefits under title II or benefits or payments
under title VIII or XVI, that the person knows or should know
is false or misleading;
``(B) makes such a statement or representation for such use
with knowing disregard for the truth; or
``(C) omits from a statement or representation for such
use, or otherwise withholds disclosure of, a fact which the
individual knows or should know is material to the
determination of any initial or continuing right to or the
amount of monthly insurance benefits under title II or
benefits or payments under title VIII or XVI and the
individual knows, or should know, that the statement or
representation with such omission is false or misleading or
that the withholding of such disclosure is misleading, shall
be subject to'';
(C) by inserting ``or each receipt of such benefits while
withholding disclosure of such fact'' after ``each such
statement or representation'';
(D) by inserting ``or because of such withholding of
disclosure of a material fact'' after ``because of such
statement or representation''; and
(E) by inserting ``or such a withholding of disclosure''
after ``such a statement or representation''.
(2) Administrative procedure for imposing penalties.--The
first sentence of section 1129A(a) of the Social Security Act
(42 U.S.C. 1320a-8a(a)) is amended--
(A) by striking ``who'' and inserting ``who--''; and
(B) by striking ``makes'' and all that follows through
``shall be subject to'' and inserting the following:
``(1) makes, or causes to be made, a statement or
representation of a material fact, for use in determining any
initial or continuing right to or the amount of monthly
insurance benefits under title II or benefits or payments
under title VIII or XVI, that the person knows or should know
is false or misleading;
``(2) makes such a statement or representation for such use
with knowing disregard for the truth; or
``(3) omits from a statement or representation for such
use, or otherwise withholds disclosure of, a fact which the
individual knows or should know is material to the
determination of any initial or continuing right to or the
amount of monthly insurance benefits under title II or
benefits or payments under title VIII or XVI and the
individual knows, or should know, that the statement or
representation with such omission is false or misleading or
that the withholding of such disclosure is misleading, shall
be subject to''.
(b) Application of Civil Money Penalties to Elements of
Criminal Violations.--Section 1129(a) of the Social Security
Act (42 U.S.C. 1320a-8(a)), as amended by subsection (a)(1),
is amended--
(1) by redesignating paragraph (2) as paragraph (4);
(2) by redesignating the last sentence of paragraph (1) as
paragraph (2) and inserting such paragraph after paragraph
(1); and
(3) by inserting after paragraph (2) (as so redesignated)
the following:
``(3) Any person (including an organization, agency, or
other entity) who--
``(A) uses a Social Security account number that such
person knows or should know has been assigned by the
Commissioner of Social Security (in an exercise of authority
under section 205(c)(2) to establish and maintain records) on
the basis of false information furnished to the Commissioner
by any person;
``(B) falsely represents a number to be the Social Security
account number assigned by the Commissioner of Social
Security to any individual, when such person knows or should
know that such number is not the Social Security account
number assigned by the Commissioner to such individual;
``(C) knowingly alters a Social Security card issued by the
Commissioner of Social Security, or possesses such a card
with intent to alter it;
``(D) knowingly displays, sells, or purchases a card that
is, or purports to be, a card issued by the Commissioner of
Social Security, or possesses such a card with intent to
display, purchase, or sell it;
``(E) counterfeits a Social Security card, or possesses a
counterfeit Social Security card with intent to display,
sell, or purchase it;
``(F) discloses, uses, compels the disclosure of, or
knowingly displays, sells, or purchases the Social Security
account number of any person in violation of the laws of the
United States;
``(G) with intent to deceive the Commissioner of Social
Security as to such person's true identity (or the true
identity of any other person) furnishes or causes to be
furnished false information to the Commissioner with respect
to any information required by the Commissioner in connection
with the establishment and maintenance of the records
provided for in section 205(c)(2);
``(H) offers, for a fee, to acquire for any individual, or
to assist in acquiring for any individual, an additional
Social Security account number or a number which purports to
be a Social Security account number; or
``(I) being an officer or employee of a Federal, State, or
local agency in possession of any individual's Social
Security account number, willfully acts or fails to act so as
to cause a violation by such agency of clause (vi)(II) or (x)
of section 205(c)(2)(C), shall be subject to, in addition to
any other penalties that may be prescribed by law, a civil
money penalty of not more than $5,000 for each violation.
Such person shall also be subject to an assessment, in lieu
of damages sustained by the United States resulting from such
violation, of not more than twice the amount of any benefits
or payments paid as a result of such violation.''.
(c) Clarification of Treatment of Recovered Amounts.--
Section 1129(e)(2)(B) of the Social Security Act (42 U.S.C.
1320a-8(e)(2)(B)) is amended by striking ``In the case of
amounts recovered arising out of a determination relating to
title VIII or XVI,'' and inserting ``In the case of any other
amounts recovered under this section,''.
(d) Conforming Amendments.--
(1) Section 1129(b)(3)(A) of the Social Security Act (42
U.S.C. 1320a-8(b)(3)(A)) is amended by striking ``charging
fraud or false statements''.
(2) Section 1129(c)(1) of the Social Security Act (42
U.S.C. 1320a-8(c)(1)) is amended by striking ``and
representations'' and inserting ``, representations, or
actions''.
(3) Section 1129(e)(1)(A) of the Social Security Act (42
U.S.C. 1320a-8(e)(1)(A)) is amended by striking ``statement
or representation referred to in subsection (a) was made''
and inserting ``violation occurred''.
(e) Effective Dates.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall apply with respect to
violations of sections 1129 and 1129A of the Social Security
Act (42 U.S.C. 1320-8 and 1320a-8a), as amended by this
section, committed after the date of enactment of this Act.
(2) Violations by government agents in possession of social
security numbers.--Section 1129(a)(3)(I) of the Social
Security Act (42 U.S.C. 1320a-8(a)(3)(I)), as added by
subsection (b), shall apply with respect to violations of
that section occurring on or after the effective date
described in section 3(c).
(f) Repeal.--Section 201 of the Social Security Protection
Act of 2004 is repealed.
SEC. 8. CRIMINAL PENALTIES FOR THE MISUSE OF A SOCIAL
SECURITY NUMBER.
(a) Prohibition of Wrongful Use as Personal Identification
Number.--No person may obtain any individual's Social
Security
[[Page S3821]]
number for purposes of locating or identifying an individual
with the intent to physically injure, harm, or use the
identity of the individual for any illegal purpose.
(b) Criminal Sanctions.--Section 208(a) of the Social
Security Act (42 U.S.C. 408(a)) is amended--
(1) in paragraph (8), by inserting ``or'' after the
semicolon; and
(2) by inserting after paragraph (8) the following:
``(9) except as provided in subsections (e) and (f) of
section 1028B of title 18, United States Code, knowingly and
willfully displays, sells, or purchases (as those terms are
defined in section 1028B(a) of title 18, United States Code)
any individual's Social Security account number without
having met the prerequisites for consent under section
1028B(d) of title 18, United States Code; or
``(10) obtains any individual's Social Security number for
the purpose of locating or identifying the individual with
the intent to injure or to harm that individual, or to use
the identity of that individual for an illegal purpose;''.
SEC. 9. CIVIL ACTIONS AND CIVIL PENALTIES.
(a) Civil Action in State Courts.--
(1) In general.--Any individual aggrieved by an act of any
person in violation of this Act or any amendments made by
this Act may, if otherwise permitted by the laws or rules of
the court of a State, bring in an appropriate court of that
State--
(A) an action to enjoin such violation;
(B) an action to recover for actual monetary loss from such
a violation, or to receive up to $500 in damages for each
such violation, whichever is greater; or
(C) both such actions.
It shall be an affirmative defense in any action brought
under this paragraph that the defendant has established and
implemented, with due care, reasonable practices and
procedures to effectively prevent violations of the
regulations prescribed under this Act. If the court finds
that the defendant willfully or knowingly violated the
regulations prescribed under this subsection, the court may,
in its discretion, increase the amount of the award to an
amount equal to not more than 3 times the amount available
under subparagraph (B).
(2) Statute of limitations.--An action may be commenced
under this subsection not later than the earlier of--
(A) 5 years after the date on which the alleged violation
occurred; or
(B) 3 years after the date on which the alleged violation
was or should have been reasonably discovered by the
aggrieved individual.
(3) Nonexclusive remedy.--The remedy provided under this
subsection shall be in addition to any other remedies
available to the individual.
(b) Civil Penalties.--
(1) In general.--Any person who the Attorney General
determines has violated any section of this Act or of any
amendments made by this Act shall be subject, in addition to
any other penalties that may be prescribed by law--
(A) to a civil penalty of not more than $5,000 for each
such violation; and
(B) to a civil penalty of not more than $50,000, if the
violations have occurred with such frequency as to constitute
a general business practice.
(2) Determination of violations.--Any willful violation
committed contemporaneously with respect to the Social
Security numbers of 2 or more individuals by means of mail,
telecommunication, or otherwise, shall be treated as a
separate violation with respect to each such individual.
(3) Enforcement procedures.--The provisions of section
1128A of the Social Security Act (42 U.S.C. 1320a-7a), other
than subsections (a), (b), (f), (h), (i), (j), (m), and (n)
and the first sentence of subsection (c) of such section, and
the provisions of subsections (d) and (e) of section 205 of
such Act (42 U.S.C. 405) shall apply to a civil penalty
action under this subsection in the same manner as such
provisions apply to a penalty or proceeding under section
1128A(a) of such Act (42 U.S.C. 1320a-7a(a)), except that,
for purposes of this paragraph, any reference in section
1128A of such Act (42 U.S.C. 1320a-7a) to the Secretary shall
be deemed to be a reference to the Attorney General.
SEC. 10. FEDERAL INJUNCTIVE AUTHORITY.
In addition to any other enforcement authority conferred
under this Act or the amendments made by this Act, the
Federal Government shall have injunctive authority with
respect to any violation by a public entity of any provision
of this Act or of any amendments made by this Act.
______
By Mr. SANDERS (for himself, Mr. Nelson of Florida, Mr.
Blumenthal, Mr. Merkley, Mr. Franken, and Mr. Whitehouse):
S. 1200. A bill to require the Chairman of the Commodity Futures
Trading Commission to impose unilaterally position limits and margin
requirements to eliminate excessive oil speculation, and to take other
actions to ensure that the price of crude oil, gasoline, diesel fuel,
jet fuel, and heating oil accurately reflects the fundamentals of
supply and demand, to remain in effect until the date on which the
Commission establishes position limits to diminish, eliminate, or
prevent excessive speculation as required by title VII of the Dodd-
Frank Wall Street Reform and Consumer Protection Act, and for other
purposes; to the Committee on Agriculture, Nutrition, and Forestry.
Mr. SANDERS. Mr. President, I think every American understands that
the very high price of oil and gas is having a very negative impact on
our fragile economic recovery. Also, in rural States, such as Vermont,
Montana, and other rural States, it is wreaking real hardship on
working people who in many cases drive long distances to work. In
Vermont certainly, it is not uncommon for people to be driving 50 miles
to their job and 50 miles back. When the price of gas gets to be $3.80
a gallon or $4 a gallon, it really hurts. When wages are stagnant, when
many people have seen a decline in their paychecks, high gas prices
have just taken another chunk out of their limited income. It is
something that as a Congress we have to address.
The price of oil today, while declining somewhat in recent weeks, is
still over $97 a barrel. In Vermont, it is over $3.80 a gallon at the
pump. The theory behind the setting of oil prices that we learned in
high school is that oil prices are set by supply and demand. When there
is limited supply and a lot of demand, oil prices go up. When there is
a lot of supply and limited demand, oil prices should go down.
So let's be clear: The fact is today there is more supply than there
was 2 years ago, today there is less demand than there was 2 years ago;
therefore, oil prices should be substantially lower than was the case 2
years ago. The fact, however, is just the opposite. In Vermont today,
gas prices are $3.80 a gallon. Two years ago, they were approximately
$2.44 a gallon. So the explanation of supply and demand in terms of why
oil prices have soared just does not carry any weight.
While we cannot ignore the fact that big oil companies have been
gouging consumers at the pump for years and have made almost $1
trillion in profits over the past decade, there is mounting evidence
that the increased price of gasoline and oil has nothing to do with
supply and demand and everything to do with Wall Street speculators who
are dominating the oil futures market and driving prices up, up, and
up. Ten years ago, speculators only controlled about 30 percent of that
market. Today, Wall Street speculators control over 80 percent--over 80
percent--of the oil futures market, and many of them will never use one
drop of that oil. So we are not talking about airlines that use gas and
oil. We are not talking about trucking companies. We are not talking
about home heating companies. We are talking about speculators whose
only function in this entire process is to make as much money as they
can by raising prices and then selling.
This is not just Senator Bernie Sanders making this point. Let me
quote from a June 2 article from the Wall Street Journal:
Wall Street is tapping a real gusher in 2011, as heightened
volatility and higher prices of oil and other raw materials
boost banks' profits . . . by 55 percent in the first
quarter.
Banks' profits are soaring as a result of oil speculation. That is
the fact. It is not just the Wall Street Journal. The CEO of
ExxonMobil, Rex Tillerson, in response to a question at a recent Senate
hearing, estimated that speculation was driving up the price of a
barrel of oil by as much as 40 percent. That is the CEO of ExxonMobil.
He might know something about that issue.
The general counsel of Delta Airlines--a major consumer of fuel--Ben
Hirst, and the experts at Goldman Sachs have all said that excessive
speculation is causing oil prices to spike by 20 to 40 percent.
Even Saudi Arabia, the largest exporter of oil in the world, told the
Bush administration back in 2008--when the Bush administration went to
them and said: We need to drive prices down. Produce more oil. Sell
more oil--they said that is not the problem. Saudi Arabia said: We have
all the oil we need. The problem is speculation. And they estimated
that speculation could result in about $40 a barrel.
In other words, the same Wall Street speculators who caused the worst
financial crisis since the 1930s through their greed, recklessness, and
illegal behavior are back at it again, and this time they are ripping
off the American people by gambling that the price of oil
[[Page S3822]]
and gas will continue to go up and up and in that process are driving
the price of gas and oil up and up.
Sadly--and this is the important point--this spike in oil and
gasoline prices was entirely avoidable. This was avoidable. The Wall
Street Reform Act that we passed last year, the Dodd-Frank legislation,
required--underline ``required''--the Commodity Futures Trading
Commission to impose strict limits on the amount of oil Wall Street
speculators could trade in the energy futures market by January 17 of
this year.
We passed legislation that said to the Commodity Futures Trading
Commission: You have to impose rules by January 17 with strict limits
on excessive oil speculation.
Mr. President, 6 months have come and gone. They have not done what
they were required to do.
Almost 5 months later, the CFTC has still not imposed those
speculation requirements. In other words, the chief regulator on oil
speculation is clearly breaking the law and is not doing what he is
supposed to be doing.
Last month I held a meeting in my office with Mr. Gary Gensler, who
is the Chairman of the CFTC, and six other Senators. I have to tell you
that I was extremely disappointed in both the tone of that meeting and
the complete lack of urgency at the CFTC with respect to cracking down
on oil speculators as required by the law.
Therefore, today I have introduced legislation, along with Senators
Blumenthal, Merkley, Franken, Whitehouse, and Bill Nelson to end
excessive speculation once and for all--once and for all. The American
people cannot continue to be ripped off by Wall Street which is
artificially driving up the price of oil and gas.
I am very pleased to also announce that Congressman Maurice Hinchey
will be introducing this legislation in the House. This legislation
mandates that the Chairman of the CFTC take immediate action to
eliminate excessive oil speculation within 2 weeks--2 weeks.
One. Our bill requires the Chairman to establish speculative oil
position limits equal to the position accountability levels that have
been in place at the New York Mercantile Exchange since 2001.
Two. This bill requires the Chairman of the CFTC to double the margin
requirements on speculative oil trading so that Wall Street investment
banks back their bets with real capital.
Three. Under this bill, Goldman Sachs, Morgan Stanley, and other Wall
Street investment banks engaged in proprietary oil trading would be
classified as speculators instead of bona fide hedgers.
Four. The Chairman of the CFTC would be required under this bill to
take any other action necessary to eliminate excessive speculation and
ensure that the price of oil accurately reflects the fundamentals of
supply and demand.
I am pleased to announce that this legislation already has the
support of a very diverse group of organizations representing small
businesses, fuel dealers, consumers, workers, airlines, and farmers.
Some of those organizations are: Americans for Financial Reform; the
Consumer Federation of America; Delta Airlines; the Gasoline and
Automotive Service Dealers of America; the International Brotherhood of
Teamsters; the Main Street Alliance; the National Farmers Union; New
England Fuel Institute; Public Citizen; and the Vermont Fuel Dealers
Association. This is just a few.
I want to thank all of those organizations for their support. The
American people are sick and tired of being ripped off at the gas pump.
People in the northern States, whether it is Vermont or Minnesota,
worry about what the price of home heating oil will be next winter.
What we are seeing now in terms of excessively high oil and gas prices
has nothing to do with supply and demand and everything to do with Wall
Street speculation.
This Congress has told the CFTC to act. They have failed to act. Now
is the time for us to tell them exactly what must happen.
______
By Mr. LIEBERMAN (for himself, Mr. Crapo, Mr. Tester, Mr.
Bingaman, Ms. Murkowski, Mr. Whitehouse, Mr. Begich, Mr.
Cardin, and Mr. Udall of Colorado:
S. 1201. A bill to conserve fish and aquatic communities in the
United States through partnerships that foster fish habitat
conservation, to improve the quality of life for the people of the
United States, and for other purposes; to the Committee on Environment
and Public Works.
Mr. LIEBERMAN. Mr. President, I rise to speak about the National Fish
Habitat Conservation Act, which I am introducing today along with my
colleagues Senators Crapo, Tester, Bingaman, Murkowski, Whitehouse,
Begich, Cardin, and Mark Udall. This legislation would establish the
most comprehensive effort ever attempted to treat the causes of fish
habitat decline.
Healthy waterways and robust fish populations are vital to the well-
being of our society and are a staple in many cultures throughout the
United States. This bill will help provide clean water and sustainable
fisheries in this country and provide recreational value to those who
fish wild waters or canoe tranquil streams. This means more
recreational fishing opportunity, which translates into more jobs and
economic output. Currently, recreational fishing supports approximately
one million jobs and $45 billion in direct expenditures. Today, nearly
half, 40 percent, of our fish populations are in decline, over 700
species in total, and 50 percent of our Nation's waters are impaired.
Unless we act in an informed and coordinated fashion, fish habitats
will continue to be lost at a rapid pace. This bill is about better
habitat, better recreational fishing opportunity as well as a better
economy.
Currently, our Nation's efforts to address threats to fish species
are often highly disjointed and not extensive enough to reverse this
downward trend. Under the National Fish Habitat Conservation Act,
Federal Government agencies, State and local governments, conservation
groups, fishing industry groups and related businesses will work
together collectively for the first time to conserve and protect
aquatic habitats critical to our Nation. The National Fish Habitat
Conservation Act will also provide people with clean and safe water
supplies and improve ecosystems through habitat conservation projects
that remediate problems on our waterways, including erosion, drainage
issues and flooding.
This legislation leverages Federal, State, and private funds to build
regional partnerships aimed at addressing the Nation's biggest aquatic
habitat problems. By directing critical resources towards this cause
through partnerships, we can foster fish habitat conservation efforts
and improve the quality of life for all Americans. Using a bottom-up
approach, the goal of this effort is to foster landscape scale, multi-
state aquatic habitat improvements across the country that perpetuate
not only fishery resources but the tradition of recreational fishing,
which is enjoyed by many Americans, spanning many generations. Over 40
million anglers utilize our waterways on a yearly basis, generating $45
billion dollars in retail sales for the industry nationwide. That
figure does not even include Americans who utilize our waterways for
other recreational purposes.
The National Fish Habitat Conservation Act authorizes grants to be
directed toward fish habitat projects that are supported by regional
Fish Habitat Partnerships. Based on the highly successful North
American Wetlands Conservation Act model, this legislation establishes
a multi-stakeholder National Fish Habitat Board charged with
recommending projects to the Secretary of Interior for assistance.
Regional Fish Habitat Partnerships are responsible for implementing
approved on-the-ground projects that are designed to protect, restore
and enhance fish habitats and fish populations.
The National Fish Habitat Conservation Act lays the foundation for a
new paradigm of how to care for fish habitats, displaying why they
should be restored and protected. This bill will bring together all of
the different groups that have a stake in the health and productivity
of our Nation's fish habitats and I look forward to working with my
colleagues to pass this important legislation and reverse the decline
of our ailing waterways and fisheries.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
[[Page S3823]]
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1201
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``National
Fish Habitat Conservation Act''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings; purpose.
Sec. 3. Definitions.
Sec. 4. National Fish Habitat Board.
Sec. 5. Fish habitat partnerships.
Sec. 6. Fish habitat conservation projects.
Sec. 7. National Fish Habitat Conservation Partnership Office.
Sec. 8. Technical and scientific assistance.
Sec. 9. Conservation of aquatic habitat for fish and other aquatic
organisms on Federal land.
Sec. 10. Coordination with States and Indian tribes.
Sec. 11. Accountability and reporting.
Sec. 12. Regulations.
Sec. 13. Effect of Act.
Sec. 14. Nonapplicability of Federal Advisory Committee Act.
Sec. 15. Funding.
SEC. 2. FINDINGS; PURPOSE.
(a) Findings.--Congress finds that--
(1) healthy populations of fish and other aquatic organisms
depend on the conservation, protection, restoration, and
enhancement of aquatic habitats in the United States;
(2) aquatic habitats (including wetlands, streams, rivers,
lakes, estuaries, coastal and marine ecosystems, and
associated riparian upland habitats that buffer those areas
from external factors) perform numerous valuable
environmental functions that sustain environmental, social,
and cultural values, including recycling nutrients, purifying
water, attenuating floods, augmenting and maintaining stream
flows, recharging ground water, acting as primary producers
in the food chain, and providing essential and significant
habitat for plants, fish, wildlife, and other dependent
species;
(3) the extensive and diverse aquatic habitat resources of
the United States are of enormous significance to the economy
of the United States, providing--
(A) recreation for 44,000,000 anglers;
(B) more than 1,000,000 jobs and approximately
$125,000,000,000 in economic impact each year relating to
recreational fishing; and
(C) approximately 500,000 jobs and an additional
$35,000,000,000 in economic impact each year relating to
commercial fishing;
(4) at least 40 percent of all threatened species and
endangered species in the United States are directly
dependent on aquatic habitats;
(5) certain fish species are considered to be ecological
indicators of aquatic habitat quality, such that the presence
of those species in an aquatic ecosystem reflects high-
quality habitat for other fish;
(6) loss and degradation of aquatic habitat, riparian
habitat, water quality, and water volume caused by activities
such as alteration of watercourses, stream blockages, water
withdrawals and diversions, erosion, pollution,
sedimentation, and destruction or modification of wetlands
have--
(A) caused significant declines in fish populations
throughout the United States, especially declines in native
fish populations; and
(B) resulted in economic losses to the United States;
(7)(A) providing for the conservation and sustainability of
fish and other aquatic organisms has not been fully realized,
despite federally funded fish and wildlife restoration
programs and other activities intended to conserve aquatic
resources; and
(B) that conservation and sustainability may be
significantly advanced through a renewed commitment and
sustained, cooperative efforts that are complementary to
existing fish and wildlife restoration programs and clean
water programs;
(8) the National Fish Habitat Action Plan provides a
framework for maintaining and restoring aquatic habitats to
ensure perpetuation of populations of fish and other aquatic
organisms;
(9) the United States can achieve significant progress
toward providing aquatic habitats for the conservation and
restoration of fish and other aquatic organisms through a
voluntary, nonregulatory incentive program that is based on
technical and financial assistance provided by the Federal
Government;
(10) the creation of partnerships between local citizens,
Indian tribes, Alaska Native organizations, corporations,
nongovernmental organizations, and Federal, State, and tribal
agencies is critical to the success of activities to restore
aquatic habitats and ecosystems;
(11) the Federal Government has numerous regulatory and
land and water management agencies that are critical to the
implementation of the National Fish Habitat Action Plan,
including--
(A) the United States Fish and Wildlife Service;
(B) the Bureau of Land Management;
(C) the National Park Service;
(D) the Bureau of Reclamation;
(E) the Bureau of Indian Affairs;
(F) the National Marine Fisheries Service;
(G) the Forest Service;
(H) the Natural Resources Conservation Service; and
(I) the Environmental Protection Agency;
(12) the United States Fish and Wildlife Service, the
Forest Service, the Bureau of Land Management, and the
National Marine Fisheries Service each play a vital role in--
(A) the protection, restoration, and enhancement of the
fish communities and aquatic habitats in the United States;
and
(B) the development, operation, and long-term success of
fish habitat partnerships and project implementation;
(13) the United States Geological Survey, the United States
Fish and Wildlife Service, and the National Marine Fisheries
Service each play a vital role in scientific evaluation, data
collection, and mapping for fishery resources in the United
States;
(14) the State and territorial fish and wildlife agencies
play a vital role in --
(A) the protection, restoration, and enhancement of the
fish communities and aquatic habitats in the respective
States and territories; and
(B) the development, operation, and long-term success of
fish habitat partnerships and project implementation; and
(15) many of the programs for conservation on private
farmland, ranchland, and forestland that are carried out by
the Secretary of Agriculture, including the Natural Resources
Conservation Service and the State and Private Forestry
programs of the Forest Service, are able to significantly
contribute to the implementation of the National Fish Habitat
Action Plan through the engagement of private landowners.
(b) Purpose.--The purpose of this Act is to encourage
partnerships among public agencies and other interested
parties consistent with the mission and goals of the National
Fish Habitat Action Plan--
(1) to protect and maintain intact and healthy aquatic
habitats;
(2) to prevent further degradation of aquatic habitats that
have been adversely affected;
(3) to reverse declines in the quality and quantity of
aquatic habitats to improve the overall health of fish and
other aquatic organisms;
(4) to increase the quality and quantity of aquatic
habitats that support a broad natural diversity of fish and
other aquatic species;
(5) to improve fisheries habitat in a manner that leads to
improvement of the annual economic output from recreational,
subsistence, and commercial fishing;
(6) to ensure coordination and facilitation of activities
carried out by Federal departments and agencies under the
leadership of--
(A) the Director of the United States Fish and Wildlife
Service;
(B) the Assistant Administrator for Fisheries of the
National Oceanic and Atmospheric Administration; and
(C) the Director of the United States Geological Survey;
and
(7) to achieve other purposes in accordance with the
mission and goals of the National Fish Habitat Action Plan.
SEC. 3. DEFINITIONS.
In this Act:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Commerce, Science, and Transportation
and the Committee on Environment and Public Works of the
Senate; and
(B) the Committee on Natural Resources of the House of
Representatives.
(2) Aquatic habitat.--
(A) In general.--The term ``aquatic habitat'' means any
area on which an aquatic organism depends, directly or
indirectly, to carry out the life processes of the organism,
including an area used by the organism for spawning,
incubation, nursery, rearing, growth to maturity, food
supply, or migration.
(B) Inclusions.--The term ``aquatic habitat'' includes an
area adjacent to an aquatic environment, if the adjacent
area--
(i) contributes an element, such as the input of detrital
material or the promotion of a planktonic or insect
population providing food, that makes fish life possible;
(ii) protects the quality and quantity of water sources;
(iii) provides public access for the use of fishery
resources; or
(iv) serves as a buffer protecting the aquatic environment.
(3) Assistant administrator.--The term ``Assistant
Administrator'' means the Assistant Administrator for
Fisheries of the National Oceanic and Atmospheric
Administration.
(4) Board.--The term ``Board'' means the National Fish
Habitat Board established by section 4(a)(1).
(5) Conservation; conserve; manage; management.--The terms
``conservation'', ``conserve'', ``manage'', and
``management'' mean to protect, sustain, and, where
appropriate, restore and enhance, using methods and
procedures associated with modern scientific resource
programs (including protection, research, census, law
enforcement, habitat management, propagation, live trapping
and transplantation, and regulated taking)--
(A) a healthy population of fish, wildlife, or plant life;
(B) a habitat required to sustain fish, wildlife, or plant
life; or
[[Page S3824]]
(C) a habitat required to sustain fish, wildlife, or plant
life productivity.
(6) Director.--The term ``Director'' means the Director of
the United States Fish and Wildlife Service.
(7) Fish.--
(A) In general.--The term ``fish'' means any freshwater,
diadromous, estuarine, or marine finfish or shellfish.
(B) Inclusions.--The term ``fish'' includes the egg, spawn,
spat, larval, and other juvenile stages of an organism
described in subparagraph (A).
(8) Fish habitat conservation project.--
(A) In general.--The term ``fish habitat conservation
project'' means a project that--
(i) is submitted to the Board by a Partnership and approved
by the Secretary under section 6; and
(ii) provides for the conservation or management of an
aquatic habitat.
(B) Inclusions.--The term ``fish habitat conservation
project'' includes--
(i) the provision of technical assistance to a State,
Indian tribe, or local community by the National Fish Habitat
Conservation Partnership Office or any other agency to
facilitate the development of strategies and priorities for
the conservation of aquatic habitats; or
(ii) the obtaining of a real property interest in land or
water, including water rights, in accordance with terms and
conditions that ensure that the real property will be
administered for the long-term conservation of--
(I) the land or water; and
(II) the fish dependent on the land or water.
(9) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(10) National fish habitat action plan.--The term
``National Fish Habitat Action Plan'' means the National Fish
Habitat Action Plan dated April 24, 2006, and any subsequent
revisions or amendments to that plan.
(11) Partnership.--The term ``Partnership'' means an entity
designated by the Board as a Fish Habitat Conservation
Partnership pursuant to section 5(a).
(12) Real property interest.--The term ``real property
interest'' means an ownership interest in--
(A) land;
(B) water (including water rights); or
(C) a building or object that is permanently affixed to
land.
(13) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(14) State agency.--The term ``State agency'' means--
(A) the fish and wildlife agency of a State;
(B) any department or division of a department or agency of
a State that manages in the public trust the inland or marine
fishery resources or the habitat for those fishery resources
of the State pursuant to State law or the constitution of the
State; or
(C) the fish and wildlife agency of the Commonwealth of
Puerto Rico, Guam, the Virgin Islands, or any other territory
or possession of the United States.
SEC. 4. NATIONAL FISH HABITAT BOARD.
(a) Establishment.--
(1) In general.--There is established a board, to be known
as the ``National Fish Habitat Board''--
(A) to promote, oversee, and coordinate the implementation
of this Act and the National Fish Habitat Action Plan;
(B) to establish national goals and priorities for aquatic
habitat conservation;
(C) to designate Partnerships; and
(D) to review and make recommendations regarding fish
habitat conservation projects.
(2) Membership.--The Board shall be composed of 27 members,
of whom--
(A) 1 shall be the Director;
(B) 1 shall be the Assistant Administrator;
(C) 1 shall be the Chief of the Natural Resources
Conservation Service;
(D) 1 shall be the Chief of the Forest Service;
(E) 1 shall be the Assistant Administrator for Water of the
Environmental Protection Agency;
(F) 1 shall be the President of the Association of Fish and
Wildlife Agencies;
(G) 1 shall be the Secretary of the Board of Directors of
the National Fish and Wildlife Foundation appointed pursuant
to section 3(g)(2)(B) of the National Fish and Wildlife
Foundation Establishment Act (16 U.S.C. 3702(g)(2)(B));
(H) 4 shall be representatives of State agencies, 1 of whom
shall be nominated by a regional association of fish and
wildlife agencies from each of the Northeast, Southeast,
Midwest, and Western regions of the United States;
(I) 1 shall be a representative of the American Fisheries
Society;
(J) 2 shall be representatives of Indian tribes, of whom--
(i) 1 shall represent Indian tribes from the State of
Alaska; and
(ii) 1 shall represent Indian tribes from the other States;
(K) 1 shall be a representative of the Regional Fishery
Management Councils established under section 302 of the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1852);
(L) 1 shall be a representative of the Marine Fisheries
Commissions, which is composed of--
(i) the Atlantic States Marine Fisheries Commission;
(ii) the Gulf States Marine Fisheries Commission; and
(iii) the Pacific States Marine Fisheries Commission;
(M) 1 shall be a representative of the Sportfishing and
Boating Partnership Council; and
(N) 10 shall be representatives selected from each of the
following groups:
(i) The recreational sportfishing industry.
(ii) The commercial fishing industry.
(iii) Marine recreational anglers.
(iv) Freshwater recreational anglers.
(v) Terrestrial resource conservation organizations.
(vi) Aquatic resource conservation organizations.
(vii) The livestock and poultry production industry.
(viii) The land development industry.
(ix) The row crop industry.
(x) Natural resource commodity interests, such as petroleum
or mineral extraction.
(3) Compensation.--A member of the Board shall serve
without compensation.
(4) Travel expenses.--A member of the Board shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for an employee of an agency
under subchapter I of chapter 57 of title 5, United States
Code, while away from the home or regular place of business
of the member in the performance of the duties of the Board.
(b) Appointment and Terms.--
(1) In general.--Except as otherwise provided in this
subsection, a member of the Board described in any of
subparagraphs (H) through (N) of subsection (a)(2) shall
serve for a term of 3 years.
(2) Initial board membership.--
(A) In general.--Not later than 180 days after the date of
enactment of this Act, the representatives of the board
established by the National Fish Habitat Action Plan shall
appoint the initial members of the Board described in
subparagraphs (H) through (I) and (K) through (N) of
subsection (a)(2).
(B) Tribal representatives.--Not later than 180 days after
the enactment of this Act, the Secretary shall provide to the
board established by the National Fish Habitat Action Plan a
recommendation of not less than 4 tribal representatives,
from which that board shall appoint 2 representatives
pursuant to subparagraph (J) of subsection (a)(2).
(3) Transitional terms.--Of the members described in
subsection (a)(2)(N) initially appointed to the Board--
(A) 4 shall be appointed for a term of 1 year;
(B) 4 shall be appointed for a term of 2 years; and
(C) 3 shall be appointed for a term of 3 years.
(4) Vacancies.--
(A) In general.--A vacancy of a member of the Board
described in any of subparagraphs (H) through (I) or (K)
through (N) of subsection (a)(2) shall be filled by an
appointment made by the remaining members of the Board.
(B) Tribal representatives.--Following a vacancy of a
member of the Board described in subparagraph (J) of
subsection (a)(2), the Secretary shall recommend to the Board
not less than 4 tribal representatives, from which the
remaining members of the Board shall appoint a representative
to fill the vacancy.
(5) Continuation of service.--An individual whose term of
service as a member of the Board expires may continue to
serve on the Board until a successor is appointed.
(6) Removal.--If a member of the Board described in any of
subparagraphs (H) through (N) of subsection (a)(2) misses 3
consecutive regularly scheduled Board meetings, the members
of the Board may--
(A) vote to remove that member; and
(B) appoint another individual in accordance with paragraph
(4).
(c) Chairperson.--
(1) In general.--The Board shall elect a member of the
Board to serve as Chairperson of the Board.
(2) Term.--The Chairperson of the Board shall serve for a
term of 3 years.
(d) Meetings.--
(1) In general.--The Board shall meet--
(A) at the call of the Chairperson; but
(B) not less frequently than twice each calendar year.
(2) Public access.--All meetings of the Board shall be open
to the public.
(e) Procedures.--
(1) In general.--The Board shall establish procedures to
carry out the business of the Board, including--
(A) a requirement that a quorum of the members of the Board
be present to transact business;
(B) a requirement that no recommendations may be adopted by
the Board, except by the vote of \2/3\ of all members present
and voting;
(C) procedures for establishing national goals and
priorities for aquatic habitat conservation for the purposes
of this Act;
(D) procedures for designating Partnerships under section
5; and
(E) procedures for reviewing, evaluating, and making
recommendations regarding fish habitat conservation projects.
(2) Quorum.--A majority of the members of the Board shall
constitute a quorum.
SEC. 5. FISH HABITAT PARTNERSHIPS.
(a) Authority To Designate.--The Board may designate Fish
Habitat Partnerships in accordance with this section.
(b) Purposes.--The purposes of a Partnership shall be--
[[Page S3825]]
(1) to coordinate the implementation of the National Fish
Habitat Action Plan at a regional level;
(2) to identify strategic priorities for fish habitat
conservation;
(3) to recommend to the Board fish habitat conservation
projects that address a strategic priority of the Board; and
(4) to develop and carry out fish habitat conservation
projects.
(c) Applications.--An entity seeking to be designated as a
Partnership shall submit to the Board an application at such
time, in such manner, and containing such information as the
Board may reasonably require.
(d) Approval.--The Board may approve an application for a
Partnership submitted under subsection (c) if the Board
determines that the applicant--
(1) includes representatives of a diverse group of public
and private partners, including Federal, State, or local
governments, nonprofit entities, Indian tribes, and private
individuals, that are focused on conservation of aquatic
habitats to achieve results across jurisdictional boundaries
on public and private land;
(2) is organized to promote the health of important aquatic
habitats and distinct geographical areas, keystone fish
species, or system types, including reservoirs, natural
lakes, coastal and marine environments, and estuaries;
(3) identifies strategic fish and aquatic habitat
priorities for the Partnership area in the form of
geographical focus areas or key stressors or impairments to
facilitate strategic planning and decisionmaking;
(4) is able to address issues and priorities on a
nationally significant scale;
(5) includes a governance structure that--
(A) reflects the range of all partners; and
(B) promotes joint strategic planning and decisionmaking by
the applicant;
(6) demonstrates completion of, or significant progress
toward the development of, a strategic plan to address the
causes of system decline in fish populations, rather than
simply treating symptoms in accordance with the National Fish
Habitat Action Plan; and
(7) ensures collaboration in developing a strategic vision
and implementation program that is scientifically sound and
achievable.
SEC. 6. FISH HABITAT CONSERVATION PROJECTS.
(a) Submission to Board.--Not later than March 31 of each
calendar year, each Partnership shall submit to the Board a
list of fish habitat conservation projects recommended by the
Partnership for annual funding under this Act.
(b) Recommendations by Board.--Not later than July 1 of
each calendar year, the Board shall submit to the Secretary a
description, including estimated costs, of each fish habitat
conservation project that the Board recommends that the
Secretary approve and fund under this Act, in order of
priority, for the following fiscal year.
(c) Considerations.--The Board shall select each fish
habitat conservation project to be recommended to the
Secretary under subsection (b)--
(1) based on a recommendation of the Partnership that is,
or will be, participating actively in carrying out the fish
habitat conservation project; and
(2) after taking into consideration--
(A) the extent to which the fish habitat conservation
project fulfills a purpose of this Act or a goal of the
National Fish Habitat Action Plan;
(B) the extent to which the fish habitat conservation
project addresses the national priorities established by the
Board;
(C) the availability of sufficient non-Federal funds to
match Federal contributions for the fish habitat conservation
project, as required by subsection (e);
(D) the extent to which the fish habitat conservation
project--
(i) increases fishing opportunities for the public;
(ii) will be carried out through a cooperative agreement
among Federal, State, and local governments, Indian tribes,
and private entities;
(iii) increases public access to land or water;
(iv) advances the conservation of fish and wildlife species
that are listed, or are candidates to be listed, as
threatened species or endangered species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.);
(v) where appropriate, advances the conservation of fish
and fish habitats under the Magnuson-Stevens Act (16 U.S.C.
1801 et seq.) and other relevant Federal law and State
wildlife action plans; and
(vi) promotes resilience such that desired biological
communities are able to persist and adapt to environmental
stressors such as climate change; and
(E) the substantiality of the character and design of the
fish habitat conservation project.
(d) Limitations.--
(1) Requirements for evaluation.--No fish habitat
conservation project may be recommended by the Board under
subsection (b) or provided financial assistance under this
Act unless the fish habitat conservation project includes an
evaluation plan designed--
(A) to appropriately assess the biological, ecological, or
other results of the habitat protection, restoration, or
enhancement activities carried out using the assistance;
(B) to reflect appropriate changes to the fish habitat
conservation project if the assessment substantiates that the
fish habitat conservation project objectives are not being
met; and
(C) to require the submission to the Board of a report
describing the findings of the assessment.
(2) Acquisition of real property interests.--
(A) In general.--No fish habitat conservation project that
will result in the acquisition by the State, local
government, or other non-Federal entity, in whole or in part,
of any real property interest may be recommended by the Board
under subsection (b) or provided financial assistance under
this Act unless the project meets the requirements of
subparagraph (B).
(B) Requirements.--
(i) In general.--A real property interest may not be
acquired pursuant to a fish habitat conservation project by a
State, public agency, or other non-Federal entity unless the
State, agency, or other non-Federal entity is obligated to
undertake the management of the property being acquired in
accordance with the purposes of this Act.
(ii) Additional conditions.--Any real property interest
acquired by a State, local government, or other non-Federal
entity pursuant to a fish habitat conservation project shall
be subject to terms and conditions that ensure that the
interest will be administered for the long-term conservation
and management of the aquatic ecosystem and the fish and
wildlife dependent on that ecosystem.
(e) Non-Federal Contributions.--
(1) In general.--Except as provided in paragraph (2), no
fish habitat conservation project may be recommended by the
Board under subsection (b) or provided financial assistance
under this Act unless at least 50 percent of the cost of the
fish habitat conservation project will be funded with non-
Federal funds.
(2) Projects on federal land or water.--Notwithstanding
paragraph (1), Federal funds may be used for payment of 100
percent of the costs of a fish habitat conservation project
located on Federal land or water.
(3) Non-federal share.--The non-Federal share of the cost
of a fish habitat conservation project--
(A) may not be derived from a Federal grant program; but
(B) may include in-kind contributions and cash.
(4) Special rule for indian tribes.--Notwithstanding
paragraph (1) or any other provision of law, any funds made
available to an Indian tribe pursuant to this Act may be
considered to be non-Federal funds for the purpose of
paragraph (1).
(f) Approval.--
(1) In general.--Not later than 180 days after the date of
receipt of the recommendations of the Board for fish habitat
conservation projects under subsection (b), and based, to the
maximum extent practicable, on the criteria described in
subsection (c)--
(A) the Secretary shall approve, reject, or reorder the
priority of any fish habitat conservation project recommended
by the Board that is not within a marine or estuarine
habitat; and
(B) the Secretary and the Secretary of Commerce shall
jointly approve, reject, or reorder the priority of any fish
habitat conservation project recommended by the Board that is
within a marine or estuarine habitat.
(2) Funding.--If the Secretary, or the Secretary and the
Secretary of Commerce jointly, approves a fish habitat
conservation project under paragraph (1), the Secretary, or
the Secretary and the Secretary of Commerce jointly, shall
use amounts made available to carry out this Act to provide
funds to carry out the fish habitat conservation project.
(3) Notification.--If the Secretary, or the Secretary and
the Secretary of Commerce jointly, rejects or reorders the
priority of any fish habitat conservation project recommended
by the Board under subsection (b), the Secretary, or the
Secretary and the Secretary of Commerce jointly, shall
provide to the Board and the appropriate Partnership a
written statement of the reasons that the Secretary, or the
Secretary and the Secretary of Commerce jointly, rejected or
modified the priority of the fish habitat conservation
project.
(4) Limitation.--If the Secretary, or the Secretary and the
Secretary of Commerce jointly, has not approved, rejected, or
reordered the priority of the recommendations of the Board
for fish habitat conservation projects by the date that is
180 days after the date of receipt of the recommendations,
the recommendations shall be considered to be approved.
SEC. 7. NATIONAL FISH HABITAT CONSERVATION PARTNERSHIP
OFFICE.
(a) Establishment.--Not later than 1 year after the date of
enactment of this Act, the Director shall establish an
office, to be known as the ``National Fish Habitat
Conservation Partnership Office'', within the United States
Fish and Wildlife Service.
(b) Functions.--The National Fish Habitat Conservation
Partnership Office shall--
(1) provide funding for the operational needs of the
Partnerships, including funding for activities such as
planning, project development and implementation,
coordination, monitoring, evaluation, communication, and
outreach;
(2) provide funding to support the detail of State and
tribal fish and wildlife staff to the Office;
(3) facilitate the cooperative development and approval of
Partnerships;
[[Page S3826]]
(4) assist the Secretary and the Board in carrying out this
Act;
(5) assist the Secretary in carrying out the requirements
of sections 8 and 10;
(6) facilitate communication, cohesiveness, and efficient
operations for the benefit of Partnerships and the Board;
(7) facilitate, with assistance from the Director, the
Assistant Administrator, and the President of the Association
of Fish and Wildlife Agencies, the consideration of fish
habitat conservation projects by the Board;
(8) provide support to the Director regarding the
development and implementation of the interagency operational
plan under subsection (c);
(9) coordinate technical and scientific reporting as
required by section 11;
(10) facilitate the efficient use of resources and
activities of Federal departments and agencies to carry out
this Act in an efficient manner; and
(11) provide support to the Board for national
communication and outreach efforts that promote public
awareness of fish habitat conservation.
(c) Interagency Operational Plan.--Not later than 1 year
after the date of enactment of this Act, and every 5 years
thereafter, the Director, in cooperation with the Assistant
Administrator and the heads of other appropriate Federal
departments and agencies, shall develop an interagency
operational plan for the National Fish Habitat Conservation
Partnership Office that describes--
(1) the functional, operational, technical, scientific, and
general staff, administrative, and material needs of the
Office; and
(2) any interagency agreements between or among Federal
departments and agencies to address those needs.
(d) Staff and Support.--
(1) Departments of interior and commerce.--The Director and
the Assistant Administrator shall each provide appropriate
staff to support the National Fish Habitat Conservation
Partnership Office, subject to the availability of funds
under section 15.
(2) States and indian tribes.--Each State and Indian tribe
is encouraged to provide staff to support the National Fish
Habitat Conservation Partnership Office.
(3) Detailees and contractors.--The National Fish Habitat
Conservation Partnership Office may accept staff or other
administrative support from other entities--
(A) through interagency details; or
(B) as contractors.
(4) Qualifications.--The staff of the National Fish Habitat
Conservation Partnership Office shall include members with
education and experience relating to the principles of fish,
wildlife, and aquatic habitat conservation.
(5) Waiver of requirement.--The Secretary may waive all or
part of the non-Federal contribution requirement under
section 6(e)(1) if the Secretary determines that--
(A) no reasonable means are available through which the
affected applicant can meet the requirement; and
(B) the probable benefit of the relevant fish habitat
conservation project outweighs the public interest in meeting
the requirement.
(e) Reports.--Not less frequently than once each year, the
Director shall provide to the Board a report describing the
activities of the National Fish Habitat Conservation
Partnership Office.
SEC. 8. TECHNICAL AND SCIENTIFIC ASSISTANCE.
(a) In General.--The Director, the Assistant Administrator,
and the Director of the United States Geological Survey, in
coordination with the Forest Service and other appropriate
Federal departments and agencies, shall provide scientific
and technical assistance to the Partnerships, participants in
fish habitat conservation projects, and the Board.
(b) Inclusions.--Scientific and technical assistance
provided pursuant to subsection (a) may include--
(1) providing technical and scientific assistance to
States, Indian tribes, regions, local communities, and
nongovernmental organizations in the development and
implementation of Partnerships;
(2) providing technical and scientific assistance to
Partnerships for habitat assessment, strategic planning, and
prioritization;
(3) supporting the development and implementation of fish
habitat conservation projects that are identified as high
priorities by Partnerships and the Board;
(4) supporting and providing recommendations regarding the
development of science-based monitoring and assessment
approaches for implementation through Partnerships;
(5) supporting and providing recommendations for a national
fish habitat assessment; and
(6) ensuring the availability of experts to conduct
scientifically based evaluation and reporting of the results
of fish habitat conservation projects.
SEC. 9. CONSERVATION OF AQUATIC HABITAT FOR FISH AND OTHER
AQUATIC ORGANISMS ON FEDERAL LAND.
To the extent consistent with the mission and authority of
the applicable department or agency, the head of each Federal
department and agency responsible for acquiring, managing, or
disposing of Federal land or water shall cooperate with the
Assistant Administrator and the Director to conserve the
aquatic habitats for fish and other aquatic organisms within
the land and water of the department or agency.
SEC. 10. COORDINATION WITH STATES AND INDIAN TRIBES.
The Secretary shall provide a notice to, and coordinate
with, the appropriate State agency or tribal agency, as
applicable, of each State and Indian tribe within the
boundaries of which an activity is planned to be carried out
pursuant to this Act by not later than 30 days before the
date on which the activity is implemented.
SEC. 11. ACCOUNTABILITY AND REPORTING.
(a) Implementation Reports.--
(1) In general.--Not later than 2 years after the date of
enactment of this Act, and every 2 years thereafter, the
Board shall submit to the appropriate congressional
committees a report describing the implementation of--
(A) this Act; and
(B) the National Fish Habitat Action Plan.
(2) Contents.--Each report submitted under paragraph (1)
shall include--
(A) an estimate of the number of acres, stream miles, or
acre-feet (or other suitable measure) of aquatic habitat that
was protected, restored, or enhanced under the National Fish
Habitat Action Plan by Federal, State, or local governments,
Indian tribes, or other entities in the United States during
the 2-year period ending on the date of submission of the
report;
(B) a description of the public access to aquatic habitats
protected, restored, or established under the National Fish
Habitat Action Plan during that 2-year period;
(C) a description of the opportunities for public fishing
established under the National Fish Habitat Action Plan
during that period; and
(D) an assessment of the status of fish habitat
conservation projects carried out with funds provided under
this Act during that period, disaggregated by year,
including--
(i) a description of the fish habitat conservation projects
recommended by the Board under section 6(b);
(ii) a description of each fish habitat conservation
project approved by the Secretary under section 6(f), in
order of priority for funding;
(iii) a justification for--
(I) the approval of each fish habitat conservation project;
and
(II) the order of priority for funding of each fish habitat
conservation project;
(iv) a justification for any rejection or reordering of the
priority of each fish habitat conservation project
recommended by the Board under section 6(b) that was based on
a factor other than the criteria described in section 6(c);
and
(v) an accounting of expenditures by Federal, State, or
local governments, Indian tribes, or other entities to carry
out fish habitat conservation projects.
(b) Status and Trends Report.--Not later than December 31,
2012, and every 5 years thereafter, the Board shall submit to
the appropriate congressional committees a report describing
the status of aquatic habitats in the United States.
(c) Revisions.--Not later than December 31, 2013, and every
5 years thereafter, the Board shall revise the goals and
other elements of the National Fish Habitat Action Plan,
after consideration of each report required by subsection
(b).
SEC. 12. REGULATIONS.
The Secretary may promulgate such regulations as the
Secretary determines to be necessary to carry out this Act.
SEC. 13. EFFECT OF ACT.
(a) Water Rights.--Nothing in this Act--
(1) establishes any express or implied reserved water right
in the United States for any purpose;
(2) affects any water right in existence on the date of
enactment of this Act;
(3) preempts or affects any State water law or interstate
compact governing water; or
(4) affects any Federal or State law in existence on the
date of enactment of the Act regarding water quality or water
quantity.
(b) State Authority.--Nothing in this Act--
(1) affects the authority, jurisdiction, or responsibility
of a State to manage, control, or regulate fish and wildlife
under the laws and regulations of the State; or
(2) authorizes the Secretary to control or regulate within
a State the fishing or hunting of fish and wildlife.
(c) Effect on Indian Tribes.--Nothing in this Act
abrogates, abridges, affects, modifies, supersedes, or alters
any right of an Indian tribe recognized by treaty or any
other means, including--
(1) an agreement between the Indian tribe and the United
States;
(2) Federal law (including regulations);
(3) an Executive order; or
(4) a judicial decree.
(d) Adjudication of Water Rights.--Nothing in this Act
diminishes or affects the ability of the Secretary to join an
adjudication of rights to the use of water pursuant to
subsection (a), (b), or (c) of section 208 of the Department
of Justice Appropriation Act, 1953 (43 U.S.C. 666).
(e) Effect on Other Authorities.--
(1) Acquisition of land and water.--Nothing in this Act
alters or otherwise affects the authorities,
responsibilities, obligations, or powers of the Secretary to
acquire land, water, or an interest in land or water under
any other provision of law.
(2) Private property protection.--Nothing in this Act
permits the use of funds made available to carry out this Act
to acquire real property or a real property interest without
the written consent of each owner of the real property or
real property interest.
(3) Mitigation.--Nothing in this Act permits the use of
funds made available to carry
[[Page S3827]]
out this Act for fish and wildlife mitigation purposes
under--
(A) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.);
(B) the Fish and Wildlife Coordination Act (16 U.S.C. 661
et seq.);
(C) the Water Resources Development Act of 1986 (Public Law
99-662; 100 Stat. 4082); or
(D) any other Federal law or court settlement.
SEC. 14. NONAPPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT.
The Federal Advisory Committee Act (5 U.S.C. App.) shall
not apply to--
(1) the Board; or
(2) any Partnership.
SEC. 15. FUNDING.
(a) Authorization of Appropriations.--
(1) Fish habitat conservation projects.--There is
authorized to be appropriated to the Secretary $7,200,000 for
each of fiscal years 2012 through 2016 to provide funds for
fish habitat conservation projects approved under section
6(f), of which 5 percent shall be made available for each
fiscal year for projects carried out by Indian tribes.
(2) National fish habitat conservation partnership
office.--
(A) In general.--There is authorized to be appropriated to
the Secretary for each of fiscal years 2012 through 2016 for
the National Fish Habitat Conservation Partnership Office,
and to carry out section 11, an amount equal to 5 percent of
the amount appropriated for the applicable fiscal year
pursuant to paragraph (1).
(B) Required transfers.--The Secretary shall annually
transfer to other Federal departments and agencies such
percentage of the amounts made available pursuant to
subparagraph (A) as is required to support participation by
those departments and agencies in the National Fish Habitat
Conservation Partnership Office pursuant to the interagency
operational plan under section 7(c).
(3) Technical and scientific assistance.--There are
authorized to be appropriated for each of fiscal years 2012
through 2016 to carry out, and provide technical and
scientific assistance under, section 8--
(A) $500,000 to the Secretary for use by the United States
Fish and Wildlife Service;
(B) $500,000 to the Assistant Administrator for use by the
National Oceanic and Atmospheric Administration; and
(C) $500,000 to the Secretary for use by the United States
Geological Survey.
(4) Planning and administrative expenses.--There is
authorized to be appropriated to the Secretary for each of
fiscal years 2012 through 2016 for use by the Board, the
Director, and the Assistant Administrator for planning and
administrative expenses an amount equal to 3 percent of the
amount appropriated for the applicable fiscal year pursuant
to paragraph (1).
(b) Agreements and Grants.--The Secretary may--
(1) on the recommendation of the Board, and notwithstanding
sections 6304 and 6305 of title 31, United States Code, and
the Federal Financial Assistance Management Improvement Act
of 1999 (31 U.S.C. 6101 note; Public Law 106-107), enter into
a grant agreement, cooperative agreement, or contract with a
Partnership or other entity for a fish habitat conservation
project or restoration or enhancement project;
(2) apply for, accept, and use a grant from any individual
or entity to carry out the purposes of this Act; and
(3) make funds available to any Federal department or
agency for use by that department or agency to provide grants
for any fish habitat protection project, restoration project,
or enhancement project that the Secretary determines to be
consistent with this Act.
(c) Donations.--
(1) In general.--The Secretary may--
(A) enter into an agreement with any organization described
in section 501(c)(3) of the Internal Revenue Code of 1986
that is exempt from taxation under section 501(a) of that
Code to solicit private donations to carry out the purposes
of this Act; and
(B) accept donations of funds, property, and services to
carry out the purposes of this Act.
(2) Treatment.--A donation accepted under this section--
(A) shall be considered to be a gift or bequest to, or
otherwise for the use of, the United States; and
(B) may be--
(i) used directly by the Secretary; or
(ii) provided to another Federal department or agency
through an interagency agreement.
______
By Mr. LEAHY (for himself, Mr. Levin, Mr. Akaka, and Mr. Durbin):
S. 1202. A bill to amend the Immigration and Nationality Act to
reaffirm the United States' historic commitment to protecting refugees
who are fleeing persecution or torture; to the Committee on the
Judiciary.
Mr. LEAHY. Mr. President, today, I am pleased to introduce the
Refugee Protection Act. This bill, which is cosponsored by Senators
Levin, Akaka, and Durbin, will reaffirm the commitments our Nation made
in ratifying the 1951 Refugee Convention, and help to restore the
United States as a global leader on human rights. This bill would
repeal the most harsh and unnecessary elements of current law, and
restore the United States to its rightful role as a safe and welcoming
home for those suffering from persecution around the world.
During this challenging economic time, it can be tempting to look
inward rather than to fulfill our global humanitarian commitments.
However, this bill is necessary now more than ever. Millions of
refugees remain displaced and warehoused in refugee camps in Eastern
Africa, Southeast Asia, and other parts of the world. The ``Arab
Spring'' is helping to move governments of the Middle East toward
democracy, but some governments have responded to peaceful
demonstrations with violence. We will continue to see genuine refugees
who are in need of protection. I was pleased to be able to protect
funding for refugee assistance and resettlement programs in the fiscal
year 2011 appropriations continuing resolution, when many other
programs were cut.
In my home state of Vermont, I have seen how the admission of
refugees and asylum seekers has revitalized and enriched communities,
resulting in the creation of new businesses, safer neighborhoods, and
stronger schools. Since Senator Ted Kennedy authored the 1980 Refugee
Act, more than 2.6 million refugees and asylum seekers have been
granted protection in the United States. And since 1989, almost 5,600
refugees have been resettled in Vermont. We are fortunate to have the
Vermont Refugee Resettlement Program, with its decades of experience
and award-wining volunteer program, leading this effort. Over the last
five years, many of these new Vermonters have come from Bhutan, Burma,
and the Congo. Their culture is enriching my historically Anglo Saxon
and French Canadian state.
Once resettled, these refugees have become nursing assistants, soccer
coaches, and small business owners. In Burlington's Old North End,
there are two thriving halal markets, side by side. The Nadia
International Halal Market is run by an Iraqi refugee. Next door is the
Banadir Market, run by a Somali Bantu refugee. Vermonters enjoy these
new additions to the culture, and these thriving small businesses
create local jobs in a historically disadvantaged neighborhood.
Equally important are the family- and community-based values of these
new Vermonters. The Burlington Chief of Police has commented that
refugees have reduced crime in some historically troubled areas,
creating more family oriented neighborhoods.
Vermonters have played a tremendous role in welcoming refugees and
asylees to their communities. Many have hosted refugee families in
their homes until suitable housing could be found. The Ohavi Zedek
Synagogue has made an effort to help all refugee families, regardless
of their faith. The synagogue offers free English language classes so
that refugees can improve their English skills. In this year's Passover
service, refugees were encouraged to share their own personal tales of
exodus.
The synagogue also runs a thrift shop where refugees who have been in
the country for less than a year are allowed to take whatever they need
without charge. Yet, a refugee from Bhutan has offered to help make
physical improvements to the building's foundation, a testament to his
desire to give back to the communities that have helped refugees build
new lives. Many other places of worships have also reached out to these
new Vermonters.
The Association for Africans Living in Vermont, AALV, which now
assists any refugee in Vermont regardless of the country of origin,
helps refugees access social services, organizes community cultural
events, and provides cross-cultural training to Vermont service
providers. The organization offers workforce development programs to
ensure refugees can find meaningful work that sustains their families.
The AALV New Farms for New Americans program enables refugees, many of
whom farmed in their home countries, to learn to grow crops well suited
to the Vermont climate. This program can connect such refugees to their
heritage, and invites them to become part of Vermont's longstanding and
vibrant agricultural tradition.
In cooperation with Vermont Adult Learning, AALV offers the Personal
[[Page S3828]]
Care Assistant Workforce Training Program, which trains refugees to
serve as personal care assistants, the first level of service in the
nursing profession. Graduates are able to pursue additional training as
a licensed nursing assistant.
Vermont's resettlement program and the community support are not
without their challenges. We experience many of the same hurdles faced
by resettlement efforts and receiving communities across the Nation.
The Refugee Protection Act of 2011 includes provisions that will help
the nationwide resettlement effort operate more effectively. I want to
acknowledge the leadership of Senator Lugar who has investigated the
resettlement program and called for a GAO study to obtain
recommendations for improvement. I also appreciate the efforts of
Representative Gary Peters of Michigan, who introduced a resettlement
bill in the House of Representatives to improve communication among all
stakeholders.
In addition to support and improvement of the resettlement program,
this bill addresses several areas of domestic asylum adjudication that
are in need of significant reform. This bill would repeal the one-year
filing deadline for asylum seekers, removing an unnecessary barrier to
protection. The bill would allow arriving aliens and minors to seek
asylum first before the Asylum Office rather than referring those cases
immediately to immigration court. The Asylum Office is well trained to
screen for fraud and able to handle a slight increase in its caseload.
Meanwhile, as we learned in a May 18, 2011, hearing before the
Judiciary Committee, the immigration courts are overburdened, under-
resourced, and facing steady increases in their caseloads.
The Refugee Protection Act ensures that persons who were victims of
terrorism or persecution by terrorist groups will not be doubly
victimized with a denial of protection in the United States. Vermont
Immigration and Asylum Advocates, a legal aid and torture treatment
provider, continues to see cases where persons granted asylum are later
blocked from bringing their families to the United States or applying
for permanent residency by overly broad definitions in current law.
This bill would help such persons prove their cases without taking any
shortcuts on national security. The bill also gives the President the
authority to designate certain groups of particularly vulnerable groups
for expedited consideration. All refugees would still have to complete
security and background checks prior to entry to the United States.
Finally, the bill addresses the need to treat genuine asylum seekers
as persons in need of protection, not as criminals. It calls for asylum
seekers who can prove their identity and who pose no threat to the
United States to be released from immigration detention. Vermont
Immigration and Asylum Advocates, like other legal aid providers across
the Nation, struggle to visit detention facilities located at a
distance from urban centers, or to reach clients who have been
transferred to far away locations. I appreciate efforts made by the
Obama administration to parole eligible asylum seekers and to improve
the conditions of detention overall, but more must be done. The Refugee
Protection Act will improve access to counsel so that asylum seekers
with genuine claims can gain legal assistance in presenting their
claims. It will require the Government to codify detention standards so
that reforms are meaningful and enforceable.
There is no question that the United States is a leader among nations
in refugee protection, but we can do better. The refugees we welcome to
our shores contribute to the fabric of our Nation, and enrich the
communities where they settle. I urge all Senators to support the
Refugee Protection Act of 2011.
Mr. President, I ask unanimous consent that a section by section
analysis and a list of support organizations be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Leahy-Levin-Akaka-Durbin Refugee Protection Act of 2011
Sectional Analysis
The Refugee Act of 1980 was a landmark piece of legislation
that sought to fulfill the United States' obligations under
the 1951 Refugee Convention. Unfortunately, in the
intervening years, U.S. law has fallen short of those
obligations. Last year, on the thirtieth anniversary of the
Refugee Act of 1980, Senator Leahy, introduced the Refugee
Protection Act of 2010 (S. 3113, 111th Congress), a
comprehensive package of improvements to our law. On June 15,
2011, Senator Leahy, along with Senators Levin, Akaka, and
Durbin, introduced a new version of the bill for the 112th
Congress. The Refugee Protection Act of 2011 will ensure that
refugees and asylum seekers with bona fide claims are
protected by the United States, restoring the United States
as a beacon of hope for those who suffer from persecution.
Sec. 1. Short Title.
The short title is the Refugee Protection Act of 2011.
Sec. 2. Definitions.
This section defines the terms ``asylum seeker'' and
``Secretary of Homeland Security.''
Sec. 3. Elimination of Time Limits on Asylum Applications.
This section eliminates the one-year time limit for filing
an asylum claim. The stated intent of Congress in 1996 in
enacting the one-year deadline was to prevent fraud, not to
deprive bona fide applicants from securing protection under
our laws. Yet, even in 1996, problems related to fraud had
been resolved through administrative reform implemented by
the Immigration & Naturalization Service, which opposed the
implementation of an application deadline. Since the one-year
deadline was enacted, and despite exceptions available in the
law for extraordinary or changed circumstances that may
prevent the timely filing of an application, many asylum
seekers with genuine claims have been denied protection. The
exceptions to the one-year deadline are not uniformly applied
to applicants, leading to unfair treatment of those who have
legitimate reasons for applying after the one-year deadline.
Moreover, a significant number of applicants have
subsequently met the higher standard for withholding of
removal, demonstrating that their claims were valid. This
section allows such an asylum seeker to reopen his asylum
claim if he is still in the United States, has not
subsequently been awarded lawful permanent residence status,
is not subject to a bar to asylum, and should not be denied
asylum as a matter of discretion.
Sec. 4. Protecting Victims of Terrorism from Being Defined as
Terrorists.
Under current law, any asylum seeker or refugee who is
individually culpable of engaging in terrorist conduct, or
direct support for it, is barred under prohibitions to entry
for a threat to national security, serious non-political
crime, persecution of others, or engaging in terrorist
activity. Changes in the law since September 11, 2001, have
resulted in innocent activity, or coerced actions, being
labeled as ``material support'' for terrorism, a
determination that can render genuine refugees ineligible for
protection in the United States. This section would amend the
law to ensure that asylum seekers and refugees are not barred
from admission to the United States under an overly broad
definition of ``terrorist organization'' in the Immigration
and Nationality Act (INA).
This section would define the term ``material support'' to
mean support that is significant and of a kind directly
relevant to terrorist activity. This section also gives the
Secretary of Homeland Security discretion to waive
application of the terrorism bars for certain applicants.
This section clarifies that those who committed certain
acts (such as military-type training, solicitation, or other
non-violent actions) under duress may not be deemed
inadmissible if they pose no threat to the United States. It
gives the Secretary discretion to consider the age of the
applicant at the time the acts were committed in determining
whether those acts were committed under duress.
This section also creates an exception for those who were
forced to recruit child soldiers under duress, or who engaged
in such recruitment under the age of 18. Finally, this
section would repeal an unduly harsh provision in current law
that makes spouses and children inadmissible for the acts of
a spouse or parent.
All applicants for asylum or refugee status must meet all
of the other traditional background and security checks.
Sec. 5. Protecting Certain Vulnerable Groups of Asylum
Seekers.
To be eligible for asylum under the Refugee Convention and
domestic law, an applicant must show that he or she has
experienced persecution or have a well-founded fear of future
persecution on account of race, religion, nationality,
political opinion, or membership in a particular social
group. This section makes several modifications to current
law to ensure that particularly vulnerable groups of asylum
seekers have a full and fair opportunity to seek protection
in the United States.
Subsection (a) codifies the holding of the landmark Board
of Immigration Appeals (BIA) decision in Matter of Acosta, 19
I. & N. Dec. 211 (BIA 1985). That holding defined the basis
of persecution based on membership in a ``particular social
group'' as one comprised of individuals who share a common
characteristic they either cannot change, or should not be
required to change because the
[[Page S3829]]
characteristic is fundamental to their identity or
conscience. The Acosta precedent has been clouded in recent
years by BIA opinions that require asylum applicants to prove
additional factors, some of which are unnecessary or contrary
to the spirit of domestic law and the Refugee Convention.
Most damaging is a requirement that the social group in
question be ``socially visible,'' a factor that could
endanger certain categories of refugees, such as victims of
gender persecution or LGBT asylum seekers. These are groups
that, as Judge Posner of the Seventh Circuit Court of Appeals
described, are at great pains to remain socially invisible.
This subsection codifies the definition of social group in
Matter of Acosta such that inappropriate, additional factors
such as social visibility cannot be required by the BIA.
Subsection (b) makes additional changes to current law.
Paragraph (1): United States law has long recognized that
persecutors may have mixed motives for harming their victims.
For example, a militia that operates outside government
control may persecute a particular race of persons because of
xenophobia and also because it seeks to deprive the
persecuted race of valuable land and property. The fact that
the persecutor is motivated by two intertwined goals should
not prevent the victims from obtaining protection.
Nonetheless, the REAL ID Act of 2005 raised the burden of
proof that asylum seekers must meet in order to show that
they fear persecution on account of one of the five grounds
enumerated in the Refugee Convention and in U.S. law. (The
five grounds are race, religion, nationality, membership in a
particular social group, or political opinion.) The REAL ID
Act requires that the asylum seeker demonstrate that harm on
account of a protected ground is ``at least one central
reason'' for the feared persecution. See INA
Sec. 208(b)(1)(B)(i). The ``one central reason'' language is
modified in this section, which does not fully repeal the
notion of persecutor intent but applies it in a manner that
is both realistic and fair. This paragraph strikes the
language that requires the protected ground (e.g., race) to
be one central reason for the persecution and requires
instead that the protected ground ``was or will be a factor
in the applicant's persecution or fear of persecution.''
Paragraph (2): The REAL ID Act of 2005 added requirements
to the INA with regard to an asylum seeker's duty to provide
corroborating evidence when it is requested by an immigration
judge. The REAL ID Act stated that ``such evidence must be
provided unless the applicant does not have the evidence and
cannot reasonably obtain the evidence.'' Corroborating
evidence can be an important component of an asylum claim,
but asylum seekers must have a fair opportunity to respond to
requests for corroboration. In addition, as courts have
noted, it is sometimes virtually impossible for asylum
seekers to obtain certain types of corroborating evidence.
Therefore, this paragraph requires that when the trier of
fact seeks corroborating evidence, the trier of fact must
provide notice and allow the asylum applicant a reasonable
opportunity to file such evidence unless the applicant does
not have the evidence and cannot reasonably obtain the
evidence.
Paragraph (3) renumbers text in the statute.
Paragraph (4): As noted above, an asylum seeker must show
that his or her well-founded fear of persecution is on
account of one of the five grounds of asylum. This link is
often called the nexus requirement. Some genuine asylum
seekers have been denied asylum because of a lack of clear
guidance on how the nexus requirement may be established when
the persecutor is a non-state actor. The Department of
Justice issued draft regulations in 2000 that made clear that
an asylum seeker can demonstrate nexus through either
``direct or circumstantial'' evidence. This draft regulation
was consistent with the U.S. Supreme Court's decision in INS
v. Elias-Zacarias, 502 U.S. 478, 483 (1992). This paragraph
would codify the draft regulation by making clear that either
direct or circumstantial evidence may establish that
persecution is on account of one of the five grounds.
Paragraph (5): The REAL ID Act also modified the INA with
regard to factors that an immigration judge may consider in
determining the asylum seeker's credibility. In short, the
REAL ID gave heightened importance to inconsistencies in an
asylum seeker's claim, even if those inconsistencies were
minor or immaterial to the heart of the claim. In practice,
an asylum seeker with limited English skills, with post-
traumatic stress disorder, or with other conditions, may make
simple, minor errors in the telling and retelling of their
story. This paragraph modifies the INA to state that if the
immigration judge determines that there are inconsistencies
or omissions in the claim, the asylum seeker should be given
an opportunity to explain and to provide support or evidence
to clarify such inconsistencies or omissions. Subsection (c)
makes identical corrections to the corroboration and
credibility determinations for removal proceedings that are
described in paragraphs (2) and (5) above.
Sec. 6. Effective Adjudication of Proceedings.
This section authorizes the Attorney General to appoint
counsel to an alien in removal proceedings where fair
resolution or effective adjudication of the case would be
served by doing so. In certain cases, such as those involving
highly complex asylum claims, unaccompanied minors, mentally
impaired persons, or individuals who are incapable of pro se
representation, delays in adjudication may result while an
alien prepares a case or searches for pro bono
representation. The immigration courts will operate more
efficiently (with savings to taxpayers) if the Attorney
General is provided explicit authority to exercise discretion
to appoint counsel in certain instances, such as those
described above.
Sec. 7. Scope and Standard for Review.
This section prevents the removal of an alien during the
30-day period an alien has to file a petition for review to a
Federal Circuit Court of Appeals after the alien has been
ordered removed. Staying the removal during this period will
enable an applicant to carefully consider whether to file an
appeal rather than rush to file in order to preserve his or
her rights. In weak cases, the alien will likely decline to
appeal, and deport voluntarily or via government removal.
This section also restores judicial review to a fair and
reasonable standard consistent with principles of
administrative law. The standard in this section is that the
Court of Appeals shall sustain a final decision ordering the
removal of an alien unless that decision is contrary to law,
an abuse of discretion, or not supported by substantial
evidence. The decision must be based on the administrative
record on which the order of removal is based.
Sec. 8. Efficient Asylum Determination Process for Arriving
Aliens.
Under current law, an alien who requests asylum as they
attempt to enter the United States (an ``arriving alien'') is
subject to detention for part or all of the time that they
await an asylum hearing. Such asylum seekers are provided an
initial interview with an asylum officer to determine whether
they have a credible fear of persecution, but then must
pursue their asylum case in immigration court, rather than in
a non-adversarial proceeding. Generally speaking, the
adversarial immigration hearing is considerably lengthier and
costlier than a non-adversarial asylum hearing. Under this
section, the DHS asylum office would be given jurisdiction
over an asylum case after a positive credible fear
determination. The alien would then undergo a non-
adversarial asylum interview. If the asylum officer is
unable to recommend a grant of asylum, the case will be
referred to an immigration judge and the asylum seeker
placed in removal proceedings. This structure mirrors the
current process for asylum seekers who apply for asylum
from within the United States.
Sec. 9. Secure Alternatives Program.
This section requires the Secretary of Homeland Security to
establish a secure ``alternatives to detention'' program. The
program will allow certain aliens in civil immigration
custody to be released under enhanced supervision to prevent
the alien from absconding and to ensure that the alien makes
all required appearances associated with his or her
immigration case. The program is to be designed as a
continuum of alternatives based on the alien's need for
supervision, which may include placement of the alien with an
individual or organizational sponsor, or in a supervised
group home. The program shall restrict the use of ankle
monitoring devices to cases in which there is a demonstrated
need for enhanced monitoring, and the use of ankle monitors
shall be reviewed periodically. The program shall be designed
to include individualized case management and referrals to
community based organizations. In designing the program, the
Secretary is instructed to consider prior successful
programs, such the Vera Institute of Justice's Appearance
Assistance Program.
The Secretary of Homeland Security currently has discretion
to detain asylum seekers. This section maintains such
discretion but clarifies that, consistent with a DHS policy
announced in December 2009, it is the policy of the United
States to release (``parole'') asylum seekers who have
established a credible fear of persecution. Under this
section, asylum seekers who have established identity will be
released within 7 days of a positive credible fear
determination unless DHS can show that the asylum seeker
poses a risk to public safety (which may include a risk to
national security) or is a flight risk. If parole is denied,
DHS must provide the asylum seeker with written notification
for the reason for denial conveyed in a language the asylum
seeker claims to understand.
Sec. 10. Conditions of Detention.
Regulations regarding conditions for detention shall be
promulgated, and must address several issues including access
to legal service providers, group legal orientation
presentations, translation services, recreational programs
and activities, access to law libraries, prompt case
notification requirements, access to working telephones,
access to religious services, notice of transfers, and access
to facilities by nongovernmental organization. This section
also limits the use of solitary confinement, shackling, and
strip searches. This section requires that, after the date of
enactment, facilities first used by ICE to detain alien
detainees must be located within 50 miles of a community in
which there is a demonstrated capacity to provide free or
low-cost legal representation.
Sec. 11. Timely Notice of Immigration Charges.
This section requires the Department of Homeland Security
to file a charging document with the immigration court
closest to
[[Page S3830]]
the location at which an alien was apprehended within 48
hours of the alien being taken into custody by the
Department. The Department is also required to serve a copy
of the charging document on the alien within 48 hours of
apprehension. This section will serve multiple purposes. It
will prevent asylum seekers and other aliens from languishing
in detention at taxpayer expense without being charged. It
will encourage efficient handling of cases by both the
Department of Homeland Security and the immigration courts,
which are operated by the Department of Justice. Finally, it
will ensure that if an asylum seeker or other alien is
transferred from one detention facility to another,
jurisdictional and due process protections will attach.
Sec. 12. Procedures for Ensuring Accuracy and Verifiability
of Sworn Statements Taken Pursuant to Expedited Removal
Authority.
This section modifies current policy to ensure that asylum
seekers are not harmed by error in the production of sworn
statements taken during the expedited removal process. It
requires that the Secretary of Homeland Security establish a
procedure whereby the interviews of asylum seekers are
recorded. The recording may be a video, audio or other
reliable form of recording. The recording must include a
written statement, in its entirety, being read back to the
alien in a language that the alien claims to understand, and
include the alien affirming the accuracy of the statement or
making any corrections thereto. If an interpreter is
necessary, such interpreter must be competent in the language
of the asylum seeker. Once a record is produced and signed by
the asylum seeker under these conditions, it may be
considered part of the record. The Secretary may exempt
facilities from the requirements of this section under
certain circumstances.
Sec. 13. Study on the Effect of Expedited Removal Provisions,
Practices, and Procedures on Asylum Claims.
A 2005 study by the United States Commission on
International Religious Freedom (USCIRF) documented
widespread problems in the implementation of expedited
removal policy by U.S. Customs and Border Protection
immigration officers at ports of entry. A few months prior to
release of the Study, the Secretary of Homeland Security
expanded expedited removal authority from immigration
inspectors at Ports of Entry--as applied to arriving aliens
without proper documentation--to Border Patrol agents who
apprehend an alien within 100 miles of the border within 14
days after an entry without inspection. The 2005 USCIRF Study
did not analyze the implementation of expedited removal by
the Border Patrol, as USCIRF's data collection had been
completed by that point in time. This section authorizes the
Commission to conduct a new study to determine whether Border
Patrol officers exercising expedited removal authority in the
interior of the United States are improperly encouraging
aliens to withdraw or retract claims for asylum. The
Commission is also authorized to study whether immigration
officers incorrectly fail to refer asylum seekers for
credible fear interviews by asylum officers; incorrectly
remove such aliens to a country where the alien may be
persecuted; and/or detain such asylum seekers improperly or
in inappropriate conditions.
Sec. 14. Refugee Opportunity Promotion.
The immigration statute requires a refugee who is resettled
in the United States to remain on U.S. soil for a full year
before adjusting to lawful permanent residence. For many,
this requirement presents no obstacles, as resettled refugees
immediately begin to work, learn English, and contribute to
their local communities. Yet, the one-year physical
presence requirement poses a significant barrier to
resettled refugees who are eager and willing to serve the
United States Government overseas. This section waives the
continuous presence requirement for any refugee who,
during their first year of residence in the United States,
accepts employment overseas to aid the United States
Government, such as by working as a translator or in
another professional capacity.
Sec. 15. Protections for Minors Seeking Asylum.
The William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA) amended the immigration
statute to exempt unaccompanied alien children from the safe
third country and one-year filing deadline bars to asylum.
This section will amend the statute to expand these TVPRA
exemptions to all child applicants for asylum. This section
also expands the exemption to the bar to asylum for
applicants under 18 years of age who were previously denied
asylum. The proposed language also clarifies that
unaccompanied alien children who have previously been
removed, or who departed voluntarily, should not have their
removal orders reinstated, but should instead be placed in
removal proceedings. Finally, this section states that all
cases of children seeking asylum be adjudicated in the first
instance by an asylum officer in a non-adversarial
proceeding. These protections, which were provided to
unaccompanied minors in the TVPRA, are expanded in the bill
to all child asylum seekers.
Sec. 16. Legal Assistance for Refugees and Asylees.
The Immigration and Nationality Act authorizes the
Secretary of Health and Human Services to make grants to non-
profit organizations to assist resettled refugees with mental
health counseling, social services, education (including
English as a Second Language, or ESL), and other assistance
to help refugees assimilate into American communities. This
section would authorize the Secretary to make similar grants
to assist lawfully resettled refugees with legal advice on
applications for immigration benefits to which they may be
eligible after residing in the United States for certain
periods of time, e.g., family reunification, adjustment of
status, or naturalization.
Sec. 17. Protection of Stateless Persons in the United
States.
This section will enable individuals who are de jure
stateless to obtain lawful status in the United States. De
jure stateless persons are individuals who are not considered
to be citizens under the laws of any country. They do not
have a nationality and therefore cannot be returned anywhere.
(These individuals are not rendered stateless by any negative
action of their own, such the commission of crimes that leads
the country of origin to deny return, but generally by forces
beyond their control, such as the collapse of the country of
origin (e.g. the Soviet Union) and the succession of a state
or states that will not recognize certain former nationals.)
De jure stateless persons are ineligible for lawfully
recognized status in the United States based on the fact that
they are stateless. This section would make such persons
eligible to apply for conditional lawful status if they are
not inadmissible under criminal or security grounds and if
they pass all standard background checks. After five years in
conditional status, de jure stateless persons would be
eligible to apply for lawful permanent status.
Sec. 18. Authority to Designate Certain Groups of Refugees
for Consideration.
This section authorizes the President to designate certain
groups as eligible for expedited adjudication as refugees.
The authority would address situations in which a group is
targeted for persecution in their country of origin or
country of first asylum. The designation by the President
would be sufficient, if proved to the satisfaction of the
Secretary of Homeland Security, to establish a well-founded
fear of persecution for members of the designated group.
However, each individual applicant would still have to be
admissible to the United States and pass security and
background checks before being admitted. Refugees admitted
under this authority would not be exempt from the annual
limit on refugee admissions. This section simply enables the
President to call for expedited adjudication where necessary
and appropriate. This section explicitly includes groups
previously protected under the Lautenberg Amendment, which
include, among others, Jews and Evangelical Christians from
the former Soviet Union, and religious minorities from Iran.
Sec. 19. Multiple Forms of Relief.
This section simply allows individuals applying for refugee
protection to simultaneously apply for other forms of
admission to the United States, such as through a family-
based petition. All applicants for admission must pass
security and background checks. This modification to current
law would not allow would-be refugees from gaming the system,
but simply enable them to escape harm or persecution at the
first opportunity a visa becomes available. This section also
allows the very small number of asylum applicants who win the
opportunity to apply for a green card through the diversity
lottery the ability to apply for that diversity visa from
within the United States. Typically, diversity visa
applicants must apply from their home country, a requirement
that would subject a genuine asylum seeker to risk of harm.
Sec. 20. Protection of Refugee Families.
This modification to current law would enable the spouse or
child of a refugee (a ``derivative'') to bring their children
to the United States when they accompany or follow to join
the spouse or parent who was originally awarded refugee
status (a ``principal''). Current law does not allow a
derivative's child to be admitted as a refugee, yet given the
long waits and often unsafe conditions that many derivative
applicants and their children face in camps overseas, the
United States should provide this group protection. This
section also aids children who were orphaned or abandoned by
their blood relatives and are living in the care of extended
family, friends, or neighbors who are granted admission to
the United States as refugees or asylees. Where it is in the
best interest of such a child to join that refugee or asylee
in the United States, this section creates a mechanism
whereby they may be admitted. This section also repeals an
unnecessary time limit in regulations on the filing of family
petitions related to refugee and asylee family reunification.
Finally, to facilitate the admission of eligible family
members, this section requires that U.S. Citizenship and
Immigration Services adjudicate family reunification
petitions for those following to join refugees and asylees
within 90 days of filing.
Sec. 21. Reform of Refugee Consultation Process.
Each year, the executive branch is charged with consulting
with Congress over the annual allocation of refugees to be
admitted to the United States. This section requires
meaningful consultation to take place between Cabinet-
level officers and the committees of jurisdiction of the
Congress by May 1 of each year.
[[Page S3831]]
Sec. 22. Admission of Refugees in the Absence of the Annual
Presidential Determination.
This section states that for a fiscal year in which the
executive branch does not determine the allocation of
refugees for that year, the admission of refugees is not
delayed. Rather, until a determination is announced for the
new fiscal year, in each quarter of the new fiscal year, the
number of refugees equal to one-quarter for the prior fiscal
year's allocation may be admitted.
Sec. 23. Update of Reception and Placement Grants.
When a refugee is resettled in the United States, the
federal government assists him or her through Reception and
Placement Grants to non-governmental organizations (NGOs)
that help refugees find housing, place their children in
school, enroll in ESL classes, and take other initial steps
toward building a new life in the United States. Early in
2010, the administration increased the per capita grant level
to $1800 per refugee, up to $1100 of which may be awarded
directly to the refugee for immediate costs, and up to $700
of which is used by the NGO to cover the cost of dedicated
staff and expenses. Prior to 2010, the per capita level had
not kept pace with inflation. For years it was set at a level
so low that refugees were effectively consigned to poverty
upon arrival in the United States, and NGOs were only able to
offset the cost of basic support services to the refugees by
raising additional funds. To ensure that the per capita
amount does not fall behind the minimum level required for
basic needs, this section requires the per capita amount to
be adjusted on an annual basis for inflation and the cost of
living. It also calls for better forecasting of financial
needs with regard to the number of refugees expected to be
resettled each year and allows for additional amounts to be
paid out in the event that a higher than anticipated number
of refugees is admitted in a fiscal year.
Sec. 24. Protection for Aliens Interdicted at Sea.
The U.S. government should apply one standard, consistent
with the Refugee Convention, to all asylum seekers
interdicted at sea, regardless of their nationality. Yet a
patchwork of policies has evolved over the past two decades
often in response to mass migrations at sea. The result is
disparate treatment of Cubans, Chinese and Haitians. This
section will require the Secretary of Homeland Security to
develop uniform policies to identify asylum seekers among
those interdicted at sea and to treat those individuals
fairly and in a non-discriminatory manner.
Sec. 25. Modification of Physical Presence Requirements for
Aliens Serving as Translators.
Under current law, in order to be naturalized, most non-
U.S. citizens must have continuous residence in the United
States for five years and physical presence for periods
totaling half that time (2\1/2\ years). This section would
permit absence from the United States while serving as a
translator for the U.S. government in Iraq or Afghanistan to
count toward the 2\1/2\ years physical presence required for
naturalization.
Sec. 26. Assessment of the Refugee Domestic Resettlement
Program.
This section directs GAO to conduct a study on the
effectiveness of the domestic refugee resettlement program
operated by the Office of Refugee Resettlement (ORR) of the
Department of Health and Human Services. The study will
analyze issues pertaining to the definition of self
sufficiency, the effectiveness of ORR in helping refugees to
attain self-sufficiency, the unmet needs of the program, and
the role of community-based organizations. The GAO study will
issue statutory recommendations.
Sec. 27. Refugee Assistance.
This section revises the formula for social services
funding allocated to states to include projections of future
refugee arrivals, as well as refugee data from prior years.
This section requires an annual report on secondary migration
and its impact on states.
Sec. 28. Resettlement Data.
This section expands and improves data collection and
reporting within ORR with regard to the mental health and
housing needs of refugees. It will also collect long term
employment and self-sufficiency data on resettled refugees.
Sec. 29. Protections for Refugees.
Current law makes refugees resettled in the United States
eligible to apply for lawful permanent residence after one
year. However, current law also suggests that a refugee who
does not adjust status after one year may be taken into
custody by DHS. (See Section 209 of the INA, 8 U.S.C. 1159).
The agency recently issued guidance to clarify interpretation
of the law, stating that detention of an unadjusted refugee
who is found to be inadmissible or deportable should be
determined under the statute relating to apprehension and
detention of aliens. (See Section 236 of the INA, 8 U.S.C.
1226.) Accordingly, this section of the bill strikes language
in current law that suggests that refugees may be taken into
custody simply for remaining unadjusted. This section also
allows a refugee to apply for lawful permanent residence up
to three months prior to obtaining a year of presence in the
United States.
Sec. 30. Extension of Eligibility Period for Social Security
Benefits for Certain Refugees.
This section extends social security benefits to elderly
and disabled refugees who have not yet naturalized.
Typically, certain eligible refugees may receive social
security for seven years. That period was extended for two
years in 2008 by a bipartisan bill supported by President
Bush. This section extends the social security funding for
one additional year.
Sec. 31. Authorization of Appropriations.
This section authorizes such sums as are necessary to carry
out the Act.
Sec. 32. Determination of Budgetary Effects.
This section contains standardized ``PAYGO'' language.
____
The Leahy-Levin-Akaka-Durbin Refugee Protection Act of 2011
Endorsements as of June 15, 2011
American Bar Association; American Civil Liberties Union;
American Humanist Association; American Immigration Lawyers
Association; American Jewish Committee; Amnesty International
USA; Association of Africans Living in Vermont; Asylum
Access; Center for American Progress Action Fund; Center for
Gender & Refugee Studies; Center for Victims of Torture;
CenterLink: The Community of LGBT Centers; Church World
Service, Immigration and Refugee Program; The Episcopal
Church; Family Equality Council; Golden Door Coalition of
Illinois; Hebrew Immigrant Aid Society; Hebrew Immigrant Aid
Society Chicago; Heartland Alliance for Human Needs & Human
Rights; Human Rights Campaign; Human Rights First; Human
Rights Watch; Immigrant Child Advocacy Project at the
University of Chicago; Immigration Equality Action Fund;
International Rescue Committee; Jewish Child and Family
Services (Metropolitan Chicago); Kids in Need of Defense
(KIND); Lutheran Immigration and Refugee Service; National
Center for Transgender Equality; National Immigrant Justice
Center; National Immigration Forum; National Immigration Law
Center; National Council of Jewish Women; National Latina
Institute for Reproductive Health; Organization for Refuge,
Asylum & Migration; PFLAG National (Parents, Families and
Friends of Lesbians and Gays); RefugeeOne; Refugee Women's
Network, Inc.; Refugees International; State Coordinators of
Refugee Resettlement (SCORR); Tahirih Justice Center; United
African Organization; U.S. Committee for Refugees and
Immigrants; U.S. Conference of Catholic Bishops; Vermont
Immigration and Asylum Advocates; Women's Refugee Commission.
The U.S. Commission on International Religious Freedom
supports the Refugee Protection Act of 2011.
*Deborah Anker, Clinical Professor of Law and Director,
Harvard Immigration and Refugee Clinical Program, Harvard Law
School.
*Sabi Ardalan, Lecturer on Law, Harvard Immigration and
Refugee Clinical Program.
*Regina Germain, Adjunct Professor of Asylum Law and the
Asylum Practicum, University of Denver Sturm College of Law.
*Philip G. Schrag, Delaney Family Professor of Public
Interest Law, Georgetown University.
*Shoba Sivaprasad Wadhia, Clinical Professor of Law &
Director, Center for Immigrants' Rights, Penn State Dickinson
School of Law.
*Title and affiliation listed for informational purposes
only.
______
By Ms. SNOWE (for herself, Mr. Kerry, Mr. Isakson, Ms. Klobuchar,
and Mr. Inouye):
S. 1203. A bill to amend title XVIII of the Social Security Act to
provide for the coverage of home infusion therapy under the Medicare
Program; to the Committee on Finance.
Ms. SNOWE. Mr. President, today I join my colleague on the Senate
Finance Committee, Senator John Kerry of Massachusetts, to introduce
the Medicare Home Infusion Coverage Act, which will help us improve
care and reduce costs. We are joined by Senator Isakson, Senator
Klobuchar, and Senator Inouye, who also recognize the tremendous value
offered by home infusion therapy.
Today many serious conditions, including some cancers and drug-
resistant infections--requires the use of infusion therapy. Such
treatment involves the administration of medication directly into the
bloodstream via a needle or catheter. Specialized equipment, supplies,
and professional services, such as sterile drug compounding, care
coordination, and patient education and monitoring, are part of such
therapy. The course of infusion treatment often lasts for several hours
per day over a 6-to-8 week period.
The regrettable fact is that Medicare patients requiring infusion
therapy must either bear that cost themselves, or endure
hospitalization in order to receive coverage. Though Medicare pays for
infusion drugs, it does not pay for the services, equipment, and
supplies necessary to safely provide infusion therapy in the home. Not
surprisingly, even though home infusion therapy may cost as little as
$100 a day, too few seniors can afford that cost.
[[Page S3832]]
The result is that patients are hospitalized needlessly, driving
costs of treatment as much as 10-20 times higher than treatment in the
home. These unnecessary hospitalizations are not only wasteful to
Medicare, but they may even place the patient at risk of contracting a
health care-acquired infection.
Private coverage for home infusion therapy is commonplace. Private
plans also recognize that patients benefit from avoiding
hospitalization. At home they have familiar, comfortable surroundings,
and family conveniently at hand, no small concerns when fighting a
serious illness. In fact, according to a June 2010 Government
Accountability Office report, ``Health insurers contend that the
benefit has been cost-effective, that is, providing infusion therapy at
home generally costs less than treatment in other settings. They also
contend that the benefit is largely free from inappropriate utilization
and problems in quality of care.''
By extending coverage of infusion therapy to the home, we will
correct this unintended and unnecessary gap in Medicare coverage. I
hope my colleagues will join us in support of this legislation so we
may further the goals of improving patient safety and reducing our
escalating health care costs.
______
By Mr. UDALL of Colorado:
S. 1204. A bill to amend title 10, United States Code, to reform
Department of Defense energy policy, and for other purposes; to the
Committee on Armed Services.
Mr. UDALL of Colorado. Mr. President, I rise to speak about the
Department of Defense Energy Security Act of 2011 or DODESA, that I am
introducing today.
This bill takes a number of important steps toward addressing some of
our most critical national energy security challenges. It authorizes
increased development of alternative fuels and increased usage of
hybrid drive systems and electric vehicles. The bill streamlines
communication between agencies responsible for energy programs across
the DOD, and authorizes DOD to examine where the greatest potential
exists for renewable energy programs. And it authorizes DOD to
determine how best to incorporate smart grid technology and to work
with local communities to develop contingency plans in the event of a
power outage caused by cyber attacks or natural disasters.
Simply put, this bill addresses the military's single largest
vulnerability: Its dependence on fossil fuel. When you talk about that
dependency in theater--you're talking about putting service members'
lives at risk. During the wars in Iraq and Afghanistan, thousands of
service men and women have been injured and killed each year in attacks
on fuel convoys. Osama bin Laden reportedly called those convoys our
military's ``umbilical cord.'' In the words of the Chairman of the
Joint Chiefs of Staff, Admiral Mike Mullen: ``Saving energy saves
lives.'' He said: ``Energy needs to be the first thing we think about
before we deploy another soldier, before we build another ship or
plane.''
That dependence on oil also costs taxpayers a staggering amount of
money. But our military's reliance on vulnerable energy resources is
not just on the battlefield. At home, defense facilities rely on a
fragile national grid, leaving critical assets vulnerable. The Defense
Science Board found in its 2008 report, ``More Fight--Less Fuel'' that,
``critical national security and homeland defense missions are at an
unacceptably high risk of extended outage from failure of the grid.''
All told, the military spends $20 billion on energy each year,
consuming a whopping 135 million barrels of oil and 30 million
megawatt-hours of electricity. It consumes more fuel and electricity
each year than most countries.
The Pentagon's energy consumption has serious national security
implications, but it also presents opportunities. As the Logistics
Management Institute wrote, ``Aggressively developing and applying
energy-saving technologies to military applications would potentially
do more to solve the most pressing long-term challenges facing DOD and
our national security than any other single investment area.''
That is why we have introduced this legislation. I say ``we'' because
this bill is the product of a joint effort with Congresswoman Giffords'
office. Gabby is a great friend, and we introduced this bill together
last Congress. This year, my staff has worked closely with hers on this
updated version. This is an issue that is near and dear to Gabby's
heart, and I know that she is eager to continue her work on it in the
House.
I am very proud of this legislation for a number of reasons.
First and foremost, DODESA will help the Department of Defense cut
fuel consumption and long-term costs.
Secondly, it provides authorization that will expand existing
renewable energy studies and pilot programs through a Joint Contingency
Base Resource Security Project. This project will help the service
branches share lessons learned as they study the best ways to
incorporate renewable energy sources and fuel reduction initiatives,
such as the Marine Corps' outstanding Experimental Forward Operating
Base, and the Army's Net Zero Installations.
Third, Colorado is leading the way in this commonsense area of energy
security. In particular, I would like to highlight the leadership of
Fort Carson, in my home state, which has been chosen as one of two
bases to participate in the Army's ``Triple Net Zero'' pilot program.
They are truly pioneers in this important work, and I appreciate all of
their efforts.
In sum, our legislation will make America more secure, will save
taxpayer dollars, and it will save lives. There is no single solution
to our energy security challenges. DODESA is not a silver bullet that
will solve all of our problems. However, it's part of a silver buckshot
solution that will require multiple changes in the way that we do
business.
We owe it to our service members and the American people to find ways
to use energy smarter and more efficiently, and I believe this bill
takes a number of important steps in the right direction.
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. 1204
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Department
of Defense Energy Security Act of 2011''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Congressional defense committees defined.
Sec. 3. Sense of Congress on Department of Defense energy savings
initiatives.
Sec. 4. Waiver authority.
TITLE I--OPERATIONAL ENERGY SECURITY
Sec. 101. Joint contingency base resource pilot project.
Sec. 102. Research and development activities to incorporate hybrid-
drive technology into current and future tactical fleet
of military ground vehicles.
Sec. 103. Conversion of Department of Defense fleet of non-tactical
motor vehicles to electric and hybrid motor vehicles.
Sec. 104. Ten-year extension of authorized initial term of contracts
for storage, handling or distribution of liquid fuels and
natural gas.
Sec. 105. Establishment of Department of Defense Joint Task Force for
Alternative Fuel Development.
TITLE II--INSTALLATION ENERGY SECURITY
Sec. 201. Funding for Installation Energy Test Bed.
Sec. 202. Funding for energy conservation projects.
Sec. 203. Report on energy-efficiency standards.
Sec. 204. Identification of energy-efficient products for use in
construction, repair, or renovation of Department of
Defense facilities.
Sec. 205. Core curriculum and certification standards for Department of
Defense energy managers.
Sec. 206. Requirement for Department of Defense to capture and track
data generated in metering department facilities.
Sec. 207. Establishment of milestones for achieving Department of
Defense 2025 renewable energy goal.
Sec. 208. Development of renewable energy sources on military lands.
Sec. 209. Development of renewable energy on military installations.
[[Page S3833]]
Sec. 210. Report on cross-agency renewable energy development efforts.
Sec. 211. Elimination of approval requirement for long-term contracts
for energy or fuel for military installations.
Sec. 212. Consideration of energy security in developing energy
projects on military installations using renewable energy
sources.
Sec. 213. Study on installation energy security and societal impacts.
SEC. 2. CONGRESSIONAL DEFENSE COMMITTEES DEFINED.
In this Act, the term ``congressional defense committees''
means the Committees on Armed Services and Appropriations of
the Senate and the House of Representatives.
SEC. 3. SENSE OF CONGRESS ON DEPARTMENT OF DEFENSE ENERGY
SAVINGS INITIATIVES.
It is the sense of Congress that--
(1) the Department of Defense should develop, test, field,
and maintain operationally-effective technologies that reduce
the energy needs of forward-deployed forces;
(2) the Secretary of Defense should ensure the energy
security of Department of Defense facilities;
(3) the Assistant Secretary of Defense for Operational
Energy Plans and Programs and the Deputy Under Secretary of
Defense for Installations and Environment should act in
concert to implement strategies and coordinate activities
across the services to meet Department-wide and service
energy goals, including service initiatives such as the
Navy's Great Green Fleet, the Air Force's alternative fuel
certification program, the Army's Net Zero installation pilot
program, and the Marine Corps experimental forward operating
base project; and
(4) in general, the Department of Defense should
aggressively pursue opportunities to save energy, reduce
energy-related costs, decrease reliance on foreign oil,
decrease the energy-related logistics burden for deployed
forces, ensure the long-term sustainability of military
installations, and strengthen United States energy security.
SEC. 4. WAIVER AUTHORITY.
(a) In General.--The Secretary of Defense may waive the
implementation or operation of a provision of this Act or an
amendment made by this Act if the Secretary certifies to
Congress that implementation or continued operation of such
provision would adversely impact the national security of the
United States.
(b) Intelligence Activity Waiver.--The Director of National
Intelligence may, in consultation with the Secretary of
Defense, exempt an intelligence activity of the United
States, and related personnel, resources, and facilities,
from a provision of this Act or an amendment made by this Act
to the extent the Director and Secretary determine necessary
to protect intelligence sources and methods from unauthorized
disclosure.
TITLE I--OPERATIONAL ENERGY SECURITY
SEC. 101. JOINT CONTINGENCY BASE RESOURCE PILOT PROJECT.
(a) Pilot Project Authorized.--
(1) In general.--The Secretary of Defense shall, in
consultation with the Secretary of Energy, as appropriate,
carry out a pilot project to assess the feasibility and
advisability of various joint and multi-service mechanisms to
decrease energy usage by deployed military units, including
by minimizing at forward operating bases the production of
waste water, consumption of drinking water, energy, and
materials, and reducing impacts on habitat and perimeter
security and by maximizing capacity and effectiveness at such
bases while promoting operational independence from supply
lines and minimizing the resource footprint. The Secretary of
Defense shall designate a lead officer for the pilot project.
(2) Mechanisms to be assessed.--The mechanisms assessed
under the pilot project shall include new energy and energy-
efficiency technologies and such other systems, components,
and technologies as the Secretary shall identify for purposes
of the pilot project.
(3) Utilization of small business.--In carrying out the
pilot project, the Secretary shall, to the extent
practicable, seek to work with small businesses through
small-scale procurement of systems, components, and
technologies described in paragraph (2).
(b) Authorization of Appropriations.--There is authorized
to be appropriated for fiscal year 2012 $4,000,000 to carry
out the pilot project authorized by subsection (a).
SEC. 102. RESEARCH AND DEVELOPMENT ACTIVITIES TO INCORPORATE
HYBRID-DRIVE TECHNOLOGY INTO CURRENT AND FUTURE
TACTICAL FLEET OF MILITARY GROUND VEHICLES.
(a) Identification of Usable Hybrid-drive Technology.--Not
later than one year after the date of the enactment of this
Act, the Secretary of Defense, in consultation with the
Secretaries of the military departments and the Secretary of
Energy, as appropriate, shall submit to Congress a report
identifying hybrid-drive technologies suitable for
incorporation into the next reset and recap of motor vehicles
of the current tactical fleet of the military services. In
identifying suitable hybrid-drive technologies, the Secretary
shall consider the feasibility and costs and benefits of
incorporating a hybrid-drive technology into each type and
variant of vehicle, including fuel savings, and the design
changes and amount of time required for incorporation.
(b) Hybrid-drive Technology Defined.--In this section, the
term ``hybrid-drive technology'' means a propulsion system,
including the engine and drive train, that draws energy from
onboard sources of stored energy that involve--
(1) an internal combustion or heat engine using combustible
fuel; and
(2) a rechargeable energy storage system.
SEC. 103. CONVERSION OF DEPARTMENT OF DEFENSE FLEET OF NON-
TACTICAL MOTOR VEHICLES TO ELECTRIC AND HYBRID
MOTOR VEHICLES.
(a) Conversion Required.--
(1) In general.--Subchapter II of chapter 173 of title 10,
United States Code, is amended by inserting after section
2922c the following new section:
``Sec. 2922c-1. Conversion of Department of Defense non-
tactical motor vehicle fleet to motor vehicles using
electric or hybrid propulsion systems
``(a) Deadline for Conversion.--Beginning on October 1,
2017, the Secretary of Defense, the Secretary of a military
department, or the head of a Defense Agency may not procure
non-tactical motor vehicles or buses unless such vehicles
use--
``(1) electric propulsion;
``(2) hybrid propulsion; or
``(3) an alternative propulsion system sufficient to make
such non-tactical motor vehicles and buses meet or exceed
applicable Corporate Average Fuel Economy standards.
``(b) Preference.--In procuring motor vehicles for use by a
military department or defense agency after the date of the
enactment of this section, the Secretary concerned or the
head of the defense agency shall provide a preference for the
procurement of non-tactical motor vehicles with a propulsion
system described in paragraph (1), (2), or (3) of subsection
(a), including plug-in hybrid systems, if the motor
vehicles--
``(1) will meet the requirement or the need for the
procurement; and
``(2) are commercially available at a cost reasonably
comparable, on the basis of life-cycle cost, to motor
vehicles containing only an internal combustion or heat
engine using combustible fuel.
``(c) Waiver Authority.--The Secretary of Defense may waive
the prohibitions under subsection (a) with respect to a class
of non-tactical vehicles if the Secretary determines that
there is a lack of commercial availability for the class of
vehicles or if the acquisition of such vehicles is cost
prohibitive.
``(d) Hybrid Defined.--In this section, the term `hybrid',
with respect to a motor vehicle, means a motor vehicle that
draws propulsion energy from onboard sources of stored energy
that are both--
``(1) an internal combustion or heat engine using
combustible fuel; and
``(2) a rechargeable energy storage system.''.
(2) Clerical amendment.--The table of sections at the
beginning of such subchapter is amended by inserting after
the item relating to section 2922c the following new item:
``2922c-1. Conversion of Department of Defense non-tactical motor
vehicle fleet to motor vehicles using electric or hybrid
propulsion systems.''.
(b) Applicability.--The prohibition under section 2922c-
1(a) of title 10, United States Code, as added by subsection
(a), does not apply to contracts for the procurement of non-
tactical vehicles entered into before the date of the
enactment of this Act.
SEC. 104. TEN-YEAR EXTENSION OF AUTHORIZED INITIAL TERM OF
CONTRACTS FOR STORAGE, HANDLING OR DISTRIBUTION
OF LIQUID FUELS AND NATURAL GAS.
Section 2922 of title 10, United States Code, is amended--
(1) in subsection (a), by adding at the end the following:
``Contracts for the procurement of liquid fuels, or natural
gas entered into pursuant to this section shall comply with
the requirements of section 526 of the Energy Independence
and Security Act of 2007 (42 U.S.C. 17142).''.
(2) in subsection (b), in the first sentence, by striking
``5 years'' and inserting ``15 years''.
SEC. 105. ESTABLISHMENT OF DEPARTMENT OF DEFENSE JOINT TASK
FORCE FOR ALTERNATIVE FUEL DEVELOPMENT.
(a) Establishment of Task Force.--The Assistant Secretary
of Defense for Operational Energy, Plans, and Programs shall
chair a joint task force for alternative fuel development,
consisting of the Secretaries of the military departments, or
their designees, the Assistant Secretary for Research and
Engineering, and other members determined appropriate. The
task force shall--
(1) lead the military departments in the development of
alternative fuel;
(2) streamline the current investments of each of the
military departments and ensure that such investments account
for the requirements of the military departments;
(3) collaborate with and leverage investments made by the
Department of Energy and other Federal agencies to advance
alternative fuel development;
(4) coordinate proposed alternative fuel investments in
accordance with section 138c(e) of title 10, United States
Code; and
(5) focus its efforts on fuels that are compliant with the
provisions of section 526 of the Energy Independence and
Security Act of 2007 (42 U.S.C. 17142).
(b) Implementation.--The Assistant Secretary of Defense for
Operational Energy, Plans, and Programs shall prescribe
policy
[[Page S3834]]
for the task force established pursuant to subsection (a) and
certify the budget associated with alternative fuel
investments of the Department of Defense.
(c) Notification.--Not later than 180 days after the date
of the enactment of this Act, the Secretary of Defense shall
submit to the congressional defense committees a copy of the
policy prescribed under subsection (b).
TITLE II--INSTALLATION ENERGY SECURITY
SEC. 201. FUNDING FOR INSTALLATION ENERGY TEST BED.
There is authorized to be appropriated $47,000,000 for each
of fiscal years 2012 through 2016 for research, development,
test, and evaluation, Defense-wide, for the Installation
Energy Test Bed (PE 0603XXXD8Z). As appropriate, all
Department of Defense projects funded through this program
shall be open and available to the Department of Energy and
its commercialization team.
SEC. 202. FUNDING FOR ENERGY CONSERVATION PROJECTS.
(a) Authorization To Obligate Funds.--The Secretary of
Defense may obligate, from amounts appropriated for military
construction, land acquisition, and military family housing
functions of the Department of Defense (other than the
military departments) and available to carry out energy
conservation projects, $135,000,000 for fiscal year 2012 to
carry out energy conservation projects under chapter 173 of
title 10, United States Code, to accelerate implementation of
the energy performance plan of the Department of Defense and
achievement of the energy performance goals established under
section 2911 of such title, as amended by this Act.
(b) Authorization of Appropriations To Compensate for
Deficiency.--There is authorized to be appropriated to the
Secretary of Defense for fiscal year 2012 an amount equal to
the difference between--
(1) the amount that may be obligated by the Secretary of
Defense under subsection (a); and
(2) the amount appropriated for such fiscal year for
military construction, land acquisition, and military family
housing functions of the Department of Defense (other than
the military departments) and available to carry out energy
conservation projects.
SEC. 203. REPORT ON ENERGY-EFFICIENCY STANDARDS.
(a) Report Required.--Not later than January 30, 2013, the
Secretary of Defense shall submit to the congressional
defense committees a report on the energy-efficiency
standards utilized by the Department of Defense for military
construction.
(b) Contents of Report.--The report shall include the
following:
(1) A cost-benefit analysis, on a life cycle basis, of
adopting American Society of Heating, Refrigerating and Air-
Conditioning Engineers (ASHRAE) building standard 189.1
versus 90.1 for sustainable design and development for the
construction and renovation of non-temporary buildings and
structures for the use of the Department of Defense.
(2) Department of Defense policy prescribing a
comprehensive strategy for the development of design and
building standards across the Department that include
specific energy-efficiency standards and sustainable design
attributes for military construction based on the cost-
benefit analysis required by paragraph (1), and consistent
with the requirement under subsection (c).
(c) Energy Efficiency Standards.--The Secretary of Defense
shall prescribe Department-wide standards, to be effective no
later than January 1, 2014, for the design, construction, and
renovation of Department of Defense facilities that mandate
energy efficiency standards equivalent, at a minimum, to
ASHRAE building standard 189.1.
SEC. 204. IDENTIFICATION OF ENERGY-EFFICIENT PRODUCTS FOR USE
IN CONSTRUCTION, REPAIR, OR RENOVATION OF
DEPARTMENT OF DEFENSE FACILITIES.
(a) Responsibility of Secretary of Defense.--Section
2915(e) of title 10, United States Code, is amended by
striking paragraph (2) and inserting the following new
paragraph:
``(2)(A) Not later than December 31, 2012, the Secretary of
Defense shall prescribe a definition of the term `energy-
efficient product' for purposes of this subsection and
establish and maintain a list of products satisfying the
definition. The definition and list shall be developed in
consultation with the Secretary of Energy to ensure, to the
maximum extent practicable, consistency with definitions of
the term used by other Federal agencies.
``(B) The Secretary shall modify the definition and list of
energy-efficient products as necessary, but not less than
annually, to account for emerging or changing technologies.
``(C) The list of energy-efficient products shall be
included as part of the energy performance master plan
developed pursuant to section 2911(b)(2) of this title. The
Secretary of Defense shall report any research on topics
related to technologies covered in this subsection being
funded at national laboratories to the relevant program
management offices of the Department of Energy to ensure
research agendas are coordinated, where appropriate.''.
(b) Conforming Amendment to Energy Performance Master
Plan.--Section 2911(b)(2) of such title is amended by adding
at the end the following new subparagraph:
``(F) The up-to date list of energy-efficient products
maintained under section 2915(e)(2) of this title.''.
SEC. 205. CORE CURRICULUM AND CERTIFICATION STANDARDS FOR
DEPARTMENT OF DEFENSE ENERGY MANAGERS.
(a) Training Program and Issuance of Guidance.--
(1) In general.--Subchapter I of chapter 173 of title 10,
United States Code, is amended by inserting after section
2915 the following new section:
``Sec. 2915a. Facilities: department of defense energy
managers
``(a) Training Program Required.--The Secretary of Defense
shall establish a training program for Department of Defense
energy managers designated for military installations--
``(1) to improve the knowledge, skills, and abilities of
energy managers; and
``(2) to improve consistency among energy managers
throughout the Department in the performance of their
responsibilities.
``(b) Curriculum and Certification.--(1) The Secretary of
Defense shall identify core curriculum and certification
standards required for energy managers. At a minimum, the
curriculum shall include the following:
``(A) Details of the energy laws that the Department of
Defense is obligated to comply with and the mandates that the
Department of Defense is obligated to implement.
``(B) Details of energy contracting options for third-party
financing of facility energy projects.
``(C) Details of the interaction of Federal laws with State
and local renewable portfolio standards.
``(D) Details of current renewable energy technology
options, and lessons learned from exemplary installations.
``(E) Details of strategies to improve individual
installation acceptance of its responsibility for reducing
energy consumption.
``(F) Details of how to conduct an energy audit and the
responsibilities for commissioning, recommissioning, and
continuous commissioning of facilities.
``(2) The curriculum and certification standards shall
leverage the best practices of each of the military
departments.
``(3) The certification standards shall identify
professional qualifications required to be designated as an
energy manager.
``(c) Use of Existing Energy Certification Programs.--The
Deputy Under Secretary for Installations and Environment may
determine that an existing Federal energy certification
program is suitable to be used instead of the program
described in subsection (b) to improve the knowledge, skills,
and abilities of energy managers designated for military
installations.
``(d) Information Sharing.--The Secretary of Defense shall
ensure that there are opportunities and forums, not less than
annually, for energy managers to exchange ideas and lessons
learned within each military department, as well as across
the Department of Defense.''.
(2) Clerical amendment.--The table of sections at the
beginning of such subchapter is amended by inserting after
the item relating to section 2915 the following new item:
``2915a. Facilities: Department of Defense energy managers.''.
(b) Issuance of Guidance.--Not later than 180 days after
the date of the enactment of this Act, the Secretary of
Defense shall issue guidance for the implementation of the
core curriculum and certification standards for energy
managers required by section 2915a of title 10, United States
Code, as added by subsection (a).
(c) Briefing Requirement.--Not later than 180 days after
the date of the enactment of this Act, the Secretary of
Defense, or designated representatives of the Secretary,
shall brief the Committees on Armed Services of the Senate
and House of Representatives regarding the details of the
energy manager core curriculum and certification
requirements.
SEC. 206. REQUIREMENT FOR DEPARTMENT OF DEFENSE TO CAPTURE
AND TRACK DATA GENERATED IN METERING DEPARTMENT
FACILITIES.
(a) Study.--The Secretary of Defense shall conduct a study
on the collection of data generated in the energy metering of
Department of Defense facilities, including an assessment of
what data is most relevant to energy efficiency
determinations and an examination of methods to collect such
data. The study shall include recommendations for
transmitting metering data electronically in a way that
ensures protection from cyberthreats.
(b) Data Capture Requirement.--The Secretary of Defense
shall require that the information generated by the
installation energy meters be captured and tracked to
determine baseline energy consumption and facilitate efforts
to reduce energy consumption. The data shall be made
available to procurement officials to enable decisions
regarding technology acquisitions to include consideration of
relevant energy efficiency information.
SEC. 207. ESTABLISHMENT OF MILESTONES FOR ACHIEVING
DEPARTMENT OF DEFENSE 2025 RENEWABLE ENERGY
GOAL.
Section 2911(e) of title 10, United States Code, is
amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting after paragraph (1) the following new
paragraph:
``(2) In achieving the goal specified in paragraph (1)
regarding the use of renewable energy by the Department of
Defense--
``(A) after September 30, 2015, the Department shall
produce or procure from renewable energy sources not less
than 12 percent
[[Page S3835]]
of the total quantity of facility energy it consumes within
its facilities;
``(B) after September 30, 2018, the Department shall
produce or procure from renewable energy sources not less
than 16 percent of the total quantity of facility energy it
consumes within its facilities; and
``(C) after September 30, 2021, the Department shall
produce or procure from renewable energy sources not less
than 20 percent of the total quantity of facility energy it
consumes within its facilities.''.
SEC. 208. DEVELOPMENT OF RENEWABLE ENERGY SOURCES ON MILITARY
LANDS.
(a) Expansion of Current Geothermal Authority.--Section
2917 of title 10, United States Code, is amended--
(1) by striking ``The Secretary'' and inserting ``(a) In
General.--The Secretary'';
(2) by striking ``geothermal energy resource'' and
inserting ``renewable energy source''; and
(3) by adding at the end the following new subsections:
``(b) Consideration of Energy Security.--The development of
a renewable energy resource under subsection (a) shall
include consideration of energy security in the design and
development of the project to ensure that it does not have an
adverse impact on mission needs.
``(c) Definitions.--In this section:
``(1) Renewable energy.--The term `renewable energy' means
electric energy generated from--
``(A) solar energy;
``(B) wind energy;
``(C) marine and hydrokinetic renewable energy;
``(D) geothermal energy;
``(E) qualified hydropower;
``(F) biomass; or
``(G) landfill gas.
``(2) Biomass.--The term `biomass' has the meaning given
the term in section 203(b) of the Energy Policy Act of 2005
(42 U.S.C. 15852(b)).
``(3) Qualified hydropower.--
``(A) In general.--The term `qualified hydropower' means--
``(i) incremental hydropower;
``(ii) additions of capacity made on or after January 1,
2001, or the effective commencement date of an existing
applicable State renewable electricity standard program at an
existing non-hydroelectric dam, if--
``(I) the hydroelectric project installed on the non-
hydroelectric dam--
``(aa) is licensed by the Federal Energy Regulatory
Commission, or is exempt from licensing, and is in compliance
with the terms and conditions of the license or exemption;
and
``(bb) meets all other applicable environmental, licensing,
and regulatory requirements, including applicable fish
passage requirements;
``(II) the non-hydroelectric dam--
``(aa) was placed in service before the date of enactment
of this section;
``(bb) was operated for flood control, navigation, or water
supply purposes; and
``(cc) did not produce hydroelectric power as of the date
of enactment of this section; and
``(III) the hydroelectric project is operated so that the
water surface elevation at any given location and time that
would have occurred in the absence of the hydroelectric
project is maintained, subject to any license requirements
imposed under applicable law that change the water surface
elevation for the purpose of improving the environmental
quality of the affected waterway, as certified by the Federal
Energy Regulatory Commission; and
``(iii) in the case of the State of Alaska--
``(I) energy generated by a small hydroelectric facility
that produces less than 50 megawatts;
``(II) energy from pumped storage; and
``(III) energy from a lake tap.
``(B) Standards.--Nothing in this paragraph or the
application of this paragraph shall affect the standards
under which the Federal Energy Regulatory Commission issues
licenses for and regulates hydropower projects under part I
of the Federal Power Act (16 U.S.C. 791a et seq.).''.
(b) Clerical Amendments.--
(1) Section heading.--The heading of such section is
amended to read as follows:
``Sec. 2917. Development of renewable energy sources on
military lands''.
(2) Table of sections.--The table of sections at the
beginning of subchapter I of chapter 173 of such title is
amended by striking the item relating to section 2917 and
inserting the following new item:
``2917. Development of renewable energy sources on military lands.''.
SEC. 209. DEVELOPMENT OF RENEWABLE ENERGY ON MILITARY
INSTALLATIONS.
(a) Military Installations Study.--
(1) In general.--Not later than 2 years after the date of
the enactment of this Act, the Secretary of Defense, in
consultation with the Secretary of the Interior, the
Secretary of Agriculture, the Secretary of Energy, and the
heads of other Federal agencies, as appropriate, shall
complete a study identifying locations on military
installations and ranges, including military installations
and ranges composed in whole or in part from lands withdrawn
from the public domain or subject to a special use permit
issued by the United States Forest Services that--
(A) exhibit a high potential for solar, wind, geothermal,
and other renewable energy production; and
(B) could be developed for renewable energy production in a
manner consistent with--
(i) all present and reasonably foreseeable military
training and operational mission needs and research,
development, testing, and evaluation requirements; and
(ii) all applicable environmental requirements.
(2) Notice of intent to prepare environmental impact
analysis.--Not later than 1 year after the completion of the
study required under paragraph (1), the Secretary of Defense,
in consultation with the Secretary of the Interior, the
Secretary of Agriculture, the Secretary of Energy, and the
heads of other Federal agencies, as appropriate, shall
prepare and publish in the Federal Register a Notice of
Intent initiating the process to prepare an environmental
impact analysis document to support a program to develop
renewable energy on any lands identified in the study as
suitable for such production.
(3) Use of existing studies and assessments.--The study
required by paragraph (1) shall, to the extent possible, draw
from existing studies and assessments of the Department of
Defense, other Federal agencies, and such other studies as
may be determined by the Secretary of Defense to be relevant.
(b) Additional Matters.--The Secretary of Defense, in
consultation with the Secretary of the Interior, the
Secretary of Agriculture, the Secretary of Energy, and the
heads of other Federal agencies, as appropriate, shall, not
later than 2 years after the date of the enactment of this
Act, prepare a report that--
(1) addresses the legal authorities governing authorization
for the development of renewable energy facilities on
military installations and ranges, including those composed
in whole or in part from lands withdrawn from the public
domain or subject to a special use permit issued by the
United States Forest Service, and identifies Federal and
State statutory and regulatory constraints to the development
of renewable energy facilities on installations and ranges
designed to produce power in excess of the current or
projected requirements of the military installation or range
concerned;
(2) contains recommendations to facilitate and incentivize
large-scale renewable development on military installations
and ranges, including those composed in whole or in part from
lands withdrawn from the public domain or subject to a
special use permit issued by the United States Forest
Service; and
(3) contains recommendations on--
(A) necessary changes in any law or regulation;
(B) whether the authorization for the use of such lands for
development of renewable energy projects should be pursuant
to lease, contract, right-of-way, permit, or other form of
authorization;
(C) methods of improving coordination among the Federal,
State, and local agencies, if any, involved in authorizing
renewable energy projects; and
(D) the disposition of revenues resulting from the
development of renewable energy projects on such lands.
(c) Submission of Study and Report.--The Secretary shall,
upon their completion, submit the study required by paragraph
(a) and the report required by paragraph (b) to the Committee
on Armed Services, the Committee on Energy and Natural
Resources, and the Committee on Appropriations of the Senate
and the Committee on Armed Services, the Committee on Natural
Resources, and the Committee on Appropriations of the House
of Representatives.
SEC. 210. REPORT ON CROSS-AGENCY RENEWABLE ENERGY DEVELOPMENT
EFFORTS.
Not later than 180 days after the date of the enactment of
this Act, the Secretary of Defense, in consultation with the
Secretary of Energy, the Secretary of the Interior, and the
heads of other Federal agencies, as appropriate, shall submit
to Congress a report addressing cross-jurisdictional issues
involved with the development of renewable energy on military
installations and ranges, including military installations
and ranges composed in whole or in part from lands withdrawn
from the public domain or subject to a special use permit
issued by the United States Forest Service. The report shall
include a description of the authority to approve such
development and options for disposition or use of funds
generated from these renewable energy projects.
SEC. 211. ELIMINATION OF APPROVAL REQUIREMENT FOR LONG-TERM
CONTRACTS FOR ENERGY OR FUEL FOR MILITARY
INSTALLATIONS.
Section 2922a of title 10, United States Code, is amended--
(1) in subsection (a), by striking ``Subject to subsection
(b), the Secretary of a military department'' and inserting
``The Secretary of a military department'';
(2) by striking subsection (b); and
(3) by redesignating subsection (c) as subsection (b).
SEC. 212. CONSIDERATION OF ENERGY SECURITY IN DEVELOPING
ENERGY PROJECTS ON MILITARY INSTALLATIONS USING
RENEWABLE ENERGY SOURCES.
(a) Policy of Pursuing Energy Security.--
(1) Policy required.--The Secretary of Defense shall
establish a policy under which favorable consideration is
given for energy security in the design and development of
renewable energy projects on military installations and
ranges.
[[Page S3836]]
(2) Notification.--The Secretary of Defense shall provide
notification to Congress within 30 days after entering into
any agreement for a facility energy project described in
paragraph (1) that excludes pursuit of energy security on the
grounds that inclusion of energy security is cost
prohibitive. The Secretary shall also provide a cost-benefit
analysis of the decision.
(3) Energy security defined.--In this subsection, the term
``energy security'' has the meaning given that term in
section 2924 of title 10, United States Code, as added by
subsection (d).
(b) Additional Consideration for Developing and
Implementing Energy Performance Goals and Energy Performance
Master Plan.--Section 2911(c) of title 10, United States
Code, is amended by adding at the end the following new
paragraph:
``(12) Opportunities for improving energy security for
facility energy projects that will use renewable energy
sources.''.
(c) Reporting Requirement.--Section 2925(a)(3) of such
title is amended by inserting ``whether the project
incorporates energy security into its design,'' after
``through the duration of each such mechanism,''.
(d) Energy Security Defined.--
(1) In general.--Subchapter III of chapter 173 of title 10,
United States Code, is amended by inserting before section
2925 the following new section:
``Sec. 2924. Energy security defined
``(a) In General.--In this chapter, the term `energy
security' means having assured access to reliable supplies of
energy and the ability to protect and deliver sufficient
energy to meet operational needs.
``(b) Pursuit of Energy Security.--In selecting facility
energy projects on a military installation that will use
renewable energy sources, pursuit of energy security means
the installation will give favorable consideration to
projects that provide power directly into the installation
electrical distribution network. In such cases, this power
should be prioritized to provide the power necessary for
critical assets on the installation in the event of a
disruption in the commercial grid.''.
(2) Clerical amendment.--The table of sections at the
beginning of such subchapter is amended by inserting before
the item relating to section 2925 the following new section:
``2924. Energy security defined.''.
(e) Study on Use of Renewable Energy to Improve Energy
Security.--
(1) Study.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of Defense shall enter
into a contract with an independent entity to conduct a study
on the use of renewable energy generation to improve energy
security at military installations.
(2) Report.--Not later than 18 months after the date of the
enactment of this Act, the Secretary of Defense, in
consultation with the Chief Information Officer and the
relevant energy offices within the Department of Defense,
shall submit to the congressional defense committees a report
on the study conducted under paragraph (1), together with the
Secretary's recommendations for using renewable energy
generation to improve energy security at military
installations.
SEC. 213. STUDY ON INSTALLATION ENERGY SECURITY AND SOCIETAL
IMPACTS.
(a) Study.--Not later than 180 days after the date of the
enactment of this Act, the Secretary of Defense shall enter
into a contract with an independent entity to conduct a study
on energy security issues at military installations and
related societal impacts.
(b) Elements.--The study required under subsection (a)
shall include the following elements:
(1) A discussion of policy considerations, including
engagement with utilities, transmission companies, and other
entities involved in the incorporation of microgrids or other
secure power generation infrastructure on military
installations designed to assure continued mission-critical
power in the event of a failure or extended interruption in
the commercial power grid.
(2) An analysis of--
(A) whether, in the event a military installation has the
continued use of a secure microgrid during a power disruption
in an adjacent community lasting more than 36 hours, the
military installation should have the capability and energy-
generating capacity in excess of that required to assure
continuation of mission-critical power in order to allow
delivery of emergency power support to non-Department of
Defense facilities and users providing emergency services and
other critical functions in an adjacent community;
(B) the policy and other implications of not developing the
capability and capacity described in subparagraph (A);
(C) the budgetary implication of developing the capability
and capacity described in subparagraph (A); and
(D) the potential sources of funding from entities outside
the Department of Defense required to develop the capability
and capacity described in subparagraph (A).
(c) Report.--Not later than 18 months after the date of the
enactment of this Act, the Secretary of Defense shall submit
to Congress a report on the study conducted under this
section, together with a plan for implementing the
recommendations of the study.
______
By Mr. ROCKEFELLER (for himself, Mr. Bingaman, Ms. Stabenow, Mr.
Blumenthal, Mr. Brown of Ohio, Mrs. Boxer, Mr. Franken, and Mr.
Merkley):
S. 1206. A bill to amend title XVIII of the Social Security Act to
require drug manufacturers to provide drug rebates for drugs dispensed
to low-income individuals under the Medicare prescription drug benefit
program; to the Committee on Finance.
Mr. ROCKEFELLER. Mr. President, I rise today to introduce the
Medicare Drug Savings Act of 2011. I am proud to be joined by my
colleagues Senator Jeff Bingaman of New Mexico, Senator Debbie Stabenow
of Michigan, Senator Richard Blumenthal of Connecticut, Senator Sherrod
Brown of Ohio and Senator Barbara Boxer of California, in introducing
this important piece of legislation.
The Republican budget would end Medicare as we know it, replacing it
with a voucher program that would double seniors' out of pocket costs
and leave them at the mercy of private insurance companies. It would
also decimate the Medicaid program, leaving millions of vulnerable
individuals including seniors, children, and people with disabilities
with nowhere to turn for care. We need to responsibly reduce our
deficit, but taking away health care for seniors and other vulnerable
people should be off the table. Rather than dismantling Medicare and
Medicaid, we can save hundreds of billions of dollars by holding drug
companies accountable and using the purchasing power of the federal
government to negotiate lower drug prices.
That is why we are introducing the Medicare Drug Savings Act. The
bill will eliminate a special deal from the 2003 Medicare prescription
drug law that allows drug companies to charge Medicare higher prices
for some seniors' prescription drugs. It would require prescription
drug manufacturers to pay rebates to Medicare for dually eligible
beneficiaries in Medicare and Medicaid. This proposal would reduce the
deficit, saving taxpayers an estimated $112 billion over the next ten
years, according to the Congressional Budget Office. Similar proposals
were also included in the recommendations from the President's
Commission on Fiscal Responsibility and Reform, and the President's
framework for deficit reduction.
Prior to the creation of the Medicare prescription drug program,
brand-name drug manufacturers paid a drug rebate for dually eligible
beneficiaries in Medicare and Medicaid. However, when the new Medicare
drug program was established, drug companies no longer had to provide
these rebates, resulting in windfall profits for prescription drug
manufacturers, at taxpayers' expense.
The Medicare Drug Savings Act would require prescription drug
manufacturers to provide a rebate for drugs provided to dually eligible
beneficiaries as well as all other enrollees in the low-income-subsidy,
LIS, plan in the Medicare Part D Prescription Drug Program.
Manufacturers would be required to pay the difference between the
lowest current rebates they are paying to private Part D drug plans,
and, the percentage of Average Manufacture Price, AMP, they currently
pay under Medicaid, plus an additional rebate if their prices grow
additional inflation. They would be required to participate in the
rebate program in order for their drugs to be covered by Medicare Part
D.
I urge my colleagues to support this bill. In doing so, we will
protect Medicare for seniors, and end a giveaway to drug companies that
is costing taxpayers hundreds of billions of dollars.
______
By Mr. PRYOR (for himself and Mr. Rockefeller):
S. 1207. A bill to protect consumers by requiring reasonable security
policies and procedures to protect data containing personal
information, and to provide for nationwide notice in the event of a
security breach; to the Committee on Commerce, Science, and
Transportation.
Mr. ROCKEFELLER. Mr. President, I rise to say a few words on the
introduction of the Data Security and Breach Notification Act. Senator
Pryor and I introduced this bill in the 111th Congress, and given the
recent high-profile data breaches that have endangered the well-being
of millions of ordinary American consumers, today's reintroduction of
this comprehensive bill is
[[Page S3837]]
timely. I want to thank and commend Senator Pryor for his leadership on
this issue and for his terrific work as Chairman of the Consumer
Protection Subcommittee on the Commerce Committee.
As the recent breaches at Citigroup, Sony, and Epsilon have taught
us, companies that collect and store sensitive consumer information
should have two important obligations: to maintain that information in
a manner that is safe and secure; and to notify affected consumers as
quickly as possible in the wake of a security breach in order to allow
them to take necessary steps to protect themselves. Senator Pryor's and
my bill addresses both of these obligations. Currently, 47 States have
data breach notification laws on the books, but very few address how
companies should secure their data from the outset to prevent such
breaches.
Our bill calls on the Federal Trade Commission to promulgate
regulations that direct companies to establish and maintain reasonable
protocols to secure consumer data from unauthorized access. In this
regard, the bill also has specific provisions addressing data brokers,
which are companies that collect and sell massive amounts of
information on individuals, largely without their knowledge. The Data
Security and Breach Notification Act would allow consumers to access
and, if necessary, correct the personal information that these data
brokers maintain and sell.
Furthermore, if a security breach occurs, our bill requires companies
to notify affected consumers unless there is no reasonable risk of
identity theft, fraud or unlawful conduct. This breach notification
standard is very important and reflects the most consumer-protective
standard in the country. The presumption is that companies should
notify consumers of a breach. However, if the breached entity
determines that there is no reasonable risk of harm, for instance, if
the company has made the data unusable through advanced encryption
technology, then they are spared this obligation. The FTC and state
Attorneys General are tasked with enforcing the law.
The Commerce Committee has a long, well-established history of
addressing data security issues, and the Committee has reported data
security bills in past Congresses. As Chairman of the Commerce
Committee, I intend to work with Senator Pryor to enact this bill into
law. Majority Leader Reid has introduced a cyber-security bill that
provides for the inclusion of a data security section, and the Obama
Administration has also released a cybersecurity proposal that contains
a breach notification provision. The bill that Senator Pryor and I have
introduced is a carefully balanced bill that protects consumers, but
also addresses the legitimate needs of business and does not impose
needless regulations and obligations. This bill has wide support from
both the consumer groups and many sectors in the business community,
and I will work with Senator Pryor to address further concerns in order
to garner consensus.
______
By Mr. WYDEN (for himself, Ms. Murkowski, Mrs. Murray, Mr.
Begich, and Ms. Cantwell):
S. 1208. A bill to provide an election to terminate certain capital
construction funds without penalties; to the Committee on Finance.
Mr. WYDEN. Mr. President, today I am reintroducing a bill to reform
the Capital Construction Fund to address major changes in the Nation's
fisheries and to allow the Nation's fishers to have access to needed
funds to prevent overfishing and to help create jobs.
The Capital Construction Fund, CCF, program was originally developed
at a time when American fishers were having a hard time competing with
highly efficient foreign fishing vessels, modern boats that often
harvested U.S. fishery resources within sight of our own shores. The
initial idea behind the CCF Program was to enable U.S. fishers to
accumulate the funds necessary to develop a modern fishing fleet by
allowing them to deposit a portion of their fishing-related earnings
into a CCF savings account on a tax-deferred basis. Under the CCF
program, monies subsequently withdrawn from the CCF accounts would
remain tax free as long as they were invested in new or rebuilt fishing
vessels. At the same time, any unauthorized withdrawals from CCF
accounts were subject to severe interest and other penalties.
The program was a success; the CCF program helped the U.S. industry
build a modern state-of-the-art fishing fleet. Unfortunately, that
fleet has now become overcapitalized, a problem that has been
exacerbated as managers have become more and more concerned about
potential overfishing and have begun to reduce the amount of fish that
they allow fishers to catch each year. As a result, the U.S. commercial
fishing fleet now has more harvesting capacity than the U.S. fishery
resource can sustainably support. The problem now is that the monies
that remain on deposit in CCF accounts represent a potential for
further overcapitalization at a time when less capitalization is
needed. Yet the CCF regulations currently penalize withdrawals made for
anything other than a bigger or better boat.
The issue now is what to do about the money that remains ``stranded''
in existing CCF accounts. Ironically, just as the current generation of
fishers is getting ready to retire, the program puts heavy penalties on
them if they take money out of their CCF accounts without using it for
anything other than to further capitalize an already overcapitalized
fleet.
The resulting situation is problematic for the fishers, the industry
and the resource. That's why I am reintroducing legislation today along
with my colleague Senator Murkowski--to address the problem of stranded
capital still on deposit in various CCF accounts and to relieve the
pressure to increase further capitalization of the fishing fleet. My
legislation will enable CCF fundholders to make a one-time withdrawal
from their CCF accounts without requiring them to reinvest it in the
fishing industry. Instead, they will be required to pay the taxes due
on the monies withdrawn, but without having to pay interest or other
penalties on such withdrawals. Those funds would be freed up for other
purposes, including starting a new business and finding other ways to
support and create jobs. An income-averaging formula would be applied
to the withdrawals so as to avoid an excessive tax rate on the one-time
withdrawal. The fishers taking advantage of such an opportunity to take
money out of their CCF accounts penalty free would then be required to
close their CCF accounts and would be prohibited from further
participation in the program. This is a win-win-win situation. The
fisher gets to take the money out of his CCF without having to pay
penalties and interest, but still pays the taxes when due; the
government gets taxes on the withdrawals; and the resource and the
fishers who remain in the fishery avoid further capitalization of an
already overcapitalized industry.
I look forward to working with Senator Murkowski, the fishing
community, and the bill's other supporters to advance this legislation
to the President's desk.
______
By Mrs. FEINSTEIN (for herself, Ms. Collins, Mr. Reed, and Mrs.
Boxer):
S. 1211. A bill amend the Federal Food, Drug, and Cosmetic Act to
preserve the effectiveness of medically important antibiotics used in
the treatment of human and animal diseases; to the Committee on Health,
Education, Labor, and Pensions.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce the
Preservation of Antibiotics for Medical Treatment Act of 2011.
Introducing this bill today is bittersweet. As my colleagues know, we
have been working to pass this bill for almost a decade now. But for
all those years it was one of our dearest colleagues, Senator Ted
Kennedy, who stood before this body to introduce the legislation.
We certainly miss Senator Kennedy's leadership, his passion, his
dedication and his political skill.
But as I stand here today to introduce the Preservation of
Antibiotics for Medical Treatment Act, I know that he would be proud to
see the continued work and support for this bill.
Today, I am joined by Senator Collins, Senator Reed of Rhode Island
and Senator Boxer as original cosponsors of this legislation.
It is my hope that in this Congress we can make some positive changes
in this important area.
[[Page S3838]]
Let me start by explaining what the Preservation of Antibiotics for
Medical Treatment Act does.
The Preservation of Antibiotics for Medical Treatment Act directs the
Food and Drug Administration to regulate the misuse of antibiotics in
agriculture. It requires drug companies and producers to demonstrate
that they are using antibiotics to treat clinically diagnosable
diseases in farm animals. It requires that companies defend the process
of adding gross amounts of antibiotics to the feed and water of
livestock and it requires them to prove that this practice does not
contribute to antibiotic-resistance among humans.
Unfortunately, it has become a common practice in industrial
agriculture to use antibiotics for ``growth promotion.'' This practice
allows for animals kept in cramped quarters to grow artificially fast,
and artificially fat.
The most concerning part is that the low doses of antibiotics fed to
these animals breed antibiotic resistant pathogens. These pathogens
make their way into our food, our water, and our communities.
Antibiotic resistance is one of the most significant public health
challenges facing us today, and numerous peer-reviewed studies have
concluded that the overuse of antibiotics in animal agriculture is
making the problem worse.
A recent study published in the medical journal Clinical Infectious
Diseases found that nearly 50 percent of grocery store meat was
contaminated with antibiotic resistant pathogens. Even more concerning,
25 percent of all meat was contaminated with pathogens that were
resistant to three or more types of antibiotics.
I have heard for years that antibiotics were the closest thing to a
``silver bullet'' in human medicine. But today, tens of thousands of
people in the U.S. die each year from antibiotic resistant infections.
So unfortunately we are learning the hard way that these precious, life
saving drugs no longer work as well as they once did.
Antibiotic resistance is a real and growing problem, and its causes
are man-made.
As our use of antimicrobial drugs has increased, so has the ability
of bacteria to withstand their effects. The only way to preserve the
effectiveness of antibiotics is to use them responsibly.
In human medicine, this means that doctors must use better discretion
when prescribing antibiotics. As patients, we must do our part and
finish the prescriptions given to us.
But antibiotics are also used in animal medicine, so veterinarians
and farmers must also ensure that antibiotics are used responsibly.
I was surprised to learn that the Union of Concerned Scientists
estimates that 84 percent of all antibiotic usage in this country is in
animals such as chickens, pigs, and cattle. Even more surprising is the
vast majority of antibiotic consumption by livestock is by animals that
show no clinical signs of illness.
This type of treatment, referred to by doctors and veterinarians as
non-therapeutic, creates the perfect breeding ground for antibiotic
resistant bacteria. Unlike therapeutic doses of medicine that are
prescribed when we, or any other animal gets sick, non-therapeutic
doses of antibiotics are routinely added to the food or water of
livestock that are not ill.
These doses are not large enough, or powerful enough, to eliminate
all the bacteria inside their bodies. Instead, the small dose of
antibiotics only kills off the weakest bacteria; leaving the strongest,
most resistant bacteria behind to reproduce.
Recognizing the impending health crisis, some have taken dramatic
action. In 1998, Denmark became the first country to ban the routine
use of antibiotics in the food and water of livestock. The entire
European Union followed suit in 2006. Australia, New Zealand, Chile,
Korea, Thailand, the Philippines, and Japan have also implemented full
or partial bans on non-therapeutic uses of antibiotics.
But the majority of producers in the U.S. have not followed suit; and
it is time for a wakeup call.
That is why I am reintroducing the Preservation of Antibiotics for
Medical Treatment Act. This legislation implements a precautionary
principle when it comes to using antibiotics and requires that
producers and drug companies affirmatively demonstrate that the non-
therapeutic antibiotics in livestock production do not contribute to
the incidence of antibiotic resistant infections in humans.
Put simply, if growth promoting antibiotics can't be used safely,
they shouldn't be used at all.
The real strength of this legislation is that it takes an incremental
approach. The new regulations regarding antibiotic use under PAMTA
would only apply to the limited number of antibiotics that are critical
to human health and are used non-therapeutically.
This means that any drug not used in human medicine is left untouched
by this legislation.
PAMTA also preserves the ability of farmers to use all available
antibiotics to treat sick animals.
By focusing on only the most egregious misuses of medically important
antibiotics, PAMTA tackles the problem of antibiotic resistance where
we know we can make the most difference.
I understand that some question the need for this legislation; they
say that there is no evidence that antibiotic use in agriculture leads
to infections in humans.
Unfortunately they are wrong.
Rear Admiral Ali S. Khan, MD, MPH, Assistant Surgeon General and
Director of the Office of Public Health Preparedness and Response at
the Centers for Disease Control and Prevention recently testified in
front of the House Energy Committee that ``studies related to
Salmonella as both a human and animal pathogen, including many studies
in the United States, have demonstrated that use of antibiotic agents
in food animals results in antibiotic resistant bacteria in food
animals, resistant bacteria are present in the food supply and are
transmitted to humans, and resistant bacterial infections result in
adverse human health consequences, e.g., increased hospitalization.
Doctor Joshua Sharfstein, Principal Deputy Commissioner of the Food
and Drug Administration also testified at the hearing and agreed with
Rear Admiral Khan. The FDA, he said, ``supports the conclusion that
using medically important antimicrobial drugs for production purposes
is not in the interest of protecting and promoting the public health.''
Quantitative evidence from the EU and Canada also support these
conclusions. In response to public health concerns about the rise of
cephalosporin, an antibiotic, resistance in Salmonella and E. coli,
chicken hatcheries in Quebec voluntarily stopped using the drug in
February 2005. Following the ban, the public health agency of Canada
reported a dramatic 89 percent decrease in the incidence of resistant
salmonella in chicken meat and 77 percent decrease in related human
infections. Once the drug was partially reintroduced in 2007,
antibiotic resistant infections in people jumped back up 50 percent.
Unfortunately we are fighting an uphill battle with antibiotic
resistant infections. Our tools and resources are diminishing even
while the number and severity of these infections are increasing.
One example is Methicillin-resistant Staphylococcus aureus, or MRSA.
According to the Centers for Disease Control and Prevention, CDC, MRSA
infections in 1974 accounted for only two percent of the total number
of staph infections; in 1995 it was 22 percent; and by 2004 it was 63
percent.
CDC estimates that by 2005, there were 94,360 MRSA infections in the
United States. Tragically, about 19,000 of them, 20 percent, were fatal
because MRSA is nearly immune to almost every antibiotic used in modern
medicine.
By comparison, in 2005 there were 17,011 deaths due to AIDS; so the
scope and consequence of this problem is stunning.
Of course not all MRSA is derived from the overuse of antibiotics on
the farm. Many infections are acquired in the hospital, and it is
believed that these bacteria became resistant to antibiotics due to the
misuse of drugs in human medicine.
But MRSA is also infecting individuals who have not been in a
hospital setting.
There is strong evidence that at least one strain of MRSA infecting
people is
[[Page S3839]]
coming directly from livestock. This strain, known as ST398, has been
shown to disproportionately infect farmers and their families. Like all
MRSA, ST398 is resistant to the antibiotics methicillin and oxacillin.
But resistance to other antibiotics is also common among ST398 strains,
which makes treatment especially challenging.
A recent study by the CDC in December 2009 showed that hospital
acquired strains of MRSA and community acquired MRSA strains such as
ST398 are trending in opposite directions.
The study found that community acquired MRSA, a type of MRSA that did
not emerge in the hospital setting and is not contracted there,
increased 700 percent between 1999 and 2006.
By contrast, hospital acquired MRSA cases declined roughly 10 percent
over this same time period.
Over the past decade, it has become clear that MRSA is not just a
problem for hospital administrators. More and more individuals are
acquiring this devastating infection in their homes, at their gyms or
in restaurants.
While it is exceedingly difficult to determine the exact extent that
antibiotic use in agriculture influences individual MRSA cases, we know
for certain that statistical evidence overwhelmingly suggests that a
reduction of antibiotic use in agriculture will result in a reduction
of highly resistant MRSA cases.
Since the Union of Concerned Scientists estimates that as much as 84
percent of all antibiotic usage in this country is in veterinary
medicine, one can reasonably conclude that a reduction of antibiotic
use in agriculture will result in a reduction of highly resistant MRSA
cases.
The reason I am so committed to this legislation is that a reduction
in highly resistant infections will save lives. One of my constituents
shared a truly heartbreaking story.
The Don family, from Ramona, California, is a tight knit family. They
are active in the community, and loved by their neighbors. Until
recently, like most happy, healthy families, antibiotic resistant
infections just wasn't a subject that came up much.
So when Mr. and Mrs. Don sent their son Carlos off to sixth grade
camp in 2007, they never expected that an antibiotic resistant
infection would change their lives.
Carlos was the picture of health. He was a bright, vibrant, athletic
12-year old, who loved to play football.
When he returned home from camp, he had a 104 degree fever and could
barely walk. It was the sickest his parents had ever seen him.
When Carlos didn't get better the next day, they took him to Urgent
Care. He was given a dose of antibiotics that the doctors said would
knock the bug out in a few days.
But the drugs didn't work.
The next day Carlos was in even worse shape and he had to be rushed
to the hospital by an ambulance. His new doctors put him on every
single antibiotic the hospital had to offer.
Even at the extremely high levels prescribed to Carlos, the drugs
still didn't work.
It took doctors 48 hours to find and acquire an antibiotic that was
strong enough to kill the infection.
By that time Carlos' lungs, kidneys, liver, intestines and heart had
all failed.
The only thing left, doctors told his parents, was his brain. The
doctors said that Carlos knew his body was failing and that he was in a
fight for his life.
It pains me to say that this story does not have a happy ending.
Carlos lost his life because the antibiotics that we have relied on for
80 years didn't work.
No parents should ever have to undergo the heartbreak and the tragedy
that the Dons went through in 2007.
Their son was as healthy and happy as any 12-year-old could be, but
he was cruelly taken away from them because of a disease that we could
not fight.
I believe that with this bill we have an opportunity to prevent other
families from suffering from this same tragic story.
There are some who believe this legislation may actually make our
food supply less safe. Their argument is that antibiotics keep our
animals healthy, and healthy animals make for healthy food.
But research shows us that these concerns are misguided. Over 375
public, consumer, and environmental health groups including the
American Medical Association, the American Public Health Association,
and the Infectious Diseases Society of America, support the legislation
because they believe that reducing antibiotic use in agriculture will
protect the health and safety of Americans.
It is not just health groups that support this approach. The fact is
that farmers and meat producers can keep their animals healthy without
adding hundreds of pounds of antibiotics to the food and water of their
animals.
In Denmark, one of the world's largest exporters of pork, producers
have made modest changes to their husbandry practices and reduced
overall antibiotic use by over 50 percent. Pork production has grown,
and other animal health indicators such as litter size and average
daily weight gain have improved.
In Iowa, hog farmers like Paul Willis and Jude Becker have shown that
antibiotic-free production is possible in the heartland of America too.
In California, companies like Niman Ranch in Alameda have proved that
Beef, Pork, Poultry and Lamb can be produced profitably in America on a
large scale without the routine use of antibiotics. In fact, fast-food
chain Chipotle Mexican Grill has grown a highly successful business
based on meats raised without antibiotics, much of it supplied by Niman
Ranch.
This bipartisan bill makes incremental changes to ensure that our
actions on the farm do not negatively impact the health and well being
of our farmers, their families, and every one of us who consumes the
food they produce.
I look forward to working with my colleagues to pass these critical
reforms.
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. 1211
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 ``Preservation of Antibiotics
for Medical Treatment Act of 2011''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) In January 2001, a Federal interagency task force--
(A) released an action plan to address the continuing
decline in effectiveness of antibiotics against common
bacterial infections, referred to as antibiotic resistance;
(B) determined that antibiotic resistance is a growing
menace to all people and poses a serious threat to public
health; and
(C) cautioned that if current trends continue, treatments
for common infections will become increasingly limited and
expensive, and, in some cases, nonexistent.
(2) Antibiotic resistance, resulting in a reduced number of
effective antibiotics, may significantly impair the ability
of the United States to respond to terrorist attacks
involving bacterial infections or a large influx of
hospitalized patients.
(3)(A) Any overuse or misuse of antibiotics contributes to
the spread of antibiotic resistance, whether in human
medicine or in agriculture.
(B) Recognizing the public health threat caused by
antibiotic resistance, Congress took several steps to curb
antibiotic overuse in human medicine through amendments to
the Public Health Service Act (42 U.S.C. 201 et seq.) made by
section 102 of the Public Health Threats and Emergencies Act
(Public Law 106-505, title I; 114 Stat. 2315), but has not
yet addressed antibiotic overuse in agriculture.
(4) In a March 2003 report, the National Academy of
Sciences stated that--
(A) a decrease in antimicrobial use in human medicine alone
will have little effect on the current situation; and
(B) substantial efforts must be made to decrease
inappropriate overuse in animals and agriculture.
(5) In 2010, the FDA determined that--
(A) 1,300,000 kilograms of antibacterial drugs were sold
for use on food animals in the United States in 2009;
(B) 3,300,000 kilograms of antibacterial drugs were used
for human health in 2009; and
(C) therefore, 80 percent of antibacterial drugs
disseminated in the United States in 2009 were sold for use
on food animals, rather than being used for human health.
(6)(A) Large-scale, voluntary surveys by the Department of
Agriculture's Animal and Plant Health Inspection Service in
1999, 2001, and 2006 revealed that--
(i) 84 percent of grower-finisher swine farms, 83 percent
of cattle feedlots, and 84 percent of sheep farms administer
[[Page S3840]]
antimicrobials in the feed or water for health or growth
promotion reasons; and
(ii) many of the antimicrobials identified are identical or
closely related to drugs used in human medicine, including
tetracyclines, macrolides, Bacitracin, penicillins, and
sulfonamides; and
(B) these drugs are used in people to treat serious
diseases such as pneumonia, scarlet fever, rheumatic fever,
venereal disease, skin infections, and even pandemics like
malaria and plague, as well as bioterrorism agents like
smallpox and anthrax.
(7) Many scientific studies confirm that the nontherapeutic
use of antibiotics in agricultural animals contributes to the
development of antibiotic-resistant bacterial infections in
people.
(8) The periodical entitled ``Clinical Infectious
Diseases'' published a report in June 2002, that--
(A) was based on a 2-year review by experts in human and
veterinary medicine, public health, microbiology,
biostatistics, and risk analysis, of more than 500 scientific
studies on the human health impacts of antimicrobial use in
agriculture; and
(B) recommended that antimicrobial agents should no longer
be used in agriculture in the absence of disease, but should
be limited to therapy for diseased individual animals and
prophylaxis when disease is documented in a herd or flock.
(9) The United States Geological Survey reported in March
2002 that--
(A) antibiotics were present in 48 percent of the streams
tested nationwide; and
(B) almost half of the tested streams were downstream from
agricultural operations.
(10) An April 1999 study by the General Accounting Office
concluded that resistant strains of 3 microorganisms that
cause food-borne illness or disease in humans (Salmonella,
Campylobacter, and E. coli) are linked to the use of
antibiotics in animals.
(11) Epidemiological research has shown that resistant
Salmonella and Campylobacter infections are associated with
increased numbers of ill patients and bloodstream infections,
and increased death.
(12) In 2010, the peer-reviewed journal Molecular Cell
published a study demonstrating that low-dosage use of
antibiotics causes a dramatic increase in genetic mutation,
raising new concerns about the agricultural practice of using
low-dosage antibiotics in order to stimulate growth promotion
and routinely prevent disease in unhealthy conditions.
(13)(A) In January 2003, Consumer Reports published test
results on poultry products bought in grocery stores
nationwide showing disturbingly high levels of Campylobacter
and Salmonella bacteria that were resistant to the
antibiotics used to treat food-borne illnesses.
(B) The Food and Drug Administration's National
Antimicrobial Resistance Monitoring System routinely finds
that retail meat products are contaminated with bacteria
(including the foodborne pathogens Campylobacter and
Salmonella) that are resistant to antibiotics important in
human medicine.
(C) In December 2007, the USDA issued a fact sheet on the
recently recognized link between antimicrobial drug use in
animals and Methicillin Resistant Staphylococcus Aureas
(MRSA) infections in humans.
(14) In October 2001, the New England Journal of Medicine
published an editorial urging a ban on nontherapeutic use of
medically important antibiotics in animals.
(15)(A) In 1998, the National Academy of Sciences noted
that antibiotic-resistant bacteria generate a minimum of
$4,000,000,000 to $5,000,000,000 in costs to United States
society and individuals yearly.
(B) In 2009, Cook County Hospital and the Alliance for
Prudent Use of Antibiotics estimated that the total health
care cost of antibiotic resistant infections in the United
States was between $16,600,000,000 and $26,000,000,000
annually.
(16) The American Medical Association, the American Public
Health Association, the National Association of County and
City Health Officials, and the National Campaign for
Sustainable Agriculture are among the more than 300
organizations representing health, consumer, agricultural,
environmental, humane, and other interests that have
supported enactment of legislation to phase out
nontherapeutic use in farm animals of medically important
antibiotics.
(17) In 2010, the Danish Veterinary and Food Administration
testified that the Danish ban of the non-therapeutic use of
antibiotics in food animal production resulted in a marked
reduction in antimicrobial resistance in multiple bacterial
species, including Campylobacter and Enterococci.
(18) In 2009, the Congressional Research Service concluded
that restrictions overseas on the use of antimicrobial drugs
in the production of livestock could impact U.S. export
markets for livestock and poultry.
(19) The Federal Food, Drug, and Cosmetic Act (21 U.S.C.
301 et seq.)--
(A) requires that all drugs be shown to be safe before the
drugs are approved; and
(B) places the burden on manufacturers to account for
health consequences and prove safety.
(20)(A) The Food and Drug Administration recently modified
the drug approval process for antibiotics to recognize the
development of resistant bacteria as an important aspect of
safety, but most antibiotics currently used in animal
production systems for nontherapeutic purposes were approved
before the Food and Drug Administration began considering
resistance during the drug-approval process.
(B) The Food and Drug Administration has not established a
schedule for reviewing those existing approvals.
(21) Certain non-routine uses of antibiotics in animal
agriculture are legitimate to prevent animal disease.
(22) An April 2004 study by the General Accounting Office--
(A) concluded that Federal agencies do not collect the
critical data on antibiotic use in animals that they need to
support research on human health risks; and
(B) recommends that the Department of Agriculture and the
Department of Health and Human Services develop and implement
a plan to collect data on antibiotic use in animals.
SEC. 3. PURPOSE.
The purpose of this Act is to preserve the effectiveness of
medically important antibiotics used in the treatment of
human and animal diseases by reviewing the safety of certain
antibiotics for nontherapeutic purposes in food-producing
animals.
SEC. 4. PROOF OF SAFETY OF CRITICAL ANTIMICROBIAL ANIMAL
DRUGS.
(a) Definitions.--Section 201 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 321) is amended by adding at the
end the following:
``(ss) Critical Antimicrobial Animal Drug.--The term
`critical antimicrobial animal drug' means a drug that--
``(1) is intended for use in food-producing animals; and
``(2) is composed wholly or partly of--
``(A) any kind of penicillin, tetracycline, macrolide,
lincosamide, streptogramin, aminoglycoside, or sulfonamide;
or
``(B) any other drug or derivative of a drug that is used
in humans or intended for use in humans to treat or prevent
disease or infection caused by microorganisms.
``(tt) Nontherapeutic Use.--The term `nontherapeutic use',
with respect to a critical antimicrobial animal drug, means
any use of the drug as a feed or water additive for an animal
in the absence of any clinical sign of disease in the animal
for growth promotion, feed efficiency, weight gain, routine
disease prevention, or other routine purpose.''.
(b) Applications Pending or Submitted After Enactment.--
Section 512(d)(1) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b(d)(1)) is amended--
(1) in the first sentence--
(A) in subparagraph (H), by striking ``or'' at the end;
(B) in subparagraph (I), by inserting ``or'' at the end;
and
(C) by inserting after subparagraph (I) the following:
``(J) with respect to a critical antimicrobial animal drug
or a drug of the same chemical class as a critical
antimicrobial animal drug, the applicant has failed to
demonstrate that there is a reasonable certainty of no harm
to human health due to the development of antimicrobial
resistance that is attributable, in whole or in part, to the
nontherapeutic use of the drug;''; and
(2) in the second sentence, by striking ``(A) through (I)''
and inserting ``(A) through (J)''.
(c) Phased Elimination of Nontherapeutic Use in Animals of
Critical Antimicrobial Animal Drugs Important for Human
Health.--Section 512 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 360b) is amended by adding at the end the
following:
``(q) Phased Elimination of Nontherapeutic Use in Animals
of Critical Antimicrobial Animal Drugs Important for Human
Health.--
``(1) Applicability.--This subsection applies to the
nontherapeutic use in a food-producing animal of a drug--
``(A)(i) that is a critical antimicrobial animal drug; or
``(ii) that is of the same chemical class as a critical
antimicrobial animal drug; and
``(B)(i) for which there is in effect an approval of an
application or an exemption under subsection (b), (i), or (j)
of section 505; or
``(ii) that is otherwise marketed for use.
``(2) Withdrawal.--The Secretary shall withdraw the
approval of a nontherapeutic use in food-producing animals
described in paragraph (1) on the date that is 2 years after
the date of enactment of this subsection unless--
``(A) before the date that is 2 years after the date of the
enactment of this subsection, the Secretary makes a final
written determination that the holder of the approved
application has demonstrated that there is a reasonable
certainty of no harm to human health due to the development
of antimicrobial resistance that is attributable in whole or
in part to the nontherapeutic use of the drug; or
``(B) before the date specified in subparagraph (A), the
Secretary makes a final written determination, with respect
to a risk analysis of the drug conducted by the Secretary and
other relevant information, that there is a reasonable
certainty of no harm to human health due to the development
of antimicrobial resistance that is attributable in whole or
in part to the nontherapeutic use of the drug.
``(3) Exemptions.--Except as provided in paragraph (5), if
the Secretary grants an exemption under section 505(i) for a
drug that is a critical antimicrobial animal drug, the
Secretary shall rescind each approval of a
[[Page S3841]]
nontherapeutic use in a food-producing animal of the critical
antimicrobial animal drug, or of a drug in the same chemical
class as the critical antimicrobial animal drug, as of the
date that is 2 years after the date on which the Secretary
grants the exemption.
``(4) Approvals.--Except as provided in paragraph (5), if
an application for a drug that is a critical antimicrobial
animal drug is submitted to the Secretary under section
505(b), the Secretary shall rescind each approval of a
nontherapeutic use in a food-producing animal of the critical
antimicrobial animal drug, or of a drug in the same chemical
class as the critical antimicrobial animal drug, as of the
date that is 2 years after the date on which the application
is submitted to the Secretary.
``(5) Exception.--Paragraph (3) or (4), as the case may be,
shall not apply if--
``(A) before the date on which approval would be rescinded
under that paragraph, the Secretary makes a final written
determination that the holder of the application for the
approved nontherapeutic use has demonstrated that there is a
reasonable certainty of no harm to human health due to the
development of antimicrobial resistance that is attributable
in whole or in part to the nontherapeutic use in the food-
producing animal of the critical antimicrobial animal drug;
or
``(B) before the date specified in subparagraph (A), the
Secretary makes a final written determination, with respect
to a risk analysis of the critical antimicrobial animal drug
conducted by the Secretary and any other relevant
information, that there is a reasonable certainty of no harm
to human health due to the development of antimicrobial
resistance that is attributable in whole or in part to the
nontherapeutic use of the drug.''.
SEC. 5. COMMITTEE HEARINGS ON IMPLEMENTATION.
(a) In General.--The Committee on Energy and Commerce of
the House of Representatives and the Committee on Health,
Education, Labor, and Pensions of the Senate shall each hold
a hearing on the implementation by the Commissioner of Food
and Drugs of section 512(q) of the Federal Food, Drug, and
Cosmetic Act, as added by section 4 of this Act.
(b) Exercise of Rulemaking Authority.--Subsection (a) is
enacted--
(1) as an exercise of the rulemaking power of the House of
Representatives and Senate, and, as such, they shall be
considered as part of the rules of the House or Senate (as
the case may be), and such rules shall supersede any other
rule of the House or Senate only to the extent that rule is
inconsistent therewith; and
(2) with full recognition of the constitutional right of
either House to change such rules (so far as relating to the
procedure in that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
____________________