[Congressional Record Volume 157, Number 181 (Tuesday, November 29, 2011)]
[Senate]
[Pages S7956-S7987]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012--Continued
The PRESIDING OFFICER. In my capacity as a Senator from Virginia, I
suggest the absence of a quorum.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I ask unanimous consent there be 2 minutes of debate,
equally divided, prior to a vote in relation to the Udall of Colorado
amendment No. 1107; that upon the use or yielding back of time, the
Senate proceed to vote in relation to the amendment, with no amendments
in order prior to the vote.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Colorado.
Amendment No. 1107
Mr. UDALL of Colorado. Mr. President, this amendment strikes
controversial detainee provisions that have been inserted in the
National Defense Authorization Act. It would require that the Defense
intelligence and law enforcement agencies report to Congress with
recommendations for any additional authorities they need in order to
detain and prosecute terrorists. The amendment would then ask for
hearings to be held so we can fully understand the opposition to these
provisions by our national security experts--bipartisan opposition, I
might add--and hopefully avoid a veto of the Defense authorization
bill.
In short, we are ignoring the advice and the input of the Director of
the FBI, the Director of our intelligence community, the Attorney
General of the United States, the Secretary of Defense, and the White
House, who are all saying there are significant concerns with these
provisions; that we ought to move slowly.
We have been successful in prosecuting over 300 terrorists through
our civil justice system. Let's not fix what isn't broken until we
fully understand the ramifications.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I yield 30 seconds to Senator Graham.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, section 1031 is a congressional statement
of authority of already existing law. It reaffirms the fact this body
believes al-Qaida and affiliated groups are a military threat to the
United States and they can be held under the law of war indefinitely to
make sure we find out what they are up to; and they can be questioned
in a humane manner consistent with the law of war.
Section 1032 says if you are captured on the homeland, you will be
held in military custody so we can gather intelligence. That provision
can be waived if it interferes with the investigation.
These are needed changes. These are changes that reaffirm what is
already in law.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Michigan.
Mr. LEVIN. Mr. President, the Supreme Court has recently ruled--this
is the Supreme Court talking:
There is no bar to this Nation's holding one of its own
citizens as an enemy combatant. A citizen, no less than an
alien, can be
[[Page S7957]]
part of the supporting forces hostile to the United States,
and such a citizen, if released, would pose the same threat
of returning to the front during the ongoing conflict.
That is the Supreme Court's statement. We can and must deal with an
al-Qaida threat. We can do it properly. The administration helped to
draft almost all of this bill. The provisions which would be struck----
The PRESIDING OFFICER. The Senator's time has expired.
Mr. LEVIN. Are provisions which even the administration has helped to
draft. So I would hope we would deal with the al-Qaida threat in an
appropriate way, in a bipartisan way. The committee voted
overwhelmingly for this language.
I yield the remainder of my time.
Mr. McCAIN. I ask for the yeas and nays.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. How much time do I have remaining?
The PRESIDING OFFICER. Three seconds.
Mr. UDALL of Colorado. The Director of the FBI, the Secretary of
Defense, the Attorney General, and the Director of Intelligence have
all said let's go slow.
Pass the Udall amendment.
The PRESIDING OFFICER. All time has expired.
The question is on agreeing to the amendment.
Is there a sufficient second? There appears to be a sufficient
second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) is
necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Alaska (Ms. Murkowski).
The PRESIDING OFFICER. (Mr. Franken). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 38, nays 60, as follows:
[Rollcall Vote No. 210 Leg.]
YEAS--38
Akaka
Baucus
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Coons
Durbin
Feinstein
Franken
Gillibrand
Harkin
Johnson (SD)
Kerry
Kirk
Klobuchar
Lautenberg
Leahy
Menendez
Merkley
Mikulski
Murray
Nelson (FL)
Paul
Reid
Rockefeller
Sanders
Schumer
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Wyden
NAYS--60
Alexander
Ayotte
Barrasso
Blunt
Boozman
Brown (MA)
Burr
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Corker
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Hagan
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (WI)
Kohl
Kyl
Landrieu
Lee
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Moran
Nelson (NE)
Portman
Pryor
Reed
Risch
Roberts
Rubio
Sessions
Shaheen
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Whitehouse
Wicker
NOT VOTING--2
Begich
Murkowski
The amendment (No. 1107) was rejected.
change of vote
Mr. MENENDEZ. Mr. President, on rollcall vote 210, I voted ``nay.''
It was my intention to vote ``yea.'' Therefore, I ask unanimous consent
that I be permitted to change my vote since it will not affect the
outcome.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
(The foregoing tally has been changed to reflect the above order.)
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, if I could have Senator McCain's attention
as well, what we are trying to do next is to move to two amendments, if
we can. Both are next on the pending list. One is the Paul amendment
No. 1064, repeal the authorization for use of military force against
Iraq. The second one is not directly after his but follows after two
Feinstein amendments. Senator Feinstein told me she could not be here
early this afternoon. I told her if hers could be made part of a
unanimous consent agreement, that could come later because this
afternoon we have other things we can do. So the second amendment on
this list is another nongermane amendment by Senator Landrieu, No.
1115, relative to small business research grants.
What we are trying to do is work out a unanimous consent agreement.
There will be 60-vote thresholds on those two amendments. Neither one
of them, I believe, is germane. As part of that agreement, we would
also next move to approximately 40 cleared amendments which we would
then ask be passed as cleared. That would all be part of a unanimous
consent agreement we are currently drafting.
So I want to alert our colleagues----
Mr. McCAIN. For the benefit of our colleagues, could I add also the
agreement of a half hour time limit on the Paul amendment? He would
agree to that. I am sure Senator Landrieu would agree to a short time
agreement on her amendment.
Mr. LEVIN. I am sure she told me that would be OK. When we prepare
our unanimous consent agreement, we will doublecheck that.
So that is where we stand. We hope in the next few minutes to be able
to bring to the body a unanimous consent agreement. In the meantime,
unless there is someone else who seeks recognition, I would note the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COBURN. I have cleared with Senator Levin to be able to speak
about a topic but not offer an amendment. I understand we are working
on a unanimous consent agreement. I do have an amendment that at the
appropriate time hopefully will be able to be brought up, but I wish to
discuss it now. I think it is a way for us to save $1.1 billion over
the next 5 years in the Defense Department, give children of on-base
military schools a better education, help the local school districts
through Impact Aid by $12,000 per student per year, and actually do
what we are intending to do in terms of education.
We have 64 schools right now on 18 military bases within the United
States. There are 26,000 students taught by 2,300 teachers. That is 1
teacher for every 11 students. The average cost per student per year is
$51,000 in a military school--$51,000. That is 250 percent higher than
the highest cost district anywhere in the United States--2\1/2\ times.
This amendment says let's use local schools, let's help local schools
through these military bases, and let's give an exemption if we need
to, if it is not available. If we were to do that, three positive
things would happen. The first one is probably a better education.
According to the teachers, conditions are so bad that some of the
educators at base schools envy the civilian public schools off base,
which admittedly have their own challenges. ``Some of the new schools
in town make our schools look like a prison,'' said David Primer, who
uses a trailer as a classroom to teach students German at Marine Corps
headquarters in Quantico, VA. In other words, what they are looking at,
what they are doing, and for the cost of it, the value can be higher.
That is No. 1.
Second, it will help the local school districts because they will not
only get Impact Aid, but they will be given up to $12,000 per year per
student off a military base.
Then, finally, third, it will, over the next 5 years, save $220
million a year out of the military's budget that they would not be
spending. That is after the $12,000 and the Impact Aid. So it is a way
to save $1.1 billion and give a better education with better facilities
to the children of our military service bases, these 26,000 students at
16 military installations. It is a win-win-win.
My hope is we will be able to call up this amendment and make it
pending in the future.
[[Page S7958]]
I thank the Chair.
I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INHOFE. Mr. President, I had a number of amendments that I was
just going to discuss, unless the chairman is planning to speak.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. It is fine, if my colleague wishes to discuss amendments
without attempting to offer any amendments.
Mr. INHOFE. No, that is not my intention. I just want the chance to
talk about them.
Mr. LEVIN. I appreciate that. If I could ask my friend about how long
he needs?
Mr. INHOFE. Until the chairman is ready to speak.
Mr. LEVIN. That sounds good.
Mr. INHOFE. Mr. President, there are a number of amendments I think
will probably not come up, but they should. We talked about this some
time ago.
The Federal Aviation Administration has come up with a change for
their SUB-S nonscheduled carriers that is going to make them comply
with certain of the wage and hour--the crew rest requirements. Here is
the problem we have. About 95 percent of the passengers who go into--
this is our troops--Afghanistan today are carried by nonscheduled
airlines as opposed to military and about 40 percent of the cargo that
is going in.
Now, the problem we have is, with the 15-hour restriction on crew
rest, they are unable to bring them in, leave them there, and then go
back to their point of origin--someplace in Germany--without exceeding
that 15-hour limitation. The only choice they would have is to leave
them in Afghanistan, which they cannot do because that is a war zone.
So I want to have a way of working this out. We want to pursue this
because the carriers understand what the problem is. These are the
nonscheduled carriers. So it is something I think is very significant,
and we need to be addressing it.
Another issue is, JIEDDO is the group that is the Joint Improvised
Explosive Device Defeat Organization. They have done great work in
their technology in stopping the various technologies over there, the
IEDs that have been killing and causing damage to our troops and to our
allies. The problem we have is it is set up just for Iraq and
Afghanistan. When everything is through in Iraq and Afghanistan, that
might put them in a position where they would cease to exist, and yet
the technology and what they are doing right now is useful in the
United States even though it is not designed by the legislation to do
that. I believe this is something that can be corrected.
Another area that needs to be addressed--and I have some ideas, and
this is one I would like to get in the queue; it is not pending at this
time, so there is a little bit of a problem there, but it might be
something that could be addressed in conference--is the military bases
should be able to benefit from the production of domestic energy and
resources on those bases.
In the case of the McAlester depot, they could horizontally drill and
come out with some pretty good royalties that would otherwise go to the
general fund or go to the State of Oklahoma. It is kind of divided in
that way. Well, the problem is there is a cost that is incurred by the
military operation. We need to have something that is going to allow
them to receive the benefits of the production that takes place under
the military installations through horizontal drilling.
I think everyone is for doing this. But the problem is, it could be
scored in that if we took all of the existing production, then that
would be money that would not otherwise go to our general fund. So what
I would propose is to have this in the form of an amendment, and then
change it to say: Any operation from this point forward--that money,
those royalties, could go back to the military base because what we all
agree on is we do not want our bases to have to foot the bill for these
things that are taking place.
I have an amendment, No. 1101, that would stop the transfer of the
MC-12W ISR aircraft from the Air Force to the Army. I think it is
something that is pretty significant. We are talking about intelligence
and reconnaissance. The MC-12W is a King Air or a C-12. Right now it is
under the jurisdiction of the Air Force, and this bill would change it
from the Air Force to the Army. Well, neither the Air Force nor the
Army wants to make that change, and there ought to be a way to support
that.
There are several other amendments that will be coming forward that
will be offered. One I feel very strongly about has to do with the sale
of the F-16C/D models to Taiwan.
Then, lastly--and I feel very strongly about this--back in 2007, we
changed the commands to create AFRICOM. AFRICOM, prior to this time,
was part of three commands: Central Command, Pacific Command, and
European Command. Well, it is so significant in terms of national
security, in terms of our economy and the activity that is going on
there right now.
For example, ever since 9/11, we have been working with the Africans
to help develop in Africa our programs--our 1206 programs, our train-
and-equip programs. More recently, we have been involved in the LRA
issue in poor countries in Africa.
Well, there is an effort now--almost any Member I guess would feel
the same way--to take that command that is now in Stuttgart, Germany,
and put it in Texas or Florida or someplace in the United States. I
think that would be something that would inure to the benefit maybe of
a Member, a Senator, but, on the other hand, it creates certain
problems.
When the African Command came into effect--and I think that is one of
the few issues that I, probably, am more familiar with than most other
Members--the obvious place would have been to have that command located
in Africa itself. My choice at that time was Ethiopia. I think there is
a lot of jurisdiction for that. But they said because of the political
problem--if we go back historically in Africa, and we look at the
colonialism, there is this thing embedded back in the minds of people
in Africa, thinking that having a command, a U.S. command located in
Africa, it might revert back to some of the colonial days. That is the
concern people had.
So, anyway, I thought it would have been better to have it in Africa
itself. But because of this--and, by the way, I have talked to many of
the Presidents of countries over there--President Kikwete in Tanzania
and President Kagame in Rwanda and President Kabila in the Congo, and
several of the others--and they say: Yes, you are right. It would be
better to have that command located somewhere in Africa, but we have
the political problem with the people who would think that is a move
back toward colonialism. So it is a complicated problem.
However, I do believe all of the generals pretty much believe that
AFRICOM should remain where it is. At least Stuttgart is in the same
time zone. It is easier to transport people and equipment back and
forth. So I would support defeating any of the amendments that would
change that situation.
With that, Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. KIRK. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KIRK. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
First Year in the Senate
Mr. KIRK. Mr. President, last week we celebrated Thanksgiving, the
time of year when we look back and we give thanks for our blessings. We
are all grateful for our family, our men and women in uniform, and
those who also
[[Page S7959]]
defend our Nation in civilian life. I am particularly thankful this
year, because 1 year ago today I had the honor of my life to be sworn
in as the newest junior Senator for the State of Illinois to complete
Senator Obama's term.
And what a year it has been. Coming from the House of
Representatives, I had to adjust to the measured place and pace of the
Senate. But while Americans may have a dim view of what we do here, I
remain an optimist. Americans have always faced tough challenges but
then rose to the occasion more successfully than any other people in
history.
Although I believe there is much more to do to reduce debt, repeal
burdensome regulations, and encourage job creation, I want to take a
few minutes to lay out what my team has accomplished for the State of
Illinois and the Nation in 1 year.
In my first 30 days in office we moved three times, we hired a staff,
and then voted to prevent the largest tax increase in history, while
Congress extended tax relief for millions of Americans in that
legislation.
We also worked to block the transfer of al-Qaida terrorists from
Guantanamo Bay to northwestern Illinois. Since then, Congress enacted
the Budget Control Act, mandating about $2 trillion in reduced Federal
borrowing over the next 10 years, which in my view is only a first step
in addressing Washington's out-of-control spending. No one here would
say that we have come near to solving the problem, but I am heartened
by the bipartisan and bicameral support of the Gang of Six proposal,
and now with the probable support of 45 Republican and Democratic
Senators, I hope we will soon go big with their recommendations to find
$4 trillion in savings.
The Congress approved three free-trade agreements to boost U.S.
exports to South Korea, to Colombia, and Panama, as both President
Obama and Speaker Boehner wanted. The action will open markets for
Illinois farmers and boost exports for companies and employers such as
John Deere in Moline, Caterpillar in Peoria, ADM in Decatur, and
Navistar in suburban Warrenville.
Congress repealed the onerous requirement mandated by the health care
law that required small businesses to document all payments over a few
hundred dollars. This absurd 1099 rule was the first part of the health
care law to be repealed, and it will soon be followed by the misnamed
CLASS Act that even the Obama administration appears to have canceled
by executive action.
Additionally, Congress reformed our patent system by moving to a
first-to-file, instead of a first-to-invent, system. This signals to
inventors that they should quickly file their invention and allows us
to innovate without endless and expensive litigation. Along with that
effort, the Kirk amendment authorizing the patent office to have a
small business fast lane became law.
My office published a Great Lakes report card that gave our largest
body of fresh water a C grade to draw attention to invasive species, to
poor water quality, and beach closures, demonstrating the need for our
legislation by myself and Senator Durbin to ban sewage dumping in the
Great Lakes.
To create more construction jobs in Illinois, I introduced the
Lincoln Legacy Infrastructure Development Act which would unlock more
than $100 billion in new revenue for roads, rail, transit, and
airports, through more infrastructure funded by public-private
partnerships. I have since met with Secretary LaHood, Chief of Staff
Daley, and House Chairman Mica as a way to advance this legislation to
restart our economy.
We have also had an active year in protecting our allies and
America's interests overseas. On the floor today, we may consider the
Menendez-Kirk amendment pending to the Defense Authorization Act which
would impose crippling sanctions on the Central Bank of Iran. This is a
result of a collaborative effort involving 92 Senators who signed the
Schumer-Kirk letter calling for the United States to collapse Iran's
terror-sponsoring bank.
In May, Senator Gillibrand and I introduced the Iran Human Rights and
Democracy Promotion Act which establishes a special representative on
human rights and democracy in Iran, imposing sanctions on companies
that sell or service products that enable the Iranian regime to oppress
its people. It would require a comprehensive strategy to promote
Internet freedom in Iran and reauthorize the Iran Freedom Support Act.
The bill is now part of the Iran, North Korea, and Syria Sanctions
Consolidation Act.
In February, the Senate passed a Kirk resolution condemning human
rights abuses in Iran, and we founded the Iranian Dissident Awareness
Program to make dissidents such as Hossein Ronaghi-Maleki, a blogger
and human rights activist, and Nasrin Sotoudeh, a lawyer and human
rights activist, household names now in America.
We also fought for strict assurances that data collected from our new
X-band radar in Turkey would be shared with our allies in Israel.
In total, my office introduced 18 bills and resolutions and 11
amendments. We cosponsored 132 pieces of legislation.
I am a member of four committees that have held more than 130
hearings and markups. This year we worked on the reform of No Child
Left Behind, and those reforms passed the committee with bipartisan
support. We also worked on legislation regarding flood insurance
funding bills under the Appropriations Committee.
Most Americans who watch cable news think all Democrats and all
Republicans may hate each other. While Congress has grown more
partisan, I am particularly proud of the bipartisan partnerships we
have fostered in such a short time. I have continued a longstanding
battle against the corrupt sugar program by working with Senator
Shaheen of New Hampshire on S. 25 to Stop Unfair Giveaways and
Restrictions Act, the SUGAR Act of 2011, which would eliminate sugar
price supports and increased costs for consumers that destroy American
manufacturing jobs.
Senator Wyden and I introduced legislation targeting more than $60
billion in Medicare fraud every year by issuing new identify theft-
proof medical ID cards, offering the same ID card protection our troops
have for our seniors.
I also joined Senator Wyden in his efforts to ensure your
constitutional rights are protected with regard to your GPS data and
cell phone and other location information.
Senator Casey and I worked together on antibullying legislation to
keep our kids safe at school.
I joined Senator Whitehouse in an effort to criminalize the pointing
of lasers against civil aircraft to keep that industry safe.
In my capacity as the top Republican member of the Military
Construction and Veterans Affairs Appropriations Subcommittee, we
worked across the aisle with Chairman Tim Johnson to pass the first
stand-alone appropriations bill out of the Senate since 2009. Since
then, we have broken the logjam on appropriations bills, and I hope to
quickly complete that legislation.
I especially wish to recognize one of my first friends in the Senate,
Senator Joe Manchin of West Virginia, for our collaborative effort on
many issues, the latest being a bipartisan resolution calling for the
Congress to go big on deficit reduction. When we first came to the
Senate together, we saw that there were few opportunities for
Republicans and Democrats to interact outside the Senate floor. That is
why we began to have an open lunch together each Thursday instead of
the regularly scheduled partisan lunches, to discuss ways to bridge the
political divide in the Senate and in Washington.
I also wish to highlight the partnership I have developed with my
senior Senator from the State of Illinois. While we may not see eye to
eye on many issues, Senator Durbin and I have worked closely on a whole
host of issues for Illinois. Following in the footsteps of the late
Senator Paul Simon, Senator Durbin and I have now held more than 25
joint constituent coffees here in Washington. It is like a townhall
meeting, where we talk with Illinois families about what is going on at
home and in the Congress.
In March, Senator Durbin and I worked with Secretary of
Transportation Ray Lahood to help the city of Chicago, American, and
United Airlines come to an agreement to keep the O'Hare Modernization
Program moving forward. This is the single greatest job creation
program in northern Illinois, and the agreement that we helped foster
keeps thousands at work at O'Hare.
[[Page S7960]]
We worked closely to bring high-speed rail to the State of Illinois,
and together introduced legislation to expand charter schools, to
improve access to EpiPens at schools for children with severe
allergies, to ensure military families in North Chicago continue to
receive their Federal education assistance.
We fought to open a new Federal prison in Thompson, IL, but without
al-Qaida detainees, to create jobs in northwestern Illinois, and
address also flooding issues in southern Illinois and levee
rehabilitation in the metro east area. We have also successfully
confirmed four new judges for central and northern Illinois, and have
an additional two nominations, one Democrat, one Republican, pending.
But legislation is not all we do here. In my opinion, one of the most
important things a Member of Congress can focus on is constituent
service. We formed advisory boards for African Americans, Latinos,
small business, agriculture, health care, education, and students.
Since I first came to the House of Representatives in 2001, I have
worked diligently as an advocate for Illinois before the Federal
Government. In 1 year now, my staff has held more than 3,440 meetings
with constituents and other officials and dignitaries. To be as
accessible as possible, I have visited 50 out of Illinois's 102
counties and held 20 townhall meetings throughout the State.
This month, my successor in the House of Representatives, Congressman
Bob Dold, and I held the first ever live Facebook townhall meeting and
answered questions we received via the social networking site and
Twitter.
My office has arranged 340 Capitol and White House tours for
approximately 2,800 constituents. We received more than 85,000 phone
calls and responded to 66,000 letters and e-mails. We have helped more
than 4,000 constituents with casework details before the government,
and written more than 200 letters in support of Illinois towns,
counties, and organizations for Federal grants. I have convened eight
constituent advisory boards and met a total of 18 times. My office
helped process 122 passports and assisted 750 veterans and their
concerns before the VA.
We have accomplished quite a bit this year. I remain optimistic about
the long-term future of our Nation. We can outinnovate and outproduce
any nation on the planet if we create an environment that supports full
job creation. But there is still a lot of work to do. The Illinois
unemployment rate stands at over 10 percent. It seems each day we hear
of a new company thinking of leaving our State.
The health care law threatens a further drag on our economy. We face
a global sovereign debt crisis in Europe and fears of future credit
devaluations for the United States.
U.S. troops continue to pursue enemies of freedom in Afghanistan and
Iraq, and Iran continues its effort to develop nuclear weapons.
Protests are accelerating in Egypt, and civil unrest in Syria. Piracy
remains a concern off the coast of Somalia.
As I have for the past year, I will spend the next 5 years making
sure that America remains the best place on Earth for any individual to
rise to their full potential, a place where your rights are protected
against the government, whose main mission should be to defend us, and
to foster higher incomes for our families.
In these battles, I will advance the interests of the State of
Illinois as the job engine at the center of the Nation's economy,
protector of the Lake Michigan and Mississippi ecosystems, and the
special place that sent Abraham Lincoln and hopefully future Lincolns
for national leadership when America needs it most.
Of course, my heart and soul will always be with the troops--their
care, their mission, and their spirit of defending a place that is the
greatest force for human freedom and dignity ever designed.
I am truly grateful for the opportunity to serve my Nation twice--in
the Navy and in the Senate. I thank the people of Illinois for this
first year in the Senate and for the even bigger things we will do
together in the years to come.
With that, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call
the roll.
The bill clerk proceeded to call the roll.
Mr. FRANKEN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection it is so ordered.
Mr. FRANKEN. Mr. President, I have filed two amendments that I will
offer at some time, and I will talk about them now.
I am strongly opposed to the detention provisions in the Defense bill
before us. I am disappointed that Senator Udall's amendment did not
pass. Taken together, sections 1031 and 1032 would fundamentally alter
how we investigate, arrest, and detain individuals suspected of
terrorism.
Before I get into the details of why I oppose these detainee
provisions, I think it is important to recognize that September 11
irrevocably and unalterably changed our lives. I was in Minnesota on
that terrible day. A number of Minnesotans died in the towers, in the
air, and at the Pentagon. In New York, in the months following the
attacks, I attended the funerals of brave firefighters and law
enforcement officers who sacrificed their lives to help rescue folks
from the towers. I cannot shake those images from my mind, and I am
guessing, like many of you, I will never be able to erase the horrors
of September 11 from my mind.
September 11 reminded us that we are vulnerable and that we are
fighting an unusual enemy. It forced us to reassess our approach to
counterterrorism, and it forced us to redouble our efforts to track
down the people who aim to do us harm. But it is exactly in these
difficult moments, in these periods of war when our country is under
attack, that we must be doubly vigilant about projecting what makes us
Americans.
The Founders who drafted our Constitution and Bill of Rights were
careful to draft a Constitution of limited powers--one that would
protect Americans' freedom and liberty at all times, both in war and in
peace.
Today, as we contemplate fundamentally altering the criminal justice
system our Founders developed in order to create a military detention
system--a system that would permit the indefinite detention of U.S.
citizens and lawful residents of the United States for acts committed
in the United States--I think it is important to pause and remember
some of the mistakes this country has made when we have been fearful of
enemy attack.
Most notably, we made a grave and indefensible mistake during World
War II when President Roosevelt ordered the incarceration of more than
110,000 people of Japanese origin, as well as approximately 11,000
German Americans and 3,000 Italian Americans. There is a memorial right
across the street from the Capitol that should remind us all of this
terrible mistake.
In 1971, President Richard Nixon signed into law the Nondetention Act
to make sure the U.S. Government would never again subject any
Americans to the unnecessary and unjustifiable imprisonment that so
many Japanese Americans, German Americans, and Italian Americans had to
endure.
It wasn't until 1988--46 years after the internment--that President
Reagan signed the Civil Liberties Act, that the government formally
acknowledged and apologized for the grave injustice that was done to
citizens and permanent residents of Japanese ancestry.
These were dark periods in American history, and it is easy standing
here today to think that is all behind us, that it is a distant memory.
But I fear that the detention provisions in this bill forget the
lessons we learned from the mistakes we made when we interned thousands
of innocent Japanese, Germans, and Italians or when we destroyed the
lives of supposed Communist sympathizers with nary a shred of evidence
of guilt.
In the weeks following September 11, the Justice Department made
extraordinary use of its powers to arrest and detain individuals. We
arrested hundreds of people for alleged immigration violations and
dozens more under a material witness statute. None of these individuals
were charged with a crime. All of this happened without the military
detention scheme envisioned in this bill. This was also a mistake and
one that should not be repeated.
But if we pass the Defense authorization bill with section 1031,
Congress
[[Page S7961]]
will, according to the arguments that were made on the floor last week,
for the first time in 60 years, authorize the indefinite detention of
U.S. citizens without charge or trial. This would be the first time
Congress has deviated from President Nixon's Nondetention Act. What we
are talking about is that Americans could be subjected to life
imprisonment--think about that for just a moment--life imprisonment
without ever being charged, tried, or convicted of a crime, without
ever having an opportunity to prove your innocence to a judge and a
jury of your peers, and without the government ever having to prove
your guilt beyond a reasonable doubt. I believe that denigrates the
very foundation of this country. It denigrates the Bill of Rights and
what our Founders intended when they created a civilian, nonmilitary
justice system for trying and punishing people for crimes committed on
U.S. soil. Our Founders were fearful of the military, and they
purposely created a system of checks and balances to ensure that we did
not become a country under military rule. If this bill passes, the
Supreme Court should find these detention provisions unconstitutional.
Let's put that aside for now and focus on what we are currently doing
right to fight terrorism. We are doing a heck of a lot of great things
when it comes to national security. I think we actually need to
remember that, and we need to remember that we are winning the fight
against terrorists without trampling on our constitutional rights.
Just last May, under the tremendous leadership of President Obama and
Secretary Panetta, head of the CIA, we hunted down and killed Osama bin
Laden. A few days ago, the Washington Post reported that the al-Qaida
core has contracted and weakened since then, and its leadership ranks
have been reduced to two members. To be sure, that does not mean that
al-Qaida is no longer a threat, particularly coming from groups outside
the core, but it is a remarkable achievement. Our current
counterterrorism strategy is not broken. Indeed, just the opposite is
true. We are winning the war against al-Qaida. There is no indication--
none--that we need to fundamentally alter our approach to locating
terrorists here or overseas.
Under Director Mueller's leadership, the FBI has turned itself inside
out, and over the last 10 years, since September 11, it has become an
intelligence-gathering counterterrorism machine. I can't say I have
always agreed with 100 percent of the FBI's tactics, and there are
times when I worry they may be overstepping, but make no mistake, if
our goal is hunting down the bad guys, the FBI knows what they are
doing. There is no reason to think we need to change course and create
an entirely new system that would completely supplant the resources and
expertise of the FBI.
For those who would argue that we need to shift these people out of
our civilian criminal justice system and away from article III courts
and into a military system, I have to ask why. Where is the sign that
we have a problem that needs fixing? There is no reason to think we
need to create an entirely different framework for a problem we have
been dealing with for centuries. This enemy is not so different that we
need to upend our criminal justice system.
I think this is a solution in search of a problem. There is no need
to go down this path. We should be focused on doing what is best for
this Nation and what is best for protecting Americans. We should be
working together on this, not coming up with additional ways to divide
and polarize this country. That is why, when the Secretary of Defense,
the Director of National Intelligence, and the Director of the FBI
express serious concerns about these provisions and when the
President's top counterterrorism adviser, John Brennan, complains that
these provisions will make it even harder for them to locate and detain
terrorists in the United States and overseas, we should probably listen
to them.
Section 1031 runs the risk of authorizing the indefinite detention
without trial of Americans. Section 1032 is unnecessary and complicates
our counterterrorism policy. They are bad policy.
In short, these provisions should not be passed. They are not well-
considered terrorism policy, and they would authorize poorly understood
and deeply troubling policies. That is why I have put forward
amendments that would strike each of these two sections. That is why I
cosponsored Senator Mark Udall's amendment, the cousin of our Presiding
Officer. That is why I cosponsored his amendment, and I would be happy
to cosponsor amendments from our Presiding Officer as well, but that is
why I cosponsored Senator Mark Udall's amendment that would have sent
these matters back to the administration and the relevant committees of
Congress for the full consideration, discussion, and debate they
deserve. Our national security and our freedom require nothing less.
I thank the Chair, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 1125 and 1126
Mrs. FEINSTEIN. Mr. President, if I understand the procedure, it is
now appropriate for me to speak on my pending amendments. I will not
offer my two amendments for a vote now, but I would like to take the
opportunity to speak about them at this time. I trust that is in order.
The PRESIDING OFFICER. The Senator is recognized.
Mrs. FEINSTEIN. Mr. President, I rise to express my continued
opposition to the detention provisions in the Defense authorization
bill.
I was on the Intelligence Committee prior to 9/11, and I have watched
the transition since that time. I have watched America--to use a
phrase--get its act together, and I am proud of where this country
stands at this time with the procedures, the interrogation techniques,
the custody issues, and the prosecutions that have been successful in
the last 10 years. In my judgment, this country is safer now than we
were before 9/11.
Before the recess, I laid out my views on why the detainee provisions
in the Armed Services bill were detrimental to national security
because they reduce the President's flexibility to make decisions on
how best to detain and potentially interrogate and prosecute suspected
terrorists. Today, I would like to speak to the two amendments I have
filed, and I will describe them in a moment.
Let me also reference two letters in opposition to the detention
provisions in the underlying bill: one written to me from the Director
of National Intelligence, James Clapper, and the second written
yesterday to Chairman Levin from Bob Mueller, the Director of the FBI.
These letters are in addition to the Statement of Administrative
Policy, which includes a veto threat to the detention provisions and
the letter from the Secretary of Defense, Leon Panetta, both of which
were inserted into the Record before the recess.
So I note that the provisions in the bill we are considering are
opposed by the White House, by the Secretary of Defense, the Director
of National Intelligence, and the Director of the FBI. These top
national security officials are all concerned that the bill reduces the
administration's flexibility to combat terrorism, both at home and
abroad, and I would agree with that.
I will ask at the appropriate time for a vote on amendment No. 1125,
which will limit mandatory military custody to terrorists captured
outside the United States. This is a very simple amendment that only
adds one word, ``abroad,'' to section 1032 of the underlying bill.
Currently, this bill creates a presumption that members or parts of
al-Qaida or ``associated forces'' will be held in the military
detention system, and I disagree with that approach. I believe the
President should have the flexibility to hold captured terrorists in
the military or the criminal justice systems, and the decision of which
system to use should be made based on the individual facts and evidence
of each case.
Putting aside that general view, I am very concerned that creating a
presumption for military custody--which this bill does--and requiring a
cumbersome waiver process will jeopardize counterterrorism cases and
intelligence gathering. This concern is not
[[Page S7962]]
only mine, it has been raised by the White House, by Secretary Panetta,
and very directly by Director Mueller in his letter.
So my amendment would clarify the situation and remove the confusion
and delay that I believe this bill will cause. My amendment will make
clear that under section 1032 of this bill the U.S. Armed Forces are
only required to hold a suspected terrorist in military custody when
that individual is captured abroad. All that amendment does is add that
one word, ``abroad,'' to make clear that the military will not be
roaming our streets looking for suspected terrorists. My amendment does
not remove the President's ability to use the option of military
detention or prosecution inside the United States.
My amendment makes clear that inside the United States there is no
presumption for military custody. Inside the United States, a Customs
agent or local law enforcement officer could follow his or her standard
process and turn a suspected terrorist over to the FBI for handling
without having to worry about whether a waiver may apply or whether it
is required.
The FBI has changed. There are 56 field offices, there is a national
security branch, and it is staffed with thousands of agents inside the
United States. The FBI is well equipped to handle a terrorist inside
the United States, but the Department of Defense is not. Listen to what
Director Mueller wrote. He notes, and I quote:
The legislation introduces a substantial element of
uncertainty as to what procedures are to be followed at
perhaps the most critical time in the development of an
investigation. . . .
Now, I understand that the chairman and ranking member of the Armed
Services Committee have included a waiver and have required that the
administration issue procedures to lay out how the mandatory military
custody provision will be carried out. But the administration is
telling us, with a unanimous voice from all its senior counterterrorism
officials, that this provision is harmful and unnecessary. But we say
Congress knows better. I don't believe we do know better, and I think
not to listen to those who are really responsible to carry out these
missions in what is a very difficult field today, based on a careful
assessment of national security, is a mistake.
The administration has threatened to veto this bill and said it
``strongly objects to the military custody provision of section 1032''
in its official Statement of Administration Policy because it would,
and I quote, ``tie the hands of our intelligence and law enforcement
professionals.'' So here are the experts saying: Don't do this, it will
tie our hands; and here is the political branch saying: We know better.
If something had gone wrong, if there had been mistakes, if there
hadn't been over 400 cases tried successfully in civilian Federal
criminal courts in the last 10 years and 6 cases and a muffed history
of military prosecution in these cases, I might agree. But the march is
on here in Congress: militarize this thing from stem to stern. And I
disagree with that. When something isn't broke, don't fix it.
Mr. President, there are rapid reaction teams part of the HIG--or
High-Value Interrogation Group--who can deploy on a moment's notice,
who can rapidly assess a suspect, who can carry out a proper and
effective interrogation, and the executive branch then has an
opportunity to decide whether the facts and the evidence really are
best suited for a Federal criminal prosecution in Article III courts,
or the facts and the evidence are really best suited for a military
commission prosecution.
This flexibility is what we are taking away from the executive branch
under the provisions in this bill. It was well practiced during the
Bush Presidency, and it has been well practiced by the Obama
Presidency. Virtually every national security professional connected to
the handling of terrorists and the intelligence obtained from them says
to change it would be a mistake. So I believe the amendment I am
offering--limiting mandatory military custody to detainees outside the
United States--is a major improvement to the underlying bill. It
removes the uncertainty that will occur if military custody is required
for detainees captured inside the United States.
Frankly, I would prefer that the provision--section 1032--be struck
in its entirety, as I don't believe we should be creating a presumption
of military custody over the law enforcement route. That is not what
this country is about. There is the posse comitatus law on the books.
The military isn't supposed be roaming the streets of the United
States. But if there is going to be this type of provision, it should
at least do no harm to our ability to detain, interrogate, and
prosecute terrorists. So I ask for my colleagues' support on this
amendment.
While I am on the Senate floor, I would like to speak briefly to the
second amendment I have filed and on which I also seek a vote, since
the Udall amendment has failed; that is, amendment No. 1126, which
would prohibit U.S. citizens from being held in indefinite detention
without trial or charge.
As Members know, section 1031 of the underlying bill updates and
restates the authorization for the use of military force that was
passed on September 18, 2001, 10 years ago, 1 week after the attacks of
9/11. The provision updates the authority to detain terrorists who seek
to harm the United States, an authority that I believe is consistent
with the laws of armed conflict. However, I strongly believe that the
U.S. Government should not have the ability to lock away its citizens
for years, and perhaps decades, without charging them and providing a
heightened level of due process. We shouldn't pick up citizens and
incarcerate them for 10 or 15 or 20 years or until hostilities end--and
no one knows when they will end--without giving them due process of
law.
So my amendment simply adds the following language to section 1031 of
the underlying bill:
The authority described in this section for the Armed
Forces of the United States to detain a person does not
include the authority to detain a citizen of the United
States without trial until the end of hostilities.
It is hard for me to understand how any Member of this body wouldn't
vote for this amendment because, without it, Congress is essentially
authorizing the indefinite imprisonment of American citizens without
charge or trial.
As I said on the Senate floor previously, 40 years ago Congress
passed the Non-Detention Act of 1971 that expressed the will of
Congress and the President that America would never repeat the
Japanese-American internment experience--something that I witnessed as
a child up close and personal--and would never subject any other
American to indefinite detention without charge or trial. In the 40
years since President Richard Nixon signed the Non-Detention Act into
law, Congress has never made an exception to it.
A key issue in this bill is that this is the Congress making an
explicit exception that has never been made before by the Congress, and
what we are saying is, it is OK to detain an American citizen without
trial, ad infinitum. I don't think it is. I don't think that is what
our Constitution is all about. Yet the provision in this bill would do
just that.
I ask unanimous consent to have printed in the Record a column
published yesterday in the San Jose Mercury News of California from
Floyd Mori.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From MercuryNews.com, Nov. 27, 2011]
S. Floyd Mori: Internment Specter Raises Ugly Head in Forgetful U.S.
Senate
(By S. Floyd Mori)
The oldest generation of Japanese-Americans, those whose
earliest memories were of their lives and families being
upended by internment without charge or trial in
concentration camps during World War II, at least take
comfort in the hope that America is now committed to never
inflicting that experience on any other group of Americans or
immigrants. But our trust in that commitment is being shaken
by a bill poised to go to the Senate floor that could once
again authorize indefinite detention without charge of
American citizens and others now living peacefully in our
country.
We have reason to believe in the commitment of Americans to
say never again to indefinite detention. In 1988, the Civil
Liberties Act officially declared that the Japanese-American
internment had been a ``grave injustice'' that had been
``carried out without adequate security reasons.'' In other
words, the indefinite detention of Japanese-Americans during
World War II was not only wrong, but unnecessary.
[[Page S7963]]
A bill on the Senate floor raises the question of whether
the Senate has forgotten our history. S. 1253, the National
Defense Authorization Act, has a provision in it,
unfortunately drafted by Sens. Carl Levin, D-Mich., and John
McCain, R-Ariz., that would let any U.S. president use the
military to arrest and imprison without charge or trial
anyone suspected of having any relationship with a terrorist
organization. Although Sen. Dianne Feinstein, D-Calif., and
more than a dozen of her colleagues are bravely calling for a
halt to a damaging bill, they face significant opposition.
The troubling provision, Section 1031, would let the
military lock up both Americans and noncitizens in the 50
states. There would be no charges, no trial, no proof beyond
a reasonable doubt. All that would be required would be
suspicion.
Although the details of the indefinite detentions of
Japanese-Americans during World War II and the proposed
indefinite detentions of terrorism suspects may differ, the
principle remains the same: Indefinite detentions based on
fear-driven and unlawfully substantiated national security
grounds, where individuals are neither duly charged nor
fairly tried, violate the essence of U.S. law and the most
fundamental values upon which this country was built.
As the measures to indefinitely detain Japanese-Americans
during World War II have been deemed a colossal wrong, the
same should be true of modern indefinite detention of
terrorism suspects. Our criminal justice system is more than
equipped to ensure justice and security in terrorism cases,
and we certainly should not design new systems to resurrect
and codify tragic and illegitimate policies of the past.
As our history shows, acting on fear in these situations
can lead to unnecessary and unfruitful sacrifices of the most
basic of American values. In the 10 years since the 9/11
attacks, Congress has shown admirable restraint in not
enacting indefinite detention without charge or trial
legislation. Now with the president seeking to end the
current wars, the Senate must avoid repeating the mistakes of
the past and protect American values before they are
compromised. We cannot let fear overshadow our commitment to
our most basic American values.
The Senate can show that it has not forgotten the lessons
of the Japanese-American internment. It should pass an
amendment that has been offered by Sen. Mark Udall, D-Colo.,
that would remove Section 1031 from the act. This Senate
should not stain that great body by bringing to the floor any
detention provision that would surely be looked upon with
shame and regret by future generations.
Mrs. FEINSTEIN. I know Mr. Mori well. He is the national executive
director of the Japanese American Citizens League, which is the oldest
and largest Asian-American civil rights organization in the United
States. The Japanese American Citizens League--or JACL as we would
say--has been an active voice on the wrongful internment of Japanese
Americans during World War II, and I believe it is worth listening to
what they have observed from that painful history.
The administration has threatened to veto this bill and said the
following in its official Statement of Administration Policy:
After a decade of settled jurisprudence on detention
authority, Congress must be careful not to open a whole
series of legal questions that will distract from our efforts
to protect the country.
Yet by allowing the military to detain U.S. citizens indefinitely,
Congress would be opening a great number of serious legal questions, in
my judgment.
This amendment would restore the language that was in an earlier
version of this bill that would have established a similar ban on the
indefinite detention of U.S. citizens. It is also consistent with the
way we have conducted the war on terror over the past 10 years. In
cases where the United States has detained American citizens, including
John Walker Lindh and Jose Padilla, they have eventually been
transitioned from indefinite detention to the criminal justice system,
and both have been convicted and are serving long prison sentences.
John Walker Lindh pleaded guilty to terrorism charges and was given a
20-year sentence, and Jose Padilla was convicted of terrorism
conspiracy and sentenced to a 17-year prison sentence.
So I believe this amendment is consistent with past practice and with
traditional U.S. values of due process. We are not a nation that locks
up its citizens without charge, prosecution, and conviction. My
amendment reflects that view, I believe in that view, and I hope this
body does as well. So I urge its adoption.
Mr. President, in conclusion, I ask my colleagues' support on these
two amendments because I believe they will improve the legislation.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Durbin). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Montana.
Mr. TESTER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TESTER. Thank you, Mr. President. It is good to see the Senator
in the chair.
I rise to speak on amendment No. 1145. I cannot call up this
amendment at this point in time, but hopefully at some time during this
debate we can deal with this issue of foreign base closures, which is
what amendment No. 1145 does.
I have offered--along with my colleague from Texas, Senator
Hutchison--to establish an overseas basing commission. We are joined on
this amendment by Senators Conrad, Wyden, and Sanders.
This commission would be charged with saving taxpayer money by
identifying and reevaluating our overseas military base structure and
investments. It is not a new discussion. This has been done before. In
Washington, colleagues from both sides of the aisle have long advocated
for issues similar to this one.
In Montana, Senator Mike Mansfield--a personal hero of mine and one
of the truest statesmen of this body--advocated fiercely throughout his
public service for a more commonsense approach to our overseas military
commitment. Senator Mansfield's approach balanced our national security
interests and decisions with decisions and investments that made sense
fiscally. The time could not be more appropriate to renew this call.
Given our budget outlook, we have a responsibility to exhaustively look
for savings across our government. We need to be smart and we need to
work together.
It makes a lot of sense to me that cutting overseas military
construction projects that have minimal negative impacts on our
national security and military readiness is the right idea. We know
there is a significant higher cost associated with maintaining
facilities and forces overseas, particularly in Europe, than here in
the United States. We also know we need a more complete picture of the
cost, the benefits, and the savings associated with overseas basing as
we make tough budgetary decisions. Given our military's advanced
capabilities, it is time for some responsible decisions about how to
best secure our country while saving American taxpayers every penny we
possibly can.
As Montana families examine their bottom line and as the country
works to cut spending, it is past time to give our outdated military
bases and installations a closer look. An overseas basing commission
would independently address these issues firsthand and ensure that
military construction spending and operational maintenance spending
match our capabilities and our national security strategy.
As we move forward, I hope we will do so in the spirit of Senator
Mansfield by working together and by making commonsense decisions that
keep us both safe and spend our taxpayer dollars more wisely.
As I said when I opened these remarks, I think this is a no-brainer.
We need to take a step back, look at the money we are spending on
overseas bases, make sure we are getting the best bang for the buck and
make sure it meets our national security needs. With a lot of these
post-World War II installations, they can be shut down, we can save
some money, and it is a win-win situation for everybody.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I was listening in the cloakroom to Senator
Tester's comments about his amendment, and I wish to tell everyone how
[[Page S7964]]
right on point he is. I am focusing on overseas bases and the need to
close some of those bases. We have another Defense bill coming up
fairly soon, if we cannot get something done on this bill--and I hope
we can--whether it is the sense of the Senate or otherwise to put our
focus there, because we need to reduce our presence particularly in
those bases, I believe, in Europe, where we simply no longer need those
bases and cannot afford to maintain them. But whether we can get a
commission done is a different issue because that could actually slow
down the process, to appoint a BRAC-type commission.
I just wished to comment while he was still on the floor that I
believe he is right. He is focused on that which is critically
important for not just the Armed Services Committee but for this Senate
to look at, which is to look at the huge number of overseas facilities
we have and the fact that there are many we no longer need and we have
to look there for some significant savings. I just wished to commend
the Senator from Montana.
The PRESIDING OFFICER. The Senator from Montana.
Mr. TESTER. Mr. President, I thank Chairman Levin for his comments.
As we look for opportunities to save money, as we look for
opportunities to focus in on the war on terror, I think our time has
come to take a hard look at our overseas basing and do what, quite
frankly, will enhance our opportunities to fight the war on terror
while saving the taxpayers dollars over the short term and the long
haul.
I thank Chairman Levin for his comments.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. ISAKSON. Mr. President, I wish to address the Senate as if in
morning business for up to 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
National Labor Relations Board
Mr. ISAKSON. Mr. President, I come to the floor of the Senate for the
fifth time in the last 3 years to discuss this administration's
relentless pursuit to modify and change the labor laws of this country
that have served us well for in excess of 70 years. A particular
instance that is going to take place tomorrow causes me to come one
more time to discuss this subject.
A few days before Thanksgiving last week, the National Labor
Relations Board posted a notice that they would meet at 10 a.m. on
Wednesday morning to discuss passing a rule that will change a 75-year
precedent in labor law, a rule that will reduce the time period between
the filing of a petition for a union organization and a vote to as
little as 10 days.
Historically, in our country, it has been an average of 38 days from
the filing of the petition to the vote as to whether to organize. For
no cause or reason, other than unleveling the playing field, NLRB has
decided to rush this rule through in an ambush-type of event. If we
pull the facts back and look, it is quite easy to see what they are
trying to do.
Craig Becker, who is on the National Labor Relations Board as a
recess appointment of the President of the United States, was denied
approval in the confirmation process in the Senate. The President chose
to appoint him in a recess appointment which expires at the end of this
December. Therefore, in the waning hours of his service on the Board,
at a time in which the majority has a 2-to-1 vote, they are going to
rush through a change in an amendment to the labor laws in the United
States of America that have served us for 70 years. It is not right. It
is not fair. At a time of high unemployment and distress in our
economy, the worst thing to do is change the rules of the game that
have served the country so well.
I will fire a warning shot also. I think there is something else that
will probably happen before the end of the year, and that is there will
probably be a posting of a rule to make microunionization possible. It
has already been discussed by the NLRB. It is a process whereby we
could take separate departments in the same company and let them
unionize one at a time. Take a Home Depot, for example, or a Kroger
grocery store. Let the butchers unionize and then let the bakers
unionize and then let the detergent salesmen unionize and then let the
janitors unionize and let the shop end up having 15, 20, 25 different
union organizations in the same store. That has never been able to be
possible and it is not right. It should be across the board within the
company.
So I come to the floor to let everybody know at NLRB that I know what
is going to happen tomorrow morning. I know it is a rush to judgment
and it is a bad judgment and it is a mistake. We have great labor laws
in this country. In fact, if we take this petition and change it down
to 10 days, we are not recognizing the fact that of all the elections
that have taken place in the last couple years, the unions have won 67
percent of the time. There is no problem with the organization laws,
and there is no reason to compress the time from the filing of the
petition to the vote. Fair is fair. A company that has an organization
petition filed against it ought to have a reasonable period of time to
assess the grievances that are advertised against them rather than
compressing the vote period and having a rush to judgment.
I hope tomorrow the NLRB will recognize that a rush to judgment is
wrong. It is not good for the country, it is not good for our economy,
and it is not good for the American people. I will oppose it and do
oppose it today, as I will oppose microunionization should they attempt
to do the same before this year is out.
I yield back my time and notice the absence of a quorum.
The PRESIDING OFFICER (Mr. Casey). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Florida.
Mr. NELSON of Florida. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NELSON of Florida. Mr. President, with the chairman's permission,
I would like to speak on the Defense bill.
Mr. President, I wish to thank Chairman Levin. I wish to thank
Senator McCain. I wish to thank the entire Armed Services Committee and
all the dedicated staff for their efforts in crafting this National
Defense Authorization Act.
I am going to continue to work with all of my colleagues to resolve
some of the very challenging provisions, one of which we just voted on,
having to do with what courts the detainees are going to be prosecuted
in. I am hopeful compromises will be reached in the days ahead so this
bill can be passed and signed into law.
There are five amendments I and others have offered that I wish to
talk about. The first is amendment No. 1210. It has been crafted in
consultation with the Government Accountability Office and it would
require the Department of the Navy to evaluate the cost and benefits of
stationing additional destroyers at Naval Station Mayport in
Jacksonville, Fl. One may ask why.
Well, the frigates at Mayport that will all be decommissioned by
2015, but the ships that will replace them, the Littoral combat ships,
will not arrive until 2016. Therefore, there is a hiatus of a year in
which the ship repair industry, that was built up to take care of the
Navy's fleet, will be without work. From the standpoint of keeping the
maintenance and repair of the Navy's fleet, we need to determine if it
will be more cost effective for the Navy to mitigate this problem by
bringing additional destroyers to Mayport during that timeframe,
extending the service lives of the existing frigates, or by boosting
the industry by bringing ships from around the country to the
Jacksonville ship repair industry for repair.
Doing nothing is not an option because the ship repair business would
take too big of a hit. In order to provide some oversight of the Navy's
methodology, so that we can get the greatest bang for the buck and keep
the Navy fleet at the level of readiness it needs, I am asking for the
GAO to assess and report independently on these measures. My colleague
from Florida, Senator Rubio, has joined as a cosponsor.
I urge support of this amendment. It should not be a controversial
amendment. I hope the committee will be able to accept it.
I have also proposed amendment No. 1236, which requires the
Department of the Air Force to further explain their plan to change the
flag officer positions at the Air Force Materiel Command. Reducing
oversight and eliminating officers with vital experience
[[Page S7965]]
could damage the Air Force's weapons testing mission. So this amendment
simply requires the Air Force to submit a report which would be
assessed by the GAO. Again, this should not be a controversial
amendment and ought to be accepted by the committee.
Senator Schumer of New York and I are working to ensure that the
Department of Defense and the Veterans Affairs Department continue to
study and evaluate the harmful effects of the garbage burn pits at our
base in Balad in Iraq. This has gotten some attention in the press. It
is horrible. What we are seeing is when our troops are exposed to these
toxic fumes from these open burn pits, we see the consequences in their
health that turn up later. Obviously, it is not only a diminution of
the health of our troops which we ought to first and foremost protect,
but of course there is a continuing cost to the U.S. Government,
because years later, what we are finding is--and this comes out of the
first gulf war experience with those open burn pits--we have determined
that serious health problems could be traced back to the breathing in
of those toxic substances because the troops were exposed to the fumes
coming out of those burn pits.
What this amendment does--and it should not be controversial--is it
requires a study be designed to take a look at those burn pits and
further focus on the serious medical effects on our troops. So far, the
reports have been inconclusive, but troops are still getting sick and
it needs to be understood; thus, the reason for that study. Next year
we will work to have the actual study funded. But Senator Schumer and I
want to get on with this study and we ask and it should be accepted by
the committee as a noncontroversial amendment. After all, it is what we
all want, the protection of our troops.
Let me talk about amendment No. 1209. This addresses the longstanding
problem faced by relatives of those who have been killed in action or
whose death is related to service in the military, and that is the
current law of a dollar-for-dollar reduction of Department of Defense
Survivor Benefit Plan annuity offset, dollar for dollar, by the
Dependency and Indemnity Compensation which comes from the Department
of Veterans Affairs. The stand-alone bill, S. 260, filed by Senator
Inhofe and myself, is cosponsored by--get this--49 Senators. The Senate
has supported eliminating this offset for years. I hope that in the
Senate, on this Defense authorization bill, we are going to remain
steadfast in support of military widows and family members. Why?
Because the Survivor Benefit Plan is an optional program for military
retirees offered by the Defense Department. It is like an insurance
plan. Military retirees pay premiums out of their retirement pay to
ensure that their survivors will have adequate support when that
retired military person passes away. For many retirees, reasonably
priced insurance from the public marketplace is not available due to
their service-related disabilities and their health issues; thus, the
reason for this insurance plan, the Survivors Benefit Plan. SBP is a
way for retirees to provide some income insurance for their survivors.
It pays survivors 55 percent of the servicemember's retired pay. That
is for the survivors of the retired military person when that person
dies. It is an insurance policy.
The Dependency and Indemnity Compensation--DIC--is a completely
different survivor benefit and it is administered by the Veterans'
Administration. When a servicemember dies, either due to a service-
related disability or illness or active-duty death, surviving spouses
are entitled to monthly compensation of $1,154 from the Veterans'
Administration. But here is the rub:
Of the 270,000 survivors receiving the SBP--the insurance policy that
the military retiree has paid for--about 54,000 are subject to the
offset, meaning some of their SBP is taken away. According to the
Defense Actuary, 31,000 survivors' SBP is completely offset by the VA's
Dependency and Indemnity Compensation, meaning they only have $1,154 a
month to live on. These survivors are entitled to both under two
different laws, but then there is a law that says you have to offset
one from the other.
Military retirees in good faith bought into the insurance plan--the
SBP. They were planning for the future for their families. The
government now says we are going to take some of that money away. What
it means is we are not taking care of those who were left behind in the
same manner as these servicemembers thought they were going to get when
they took care of our country. I know of no purchased annuity plan that
would deny payout based on receipt of a different benefit. I say that
having had some experience in insurance in my former life years and
years ago as the elected insurance commissioner of the State of
Florida.
It was said best by President Lincoln when he said in his second
inaugural address that one of the greatest obligations in war is to
``finish the work we are in; to bind up the Nation's wounds; to care
for him who shall have borne the battle, and for his widow, and his
orphan.''
That is the whole intention of these two laws, but we are not doing
it. We are not honoring our servicemembers. The government must take
care of our veterans, their widows and their orphans. Almost every year
in the Senate we have passed this, eliminating the offset. What happens
is it goes down to the conference and they eliminate it because it is
going to cost money. We have had a couple of times where important
little steps were taken in the right direction with some lessening of
the offset, but we must meet our obligations to military families with
the same sense of honor their loved one rendered during their service
to this country, so we must eliminate this offset.
Finally, there is an amendment to sanction the Central Bank of
Iran. In just the previous 2 months, Iran has attempted a terrorist
attack on U.S. soil, while continuing to develop its nuclear capability
back home, and it has done so in complete disregard for the Non-
Proliferation Treaty.
The United States has led the international community in enacting
crippling sanctions against the Iranian regime. We need to tighten down
the screws more. We have done so in 1996 with the Iran Sanctions Act
and again in 2009 with the Comprehensive Iran Sanctions Accountability
and Divestment Act.
So we must continue these efforts. By sanctioning the Central Bank of
Iran, we will make it clear to Iran's religious leaders--and that is
what we have to say--that there are real consequences to their support
for terrorism and their attempts to develop nuclear weapons.
A nuclear Iran would be disastrous for the region. It would be
disastrous for Europe. It clearly would be a threat against Israel, one
of our strongest allies, and it clearly is a threat to the national
security interests of the United States.
The cost of inaction is too great. That is why we ought to go after
the Central Bank of Iran by sanctioning them.
I think I have offered a number of amendments along with and on
behalf of our colleagues that should be able to be accepted, and I
would implore the leadership of the committee to please consider these.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I now ask unanimous consent that the Levin-
McCain amendment No. 1092, which is the regular order, be modified with
the changes that are at the desk--that amendment addresses the issue of
counterfeit parts in the Department of Defense supply chain; further,
that the amendment, as modified, be agreed to; that upon disposition of
the Levin-McCain amendment, the Senate resume consideration of the Paul
amendment No. 1064; that there be 30 minutes of debate, equally divided
in the usual form, on the Paul amendment; that upon the use or yielding
back of time, the Senate resume consideration of the Landrieu amendment
No. 1115; that there be up to 30 minutes of debate, equally divided in
the usual form, on the Landrieu amendment; that upon the use or
yielding back of time, the Senate proceed to votes in relation to the
two amendments--the Paul and Landrieu amendments--in the following
order: Paul amendment No. 1064 and Landrieu amendment No. 1115; that
there be 2 minutes, equally divided, prior to each vote and there be no
amendments in order to either amendment prior to the votes; and that
both
[[Page S7966]]
amendments be subject to a 60-affirmative-vote threshold.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment (No. 1092), as modified, was agreed to, as follows:
At the end of subtitle C of title VIII, add the following:
SEC. 848. DETECTION AND AVOIDANCE OF COUNTERFEIT ELECTRONIC
PARTS.
(a) Revised Regulations Required.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Defense shall
revise the Department of Defense Supplement to the Federal
Acquisition Regulation to address the detection and avoidance
of counterfeit electronic parts.
(2) Contractor responsibilities.--The revised regulations
issued pursuant to paragraph (1) shall provide that--
(A) contractors on Department of Defense contracts for
products that include electronic parts are responsible for
detecting and avoiding the use or inclusion of counterfeit
electronic parts or suspect counterfeit electronic parts in
such products and for any rework or corrective action that
may be required to remedy the use or inclusion of such parts;
and
(B) the cost of counterfeit electronic parts and suspect
counterfeit electronic parts and the cost of rework or
corrective action that may be required to remedy the use or
inclusion of such parts are not allowable costs under such
contracts.
(3) Trusted suppliers.--The revised regulations issued
pursuant to paragraph (1) shall--
(A) require that, whenever possible, the Department of
Defense and Department of Defense contractors and
subcontractors--
(i) obtain electronic parts that are in production or
currently available in stock from the original manufacturers
of the parts or their authorized dealers, or from trusted
suppliers who obtain such parts exclusively from the original
manufacturers of the parts or their authorized dealers; and
(ii) obtain electronic parts that are not in production or
currently available in stock from trusted suppliers;
(B) establish requirements for notification of the
Department of Defense, inspection, test, and authentication
of electronic parts that the Department of Defense or a
Department of Defense contractor or subcontractor obtains
from any source other than a source described in subparagraph
(A);
(C) establish qualification requirements, consistent with
the requirements of section 2319 of title 10, United States
Code, pursuant to which the Department of Defense may
identify trusted suppliers that have appropriate policies and
procedures in place to detect and avoid counterfeit
electronic parts and suspect counterfeit electronic parts;
and
(D) authorize Department of Defense contractors and
subcontractors to identify and use additional trusted
suppliers, provided that--
(i) the standards and processes for identifying such
trusted suppliers complies with established industry
standards;
(ii) the contractor or subcontractor assumes responsibility
for the authenticity of parts provided by such supplier as
provided in paragraph (2); and
(iii) the selection of such trusted suppliers is subject to
review and audit by appropriate Department of Defense
officials.
(4) Reporting requirement.--The revised regulations issued
pursuant to paragraph (1) shall require that any Department
of Defense contractor or subcontractor who becomes aware, or
has reason to suspect, that any end item, component, part, or
material contained in supplies purchased by the Department of
Defense, or purchased by a contractor of subcontractor for
delivery to, or on behalf of, the Department of Defense,
contains counterfeit electronic parts or suspect counterfeit
electronic parts, shall provide a written report on the
matter within 30 calendar days to the Inspector General of
the Department of Defense, the contracting officer for the
contract pursuant to which the supplies are purchased, and
the Government-Industry Data Exchange Program or a similar
program designated by the Secretary of Defense.
(b) Inspection of Imported Electronic Parts.--
(1) Inspection program.--The Secretary of Homeland Security
shall establish a risk-based methodology for the enhanced
targeting of electronic parts imported from any country,
after consultation with the Secretary of Defense as to
sources of counterfeit electronic parts and suspect
counterfeit electronic parts in the supply chain for products
purchased by the Department of Defense.
(2) Information sharing.--If United States Customs and
Border Protection suspects a product of being imported or
exported in violation of section 42 of the Lanham Act, and
subject to any applicable bonding requirements, the Secretary
of Treasury is authorized to share information appearing on,
and unredacted samples of, products and their packaging and
labels, or photographs of such products, packaging and
labels, with the rightholders of the trademarks suspected of
being copied or simulated, for purposes of determining
whether the products are prohibited from importation pursuant
to such section.
(c) Contractor Systems for Detection and Avoidance of
Counterfeit and Suspect Counterfeit Electronic Parts.--
(1) In general.--Not later than 270 days after the date of
the enactment of this Act, the Secretary of Defense shall
implement a program for the improvement of contractor systems
for the detection and avoidance of counterfeit electronic
parts and suspect counterfeit electronic parts.
(2) Elements.--The program developed pursuant to paragraph
(1) shall--
(A) require covered contractors to adopt and implement
policies and procedures, consistent with applicable industry
standards, for the detection and avoidance of counterfeit
electronic parts and suspect counterfeit electronic parts,
including policies and procedures for training personnel,
designing and maintaining systems to mitigate risks
associated with parts obsolescence, making sourcing
decisions, prioritizing mission critical and sensitive
components, ensuring traceability of parts, developing lists
of trusted and untrusted suppliers, flowing down requirements
to subcontractors, inspecting and testing parts, reporting
and quarantining suspect counterfeit electronic parts and
counterfeit electronic parts, and taking corrective action;
(B) establish processes for the review and approval or
disapproval of contractor systems for the detection and
avoidance of counterfeit electronic parts and suspect
counterfeit electronic parts, comparable to the processes
established for contractor business systems under section 893
of the Ike Skelton National Defense Authorization Act for
Fiscal Year 2011 (Public Law 111-383; 124 Stat. 4311; 10
U.S.C. 2302 note); and
(C) effective beginning one year after the date of the
enactment of this Act, authorize the withholding of payments
as provided in subsection (c) of such section, in the event
that a contractor system for detection and avoidance of
counterfeit electronic parts is disapproved pursuant to
subparagraph (B) and has not subsequently received approval.
(3) Covered contractor and covered contract defined.--In
this subsection, the terms ``covered contractor'' and
``covered contract'' have the meanings given such terms in
section 893(f) of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011 (Public Law 111-383;
124 Stat. 4312; 10 U.S.C. 2302 note).
(d) Department of Defense Responsibilities.--Not later than
270 days after the date of the enactment of this Act, the
Secretary of Defense shall take steps to address shortcomings
in Department of Defense systems for the detection and
avoidance of counterfeit electronic parts and suspect
counterfeit electronic parts. Such steps shall include, at a
minimum, the following:
(1) Policies and procedures applicable to Department of
Defense components engaged in the purchase of electronic
parts, including requirements for training personnel, making
sourcing decisions, ensuring traceability of parts,
inspecting and testing parts, reporting and quarantining
suspect counterfeit electronic parts and counterfeit
electronic parts, and taking corrective action. The policies
and procedures developed by the Secretary under this
paragraph shall prioritize mission critical and sensitive
components.
(2) The establishment of a system for ensuring that
government employees who become aware of, or have reason to
suspect, that any end item, component, part, or material
contained in supplies purchased by or for the Department of
Defense contains counterfeit electronic parts or suspect
counterfeit electronic parts are required to provide a
written report on the matter within 30 calendar days to the
Inspector General of the Department of Defense, the
contracting officer for the contract pursuant to which the
supplies are purchased, and the Government-Industry Data
Exchange Program or a similar program designated by the
Secretary of Defense.
(3) A process for analyzing, assessing, and acting on
reports of counterfeit electronic parts and suspect
counterfeit electronic parts that are submitted to the
Inspector General of the Department of Defense, contracting
officers, and the Government-Industry Data Exchange Program
or a similar program designated by the Secretary of Defense.
(4) Guidance on appropriate remedial actions in the case of
a supplier who has repeatedly failed to detect and avoid
counterfeit electronic parts and suspect counterfeit
electronic parts or otherwise failed to exercise due
diligence in the detection and avoidance of such parts,
including consideration of whether to suspend or debar a
supplier until such time as the supplier has effectively
addressed the issues that led to such failures.
(e) Trafficking in Counterfeit Military Goods or
Services.--Section 2320 of title 18, United States Code, is
amended--
(1) in subsection (a), by adding at the end the following:
``(3) Military goods or services.--
``(A) In general.--A person who commits an offense under
paragraph (1) shall be punished in accordance with
subparagraph (B) if--
``(i) the offense involved a good or service described in
paragraph (1) that if it malfunctioned, failed, or was
compromised, could reasonably be foreseen to cause--
``(I) serious bodily injury or death;
``(II) disclosure of classified information;
``(III) impairment of combat operations; or
``(IV) other significant harm to a member of the Armed
Forces or to national security; and
[[Page S7967]]
``(ii) the person had knowledge that the good or service is
falsely identified as meeting military standards or is
intended for use in a military or national security
application.
``(B) Penalties.--
``(i) Individual.--An individual who commits an offense
described in subparagraph (A) shall be fined not more than
$5,000,000, imprisoned for not more than 20 years, or both.
``(ii) Person other than an individual.--A person other
than an individual that commits an offense described in
subparagraph (A) shall be fined not more than $15,000,000.
``(C) Subsequent offenses.--
``(i) Individual.--An individual who commits an offense
described in subparagraph (A) after the individual is
convicted of an offense under subparagraph (A) shall be fined
not more than $15,000,000, imprisoned not more than 30 years,
or both.
``(ii) Person other than an individual.--A person other
than an individual that commits an offense described in
subparagraph (A) after the person is convicted of an offense
under subparagraph (A) shall be fined not more than
$30,000,000.''; and
(2) in subsection (e)--
(A) in paragraph (1), by striking the period at the end and
inserting a semicolon;
(B) in paragraph (3), by striking ``and'' at the end;
(C) in paragraph (4), by striking the period at the end and
inserting a semicolon; and
(D) by adding at the end the following:
``(5) the term `falsely identified as meeting military
standards' relating to a good or service means there is a
material misrepresentation that the good or service meets a
standard, requirement, or specification issued by the
Department of Defense, an Armed Force, or a reserve
component; and
``(6) the term `use in a military or national security
application' means the use of a good or service,
independently, in conjunction with, or as a component of
another good or service--
``(A) during the performance of the official duties of the
Armed Forces of the United States or the reserve components
of the Armed Forces; or
``(B) by the United States to perform or directly support--
``(i) combat operations; or
``(ii) critical national defense or national security
functions.''.
(f) Sentencing Guidelines.--
(1) Definition.--In this subsection, the term ``critical
infrastructure'' has the meaning given that term in
application note 13(A) of section 2B1.1 of the Federal
Sentencing Guidelines.
(2) Directive.--The United States Sentencing Commission
shall review and, if appropriate, amend the Federal
Sentencing Guidelines and policy statements applicable to
persons convicted of an offense under section 2320(a) of
title 18, United States Code, to reflect the intent of
Congress that penalties for such offenses be increased for
defendants that sell infringing products to, or for the use
by or for, the Armed Forces or a Federal, State, or local law
enforcement agency or for use in critical infrastructure or
in national security applications.
(3) Requirements.--In amending the Federal Sentencing
Guidelines and policy statements under paragraph (2), the
United States Sentencing Commission shall--
(A) ensure that the guidelines and policy statements,
including section 2B5.3 of the Federal Sentencing Guidelines
(and any successor thereto), reflect--
(i) the serious nature of the offenses described in section
2320(a) of title 18, United States Code;
(ii) the need for an effective deterrent and appropriate
punishment to prevent offenses under section 2320(a) of title
18, United States Code; and
(iii) the effectiveness of incarceration in furthering the
objectives described in clauses (i) and (ii);
(B) consider an appropriate offense level enhancement and
minimum offense level for offenses that involve a product
used to maintain or operate critical infrastructure, or used
by or for an entity of the Federal Government or a State or
local government in furtherance of the administration of
justice, national defense, or national security;
(C) ensure reasonable consistency with other relevant
directives and guidelines and Federal statutes;
(D) make any necessary conforming changes to the
guidelines; and
(E) ensure that the guidelines relating to offenses under
section 2320(a) of title 18, United States Code, adequately
meet the purposes of sentencing, as described in section
3553(a)(2) of title 18, United States Code.
(4) Emergency authority.--The United States Sentencing
Commission shall--
(A) promulgate the guidelines, policy statements, or
amendments provided for in this Act as soon as practicable,
and in any event not later than 180 days after the date of
the enactment of this Act, in accordance with the procedure
set forth in section 21(a) of the Sentencing Act of 1987 (28
U.S.C. 994 note), as though the authority under that Act had
not expired; and
(B) pursuant to the emergency authority provided under
subparagraph (A), make such conforming amendments to the
Federal Sentencing Guidelines as the Commission determines
necessary to achieve consistency with other guideline
provisions and applicable law.
(g) Definitions.--
(1) Counterfeit electronic part.--The Secretary of Defense
shall define the term ``counterfeit electronic part'' for the
purposes of this section. Such definition shall include used
electronic parts that are represented as new.
(2) Suspect counterfeit electronic part and electronic
part.--For the purposes of this section:
(A) A part is a ``suspect counterfeit electronic part'' if
visual inspection, testing, or other information provide
reason to believe that the part may be a counterfeit part.
(B) An ``electronic part'' means an integrated circuit, a
discrete electronic component (including but not limited to a
transistor, capacitor, resistor, or diode), or a circuit
assembly.
Mr. LEVIN. Mr. President, with the acceptance of this unanimous
consent request, the Levin-McCain amendment, as modified, has now been
agreed to; is that correct?
The PRESIDING OFFICER. That is correct.
Mr. LEVIN. So now before us is the Paul amendment No. 1064, with 30
minutes of debate. I do not see Senator Paul in the Chamber.
I ask unanimous consent that Senator Baucus be added as a cosponsor
to our Levin-McCain amendment No. 1092.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1092, as Modified
Mr. LEVIN. Mr. President, until Senator Paul gets here to begin
debate on his amendment, I would, very briefly, describe what we have
described before, which is the anticounterfeiting amendment, which is
so important to stop the flow of counterfeit parts into the Department
of Defense supply chain.
The amendment is going to do a number of things. It is going to
require the Department of Defense and Department of Defense suppliers
to purchase electronic parts from original equipment manufacturers and
their authorized dealers or from trusted suppliers that meet
established standards for detecting and avoiding counterfeit parts.
It establishes requirements for notification, inspection, testing,
and authentication of electronic parts that are not available from such
suppliers.
It requires Department of Defense officials and Department of Defense
contractors that become aware of counterfeit parts in the supply chain
to provide written notification to the DOD inspector general, the
contracting officer, and the Government-Industry Data Exchange Program
or similar program designated by the Secretary of Defense.
It requires enhanced inspection of electronic components imported
from countries that have been the source of counterfeit parts in the
DOD supply chain--China being the one that is clearly the worst
offender in this regard.
It requires large DOD contractors to establish systems for detecting
and avoiding counterfeit parts in their supply chains and authorizes
reduction of contract payments to contractors that fail to develop
adequate systems.
It requires the Department of Defense to adopt policies and
procedures for detecting and avoiding counterfeit parts in its own
direct purchases and for assessing and acting upon reports of
counterfeit parts from DOD officials and DOD contractors.
It authorizes the suspension and debarment of contractors that
repeatedly fail to detect and avoid counterfeit parts or otherwise fail
to exercise due diligence in the detection and avoidance of counterfeit
parts.
The amendment also includes a bill Senator Whitehouse introduced that
was passed out of the Judiciary Committee to toughen criminal sentences
for counterfeiting military goods or services.
Finally, it requires the Department of Defense to define the term
``counterfeit part,'' which is a critical, long overdue step toward
getting a handle on this problem.
I wish to thank Senator McCain, who, with me, held a significant
hearing in the area of counterfeit parts, demonstrating that what is
going on is that electronic waste--which is shipped from the United
States and the rest of the world, mainly to China--is then disassembled
by hand, washed in dirty rivers, dried on city sidewalks, sanded down
to remove part numbers and other marks that would indicate its quality
or performance.
We have millions, literally, that we have identified of used parts
that have gotten into the Defense supply chain that are not supposed to
be used parts,
[[Page S7968]]
that are supposed to be new parts. It is amazing how far the
counterfeiters--and particularly in China--are willing to go.
We have asked the U.S. Government Accountability Office, the GAO
actually, to use a fake company to go online and buy electronic parts,
and the GAO found suppliers that not only sold counterfeit parts--when
the GAO sought legitimate parts--they found suppliers that were willing
to sell them parts with nonexistent part numbers. All those sellers
were in China.
We had example after example of weapons systems that had counterfeit
parts in them. They endanger our troops. They endanger our taxpayers.
All too often the people who pay for the replacement of counterfeit
parts are the taxpayers instead of the contractors. That is going to
end under our bill. So all the weapons we identified--lasers that were
used for targeting Hellfire missiles; display units that were used in
the Air Force's aircraft, the C-27Js, C-130Js, C-17s, CH-46s used by
the Marine Corps--those counterfeit parts have gotten into those
systems. We are going to put an end to this with this legislation.
I thank my good friend Senator McCain for all the work he and his
staff and my staff put in on that hearing in preparing this amendment,
which we have now adopted.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I thank Senator Levin and the staff for
the thorough job of investigation that was undertaken to identify the
counterfeit electronic parts that are penetrating the Department of
Defense supply chain.
I thank Senator Whitehouse for his provisions which have been added
to the bill from a bill he had introduced in the Judiciary Committee.
At the hearing we had on November 8, the committee received
additional evidence to supplement an already robust investigative
record, and some very serious issues were raised, including the threat
counterfeit electronic parts pose to the safety of our men and women in
uniform, to our national security, and to our economy, how counterfeits
increase the short- and long-term costs of defense systems, the lack of
transparency in the Defense supply chain, and the U.S. relationship
with the People's Republic of China.
I see the Senator from Kentucky is on the floor. But I would just
like to point out again and emphasize the points the chairman has made.
The problem of counterfeit electronic parts in the Defense supply
chain is more serious than most people realize. During its
investigation, our committee uncovered over 1,800 incidents, totaling
over 1 million parts of counterfeit electronic parts in the Defense
supply chain. Suspect counterfeit electronic parts have been installed
or delivered to the military for use on thermal weapons sites, on THAAD
missile mission computers, and on military aircraft, including the C-
27J, C-17, C-130J, P-8A Poseidon, SH-60B, AH-64, and the CH-46.
I do not claim this legislation will solve the problem of
counterfeiting from China, the whole issue of intellectual property.
Counterfeiting that goes on in other aspects of the world's economy and
ours is one that is a very large issue. But at least this is an effort
to make sure, as much as we can, that the men and women who serve in
our military are not subject to operating systems that could literally
endanger their lives--much less the incredible increase of the
taxpayers' dollars.
I thank the chairman again and his staff, and I can assure my
colleagues this is an issue we will be following very closely in the
days and weeks and months ahead.
I note the presence of Senator Paul, so I ask for the regular order.
Amendment No. 1064
The PRESIDING OFFICER. There is now 30 minutes of debate, equally
divided, on amendment No. 1064.
Mr. LEVIN. I wonder if the Senator from Kentucky would just yield for
30 seconds, not to be taken from his time, so I can answer a question
that has been asked of me: What happened to the approximately 35 to 40
amendments which we had cleared? Why were they not part of this
unanimous consent request?
The answer is because there are a few Senators, apparently, who do
not object to the substance of the amendments but who have other goals
they are, at the moment, insisting on. That puts in jeopardy the effort
of literally dozens of our colleagues to achieve what is in these
cleared amendments, and I hope those few Senators would relent.
The PRESIDING OFFICER. The Senator from Kentucky.
Amendment No. 1064
Mr. PAUL. Mr. President, I rise in support of bringing the Iraq war
to a formal end. President Obama has ordered troops home by January 1.
We should rejoice at the conclusion of the war. No matter whether one
favored the Iraq war or not, there is a glimmer of hope for democracy
to now exist in the Middle East in Iraq.
War is a hellish business and never to be desired. As the famous POW
and war hero John McCain once said: ``War is wretched beyond
description, and only a fool or a fraud could sentimentalize its cruel
reality.''
This vote is more than symbolism. This vote is about the separation
of powers. It is about whether Congress should have the power to
declare war. The Constitution vested that power in Congress, and it was
very important. Our Founding Fathers did not want all the power to
gravitate to the Executive. They feared very much a King, and so they
limited the power of the Executive.
When Franklin walked out of the Constitutional Convention, a woman
asked him: What have you brought us? Was it going to be a republic, a
democracy, a monarchy?
He said: A republic, if you can keep it.
In order to keep a republic, we have to have checks and balances. But
we have to obey the rule of law.
Madison wrote:
The Constitution supposes, what the History of all
Governments demonstrates, that the Executive is the branch of
power most interested in war, and most prone to it. The
Constitution has, therefore, with studied care, vested the
[power] to declare war in [Congress].
When we authorize the war in Iraq, we give the President the power to
go to war, and the Constitution gives the power to the President to
execute the war. All the infinite decisions that are made in war--most
of them are made by the executive branch. But the power to declare war
is Congress's. This division was given to make there be a division of
powers, a separation of powers, to allow there to be a reluctance to go
to war.
We have this vote now to try to reclaim the authority.
If we do not reclaim the authority to declare war or to authorize
war, it will mean our kids or our grandkids or our great-grandkids
could be sent to a war in Iraq with no debate, with no vote of
Congress. We have been at war for nearly 10 years in Iraq. We are
coming home. And we should rejoice at the war's end. But we need to
reclaim that authority. If we leave an open-ended authority out there
that says to the President--or any President; not this particular
President, it could be any President--if we leave that authority out
there, we basically abdicate our duty, we abdicate the role of
Congress. There are supposed to be checks and balances between Congress
and the President.
So what I am asking is that Congress today reclaim the authority to
declare war and at the same time we celebrate that this is an end to
something that no one should desire.
As Senator McCain has pointed out, as many have pointed out, Dwight
Eisenhower pointed out the same thing: If you want to know the hellish
of war, talk to someone who has been to war.
But that is why this power is too important to be given to one person
and to be left in the hands of one person--a President of either party.
So the vote today will be about reclaiming that authority, reclaiming
the authority of Congress to declare war. I would recommend that we
have a vote and that the vote today be in favor of deauthorizing the
war in Iraq.
It is not just I who have pointed this out. The first President of
the United States wrote:
The Constitution vests the power of declaring war in
Congress; therefore, no offensive expedition of importance
can be undertaken until after they shall have deliberated
upon the subject and authorized such a measure.
This has been recognized by Presidents from the beginning of the
history
[[Page S7969]]
of our country. The problem is that if we do not give it up, that power
is left out there, and it is a power lost to Congress.
Frank Chodorov wrote:
All wars come to an end, at least temporarily. But the
authority acquired by the states hangs on; political power
never abdicates.
This is a time to reclaim that power. It is an important
constitutional question. I hope those Senators will consider this
seriously and consider a vote to reclaim the authority to declare war.
I reserve the reminder of my time and temporarily yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I would like to first of all thank the
Senator from Kentucky for quoting me. It is always a very pleasant
experience as long as it is something that one would admire. On several
occasions, I have been quoted in ways that I wish I had observed what
my old friend Congressman Morris Udall used to say is the politician's
prayer: May the words that I utter today be tender and sweet because
tomorrow I may have to eat them. So I want to thank the Senator from
Kentucky for his kind words.
I also want to praise the Senator from Kentucky, who is a person who
has come here with a firm conviction that he not only has principles
but he intends to act on those principles in as impactful a way as
possible and represent the people of Kentucky in a very activist
fashion. He has my admiration. However, I would rise in opposition to
the amendment.
I would like to read from a letter that was sent to the chairman and
to me from the Chairman of the Joint Chiefs of Staff and the Secretary
of Defense.
This week, as you consider the National Defense
Authorization Act, the Department of Defense would like to
respond to your request for views on the amendment offered by
Senator Paul which would repeal the Authorization for the Use
of Military Force in Iraq. U.S. Forces are now in the final
stages of coming home by the end of 2011. We are moving to a
new phase in the relationship between our two countries and
equal partnership based on mutual interests and mutual
respect.
While amendment No. 1064 echoes the President's policy, we
cannot support the amendment as drafted. Outright and
complete repeal of the AUMF-I, which is the Authorization for
the Use of Military Force in Iraq, withdraws all
Congressional support for any limited windup activities
normally associated with ending a war. Thank you very much
for your continued efforts.
The Department of Defense sent over an unclassified response that was
approved by several members of the Pentagon. It says: Although we are
implementing the U.S.-Iraqi security agreement in full and pulling out
all of our forces by the end of the year, we still have a limited
number of DOD personnel under the Chief of Mission Authority to staff
the Office of Security Cooperation-Iraq. Because there may be elements
that would choose this time of transition to attempt to do harm to
these personnel, it is essential that the Department of Defense retain
the authority and flexibility to respond to such threats. The AUMF-I
provides these authorities. The administration has worked closely with
Congress in circumstances where it has been necessary to rely on the
AUMF, and it would continue to do so should the need arise.
In other words, and unfortunately, Iraq remains a dangerous place. We
will have the largest contingent of Americans as part of the embassy
there as we withdraw our combat troops. Some 16,000 Americans will man
our embassy and consulates in Iraq, and unfortunately there are great
signs of instability in Iraq. Al-Sadr has said that any remaining
American troops will be a target. The Iranians continue to encourage
attacks on Americans. There are significant divisions within the
country which are beginning to widen, such as Sunni-Shia, the area
around Kirkuk, increasing Iranian influence in the country.
I will refrain from addressing the deep concerns I had before the
agreement to completely withdraw took place. I will leave that out of
this discussion because I feel the decision that was clearly made not
to keep a residual force in the country, which was made by this
administration and which is the subject for debate on another day, has
placed the remaining Americans in significant jeopardy. As I say, that
is 16,000 Americans to carry out the postwar commitments we have made
to Iraq to help them rebuild their country after many years of war and
bloodshed.
I certainly understand the aim of the Senator from Kentucky. The
President campaigned for President of the United States committing to
withdraw all of our troops from Iraq. He is now achieving that goal.
But I think it would be very serious to revoke all authority that we
might have in order to respond to possible unrest and disruption within
the country that might require the presence, at least on some level or
another, of American troops to safeguard those 16,000 Americans who
will be remaining in Iraq when our troops withdraw. So I argue that the
amendment be defeated.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I, too, will oppose the Paul amendment for
the repeal of the authorization for the use of military force in Iraq
for a number of reasons, but I think mainly there are just too many
unknown, uncertain consequences of repealing this authority, including
the need to protect our troops. I am unwilling to take this risk during
the critical transition period and not knowing precisely what will
happen after that transition either.
By the way, I take this position as someone who opposed the use of
military force in Iraq to begin with. Back in October 2002 when
Congress voted on the authorization to use military force in Iraq, I
did not support it. I thought it was a mistake to do that and offered
an alternative resolution that would have authorized the use of force
if the United Nations Security Council supported that use of force. So
I take a position here opposing the repeal of the authorization
although I opposed the authorization itself in the first instance. It
is an unusual position to be in. I want to explain why it is that I
oppose the repeal of this authorization.
First, the drawdown appears to be on track to be completed by
December 31, but there can always be unforeseen circumstances that
could delay that date. There is no provision in this bill for the
possibility of an extension or a modification of that date. I would be
reluctant to see it modified or extended. I must say that I do not want
to preclude the possibility by ending something in advance--ending an
authorization in advance of circumstances arising that might require
for days, weeks, months the extension or modification of the current
decision to withdraw our forces by December 31.
Second, we simply do not know the consequences of repealing the
authorization. Let me give a few examples. What about ongoing lawsuits
in U.S. courts arising from actions by U.S. personnel that were
authorized under this authorization for the use of military force?
Would repeal of the authorization for the use of force have an effect?
It is unknown to me. I don't know how many lawsuits there are. But what
is the impact on this? That is something which surely we should want to
know.
By the way, we authorized the use of force in the first gulf war. We
did not repeal that authorization. Technically, that authorization
continues. It has done no harm that I can see.
Third, the Paul amendment raises issues for our detention authority
in Iraq. This is not an abstract concern. Currently, the administration
is in the process of deciding how to deal with one high-value detainee
in U.S. custody whose name is Ali Mussa Daqduq. He is suspected of
having organized a 2007 kidnapping in Iraq that resulted in the deaths
of five U.S. servicemembers. He is also tied to Hezbollah.
The United States is relying on the authority of the AUMF--the
authorization for the use of military force in Iraq--to continue to
detain Daqduq. U.S. officials are still in discussions with the
Government of Iraq over the ultimate disposition of Daqduq, including
possibly releasing him to U.S. custody either in Iraq or somewhere
else.
Repeal of the AUMF could limit the administration's options for
dealing with Daqduq after January of 2012. Would it limit those
options? We don't know.
Should we pass something as dramatic as a repeal of an authorization
at this time without knowing what the consequences are in the real
world to our interests? I don't think we can
[[Page S7970]]
take that chance, so I would oppose the amendment of the Senator from
Kentucky.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I would like to rise in support of the
statements made by Senators McCain and Levin.
I do not have that good a feeling about Iraq, quite frankly. I am not
very confident at all that the worst is behind us. I am hopeful that we
can withdraw our troops and that nothing bad will happen in Iraq, but,
as Senator Levin just described, the implications of repealing the
authorization to use military force are wide, varied, and uncertain.
What do you get by repealing this? You can go back home and say you
did something that--I do not know what you get. I mean, I really do
not. I do not know what we gain as a nation by taking the contingencies
of using military force off the table as we try to wind down.
I just don't see the upside, quite frankly. I know the reality of
what our troops face and why the Department of Defense would want to
continue to have this authorization until we get Iraq behind us. At the
end of the day, 4,400 people plus have lost their lives, thousands have
been wounded and maimed--not counting the Iraqis who have lost their
lives and have been wounded and maimed trying to create order out of
chaos.
As we move forward as a body, I don't see the upside to those who are
doing the fighting and who have to deal with complications of this
long, protracted war by us repealing the authorization at a time when
it may be necessary to have it in place. If there is any doubt in your
mind about what Senators Levin and McCain say and what the Department
of Defense says about the need for this to be continued, I ask you to
give the benefit of the doubt to the DOD. You don't have to; I just
think it is a wise thing to do because what we gain by repealing it--I
am not sure what that is in any real sense.
By having the authorization in place for a while longer, I understand
how that could help those who are fighting in Iraq and the follow-on
needs that come as we transition. I ask the body to be cautious, and if
you have any doubt that Senator McCain's or Senator Levin's concerns
are real, I think now is the time to defer to the Department of Defense
and give them the tools they need to finish the operations in Iraq.
I will close with this one thought. The vacuum created by the fact
that we will not have any troops in 2012 can be filled in a very bad
way if we don't watch it. The Kurd-Arab problem could wind up in open
warfare. The Iranian influence in Iraq is growing as we speak. We do
have troops and civilian personnel in the country, and we will have a
lot next year. I think out of an abundance of caution we ought to leave
the tools in place that the Department of Defense says they need to
finish this out.
I urge my colleagues to err on the side of giving the Department of
Defense the authorization they need to protect those who will be left
behind.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. PAUL. It disappoints me that President Obama opposes a formal end
to the Iraq war, but it doesn't surprise me. As a candidate, he was
outspoken against the war and for ending the war: He will be bringing
the troops home. But this vote in this debate is not necessarily just
about bringing the troops home. This is a debate over power. The
executive branch wants to keep the unlimited power to commit troops to
war. This is about who holds the power.
The Founding Fathers intended that Congress should hold the power.
This vote is about whether we will continue to abdicate that power and
give up that power to the Executive. That allows for no checks and
balances. We need to have checks and balances. It is what our Founding
Fathers intended.
With regard to defending ourselves, there is authorization for the
President to always defend the Nation using force. There is
authorization for every embassy around the world to defend the embassy.
That is why we have soldiers there. We have agreements with the host
country that the host military is supposed to support the embassy. If
that fails, we have our own soldiers. We have these agreements around
the world. There is nothing that says we cannot use force. This says we
are reclaiming the power to declare war, and we will not have another
war with hundreds of thousands of troops without a debate. Should not
the public and Congress debate it before we commit troops to war?
This war is coming to a close. I suggest that we should be proud of
it. I hope people will support this amendment.
I yield to the Senator from Oregon.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I rise to support Senator Paul's
amendment to revoke war authority. We have heard on the floor that the
consequences of revoking authority are vague and uncertain. Indeed, my
team has been seeking a reply from the Department of Defense as to
whether there were any conditions we should be alerted to or whether
this would create a problem. At the last minute, we appear to have a
memo--which has not come to my office--that says there are possible
complications.
Well, let's be clear. The executive branch never wants to hand back
authority it has been granted. It always wants to retain maximum
flexibility. But as my colleague has pointed out, this is an issue of
constitutional authority. We had a constitutional discussion about
authorizing action in Iraq and, certainly contrary to my opinion, this
body supported that action. But now the President is bringing this war
to an end.
Doesn't it make sense, then, that we end the authority that went with
this war and call a formal end to this battle? The issue has been
raised that there might be something that happens in the future. Isn't
that true for every country on this planet, that something might happen
in the future? Something might happen in Somalia or in Yemen or in any
nation in the world. Indeed, under the War Powers Act, the President
has the ability to respond immediately. He doesn't need to come to this
body for 60 days. So there is extensive flexibility that would go with
Iraq just as it goes with every other country, in addition to the
authority that has been granted to pursue al-Qaida and associated
forces around the world.
When, if not now, should we revoke this authority? Do we say that
once granted, at any point in the future the administration can go back
to war without the authorization of this body? It is time for us to
reclaim the authority of Congress. Should the circumstances arise that
the President feels the need to go back into a war mode versus many of
the other uses of force that are already authorized under other
provisions, then he would have 60 days. He could come back to this body
and say: These are the changed circumstances. Under the Constitution,
will you grant the power to renew or create a new force of war in that
country? Then we can hold that debate in a responsible manner.
But this open-ended commitment under these circumstances doesn't make
sense. Congress has yielded its authority under the Constitution far
too often to the executive branch. So many times this body has failed
to do its fair share under our constitutional framework.
This amendment before us today makes sense in the context of a
withdrawal of troops and provides plenty of flexibility to undertake
any security issues that might arise in the future. For that reason, I
urge my colleagues to support the Paul amendment.
The PRESIDING OFFICER. Who yields time?
Mr. PAUL. Mr. President, is it appropriate to call for the yeas and
nays at this point?
The PRESIDING OFFICER. It is.
Mr. PAUL. I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Kentucky has 4 minutes
remaining.
Mr. PAUL. I will yield back my time.
The PRESIDING OFFICER. The Senator from Louisiana is recognized.
Ms. LANDRIEU. Mr. President, under the previous order, I think we
were going to debate both amendments and
[[Page S7971]]
vote in a few moments. That is what I understood.
The PRESIDING OFFICER. The Senator is correct.
Mr. McCAIN. How long will the Senator take?
Ms. LANDRIEU. Up to 10 minutes.
Mr. McCAIN. All right.
Amendment No. 1115, as Modified
Ms. LANDRIEU. The Senators have done such a good job managing this
bill. I appreciate the opportunity to offer this amendment and to be
paired with this important amendment that the Senators from Kentucky
and Oregon have offered. I will explain it briefly because a longer
explanation would not be necessary.
This body is very familiar with the reauthorization of the SBIR
Program. The reason I believe the chairman and ranking member allowed
me to offer this amendment with Senator Snowe is twofold. One, it has a
bearing on the Department of Defense in that the Department of Defense
is the largest contributor to the SBIR and STTR programs, the two most
important research and development programs for small business that the
Federal Government runs and operates. The Senators know full well the
importance for the Department of Defense and therefore extrapolate
correctly the importance of this program for all of our agencies.
We take a small portion of the research and development dollars for
all Federal agencies and basically direct it to small business. There
are some good reasons for that, which I will put in the Record. As
written by one of the advocates supporting the program--and I will put
this into the Record--she writes:
The SBIR/STTR funding award process spawns competition
among high-tech businesses. Scientists and engineers propose
their best technological concepts to solve a problem of
national interest. The best of the best of these technical
concepts are selected for funding. Thus, this funding
mechanism assures that the thinking minds continuously work
on producing the most practical solutions to engineering
problems.
Whether it is our soldiers in the field or our scientists at NASA or
whether it is our scientists and engineers struggling to understand the
oceans or better communication technology, they go to the SBIR and STTR
programs and look for some of the cutting edge ideas. We invest in
them, and many of those ideas go commercial for the benefit of
everyone, taxpayers included.
She goes on to write:
Small businesses develop niche products that are not mass
produced overseas. Thus, it helps our employment situation
[right here at home]. The employees of a high-tech company
are highly educated professionals belonging to a high income
group who contribute substantially to the tax pool and the
economy.
Finally, she says:
Small businesses are job creators. We hear that large
companies are sitting on trillions of dollars in cash, yet
not investing in job creation. Small businesses often operate
on a very thin to no profit margin and hire staff on borrowed
money. . . . This is because growth is the mantra for small
businesses for survival.
If they don't grow, they don't survive. This small business research
program is so important. The reason I am here tonight asking my
colleagues to vote on this amendment on the Defense bill is that it is
relevant. It is also important. We are 5 years late. This program
should have been authorized 5 years ago.
I inherited this situation when I became chairman of the Small
Business and Entrepreneurship Committee. As you know, I have worked
diligently with colleagues on both sides of the aisle to move this
debate forward and to advance the ball. That is what we are going to do
tonight. We are, hopefully, going to pass this with more than the 60
votes necessary.
This bill came out of the Small Business Committee on a vote of 17 to
1. It was just broadly bipartisan in its appeal. It is sponsored by my
ranking member, Senator Snowe, who has been one of the strongest
advocates for small business in the Senate--not just for this year but
for many years. She sponsored this bill along with Senators Shaheen,
Brown, and Kerry. With Senator McCain and Senator Levin's help, along
with the cosponsors of this amendment, I ask my colleagues to vote
favorably for it tonight. Again, we are 5 years overdue. It is an
important program to get authorized so that the folks operating our
programs at all of the departments can have some confidence that the
program is going to go on, that they can even do a better job than they
have been doing, and we can get these investments out to small
businesses that are game changers in America, creating new technology
and, most importantly, creating the jobs that America needs right here
at home.
I don't see anyone else to speak on the amendment. I think that would
probably be all the time that we need. I hope that is a signal that
there is no opposition to the amendment. Perhaps we can do a voice vote
or have a very strong vote for reauthorizing the small business
research program. Again, that is so meritorious and so necessary for
the investment of small business in America today.
I yield the floor and yield back the remainder of my time.
The PRESIDING OFFICER. Who yields time?
The Senator from Michigan.
Mr. LEVIN. Mr. President, first, while Senator Landrieu is here--
because she, I know, is going to be interested in this and is right on
top of this--I want to assure her it was our intention with the
previous order to have the Landrieu amendment No. 1115 modified with
the changes that are at the desk, and so I now ask unanimous consent
that the amendment be modified with those changes, and that our
previous order with respect to the vote in relation to the Landrieu
amendment be modified as well.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment (No. 1115), as modified, is as follows:
At the end, add the following:
DIVISION E--SBIR AND STTR REAUTHORIZATION
SEC. 5001. SHORT TITLE.
This division may be cited as the ``SBIR/STTR
Reauthorization Act of 2011''.
SEC. 5002. DEFINITIONS.
In this division--
(1) the terms ``Administration'' and ``Administrator'' mean
the Small Business Administration and the Administrator
thereof, respectively;
(2) the terms ``extramural budget'', ``Federal agency'',
``Small Business Innovation Research Program'', ``SBIR'',
``Small Business Technology Transfer Program'', and ``STTR''
have the meanings given such terms in section 9 of the Small
Business Act (15 U.S.C. 638); and
(3) the term ``small business concern'' has the meaning
given that term under section 3 of the Small Business Act (15
U.S.C. 632).
SEC. 5003. REPEAL.
Subtitle E of title VIII of this Act is amended by striking
section 885.
TITLE LI--REAUTHORIZATION OF THE SBIR AND STTR PROGRAMS
SEC. 5101. EXTENSION OF TERMINATION DATES.
(a) SBIR.--Section 9(m) of the Small Business Act (15
U.S.C. 638(m)) is amended by striking ``2011'' and inserting
``2019, except as provided in subsection (cc)''.
(b) STTR.--Section 9(n)(1)(A) of the Small Business Act (15
U.S.C. 638(n)(1)(A)) is amended by striking ``2011'' and
inserting ``2019''.
(c) Technical and Conforming Amendment.--The Continuing
Appropriations Act, 2012 (Public Law 112-36), as amended by
division D of the Consolidated and Further Continuing
Appropriations Act, 2012 (Public Law 112-55), is amended by
striking section 123.
SEC. 5102. STATUS OF THE OFFICE OF TECHNOLOGY.
Section 9(b) of the Small Business Act (15 U.S.C. 638(b))
is amended--
(1) in paragraph (7), by striking ``and'' at the end;
(2) in paragraph (8), by striking the period at the end and
inserting ``; and'';
(3) by redesignating paragraph (8) as paragraph (9); and
(4) by adding at the end the following:
``(10) to maintain an Office of Technology to carry out the
responsibilities of the Administration under this section,
which shall be--
``(A) headed by the Assistant Administrator for Technology,
who shall report directly to the Administrator; and
``(B) independent from the Office of Government Contracting
of the Administration and sufficiently staffed and funded to
comply with the oversight, reporting, and public database
responsibilities assigned to the Office of Technology by the
Administrator.''.
SEC. 5103. SBIR ALLOCATION INCREASE.
Section 9(f) of the Small Business Act (15 U.S.C. 638(f))
is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A), by striking
``Each'' and inserting ``Except as provided in paragraph
(2)(B), each'';
(B) in subparagraph (B), by striking ``and'' at the end;
and
(C) by striking subparagraph (C) and inserting the
following:
``(C) not less than 2.5 percent of such budget in fiscal
year 2013;
``(D) not less than 2.6 percent of such budget in fiscal
year 2014;
[[Page S7972]]
``(E) not less than 2.7 percent of such budget in fiscal
year 2015;
``(F) not less than 2.8 percent of such budget in fiscal
year 2016;
``(G) not less than 2.9 percent of such budget in fiscal
year 2017;
``(H) not less than 3.0 percent of such budget in fiscal
year 2018;
``(I) not less than 3.1 percent of such budget in fiscal
year 2019;
``(J) not less than 3.2 percent of such budget in fiscal
year 2020;
``(K) not less than 3.3 percent of such budget in fiscal
year 2021;
``(L) not less than 3.4 percent of such budget in fiscal
year 2022; and
``(M) not less than 3.5 percent of such budget in fiscal
year 2023 and each fiscal year thereafter,'';
(2) in paragraph (2)--
(A) by redesignating subparagraphs (A) and (B) as clauses
(i) and (ii), respectively, and adjusting the margins
accordingly;
(B) by striking ``A Federal agency'' and inserting the
following:
``(A) In general.--A Federal agency''; and
(C) by adding at the end the following:
``(B) Department of defense and department of energy.--For
the Department of Defense and the Department of Energy, to
the greatest extent practicable, the percentage of the
extramural budget in excess of 2.5 percent required to be
expended with small business concerns under subparagraphs (D)
through (M) of paragraph (1)--
``(i) may not be used for new Phase I or Phase II awards;
and
``(ii) shall be used for activities that further the
readiness levels of technologies developed under Phase II
awards, including conducting testing and evaluation to
promote the transition of such technologies into commercial
or defense products, or systems furthering the mission needs
of the Department of Defense or the Department of Energy, as
the case may be.''; and
(3) by adding at the end the following:
``(4) Rule of construction.--Nothing in this subsection may
be construed to prohibit a Federal agency from expending with
small business concerns an amount of the extramural budget
for research or research and development of the Federal
agency that exceeds the amount required under paragraph
(1).''.
SEC. 5104. STTR ALLOCATION INCREASE.
Section 9(n)(1)(B) of the Small Business Act (15 U.S.C.
638(n)(1)(B)) is amended--
(1) in clause (i), by striking ``and'' at the end;
(2) in clause (ii), by striking ``thereafter.'' and
inserting ``through fiscal year 2012;'';
(3) by adding at the end the following:
``(iii) 0.4 percent for fiscal years 2013 and 2014;
``(iv) 0.5 percent for fiscal years 2015 and 2016; and
``(v) 0.6 percent for fiscal year 2017 and each fiscal year
thereafter.''; and
(4) by adding at the end the following:
``(4) Rule of construction.--Nothing in this subsection may
be construed to prohibit a Federal agency from expending with
small business concerns an amount of the extramural budget
for research or research and development of the Federal
agency that exceeds the amount required under paragraph
(1).''.
SEC. 5105. SBIR AND STTR AWARD LEVELS.
(a) SBIR Adjustments.--Section 9(j)(2)(D) of the Small
Business Act (15 U.S.C. 638(j)(2)(D)) is amended--
(1) by striking ``$100,000'' and inserting ``$150,000'';
and
(2) by striking ``$750,000'' and inserting ``$1,000,000''.
(b) STTR Adjustments.--Section 9(p)(2)(B)(ix) of the Small
Business Act (15 U.S.C. 638(p)(2)(B)(ix)) is amended--
(1) by striking ``$100,000'' and inserting ``$150,000'';
and
(2) by striking ``$750,000'' and inserting ``$1,000,000''.
(c) Annual Adjustments.--Section 9 of the Small Business
Act (15 U.S.C. 638) is amended--
(1) in subsection (j)(2)(D), by striking ``once every 5
years to reflect economic adjustments and programmatic
considerations'' and inserting ``every year for inflation'';
and
(2) in subsection (p)(2)(B)(ix), as amended by subsection
(b) of this section, by inserting ``(each of which the
Administrator shall adjust for inflation annually)'' after
``$1,000,000,''.
(d) Limitation on Size of Awards.--Section 9 of the Small
Business Act (15 U.S.C. 638) is amended by adding at the end
the following:
``(aa) Limitation on Size of Awards.--
``(1) Limitation.--No Federal agency may issue an award
under the SBIR program or the STTR program if the size of the
award exceeds the award guidelines established under this
section by more than 50 percent.
``(2) Maintenance of information.--Participating agencies
shall maintain information on awards exceeding the guidelines
established under this section, including--
``(A) the amount of each award;
``(B) a justification for exceeding the award amount;
``(C) the identity and location of each award recipient;
and
``(D) whether an award recipient has received any venture
capital investment and, if so, whether the recipient is
majority-owned by multiple venture capital operating
companies.
``(3) Reports.--The Administrator shall include the
information described in paragraph (2) in the annual report
of the Administrator to Congress.
``(4) Rule of construction.--Nothing in this subsection
shall be construed to prevent a Federal agency from
supplementing an award under the SBIR program or the STTR
program using funds of the Federal agency that are not part
of the SBIR program or the STTR program of the Federal
agency.''.
SEC. 5106. AGENCY AND PROGRAM FLEXIBILITY.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(bb) Subsequent Phase II Awards.--
``(1) Agency flexibility.--A small business concern that
received an award from a Federal agency under this section
shall be eligible to receive a subsequent Phase II award from
another Federal agency, if the head of each relevant Federal
agency or the relevant component of the Federal agency makes
a written determination that the topics of the relevant
awards are the same and both agencies report the awards to
the Administrator for inclusion in the public database under
subsection (k).
``(2) SBIR and sttr program flexibility.--A small business
concern that received an award under this section under the
SBIR program or the STTR program may receive a subsequent
Phase II award in either the SBIR program or the STTR program
and the participating agency or agencies shall report the
awards to the Administrator for inclusion in the public
database under subsection (k).
``(3) Preventing duplicative awards.--Before making an
award under paragraph (1) or (2), the head of a Federal
agency shall verify that the project to be performed with the
award has not been funded under the SBIR program or STTR
program of another Federal agency.''.
SEC. 5107. ELIMINATION OF PHASE II INVITATIONS.
(a) In General.--Section 9(e) of the Small Business Act (15
U.S.C. 638(e)) is amended--
(1) in paragraph (4)(B), by striking ``to further'' and
inserting: ``which shall not include any invitation, pre-
screening, pre-selection, or down-selection process for
eligibility for the second phase, that will further''; and
(2) in paragraph (6)(B), by striking ``to further develop
proposed ideas to'' and inserting ``which shall not include
any invitation, pre-screening, pre-selection, or down-
selection process for eligibility for the second phase, that
will further develop proposals that''.
SEC. 5108. PARTICIPATION BY FIRMS WITH SUBSTANTIAL INVESTMENT
FROM MULTIPLE VENTURE CAPITAL OPERATING
COMPANIES IN A PORTION OF THE SBIR PROGRAM.
(a) In General.--Section 9 of the Small Business Act (15
U.S.C. 638), as amended by this Act, is amended by adding at
the end the following:
``(cc) Participation of Small Business Concerns Majority-
Owned by Venture Capital Operating Companies in the SBIR
Program.--
``(1) Authority.--Upon a written determination described in
paragraph (2) provided to the Administrator and to the
Committee on Small Business and Entrepreneurship of the
Senate and the Committee on Small Business of the House of
Representatives not later than 30 days before the date on
which an award is made--
``(A) the Director of the National Institutes of Health,
the Secretary of Energy, and the Director of the National
Science Foundation may award not more than 25 percent of the
funds allocated for the SBIR program of the Federal agency to
small business concerns that are owned in majority part by
multiple venture capital operating companies through
competitive, merit-based procedures that are open to all
eligible small business concerns; and
``(B) the head of a Federal agency other than a Federal
agency described in subparagraph (A) that participates in the
SBIR program may award not more than 15 percent of the funds
allocated for the SBIR program of the Federal agency to small
business concerns that are owned in majority part by multiple
venture capital operating companies through competitive,
merit-based procedures that are open to all eligible small
business concerns.
``(2) Determination.--A written determination described in
this paragraph is a written determination by the head of a
Federal agency that explains how the use of the authority
under paragraph (1) will--
``(A) induce additional venture capital funding of small
business innovations;
``(B) substantially contribute to the mission of the
Federal agency;
``(C) demonstrate a need for public research; and
``(D) otherwise fulfill the capital needs of small business
concerns for additional financing for the SBIR project.
``(3) Registration.--A small business concern that is
majority-owned by multiple venture capital operating
companies and qualified for participation in the program
authorized under paragraph (1) shall--
``(A) register with the Administrator on the date that the
small business concern submits an application for an award
under the SBIR program; and
``(B) indicate in any SBIR proposal that the small business
concern is registered under subparagraph (A) as majority-
owned by multiple venture capital operating companies.
[[Page S7973]]
``(4) Compliance.--
``(A) In general.--The head of a Federal agency that makes
an award under this subsection during a fiscal year shall
collect and submit to the Administrator data relating to the
number and dollar amount of Phase I awards, Phase II awards,
and any other category of awards by the Federal agency under
the SBIR program during that fiscal year.
``(B) Annual reporting.--The Administrator shall include as
part of each annual report by the Administration under
subsection (b)(7) any data submitted under subparagraph (A)
and a discussion of the compliance of each Federal agency
that makes an award under this subsection during the fiscal
year with the maximum percentages under paragraph (1).
``(5) Enforcement.--If a Federal agency awards more than
the percent of the funds allocated for the SBIR program of
the Federal agency authorized under paragraph (1) for a
purpose described in paragraph (1), the head of the Federal
agency shall transfer an amount equal to the amount awarded
in excess of the amount authorized under paragraph (1) to the
funds for general SBIR programs from the non-SBIR and non-
STTR research and development funds of the Federal agency not
later than 180 days after the date on which the Federal
agency made the award that caused the total awarded under
paragraph (1) to be more than the amount authorized under
paragraph (1) for a purpose described in paragraph (1).
``(6) Final decisions on applications under the sbir
program.--
``(A) Definition.--In this paragraph, the term `covered
small business concern' means a small business concern that--
``(i) was not majority-owned by multiple venture capital
operating companies on the date on which the small business
concern submitted an application in response to a
solicitation under the SBIR programs; and
``(ii) on the date of the award under the SBIR program is
majority-owned by multiple venture capital operating
companies.
``(B) In general.--If a Federal agency does not make an
award under a solicitation under the SBIR program before the
date that is 9 months after the date on which the period for
submitting applications under the solicitation ends--
``(i) a covered small business concern is eligible to
receive the award, without regard to whether the covered
small business concern meets the requirements for receiving
an award under the SBIR program for a small business concern
that is majority-owned by multiple venture capital operating
companies, if the covered small business concern meets all
other requirements for such an award; and
``(ii) the head of the Federal agency shall transfer an
amount equal to any amount awarded to a covered small
business concern under the solicitation to the funds for
general SBIR programs from the non-SBIR and non-STTR research
and development funds of the Federal agency, not later than
90 days after the date on which the Federal agency makes the
award.
``(7) Evaluation criteria.--A Federal agency may not use
investment of venture capital as a criterion for the award of
contracts under the SBIR program or STTR program.
``(8) Termination.--The authority under this subsection
shall terminate on September 30, 2016.''.
(b) Technical and Conforming Amendment.--Section 3 of the
Small Business Act (15 U.S.C. 632) is amended by adding at
the end the following:
``(aa) Venture Capital Operating Company.--In this Act, the
term `venture capital operating company' means an entity
described in clause (i), (v), or (vi) of section
121.103(b)(5) of title 13, Code of Federal Regulations (or
any successor thereto).''.
(c) Rulemaking To Ensure That Firms That Are Majority-Owned
by Multiple Venture Capital Operating Companies Are Able To
Participate in a Portion of the SBIR Program.--
(1) Statement of congressional intent.--It is the stated
intent of Congress that the Administrator should promulgate
regulations to carry out the authority under section 9(cc) of
the Small Business Act, as added by this section, that--
(A) permit small business concerns that are majority-owned
by multiple venture capital operating companies to
participate in the SBIR program in accordance with section
9(cc) of the Small Business Act;
(B) provide specific guidance for small business concerns
that are majority-owned by multiple venture capital operating
companies with regard to eligibility, participation, and
affiliation rules; and
(C) preserve and maintain the integrity of the SBIR program
as a program for small business concerns in the United
States, prohibiting large businesses or large entities or
foreign-owned businesses or entities from participation in
the program established under section 9 of the Small Business
Act.
(2) Rulemaking required.--
(A) Proposed regulations.--Not later than 4 months after
the date of enactment of this Act, the Administrator shall
issue proposed regulations to amend section 121.103 (relating
to determinations of affiliation applicable to the SBIR
program) and section 121.702 (relating to ownership and
control standards and size standards applicable to the SBIR
program) of title 13, Code of Federal Regulations, for firms
that are majority-owned by multiple venture capital operating
companies and participating in the SBIR program solely under
the authority under section 9(cc) of the Small Business Act,
as added by this section.
(B) Final regulations.--Not later than 1 year after the
date of enactment of this Act, and after providing notice of
and opportunity for comment on the proposed regulations
issued under subparagraph (A), the Administrator shall issue
final or interim final regulations under this subsection.
(3) Contents.--
(A) In general.--The regulations issued under this
subsection shall permit the participation of applicants
majority-owned by multiple venture capital operating
companies in the SBIR program in accordance with section
9(cc) of the Small Business Act, as added by this section,
unless the Administrator determines--
(i) in accordance with the size standards established under
subparagraph (B), that the applicant is--
(I) a large business or large entity; or
(II) majority-owned or controlled by a large business or
large entity; or
(ii) in accordance with the criteria established under
subparagraph (C), that the applicant--
(I) is a foreign business or a foreign entity or is not a
citizen of the United States or alien lawfully admitted for
permanent residence; or
(II) is majority-owned or controlled by a foreign business,
foreign entity, or person who is not a citizen of the United
States or alien lawfully admitted for permanent residence.
(B) Size standards.--Under the authority to establish size
standards under paragraphs (2) and (3) of section 3(a) of the
Small Business Act (15 U.S.C. 632(a)), the Administrator
shall, in accordance with paragraph (1) of this subsection,
establish size standards for applicants seeking to
participate in the SBIR program solely under the authority
under section 9(cc) of the Small Business Act, as added by
this section.
(C) Criteria for determining foreign ownership.--The
Administrator shall establish criteria for determining
whether an applicant meets the requirements under
subparagraph (A)(ii), and, in establishing the criteria,
shall consider whether the criteria should include--
(i) whether the applicant is at least 51 percent owned or
controlled by citizens of the United States or domestic
venture capital operating companies;
(ii) whether the applicant is domiciled in the United
States; and
(iii) whether the applicant is a direct or indirect
subsidiary of a foreign-owned firm, including whether the
criteria should include that an applicant is a direct or
indirect subsidiary of a foreign-owned entity if--
(I) any venture capital operating company that owns more
than 20 percent of the applicant is a direct or indirect
subsidiary of a foreign-owned entity; or
(II) in the aggregate, entities that are direct or indirect
subsidiaries of foreign-owned entities own more than 49
percent of the applicant.
(D) Criteria for determining affiliation.--The
Administrator shall establish criteria, in accordance with
paragraph (1), for determining whether an applicant is
affiliated with a venture capital operating company or any
other business that the venture capital operating company has
financed and, in establishing the criteria, shall specify
that--
(i) if a venture capital operating company that is
determined to be affiliated with an applicant is a minority
investor in the applicant, the portfolio companies of the
venture capital operating company shall not be determined to
be affiliated with the applicant, unless--
(I) the venture capital operating company owns a majority
of the portfolio company; or
(II) the venture capital operating company holds a majority
of the seats on the board of directors of the portfolio
company;
(ii) subject to clause (i), the Administrator retains the
authority to determine whether a venture capital operating
company is affiliated with an applicant, including
establishing other criteria;
(iii) the Administrator may not determine that a portfolio
company of a venture capital operating company is affiliated
with an applicant based solely on one or more shared
investors; and
(iv) subject to clauses (i), (ii), and (iii), the
Administrator retains the authority to determine whether a
portfolio company of a venture capital operating company is
affiliated with an applicant based on factors independent of
whether there is a shared investor, such as whether there are
contractual obligations between the portfolio company and the
applicant.
(4) Enforcement.--If the Administrator does not issue final
or interim final regulations under this subsection on or
before the date that is 1 year after the date of enactment of
this Act, the Administrator may not carry out any activities
under section 4(h) of the Small Business Act (15 U.S.C.
633(h)) (as continued in effect pursuant to the Act entitled
``An Act to extend temporarily certain authorities of the
Small Business Administration'', approved October 10, 2006
(Public Law 109-316; 120 Stat. 1742)) during the period
beginning on the date that is 1 year and 1 day after the date
of enactment of this Act, and ending on the date on which the
final or interim final regulations are issued.
(5) Definition.--In this subsection, the term ``venture
capital operating company'' has the same meaning as in
section 3(aa) of
[[Page S7974]]
the Small Business Act, as added by this section.
(d) Assistance for Determining Affiliates.--
(1) Clear explanation required.--Not later than 30 days
after the date of enactment of this Act, the Administrator
shall post on the Web site of the Administration (with a
direct link displayed on the homepage of the Web site of the
Administration or the SBIR and STTR Web sites of the
Administration)--
(A) a clear explanation of the SBIR and STTR affiliation
rules under part 121 of title 13, Code of Federal
Regulations; and
(B) contact information for officers or employees of the
Administration who--
(i) upon request, shall review an issue relating to the
rules described in subparagraph (A); and
(ii) shall respond to a request under clause (i) not later
than 20 business days after the date on which the request is
received.
(2) Inclusion of affiliation rules for certain small
business concerns.--On and after the date on which the final
regulations under subsection (c) are issued, the
Administrator shall post on the Web site of the
Administration information relating to the regulations, in
accordance with paragraph (1).
SEC. 5109. SBIR AND STTR SPECIAL ACQUISITION PREFERENCE.
Section 9(r) of the Small Business Act (15 U.S.C. 638(r))
is amended by adding at the end the following:
``(4) Phase iii awards.--To the greatest extent
practicable, Federal agencies and Federal prime contractors
shall issue Phase III awards relating to technology,
including sole source awards, to the SBIR and STTR award
recipients that developed the technology.''.
SEC. 5110. COLLABORATING WITH FEDERAL LABORATORIES AND
RESEARCH AND DEVELOPMENT CENTERS.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(dd) Collaborating With Federal Laboratories and Research
and Development Centers.--
``(1) Authorization.--Subject to the limitations under this
section, the head of each participating Federal agency may
make SBIR and STTR awards to any eligible small business
concern that--
``(A) intends to enter into an agreement with a Federal
laboratory or federally funded research and development
center for portions of the activities to be performed under
that award; or
``(B) has entered into a cooperative research and
development agreement (as defined in section 12(d) of the
Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C.
3710a(d))) with a Federal laboratory.
``(2) Prohibition.--No Federal agency shall--
``(A) condition an SBIR or STTR award upon entering into
agreement with any Federal laboratory or any federally funded
laboratory or research and development center for any portion
of the activities to be performed under that award;
``(B) approve an agreement between a small business concern
receiving a SBIR or STTR award and a Federal laboratory or
federally funded laboratory or research and development
center, if the small business concern performs a lesser
portion of the activities to be performed under that award
than required by this section and by the SBIR Policy
Directive and the STTR Policy Directive of the Administrator;
or
``(C) approve an agreement that violates any provision,
including any data rights protections provision, of this
section or the SBIR and the STTR Policy Directives.
``(3) Implementation.--Not later than 180 days after the
date of enactment of this subsection, the Administrator shall
modify the SBIR Policy Directive and the STTR Policy
Directive issued under this section to ensure that small
business concerns--
``(A) have the flexibility to use the resources of the
Federal laboratories and federally funded research and
development centers; and
``(B) are not mandated to enter into agreement with any
Federal laboratory or any federally funded laboratory or
research and development center as a condition of an
award.''.
SEC. 5111. NOTICE REQUIREMENT.
(a) SBIR Program.--Section 9(g) of the Small Business Act
(15 U.S.C. 638(g)) is amended--
(1) in paragraph (10), by striking ``and'' at the end;
(2) in paragraph (11), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following:
``(12) provide timely notice to the Administrator of any
case or controversy before any Federal judicial or
administrative tribunal concerning the SBIR program of the
Federal agency; and''.
(b) STTR Program.--Section 9(o) of the Small Business Act
(15 U.S.C. 638(o)) is amended--
(1) by striking paragraph (15);
(2) in paragraph (16), by striking the period at the end
and inserting ``; and'';
(3) by redesignating paragraph (16) as paragraph (15); and
(4) by adding at the end the following:
``(16) provide timely notice to the Administrator of any
case or controversy before any Federal judicial or
administrative tribunal concerning the STTR program of the
Federal agency.''.
SEC. 5112. EXPRESS AUTHORITY FOR AN AGENCY TO AWARD
SEQUENTIAL PHASE II AWARDS FOR SBIR OR STTR
FUNDED PROJECTS.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(ee) Additional Phase II SBIR and STTR Awards.--A small
business concern that receives a Phase II SBIR award or a
Phase II STTR award for a project remains eligible to receive
an additional Phase II SBIR award or Phase II STTR award for
that project.''.
TITLE LII--OUTREACH AND COMMERCIALIZATION INITIATIVES
SEC. 5201. RURAL AND STATE OUTREACH.
(a) In General.--Section 9 of the Small Business Act (15
U.S.C. 638) is amended by inserting after subsection (r) the
following:
``(s) Federal and State Technology Partnership Program.--
``(1) Definitions.--In this subsection, the following
definitions apply:
``(A) Applicant.--The term `applicant' means an entity,
organization, or individual that submits a proposal for an
award or a cooperative agreement under this subsection.
``(B) FAST program.--The term `FAST program' means the
Federal and State Technology Partnership Program established
under this subsection.
``(C) Recipient.--The term `recipient' means a person that
receives an award or becomes party to a cooperative agreement
under this subsection.
``(D) State.--The term `State' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, and American Samoa.
``(E) Definitions relating to mentoring networks.--The
terms `business advice and counseling', `mentor', and
`mentoring network' have the meanings given those terms in
section 34(e).
``(2) Establishment of program.--The Administrator shall
establish a program to be known as the Federal and State
Technology Partnership Program, the purpose of which shall be
to strengthen the technological competitiveness of small
business concerns in the States.
``(3) Grants and cooperative agreements.--
``(A) Joint review.--In carrying out the FAST program, the
Administrator and the program managers for the SBIR program
and STTR program at the National Science Foundation, the
Department of Defense, and any other Federal agency
determined appropriate by the Administrator shall jointly
review proposals submitted by applicants and may make awards
or enter into cooperative agreements under this subsection
based on the factors for consideration set forth in
subparagraph (B), in order to enhance or develop in a State--
``(i) technology research and development by small business
concerns;
``(ii) technology transfer from university research to
technology-based small business concerns;
``(iii) technology deployment and diffusion benefitting
small business concerns;
``(iv) the technological capabilities of small business
concerns through the establishment or operation of consortia
comprised of entities, organizations, or individuals,
including--
``(I) State and local development agencies and entities;
``(II) representatives of technology-based small business
concerns;
``(III) industries and emerging companies;
``(IV) universities; and
``(V) small business development centers; and
``(v) outreach, financial support, and technical assistance
to technology-based small business concerns participating in
or interested in participating in an SBIR program or STTR
program, including initiatives--
``(I) to make grants or loans to companies to pay a portion
or all of the cost of developing SBIR or STTR proposals;
``(II) to establish or operate a Mentoring Network within
the FAST program to provide business advice and counseling
that will assist small business concerns that have been
identified by FAST program participants, program managers of
participating SBIR agencies, the Administration, or other
entities that are knowledgeable about the SBIR and STTR
programs as good candidates for the SBIR and STTR programs,
and that would benefit from mentoring, in accordance with
section 34;
``(III) to create or participate in a training program for
individuals providing SBIR or STTR outreach and assistance at
the State and local levels; and
``(IV) to encourage the commercialization of technology
developed through funding under the SBIR program or the STTR
program.
``(B) Selection considerations.--In making awards or
entering into cooperative agreements under this subsection,
the Administrator and the program managers referred to in
subparagraph (A)--
``(i) may only consider proposals by applicants that intend
to use a portion of the Federal assistance provided under
this subsection to provide outreach, financial support, or
technical assistance to technology-based small business
concerns participating in or interested in participating in
the SBIR program or STTR program; and
``(ii) shall consider, at a minimum--
``(I) whether the applicant has demonstrated that the
assistance to be provided would address unmet needs of small
business concerns in the community, and whether it
[[Page S7975]]
is important to use Federal funding for the proposed
activities;
``(II) whether the applicant has demonstrated that a need
exists to increase the number or success of small high-
technology businesses in the State or an area of the State,
as measured by the number of Phase I and Phase II SBIR awards
that have historically been received by small business
concerns in the State or area of the State;
``(III) whether the projected costs of the proposed
activities are reasonable;
``(IV) whether the proposal integrates and coordinates the
proposed activities with other State and local programs
assisting small high-technology firms in the State;
``(V) the manner in which the applicant will measure the
results of the activities to be conducted; and
``(VI) whether the proposal addresses the needs of small
business concerns--
``(aa) owned and controlled by women;
``(bb) that are socially and economically disadvantaged
small business concerns (as defined in section 8(a)(4)(A));
``(cc) that are HUBZone small business concerns;
``(dd) located in areas that have historically not
participated in the SBIR and STTR programs;
``(ee) owned and controlled by service-disabled veterans;
``(ff) owned and controlled by Native Americans; and
``(gg) located in geographic areas with an unemployment
rate that exceeds the national unemployment rate, based on
the most recently available monthly publications of the
Bureau of Labor Statistics of the Department of Labor.
``(C) Proposal limit.--Not more than 1 proposal may be
submitted for inclusion in the FAST program under this
subsection to provide services in any one State in any 1
fiscal year.
``(D) Process.--Proposals and applications for assistance
under this subsection shall be in such form and subject to
such procedures as the Administrator shall establish. The
Administrator shall promulgate regulations establishing
standards for the consideration of proposals under
subparagraph (B), including standards regarding each of the
considerations identified in subparagraph (B)(ii).
``(4) Cooperation and coordination.--In carrying out the
FAST program, the Administrator shall cooperate and
coordinate with--
``(A) Federal agencies required by this section to have an
SBIR program; and
``(B) entities, organizations, and individuals actively
engaged in enhancing or developing the technological
capabilities of small business concerns, including--
``(i) State and local development agencies and entities;
``(ii) State committees established under the Experimental
Program to Stimulate Competitive Research of the National
Science Foundation (as established under section 113 of the
National Science Foundation Authorization Act of 1988 (42
U.S.C. 1862g));
``(iii) State science and technology councils; and
``(iv) representatives of technology-based small business
concerns.
``(5) Administrative requirements.--
``(A) Competitive basis.--Awards and cooperative agreements
under this subsection shall be made or entered into, as
applicable, on a competitive basis.
``(B) Matching requirements.--
``(i) In general.--The non-Federal share of the cost of an
activity (other than a planning activity) carried out using
an award or under a cooperative agreement under this
subsection shall be--
``(I) except as provided in clause (iii), 35 cents for each
Federal dollar, in the case of a recipient that will serve
small business concerns located in 1 of the 18 States
receiving the fewest Phase I SBIR awards;
``(II) except as provided in clause (ii) or (iii), 1 dollar
for each Federal dollar, in the case of a recipient that will
serve small business concerns located in 1 of the 16 States
receiving the greatest number of Phase I SBIR awards; and
``(III) except as provided in clause (ii) or (iii), 50
cents for each Federal dollar, in the case of a recipient
that will serve small business concerns located in a State
that is not described in subclause (I) or (II) that is
receiving Phase I SBIR awards.
``(ii) Low-income areas.--The non-Federal share of the cost
of the activity carried out using an award or under a
cooperative agreement under this subsection shall be 35 cents
for each Federal dollar that will be directly allocated by a
recipient described in clause (i) to serve small business
concerns located in a qualified census tract, as that term is
defined in section 42(d)(5)(B)(ii)(I) of the Internal Revenue
Code of 1986. Federal dollars not so allocated by that
recipient shall be subject to the matching requirements of
clause (i).
``(iii) Rural areas.--
``(I) In general.--Except as provided in subclause (II),
the non-Federal share of the cost of the activity carried out
using an award or under a cooperative agreement under this
subsection shall be 35 cents for each Federal dollar that
will be directly allocated by a recipient described in clause
(i) to serve small business concerns located in a rural area.
``(II) Enhanced rural awards.--For a recipient located in a
rural area that is located in a State described in clause
(i)(I), the non-Federal share of the cost of the activity
carried out using an award or under a cooperative agreement
under this subsection shall be 15 cents for each Federal
dollar that will be directly allocated by a recipient
described in clause (i) to serve small business concerns
located in the rural area.
``(III) Definition of rural area.--In this clause, the term
`rural area' has the meaning given that term in section
1393(a)(2) of the Internal Revenue Code of 1986.
``(iv) Types of funding.--The non-Federal share of the cost
of an activity carried out by a recipient shall be comprised
of not less than 50 percent cash and not more than 50 percent
of indirect costs and in-kind contributions, except that no
such costs or contributions may be derived from funds from
any other Federal program.
``(v) Rankings.--For the first full fiscal year after the
date of enactment of the SBIR/STTR Reauthorization Act of
2011, and each fiscal year thereafter, based on the
statistics for the most recent full fiscal year for which the
Administrator has compiled statistics, the Administrator
shall reevaluate the ranking of each State for purposes of
clause (i).
``(C) Duration.--Awards may be made or cooperative
agreements entered into under this subsection for multiple
years, not to exceed 5 years in total.
``(6) Annual reports.--The Administrator shall submit an
annual report to the Committee on Small Business of the
Senate and the Committee on Science and the Committee on
Small Business of the House of Representatives regarding--
``(A) the number and amount of awards provided and
cooperative agreements entered into under the FAST program
during the preceding year;
``(B) a list of recipients under this subsection, including
their location and the activities being performed with the
awards made or under the cooperative agreements entered into;
and
``(C) the Mentoring Networks and the mentoring database, as
provided for under section 34, including--
``(i) the status of the inclusion of mentoring information
in the database required by subsection (k); and
``(ii) the status of the implementation and description of
the usage of the Mentoring Networks.
``(7) Program levels.--
``(A) In general.--There is authorized to be appropriated
to carry out the FAST program, including Mentoring Networks,
under this subsection and section 34, $15,000,000 for each of
fiscal years 2011 through 2016.
``(B) Mentoring database.--Of the total amount made
available under subparagraph (A) for fiscal years 2011
through 2016, a reasonable amount, not to exceed a total of
$500,000, may be used by the Administration to carry out
section 34(d).
``(8) Termination.--The authority to carry out the FAST
program under this subsection shall terminate on September
30, 2016.''.
(b) Technical and Conforming Amendments.--The Small
Business Act (15 U.S.C. 631 et seq.) is amended--
(1) by striking section 34 (15 U.S.C. 657d);
(2) by redesignating sections 35 through 43 as sections 34
through 42, respectively;
(3) in section 9(k)(1)(D) (15 U.S.C. 638(k)(1)(D)), by
striking ``section 35(d)'' and inserting ``section 34(d)'';
(4) in section 34 (15 U.S.C. 657e), as so redesignated--
(A) in subsection (c)(1), by striking ``section
34(c)(1)(E)(ii)'' and inserting ``section
9(s)(3)(A)(v)(II)'';
(B) by striking ``section 34'' each place it appears and
inserting ``section 9(s)''; and
(C) by adding at the end the following:
``(e) Definitions.--In this section, the following
definitions apply:
``(1) Business advice and counseling.--The term `business
advice and counseling' means providing advice and assistance
on matters described in subsection (c)(2)(B) to small
business concerns to guide them through the SBIR and STTR
program process, from application to award and successful
completion of each phase of the program.
``(2) FAST program.--The term `FAST program' means the
Federal and State Technology Partnership Program established
under section 9(s).
``(3) Mentor.--The term `mentor' means an individual
described in subsection (c)(2).
``(4) Mentoring network.--The term `Mentoring Network'
means an association, organization, coalition, or other
entity (including an individual) that meets the requirements
of subsection (c).
``(5) Recipient.--The term `recipient' means a person that
receives an award or becomes party to a cooperative agreement
under this section.
``(6) SBIR program.--The term `SBIR program' has the same
meaning as in section 9(e)(4).
``(7) State.--The term `State' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, and American Samoa.
``(8) STTR program.--The term `STTR program' has the same
meaning as in section 9(e)(6).'';
(5) in section 36(d) (15 U.S.C. 657i(d)), as so
redesignated, by striking ``section 43'' and inserting
``section 42'';
(6) in section 39(d) (15 U.S.C. 657l(d)), as so
redesignated, by striking ``section 43'' and inserting
``section 42''; and
(7) in section 40(b) (15 U.S.C. 657m(b)), as so
redesignated, by striking ``section 43'' and inserting
``section 42''.
[[Page S7976]]
SEC. 5202. TECHNICAL ASSISTANCE FOR AWARDEES.
Section 9(q) of the Small Business Act (15 U.S.C. 638(q))
is amended--
(1) in paragraph (1)--
(A) by inserting ``or STTR program'' after ``SBIR
program''; and
(B) by striking ``SBIR projects'' and inserting ``SBIR or
STTR projects'';
(2) in paragraph (2), by striking ``3 years'' and inserting
``5 years''; and
(3) in paragraph (3)--
(A) in subparagraph (A)--
(i) by inserting ``or STTR'' after ``SBIR''; and
(ii) by striking ``$4,000'' and inserting ``$5,000'';
(B) by striking subparagraph (B) and inserting the
following:
``(B) Phase ii.--A Federal agency described in paragraph
(1) may--
``(i) provide to the recipient of a Phase II SBIR or STTR
award, through a vendor selected under paragraph (2), the
services described in paragraph (1), in an amount equal to
not more than $5,000 per year; or
``(ii) authorize the recipient of a Phase II SBIR or STTR
award to purchase the services described in paragraph (1), in
an amount equal to not more than $5,000 per year, which shall
be in addition to the amount of the recipient's award.''; and
(C) by adding at the end the following:
``(C) Flexibility.--In carrying out subparagraphs (A) and
(B), each Federal agency shall provide the allowable amounts
to a recipient that meets the eligibility requirements under
the applicable subparagraph, if the recipient requests to
seek technical assistance from an individual or entity other
than the vendor selected under paragraph (2) by the Federal
agency.
``(D) Limitation.--A Federal agency may not--
``(i) use the amounts authorized under subparagraph (A) or
(B) unless the vendor selected under paragraph (2) provides
the technical assistance to the recipient; or
``(ii) enter a contract with a vendor under paragraph (2)
under which the amount provided for technical assistance is
based on total number of Phase I or Phase II awards.''.
SEC. 5203. COMMERCIALIZATION READINESS PROGRAM AT DEPARTMENT
OF DEFENSE.
(a) In General.--Section 9(y) of the Small Business Act (15
U.S.C. 638(y)) is amended--
(1) in the subsection heading, by striking ``Pilot'' and
inserting ``Readiness'';
(2) by striking ``Pilot'' each place that term appears and
inserting ``Readiness'';
(3) in paragraph (1)--
(A) by inserting ``or Small Business Technology Transfer
Program'' after ``Small Business Innovation Research
Program''; and
(B) by adding at the end the following: ``The authority to
create and administer a Commercialization Readiness Program
under this subsection may not be construed to eliminate or
replace any other SBIR program or STTR program that enhances
the insertion or transition of SBIR or STTR technologies,
including any such program in effect on the date of enactment
of the National Defense Authorization Act for Fiscal Year
2006 (Public Law 109-163; 119 Stat. 3136).'';
(4) in paragraph (2), by inserting ``or Small Business
Technology Transfer Program'' after ``Small Business
Innovation Research Program'';
(5) by striking paragraphs (5) and (6); and
(6) by inserting after paragraph (4) the following:
``(5) Insertion incentives.--For any contract with a value
of not less than $100,000,000, the Secretary of Defense is
authorized to--
``(A) establish goals for the transition of Phase III
technologies in subcontracting plans; and
``(B) require a prime contractor on such a contract to
report the number and dollar amount of contracts entered into
by that prime contractor for Phase III SBIR or STTR projects.
``(6) Goal for sbir and sttr technology insertion.--The
Secretary of Defense shall--
``(A) set a goal to increase the number of Phase II SBIR
contracts and the number of Phase II STTR contracts awarded
by that Secretary that lead to technology transition into
programs of record or fielded systems;
``(B) use incentives in effect on the date of enactment of
the SBIR/STTR Reauthorization Act of 2011, or create new
incentives, to encourage agency program managers and prime
contractors to meet the goal under subparagraph (A); and
``(C) include in the annual report to Congress the
percentage of contracts described in subparagraph (A) awarded
by that Secretary, and information on the ongoing status of
projects funded through the Commercialization Readiness
Program and efforts to transition these technologies into
programs of record or fielded systems.''.
(b) Technical and Conforming Amendment.--Section 9(i)(1) of
the Small Business Act (15 U.S.C. 638(i)(1)) is amended by
inserting ``(including awards under subsection (y))'' after
``the number of awards''.
SEC. 5204. COMMERCIALIZATION READINESS PILOT PROGRAM FOR
CIVILIAN AGENCIES.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(ff) Pilot Program.--
``(1) Authorization.--The head of each covered Federal
agency may allocate not more than 10 percent of the funds
allocated to the SBIR program and the STTR program of the
covered Federal agency--
``(A) for awards for technology development, testing, and
evaluation of SBIR and STTR Phase II technologies; or
``(B) to support the progress of research or research and
development conducted under the SBIR or STTR programs to
Phase III.
``(2) Application by federal agency.--
``(A) In general.--A covered Federal agency may not
establish a pilot program unless the covered Federal agency
makes a written application to the Administrator, not later
than 90 days before to the first day of the fiscal year in
which the pilot program is to be established, that describes
a compelling reason that additional investment in SBIR or
STTR technologies is necessary, including unusually high
regulatory, systems integration, or other costs relating to
development or manufacturing of identifiable, highly
promising small business technologies or a class of such
technologies expected to substantially advance the mission of
the agency.
``(B) Determination.--The Administrator shall--
``(i) make a determination regarding an application
submitted under subparagraph (A) not later than 30 days
before the first day of the fiscal year for which the
application is submitted;
``(ii) publish the determination in the Federal Register;
and
``(iii) make a copy of the determination and any related
materials available to the Committee on Small Business and
Entrepreneurship of the Senate and the Committee on Small
Business of the House of Representatives.
``(3) Maximum amount of award.--The head of a covered
Federal agency may not make an award under a pilot program in
excess of 3 times the dollar amounts generally established
for Phase II awards under subsection (j)(2)(D) or
(p)(2)(B)(ix).
``(4) Registration.--Any applicant that receives an award
under a pilot program shall register with the Administrator
in a registry that is available to the public.
``(5) Report.--The head of each covered Federal agency
shall include in the annual report of the covered Federal
agency to the Administrator an analysis of the various
activities considered for inclusion in the pilot program of
the covered Federal agency and a statement of the reasons why
each activity considered was included or not included, as the
case may be.
``(6) Termination.--The authority to establish a pilot
program under this section expires at the end of fiscal year
2014.
``(7) Definitions.--In this subsection--
``(A) the term `covered Federal agency'--
``(i) means a Federal agency participating in the SBIR
program or the STTR program; and
``(ii) does not include the Department of Defense; and
``(B) the term `pilot program' means the program
established under paragraph (1).''.
SEC. 5205. ACCELERATING CURES.
(a) In General.--The Small Business Act (15 U.S.C. 631 et
seq.) is amended by inserting after section 42, as
redesignated by section 5201 of this Act, the following:
``SEC. 43. SMALL BUSINESS INNOVATION RESEARCH PROGRAM.
``(a) NIH Cures Pilot.--
``(1) Establishment.--An independent advisory board shall
be established at the National Academy of Sciences (in this
section referred to as the `advisory board') to conduct
periodic evaluations of the SBIR program (as that term is
defined in section 9) of each of the National Institutes of
Health (referred to in this section as the `NIH') institutes
and centers for the purpose of improving the management of
the SBIR program through data-driven assessment.
``(2) Membership.--
``(A) In general.--The advisory board shall consist of--
``(i) the Director of the NIH;
``(ii) the Director of the SBIR program of the NIH;
``(iii) senior NIH agency managers, selected by the
Director of NIH;
``(iv) industry experts, selected by the Council of the
National Academy of Sciences in consultation with the
Associate Administrator for Technology of the Administration
and the Director of the Office of Science and Technology
Policy; and
``(v) owners or operators of small business concerns that
have received an award under the SBIR program of the NIH,
selected by the Associate Administrator for Technology of the
Administration.
``(B) Number of members.--The total number of members
selected under clauses (iii), (iv), and (v) of subparagraph
(A) shall not exceed 10.
``(C) Equal representation.--The total number of members of
the advisory board selected under clauses (i), (ii), (iii),
and (iv) of subparagraph (A) shall be equal to the number of
members of the advisory board selected under subparagraph
(A)(v).
``(b) Addressing Data Gaps.--In order to enhance the
evidence-base guiding SBIR program decisions and changes, the
Director of the SBIR program of the NIH shall address the
gaps and deficiencies in the data collection concerns
identified in the 2007 report of the National Academy of
Science entitled `An Assessment of the Small Business
Innovation Research Program at the NIH'.
``(c) Pilot Program.--
[[Page S7977]]
``(1) In general.--The Director of the SBIR program of the
NIH may initiate a pilot program, under a formal mechanism
for designing, implementing, and evaluating pilot programs,
to spur innovation and to test new strategies that may
enhance the development of cures and therapies.
``(2) Considerations.--The Director of the SBIR program of
the NIH may consider conducting a pilot program to include
individuals with successful SBIR program experience in study
sections, hiring individuals with small business development
experience for staff positions, separating the commercial and
scientific review processes, and examining the impact of the
trend toward larger awards on the overall program.
``(d) Report to Congress.--The Director of the NIH shall
submit an annual report to Congress and the advisory board on
the activities of the SBIR program of the NIH under this
section.
``(e) SBIR Grants and Contracts.--
``(1) In general.--In awarding grants and contracts under
the SBIR program of the NIH each SBIR program manager shall
emphasize applications that identify products, processes,
technologies, and services that may enhance the development
of cures and therapies.
``(2) Examination of commercialization and other metrics.--
The advisory board shall evaluate the implementation of the
requirement under paragraph (1) by examining increased
commercialization and other metrics, to be determined and
collected by the SBIR program of the NIH.
``(3) Phase i and ii.--To the greatest extent practicable,
the Director of the SBIR program of the NIH shall reduce the
time period between Phase I and Phase II funding of grants
and contracts under the SBIR program of the NIH to 90 days.
``(f) Limit.--Not more than a total of 1 percent of the
extramural budget (as defined in section 9 of the Small
Business Act (15 U.S.C. 638)) of the NIH for research or
research and development may be used for the pilot program
under subsection (c) and to carry out subsection (e).''.
(b) Prospective Repeal.--Effective 5 years after the date
of enactment of this Act, the Small Business Act (15 U.S.C.
631 et seq.) is amended--
(1) by striking section 43, as added by subsection (a); and
(2) by redesignating sections 44 and 45 as sections 43 and
44, respectively.
SEC. 5206. FEDERAL AGENCY ENGAGEMENT WITH SBIR AND STTR
AWARDEES THAT HAVE BEEN AWARDED MULTIPLE PHASE
I AWARDS BUT HAVE NOT BEEN AWARDED PHASE II
AWARDS.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(gg) Requirements Relating to Federal Agency Engagement
With Certain Phase I SBIR and STTR Awardees.--
``(1) Definition.--In this subsection, the term `covered
awardee' means a small business concern that--
``(A) has received multiple Phase I awards over multiple
years, as determined by the head of a Federal agency, under
the SBIR program or the STTR program of the Federal agency;
and
``(B) has not received a Phase II award--
``(i) under the SBIR program or STTR program, as the case
may be, of the Federal agency described in subparagraph (A);
or
``(ii) relating to a Phase I award described in
subparagraph (A) under the SBIR program or the STTR program
of another Federal agency.
``(2) Performance measures.--The head of each Federal
agency that participates in the SBIR program or the STTR
program shall develop performance measures for any covered
awardee relating to commercializing research or research and
development activities under the SBIR program or the STTR
program of the Federal agency.''.
SEC. 5207. CLARIFYING THE DEFINITION OF ``PHASE III''.
(a) Phase III Awards.--Section 9(e) of the Small Business
Act (15 U.S.C. 638(e)) is amended--
(1) in paragraph (4)(C), in the matter preceding clause
(i), by inserting ``for work that derives from, extends, or
completes efforts made under prior funding agreements under
the SBIR program'' after ``phase'';
(2) in paragraph (6)(C), in the matter preceding clause
(i), by inserting ``for work that derives from, extends, or
completes efforts made under prior funding agreements under
the STTR program'' after ``phase'';
(3) in paragraph (8), by striking ``and'' at the end;
(4) in paragraph (9), by striking the period at the end and
inserting a semicolon; and
(5) by adding at the end the following:
``(10) the term `commercialization' means--
``(A) the process of developing products, processes,
technologies, or services; and
``(B) the production and delivery of products, processes,
technologies, or services for sale (whether by the
originating party or by others) to or use by the Federal
Government or commercial markets;''.
(b) Technical and Conforming Amendments.--The Small
Business Act (15 U.S.C. 631 et seq.) is amended--
(1) in section 9 (15 U.S.C. 638)--
(A) in subsection (e)--
(i) in paragraph (4)(C)(ii), by striking ``scientific
review criteria'' and inserting ``merit-based selection
procedures'';
(ii) in paragraph (9), by striking ``the second or the
third phase'' and inserting ``Phase II or Phase III''; and
(iii) by adding at the end the following:
``(11) the term `Phase I' means--
``(A) with respect to the SBIR program, the first phase
described in paragraph (4)(A); and
``(B) with respect to the STTR program, the first phase
described in paragraph (6)(A);
``(12) the term `Phase II' means--
``(A) with respect to the SBIR program, the second phase
described in paragraph (4)(B); and
``(B) with respect to the STTR program, the second phase
described in paragraph (6)(B); and
``(13) the term `Phase III' means--
``(A) with respect to the SBIR program, the third phase
described in paragraph (4)(C); and
``(B) with respect to the STTR program, the third phase
described in paragraph (6)(C).'';
(B) in subsection (j)--
(i) in paragraph (1)(B), by striking ``phase two'' and
inserting ``Phase II'';
(ii) in paragraph (2)--
(I) in subparagraph (B)--
(aa) by striking ``the third phase'' each place it appears
and inserting ``Phase III''; and
(bb) by striking ``the second phase'' and inserting ``Phase
II'';
(II) in subparagraph (D)--
(aa) by striking ``the first phase'' and inserting ``Phase
I''; and
(bb) by striking ``the second phase'' and inserting ``Phase
II'';
(III) in subparagraph (F), by striking ``the third phase''
and inserting ``Phase III'';
(IV) in subparagraph (G)--
(aa) by striking ``the first phase'' and inserting ``Phase
I''; and
(bb) by striking ``the second phase'' and inserting ``Phase
II''; and
(V) in subparagraph (H)--
(aa) by striking ``the first phase'' and inserting ``Phase
I'';
(bb) by striking ``second phase'' each place it appears and
inserting ``Phase II''; and
(cc) by striking ``third phase'' and inserting ``Phase
III''; and
(iii) in paragraph (3)--
(I) in subparagraph (A)--
(aa) by striking ``the first phase (as described in
subsection (e)(4)(A))'' and inserting ``Phase I'';
(bb) by striking ``the second phase (as described in
subsection (e)(4)(B))'' and inserting ``Phase II''; and
(cc) by striking ``the third phase (as described in
subsection (e)(4)(C))'' and inserting ``Phase III''; and
(II) in subparagraph (B), by striking ``second phase'' and
inserting ``Phase II'';
(C) in subsection (k)--
(i) by striking ``first phase'' each place it appears and
inserting ``Phase I''; and
(ii) by striking ``second phase'' each place it appears and
inserting ``Phase II'';
(D) in subsection (l)(2)--
(i) by striking ``the first phase'' and inserting ``Phase
I''; and
(ii) by striking ``the second phase'' and inserting ``Phase
II'';
(E) in subsection (o)(13)--
(i) in subparagraph (B), by striking ``second phase'' and
inserting ``Phase II''; and
(ii) in subparagraph (C), by striking ``third phase'' and
inserting ``Phase III'';
(F) in subsection (p)--
(i) in paragraph (2)(B)--
(I) in clause (vi)--
(aa) by striking ``the second phase'' and inserting ``Phase
II''; and
(bb) by striking ``the third phase'' and inserting ``Phase
III''; and
(II) in clause (ix)--
(aa) by striking ``the first phase'' and inserting ``Phase
I''; and
(bb) by striking ``the second phase'' and inserting ``Phase
II''; and
(ii) in paragraph (3)--
(I) by striking ``the first phase (as described in
subsection (e)(6)(A))'' and inserting ``Phase I'';
(II) by striking ``the second phase (as described in
subsection (e)(6)(B))'' and inserting ``Phase II''; and
(III) by striking ``the third phase (as described in
subsection (e)(6)(A))'' and inserting ``Phase III'';
(G) in subsection (q)(3)--
(i) in subparagraph (A)--
(I) in the subparagraph heading, by striking ``First
phase'' and inserting ``Phase i''; and
(II) by striking ``first phase'' and inserting ``Phase I'';
and
(ii) in subparagraph (B)--
(I) in the subparagraph heading, by striking ``Second
phase'' and inserting ``Phase ii''; and
(II) by striking ``second phase'' and inserting ``Phase
II'';
(H) in subsection (r)--
(i) in the subsection heading, by striking ``Third Phase''
and inserting ``Phase III'';
(ii) in paragraph (1)--
(I) in the first sentence--
(aa) by striking ``for the second phase'' and inserting
``for Phase II'';
(bb) by striking ``third phase'' and inserting ``Phase
III''; and
(cc) by striking ``second phase period'' and inserting
``Phase II period''; and
(II) in the second sentence--
(aa) by striking ``second phase'' and inserting ``Phase
II''; and
(bb) by striking ``third phase'' and inserting ``Phase
III''; and
(iii) in paragraph (2), by striking ``third phase'' and
inserting ``Phase III''; and
[[Page S7978]]
(I) in subsection (u)(2)(B), by striking ``the first
phase'' and inserting ``Phase I''; and
(2) in section 34(c)(2)(B)(vii) (15 U.S.C.
657e(c)(2)(B)(vii)), as redesignated by section 5201 of this
Act, by striking ``third phase'' and inserting ``Phase III''.
SEC. 5208. SHORTENED PERIOD FOR FINAL DECISIONS ON PROPOSALS
AND APPLICATIONS.
(a) In General.--Section 9 of the Small Business Act (15
U.S.C. 638) is amended--
(1) in subsection (g)(4)--
(A) by inserting ``(A)'' after ``(4)'';
(B) by adding ``and'' after the semicolon at the end; and
(C) by adding at the end the following:
``(B) make a final decision on each proposal submitted
under the SBIR program--
``(i) not later than 90 days after the date on which the
solicitation closes; or
``(ii) if the Administrator authorizes an extension for a
solicitation, not later than 180 days after the date on which
the solicitation closes;''; and
(2) in subsection (o)(4)--
(A) by inserting ``(A)'' after ``(4)'';
(B) by adding ``and'' after the semicolon at the end; and
(C) by adding at the end the following:
``(B) make a final decision on each proposal submitted
under the STTR program--
``(i) not later than 90 days after the date on which the
solicitation closes; or
``(ii) if the Administrator authorizes an extension for a
solicitation, not later than 180 days after the date on which
the solicitation closes;''.
(b) NIH Peer Review Process.--
(1) In general.--Section 9 of the Small Business Act (15
U.S.C. 638), as amended by this Act, is amended by adding at
the end the following:
``(hh) NIH Peer Review Process.--The Director of the
National Institutes of Health may make an award under the
SBIR program or the STTR program of the National Institutes
of Health if the application for the award has undergone
technical and scientific peer review under section 492 of the
Public Health Service Act (42 U.S.C. 289a).''.
(2) Technical and conforming amendments.--Section 105 of
the National Institutes of Health Reform Act of 2006 (42
U.S.C. 284n) is amended--
(A) in subsection (a)(3)--
(i) by striking ``A grant'' and inserting ``Except as
provided in section 9(hh) of the Small Business Act (15
U.S.C. 638(hh)), a grant''; and
(ii) by striking ``section 402(k)'' and all that follows
through ``Act)'' and inserting ``section 402(l) of such
Act''; and
(B) in subsection (b)(5)--
(i) by striking ``A grant'' and inserting ``Except as
provided in section 9(hh) of the Small Business Act (15
U.S.C. 638(hh)), a grant''; and
(ii) by striking ``section 402(k)'' and all that follows
through ``Act)'' and inserting ``section 402(l) of such
Act''.
TITLE LIII--OVERSIGHT AND EVALUATION
SEC. 5301. STREAMLINING ANNUAL EVALUATION REQUIREMENTS.
Section 9(b) of the Small Business Act (15 U.S.C. 638(b)),
as amended by section 5102 of this Act, is amended--
(1) in paragraph (7)--
(A) by striking ``STTR programs, including the data'' and
inserting the following: ``STTR programs, including--
``(A) the data'';
(B) by striking ``(g)(10), (o)(9), and (o)(15), the
number'' and all that follows through ``under each of the
SBIR and STTR programs, and a description'' and inserting the
following: ``(g)(8) and (o)(9); and
``(B) the number of proposals received from, and the number
and total amount of awards to, HUBZone small business
concerns and firms with venture capital investment (including
those majority-owned by multiple venture capital operating
companies) under each of the SBIR and STTR programs;
``(C) a description of the extent to which each Federal
agency is increasing outreach and awards to firms owned and
controlled by women and social or economically disadvantaged
individuals under each of the SBIR and STTR programs;
``(D) general information about the implementation of, and
compliance with the allocation of funds required under,
subsection (cc) for firms owned in majority part by venture
capital operating companies and participating in the SBIR
program;
``(E) a detailed description of appeals of Phase III awards
and notices of noncompliance with the SBIR Policy Directive
and the STTR Policy Directive filed by the Administrator with
Federal agencies; and
``(F) a description''; and
(2) by inserting after paragraph (7) the following:
``(8) to coordinate the implementation of electronic
databases at each of the Federal agencies participating in
the SBIR program or the STTR program, including the technical
ability of the participating agencies to electronically share
data;''.
SEC. 5302. DATA COLLECTION FROM AGENCIES FOR SBIR.
Section 9(g) of the Small Business Act (15 U.S.C. 638(g))
is amended--
(1) by striking paragraph (10);
(2) by redesignating paragraphs (8) and (9) as paragraphs
(9) and (10), respectively; and
(3) by inserting after paragraph (7) the following:
``(8) collect annually, and maintain in a common format in
accordance with the simplified reporting requirements under
subsection (v), such information from awardees as is
necessary to assess the SBIR program, including information
necessary to maintain the database described in subsection
(k), including--
``(A) whether an awardee--
``(i) has venture capital or is majority-owned by multiple
venture capital operating companies, and, if so--
``(I) the amount of venture capital that the awardee has
received as of the date of the award; and
``(II) the amount of additional capital that the awardee
has invested in the SBIR technology;
``(ii) has an investor that--
``(I) is an individual who is not a citizen of the United
States or a lawful permanent resident of the United States,
and if so, the name of any such individual; or
``(II) is a person that is not an individual and is not
organized under the laws of a State or the United States, and
if so the name of any such person;
``(iii) is owned by a woman or has a woman as a principal
investigator;
``(iv) is owned by a socially or economically disadvantaged
individual or has a socially or economically disadvantaged
individual as a principal investigator;
``(v) received assistance under the FAST program under
section 34, as in effect on the day before the date of
enactment of the SBIR/STTR Reauthorization Act of 2011, or
the outreach program under subsection (s);
``(vi) is a faculty member or a student of an institution
of higher education, as that term is defined in section 101
of the Higher Education Act of 1965 (20 U.S.C. 1001); or
``(vii) is located in a State described in subsection
(u)(3); and
``(B) a justification statement from the agency, if an
awardee receives an award in an amount that is more than the
award guidelines under this section;''.
SEC. 5303. DATA COLLECTION FROM AGENCIES FOR STTR.
Section 9(o) of the Small Business Act (15 U.S.C. 638(o))
is amended by striking paragraph (9) and inserting the
following:
``(9) collect annually, and maintain in a common format in
accordance with the simplified reporting requirements under
subsection (v), such information from applicants and awardees
as is necessary to assess the STTR program outputs and
outcomes, including information necessary to maintain the
database described in subsection (k), including--
``(A) whether an applicant or awardee--
``(i) has venture capital or is majority-owned by multiple
venture capital operating companies, and, if so--
``(I) the amount of venture capital that the applicant or
awardee has received as of the date of the application or
award, as applicable; and
``(II) the amount of additional capital that the applicant
or awardee has invested in the SBIR technology;
``(ii) has an investor that--
``(I) is an individual who is not a citizen of the United
States or a lawful permanent resident of the United States,
and if so, the name of any such individual; or
``(II) is a person that is not an individual and is not
organized under the laws of a State or the United States, and
if so the name of any such person;
``(iii) is owned by a woman or has a woman as a principal
investigator;
``(iv) is owned by a socially or economically disadvantaged
individual or has a socially or economically disadvantaged
individual as a principal investigator;
``(v) received assistance under the FAST program under
section 34 or the outreach program under subsection (s);
``(vi) is a faculty member or a student of an institution
of higher education, as that term is defined in section 101
of the Higher Education Act of 1965 (20 U.S.C. 1001); or
``(vii) is located in a State in which the total value of
contracts awarded to small business concerns under all STTR
programs is less than the total value of contracts awarded to
small business concerns in a majority of other States, as
determined by the Administrator in biennial fiscal years,
beginning with fiscal year 2008, based on the most recent
statistics compiled by the Administrator; and
``(B) if an awardee receives an award in an amount that is
more than the award guidelines under this section, a
statement from the agency that justifies the award amount;''.
SEC. 5304. PUBLIC DATABASE.
Section 9(k)(1) of the Small Business Act (15 U.S.C.
638(k)(1)) is amended--
(1) in subparagraph (D), by striking ``and'' at the end;
(2) in subparagraph (E), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(F) for each small business concern that has received a
Phase I or Phase II SBIR or STTR award from a Federal agency,
whether the small business concern--
``(i) has venture capital and, if so, whether the small
business concern is registered as majority-owned by multiple
venture capital operating companies as required under
subsection (cc)(4);
``(ii) is owned by a woman or has a woman as a principal
investigator;
``(iii) is owned by a socially or economically
disadvantaged individual or has a socially or economically
disadvantaged individual as a principal investigator;
``(iv) received assistance under the FAST program under
section 34, as in effect on the day before the date of
enactment of the
[[Page S7979]]
SBIR/STTR Reauthorization Act of 2011, or the outreach
program under subsection (s); or
``(v) is owned by a faculty member or a student of an
institution of higher education, as that term is defined in
section 101 of the Higher Education Act of 1965 (20 U.S.C.
1001).''.
SEC. 5305. GOVERNMENT DATABASE.
Section 9(k) of the Small Business Act (15 U.S.C. 638(k))
is amended--
(1) in paragraph (2)--
(A) in the matter preceding subparagraph (A), by striking
``Not later'' and all that follows through ``Act of 2000''
and inserting ``Not later than 90 days after the date of
enactment of the SBIR/STTR Reauthorization Act of 2011'';
(B) by striking subparagraph (C);
(C) by redesignating subparagraphs (A) and (B) as
subparagraphs (B) and (C), respectively;
(D) by inserting before subparagraph (B), as so
redesignated, the following:
``(A) contains, for each small business concern that
applies for, submits a proposal for, or receives an award
under Phase I or Phase II of the SBIR program or the STTR
program--
``(i) the name, size, and location, and an identifying
number assigned by the Administration of the small business
concern;
``(ii) an abstract of the project;
``(iii) the specific aims of the project;
``(iv) the number of employees of the small business
concern;
``(v) the names of key individuals that will carry out the
project;
``(vi) the percentage of effort each individual described
in clause (iv) will contribute to the project;
``(vii) whether the small business concern is majority-
owned by multiple venture capital operating companies; and
``(viii) the Federal agency to which the application is
made, and contact information for the person or office within
the Federal agency that is responsible for reviewing
applications and making awards under the SBIR program or the
STTR program;'';
(E) by redesignating subparagraphs (D), and (E) as
subparagraphs (E) and (F), respectively;
(F) by inserting after subparagraph (C), as so
redesignated, the following:
``(D) includes, for each awardee--
``(i) the name, size, location, and any identifying number
assigned to the awardee by the Administrator;
``(ii) whether the awardee has venture capital, and, if
so--
``(I) the amount of venture capital as of the date of the
award;
``(II) the percentage of ownership of the awardee held by a
venture capital operating company, including whether the
awardee is majority-owned by multiple venture capital
operating companies; and
``(III) the amount of additional capital that the awardee
has invested in the SBIR technology, which information shall
be collected on an annual basis;
``(iii) the names and locations of any affiliates of the
awardee;
``(iv) the number of employees of the awardee;
``(v) the number of employees of the affiliates of the
awardee; and
``(vi) the names of, and the percentage of ownership of the
awardee held by--
``(I) any individual who is not a citizen of the United
States or a lawful permanent resident of the United States;
or
``(II) any person that is not an individual and is not
organized under the laws of a State or the United States;'';
(G) in subparagraph (E), as so redesignated, by striking
``and'' at the end;
(H) in subparagraph (F), as so redesignated, by striking
the period at the end and inserting ``; and''; and
(I) by adding at the end the following:
``(G) includes a timely and accurate list of any individual
or small business concern that has participated in the SBIR
program or STTR program that has committed fraud, waste, or
abuse relating to the SBIR program or STTR program.''; and
(2) in paragraph (3), by adding at the end the following:
``(C) Government database.--Not later than 60 days after
the date established by a Federal agency for submitting
applications or proposals for a Phase I or Phase II award
under the SBIR program or STTR program, the head of the
Federal agency shall submit to the Administrator the data
required under paragraph (2) with respect to each small
business concern that applies or submits a proposal for the
Phase I or Phase II award.''.
SEC. 5306. ACCURACY IN FUNDING BASE CALCULATIONS.
(a) In General.--Not later than 1 year after the date of
enactment of this Act, and every year thereafter until the
date that is 5 years after the date of enactment of this Act,
the Comptroller General of the United States shall--
(1) conduct a fiscal and management audit of the SBIR
program and the STTR program for the applicable period to--
(A) determine whether Federal agencies comply with the
expenditure amount requirements under subsections (f)(1) and
(n)(1) of section 9 of the Small Business Act (15 U.S.C.
638), as amended by this Act;
(B) assess the extent of compliance with the requirements
of section 9(i)(2) of the Small Business Act (15 U.S.C.
638(i)(2)) by Federal agencies participating in the SBIR
program or the STTR program and the Administration;
(C) assess whether it would be more consistent and
effective to base the amount of the allocations under the
SBIR program and the STTR program on a percentage of the
research and development budget of a Federal agency, rather
than the extramural budget of the Federal agency; and
(D) determine the portion of the extramural research or
research and development budget of a Federal agency that each
Federal agency spends for administrative purposes relating to
the SBIR program or STTR program, and for what specific
purposes, including the portion, if any, of such budget the
Federal agency spends for salaries and expenses, travel to
visit applicants, outreach events, marketing, and technical
assistance; and
(2) submit a report to the Committee on Small Business and
Entrepreneurship of the Senate and the Committee on Small
Business of the House of Representatives regarding the audit
conducted under paragraph (1), including the assessments
required under subparagraphs (B) and (C), and the
determination made under subparagraph (D) of paragraph (1).
(b) Definition of Applicable Period.--In this section, the
term ``applicable period'' means--
(1) for the first report submitted under this section, the
period beginning on October 1, 2005, and ending on September
30 of the last full fiscal year before the date of enactment
of this Act for which information is available; and
(2) for the second and each subsequent report submitted
under this section, the period--
(A) beginning on October 1 of the first fiscal year after
the end of the most recent full fiscal year relating to which
a report under this section was submitted; and
(B) ending on September 30 of the last full fiscal year
before the date of the report.
SEC. 5307. CONTINUED EVALUATION BY THE NATIONAL ACADEMY OF
SCIENCES.
Section 108 of the Small Business Reauthorization Act of
2000 (15 U.S.C. 638 note) is amended by adding at the end the
following:
``(e) Extensions and Enhancements of Authority.--
``(1) In general.--Not later than 6 months after the date
of enactment of the SBIR/STTR Reauthorization Act of 2011,
the head of each agency described in subsection (a), in
consultation with the Small Business Administration, shall
cooperatively enter into an agreement with the National
Academy of Sciences for the National Research Council to, not
later than 4 years after the date of enactment of the SBIR/
STTR Reauthorization Act of 2011, and every 4 years
thereafter--
``(A) continue the most recent study under this section
relating to--
``(i) the issues described in subparagraphs (A), (B), (C),
and (E) of subsection (a)(1); and
``(ii) the effectiveness of the government and public
databases described in section 9(k) of the Small Business Act
(15 U.S.C. 638(k)) in reducing vulnerabilities of the SBIR
program and the STTR program to fraud, waste, and abuse,
particularly with respect to Federal agencies funding
duplicative proposals and business concerns falsifying
information in proposals;
``(B) make recommendations with respect to the issues
described in subparagraph (A)(ii) and subparagraphs (A), (D),
and (E) of subsection (a)(2); and
``(C) estimate, to the extent practicable, the number of
jobs created by the SBIR program or STTR program of the
agency.
``(2) Consultation.--An agreement under paragraph (1) shall
require the National Research Council to ensure there is
participation by and consultation with the small business
community, the Administration, and other interested parties
as described in subsection (b).
``(3) Reporting.--An agreement under paragraph (1) shall
require that not later than 4 years after the date of
enactment of the SBIR/STTR Reauthorization Act of 2011, and
every 4 years thereafter, the National Research Council shall
submit to the head of the agency entering into the agreement,
the Committee on Small Business and Entrepreneurship of the
Senate, and the Committee on Small Business of the House of
Representatives a report regarding the study conducted under
paragraph (1) and containing the recommendations described in
paragraph (1).''.
SEC. 5308. TECHNOLOGY INSERTION REPORTING REQUIREMENTS.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(ii) Phase III Reporting.--The annual SBIR or STTR report
to Congress by the Administration under subsection (b)(7)
shall include, for each Phase III award made by the Federal
agency--
``(1) the name of the agency or component of the agency or
the non-Federal source of capital making the Phase III award;
``(2) the name of the small business concern or individual
receiving the Phase III award; and
``(3) the dollar amount of the Phase III award.''.
SEC. 5309. INTELLECTUAL PROPERTY PROTECTIONS.
(a) In General.--The Comptroller General of the United
States shall conduct a study of the SBIR program to assess
whether--
(1) Federal agencies comply with the data rights
protections for SBIR awardees and the
[[Page S7980]]
technologies of SBIR awardees under section 9 of the Small
Business Act (15 U.S.C. 638);
(2) the laws and policy directives intended to clarify the
scope of data rights, including in prototypes and mentor-
protege relationships and agreements with Federal
laboratories, are sufficient to protect SBIR awardees; and
(3) there is an effective grievance tracking process for
SBIR awardees who have grievances against a Federal agency
regarding data rights and a process for resolving those
grievances.
(b) Report.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General shall submit
to the Committee on Small Business and Entrepreneurship of
the Senate and the Committee on Small Business of the House
of Representatives a report regarding the study conducted
under subsection (a).
SEC. 5310. OBTAINING CONSENT FROM SBIR AND STTR APPLICANTS TO
RELEASE CONTACT INFORMATION TO ECONOMIC
DEVELOPMENT ORGANIZATIONS.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(jj) Consent To Release Contact Information to
Organizations.--
``(1) Enabling concern to give consent.--Each Federal
agency required by this section to conduct an SBIR program or
an STTR program shall enable a small business concern that is
an SBIR applicant or an STTR applicant to indicate to the
Federal agency whether the Federal agency has the consent of
the concern to--
``(A) identify the concern to appropriate local and State-
level economic development organizations as an SBIR applicant
or an STTR applicant; and
``(B) release the contact information of the concern to
such organizations.
``(2) Rules.--The Administrator shall establish rules to
implement this subsection. The rules shall include a
requirement that a Federal agency include in the SBIR and
STTR application a provision through which the applicant can
indicate consent for purposes of paragraph (1).''.
SEC. 5311. PILOT TO ALLOW FUNDING FOR ADMINISTRATIVE,
OVERSIGHT, AND CONTRACT PROCESSING COSTS.
(a) In General.--Section 9 of the Small Business Act (15
U.S.C. 638), as amended by this Act, is amended by adding at
the end the following:
``(kk) Assistance for Administrative, Oversight, and
Contract Processing Costs.--
``(1) In general.--Subject to paragraph (2), for the 3 full
fiscal years beginning after the date of enactment of this
subsection, the Administrator shall allow each Federal agency
required to conduct an SBIR program to use not more than 3
percent of the funds allocated to the SBIR program of the
Federal agency for--
``(A) the administration of the SBIR program or the STTR
program of the Federal agency;
``(B) the provision of outreach and technical assistance
relating to the SBIR program or STTR program of the Federal
agency, including technical assistance site visits and
personnel interviews;
``(C) the implementation of commercialization and outreach
initiatives that were not in effect on the date of enactment
of this subsection;
``(D) carrying out the program under subsection (y);
``(E) activities relating to oversight and congressional
reporting, including the waste, fraud, and abuse prevention
activities described in section 313(a)(1)(B)(ii) of the SBIR/
STTR Reauthorization Act of 2011;
``(F) targeted reviews of recipients of awards under the
SBIR program or STTR program of the Federal agency that the
head of the Federal agency determines are at high risk for
fraud, waste, or abuse, to ensure compliance with
requirements of the SBIR program or STTR program,
respectively;
``(G) the implementation of oversight and quality control
measures, including verification of reports and invoices and
cost reviews;
``(H) carrying out subsection (cc);
``(I) carrying out subsection (ff);
``(J) contract processing costs relating to the SBIR
program or STTR program of the Federal agency; and
``(K) funding for additional personnel and assistance with
application reviews.
``(2) Performance criteria.--A Federal agency may not use
funds as authorized under paragraph (1) until after the
effective date of performance criteria, which the
Administrator shall establish, to measure any benefits of
using funds as authorized under paragraph (1) and to assess
continuation of the authority under paragraph (1).
``(3) Rules.--Not later than 180 days after the date of
enactment of this subsection, the Administrator shall issue
rules to carry out this subsection.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Section 9 of the Small Business Act (15
U.S.C. 638) is amended--
(A) in subsection (f)(2)(A), as so designated by section
5103(2) of this Act, by striking ``shall not'' and all that
follows through ``make available for the purpose'' and
inserting ``shall not make available for the purpose''; and
(B) in subsection (y), as amended by section 203--
(i) by striking paragraph (4);
(ii) by redesignating paragraphs (5) and (6) as paragraphs
(4) and (5), respectively.
(2) Transitional rule.--Notwithstanding the amendments made
by paragraph (1), subsection (f)(2)(A) and (y)(4) of section
9 of the Small Business Act (15 U.S.C. 638), as in effect on
the day before the date of enactment of this Act, shall
continue to apply to each Federal agency until the effective
date of the performance criteria established by the
Administrator under subsection (kk)(2) of section 9 of the
Small Business Act, as added by subsection (a).
(3) Prospective repeal.--Effective on the first day of the
fourth full fiscal year following the date of enactment of
this Act, section 9 of the Small Business Act (15 U.S.C.
638), as amended by paragraph (1) of this section, is
amended--
(A) in subsection (f)(2)(A), by striking ``shall not make
available for the purpose'' and inserting the following:
``shall not--
``(i) use any of its SBIR budget established pursuant to
paragraph (1) for the purpose of funding administrative costs
of the program, including costs associated with salaries and
expenses; or
``(ii) make available for the purpose''; and
(B) in subsection (y)--
(i) by redesignating paragraphs (4) and (5) as paragraphs
(5) and (6), respectively; and
(ii) by inserting after paragraph (3) the following:
``(4) Funding.--
``(A) In general.--The Secretary of Defense and each
Secretary of a military department may use not more than an
amount equal to 1 percent of the funds available to the
Department of Defense or the military department pursuant to
the Small Business Innovation Research Program for payment of
expenses incurred to administer the Commercialization Pilot
Program under this subsection.
``(B) Limitations.--The funds described in subparagraph
(A)--
``(i) shall not be subject to the limitations on the use of
funds in subsection (f)(2); and
``(ii) shall not be used to make Phase III awards.''.
SEC. 5312. GAO STUDY WITH RESPECT TO VENTURE CAPITAL
OPERATING COMPANY INVOLVEMENT.
Not later than 3 years after the date of enactment of this
Act, and every 3 years thereafter, the Comptroller General of
the United States shall--
(1) conduct a study of the impact of requirements relating
to venture capital operating company involvement under
section 9(cc) of the Small Business Act, as added by section
5108 of this Act; and
(2) submit to Congress a report regarding the study
conducted under paragraph (1).
SEC. 5313. REDUCING VULNERABILITY OF SBIR AND STTR PROGRAMS
TO FRAUD, WASTE, AND ABUSE.
(a) Fraud, Waste, and Abuse Prevention.--
(1) Guidelines for fraud, waste, and abuse prevention.--
(A) Amendments required.--Not later than 90 days after the
date of enactment of this Act, the Administrator shall amend
the SBIR Policy Directive and the STTR Policy Directive to
include measures to prevent fraud, waste, and abuse in the
SBIR program and the STTR program.
(B) Content of amendments.--The amendments required under
subparagraph (A) shall include--
(i) definitions or descriptions of fraud, waste, and abuse;
(ii) a requirement that the Inspectors General of each
Federal agency that participates in the SBIR program or the
STTR program cooperate to--
(I) establish fraud detection indicators;
(II) review regulations and operating procedures of the
Federal agencies;
(III) coordinate information sharing between the Federal
agencies; and
(IV) improve the education and training of, and outreach
to--
(aa) administrators of the SBIR program and the STTR
program of each Federal agency;
(bb) applicants to the SBIR program or the STTR program;
and
(cc) recipients of awards under the SBIR program or the
STTR program;
(iii) guidelines for the monitoring and oversight of
applicants to and recipients of awards under the SBIR program
or the STTR program; and
(iv) a requirement that each Federal agency that
participates in the SBIR program or STTR program include the
telephone number of the hotline established under paragraph
(2)--
(I) on the Web site of the Federal agency; and
(II) in any solicitation or notice of funding opportunity
issued by the Federal agency for the SBIR program or the STTR
program.
(2) Fraud, waste, and abuse prevention hotline.--
(A) Hotline established.--The Administrator shall establish
a telephone hotline that allows individuals to report fraud,
waste, and abuse in the SBIR program or STTR program.
(B) Publication.--The Administrator shall include the
telephone number for the hotline established under
subparagraph (A) on the Web site of the Administration.
(b) Study and Report.--
(1) Study.--Not later than 1 year after the date of
enactment of this Act, and every 3 years thereafter, the
Comptroller General of the United States shall--
(A) conduct a study that evaluates--
[[Page S7981]]
(i) the implementation by each Federal agency that
participates in the SBIR program or the STTR program of the
amendments to the SBIR Policy Directive and the STTR Policy
Directive made pursuant to subsection (a);
(ii) the effectiveness of the management information system
of each Federal agency that participates in the SBIR program
or STTR program in identifying duplicative SBIR and STTR
projects;
(iii) the effectiveness of the risk management strategies
of each Federal agency that participates in the SBIR program
or STTR program in identifying areas of the SBIR program or
the STTR program that are at high risk for fraud;
(iv) technological tools that may be used to detect
patterns of behavior that may indicate fraud by applicants to
the SBIR program or the STTR program;
(v) the success of each Federal agency that participates in
the SBIR program or STTR program in reducing fraud, waste,
and abuse in the SBIR program or the STTR program of the
Federal agency; and
(vi) the extent to which the Inspector General of each
Federal agency that participates in the SBIR program or STTR
program effectively conducts investigations of individuals
alleged to have submitted false claims or violated Federal
law relating to fraud, conflicts of interest, bribery,
gratuity, or other misconduct; and
(B) submit to the Committee on Small Business and
Entrepreneurship of the Senate, the Committee on Small
Business of the House of Representatives, and the head of
each Federal agency that participates in the SBIR program or
STTR program a report on the results of the study conducted
under subparagraph (A).
SEC. 5314. INTERAGENCY POLICY COMMITTEE.
(a) Establishment.--The Director of the Office of Science
and Technology Policy (in this section referred to as the
``Director''), in conjunction with the Administrator, shall
establish an Interagency SBIR/STTR Policy Committee (in this
section referred to as the ``Committee'') comprised of 1
representative from each Federal agency with an SBIR program
or an STTR program and 1 representative of the Office of
Management and Budget.
(b) Cochairpersons.--The Director and the Administrator
shall serve as cochairpersons of the Committee.
(c) Duties.--The Committee shall review, and make policy
recommendations on ways to improve the effectiveness and
efficiency of, the SBIR program and the STTR program,
including--
(1) reviewing the effectiveness of the public and
government databases described in section 9(k) of the Small
Business Act (15 U.S.C. 638(k));
(2) identifying--
(A) best practices for commercialization assistance by
Federal agencies that have significant potential to be
employed by other Federal agencies; and
(B) proposals by Federal agencies for initiatives to
address challenges for small business concerns in obtaining
funding after a Phase II award ends and before
commercialization; and
(3) developing and incorporating a standard evaluation
framework to enable systematic assessment of the SBIR program
and STTR program, including through improved tracking of
awards and outcomes and development of performance measures
for the SBIR program and STTR program of each Federal agency.
(d) Reports.--The Committee shall submit to the Committee
on Small Business and Entrepreneurship of the Senate and the
Committee on Science and Technology and the Committee on
Small Business of the House of Representatives--
(1) a report on the review by and recommendations of the
Committee under subsection (c)(1) not later than 1 year after
the date of enactment of this Act;
(2) a report on the review by and recommendations of the
Committee under subsection (c)(2) not later than 18 months
after the date of enactment of this Act; and
(3) a report on the review by and recommendations of the
Committee under subsection (c)(3) not later than 2 years
after the date of enactment of this Act.
SEC. 5315. SIMPLIFIED PAPERWORK REQUIREMENTS.
Section 9(v) of the Small Business Act (15 U.S.C. 638(v))
is amended--
(1) in the subsection heading, by striking ``Simplified
Reporting Requirements'' and inserting ``Reducing Paperwork
and Compliance Burden'';
(2) by striking ``The Administrator'' and inserting the
following:
``(1) Standardization of reporting requirements.--The
Administrator''; and
(3) by adding at the end the following:
``(2) Simplification of application and award process.--Not
later than one year after the date of enactment of this
paragraph, and after a period of public comment, the
Administrator shall issue regulations or guidelines, taking
into consideration the unique needs of each Federal agency,
to ensure that each Federal agency required to carry out an
SBIR program or STTR program simplifies and standardizes the
program proposal, selection, contracting, compliance, and
audit procedures for the SBIR program or STTR program of the
Federal agency (including procedures relating to overhead
rates for applicants and documentation requirements) to
reduce the paperwork and regulatory compliance burden on
small business concerns applying to and participating in the
SBIR program or STTR program.''.
TITLE LIV--POLICY DIRECTIVES
SEC. 5401. CONFORMING AMENDMENTS TO THE SBIR AND THE STTR
POLICY DIRECTIVES.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the Administrator shall promulgate
amendments to the SBIR Policy Directive and the STTR Policy
Directive to conform such directives to this Act and the
amendments made by this Act.
(b) Publishing SBIR Policy Directive and the STTR Policy
Directive in the Federal Register.--Not later than 180 days
after the date of enactment of this Act, the Administrator
shall publish the amended SBIR Policy Directive and the
amended STTR Policy Directive in the Federal Register.
TITLE LV--OTHER PROVISIONS
SEC. 5501. RESEARCH TOPICS AND PROGRAM DIVERSIFICATION.
(a) SBIR Program.--Section 9(g) of the Small Business Act
(15 U.S.C. 638(g)) is amended--
(1) in paragraph (3)--
(A) in the matter preceding subparagraph (A), by striking
``broad research topics and to topics that further 1 or more
critical technologies'' and inserting ``applications to the
Federal agency for support of projects relating to
nanotechnology, rare diseases, security, energy,
transportation, or improving the security and quality of the
water supply of the United States, and the efficiency of
water delivery systems and usage patterns in the United
States (including the territories of the United States)
through the use of technology (to the extent that the
projects relate to the mission of the Federal agency), broad
research topics, and topics that further 1 or more critical
technologies or research priorities'';
(B) in subparagraph (A), by striking ``or'' at the end; and
(C) by adding at the end the following:
``(C) the National Academy of Sciences, in the final report
issued by the `America's Energy Future: Technology
Opportunities, Risks, and Tradeoffs' project, and in any
subsequent report by the National Academy of Sciences on
sustainability, energy, or alternative fuels;
``(D) the National Institutes of Health, in the annual
report on the rare diseases research activities of the
National Institutes of Health for fiscal year 2005, and in
any subsequent report by the National Institutes of Health on
rare diseases research activities;
``(E) the National Academy of Sciences, in the final report
issued by the `Transit Research and Development: Federal Role
in the National Program' project and the report entitled
`Transportation Research, Development and Technology
Strategic Plan (2006-2010)' issued by the Research and
Innovative Technology Administration of the Department of
Transportation, and in any subsequent report issued by the
National Academy of Sciences or the Department of
Transportation on transportation and infrastructure; or
``(F) the national nanotechnology strategic plan required
under section 2(c)(4) of the 21st Century Nanotechnology
Research and Development Act (15 U.S.C. 7501(c)(4)) and in
any report issued by the National Science and Technology
Council Committee on Technology that focuses on areas of
nanotechnology identified in such plan;''; and
(2) by adding after paragraph (12), as added by section
5111(a) of this Act, the following:
``(13) encourage applications under the SBIR program (to
the extent that the projects relate to the mission of the
Federal agency)--
``(A) from small business concerns in geographic areas
underrepresented in the SBIR program or located in rural
areas (as defined in section 1393(a)(2) of the Internal
Revenue Code of 1986);
``(B) small business concerns owned and controlled by
women;
``(C) small business concerns owned and controlled by
veterans;
``(D) small business concerns owned and controlled by
Native Americans; and
``(E) small business concerns located in a geographic area
with an unemployment rates that exceed the national
unemployment rate, based on the most recently available
monthly publications of the Bureau of Labor Statistics of the
Department of Labor.''.
(b) STTR Program.--Section 9(o) of the Small Business Act
(15 U.S.C. 638(o)), as amended by section 5111(b) of this
Act, is amended--
(1) in paragraph (3)--
(A) in the matter preceding subparagraph (A), by striking
``broad research topics and to topics that further 1 or more
critical technologies'' and inserting ``applications to the
Federal agency for support of projects relating to
nanotechnology, security, energy, rare diseases,
transportation, or improving the security and quality of the
water supply of the United States (to the extent that the
projects relate to the mission of the Federal agency), broad
research topics, and topics that further 1 or more critical
technologies or research priorities'';
(B) in subparagraph (A), by striking ``or'' at the end; and
(C) by adding at the end the following:
``(C) the National Academy of Sciences, in the final report
issued by the `America's Energy Future: Technology
Opportunities, Risks, and Tradeoffs' project, and in any
subsequent report by the National Academy of
[[Page S7982]]
Sciences on sustainability, energy, or alternative fuels;
``(D) the National Institutes of Health, in the annual
report on the rare diseases research activities of the
National Institutes of Health for fiscal year 2005, and in
any subsequent report by the National Institutes of Health on
rare diseases research activities;
``(E) the National Academy of Sciences, in the final report
issued by the `Transit Research and Development: Federal Role
in the National Program' project and the report entitled
`Transportation Research, Development and Technology
Strategic Plan (2006-2010)' issued by the Research and
Innovative Technology Administration of the Department of
Transportation, and in any subsequent report issued by the
National Academy of Sciences or the Department of
Transportation on transportation and infrastructure; or
``(F) the national nanotechnology strategic plan required
under section 2(c)(4) of the 21st Century Nanotechnology
Research and Development Act (15 U.S.C. 7501(c)(4)) and in
any report issued by the National Science and Technology
Council Committee on Technology that focuses on areas of
nanotechnology identified in such plan;'';
(2) in paragraph (15), by striking ``and'' at the end;
(3) in paragraph (16), by striking the period at the end
and inserting ``; and''; and
(4) by adding at the end the following:
``(17) encourage applications under the STTR program (to
the extent that the projects relate to the mission of the
Federal agency)--
``(A) from small business concerns in geographic areas
underrepresented in the STTR program or located in rural
areas (as defined in section 1393(a)(2) of the Internal
Revenue Code of 1986);
``(B) small business concerns owned and controlled by
women;
``(C) small business concerns owned and controlled by
veterans;
``(D) small business concerns owned and controlled by
Native Americans; and
``(E) small business concerns located in a geographic area
with an unemployment rates that exceed the national
unemployment rate, based on the most recently available
monthly publications of the Bureau of Labor Statistics of the
Department of Labor.''.
(c) Research and Development Focus.--Section 9(x) of the
Small Business Act (15 U.S.C. 638(x)) is amended--
(1) by striking paragraph (2); and
(2) by redesignating paragraph (3) as paragraph (2).
SEC. 5502. REPORT ON SBIR AND STTR PROGRAM GOALS.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(ll) Annual Report on SBIR and STTR Program Goals.--
``(1) Development of metrics.--The head of each Federal
agency required to participate in the SBIR program or the
STTR program shall develop metrics to evaluate the
effectiveness, and the benefit to the people of the United
States, of the SBIR program and the STTR program of the
Federal agency that--
``(A) are science-based and statistically driven;
``(B) reflect the mission of the Federal agency; and
``(C) include factors relating to the economic impact of
the programs.
``(2) Evaluation.--The head of each Federal agency
described in paragraph (1) shall conduct an annual evaluation
using the metrics developed under paragraph (1) of--
``(A) the SBIR program and the STTR program of the Federal
agency; and
``(B) the benefits to the people of the United States of
the SBIR program and the STTR program of the Federal agency.
``(3) Report.--
``(A) In general.--The head of each Federal agency
described in paragraph (1) shall submit to the appropriate
committees of Congress and the Administrator an annual report
describing in detail the results of an evaluation conducted
under paragraph (2).
``(B) Public availability of report.--The head of each
Federal agency described in paragraph (1) shall make each
report submitted under subparagraph (A) available to the
public online.
``(C) Definition.--In this paragraph, the term `appropriate
committees of Congress' means--
``(i) the Committee on Small Business and Entrepreneurship
of the Senate; and
``(ii) the Committee on Small Business and the Committee on
Science and Technology of the House of Representatives.''.
SEC. 5503. COMPETITIVE SELECTION PROCEDURES FOR SBIR AND STTR
PROGRAMS.
Section 9 of the Small Business Act (15 U.S.C. 638), as
amended by this Act, is amended by adding at the end the
following:
``(mm) Competitive Selection Procedures for SBIR and STTR
Programs.--All funds awarded, appropriated, or otherwise made
available in accordance with subsection (f) or (n) must be
awarded pursuant to competitive and merit-based selection
procedures.''.
Mr. LEVIN. Mr. President, while I have the floor, and while Senator
Landrieu is here, let me add my voice of thanks and gratitude to
Senator Landrieu for the energy she shows as chair of our Small
Business Committee. I am honored to be a member of that committee and
to sit at her side. I know how long and hard she has worked on this
SBIR Program, how many years we have fought hard for this program, with
her as our leader.
The same thing is true with the technology program--the Small
Business Technology Transfer Program--which is part of this amendment.
This bill is going to help 30 million small businesses to invest in
technology research to help grow their businesses, spur innovation, and
create jobs. Small business technology firms that receive SBIR funds
have produced 38 percent of America's patents--13 times more than large
businesses--and employ 40 percent of America's scientists and
engineers, and the Defense Department is the biggest user of these
programs. So this is very appropriate on this bill, and we are very
grateful for the determination of Senator Landrieu and her cosponsors.
If I am not already a cosponsor of the amendment, I would ask
unanimous consent to be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, this has made it possible for us to be here
tonight, and I wanted to say that while Senator Landrieu was on the
floor and to express what I think is, if not the unanimous, certainly
the near unanimous gratitude of this body, because I expect this will
have an overwhelming vote.
By the way, Mr. President, I ask unanimous consent also that our
Presiding Officer, Senator Casey, be added as a cosponsor to our
counterfeit parts amendment, No. 1092. It took us too many weeks to do
this, but as I see the Presiding Officer in the chair, I am making up
for lost time and asking unanimous consent that he be added as a
cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I yield the floor.
Amendment No. 1064
The PRESIDING OFFICER. Who yields time?
Mr. McCAIN. Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. All time is yielded back.
Under the previous order, the question is on agreeing to amendment
No. 1064 offered by the Senator from Kentucky, Mr. Paul.
The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) and
the Senator from New Hampshire (Mrs. Shaheen) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Alaska (Ms. Murkowski).
The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 30, nays 67, as follows:
The result was announced--yeas 30, nays 67, as follows:
[Rollcall Vote No. 211 Leg.]
YEAS--30
Baucus
Bingaman
Boxer
Brown (OH)
Cantwell
Cardin
DeMint
Durbin
Feinstein
Franken
Gillibrand
Harkin
Heller
Klobuchar
Lautenberg
Leahy
Manchin
McCaskill
Menendez
Merkley
Murray
Nelson (NE)
Paul
Rockefeller
Sanders
Snowe
Tester
Udall (CO)
Udall (NM)
Wyden
NAYS--67
Akaka
Alexander
Ayotte
Barrasso
Bennet
Blumenthal
Blunt
Boozman
Brown (MA)
Burr
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
Enzi
Graham
Grassley
Hagan
Hatch
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Kohl
Kyl
Landrieu
Lee
Levin
Lieberman
Lugar
McCain
McConnell
Mikulski
Moran
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Roberts
Rubio
Schumer
Sessions
Shelby
Stabenow
Thune
Toomey
Vitter
Warner
Webb
Whitehouse
Wicker
NOT VOTING--3
Begich
Murkowski
Shaheen
The PRESIDING OFFICER (Mr. Bennet). On this vote the yeas are 30; the
nays are 67. Under the previous order requiring 60 votes for the
adoption of this amendment, the amendment is rejected.
[[Page S7983]]
The majority leader.
Mr. REID. This will be the last vote of this evening. Tomorrow we
will have a vote around 11 a.m. on cloture on this bill, and we will
work with the managers to see how they are going to work through the
germane amendments.
Amendments No. 1115, as modified
The PRESIDING OFFICER. Under the previous order, there will now be 2
minutes of debate equally divided on the Landrieu amendment.
Ms. LANDRIEU. Mr. President, thank you very much. We will only take a
minute. I would like to yield the majority of my time to the ranking
member who has worked so hard on this bill.
I would like to thank the cosponsors and thank all of my colleagues
for supporting a very balanced extension of the SBIR Program. This is 5
years overdue, and I yield the remainder of my time to the ranking
member from the State of Maine.
Ms. SNOWE. Mr. President, I thank the chairman of the Small Business
Committee, Chairman Landrieu, for her leadership, and I commend her for
that.
I thank all of the Members of the Senate for supporting these two
vital programs. We had much debate on these programs back in March for
5 weeks. There has been broad bipartisan support. They are vital job
creators and innovators. They have provided more than 25 percent of the
innovations that have occurred over this last decade and are certainly
vital to the Defense Department as we are setting aside existing
Federal research dollars for small business firms.
I urge my colleagues to support this amendment, which is nearly
identical to legislation that passed the Senate unanimously last
December and which passed our Committee by a vote of 18 to 1 in March
of this year.
It is critical that we focus like a laser on job creation, and
encourage an environment in which America's small businesses--our
Nation's job generators--can once again flourish. We know that small
businesses will lead us out of our economic morass. They employ more
than half of all private sector employees and have created 64 percent
of the net new jobs over the past 15 years. Ninety percent of that job
creation is concentrated in four to five percent of all companies,
commonly known as ``gazelles,'' or high-impact firms. The SBIR Program
is designed to assist exactly these types of companies.
Together, these vital job creation programs have provided small firms
with over $28 billion during their lifespans. They have been front and
center in improving our Nation's capacity to innovate. According to a
report by the Information Technology and Innovation Foundation, SBIR-
backed firms have been responsible for roughly 25 percent of the
Nation's most crucial innovations over the past decade plus--``a
powerful indication that the SBIR Program has become a key force in the
innovation economy of the United States.'' And the SBIR Program has
played a critical role in providing the Department of Defense--our
nation's largest SBIR agency--with the technology and components it
requires. From night vision goggle simulators, to sensors which provide
intelligence about battlefield events like anti-aircraft artillery and
rocket launches to our brave men and women in the field, technologies
borne from a small infusion of SBIR funding have helped make our
military more efficient, cost-effective, and safer.
Simply put, these programs have helped America's entrepreneurs create
businesses, jobs, and innovations for a wide range of applications in
our daily lives. Regrettably, SBIR has been subject to 14 short-term
extensions since it was slated to expire in September 2008, and STTR
has been a part of 11 of those since September 2009. This uncertainty
is of concern to both program managers, who are never sure if they will
have the funding for small business awardees, and to the small business
applicants themselves.
Furthermore, our amendment would reauthorize these programs for 8
years--which has been done twice before for SBIR in 1992 and 2000, the
last two reauthorizations. A long-term reauthorization of SBIR and STTR
is critical to the effectiveness of these initiatives. Simply stated,
an SBIR or STTR recipient's lifecycle in the program is longer than 2
years. A Phase I award lasts for 6 months, while a Phase II lasts for 2
years. This does not take into account the time required for agencies
to issue solicitations and companies to apply for awards, including
between Phases I and II, as well as a company's time in Phase III
commercializing its product or technology. Short-term reauthorizations
dissuade promising small businesses from applying to the programs, and
makes agencies hesitant to fund projects when they are uncertain for
which they will have follow-on funding in the future.
The 2-year extension that some members have been discussing would
jeopardize the compromise reached in this legislation and remove the
certainty the bill provides. In particular, it has the ability to
unravel the ``venture capital'' compromise, which was negotiated for
nearly 6 years between Members of Congress, the small business
community, and the Biotechnology Industry Organization, BIO. This
compromise--which allows firms majority owned by multiple venture
capital operating companies to be eligible for up to 25 percent of SBIR
funds at the National Institutes of Health, National Science
Foundation, and Department of Energy, and up to 15 percent of the funds
at remaining agencies--includes the backing of a number of critical
organizations, like BIO, the National Venture Capital Association,
NVCA, the U.S. Chamber of Commerce, and the National Small Business
Association.
A 2-year authorization would force us to relitigate this issue
immediately, before we have the ability to analyze how the compromise
is working. Indeed, our legislation requires the Government
Accountability Office to review the impact of the venture capital
compromise on the programs 3 years after the bill is enacted, and every
3 years thereafter. We need time to understand how well this change is
working before reconsidering it.
Furthermore, it would put at risk some of the key provisions in our
bill--most noticeably the allocation increases for SBIR from 2.5 to 3.5
percent over 10 years, and for STTR from 0.3 to 0.6 percent over 5
years. Because these allocations are spread out over several years, and
not immediate, they could be stunted by a short-term reauthorization,
prohibiting small businesses from accessing critical funding to help
develop their promising technologies.
I would note that as the U.S. Chamber of Commerce has noted in
support of our legislation, ``[e]ven though this important program for
small business has a proven track record of success, its full potential
has been held hostage by a series of short-term reauthorizations which
has created uncertainty for SBIR program managers and limitations for
potential small business grant recipients.'' It is high time for us to
unleash the potential of these critical firms by ensuring that these
initiatives have the requisite stability that they have been lacking in
recent years due to Congressional inaction.
In its October Interim Report, the President's Council on Jobs and
Competitiveness urged Congress to ``. . . permanently affirm and fully
authorize Small Business Innovation Research (SBIR) and Small Business
Technology Transfer (STTR) funding for the long term, rather than for
short-term re-authorizations.'' It is long beyond time for us to pass a
comprehensive, long-term reauthorization of these critical programs.
Our amendment provides us with this opportunity.
The PRESIDING OFFICER. The Senator's time has expired.
The majority leader.
Mr. REID. Mr. President, since there is bipartisan support, why do we
need a rollcall vote? Do we have to have a rollcall vote?
The PRESIDING OFFICER. The unanimous consent agreement requires 60
votes.
Mr. REID. I ask unanimous consent that order be vitiated.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The question is on agreeing to the amendment.
The amendment (No. 1115), as modified, was agreed to.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, if it is in order, I would like to speak on
the bill. Last evening we passed the Leahy-Graham amendment, which
would, by law,
[[Page S7984]]
make the head of the National Guard Bureau a member of the Joint Chiefs
of Staff. As we go forward in our deliberations with respect to this
bill, particularly the conference committee----
Mr. CARPER. Mr. President, the Senate is not in order.
The PRESIDING OFFICER. The Senate will be in order. Please take your
conversations from the well.
The Senator from Rhode Island is once again recognized.
Mr. REED. Mr. President, I thank you, and I thank the Senator from
Delaware.
As I have indicated, I would like to make some comments about how I
think we can improve and clarify the legislation that was adopted last
evening by unanimous consent. But, first, let me begin by recognizing,
obviously, the extraordinary contributions of the men and women of our
National Guard. I speak from the experience of just a few weeks ago
having visited members of the 43rd Military Police Brigade of the Rhode
Island National Guard who have the responsibility for the detention
facility in Bagram, Afghanistan. Under the able leadership of BG
Charles Petrarca, they are doing an extraordinary job.
I also was able to talk with some of the members of our Air National
Guard, the 143rd Airlift Wing. This is the finest C-130-J wing in the
entire U.S. Air Force--National Guard or Active or Reserve, in my
estimate. They are doing remarkable work. They are doing remarkable
work. In fact, we could not continue the operations in Iraq,
Afghanistan, or our homeland security obligations, without the men and
women of the National Guard.
I wish to also just say coincidentally that I had the great
opportunity to sit down with my Adjutant General Kevin McBride. General
McBride and his staff are extraordinarily effective professionals. I
first got the chance to see him literally in action when he commanded
the 43rd Military Police Brigade in Iraq, where they also had detention
responsibilities.
So we are talking about now a component of our military forces that
are professionals, superbly qualified, complete patriots, and dedicated
to the success of the mission and the success of this Nation. There is
the saying ``One Army'', as there is ``One Air Force,'' and it truly
is. I can recall serving on Active Duty when there was at least a
perception of disparity between Reserve, National Guard, and Active-
Duty forces. That perception no longer exists. The reality is that
these are superb professionals doing their job. So I think that is the
starting point to consider this legislation.
What I would like to suggest in terms of an improvement to the
legislation is clarifying the role and responsibility of the Chief of
the National Guard Bureau as a member of the Joint Chiefs of Staff. If
he has statutory responsibilities, those responsibilities should be
specified.
As General McKinley, who is the current Chief of the National Guard
Bureau and a superb professional, pointed out at the committee hearing:
The Chief of the National Guard Bureau still does not have an
institutional position from which [he] can advise the President, the
NSC, the Homeland Security Council, and Congress on non-federalized
National Guard forces that are critical to homeland defense and civil
support missions.
If this is the purpose of appointing and confirming the Chief of the
National Guard Bureau as a member of the Joint Chiefs of Staff, that
purpose should be laid out. If that is the role he or she is expected
to play--to provide advice to the Chairman and advice to the President
on the non-federalized National Guard forces critical to homeland
defense and civil support missions--it should be spelled out. I hope it
is spelled out as we go forward with the process of conferencing this
legislation.
He went on to say:
Adding the Chief of the National Guard Bureau to the JCS,
in my opinion, would ensure that in the post-9/11 security
environment the National Guard's non-federalized role in
homeland defense and civil support missions will be fully
represented in all JCS deliberations.
I think this is very important. Let me suggest why--because one of
the essentials of any military organization is unity of command. The
National Guard Bureau has two separate services which it represents:
the Army National Guard and the Air National Guard. We do not want,
particularly at the level of the Joint Chiefs of Staff, to confuse who
speaks for the services--who speaks for the Army, who speaks for the
Air Force. I think in order to do this--to preserve the unity of
command, to make it very clear that at the deliberations of the Joint
Chiefs of Staff, the Chief of Staff of the Air Force speaks for the Air
Force and the Chief of Staff of the Army speaks for the Army--we have
to make it clear what the Chief of the National Guard Bureau is
speaking to.
I hope as we go forward we can make it very clear as General McKinley
made it very clear in his testimony that his perspective, his point of
view, his position on the Joint Chiefs is related, as he said
repeatedly, to those non-federalized functions of the National Guard,
particularly with respect to homeland security and civil support
missions. I think this would enhance and clarify the role of the Chief
of the National Guard Bureau, and I also think it would avoid even the
appearance of a lack of unity of command within the services.
I think these are important points. These points can be and should be
approached in the conference. I hope that at the end of the day, when
the President is prepared to sign this bill--and there may be other
improvements to this legislation--that this particular aspect of the
legislation is incorporated.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. I ask permission to speak for 20 minutes in morning
business, but it will probably be less than that.
Mr. LEVIN. Mr. President, reserving the right to object, and I won't,
I have two unanimous consent requests that will take just a couple of
moments.
Mr. GRASSLEY. Yes, go ahead.
Amendment No. 1174
Mr. LEVIN. Mr. President, I call for the regular order with respect
to amendment No. 1174.
The PRESIDING OFFICER. The amendment is now pending.
Amendments Nos. 1260 and 1262 Withdrawn
Mr. LEVIN. Secondly, there are two colloquies between myself and
Senator Sherrod Brown. At the end of these colloquies, in both cases,
Senator Brown withdraws the amendments referred to in the colloquies,
amendments Nos. 1260 and 1262.
So I ask unanimous consent that those two amendments he then
withdraws at the end of the colloquies in fact be withdrawn.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Amendment No. 1260
Mr. BROWN of Ohio. I rise to discuss my amendment No. 1260 with the
chairman of the Senate Armed Services Committee. This amendment would
strike section 846 of the bill, which would establish a new exception
to the requirement to purchase specialty metals that are produced in
the United States.
Over the last several months, a number of concerns have been raised
about this provision. In particular:
The provision is not needed, because domestic titanium is cost-
competitive with foreign titanium and the cost of titanium has not been
a major cost driver in DOD weapon systems.
No specific case has been raised in which U.S. companies have lost
contracts or manufacturing jobs as a result of a price difference
between U.S. and foreign titanium.
If the new exception in section 846 were abused, it could undermine
the preference for domestic titanium and result in the loss of U.S.
jobs.
Administering the new exception could create significant burdens on
both defense contractors and the Department of Defense; and the
Department's existing authority to make Domestic Non-Availability
Determinations (DNADs) already gives it the flexibility it would need
to address a significant price differential, should it arise at some
point in the future.
Is the chairman of the Armed Services Committee aware of these
concerns?
Mr. LEVIN. I am aware of the concerns raised by the Senator from
Ohio, and I assure him that I will give careful consideration to those
concerns as
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we go to conference with the House of Representatives on this
provision.
Mr. BROWN of Ohio. I appreciate the Senator's assurance, and I
withdraw the amendment on that basis.
Amendment No. 1262
Mr. BROWN of Ohio. I rise to discuss my amendment No. 1262 regarding
the definition of specialty metals produced in the United States.
Under section 2533b of title 10, U.S. Code, specialty metals included
in weapon systems purchased by DOD must be produced in the United
States. This requirement has been in place for more than 30 years and
for most of that time, the Department interpreted the requirement to
apply to metals that are ``melted'' in the United States.
After Congress re-codified the requirement in the National Defense
Authorization Act for Fiscal Year 2009, however, DOD decided that a
metal is produced in the United States if any part of the production
process takes place in this country. That includes finishing processes
such as rolling, heat treatment, quenching, or tempering. This is a
substantial change to the definition that has a direct impact on
domestic production and American jobs, which I know the ,Chairman has
defended throughout his career.
My amendment would restore the long-standing definition of what it
means for a metal to be ``produced'' in this country--that it must be
``melted'' here.
Is the Chairman of the Armed Services Committee familiar with this
issue?
Mr. LEVIN. I am aware of the issue, and of the concerns raised by the
Senator from Ohio about this definition. Section 823 of the Ike Skelton
National Defense Authorization Act for Fiscal Year 2011 directed the
Secretary of Defense to review the definition of the term ``produced''
and to ensure that it complies with the requirements of law and is
consistent with congressional intent.
It is my understanding that this review is currently ongoing. I
believe that we should have the informed input of the Department of
Defense before we act on this issue. For that reason, I believe that
the amendment is premature. However, the review required by section 823
is already several weeks overdue. I understand that DOD is not always
able to meet our reporting deadlines, but this is an issue on which we
need DOD's input and we need it soon. I assure the Senator from Ohio
that we will carefully review the findings of the DOD review and
revisit the issue in light of those findings, if necessary. If the
Department fails to meet its statutory duty to address this issue, we
will take that into consideration as well.
Mr. BROWN of Ohio. I appreciate the Senator's assurance, and I
withdraw the amendment on that basis.
Amendment No. 1419
Mr. McCAIN. Mr. President, amendment No. 1419 would correct an
unintended staff error in the new Division D funding tables that the
Senate Armed Services Committee voted to adopt Tuesday, November 15,
2011. This error unintentionally reduced the President's budget request
for the line 154, RDTE AF, JSTARS account by $33 million. This
amendment would correct this error and restore the RDTE AF JSTARS
account back to the level requested in the President's budget request
and approved in the June 22, 2011, SASC-passed version of the National
Defense Authorization Act. Both the majority and minority staff
directors have acknowledged that this was an unintended staff error and
have requested that this be corrected by restoring full funding of the
RDTE AF JSTARS account to $121,610,000. Chairman Levin and I agree.
EELV
Mr. President, as I mentioned when the National Defense Authorization
Act for Fiscal Year 2012 was first brought up on the floor, I wanted to
focus on, in the course to the Senate's consideration of this bill, the
issue of military space procurement. There can be no doubt that how the
Department of Defense procures satellites and space-related capability
has gotten unacceptably out of control.
In the impending environment of fiscal austerity, the situation has
become nothing less than severe.
One need not look further than the Space-Based Infrared System High,
SBIRS-HIGH, program as a good example of how bad things have gotten.
This program has been a problem since its inception in 1996. In fact, 5
years into the program--in 2001--an independent review cited the
program as ``too immature to enter the system design and development
phase'' and observed that the program was based on faulty and overly
optimistic assumptions with respect to, among others things,
``management stability and the level of understanding of
requirements.'' The independent review also highlighted a breakdown in
execution and management resulting from those overly optimistic
assumptions and unclear requirements that essentially ``overwhelmed''
government and contractor management.
That was 2001, when it was determined that total program cost growth
could exceed $2 billion, a 70 percent increase in cost. And, here we
are today, 10 years later, and the system still has not achieved its
objectives. In fact, it was just launched--for the first time--
recently, on May 7, 2011.
Originally estimated to cost $2.4 billion, it is now expected to cost
nearly $16 billion, roughly 7 times the original estimate. With SBIRS'
having been launched finally, we will see if it has overcome its
continuing software issues and delivers its improved ballistic missile-
monitoring capability as promised. I am, however, not optimistic: the
satellite was launched even though the flight system software was not
ready, and the ground control software needed to exploit the
satellite's full capabilities is still lagging.
It is worth bearing in mind that the Government Accountability
Office's latest March 9, 2011, report on major defense acquisition
programs notes that SBIRS has the odious distinction of breaching the
``Nunn-McCurdy'' law on cost growth a record four times--the most of
any major weapons program. It's a hall-of-famer.
By the way, the DOD just recently reported to Congress that the next
pair of these satellites, built by Lockheed Martin, could cost $438
million more than previously estimated and could be delivered a year
late. Unacceptable.
SBIRS is, however, not the only space program that has been facing
these types of problems. Over the past decade, most--I repeat, most--of
the DOD's space programs have been over cost and behind schedule. Their
delays have in fact been so significant that we now face potential gaps
in capabilities in vital areas dependent on space procurement such as
weather monitoring and ultra-high frequency communications.
After years of spiraling costs and under the specter of diminishing
budgets, the Air Force now says it wants to buy space assets in bulk to
save money. Only in Washington could programs with the kind of history
of mismanagement and unparalleled cost-growth and schedule-delays we
have seen in large military satellite and launch programs--which in the
most egregious cases have yet to see a single day of operational
performance or demonstrate intended capability--be proposed for
economic savings by buying its related components in bulk.
Until the Air Force overhauls how it buys its biggest and most
expensive military space assets--more than simply doubling down on bad
bets--these kinds of programs will continue to be painful case studies
of how problematic our overall system for acquiring major weapons
remains.
One program that I chose to focus on in particular in this bill is
the Air Force's Evolved Expendable Launch Vehicle, EELV, program. On
this program, I have filed two amendments, which have either already
been adopted or are awaiting adoption without opposition.
My first amendment would require the EELV program to report to
Congress and to the Office of the Secretary of Defense on how it is
doing in terms of cost, schedule and performance as if it were
designated as a major defense acquisition program, MDAP, not in
sustainment.
This sounds pretty simple, but why this amendment is in fact
necessary is striking.
In 2006, the unit cost of the EELV program, which provides the DOD
and other government agencies the launch capability to get large
satellites into orbit, breached the cost thresholds under the Nunn-
McCurdy law. Under that law, the Department is required to
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report to Congress if there is a significant or critical increase in
unit cost over the program's baseline cost.
In this case, EELV's unit costs unexpectedly grew because of a change
in the acquisition strategy warranted by a decrease in the demand for
EELV launches. And, that was due to, among other things, satellite
program development delays and cancellations.
But rather than restructure the program to make sure that it provides
launch capability affordably; rebaseline its unit cost estimate to a
more realistic number; and certify, after careful deliberation and an
analysis of alternatives, that the program must continue--all of which
is required under Nunn-McCurdy--something else happened.
In 2007, the program was basically taken out of the defense
acquisition management system, otherwise known as the ``milestone
system,'' and put in ``sustainment.'' The decision to do so
significantly reduced EELV's reporting requirements to the Office of
the Secretary of Defense and to Congress, particularly on the program's
cost and status. And, that limited both the OSD and Congress' ability
to oversee the program going forward.
Ordinarily, such a decision is made when a program has completed its
development and production phases. But, this wasn't the case for EELV.
Even to this day, the program faces maturity issues based on the fact
that the DOD has yet to launch all EELV variants in sufficient numbers
to ensure design and production maturity.
According to the Government Accountability Office in 2008, the
decision to put EELV on sustainment may have been influenced by other
factors, namely, avoiding the imminent Nunn-McCurdy unit cost breach.
One thing is clear: this decision should never have been made.
And, Congress' and the OSD's oversight of this large program has been
hampered ever since.
Against this backdrop, my amendment would require that the DOD either
move the program back to a major defense acquisition program (MDAP) not
in sustainment or otherwise have the program provide, as appropriate,
Congress or the OSD updates of the program's cost and status using the
criteria set forth for other MDAPs.
This, frankly, should have been done years ago.
My second amendment is required because of more recent developments
in the EELV program. That amendment would require the Air Force to
explain, by a time certain, exactly how its new EELV acquisition
strategy for the balance of rocket cores beyond its immediate purchase
implements each of GAO's recommendations in its recent report on the
program.
Unsurprisingly, the increasing cost of launching satellites into
space has become a major problem. And, with defense dollars likely to
decline for as far as the eye can see, driving down the cost of space
launch is tough because, with regard to ``EELV''-class rockets, only
one company provides the U.S. government with the ``heavy'' launch
capability it needs--the United Launch Alliance, ULA, comprised of
former competitors Lockheed Martin and Boeing.
There can be no doubt that, at the end of the day, only competition
can meaningfully drive down costs. As GAO recently noted, competition
for space launch missions provides the government with an unprecedented
opportunity to control costs under the EELV program. I strongly agree.
Largely because of the lack of competition and the DOD's reliance on a
monopoly incumbent provider, by some estimates, EELV costs may increase
by more than 50 percent over the next 5 years. This is neither
desirable nor affordable.
But, in an effort to procure heavy-launch capability affordably, the
Air Force, which serves as the Executive Agent for space at the DOD,
originally came up with a strategy to sole-source from ULA as much as
eight boosters over 5 years. This so-called ``Block-40 strategy''
would, however, have effectively locked-up the government into a large
block purchase with ULA and foreclosed the possibility of competition
over time.
Thankfully, GAO looked into this acquisition strategy. And, its
report, which came out just a few weeks ago, was scathing. In it, GAO
found that, despite statements by the Air Force to the contrary, the
Air Force's Block-40 strategy was unsupported by the necessary data and
analysis--most notably, certified cost and pricing data, analysis on
the health of the industrial base and the cost-effectiveness of mission
assurance.
This amendment would require the Air Force to explain when it submits
its budget next year how it implemented each of GAO's recommendations.
Those recommendations include, among other things, independently
assessing the health of the U.S. launch industrial base and reassessing
the proposed block buy contract quantity and length.
On October 21, 2011, I brought this issue to Secretary Panetta's
attention, with Chairman Levin. While we only recently received a
response, which I would like to be made part of this record, the
question as to whether GAO's recommendations have been and will be
complied with remains open. So, notwithstanding the letter, this
amendment remains ripe and necessary.
Once again, I believe both of these provisions have been or will be
adopted into the bill without opposition. And, I thank my colleagues
for their cooperation. The area of how the Department of Defense
procures space assets and capabilities is something we all have to
focus on more than we have been. Particularly in these times of fiscal
hardship and austerity, looking the other way and hoping for the best
is an option we cannot afford.
I ask unanimous consent that the letter to which I referred be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Department of Defense,
Secretary of the Air Force,
Washington, DC.
Hon. John McCain,
Ranking Member, Committee on Armed Services, U.S. Senate,
Washington, DC.
Dear Senator McCain: Thank you for your October 21, 2011,
letter regarding the recently completed Government
Accountability Office (GAO) report on the Evolved Expendable
Launch Vehicle (EELV) program. In your letter, you asked the
Department to pause ``all activities in furtherance of . . .
negotiations with United Launch Alliance (ULA) for follow-on
EELV launches'' and ``all activities intended to finalize the
Air Force's Block 40 acquisition strategy'' until the
Department has: 1 ``completed a full review of the concerns
raised by GAO'' in its recent report; and (2) ``taken
appropriate steps to ensure that prices are fair and
reasonable, including obtaining cost and pricing data, and
complying with other applicable requirements of the Federal
Acquisition Regulation.'' Secretary Panetta asked me to reply
in my capacity as the Department's Executive Agent for Space.
The Department and the Air Force have thoroughly reviewed
the GAO report--including early drafts and the final report--
and we agree additional data is needed before executing an
EELV contract for FY 2013-2017. The Air Force EELV
acquisition strategy is fundamentally based on gathering more
and better information before pursuing any specific contract.
The strategy is part of a series of steps the Air Force is
taking to control cost growth in the EELV program, including
efforts to facilitate opportunities for proven launch
providers to compete for EELV-class launches. The Air Force
and the Department see competition as a critical element of
our long term efforts to reduce launch costs.
The GAO completed their audit prior to most of the work on
the revised EELV acquisition strategy. Consequently, some of
the concerns highlighted have been addressed. For example, in
March 2011, when the drafting of the GAO report was nearly
complete, the Air Force created a new executive position, the
Program Executive Officer for Space Launch (PEO/SL). The PEO/
SL was established to enhance executive management of the
EELV program, with the near-term focus of driving down costs
and spearheading the effort to craft a new EELV acquisition
strategy. The new PEO has led several efforts to implement
specific cost reduction efforts based on a detailed Should
Cost Review that I directed as Secretary of the Air Force.
The PEO has also taken steps to gain additional knowledge to
inform the acquisition strategy, including independent cost
estimates for the large cost drivers for launch. These
efforts and the data they yielded are the key building blocks
for the EELV acquisition strategy. The United Launch Alliance
supplier survey data described and questioned in the GAO
report was made available to review teams examining the EELV
program, but was not relied upon in the PEO's development of
the acquisition strategy.
The Air Force EELV acquisition strategy entails an
evaluation of an economic order quantity of EELV booster
cores, but there is no commitment to a specific contract
quantity or duration. Instead, the first phase of the
strategy will require the incumbent contractor to provide
their best price offers on a quantity range of six to ten
booster cores per
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year over contract periods ranging from three to five years.
This data will allow the Air Force to balance the rate and
commitment decision with our fundamental priorities:
operational requirements, price, budget, and enabling
competition.
The Air Force will not pursue any negotiations with ULA
until they have submitted the cost and price data we need,
and ULA's submissions will be audited as they would in any
contracting process. The citations in the GAO report to
Defense Contracting Audit Agency standards for sufficient
cost and price information refer to prices associated with
some subcontractor ULA orders that were placed in a
commercial environment and thus did not require certified
cost and pricing data. For the FY 2013-2017 proposal, the
prime contractor will be required to certify the data
submitted is current, accurate, and complete.
With the recently released New Entrant Certification
Strategy, the Air Force, NASA, and the NRO are working to
facilitate the certification of new entrants who want to
compete for EELV-class missions. By examining a range of
contract options and terms for EELV procurement, and by
examining progress from new entrants in the coming months,
the Air Force will be well-positioned to identify the best
balance of these priorities and the best value for the
taxpayer. Only at that point, with additional information in
hand, will the Air Force move to negotiate a new contract.
Thank you again for your letter and your continued support
of national security space. I look forward to continuing to
work in partnership with you to maintain assured access to
space for the Nation. A similar letter has been sent to the
Chairman of your committee.
Sincerely,
Michael B. Donley,
DoD Executive Agent for Space.
Mr. LEVIN. I thank my friend from Iowa.
The PRESIDING OFFICER. The Senator from Iowa.
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