[Congressional Record Volume 158, Number 117 (Thursday, August 2, 2012)]
[Senate]
[Pages S5980-S5989]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself and Mr. Grassley):
S. 3486. A bill to implement the provisions of the Hague Agreement
and the Patent Law Treaty; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, I am pleased to introduce today legislation
that will help American businesses and inventors by reducing obstacles
for obtaining patent protection overseas. This bipartisan measure
implements two patent law treaties that were signed under President
Clinton and submitted for the Senate's advice and consent by President
George W. Bush. The Senate voted to ratify the treaties in 2007 without
a single Senator in dissent. With this implementing legislation,
Congress will complete its work so that the treaties at last can be
ratified and go into effect.
Our patent system plays a key role in encouraging innovation and
bringing new products to market. The discoveries made by American
inventors and research institutions, commercialized by our companies,
and protected and promoted by our patent laws, have made our system the
envy of the world. But in this global economy, it is not enough to have
an effective domestic patent system; we must also help American
inventors and businesses to protect their inventions and thrive in
markets around the world. Consistent with last year's landmark patent
reform legislation, the Leahy-Smith America Invents Act, this
legislation will benefit American inventors by implementing two
measures to reduce application barriers around the world.
The Hague Agreement Concerning International Registration of
Industrial Designs provides a simplified application system for U.S.
creators of industrial designs who, by filing a single standardized
application for a design patent at the U.S. Patent and Trademark
Office, can apply for design protection in each country that has
ratified the Treaty. American design patent applicants who previously
had to file separate applications in numerous countries may now file a
single, English-language application at the U.S. Patent Office,
reducing the costs and burdens of obtaining international protections.
The U.S. Patent Office may also receive applications that have been
filed internationally, but its substantive examination process remains
unchanged. The standard for obtaining a design patent is not affected.
By simplifying the process for American businesses to obtain design
patents overseas, the Hague Agreement will reduce barriers for small
and mid-size companies to expand into foreign markets.
The Patent Law Treaty also streamlines the process for American
businesses seeking patent protection overseas. It limits the
formalities different countries can require in patent applications,
which are often used to disadvantage American applications in foreign
jurisdictions. American businesses and inventors will benefit from
harmonized applications, reducing the cost of doing business and
encouraging U.S. innovators to protect and export their products
internationally.
In June, Director Kappos of the U.S. Patent and Trademark Office
testified before the Judiciary Committee about the important need for
this implementing legislation, stating that the treaties are ``pro-
American innovation, pro-global innovation, pro-jobs, pro-
opportunity.'' I agree. I urge the Senate to act quickly on this final
step so that the treaties can at last be ratified, and American
innovators and businesses can benefit from them as U.S. products
continue to thrive on the global stage.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3486
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Patent Law Treaties
Implementation Act of 2012''.
[[Page S5981]]
TITLE I--HAGUE AGREEMENT CONCERNING INTERNATIONAL REGISTRATION OF
INDUSTRIAL DESIGNS
SEC. 101. THE HAGUE AGREEMENT CONCERNING INTERNATIONAL
REGISTRATION OF INDUSTRIAL DESIGNS.
(a) In General.--Title 35, United States Code, is amended
by adding at the end the following:
``PART V--THE HAGUE AGREEMENT CONCERNING INTERNATIONAL REGISTRATION OF
INDUSTRIAL DESIGNS
``CHAPTER Sec.
``38. International design applications........................381.....
``CHAPTER 38--INTERNATIONAL DESIGN APPLICATIONS
``Sec.
``381. Definitions.
``382. Filing international design applications.
``383. International design application.
``384. Filing date.
``385. Effect of international design application.
``386. Right of priority.
``387. Relief from prescribed time limits.
``388. Withdrawn or abandoned international design application.
``389. Examination of international design application.
``390. Publication of international design application.
``Sec. 381. Definitions
``(a) In General.--When used in this part, unless the
context otherwise indicates--
``(1) the term `treaty' means the Geneva Act of the Hague
Agreement Concerning the International Registration of
Industrial Designs adopted at Geneva on July 2, 1999;
``(2) the term `regulations'--
``(A) when capitalized, means the Common Regulations under
the treaty; and
``(B) when not capitalized, means the regulations
established by the Director under this title;
``(3) the term `designation' means a request that an
international registration have effect in a Contracting Party
to the treaty;
``(4) the term `International Bureau' means the
international intergovernmental organization that is
recognized as the coordinating body under the treaty and the
Regulations;
``(5) the term `effective registration date' means the date
of international registration indicated by the International
Bureau under the treaty;
``(6) the term `international design application' means an
application for international registration; and
``(7) the term `international registration' means the
international registration of an industrial design filed
under the treaty.
``(b) Rule of Construction.--Terms and expressions not
defined in this part are to be taken in the sense indicated
by the treaty and the Regulations.
``Sec. 382. Filing international design applications
``(a) In General.--Any person who is a national of the
United States, or has a domicile, a habitual residence, or a
real and effective industrial or commercial establishment in
the United States, may file an international design
application by submitting to the Patent and Trademark Office
an application in such form, together with such fees, as may
be prescribed by the Director.
``(b) Required Action.--The Patent and Trademark Office
shall perform all acts connected with the discharge of its
duties under the treaty, including the collection of
international fees and transmittal thereof to the
International Bureau. Subject to chapter 17 of this title,
international design applications shall be forwarded by the
Patent and Trademark Office to the International Bureau, upon
payment of a transmittal fee.
``(c) Applicability of Chapter 16.--Except as otherwise
provided in this chapter, the provisions of chapter 16 of
this title shall apply.
``(d) Application Filed in Another Country.--An
international design application on an industrial design made
in this country shall be considered to constitute the filing
of an application in a foreign country within the meaning of
chapter 17 of this title if the international design
application is filed--
``(1) in a country other than the United States;
``(2) at the International Bureau; or
``(3) with an intergovernmental organization.
``Sec. 383. International design application
``In addition to any requirements pursuant to chapter 16 of
this title, the international design application shall
contain--
``(1) a request for international registration under the
treaty;
``(2) an indication of the designated Contracting Parties;
``(3) data concerning the applicant as prescribed in the
treaty and the Regulations;
``(4) copies of a reproduction or, at the choice of the
applicant, of several different reproductions of the
industrial design that is the subject of the international
application, presented in the number and manner prescribed in
the treaty and the Regulations;
``(5) an indication of the product or products which
constitute the industrial design or in relation to which the
industrial design is to be used, as prescribed in the treaty
and the Regulations;
``(6) the fees prescribed in the treaty and the
Regulations; and
``(7) any other particulars prescribed in the Regulations.
``Sec. 384. Filing date
``(a) In General.--Subject to subsection (b), the filing
date of an international design application in the United
States shall be the effective registration date.
Notwithstanding the provisions of this part, any
international design application designating the United
States that otherwise meets the requirements of chapter 16 of
this title may be treated as a design application under
chapter 16 of this title.
``(b) Review.--An applicant may request review by the
Director of the filing date of the international design
application in the United States. The Director may determine
that the filing date of the international design application
in the United States is a date other than the effective
registration date. The Director may establish procedures,
including the payment of a surcharge, to review the filing
date under this section. Such review may result in a
determination that the application has a filing date in the
United States other than the effective registration date.
``Sec. 385. Effect of international design application
``An international design application designating the
United States shall have the effect, for all purposes, from
its filing date determined in accordance with section 384 of
this part, of an application for patent filed in the Patent
and Trademark Office pursuant to chapter 16 of this title.
``Sec. 386. Right of priority
``(a) National Application.--In accordance with the
conditions and requirements of subsections (a) through (d) of
section 119 of this title and section 172 of this title, a
national application shall be entitled to the right of
priority based on a prior international design application
which designated at least one country other than the United
States.
``(b) Prior Foreign Application.--In accordance with the
conditions and requirements of subsections (a) through (d) of
section 119 of this title and section 172 of this title and
the treaty and the Regulations, an international design
application designating the United States shall be entitled
to the right of priority based on a prior foreign
application, a prior international application as defined in
section 351(c) of this title designating at least one country
other than the United States, or a prior international design
application designating at least one country other than the
United States.
``(c) Prior National Application.--In accordance with the
conditions and requirements of section 120 of this title, an
international design application designating the United
States shall be entitled to the benefit of the filing date of
a prior national application, a prior international
application as defined in section 351(c) of this title
designating the United States, or a prior international
design application designating the United States, and a
national application shall be entitled to the benefit of the
filing date of a prior international design application
designating the United States. If any claim for the benefit
of an earlier filing date is based on a prior international
application as defined in section 351(c) of this title which
designated but did not originate in the United States or a
prior international design application which designated but
did not originate in the United States, the Director may
require the filing in the Patent and Trademark Office of a
certified copy of such application together with a
translation thereof into the English language, if it was
filed in another language.
``Sec. 387. Relief from prescribed time limits
``An applicant's failure to act within prescribed time
limits in connection with requirements pertaining to an
international design application may be excused as to the
United States upon a showing satisfactory to the Director of
unintentional delay and under such conditions, including a
requirement for payment of the fee specified in section
41(a)(7) of this title, as may be prescribed by the Director.
``Sec. 388. Withdrawn or abandoned international design
application
``Subject to sections 384 and 387 of this part, if an
international design application designating the United
States is withdrawn, renounced or canceled or considered
withdrawn or abandoned, either generally or as to the United
States, under the conditions of the treaty and the
Regulations, the designation of the United States shall have
no effect after the date of withdrawal, renunciation,
cancellation, or abandonment and shall be considered as not
having been made, unless a claim for benefit of a prior
filing date under section 386(c) of this part was made in a
national application, or an international design application
designating the United States, or a claim for benefit under
section 365(c) was made in an international application
designating the United States, filed before the date of such
withdrawal, renunciation, cancellation, or abandonment.
However, such withdrawn, renounced, canceled, or abandoned
international design application may serve as the basis for a
claim of priority under subsections (a) and (b) of section
386, or under subsection (a) or (b) of section 365, if it
designated a country other than the United States.
``Sec. 389. Examination of international design application
``(a) In General.--The Director shall cause an examination
pursuant to this title of an international design application
designating the United States.
``(b) Applicability of Chapter 16.--All questions of
substance, and, unless otherwise
[[Page S5982]]
required by the treaty and Regulations, procedures regarding
an international design application designating the United
States shall be determined as in the case of applications
filed under chapter 16 of this title.
``(c) Fees.--The Director may prescribe fees for filing
international design applications, for designating the United
States, and for any other processing, services, or materials
relating to international design applications, and may
provide for later payment of such fees, including surcharges
for later submission of fees.
``(d) Issuance of Patent.--The Director may issue a patent
based on an international design application designating the
United States, in accordance with the provisions of this
title. Such patent shall have the force and effect of a
patent issued on an application filed under chapter 16 of
this title.
``Sec. 390. Publication of international design application
``The publication under the treaty defined in section
381(a)(1) of an international design application designating
the United States shall be deemed a publication under section
122(b).''.
(b) Conforming Amendment.--The table of parts at the
beginning of title 35, United States Code, is amended by
adding at the end the following:
``V. The Hague Agreement concerning international registration of
industrial designs.......................................401''.....
SEC. 102. CONFORMING AMENDMENTS.
Title 35, United States Code, is amended--
(1) in section 100(i)(1)(B), by striking ``right of
priority under section 119, 365(a), or 365(b) or to the
benefit of an earlier filing date under section 120, 121, or
365(c)'' and inserting ``right of priority under section 119,
365(a), 365(b), 386(a), or 386(b) or to the benefit of an
earlier filing date under section 120, 121, 365(c), or
386(c)'';
(2) in section 102(d)(2), by striking ``to claim a right of
priority under section 119, 365(a), or 365(b), or to claim
the benefit of an earlier filing date under section 120, 121,
or 365(c)'' and inserting ``to claim a right of priority
under section 119, 365(a), 365(b), 386(a), or 386(b), or to
claim the benefit of an earlier filing date under section
120, 121, 365(c), or 386(c)'';
(3) in section 111(b)(7)--
(A) by striking ``section 119 or 365(a)'' and inserting
``section 119, 365(a), or 386(a)''; and
(B) by striking ``section 120, 121, or 365(c)'' and
inserting ``section 120, 121, 365(c), or 386(c)'';
(4) in section 115(g)(1), by striking ``section 120, 121,
or 365(c)'' and inserting ``section 120, 121, 365(c), or
386(c)'';
(5) in section 120, in the first sentence, by striking
``section 363'' and inserting ``section 363 or 385'';
(6) in section 154--
(A) in subsection (a)--
(i) in paragraph (2), by striking ``section 120, 121, or
365(c)'' and inserting ``section 120, 121, 365(c), or
386(c)''; and
(ii) in paragraph (3), by striking ``section 119, 365(a),
or 365(b)'' and inserting ``section 119, 365(a), 365(b),
386(a), or 386(b)''; and
(B) in subsection (d)(1), by inserting ``or an
international design application filed under the treaty
defined in section 381(a)(1) designating the United States
under Article 5 of such treaty'' after ``Article 21(2)(a) of
such treaty'';
(7) in section 173, by striking ``fourteen years'' and
inserting ``15 years'';
(8) in section 365(c)--
(A) in the first sentence, by striking ``or a prior
international application designating the United States'' and
inserting ``, a prior international application designating
the United States, or a prior international design
application as defined in section 381(a)(6) of this title
designating the United States''; and
(B) in the second sentence, by inserting ``or a prior
international design application as defined in section
381(a)(6) of this title which designated but did not
originate in the United States'' after ``did not originate in
the United States''; and
(9) in section 366--
(A) in the first sentence, by striking ``unless a claim''
and all that follows through ``withdrawl.'' and inserting
``unless a claim for benefit of a prior filing date under
section 365(c) of this section was made in a national
application, or an international application designating the
United States, or a claim for benefit under section 386(c)
was made in an international design application designating
the United States, filed before the date of such
withdrawal.''; and
(B) by striking the second sentence and inserting the
following: ``However, such withdrawn international
application may serve as the basis for a claim of priority
under section 365 (a) and (b) of this part, or under section
386 (a) or (b), if it designated a country other than the
United States.''.
SEC. 103. EFFECTIVE DATE.
(a) In General.--The amendments made by this title shall be
effective on the later of--
(1) the date that is 1 year after the date of enactment of
this Act, or
(2) the date of entry into force of the treaty, as defined
in section 381 of title 35, as amended by this Act, with
respect to the United States.
(b) Applicability of Amendments.--
(1) In general.--Subject to paragraph (2), the amendments
made by this title shall apply only to international design
applications, international applications as defined in
section 351(c) of title 35, United States Code, and national
applications filed on and after the effective date set forth
in subsection (a), and patents issuing thereon.
(2) Exception.--Sections 100(i) and 102(d) of title 35,
United States Code, as amended by this title, shall not apply
to an application, or any patent issuing thereon, unless it
is described in section 3(n)(1) of the Leahy-Smith America
Invents Act (35 U.S.C. 100 note).
TITLE II--PATENT LAW TREATY IMPLEMENTATION
SEC. 201. PROVISIONS TO IMPLEMENT THE PATENT LAW TREATY.
(a) Application Filing Date.--Section 111 of title 35,
United States Code, is amended--
(1) in subsection (a), by striking paragraphs (3) and (4)
and inserting the following:
``(3) Fee, oath or declaration, and claims.--The
application shall be accompanied by the fee required by law.
The fee, oath or declaration, and 1 or more claims may be
submitted after the filing date of the application, within
such period and under such conditions, including the payment
of a surcharge, as may be prescribed by the Director. Upon
failure to submit the fee, oath or declaration, and 1 or more
claims within such prescribed period, the application shall
be regarded as abandoned.
``(4) Filing date.--The filing date of an application shall
be the date on which a specification, with or without claims,
is received in the United States Patent and Trademark
Office.'';
(2) in subsection (b), by striking paragraphs (3) and (4)
and inserting the following:
``(3) Fee.--The application shall be accompanied by the fee
required by law. The fee may be submitted after the filing
date of the application, within such period and under such
conditions, including the payment of a surcharge, as may be
prescribed by the Director. Upon failure to submit the fee
within such prescribed period, the application shall be
regarded as abandoned.
``(4) Filing date.--The filing date of a provisional
application shall be the date on which a specification, with
or without claims, is received in the United States Patent
and Trademark Office.''; and
(3) by adding at the end the following:
``(c) Prior Filed Application.--The Director may prescribe
the conditions, including the payment of a surcharge, under
which a reference made upon the filing of an application
under subsection (a) to a previously filed application,
specifying the previously filed application by application
number and the intellectual property authority or country in
which the application was filed, shall constitute the
specification and any drawings of the subsequent application
for purposes of a filing date. A copy of the specification
and any drawings of the previously filed application shall be
submitted within such period and under such conditions as may
be prescribed by the Director. A failure to submit the copy
of the specification and any drawings of the previously filed
application within the prescribed period shall result in
application being regarded as abandoned and treated as having
never been filed.''.
(b) Relief in Respect of Time Limits and Reinstatement of
Rights.--
(1) In general.--Chapter 2 of title 35, United States Code,
is amended by adding at the end the following:
``Sec. 27. Revival of applications; reinstatement of
reexamination proceedings
``(a) In General.--The Director may establish procedures,
including the requirement for payment of the fee specified in
section 41(a)(7), to revive an unintentionally abandoned
application for patent, accept an unintentionally delayed
payment of the fee for issuing each patent, or accept an
unintentionally delayed response by the patent owner in a
reexamination proceeding, upon petition by the applicant for
patent or patent owner.''.
(2) Technical and conforming amendment.--The table of
sections for chapter 2 of title 35, United States Code, is
amended by adding at the end the following:
``27. Revival of applications; reinstatement of reexamination
proceedings.''.
(c) Restoration of Priority Right.--Title 35, United States
Code, is amended--
(1) in section 119--
(A) in subsection (a), by adding at the end the following:
``The Director may prescribe regulations, including the
requirement for payment of the fee specified in section
41(a)(7), pursuant to which the 12-month period set forth in
this subsection may be extended by an additional 2 months if
the delay in filing the application in this country within
the 12-month period was unintentional.''; and
(B) in subsection (e)--
(i) in paragraph (1)--
(I) by inserting after the first sentence the following:
``The Director may prescribe regulations, including the
requirement for payment of the fee specified in section
41(a)(7), pursuant to which the 12-month period set forth in
this subsection may be extended by an additional 2 months if
the delay in filing the application under section 111(a) or
section 363 within the 12-month period was unintentional.'';
and
(II) in the last sentence--
(aa) by striking ``including the payment of a surcharge''
and inserting ``including the payment of the fee specified in
section 41(a)(7)''; and
(bb) by striking ``during the pendency of the
application''; and
(ii) in paragraph (3), by adding at the end the following:
``For an application for patent filed under section 363 in a
foreign Receiving Office, the 12-month and additional 2 month
[[Page S5983]]
period set forth in this subsection shall be extended as
provided under the treaty and Regulations as defined in
section 351.''; and
(2) in section 365(b), by adding at the end the following:
``The Director may establish procedures, including the
requirement for payment of the fee specified in section
41(a)(7), to accept an unintentionally delayed claim for
priority under the treaty and the Regulations, and to accept
a priority claim where such priority claim pertains to an
application that was not filed within the priority period
specified in the treaty and Regulations, but was filed within
the additional 2-month period specified under section 119(a)
or the treaty and Regulations.''.
(d) Recordation of Ownership Interests.--Section 261 of
title 35, United States Code, is amended--
(1) in the first undesignated paragraph by adding at the
end the following: ``The Patent and Trademark Office shall
maintain a register of interests in applications for patents
and patents and shall record any document related thereto
upon request, and may require a fee therefor.''; and
(2) in the fourth undesignated paragraph by striking ``An
assignment'' and inserting ``An interest that constitutes an
assignment''.
SEC. 202. CONFORMING AMENDMENTS.
(a) In General.--Section 171 of title 35, United States
Code, is amended by adding at the end the following:
``The filing date of an application for patent for design
shall be the date on which the specification as prescribed by
section 112 and any required drawings are filed.''.
(b) Relief in Respect of Time Limits and Reinstatement of
Right.--Title 35, United States Code, is amended--
(1) in section 41--
(A) in subsection (a), by striking subsection (7) and
inserting the following:
``(7) Revival fees.--On filing each petition for the
revival of an abandoned application for a patent, for the
delayed payment of the fee for issuing each patent, for the
delayed response by the patent owner in any reexamination
proceeding, for the delayed payment of the fee for
maintaining a patent in force, for the delayed submission of
a priority or benefit claim, or for the extension of the 12-
month period for filing a subsequent application, $1,700.00.
The Director may refund any part of the fee specified in this
paragraph, in exceptional circumstances as determined by the
Director''; and
(B) in subsection (c), by striking paragraph (1) and
inserting the following:
``(1) Acceptance.--The Director may accept the payment of
any maintenance fee required by subsection (b) after the 6-
month grace period if the delay is shown to the satisfaction
of the Director to have been unintentional. The Director may
require the payment of the fee specified in paragraph (a)(7)
as a condition of accepting payment of any maintenance fee
after the 6-month grace period. If the Director accepts
payment of a maintenance fee after the 6-month grace period,
the patent shall be considered as not having expired at the
end of the grace period.'';
(2) in section 119(b)(2), in the second sentence, by
striking ``including the payment of a surcharge'' and
inserting ``including the requirement for payment of the fee
specified in section 41(a)(7)'';
(3) in section 120, in the fourth sentence, by striking
``including the payment of a surcharge'' and inserting
``including the requirement for payment of the fee specified
in section 41(a)(7)'';
(4) in section 122(b)(2)(B)(iii), in the second sentence,
by striking ``, unless it is shown'' and all that follows
through ``unintentional'';
(5) in section 133, by striking ``, unless it be shown''
and all that follows through ``unavoidable'';
(6) by striking section 151 and inserting the following:
``Sec. 151. Issue of patent
``If it appears that applicant is entitled to a patent
under the law, a written notice of allowance of the
application shall be given or mailed to the applicant. The
notice shall specify a sum, constituting the issue fee and
any required publication fee, which shall be paid within 3
months thereafter.
``Upon payment of this sum the patent may issue, but if
payment is not timely made, the application shall be regarded
as abandoned.'';
(7) in section 361, by striking subsection (c) and
inserting the following:
``(c) International applications filed in the Patent and
Trademark Office shall be filed in the English language, or
an English translation shall be filed within such later time
as may be fixed by the Director.'';
(8) in section 364, by striking subsection (b) and
inserting the following:
``(b) An applicant's failure to act within prescribed time
limits in connection with requirements pertaining to an
international application may be excused as provided in the
treaty and the Regulations.''; and
(9) in section 371(d), in the third sentence, by striking
``, unless it be shown to the satisfaction of the Director
that such failure to comply was unavoidable''.
SEC. 203. EFFECTIVE DATE.
(a) In General.--Except as provided in subsection (b), the
amendments made by this title shall be effective on the date
that is 1 year after the date of enactment of this Act and
shall apply to all patents and to all applications for patent
pending on or filed after the date that is 1 year after the
date of enactment of this Act.
(b) Exceptions.--
(1) Section 201(a).--The amendments made by section 201(a)
shall apply only to applications filed on or after the date
that is 1 year after the date of enactment of this Act.
(2) Patent that is subject of litigation.--The amendments
made by this title shall have no effect with respect to any
patent that is the subject of litigation in an action
commenced before the date that is 1 year after the date of
enactment of this Act.
______
By Mr. KYL:
S. 3493. A bill to protect first amendment rights of journalists and
internet service providers by preventing States and the United States
from allowing meritless lawsuits arising from acts in furtherance of
those rights, commonly called ``Strategic Lawsuits Against Public
Participation'' or ``SLAPPs'', and for other purposes; to the Committee
on the Judiciary.
Mr. KYL. Mr. President, I rise today to introduce the Free Press Act.
The FPA would create a Federal anti-SLAPP statute for journalists,
bloggers, and other news media, authorizing them to bring a special
motion to dismiss lawsuits brought against them that arise out of their
speech on public issues. Once the special motion to dismiss is brought,
the nonmoving party must present a prima facie case supporting the
lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and
fees and costs are awarded to the movant.
Anti-SLAPP laws effectively make it impossible for frivolous or
marginal libel lawsuits arising out of protected speech to advance
beyond an initial stage of litigation. Such laws thereby protect
journalists and bloggers from the financial impact of defending against
such suits. Approximately 30 States have anti-SLAPP laws, though their
coverage varies. There is no federal law. The FPA would create a
federal anti-SLAPP law, and allow parties to remove some state SLAPP
claims to Federal court.
At the conclusion of my remarks today, I will submit for the record a
section-by-section summary of the FPA. I will first, however, comment
on several features of the bill, including the meaning of some of the
language that is used, and Congress' authority to enact such
legislation.
The FPA's special motion to dismiss requires the plaintiff to present
``prima facie evidence'' supporting his cause of action. The standard
definition of ``prima facie evidence,'' which is employed by the FPA,
is that given by Justice Story in his opinion for the court in Kelly v.
Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a
fact? It is such as, in judgment of law, is sufficient to establish a
fact; and, if not rebutted, remains sufficient for that purpose.'' For
similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911,
quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977,
978, D.C. Cir. 1945, which notes ``Justice Story's often quoted
definition of prima facie evidence.''
This definition is also employed by Black's Law Dictionary, which
defines ``prima facie evidence'' as:
Such evidence as, in the judgment of the law, is sufficient
to establish a given fact and which if not rebutted or
contradicted, will remain sufficient. [Prima facie evidence],
if unexplained or uncontradicted, is sufficient to sustain a
judgment in favor of the issue which it supports, but [it]
may be contradicted by other evidence.
In a recent concurring and dissenting opinion, Justice Scalia went so
far as to describe this definition of ``prima facie evidence'' as
``canonical.'' He also stated:
The established meaning in Virginia, then, of the term
``prima facie evidence'' appears to be perfectly orthodox: It
is evidence that suffices, on its own, to establish a
particular fact. But it is hornbook law that this is true
only to the extent that the evidence goes unrebutted. ``Prima
facie evidence of a fact is such evidence as, in judgment of
law, is sufficient to establish the fact; and, if not
rebutted, remains sufficient for the purpose.'' 7B Michie's
Jurisprudence of Virginia and West Virginia Sec. 32, 1998,
(emphasis added).
Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring
in part, concurring in judgment in part, and dissenting in part.
Other Federal courts continue to use this definition of ``prima facie
evidence:''
``A prima facie showing simply means evidence of such
nature as is sufficient to establish a fact and which, if
unrebutted, remains sufficient for that purpose.'' Cumulus
Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d
1167, 1176 n.13, 11th Cir. 2002.
[[Page S5984]]
``Under [the prima facie evidence] standard, it is
plaintiff's burden to demonstrate the existence of every fact
required to satisfy both the forum's long-arm statute and the
Due Process Clause of the Constitution. The prima facie
showing must be based upon evidence of specific facts set
forth in the record. To meet this requirement, the plaintiff
must go beyond the pleadings and make affirmative proof.
However, in evaluating whether the prima facie standard has
been satisfied, the district court is not acting as a
factfinder; rather, it accepts properly supported proffers of
evidence by a plaintiff as true and makes its ruling as a
matter of law. When the district court employs the prima
facie standard appellate review is de novo.'' United States
v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir.
2001, citations and quotations omitted.
``Prima facie evidence consists of specific factual
information which, in the absence of rebuttal, is sufficient
to show that a fairness doctrine violation exists. * * * * In
general terms, prima facie evidence is evidence which is
sufficient in law to sustain a finding in favor of a claim,
but which may be contradicted.'' American Security Council
Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24,
D.C. Cir. 1979.
``A prima facie case is established by evidence adduced by
the plaintiff in support of his case up to the time such
evidence stands unexplained and uncontradicted. The words
`prima facie,' when used to describe evidence, ex vi termini
imply that such evidence may be rebutted by competent
testimony. The term prima facie evidence' implies evidence
which may be rebutted and overcome, and simply means that in
the absence of explanatory or contradictory evidence the
finding shall be in accordance with the proof establishing
the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282,
289-90, 7th Cir. 1949, citations and quotations omitted.
``The term prima facie evidence means * * * * [e]vidence
good and sufficient on its face; such evidence as, in the
judgment of the law, is sufficient to establish a given fact,
or the group or chain of facts constituting the party's claim
or defense, and which if not rebutted or contradicted, will
remain sufficient. Prima facie evidence is evidence which, if
unexplained or uncontradicted, is sufficient to sustain a
judgment in favor of the issue which it supports, but which
may be contradicted by other evidence.''' Gibson v. Zant, 547
F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law
Dictionary, 5th Edition.
`Prima facie evidence' is evidence which, if unrebutted or
unexplained, is sufficient to establish the fact to which it
is related. It proves the fact until other proof contradicts
or overcomes the factual hypothesis initially set up by the
presumption.'' DAL Int'l Trading Co. v. The SS Milton J.
Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959.
The FPA makes its special motion to dismiss available in cases
arising out of speech on matters of public concern. It bears emphasis
that ``matters of public concern'' include commentary on consumer
products. As the Pennsylvania intermediate court of appeals recently
noted, in American Future Systems, Inc. v. Better Business Bureau of
Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a
``statement regarding the effectiveness of a consumer product addresses
a matter of public concern.'' Similarly, the U.S. Court of Appeals for
the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th
Cir. 1990, concluded that ``statements about product effectiveness''
address matters of public concern. And the Second Circuit, in Flamm v.
American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000,
has held that a negative evaluation of an attorney's services, directed
to potential customers, addresses a matter of public concern.
The following quotation from a New Jersey Supreme Court opinion,
citing other courts' decisions, illustrates the breadth of support for
the proposition that commentary on products or services offered to
consumers is a matter of public concern. That court noted, in Dairy
Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45,
516 A.2d 220, 230, 1986, that:
Some courts have developed criteria for determining whether
the activities and products of corporations constitute
matters of public interest. As previously indicated, matters
of public interest include such essentials of life as food
and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623
F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc.,
supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American
Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863.
Widespread effects of a product are yet another indicator
that statements about the product are in the public interest.
Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th
Cir.1971) (possible causes of cancer are a matter of public
concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp.
at 156, article on an arthritis cure is in public interest
because significant portion of population is afflicted with
arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet
Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90,
1974, flammability of 25,000 baby cribs held to be matter of
public interest; Krebiozen Research Found. v. Beacon Press,
Inc., 334 Mass. 86,
----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct.
65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter
of public concern. Still another criterion is substantial
government regulation of business activities and products.
The FPA thus protects speech consisting of consumer commentary that
focuses solely on the quality, reliability, or effectiveness of a
consumer product, regardless of whether such commentary addresses
broader social issues. The quality of goods and services offered to the
public is itself a matter of public concern. The FPA protects the
dissemination of any information about a product that would be of
interest to potential consumers.
Finally, the FPA allows removal to Federal court to be sought by a
defendant. Although current law only allows removal when the Federal
question appears on the face of a well-pleaded complaint, this rule is
only statutory. Congress is well within its power to allow removal of
cases that raise a colorable Federal defense.
Two current Federal statutes clearly allow removal by defendants
based only on the assertion of a Federal defense. One is 28 U.S.C.
Sec. 1442(a), which allows Federal officers, among others, to remove a
state civil action or prosecution to federal court. The other is 9
U.S.C. Sec. 205, which allows removal of disputes that appear to be
covered by an international arbitration agreement.
Although such a limitation is not stated on the face of section 1442,
the Supreme Court has long held that ``federal officer removal must be
predicated on the allegation of a colorable federal defense.'' Mesa v.
California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which
notes that ``an unbroken line of this Court's decisions extending back
nearly a century and a quarter have understood all the various
incarnations of the federal officer removal statute to require the
averment of a federal defense.''
The most recent Supreme Court pronouncements confirm that `Article
III `arising under' jurisdiction is broader than federal question
jurisdiction under Sec. 1331,'' Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal-
question jurisdiction ``has been construed as permitting Congress to
extend federal jurisdiction to any case of which federal law
potentially forms an ingredient,'' Franchise Tax Board v. Construction
Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of
the United States, 9 What. 738, 823 (1824)).
In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme
Court also noted that
``[t]he judicial power * * * * was not to be exercised
exclusively for the benefit of parties who might be
plaintiffs, and would elect the national forum, but also for
the protection of defendants who might be entitled to try
their rights, or assert their privileges, in the same
forum,'' and further noting that ``we are referred to the
power which it is admitted congress possess to remove suits
from state courts to the national courts.''
The Federal-defense-based removal authorized by the FPA is thus well
within Congress's constitutional authority.
Mr. President, I ask unanimous consent that the text of the bill and
a section-by-section summary be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record as follows:
S. 3493
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Press Act of 2012''.
SEC. 2. SPECIAL MOTION TO DISMISS.
Part VI of title 28, United States Code, is amended by
adding at the end the following:
``CHAPTER 182--SPECIAL MOTION TO DISMISS
``Sec.
``4201. Special motion to dismiss.
``4202. Stay of discovery.
``4203. Exceptions for governmental litigation and commercial speech.
``4204. Interlocutory appeal.
``4205. Special motion to quash.
``4206. Removal.
``4207. Fees, costs, and sanctions.
``Sec. 4201. Special motion to dismiss
``(a) In General.--A representative of the news media (as
defined in section 552(a)(4) of title 5) may file a special
motion to dismiss
[[Page S5985]]
any claim asserted against the representative of the news
media in a civil action if the claim arises in whole or in
part from an oral or written statement or other expression
that is on a matter of public concern or that relates to a
public official or figure.
``(b) Time Limit.--Unless the court grants an extension, a
special motion to dismiss under this section shall be filed--
``(1) not later than 45 days after the date of service of
the claim, if the claim is filed in Federal court; or
``(2) not later than 30 days after the date of removal, if
the claim is removed to Federal court under section 4206.
``(c) Amendments.--If a special motion to dismiss is filed
under this section as to a claim, the claim may not be
amended or supplemented until a final and unappealable order
is entered denying the special motion to dismiss.
``(d) Burdens of Proof.--
``(1) Moving party.--A representative of the news media
filing a special motion to dismiss under this section as to a
claim shall have the burden of making a prima facie showing
that the claim is a claim described in subsection (a).
``(2) Nonmoving party.--If the movant meets the burden
described in paragraph (1) for a claim, the party asserting
the claim shall bear the burden of proving that the claim
is--
``(A) legally sufficient; and
``(B) supported by a prima facie showing, based on
admissible evidence, of facts sufficient to sustain a
favorable judgment.
``(3) Failure to meet burden.--If the nonmoving party fails
to meet the burden required for a claim under paragraph (2),
the claim shall be dismissed with prejudice.
``Sec. 4202. Stay of discovery
``(a) In General.--Except as provided in subsection (b),
upon the filing of a special motion to dismiss under section
4201, discovery proceedings in the action shall be stayed
until a final and unappealable order is entered on the
special motion to dismiss.
``(b) Limitation and Exception.--
``(1) Limitation.--A stay issued under subsection (a) based
on the filing of a special motion to dismiss that only seeks
dismissal of a third-party claim or a cross claim asserted by
a defendant shall only stay discovery that--
``(A) is requested by the party asserting the third-party
claim or cross claim; or
``(B) relates solely to the third-party claim or cross
claim.
``(2) Exception.--Upon motion and for good cause shown, a
court may order that specified discovery be conducted.
``Sec. 4203. Exceptions for governmental litigation and
commercial speech
``A special motion to dismiss under section 4201 may not be
filed as to a claim that--
``(1) is brought by the Federal Government or the attorney
general of a State; or
``(2) arises out of a statement offering or promoting the
sale of the goods or services of the person making the
statement.
``Sec. 4204. Interlocutory appeal
``An aggrieved party may take an immediate interlocutory
appeal from an order granting or denying in whole or in part
a special motion to dismiss under section 4201.
``Sec. 4205. Special motion to quash
``(a) In General.--A person whose personally identifying
information is sought in connection with a claim that arises
in whole or in part from an oral or written statement or
other expression that is on a matter of public concern or
that relates to a public official or figure, or a person from
whom such information is sought in connection with such a
claim, may file a special motion to quash the request or
order to produce the information.
``(b) Burdens of Proof.--
``(1) Moving party.--A person filing a special motion to
quash a request or order under this section shall have the
burden of making a prima facie showing that the request or
order is a request or order described in subsection (a).
``(2) Nonmoving party.--If the movant meets the burden
described in paragraph (1), the party who made the request or
sought the order shall bear the burden of showing that the
claim described in subsection (a) is--
``(A) legally sufficient; and
``(B) supported by a prima facie showing, based on
admissible evidence, of facts sufficient to sustain a
favorable judgment.
``(3) Failure to meet burden.--If the nonmoving party fails
to meet the burden required for a claim under paragraph (2),
the request or order to produce the personally identifying
information shall be quashed.
``Sec. 4206. Removal
``(a) Special Motion To Dismiss.--
``(1) In general.--Except as provided in paragraph (2), a
civil action in a State court that raises a claim that
colorably appears to be a claim described in section 4201(a)
may be removed to the district court of the United States for
the district and division embracing the place where the civil
action is pending by a party who may file and who seeks to
file a special motion to dismiss under section 4201 that
asserts a colorable defense based on the Constitution or laws
of the United States.
``(2) Exception.--Removal may not be requested under
paragraph (1) on the basis of a third-party claim or a cross
claim asserted by a defendant.
``(3) Remand.--If a civil action is removed under paragraph
(1), and a final and unappealable order is entered denying
the special motion to dismiss filed under section 4201, the
court may remand the remaining claims to the State court from
which the civil action was removed.
``(b) Special Motion To Quash.--
``(1) In general.--A proceeding in a State court in which a
request or order that colorably appears to be a request or
order described in section 4205(a) is sought, issued, or
sought to be enforced may be removed to the district court of
the United States for the district and division embracing the
place where the civil action is pending by a person who may
file and who seeks to file a special motion to quash under
section 4205 that asserts a colorable defense based on the
Constitution or laws of the United States.
``(2) Limitation.--If removal is requested under paragraph
(1) for a proceeding in which a request or order described in
section 4205(a) is sought, issued, or sought to be enforced,
and there is no basis for removal of the remainder of the
civil action in connection with which the proceeding is
brought, or no party has requested removal of the remainder
of the civil action, only the proceeding in which the request
or order described is section 4205(a) is sought, issued, or
sought to be enforced may be removed.
``Sec. 4207. Fees, costs, and sanctions
``(a) Attorney's Fees and Costs.--Except as provided in
subsection (c), a court shall award a person who files and
prevails on a special motion to dismiss under section 4201 or
a special motion to quash under section 4205 litigation
costs, expert witness fees, and reasonable attorney's fees.
``(b) Frivolous Motions or Petitions.--Except as provided
in subsection (c)(1), if a court finds that a special motion
to dismiss under section 4201, a special motion to quash
under section 4205, or a notice of removal under section 4206
is frivolous or is solely intended to cause unnecessary
delay, the court may award litigation costs, expert witness
fees, and reasonable attorney's fees to the party that
responded to the motion or notice.
``(c) Exceptions.--
``(1) Governmental entities.--The Federal Government and
the government of a State, or political subdivision thereof,
may not recover litigation costs, expert witness fees, or
attorney's fees under this section.
``(2) Novel legal questions.--A court may not award
litigation costs, expert witness fees, or attorney's fees
under subsection (a) if the grant of the special motion to
dismiss under section 4201 or the special motion to quash
under section 4205 depended on the resolution of a novel or
unsettled legal question in favor of the movant.''.
SEC. 3. RELATIONSHIP TO OTHER LAWS.
Nothing in this Act or the amendments made by this Act
shall preempt or supersede any Federal or State statutory,
constitutional, case, or common law that provides the
equivalent or greater protection for persons engaging in
activities protected by the First Amendment to the
Constitution of the United States.
SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Table of Chapters.--The table of chapters for part VI
of title 28, United States Code, is amended by adding at the
end the following:
``182. Special motion to dismiss............................4201''.....
(b) Interlocutory Appeals.--Section 1292(a) of title 28,
United States Code, is amended--
(1) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(2) by adding at the end the following:
``(4) Interlocutory orders granting or denying in whole or
in part special motions to dismiss under section 4201.''.
(c) Nondischargability of Fees and Costs.--Section 523(a)
of title 11, United States Code, is amended--
(1) in paragraph (18), by striking ``or'' at the end;
(2) in paragraph (19), by striking the period at the end
and inserting ``; or''; and
(3) by inserting after paragraph (19) the following:
``(20) for litigation costs, expert witness fees, or
reasonable attorney's fees awarded by a court under chapter
182 of title 28 or under comparable State laws.''.
SEC. 5. EFFECTIVE DATE; APPLICABILITY.
(a) Effective Date.--Except as provided in subsection (b),
this Act and the amendments made by this Act shall--
(1) take effect on the date of enactment of this Act; and
(2) apply to a claim filed on or after the date of
enactment of this Act.
(b) Claims Filed Before Enactment.--For a claim that was
filed before and is pending on the date of enactment of this
Act--
(1) this Act and the amendments made by this Act shall
apply to the claim if the court with original jurisdiction of
the claim has not entered a judgment on the merits as to the
claim as of the date of enactment of this Act; and
(2) for a claim described in paragraph (1), the periods
under sections 4201 and 1446 of title 28, United States Code,
as amended by this Act, shall begin on the date of enactment
of this Act.
Free Press Act: Section-by-Section Summary
Section 4201. Special Motion to Dismiss. A ``representative
of the news media'' (as defined in FOIA) may file a special
motion to dismiss a legal claim arising out of speech on
[[Page S5986]]
a matter of public concern or that relates a public official
or figure. Once the motion is properly brought, the nonmovant
must show that the lawsuit is supported by a prima facie
showing of facts sufficient to sustain a favorable judgment.
If the nonmovant fails to meet this burden, the lawsuit is
dismissed with prejudice.
Section 4202. Stay of Discovery. Upon filing of the special
motion to dismiss, discovery is stayed absent good cause
shown. If the motion is filed with respect to a cross claim
or third-party claim, discovery is stayed only with respect
to that claim. (This exception is made to prevent defendants
from using the special motion to dismiss to affect litigation
in which the complaint does not assert claims arising out of
speech on public issues.)
Section 4203. Governmental Litigation and Commercial Speech
Exceptions. A special motion to dismiss may not be brought
against a claim that is brought by the Federal government or
a State Attorney General, or that arises out of speech
offering or promoting the sale of the speaker's goods or
services.
Section 4204. Interlocutory Appeal. Either side may bring
an immediate appeal of the denial or grant of a special
motion to dismiss.
Section 4205. Special Motion to Quash. A party may move to
quash a request to obtain the personally identifying
information of a person that is made in relation to a legal
claim arising out of speech on public issues. (E.g., a
company seeks discovery from an ISP of the identity of
persons posting unfavorable comments about the company's
goods or services on a blog.) If the motion to quash is
properly brought, the nonmovant must show that the legal
claim is supported by a prima facie showing of facts
sufficient to sustain a favorable judgment. If the nonmovant
fails to meet this burden, the request for personally
identifying information is quashed.
Section 4206. Removal. A state-court claim arising out of
speech on public issues may be removed to federal court by a
party that intends to file a special motion to dismiss the
claim. Removal may not be requested on the basis of a cross
claim or third-party claim. (This exception is made to
prevent defendants from removing cases in which the complaint
does not assert claims arising out of speech on public
issues.) A proceeding to enforce discovery requesting
personally identifying information may also be removed, but
removal is limited to the discovery-enforcement proceeding.
Section 4207. Fees, Costs, and Sanctions. A party that
prevails on a special motion to dismiss or quash shall be
entitled to reasonable attorneys fees and costs. Frivolous
motions to dismiss or quash or remove shall be subject to
sanctions. Fees may not be recovered by the government, or in
cases that turn on the resolution of a novel legal question.
______
By Mr. COCHRAN (for himself and Mr. Wicker):
S. 3496. A bill to amend title XVIII of the Social Security Act to
permit direct payment to pharmacies for certain compounded drugs that
are prepared by the pharmacies for a specific beneficiary for use
through an implanted infusion pump; to the Committee on Finance.
Mr. COCHRAN. Mr. President, on May 13, 2011, the Centers for Medicare
and Medicaid Services issued Change Request 7397 to stop compounding
pharmacies that prepare medications used in implanted infusion pumps
from billing Medicare directly for these services. This was an attempt
to reverse a policy that has been permissible in several States for
over 20 years. Since then, I have worked with Senator Wicker and other
Members of Congress to delay the implementation of this change until
its effects have been fully considered.
This policy change has been met with opposition from pharmacies,
physicians, and patients. In Mississippi, pharmacies are prohibited
from selling infused pain medications to physicians, which would result
in decreased access to effective treatments for chronic pain disorders.
While this is a particular issue in my State, this policy change will
have serious implications across the Nation.
The Centers for Medicare and Medicaid Services has worked with us
over the past year to delay this policy change and to propose a rule
that is now receiving comments. However, CMS officials have continued
to demonstrate a lack of understanding about the potential consequences
of changing payment policy. We should protect practices that have been
effective in treating patients and support those who supply drugs
necessary for the well-being of patients. This bill would explicitly
allow compounding pharmacies to bill Medicare directly for their
services in the interest of helping patients continue to receive the
quality care they deserve.
______
By Mr. REID (for himself and Mr. McConnell):
S. 3510. A bill to prevent harm to the national security or
endangering the military officers and civilian employees to whom
internet publication of certain information applies, and for other
purposes; considered and passed.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record as follows:
S. 3510
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. EFFECTIVE DATE DELAY.
The STOCK Act (Public Law 112-105) is amended--
(1) in section 8(a)(1), by striking ``August 31, 2012'' and
inserting ``September 30, 2012''; and
(2) in section 11(a)(1), by striking ``August 31, 2012''
and inserting ``September 30, 2012''.
SEC. 2. IMPLEMENTATION OF PTR REQUIREMENTS UNDER STOCK ACT.
Effective September 30, 2012, for purposes of implementing
subsection (l) of section 103 of the Ethics in Government Act
of 1978 (as added by section 6 of the STOCK Act, Public Law
112-105) for reporting individuals whose reports under
section 101 of such Act (5 U.S.C. App. 101) are required to
be filed with the Clerk of the House of Representatives,
section 102(e) of such Act (5 U.S.C. App. 102(e)) shall apply
as if the report under such subsection (l) were a report
under such section 101 but only with respect to the
transaction information required under such subsection (l).
______
By Mr. HOEVEN (for himself, Mr. Conrad, Mr. Baucus, Mr.
McConnell, Mr. Kohl, Mr. Portman, Ms. Landrieu, Mr. Boozman,
Mr. Manchin, Mr. Blunt, Mr. Warner, Mr. Johnson of Wisconsin,
Mr. Pryor, Mr. Moran, Mrs. McCaskill, Mr. Alexander, Mr. Nelson
of Nebraska, Mr. Toomey, Mr. Nelson of Florida, Mr. Graham, Mr.
Casey, Mr. Thune, Mr. Webb, and Mr. Hatch):
S. 3512. A bill to amend subtitle D of the Solid Waste Disposal Act
to facilitate recovery and beneficial use, and provide for the proper
management and disposal, of materials generated by the combustion of
coal and other fossil fuels; to the Committee on Environment and Public
Works.
Mr. HOEVEN. Mr. President, I rise today to introduce legislation on
another matter, important energy legislation for our country. I am
today introducing the Hoeven-Conrad-Baucus Coal Ash Recycling and
Oversight Act of 2012.
In my home State of North Dakota there is a large powerplant just
north of the State capital in Bismarck. It is a coal creek power
station. Now this power station generates 1,100 megawatts of
electricity every year. There are two 550 megawatt plants. It has the
latest, greatest technology emission control and clean coal technology.
They capture the steam that was formally exhausted from the plant. They
capture that steam and use it to run an ethanol plant. They produce
transportation fuel with steam, a by-product of the electric generation
process.
One of the other things they do, instead of land filling the coal
ash, fly ash, or coal residuals, they recycle. So, in essence, they
take that coal ash--they work with a natural resource company,
Headwaters, based out of Utah, and they turn the coal ash into a
concrete product, FlexCrete. It is used to make roads, bridges,
buildings, and also products like shingles. They make building
materials.
So whereas they used to take about 600,000 tons a year of coal
residuals and coal ash flash and landfill it, and it costs $6 a ton or
so to landfill it, now they take that 600,000 tons a year of fly ash
and residuals and turn it into building products.
The difference instead of paying to dispose of something and now
being paid to recycle something is about a $16 million a year revenue
item for that plant. That means lower cost for electricity for
businesses in States such as the great State of North Dakota and the
great State of Minnesota and other States as well. It truly benefits
our consumers, our families, and our economy. It benefits small
businesses throughout the upper Midwest. So it is truly a great example
of American ingenuity and innovation.
[[Page S5987]]
In fact, I have a picture right here. This is the North Dakota
Heritage Center. Right now there is a $50 million expansion being
constructed in that Heritage Center which is located on the capital
grounds in Bismarck. It is a $50 million expansion. They are using
building materials made of coal ash for this facility. That is what it
is going to look like after they do this $50 million expansion.
Let me give another example. This is the National Energy Center of
Excellence at Bismarck State College. It is a 2-year college that
trains people for the energy industry. It is located right above the
Missouri River. This beautiful window overlooks the Missouri River.
Again this is a building constructed with building materials made of
fly ash. We can see how this product is being used and how effectively
this is being used.
As a matter of fact, if we look nationwide, by recycling coal ash we
reduce energy consumption by 162 trillion Btus every year. That is the
amount of energy we would use to 1.7 million homes in a year. It is
pretty substantial energy savings. Or measure it in terms of water use.
By recycling coal ash, we reduce water usage by 32 billion gallons
annually. That is about one-third of the total amount of water that the
State of California uses in a year.
Why do I tell the story? Because right now the EPA is looking at
changing the regulation of coal ash. They are looking at changing the
regulation of coal ash to doing it under subtitle C of the Resource
Conservation and Recovery Act. The problem is that is the hazardous
waste section. Right now coal ash is regulated under subtitle D of the
Resource Conservation and Recovery Act, which is the nonhazardous waste
section. The EPA is looking at making that change in spite of the fact
that the Department of Energy, the Federal Highway Administration,
State regulatory agencies, and the EPA itself have done studies, and
those studies have shown that is not a toxic waste.
The EPA first proposed this new regulation in June of 2010. This
regulation would truly undermine the industry, drive up costs, and
eliminate jobs when our economy can least afford it. In fact, according
to industry estimates, it would increase electricity costs by up to
almost $50 billion annually and eliminate 300,000 American jobs.
Let me elaborate. Meeting the regulatory disposal requirements under
the EPA's subtitle C proposal would cost between $250 and $450 per ton
as opposed to about $100 per ton under the current system. That would
translate into $47 billion in terms of burden on electricity generators
that use coal and, of course, most importantly, their customers who
would see their bills increased. As I said, overall it would cost about
300,000 American jobs for our economy.
That is why I am introducing the Hoeven-Conrad-Baucus Recycling and
Oversight Act, which is S. 3512, and it has very strong bipartisan
support. It is truly a bipartisan bill, including 12 Republican
sponsors and 12 Democratic sponsors. The Republican sponsors include
myself, Senator McConnell, Senator Portman, Senator Boozman, Senator
Blunt, Senator Ron Johnson, Senator Moran, Senator Alexander, Senator
Toomey, Senator Graham, Senator Thune, and Senator Hatch. The
Democratic cosponsors include Senator Conrad, Senator Baucus, Senator
Kohl, Senator Landrieu, Senator Manchin, Senator Warner, Senator Pryor,
Senator McCaskill, Senator Ben Nelson, Senator Bill Nelson, Senator
Casey, and Senator Webb. I wish to thank them for their willingness to
join together in a bipartisan way--12 Republicans, 12 Democrats--coming
together to provide the kind of energy legislation that is going to
truly help move this country forward, empowering not only more energy
development but better environmental stewardship.
This legislation is similar to H.R. 2273, which was sponsored by
Representative David McKinley of West Virginia in the House, and it
passed the House with strong bipartisan support. This legislation is
very similar. We have made some enhancements, but it is very similar.
The bill not only preserves coal ash recycling by preventing these
by-products from being treated as hazardous, it also establishes--and
this is important because it is also about good environmental
stewardship--it also establishes comprehensive Federal standards for
coal ash disposal. Under this legislation, States can set up their own
permitting program for the management and the disposal of coal ash.
These programs would be required to be based on existing EPA
regulations that protect human health and the environment. If a State
does not implement an acceptable permitting program, then EPA regulates
the program for the State. As a result, States and industry will know
where they stand under the bill, since the benchmarks for what
constitutes a successful State program will be set in statute. EPA can
say yes, the State does meet those standards, or no, it does not, but
the EPA cannot move the goalposts.
This is a States-first approach that provides regulatory certainty.
Let me repeat that. This is a States-first approach that provides
regulatory certainty, and it is that regulatory certainty we need to
stimulate private investment that will deploy the new technologies that
will not only produce more energy but will produce better environmental
stewardship.
What is certain is that under this bill, coal ash disposal sites will
be required to meet established standards. Those established standards
include groundwater detection and monitoring, liners, corrective action
when environmental damage occurs, structural stability criteria, and
the financial assurance and recordkeeping needed to protect the public.
This legislation is needed to protect jobs and help reduce the cost
of homes and roads as well as to help reduce electric bills.
I wish to thank both Republicans and Democrats who have taken a
leadership role in this effort as original sponsors of the legislation.
I especially wish to express thanks to my fellow Senator from North
Dakota, Mr. Conrad, as well as Senator Baucus of Montana and their
staffs for the hard work that has gone into this legislation. I urge
our colleagues to join us in this important energy legislation.
______
By Mr. REED:
S. 3513. A bill to promote the development of local strategies to
coordinate use of assistance under sections 8 and 9 of the United
States Housing Act of 1937 with public and private resources, to enable
eligible families to achieve economic independence and self-
sufficiency, and for other purposes; to the Committee on Banking,
Housing, and Urban Affairs.
Mr. REED. Mr. President, today I introduce the Family Self-
Sufficiency Act.
The Family Self Sufficiency, FSS, program is an existing employment
and savings incentive initiative for families that have section 8
vouchers or live in public housing. The FSS program provides two key
tools for its participants: first, it provides access to the resources
and training that help participants pursue employment opportunities and
meet financial goals, and second, it encourages FSS families to save by
establishing an interest-bearing escrow account for them. Upon
graduation from the FSS program, the family can use these savings to
pay for job-related expenses, such as the purchase or maintenance of a
car or for additional workforce training.
My legislation seeks to enhance the FSS program by streamlining the
administration of this program, by broadening the supportive services
that can be provided to a participant, and by extending the FSS program
to tenants who live in privately-owned properties with project-based
assistance.
First, to streamline the FSS program, my bill would combine the two
separate FSS programs into one. Currently, HUD operates one FSS program
for those families being served by the Housing Choice Voucher Program
and another for those families being served by the Public Housing
program, even though the core purpose of each FSS program, to increase
economic independence and self-sufficiency, is the same for both. As a
result, Public Housing Agencies, PHAs, have to operate essentially two
programs to achieve the same goal. With my bill, PHAs would be relieved
of this unnecessary burden.
Second, my legislation broadens the scope of the supportive services
that may be offered to include attainment
[[Page S5988]]
of a GED, education in pursuit of a post-secondary degree or
certification, and training in financial literacy. Providing families
in need with affordable rental housing is critical, but coupling it
with the support and services to help families get ahead is more
effective. This legislation makes it easier for FSS participants to
obtain the training necessary to secure employment and the education to
make prudent financial decisions to better safeguard their earnings.
Lastly, this bill opens up the FSS program to families who live in
privately-owned properties subsidized with project-based rental
assistance. It shouldn't matter what kind of housing assistance a
family gets, and families seeking to achieve self-sufficiency shouldn't
be held back by this sort of technicality.
I urge my colleagues to support this bill, which will help give those
receiving housing assistance a better chance to build their skills and
achieve economic independence.
______
By Ms. SNOWE:
S. 3516. A bill to encourage spectrum licenses to make unused
spectrum available for use by rural and smaller carriers in order to
expand wireless coverage; to the Committee on Commerce, Science, and
Transportation.
Ms. SNOWE. Mr. President, I rise today to introduce legislation to
help expand wireless broadband to rural areas. Specifically, the Rural
Spectrum Accessibility Act would direct the Federal Communications
Commission, FCC, establish a program that would provide an incentive, a
three year extension to a spectrum license, to wireless carriers that
make available, through partitioning and disaggregation, unused
spectrum to smaller carriers or carriers serving rural areas.
As the FCC National Broadband Plan reports ``most areas without
mobile broadband coverage are in rural or remote areas.'' This
legislation would provide an additional incentive to increase wireless
broadband to these areas and make more spectrum available to smaller
and rural wireless carriers through secondary market mechanisms.
This bill is loosely based on a wireless carrier's existing program,
which creates a partnership with rural carriers to build and operate
Long Term Evolution, LTE, wireless networks in rural areas. Through the
cooperation the carrier provides spectrum and core network equipment
and the rural carrier supplies the cell towers and backhaul.
The Rural Spectrum Accessibility Act is an effort to get other large
carriers to implement similar initiatives to create more opportunities
for the smaller and rural carriers. It should be noted the FCC actually
already has partitioning and disaggregation rules, see 47 C.F.R.
22.948, this legislative proposal just provides a simple but attractive
incentive for carriers to utilize them.
The main goal of this legislation is to provide another catalyst to
expand next generation, 4G, Wireless broadband service to rural areas,
which will mean more reliable service, more innovation, and more choice
to rural consumers and businesses.
The increasing importance of wireless communications and broadband
has a direct correlation to our Nation's competitiveness, economy, and
national security. We must reform existing spectrum policy and
management to ensure that all Americans continue to realize the
boundless benefits of wireless broadband. Congress has taken some steps
but more can and must be done. That is why I sincerely hope that my
colleagues join me in supporting this important legislation.
______
By Mr. WYDEN:
S. 3518. A bill to make it a principal negotiating objective of the
United States in trade negotiations to eliminate government fisheries
subsidies, and for other purposes; to the Committee on Finance.
Mr. WYDEN. Mr. President, I rise today to introduce the Fair Trade in
Seafood Act.
Right now, our country is proud to be a world leader in the fishing
and seafood processing industries. We rank among the world's top five
exporters of seafood, and its largest importer. However, the U.S.
seafood industry faces many challenges on the global stage from unfair
competition. The Congress should be doing everything it can to make
sure we retain our status as global leader. That is why I am
introducing the Fair Trade in Seafood Act. This bill will establish
this issue as a Principal Negotiating Objective of the United States in
the ongoing Trans-Pacific Partnership and World Trade Organization
talks.
Why is this bill important? According to the United Nations Food and
Agricultural Organization, 85 percent of the world's fisheries are
fully exploited, overexploited, depleted, or recovering from
depletion--the highest percentage since the Food and Agricultural
Organization began keeping records.
Many governments continue to provide significant subsidies that push
their fleets to fish longer, more intensively, and farther away than
otherwise would be possible. These destructive fisheries subsidies are
estimated to be at least $16 billion annually, an amount equivalent to
approximately 20 percent of the value of the world catch. The
detrimental effects of these illegal subsidies are so significant that
eliminating them is the single greatest action that can be taken to
protect the world's oceans.
In contrast to these nefarious actors, the U.S. does not just talk
about the importance of sustainable fishing practices and marine
conservation. We are practicing what we preach. That means enforcing
regulations and changing old, counterproductive, destructive habits.
Our seafood industry is stronger because of it. At the same time, our
market is open. In my view, this is the way every country ought to run
its seafood industry. Our foreign trading partners, as I mentioned,
often support practices that can cause long-term harm to marine
habitat. In addition, our trading partners put up trade barriers that
prevent sustainably caught U.S. seafood from reaching foreign
consumers. These are practices that skew the playing field in a
competitive marketplace. They skew the playing field against American
fishers and give foreign competitors a huge advantage in an industry
that depends on global trade. Forty percent of global fishery products
are traded internationally, and seafood is more globally sourced than
coffee, rice, and tea combined.
These harmful foreign trade barriers and practices that encourage
overfishing are top priorities that need to be addressed. These foreign
trade barriers harm our country's ability to create good-paying jobs.
Preserving the wealth of the world's marine environment is of paramount
importance. The U.S. seafood industry represents a major portion of our
economy, employing over 1.5 million workers in the commercial sector
alone. The commercial seafood industry has a significant presence in
over 23 States and is an industry and, in fact, a way of life, a way of
life that binds communities and stitches together the regions of our
country. The seafood sector employs more people than the mining or oil
industries.
It is also a foundation of our economy because, without fish, there
are no jobs. Preserving the wealth of our oceans and rivers is an
economic imperative as much as a moral one. That is why I urge my
colleagues to cosponsor the Fair Trade in Seafood Act.
In short, this Act will codify an official trade negotiating
objective of the United States with respect to government fisheries
subsidies. More specifically, the negotiating objective will be to
eliminate fisheries subsidies provided by governments that unfairly
destroy markets to the detriment of the United States commercial
fishing interests and that perpetuate unsustainable fishing practices.
The bill aims to ensure that any commitments with respect to such
subsidies are enforceable under appropriate trade laws. This
negotiating objective will apply to any trade agreement that includes
any negotiations relating to the elimination or reduction of government
fisheries subsidies.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3518
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page S5989]]
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Trade in Seafood Act''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) According to the Food and Agriculture Organization of
the United Nations, 85 percent of the world's fisheries are
overexploited, fully exploited, significantly depleted, or
recovering from overexploitation, the highest percentage ever
on record.
(2) A primary reason for the global fisheries crisis is
government subsidies that create perverse incentives for
continued fishing in the face of declining catches.
(3) Despite the dire conditions of the world's marine
resources, some of the countries that engage in the most
fishing continue to provide significant subsidies to their
fishing fleets.
(4) Fisheries subsidies are estimated to be approximately
20 percent of the value of the world catch and have helped
create a global fishing fleet that is up to 250 percent
larger than that needed to fish sustainably.
(5) Many long-range foreign fleets are supported by
government subsidies for fuel, other operational expenses,
and vessel construction that allow their fleets to fish
longer, at greater distances, and more intensively than is
commercially or environmentally warranted. Those fleets would
not be viable without the support of government subsidies.
(6) Many developing countries are particularly affected by
fisheries subsidies provided by other governments because the
developing countries are unable to compete against subsidized
industrial fleets.
(7) Fisheries subsidies offered by the governments of other
countries give the fleets of those countries an unfair
advantage over United States fishermen by reducing the costs
of operations and increasing the number, size, and power of
vessels competing for fish. Foreign fisheries subsidies also
undermine opportunities for United States fishermen in
potential export markets.
(8) Without committed global leadership to reduce
``overfishing subsidies'', there is a significant risk that
the oceans will become too depleted to fish, resulting in a
catastrophic blow to the world economy and environment.
(9) As one of the world's largest importers of seafood and
one of the top five exporters of seafood, the United States
has a particular responsibility to lead trade negotiations to
address fisheries subsidies and make the establishment of
strong new rules on fisheries subsidies a core priority in
United States trade negotiations.
(10) Paragraphs 28 and 31 of the Ministerial Declaration of
the World Trade Organization adopted at Doha November 14,
2001, which launched the Doha Development Agenda, called for
negotiations to clarify and improve disciplines on trade-
distorting government fisheries subsidies.
(11) Paragraphs 9 through 11 of Annex D of the Ministerial
Declaration of the World Trade Organization adopted at Hong
Kong December 18, 2005, reinforced the Doha fisheries
subsidies mandate, noting that ``there is broad agreement
that the Group should strengthen disciplines on subsidies in
the fisheries sector, including through the prohibition of
certain forms of fisheries subsidies that contribute to
overcapacity and over-fishing'' and calling on ``Participants
promptly to undertake further detailed work to, inter alia,
establish the nature and extent of those disciplines,
including transparency and enforceability''.
(12) The negotiations on fisheries subsidies in the World
Trade Organization and negotiations for the Trans-Pacific
Partnership Agreement are two of the most important, and
promising, international efforts to stop global overfishing
and represent meaningful efforts to directly address a key
environmental issue that directly impacts international
trade.
(13) On November 12, 2011, the leaders of the 9 countries
in negotiations for the Trans-Pacific Partnership Agreement--
Australia, Brunei Darussalam, Chile, Malaysia, New Zealand,
Peru, Singapore, Vietnam, and the United States--announced
the achievement of the broad outlines of an ambitious, 21st-
century agreement. According to a statement released by those
leaders, the agreed outline calls for ``[a] meaningful
outcome on environment [that] will ensure that the agreement
appropriately addresses important trade and environment
challenges and enhances the mutual supportiveness of trade
and environment. The TPP countries share the view that the
environment text should include effective provisions on
trade-related issues that would help to reinforce
environmental protection and are discussing an effective
institutional arrangement to oversee implementation and a
specific cooperation framework for addressing capacity
building needs.''. Various proposals, including a proposal by
the United States, to bring disciplines to government-
subsidized fishing are under active discussion as part of the
negotiations on the environment chapter of the Trans-Pacific
Partnership Agreement.
(14) The United States continues to make achievement of an
agreement on disciplines on government fisheries subsidies a
priority in negotiations in the World Trade Organization and
for the Trans-Pacific Partnership Agreement. On December 16,
2011, at the Eighth Ministerial Conference of the World Trade
Organization in Geneva, the United States Trade
Representative issued a statement urging ``continued work
toward an ambitious outcome on fisheries subsidies under the
WTO''. Noting the acute impact of declining catches on
developing countries, the Trade Representative further
stated, ``We stand ready to explore new negotiating
approaches that can move us towards the elimination of
harmful subsidies that contribute to overcapacity and
overfishing. . . . WTO Members have a duty to address one of
the root causes of overfishing and overcapacity--the
fisheries subsidies that encourage fishing enterprises to
fish longer, harder, and farther than would otherwise be
sustainable without subsidy aid. . . . The United States is
ready to continue this work in the WTO and in other
appropriate fora--including free trade agreements such as the
Trans-Pacific Partnership and other bilateral, regional and
multilateral initiatives.''.
(15) A strong fisheries subsidies agreement by the World
Trade Organization and in the Trans-Pacific Partnership
Agreement would set an historic precedent by showing that
international trade can directly benefit the environment
while promoting exports and open markets.
SEC. 3. TRADE NEGOTIATING OBJECTIVES OF THE UNITED STATES
WITH RESPECT TO GOVERNMENT FISHERIES SUBSIDIES.
It shall be a principal negotiating objective of the United
States in negotiations for a trade agreement--
(1) to eliminate fisheries subsidies provided by
governments that unfairly distort markets to the detriment of
United States commercial fishing interests and that
perpetuate unsustainable fishing practices; and
(2) to ensure that any commitments with respect to such
subsidies are enforceable under appropriate trade laws.
SEC. 4. EFFECTIVE DATE.
This Act takes effect on the date of the enactment of this
Act and applies with respect to negotiations for a trade
agreement that--
(1) include any negotiations relating to the elimination or
reduction of government fisheries subsidies; and
(2) are entered into--
(A) on or after such date of enactment; or
(B) before such date of enactment if the negotiations
continue on or after such date of enactment.
____________________