[Congressional Record Volume 163, Number 15 (Monday, January 30, 2017)]
[Senate]
[Pages S491-S497]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         STATEMENTS ON INTRODUCTED BILLS AND JOINT RESOLUTIONS

      By Mrs. FEINSTEIN (for herself, Mr. Schumer, Mr. Durbin, Ms. 
        Klobuchar, Mr. Blumenthal, Mr. Wyden, Ms. Cantwell, Mr. Udall, 
        Mr. Van Hollen, Mr. Murphy, Mrs. Gillibrand, Mr. Merkley, Mr. 
        Carper, Mr. Sanders, Mr. Markey, Ms. Baldwin, Mr. Cardin, Mr. 
        Heinrich, Ms. Hassan, Mr. Brown, Ms. Stabenow, Ms. Cortez 
        Masto, Mr. Kaine, Ms. Harris, Mr. Leahy, Mr. Peters, Mr. Coons, 
        Mr. Menendez, Mrs. Murray, Mr. Booker, Mr. Whitehouse, Mr. 
        Franken, Ms. Hirono, Ms. Warren, Mr. King, Mr. Casey, Mr. 
        Warner, and Mr. Reed):
  S. 240. A bill to nullify the effect of the recent executive order 
that temporarily restricted individuals from certain countries from 
entering the United States; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I have come to the floor as we have 
just filed a resolution--a bill actually--with 26 cosponsors that would 
repeal the immigration ban placed by President Trump. President Trump's 
Muslim ban is unnecessary, it is unconstitutional, and it is un-
American. It should be repealed immediately.
  The Executive order prohibits individuals from Iran, Syria, Iraq, 
Sudan, Somalia, Libya, and Yemen from entering the country. It even 
bars relatives of Americans from visiting. The order suspends the 
entire U.S. refugee program, and most egregiously, Syrian refugees are 
banned indefinitely unless they are Christian. These provisions are not 
what America is all about.
  First, the order is unnecessary. Individuals from the 7 targeted 
countries and 150 other nations are already thoroughly screened. 
Visitors fill out visa applications. They submit photographs that run 
through biometric databases. Their personal information is reviewed, 
including names, addresses, and dates of birth. They are interviewed at 
a U.S. consulate. The process could take months to complete and 
eliminates the need for the travel ban.
  In addition, the move to ban refugees has no legitimate national 
security reason because these refugees undergo an even more thorough 
screening process that can take up to 2 years to complete. The vast 
majority of refugees are women and children who have experienced the 
absolute worst of humanity.
  Let's not forget the heart-wrenching image of the small body of Aylan 
Kurdi, a 3-year-old Syrian boy, washed up on a beach, dead. I will 
never forget this small boy in his short pants, his shoes, and his 
socks, lying on that beach. To turn away women and children and men in 
their time of dire need is not what this Nation is all about.
  Let me make this point: The poor execution of this Executive order 
has resulted in chaos and confusion. It is unclear whether the Justice 
Department or Homeland Security had any input. There seems to have been 
a disagreement about whether it would apply to green card holders. 
There was confusion about whether it applies to

[[Page S492]]

individuals already in transit or approved for travel. Even airport 
directors--I have spoken directly with the directors of Los Angeles 
International and San Francisco International, and there was confusion 
about how it applies. Even airport directors were left in the dark 
about how many people were detained and who they were.
  Sara Yarjani was one Californian caught up in this mess. She is an 
Iranian national studying at the California Institute for Human Science 
in San Diego under a valid student visa. After being detained at LAX 
for 23 hours, she was sent back to Europe, a clear violation of the 
nationwide stay against the order. What I am saying is that the court 
stay was actually violated. This is just one of more than 100 stories 
from the weekend.
  I believe this order is also unconstitutional. The First Amendment 
prohibits government from establishing a religion or prohibiting the 
free exercise thereof. The order violates this First Amendment by 
targeting Muslims and favoring Christians. The order may also violate 
the Religious Freedom Restoration Act, which forbids the government 
from burdening the person's exercise of religion. The law bars any 
discrimination based on national origin in the issuance of a visa.
  Finally, detaining people at airports may violate their Fourth 
Amendment rights.
  This was an ill-considered overreach, as the courts showed over the 
weekend, and it should be repealed.
  So the bill that 27 of us are introducing rescinds the President's 
Executive order. The text is simple because the message is simple: We 
won't stand for these types of actions.
  In conclusion, I would like to say that I am so proud of the peaceful 
demonstrations we saw, and I join those who are so passionate about the 
free exercise of religion and free speech. These are our values, Mr. 
President, as a nation, and I will be right there with you if anyone 
tries to violate them.
                                 ______
                                 
      By Mr. HOEVEN (for himself, Mr. Barrasso, Mr. McCain, Mr. 
        Lankford, Mr. Moran, and Ms. Heitkamp):
  S. 245. A bill to amend the Indian Tribal Energy Development and Self 
Determination Act of 2005, and for other purposes; to the Committee on 
Indian Affairs.
  Mr. HOEVEN. Mr. President, I rise today to introduce S. 245., the 
Indian Tribal Energy Development and Self-Determination Act Amendments 
of 2017.
  Over 10 years ago, Congress passed the Indian Tribal Energy 
Development and Self-Determination Act. This act was a step in the 
right direction to economic self-sufficiency for Indian tribes and 
energy independence for our Nation.
  It created a process for Indian tribes to govern the development of 
their energy resources while reducing costly bureaucratic burdens of 
Secretarial review, approval, and oversight. But after more than 10 
years, the act has not been implemented in a manner beneficial to the 
tribes or efficient resource development.
  Bills have been introduced for the past four Congresses to improve 
and clarify the process but none of them have been signed into law. It 
is past time Congress acts and gets this bill across the finish line to 
be signed into law.
  The bill that I am introducing today would improve, clarify, and make 
predictable the process for tribes to enter energy resource agreements 
and development. I would like to highlight some of the key provisions 
in this bill.
  The bill provides clarity regarding the specific information and time 
frames for Secretarial decisions required for tribal energy resource 
agreements. This bill recognizes the need to engage tribes by requiring 
more robust technical assistance and consultation with Indian tribes in 
the planning and development stages for energy resource development.
  It would further facilitate the Secretarial approval process for 
mineral development by allowing Indian tribes and third parties to 
perform appraisals. This bill also includes renewable energy resource 
development by authorizing tribal biomass demonstration projects to 
assist Indian tribes in securing reliable, long-term supplies of woody 
biomass materials.
  I would like to thank Senators Barrasso, McCain, Lankford, Moran, and 
Heitkamp for joining me in cosponsoring this bipartisan bill. I urge my 
colleagues to join me in advancing this bill and getting it signed into 
law expeditiously.
                                 ______
                                 
      By Mr. INHOFE (for himself, Mr. McConnell, Mr. Rounds, Mr. 
        Cassidy, and Mr. Lee):
  S.J. Res. 9. A joint resolution providing for congressional 
disapproval under chapter 8, of title 5, United States Code, of the 
rule submitted by Securities Exchange Commission relating to the 
disclosure of payments by resource extraction issuers; to the Committee 
on Banking, Housing, and Urban Affairs.
  Mr. INHOFE. Mr. President, we are introducing today a CRA that is 
kind of interesting. This is something that has only been successful 
one time.
  I think everyone knows that during the past 8 years, under the Obama 
administration, we have seen thousands, literally thousands of 
regulations that have come through that have been anti-business, many 
of them anti-certain businesses, such as the oil and gas industries. It 
is no secret, the fact that we have had a President, in President 
Obama, who has had a war on fossil fuels.
  It is interesting to me that when I go back to my State of Oklahoma--
one reason I go back all the time is because I want to be around real, 
rational people. Sometimes I get the feeling there really aren't any 
around here. They ask questions. They will say: Tell me. Explain this 
to me. In the United States of America, in order to generate power, 89 
percent of the power we are generating is either fossil fuels, coal, 
oil, gas, or nuclear. If we do away with 89 percent of our generation 
capability, then how do we run the machine called America?
  The answer is that we can't. But we don't get those types of 
questions here. I am sure most of us who go back find that kind of 
concern, and it is not confined to Oklahoma.
  I chaired the Environment and Public Works Committee during the 8 
years--during the time President Obama was in office, and most of the 
regulations were actually associated with that committee. Many 
committees have regulations associated with their committees but not 
nearly as many as Environment and Public Works. An example is the WOTUS 
regulation. Ask anyone with the American Farm Bureau or anyone who 
deals with farmers and ranchers, and the No. 1 problem they have, they 
will tell you, is nothing that is found on the AgNu Committee; it is 
the overregulation of the EPA. That is one example. The Environment and 
Public Works Committee is the committee that has the jurisdiction over 
the EPA--at least we are supposed to.
  During the time when WOTUS came through--the water regulation--it has 
historically always been the States' jurisdiction to handle water 
issues, not the Federal Government, with the exception of navigable 
water. I think we all understand that. In fact, there were several 
liberal Members in the House and Senate who tried to take the word 
``navigable'' out of the regulations, and we defeated them every time. 
The last two who tried to do that were, in fact, defeated in the polls.
  We know that in the State of Oklahoma--I should say our farmers know 
that if you put the Federal Government in charge of water regulations 
in the western part of Oklahoma, which is an arid part of the State, it 
would end up being designated as a wetland. Anyway, that is a major 
concern they had.
  Another example of regulation is President Obama's Clean Power Plan. 
We all know how that came about. Way back in 1972, I was one of the bad 
guys who told the truth about what they were referring to as global 
warming, saying the world was coming to an end. Even though a lot of 
the Members of this body didn't join in and agree with me, every time, 
without exception, they came up with a bill that would do something--
such as a cap-and-trade bill, for example--we defeated the bill, and it 
was continually defeated by an even larger margin as time went by.
  President Obama came in, and when he couldn't get the legislation he 
wanted passed, he tried to do it through regulation. That is what he 
did with the Clean Power Plan--another rule that was rejected.

[[Page S493]]

  I only bring up those examples because they are typical regulations 
that put people out of business that actually came through my 
committee.
  I am here to introduce S.J. Res. 9. This did not come through my 
committee; it came through a provision that is in the Dodd-Frank bill. 
Anyone going back to their States and talking to bankers or anyone in 
the financial industry, when talking about the Dodd-Frank bill, it is 
an example of the same type of overregulation that takes place on many 
of the issues that come before my committee.
  Section 1504 of the Dodd-Frank bill requires the Securities and 
Exchange Commission to develop a rule that requires companies to report 
payments made to a foreign government or the U.S. Federal Government 
relating to the commercial development of oil, natural gas, and 
minerals. That is a requirement which is not found in our committee, 
but it is found in the committee that handled the Dodd-Frank bill.
  While that may not sound all that significant, it strikes at the 
heart of American competitiveness. It makes public the information of 
our very best companies on how to win oil and gas deals. It requires 
companies to disclose and make public highly confidential and 
commercially sensitive information, and this is information that 
foreign competitors don't have to provide. Under this regulation, we 
would be required to provide it. That means that American companies 
would have to disclose all of the background and sensitive information 
that companies develop in competing for contracts of some kind having 
to do with oil and gasoline. It could be with another country, like 
Iran. It could be with individuals over there who are not friendly to 
the United States. Countries that don't wish to disclose the details of 
their commercial deals would now have a strong incentive to go with 
companies in countries that don't have that burdensome requirement. 
That is only natural.
  To make matters worse, the SEC's rule lacks an exemption for 
circumstances in which disclosure under 1504 would violate the laws of 
a country where a U.S. company is operating. So it leaves U.S. 
companies with a choice of complying with U.S. laws or the laws of 
foreign countries. That is an impossible position to be in and could 
put U.S. employees at risk of criminal prosecution abroad for 
facilitating the release of this information.
  If that weren't enough, the cost of complying with this regulation is 
enormous. American companies would have to comply, and it could cost 
millions of dollars. The SEC's estimate of the total compliance cost 
initially would be up to $700 million. The ongoing compliance costs 
would be as much as $581 million annually. Those costs would be borne 
by U.S. companies, and our competition would not have to do that.
  The courts already struck down this rule when it was first developed 
in August 2012. The DC Federal district court struck down the rule in 
2013 because of two substantial errors. Specifically, the Commission 
had ``misread section 1504 to mandate public disclosure of the 
reports'' and had arbitrarily declined to provide an exemption for 
countries that prohibit disclosure.
  The new rule, finalized in June of 2016, doesn't look any different. 
It is the same rule. Even though the SEC was told by the courts that 
the rule did not reflect congressional intent, they continued to put 
out a new rule that had the exact same problems as the one the court 
had vacated. It is the same rule. It is as if the Obama administration 
was rushing this rule out in hopes that there wouldn't be time or an 
opportunity for a court or Congress to overturn it. But here we are in 
the process of overturning it.
  Last week President Trump issued an Executive order to reduce the 
regulatory impact on American businesses. With this CRA, we have an 
opportunity to effectively participate in that. Our focus should always 
be America first. As the Congress looks at the competitiveness of 
American companies, we should not be subjecting our own citizens to 
lawsuits, and that is exactly what this regulation would do.
  By the way, I think we are going to get a lot of CRAs going forward, 
and I think it is important for people to understand what the CRA is. 
The CRA is the Congressional Review Act.
  There are a lot of liberal people who like to have power concentrated 
in Washington--like with the WOTUS rule. They would rather have the 
jurisdiction of the waters of the United States with the Federal 
Government instead of with State governments. That is human nature. 
That is not something up for debate. Everybody knows that.
  When individuals who are trying to centralize power in Washington go 
home and hear complaints from people in their States about regulations 
and overregulation in our society, their response is, well, that is not 
us, that is some unelected bureaucrat. A CRA forces Members of the 
Senate and House of Representatives to be held accountable to the 
people by having to take a position so that they can't go home and say: 
No, the regulators are doing this. It is interesting because it puts 
them in a position where, if we pass a CRA--and we are going to pass 
S.J. Res. 9--this will come before this body and we will have to say 
yes or no. Should we do away with this rule that everyone back home is 
opposed to? It forces them to be honest.
  I think this is one CRA that many Democrats should be sponsoring and 
voting for, and I wouldn't be surprised if we are able to get some 
cosponsors.
  Let me add one last point to outline what this is about. Within the 
Dodd-Frank bill, section 1504 is a requirement on U.S. companies 
competing for oil and gas deals throughout the world to disclose to 
their competition what goes into their bid and how they are putting it 
together, even when the other side doesn't have to do that.
  I look forward to having the opportunity to bring this to the floor 
as soon as we get our initial 30 signatures on here. Senators will see 
and have an opportunity to support this first CRA that I am very 
excited about.
                                 ______
                                 
      By Mr. McCONNELL (for himself, Mrs. Capito, Mr. Manchin, Ms. 
        Heitkamp, Mr. Hoeven, Mr. Paul, Mr. Barrasso, Mr. Inhofe, Ms. 
        Murkowski, Mr. Blunt, Mr. Sullivan, Mr. Shelby, Mr. Tillis, Mr. 
        Johnson, Mr. Toomey, Mr. Wicker, Mr. Risch, Mr. Flake, Mr. 
        Boozman, Mr. Daines, Mr. Crapo, Mr. Moran, Mr. Lankford, Mr. 
        Young, Mr. Cotton, Mr. Roberts, Mr. Enzi, Mrs. Ernst, and Mr. 
        Cornyn):
  S.J. Res. 10. A joint resolution providing for congressional 
disapproval under chapter 8 of title 5, United States Code, of the 
final rule submitted by the Secretary of the Interior relating to 
stream protection; to the Committee on Energy and Natural Resources.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the text 
of the joint resolution be printed in the Record.
  There being no objection, the text of the joint resolution was 
ordered to be printed in the Record, as follows:

                              S.J. Res. 10

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled, That Congress 
     disapproves the final rule submitted by the Secretary of the 
     Interior relating to stream protection (81 Fed. Reg. 93066 
     (December 20, 2016)), and such rule shall have no force or 
     effect.

  Mrs. CAPITO. Mr. President, the last 6 years have been devastating to 
local economies across coal country. The Mine Safety and Health 
Administration has estimated that at least 60,000 coal jobs have been 
lost since 2011, and thousands of these jobs have been in my home State 
of West Virginia.
  Excessive government regulation and other factors have done more than 
cost jobs. These policies have imperiled our coal miner retirement 
benefits, and they have left local governments struggling to keep up to 
pay for education, to pay for public works, and to pay for law 
enforcement. I can tell my colleagues story after story I have seen in 
our newspapers about this very thing.
  In October, the Senate Environment and Public Works Committee heard 
testimony from Wayne County, West Virginia commissioner Robert Pasley. 
He said that the coal severance tax revenues in Wayne County in West 
Virginia--his county--dropped by 88 percent in 2013 and 2016. This drop 
left the county without a vital funding source that traditionally 
helped to pay for local volunteer fire departments, senior citizens 
programs, and education.
  West Virginia University economist John Deskins told the Senate 
Energy

[[Page S494]]

and Natural Resources Committee in August that six West Virginia 
counties were suffering a depression--a depression--because of the coal 
downturn. And just last week, the State of West Virginia projected that 
its annual State budget faces a $500 million shortfall.
  So what was the response of President Obama's administration in its 
last days in power? Yet another job-killing and anti-coal regulation 
that would make a bad situation in my State worse.
  The Department of the Interior published its stream protection rule 
on December 20, 2016, and it made the rule effective on January 19, 
2017--just 1 day before President Obama left office. There is a lot of 
irony here, and I don't think it is by chance. According to a National 
Mining Association Study, one-third of remaining coal jobs could be 
placed at risk by the rule.
  Today I am proud to join Leader McConnell as he introduces the Stream 
Protection Congressional Review Act. We are also joined by my 
colleagues in the West Virginia congressional delegation, including 
Congressman David McKinley and Congressman Evan Jenkins, and others. We 
are going to be introducing a resolution of disapproval under the 
Congressional Review Act, blocking the Obama administration's stream 
protection rule.
  Once this resolution of disapproval is passed by Congress--and I 
believe that it will be, and signed by President Trump, which I believe 
that it will be--I am confident that both things will happen: The 
stream protection rule will be nullified, and the Department of the 
Interior will be prohibited from imposing a similar rule without 
permission from Congress.
  The stream protection rule deserves to be eliminated through the 
Congressional Review Act process. Despite its title--because why would 
we get rid of something called the stream protection rule--this rule 
will do little to actually protect our streams, but if left in place, 
this rule would cost even more coal jobs in my State and across the 
country that have already been devastated.
  West Virginia's former Department of Environmental Protection 
secretary Randy Huffman told the Senate Energy and Natural Resources 
Committee, on which I served last Congress, that the proposed version 
of the stream protection rule was ``an unnecessary, uncalled for 
political gesture.''
  I would like to say that Secretary Huffman was serving under a 
Democratic Governor in my State.
  The stream protection rule is the result of an incredibly flawed 
regulatory process that excluded State officials. Of the 10 States that 
began the regulatory process--people were asked to join together to 
begin this process--working with the Department of the Interior's 
Office of Surface Mining, eight of those States eventually removed 
themselves from the process because of the Department's unwillingness 
to actually seriously consider their input. In other words, they were 
just there for window dressing.
  Ohio's chief of Mineral Resources Management Larry Erdos told the 
Environment and Public Works Committee last February that ``OSM has not 
provided for meaningful participation with the cooperating or 
commenting agency states.''
  Congress took action to instruct the Department of the Interior to 
reengage with the States, realizing what was happening here, before 
moving forward with this rulemaking process. However, despite this 
direction from lawmakers in the Congress, the Department failed to 
address the State concerns.
  Wyoming director of Environmental Quality, Todd Parfitt, told the 
Energy and Natural Resources Committee that ``the failure to engage 
cooperating agencies throughout this process is reflected in the poor 
quality of the proposed rule.'' He called on the Office of Surface 
Mining to withdraw the rule and reengage with States and other 
stakeholders.
  Last week, West Virginia's newly appointed secretary of Environmental 
Protection--again under a new Democratic Governor--Austin Caperton 
wrote to congressional leaders detailing our State's concerns with the 
stream protection rule. Secretary Caperton gave three main reasons for 
West Virginia's opposition to this rule.
  First, he said that the rule upsets the statutory balance between 
environmental protection and allowing coal mining to take place in the 
first place. Second, the rule conflicts with the congressionally 
directed role of the States to be the exclusive regulators of mining 
activities. And third, the rule conflicts with the Federal Clean Water 
Act and State water quality standards--pretty broad-ranging concerns.
  The concerns from environmental regulators in mining States across 
the country explain why 14 States, including the State of West 
Virginia, have already filed lawsuits to stop this stream protection 
rule. Fifteen State attorneys general, led by West Virginia's attorney 
general Patrick Morrisey, have written to Congress asking that this 
rule be blocked using the Congressional Review Act.
  State environmental regulators are not alone in their opposition to 
this rule. Cecil Roberts, who is the president of the United Mine 
Workers of America, wrote just last week in support of this resolution 
of disapproval. He said that ``the last thing America's coal-producing 
regions need at this time is another regulation that will have the 
effect of reducing employment even more and further stifling economic 
development.''
  West Virginia cannot afford another job-killing regulation that once 
again inserts Washington and their one-size-fits-all standard into a 
regulatory process that is supposed to be effectively managed--and is 
effectively managed--by our State agencies.
  The stream protection rule is a flawed policy that was born out of a 
flawed process.
  The rule deserves to be eliminated promptly, and I encourage my 
colleagues to cosponsor the McConnell-Capito resolution of disapproval 
and to vote to block the rule in the coming days.
                                 ______
                                 
      By Mr. GRASSLEY (for himself, Mr. McConnell, Mr. Crapo, Mr. Lee, 
        Mr. Cornyn, Mr. Paul, Mr. Barrasso, Mr. Shelby, Mr. Graham, Mr. 
        Lankford, Mrs. Ernst, Mr. Blunt, Mr. Roberts, Mr. Boozman, Mr. 
        Enzi, Mr. Gardner, Mr. Isakson, Mr. Cassidy, and Mr. Sasse):
  S.J. Res. 14. A joint resolution providing for congressional 
disapproval under chapter 8 of title 5, United States Code, of the rule 
submitted by the Social Security Administration relating to 
Implementation of the NICS Improvement Amendments Act of 2007; to the 
Committee on Finance.
  Mr. GRASSLEY. Mr. President, the resolution of disapproval I am 
introducing today via the Congressional Review Act repeals a Social 
Security regulation that unfairly stigmatizes people with disabilities. 
It also violates the fundamental nature of the Second Amendment.
  The Second Amendment recognizes the God-given right to self-defense. 
In order to take away that right, the government must have a compelling 
interest. Furthermore, the law of regulation to achieve that compelling 
interest must be narrowly tailored. In other words, the government 
better have one heck of a good reason for going against the Second 
Amendment.
  The Justice Department, the Department of Veterans Affairs, and the 
Social Security Administration have not protected Second Amendment 
rights adequately under the previous administration. Our fundamental 
Second Amendment rights were constantly under attack.
  For example, hundreds of thousands of veterans have been reported to 
the National Instant Criminal Background Check System without due 
process. Of course, that system amounts to a national gun ban list for 
those reported erroneously. Veterans were reported without first having 
a neutral authority find them to be a danger to self or others and thus 
have a legitimate right to deny them their Second Amendment rights. 
According to the government, the veterans needed a fiduciary to manage 
benefit payments. That is not a sufficient reason under the law. 
Needing help with your finances--simply needing that help--should not 
mean you have surrendered your fundamental right of self-defense, and 
it doesn't mean that you are a danger to the public.
  On May 17, 2016, Senator Durbin and I debated my amendment that would 
require the Department of Veterans Affairs to first find veterans to be 
a danger before reporting their name to the

[[Page S495]]

gun ban list. During the course of that debate, Senator Durbin admitted 
that the list was broader than it should have been. Senator Durbin 
said: ``Let me just concede at the outset, reporting 174,000 names goes 
too far, but eliminating 174,000 names goes too far.''
  For the record, there were 260,381 names from the Veterans' 
Administration sent to the gun ban list for allegedly being in the 
``mental defective'' category. Now, it just happens that this was 98.8 
percent of all the names in that category. So the Veterans' 
Administration reported more names by far than any other agency.
  Senator Durbin's staff and mine have met over these issues since that 
debate. I appreciate and thank Senator Durbin for that outreach, and I 
want to work together with him to solve these problems for the VA. But 
now, the Social Security Administration is about to make the same 
mistake as the Veterans' Administration; that is, unless we stop them 
right here and right now with this resolution of disapproval. If we 
don't stop this, it could lead to hundreds of thousands of Social 
Security recipients being improperly reported to the gun ban list.
  At its core, Social Security's new regulation allows the agency to 
report people to the gun ban list under two circumstances. First, the 
beneficiary needs to have someone designated to help manage benefit 
payments. That sounds like the VA; right?
  Two, the beneficiary has an affliction based on a broad ``disorders 
list.'' But the process for designating someone to help a recipient 
manage Social Security benefits is not a process that is very 
objective. But the process for designating someone to help a recipient 
manage their Social Security benefit should be objective.
  The former Social Security Administration inspector general said the 
following last year in testimony about this process that offends us 
here in the Senate and is the reason of this resolution: ``It's not a 
scientific decision, it's more of a personal opinion.''
  This ``personal opinion'' of a bureaucrat cannot be the basis for 
taking away a person's fundamental Second Amendment right to bear arms.
  Further, the second element--the so-called ``disorders list''--is a 
convoluted mess of afflictions that may or may not cause someone to be 
considered dangerous. Many of the listed disorders also do not impact 
gun safety at all. For example, some afflictions deal with anxiety 
disorders, fear of large crowds, or a lack of self-esteem. The list is 
complex, the list is long, and the list is not designed to regulate 
firearms. Rather, the list is designed to regulate whether a person can 
manage his or her beneficiary payments--in other words, can they handle 
money.
  But here is the essential question that the Federal Government is 
incapable of answering. If they aren't dangerous, why does the Social 
Security Administration, like the VA, want to take away their guns?
  The National Council on Disability, a nonpartisan and independent 
Federal agency, has come out against the Social Security 
Administration's rule and in favor of the repeal that this resolution 
of disapproval will accomplish. The Council has repeatedly stated its 
concerns about the agency failing to determine that people are 
dangerous before reporting their names to the gun ban list.
  It has been the National Council on Disability's ``long-held position 
that restrictions on gun possession and ownership based on psychiatric 
or intellectual disability must be based on a verifiable concern as to 
whether the individual poses a heightened risk of danger to themselves 
or others.''
  The Council has also stated that the rule ``unnecessarily and 
unreasonably deprives individuals with disabilities of a constitutional 
right, it increases the stigma for those who, due to their 
disabilities, may need a representative payee.''
  Another organization, the Consortium for Citizens with Disabilities, 
a coalition of 100 national disability groups, shares the same concerns 
about the regulation about which we are having this resolution of 
disapproval: ``The current public dialogue is replete with inaccurate 
stereotyping of people with mental disabilities as violent and 
dangerous, and there is a real concern that the kind of policy change 
encompassed by this rule will reinforce those unfounded assumptions.''
  With that being said, even the ACLU wrote a letter in opposition to 
the agency regulation. I ask unanimous consent that these letters, as 
well as others, be printed in the Record at the conclusion of my 
remarks.
  Simply stated, the agency rule uses a massive regulatory net that 
captures innocent individuals who should be left alone. Just because a 
person is assigned a fiduciary does not make that person or those 
persons dangerous. Whenever the government tries to eliminate 
fundamental constitutional rights, it is required to narrowly tailor 
its regulatory action so that innocent people are not impacted. The 
Social Security regulation fails in that regard.
  That is why both the National Council on Disability and the 
Consortium for Citizens with Disabilities have called specifically for 
using the Congressional Review Act to repeal the final rule. That is 
what our introduction of resolution will accomplish.
  Constitutional due process is wholly lacking. For example, the agency 
does not afford a beneficiary a formal hearing before his or her name 
is reported to the gun ban list.
  Now, think about that. The Second Amendment, which recognizes a 
fundamental constitutional right, is being simply ripped away without a 
formal dispute process to initially challenge the action. Instead, the 
beneficiary must wait until their name is already on the gun ban list, 
and only then can the beneficiary appeal the decision by the grace of 
the government. This process effectively reverses what should be a 
burden on the government. The government should not be able to strip a 
fundamental constitutional right without due process and then place the 
burden on the citizen to try to restore it.
  A hearing should be afforded before the infringement of a fundamental 
right, not afterward. The burden must be on the government to prove its 
case. That simply is the American way--our Constitution's way.
  The Social Security Administration regulation falsely claims that it 
requires an adjudication before reporting names to the gun ban list, 
but there is no hearing afforded to the Social Security recipient 
before placing a name on the gun ban list. Of course, without a 
hearing, that process cannot honestly be called an adjudication. In 
other words, the Social Security Administration is blowing blue smoke 
when they say that. Without an adjudication, the process violates 
Federal law.
  Here is the kicker. In order for beneficiaries to remove their names 
from the gun ban list, they have to prove they are not dangerous. 
Guilty until proven innocent, and the burden is on you to prove your 
innocence. Any way you look at it, that is totally unfair, a violation 
of the Constitution, but common sense ought to tell everybody it is 
just plain wrong.
  The Federal Government, under the Obama administration, treated 
Social Security recipients with contempt and disregard when this rule 
was put out. With our resolution of disapproval, we can effectively 
terminate this unconstitutional government regulation, which the new 
Trump Administration supports. I encourage all of my colleagues to 
support our efforts.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               National Council on Disability,

                                 Washington, DC, January 24, 2017.
     Hon. Mitch McConnell,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Paul Ryan,
     Speaker of the House, House of Representatives, Washington, 
         DC.
       Dear Majority Leader McConnell and Speaker Ryan: I write on 
     behalf of the National Council on Disability (NCD) regarding 
     the final rule the Social Security Administration (SSA) 
     released on December 19th, 2016, implementing provisions of 
     the National Instant Criminal Background Check System (NICS) 
     Improvement Amendments Act of 2007, 81 FR 91702. In 
     accordance with our mandate to advise the President, 
     Congress, and other federal agencies regarding policies, 
     programs, practices, and procedures that affect people with 
     disabilities, NCD submitted comments to SSA on the proposed 
     rule on June 30th, 2016. In our comments, we cautioned 
     against implementation of the proposed rule because:
       [t]here is, simply put, no nexus between the inability to 
     manage money and the ability to safely and responsibly own, 
     possess or use a firearm. This arbitrary linkage not

[[Page S496]]

     only unnecessarily and unreasonably deprives individuals with 
     disabilities of a constitutional right, it increases the 
     stigma for those who, due to their disabilities, may need a 
     representative payee[.]
       Despite our objections and that of many other individuals 
     and organizations received by SSA regarding the proposed 
     rule, the final rule released in late December was largely 
     unchanged. Because of the importance of the constitutional 
     right at stake and the very real stigma that this rule 
     legitimizes, NCD recommends that Congress consider utilizing 
     the Congressional Review Act (CRA) to repeal this rule.
       NCD is a nonpartisan, independent federal agency with no 
     stated position with respect to gun-ownership or gun-control 
     other than our long-held position that restrictions on gun 
     possession or ownership based on psychiatric or intellectual 
     disability must be based on a verifiable concern as to 
     whether the individual poses a heightened risk of danger to 
     themselves or others if they are in possession of a weapon. 
     Additionally, it is critically important that any restriction 
     on gun possession or ownership on this basis is imposed only 
     after the individual has been afforded due process and given 
     an opportunity to respond to allegations that they are not 
     able to safely possess or own a firearm due to his or her 
     disability. NCD believes that SSA's final rule falls far 
     short of meeting these criteria.
       Additionally, as NCD also cautioned SSA in our comments on 
     the proposed rule, we have concerns regarding the ability of 
     SSA to fairly and effectively implement this rule--assuming 
     it would be possible to do so--given the long-standing issues 
     SSA already has regarding long delays in adjudication and 
     difficulty in providing consistent, prompt service to 
     beneficiaries with respect to its core mission. This rule 
     creates an entirely new function for an agency that has long 
     noted that it has not been given sufficient resources to do 
     the important work it is already charged with doing. With all 
     due respect to SSA, our federal partner, this rule is simply 
     a bridge too far. In fact, it is conceivable that attempts to 
     implement this rule may strain the already scarce 
     administrative resources available to the agency, further 
     impairing its ability to carry out its core mission.
       The CRA is a powerful mechanism for controlling regulatory 
     overreach, and NCD urges its use advisedly and cautiously. In 
     this particular case, the potential for real harm to the 
     constitutional rights of people with psychiatric and 
     intellectual disabilities is grave as is the potential to 
     undermine the essential mission of an agency that millions of 
     people with and without disabilities rely upon to meet their 
     basic needs. Therefore, in this instance, NCD feels that 
     utilizing the CRA to repeal the final rule is not only 
     warranted, but necessary.
           Regards,
                                                   Clyde E. Terry,
     Chair.
                                  ____

                                           Consortium for Citizens


                                            With Disabilities,

                                                 January 26, 2017.
     Hon. Mitch McConnell,
     Senate Majority Leader,
     Washington, DC.
     Hon. Chuck Schumer,
     Senate Minority Leader,
     Washington, DC.
       Dear Majority Leader McConnell and Minority Leader Schumer: 
     The Co-Chairs of the Rights Task Force of the Consortium of 
     Citizens with Disabilities (CCD) urge you to support a 
     Congressional Review Act (CRA) resolution to disapprove the 
     Final Rule issued by the Social Security Administration (SSA) 
     on December 19, 2016, ``Implementation of the NICS 
     Improvement Amendments Act of 2007.'' This rule would require 
     the Social Security Administration to forward the names of 
     all Social Security Disability Insurance (SSDI) and 
     Supplemental Security Income (SSI) benefit recipients who use 
     a representative payee to help manage their benefits due to a 
     mental impairment to the National Instant Criminal Background 
     Check System (NICS).
       The Consortium for Citizens with Disabilities (CCD) is the 
     largest coalition of national organizations working together 
     to advocate for Federal public policy that ensures the self-
     determination, independence, empowerment, integration and 
     inclusion of children and adults with disabilities in all 
     aspects of society.
       Prior to the issuance of the Final Rule, the CCD Rights 
     Task Force conveyed its opposition to the rule through a 
     letter to the Obama Administration and through the public 
     comment process. We--and many other members of CCD--opposed 
     the rule for a number of reasons, including:
       The damaging message that may be sent by a SSA policy 
     change, which focused on reporting individuals who receive 
     assistance from representative payees in managing their 
     benefits to the NICS gun database. The current public 
     dialogue is replete with inaccurate stereotyping of people 
     with mental disabilities as violent and dangerous, and there 
     is a real concern that the kind of policy change encompassed 
     by this rule will reinforce those unfounded assumptions.
       The absence of any data suggesting that there is any 
     connection between the need for a representative payee to 
     manage one's Social Security disability benefits and a 
     propensity toward gun violence.
       The absence of any meaningful due process protections prior 
     to the SSA's transmittal of names to the NICS database. 
     Although the NICS Improvements Act of 2007 allows agencies to 
     transmit the names of individuals who have been 
     ``adjudicated'' to lack the capacity to manage their own 
     affairs, SSA's process does not constitute an adjudication 
     and does not include a finding that individuals are broadly 
     unable to manage their own affairs.
       Based on similar concerns, the National Council on 
     Disability an independent federal agency charged with 
     advising the President, Congress, and other federal agencies 
     regarding disability policy, has urged Congress to use the 
     Congressional Review Act to repeal this rule.
       We urge Congress to act, through the CRA process, to 
     disapprove this new rule and prevent the damage that it 
     inflicts on the disability community.
       On behalf of the CCD Rights Task Force, the undersigned Co-
     Chairs,
     Dara Baldwin,
       National Disability Rights Network.
     Samantha Crane,
       Autistic Self-Advocacy Network.
     Sandy Finucane,
       Epilepsy Foundation Law.
     Jennifer Mathis,
       Bazelon Center for Mental Health.
     Mark Richert,
       American Foundation for the Blind.
                                  ____

         The Judge David L. Bazelon Center for Mental Health Law,
                                                 January 30, 2017.
     Hon. Mitch McConnell,
     Senate Majority Leader,
     Washington, DC.
     Hon. Chuck Schumer,
     Senate Minority Leader,
     Washington, DC.
       Dear Majority Leader McConnell and Minority Leader Schumer: 
     The Bazelon Center for Mental Health Law urges you to support 
     a Congressional Review Act (CRA) resolution to disapprove the 
     Final Rule issued by the Social Security Administration (SSA) 
     on December 19, 2016, ``Implementation of the NICS 
     Improvement Amendments Act of 2007.'' The Center is a 
     national legal advocacy organization that protects and 
     advances the rights of adults and children with mental 
     disabilities.
       This rule would require the Social Security Administration 
     to forward the names of Social Security Disability Insurance 
     (SSDI) and Supplemental Security Income (SSI) benefit 
     recipients who use a representative payee to help manage 
     their benefits due to a mental impairment to the National 
     Instant Criminal Background Check System (NICS).
       The rule is inconsistent with the statute it implements, 
     has no evidentiary justification, would wrongly perpetuate 
     inaccurate stereotypes of individuals with mental 
     disabilities as dangerous, and would divert already too-
     scarce SSA resources away from efforts to address the 
     agency's longstanding backlog of unprocessed benefits 
     applications toward a mission in which the agency has little 
     expertise.
       First, there is no statutory basis for the rule. The 
     National Instant Criminal Background Check System (NICS) 
     statute authorizes the reporting of an individual to the NICS 
     database on the basis of a determination that the person 
     ``lacks the capacity to contract or manage his own affairs'' 
     as a result of ``marked subnormal intelligence, or mental 
     illness, incompetency, condition or disease.'' The 
     appointment of a representative payee simply does not meet 
     this standard. It indicates only that the individual needs 
     help managing benefits received from SSA.
       Second, the rule puts in place an ineffective strategy to 
     address gun violence, devoid of any evidentiary basis, 
     targeting individuals with representative payees and mental 
     impairments as potential perpetrators of gun violence. In 
     doing so, it also creates a false sense that meaningful 
     action has been taken to address gun violence and detracts 
     from potential prevention efforts targeting actual risks for 
     gun violence.
       Third, the rule perpetuates the prevalent false association 
     of mental disabilities with violence and undermines important 
     efforts to promote community integration and employment of 
     people with disabilities. The rule may also dissuade people 
     with mental impairments from seeking appropriate treatment or 
     services, or from applying for financial and medical 
     assistance programs.
       Finally, the rule creates enormous new burdens on SSA 
     without providing any additional resources. Implementation of 
     the rule will divert scarce resources away from the core work 
     of the SSA at a time when the agency is struggling to 
     overcome record backlogs and prospective beneficiaries are 
     waiting for months and years for determinations of their 
     benefits eligibility. Moreover, SSA lacks the expertise to 
     make the determinations about safety that it would be called 
     upon to make as part of the relief process established by the 
     rule.
       Based on similar concerns, the National Council on 
     Disability, an independent federal agency charged with 
     advising the President,

[[Page S497]]

     Congress, and other federal agencies regarding disability 
     policy, has urged Congress to use the Congressional Review 
     Act to repeal this rule. We urge Congress to act, through the 
     CRA process, to disapprove this new rule and prevent the 
     damage that it inflicts on the disability community.
           Sincerely,
                                                  Jennifer Mathis,
     Director of Policy and Legal Advocacy.
                                  ____



                                                         AAPD,

                                                 January 26, 2017.
     Hon. Paul Ryan,
     Speaker of the House,
     Washington, DC.
     Hon. Nancy Pelosi,
     Office of the Democratic Leader,
     Washington, DC.
       Dear Speaker Ryan and Democratic Leader Pelosi: The 
     American Association of People with Disabilities (AAPD) urges 
     you to support a Congressional Review Act (CRA) resolution to 
     disapprove the Final Rule issued by the Social Security 
     Administration (SSA) on December 19, 2016, ``Implementation 
     of the NICS Improvement Amendments Act of 2007.'' This rule 
     would require the Social Security Administration to forward 
     the names of all Social Security Disability Insurance (SSDI) 
     and Supplemental Security Income (SSI) benefit recipients who 
     use a representative payee to help manage their benefits due 
     to a mental impairment to the National Instant Criminal 
     Background Check System (NICS).
       AAPD is a national disability rights organization that 
     works to improve the lives of people with disabilities by 
     acting as a convener, connector, and catalyst for change, 
     increasing the economic and political power of people with 
     disabilities.
       Prior to the issuance of the Final Rule, AAPD conveyed its 
     opposition to the rule to the Obama Administration. We, and 
     many other disability rights organizations, opposed the rule 
     for a number of reasons, including:
       The damaging message that may be sent by a SSA policy 
     change, which focused on reporting individuals who receive 
     assistance from representative payees in managing their 
     benefits to the NICS gun database. The current public 
     dialogue is replete with inaccurate stereotyping of people 
     with mental disabilities as violent and dangerous, and there 
     is a real concern that the kind of policy change encompassed 
     by this rule will reinforce those unfounded assumptions.
       The absence of any data suggesting that there is any 
     connection between the need for a representative payee to 
     manage one's Social Security disability benefits and a 
     propensity toward gun violence.
       The absence of any meaningful due process protections prior 
     to the SSA's transmittal of names to the NICS database. 
     Although the NICS Improvements Act of 2007 allows agencies to 
     transmit the names of individuals who have been 
     ``adjudicated'' to lack the capacity to manage their own 
     affairs, SSA's process does not constitute an adjudication 
     and does not include a finding that individuals are broadly 
     unable to manage their own affairs.
       AAPD urges Congress to act, through the CRA process, to 
     disapprove this new rule to prevent the damage that it 
     inflicts on the disability community and the extraordinarily 
     damaging message it sends to society that people with mental 
     impairments could should be feared and shunned.
       Thank you for taking our position into consideration. If 
     you have any questions or concerns, please do not hesitate to 
     contact me at (202) 521-4315 or at [email protected].
           Yours truly,
                                                 Helena R. Berger,
     President & CEO.

                          ____________________