[Congressional Record (Bound Edition), Volume 154 (2008), Part 13]
[Senate]
[Pages 17690-17758]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Ms. SNOWE (for herself and Mr. Conrad):
  S. 3371. A bill to amend the Internal Revenue Code of 1986 to 
simplify the deduction for use of a portion of a residence as a home 
office by providing an optional standard home office deduction; to the 
Committee on Finance.
  Ms. SNOWE. Mr. President, today I rise to introduce legislation to 
offer a drastically simplified alternative for home-based businesses to 
benefit from the home office tax deduction. The U.S. Small Business 
Administration's, SBA's, Office of Advocacy designated reforming the 
home office tax deduction as one of its top ten Regulatory Review and 
Reform initiatives for 2008. By establishing an optional home office 
deduction, the Home Office Tax Deduction Simplification and Improvement 
Act of 2008 would take a strong step toward making our tax laws easier 
to understand. I thank Senator Conrad for joining me to introduce this 
critical bill.
  As Ranking Member of the Senate Committee on Small Business and 
Entrepreneurship, I continually hear from small enterprises across 
Maine and this nation about the necessity of tax relief and reform. 
Despite the fact that small firms are our economy's real job creators, 
the current tax system places an entirely unreasonable burden on them 
as they struggle to satisfy their tax obligations.
  Notably, according to the Office of Management and Budget's Office of 
Information and Regulatory Affairs, the American public spends 
approximately 9 billion hours each year to complete government-mandated 
forms and paperwork. A staggering 80 percent of this time is consumed 
by completing tax forms. What's even more troubling is that companies 
that employ fewer than 20 employees spend nearly $1,304 per employee in 
tax compliance costs, an amount that is nearly 67 percent more than 
larger firms.
  Turning to the legislation I am offering today, the Internal Revenue 
Code presently offers qualified individuals a home office tax deduction 
if they use a portion of their home as a principal place of business or 
as a space to meet with their patients or clients. That said, although 
recent research from the SBA indicates that roughly 53 percent of 
America's small businesses are home-based, few of these firms take 
advantage of the home office tax deduction. The reason is simple: 
reporting the deduction is complicated.
  A 2006 survey conducted by the National Federation of Independent 
Business, NFIB, Research Foundation found that approximately 33 percent 
of small-employer taxpayers try to comprehend the tax rules governing 
the home office tax deduction, but only about half of those respondents 
believe that they actually have a good understanding of the rules. As 
Dewey Martin, a Certified Public Accountant from my home State of 
Maine, so aptly said in recent testimony before the Senate Finance 
Committee, ``Many small business owners avoid the deduction because of 
the complications and the fear of a potential audit.''
  With a morass of paperwork attributable to the home office deduction, 
the time-consuming process of navigating the tangled web of rules and 
regulations makes it unsurprising that so many small business owners 
forego the home office deduction. So to encourage the use of the home 
office tax deduction, the bill we are introducing today would establish 
an optional, easy-to-use incentive.
  Turning to specifics, our bill would direct the Secretary of the 
Treasury to establish a method for determining a deduction that 
consists of multiplying an applicable standard rate by the square 
footage of the type of property being used as a home office. The 
proposal would also require the IRS to separately state the amounts 
allocated to several types of expenses in order to reduce the burden on 
the taxpayer. It is vital that the IRS clearly identify the amounts of 
the deduction devoted to real estate taxes, mortgage interest, and 
depreciation so that taxpayers do not duplicate them on Schedule A. 
Finally, the bill makes two changes designed to ease the administration 
of the deduction: First, to reflect an economy in which many business 
owners conduct business or consult with customers through the Internet 
or over the phone versus face-to-face, our legislation takes these 
entrepreneurs into account by allowing the home office deduction to be 
taken if the taxpayer uses the home to meet or deal with clients 
regardless of whether the clients are physically present. Second, our 
bill would allow for de minimis use of business space for personal 
activities so that taxpayers would not lose their ability to claim the 
deduction if they make a personal call or pay a bill online.
  I would be remiss not to note that the bill we are introducing today 
is the result of the dedicated efforts of various groups and 
organizations, which have worked with Senator Conrad and me on a 
consensus approach to improve the current law home office tax 
deduction. In particular, it is significant to note that the IRS 
Taxpayer Advocate Service strongly backs this bill. In fact, the 
National Taxpayer Advocate, Nina E. Olson, sent my office the following 
statement regarding our legislation: ``In my 2007 Annual Report to 
Congress, I made a similar proposal to simplify the home office 
business deduction. I am pleased that Senator Snowe and Conrad's 
proposed bill reflects the gist of my legislative recommendation. 
Reducing the burdensome substantiation requirements for employees and 
self-employed taxpayers who incur modest home office costs would make 
the home office business deduction simpler and more accessible to 
them.''
  My office also received an endorsement of the bill from the National 
Federation of Independent Business. Dan Danner, the organization's 
Executive Director, said the following: ``Currently only a small 
percentage of home-based businesses in the U.S. take advantage of the 
home-office deduction because calculating the deduction is 
unnecessarily complicated. NFIB small business owners have advocated 
for a simpler, standard home-office deduction for years. The Snowe-
Conrad legislation gives home-based businesses the option to deduct a 
legitimate business expense with minimum hassle. This commonsense 
change to the tax code will reduce tax complexity and help many home-
based businesses take advantage of this deduction.'' Additionally, the 
SBA's Office of Advocacy added: ``The SBA Office of Advocacy reviewed 
the legislation and supports it.''
  In closing, according to the SBA's Office of Advocacy, America's 
home-

[[Page 17691]]

based sole proprietors generate $102 billion in revenue annually. With 
this in mind, it is absolutely critical to endow these small firms with 
as much relief from burdensome tax constraints as possible so that they 
can focus their efforts on developing the products and services of the 
future, as well as creating new jobs. The confusion over the home 
office business tax deduction, in my estimation, can be easily solved 
by passing this legislation. I urge all Senators to consider the 
benefits this bill will provide to thousands of small business owners, 
and I look forward to working with my colleagues to enact it in a 
timely manner.
  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. 3371

       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 ``Home Office Tax Deduction 
     Simplification and Improvement Act of 2008''.

     SEC. 2. OPTIONAL STANDARD HOME OFFICE DEDUCTION.

       (a) In General.--Subsection (c) of section 280A of the 
     Internal Revenue Code of 1986 (relating to exceptions for 
     certain business or rental use; limitation on deductions for 
     such use) is amended by adding at the end the following new 
     paragraph:
       ``(7) Election of standard home office deduction.--
       ``(A) In general.--In the case of an individual who is 
     allowed a deduction for the use of a portion of a dwelling 
     unit as a business by reason of paragraph (1), (2), or (4), 
     notwithstanding the limitations of paragraph (5), if such 
     individual elects the application of this paragraph for the 
     taxable year with respect to such dwelling unit, such 
     individual shall be allowed a deduction equal to the standard 
     home office deduction for the taxable year in lieu of the 
     deductions otherwise allowable under this chapter for such 
     taxable year by reason of paragraph (1), (2), or (4).
       ``(B) Standard home office deduction.--
       ``(i) In general.--For purposes of this paragraph, the 
     standard home office deduction is an amount equal to the 
     product of--

       ``(I) the applicable home office standard rate, and
       ``(II) the square footage of the portion of the dwelling 
     unit to which paragraph (1), (2), or (4) applies.

       ``(ii) Applicable home office standard rate.--For purposes 
     of this subparagraph, the term `applicable home office 
     standard rate' means the rate applicable to the taxpayer's 
     category of business, as determined and published by the 
     Secretary for the 3 categories of businesses described in 
     paragraphs (1), (2), and (4) for the taxable year.
       ``(iii) Maximum square footage taken into account.--The 
     Secretary shall determine and publish annually the maximum 
     square footage that may be taken into account under clause 
     (i)(II) for each of the 3 categories of businesses described 
     in paragraphs (1), (2), and (4) for the taxable year.
       ``(C) Effect of election.--
       ``(i) General rule.--Except as provided in clause (ii), any 
     election under this paragraph, once made by the taxpayer with 
     respect to any dwelling unit, shall continue to apply with 
     respect to such dwelling unit for each succeeding taxable 
     year.
       ``(ii) One-time election per dwelling unit.--A taxpayer who 
     elects the application of this paragraph in a taxable year 
     with respect to any dwelling unit may revoke such application 
     in a subsequent taxable year. After so revoking, the taxpayer 
     may not elect the application of this paragraph with respect 
     to such dwelling unit in any subsequent taxable year.
       ``(D) Denial of double benefit.--
       ``(i) In general.--Except as provided in clause (ii), in 
     the case of a taxpayer who elects the application of this 
     paragraph for the taxable year, no other deduction or credit 
     shall be allowed under this subtitle for such taxable year 
     for any amount attributable to the portion of a dwelling unit 
     taken into account under this paragraph.
       ``(ii) Exception for disaster losses.--A taxpayer who 
     elects the application of this paragraph in any taxable year 
     may take into account any disaster loss described in section 
     165(i) as a loss under section 165 for the applicable taxable 
     year, in addition to the standard home office deduction under 
     this paragraph for such taxable year.
       ``(E) Regulations.--The Secretary shall prescribe such 
     regulations as may be necessary to carry out the purposes of 
     this paragraph.''.
       (b) Modification of Home Office Business Use Rules.--
       (1) Place of meeting.--Subparagraph (B) of section 
     280A(c)(1) of the Internal Revenue Code of 1986 is amended to 
     read as follows:
       ``(B) as a place of business which is used by the taxpayer 
     in meeting or dealing with patients, clients, or customers in 
     the normal course of the taxpayer's trade or business, or''.
       (2) De minimis personal use.--Paragraph (1) of section 
     280A(c) of such Code is amended by striking ``for the 
     convenience of his employer'' and inserting ``for the 
     convenience of such employee's employer. A portion of a 
     dwelling unit shall not fail to be deemed as exclusively used 
     for business for purposes of this paragraph solely because a 
     de minimis amount of non-business activity may be carried out 
     in such portion''.
       (c) Reporting of Expenses Relating to Home Office 
     Deduction.--Within 60 days after the date of the enactment of 
     this Act, the Secretary of the Treasury shall ensure that all 
     forms and schedules used to calculate or report itemized 
     deductions and profits or losses from business or farming 
     state separately amounts attributable to real estate taxes, 
     mortgage interest, and depreciation for purposes of the 
     deductions allowable under paragraphs (1), (2), (4), and (7) 
     of section 280A(c) of the Internal Revenue Code of 1986.
       (d) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2008.
                                 ______
                                 
      By Mrs. MURRAY (for herself and Ms. Cantwell):
  S. 3373. A bill to reauthorize and expand the Northwest Straits 
Marine Conservation Initiative Act to promote the protection of the 
resources of the Northwest Straits, and for other purposes; to the 
Committee on Commerce, Science, and Transportation.
  Mrs. MURRAY. Mr. President, I rise today to introduce the Northwest 
Straits Marine Conservation Initiative Act. This bill will reauthorize 
the Northwest Straits Marine Conservation Initiative, which promotes 
the protection and restoration of the marine waters, habitats, and 
species of the Northwest Straits region of Puget Sound in Washington 
State in order to achieve ecosystem health and sustainable resource 
use.
  The Northwest Straits region makes up 60 percent of the Puget Sound's 
shoreline and includes the marine waters, nearshore areas, and 
shorelines of the Strait of Juan de Fuca and of Puget Sound from the 
Canadian border to the southern end of Snohomish County. This region 
represents a unique resource of enormous environmental and economic 
value to the people of the United States and, in particular, of the 
region surrounding the Northwest Straits. However, in the last several 
decades, habitat health, water quality, and populations of commercially 
and culturally valuable species found in the Northwest Straits have 
sharply declined. During the 20th century, extensive development, a 
legacy of lost or abandoned fishing gear, land conversion, loss of 
native sea grass, and invasive species have destroyed once intact 
native habitats in its ecosystem.
  In 1997, I partnered with former Congressman Jack Metcalf and brought 
opposing stakeholders together to create an advisory commission to 
address regional and local issues in the marine environment. Many were 
skeptical of our efforts, but our work created an innovate model for 
restoring and protecting marine habitats. As a result, the Northwest 
Straits Initiative was created to provide funding to help citizens 
design and carry out marine conservation projects driven by local 
priorities and informed by science and the Initiative's goals and 
benchmarks.
  The Northwest Straits Initiative is composed of volunteer-based 
marine resources committees in 7 counties, as well as over 100 members 
representing residents, tribes, businesses, fishermen, boaters, and 
scientists. It has logged thousands of volunteer hours and completed 
hundreds of projects, demonstrating that citizen involvement in marine 
resource conservation and restoration is powerful, effective, and 
necessary. And the program has accomplished a lot: thousands of 
derelict crab pots and fishing nets have been removed, miles of forage 
fish spawning habitat have been surveyed, hundreds of thousands of 
native Olympia oysters have been planted, marine stewardship areas have 
been designated, nearly 1,000 tons of creosote wood has been removed, 
and dozens of stewardship and public outreach programs have been 
completed.
  The authorization of the Northwest Straits Marine Conservation 
Initiative will ensure the continuation of this

[[Page 17692]]

successful and innovative regional approach to marine resource 
restoration and protection.
                                 ______
                                 
      By Mr. SMITH (for himself and Mr. Wyden):
  S. 3374. A bill to establish a commission on veterans and members of 
the Armed Forces with post traumatic stress disorder, traumatic brain 
injury, or other mental health disorders, to enhance the capacity of 
mental health providers to assist such veterans and members, and for 
other purposes; to the Committee on Veterans' Affairs.
  Mr. SMITH. Mr. President, I rise today with my colleague Senator Ron 
Wyden to introduce a bill that will help improve the lives of our 
veterans who are suffering from a mental illness. The Healing Our 
Nation's Heroes Act of 2008 is an important bill and I look forward to 
its passage. Senator Wyden has been an ally for me in the struggle to 
ensure veterans, particularly those who are struggling with a mental 
illness, get the care that they need. It is an honor for me to work him 
to ensure our Nation's heroes are not forgotten.
  Our work together on this bill began last summer when I called a 
Special Committee on Aging field hearing at the Portland Veterans 
Affairs Medical Center in our home state of Oregon. At that hearing, 
Senator Wyden and I heard the testimony of officials from the 
Department of Veterans Affairs, VA, as well as local leaders who 
operate programs that support our veterans' mental and physical health 
needs. I also held roundtables in my state on the issue and a follow-up 
hearing in Washington, DC in October, 2007 to further examine the scope 
of the issues and barriers facing our veterans in need of care. At this 
hearing, we were fortunate to have former Senator and World War II 
veteran Bob Dole testify. Senator Dole is a decorated war hero who has 
fought for decades to ensure that our servicemembers and veterans have 
the proper supports they need. His insight and knowledge of the issues 
facing our veterans, both young and old, were instrumental in helping 
us to draft this legislation. Without the input of countless people who 
told us of the problems faced by their loved ones and their own 
struggles with the current system, we could not have made this bill 
possible.
  In our Nation today, we have nearly 24 million veterans, about 40 
percent of whom are age 65 and older. The Veterans Health 
Administration serves about 5.5 million of them each year and employs 
247,000 employees to attend to their care. I draw attention to these 
numbers to emphasize not only the scale of the system--and therefore 
the noted difficulties in meeting all needs at all times--but also to 
reiterate that there are a large number of veterans to whom we owe an 
enormous debt.
  Unfortunately, we are not doing well enough by our veterans. We know 
that nationally 23 percent of all homeless persons are veterans. In 
Portland, Oregon, that number could be as high as 30 percent. They 
suffer disproportionately from poor health, including mental health and 
substance abuse challenges. We are fortunate to have wonderful 
community-based groups, such as the Central City Concern in Portland, 
working to help those who are homeless to get the help and support they 
need; but we must do more.
  As was reported at the hearing I held in October of 2007, Dr. Kaplan 
from Portland State University found that veterans in our nation are at 
twice the risk of suicide as non-veterans. With the number and needs of 
veterans ever-increasing in our nation, we must ensure that our mental 
health infrastructure is prepared to handle their unique needs.
  What we now refer to as post-traumatic stress disorder, PTSD, once 
was described as ``soldier's heart'' in the Civil War, ``shell shock'' 
in World War I, and ``combat fatigue'' in World War II. Whatever the 
name, they are serious mental illnesses and deserve equal attention and 
care as a physical wound. A system must be in place to help our 
veterans as they adjust back to life with their families and within 
their communities.
  So many of our veterans from previous conflicts in Korea, Vietnam and 
around the globe in World War II, needed similar programs once they 
returned home. Yet, I fear that we did not do enough to help them. With 
proper and early support systems in place, we can work to prevent the 
more serious and chronic mental health issues that come from a lack of 
intervention.
  There is no greater obligation than caring for those who have served 
this country with their military service. We would be remiss if we did 
not ensure that the health care provided to our heroes in arms is the 
finest medicine has to offer. A lack of culturally sensitive mental 
health professionals, an inability to reach rural areas, stigma related 
to mental illness within the military, bureaucratic run-arounds and 
long waiting times are just a few of the problems that we hear about--
both in the news and directly from constituents. These are problems 
that must be addressed and can only be addressed if we all work 
together to find solutions.
  As our country faces new waves of veterans with mental health 
illnesses, many of whose issues arise from combat stress, we must 
ensure that we learn from the lessons of the past. We must ensure that 
they are cared for, and we must not leave behind those who fought for 
our nation in previous generations.
  This bill has three important parts that will improve mental health 
services to our veterans. First, it will establish a commission charged 
with oversight of outreach and services offered to veterans and members 
of the Armed Forces with post traumatic stress disorder and other 
disorders that affect mental health. This commission will be a long-
term body that will ensure that our veterans have the support that they 
need. They will report to Congress, make recommendations to the 
Departments of Veterans Affairs and Defense, and look for innovative 
ways that the two bodies can work together to better ensure our 
servicemembers have the proper supports while they are in the Armed 
Forces, during their time of transition back to their communities, and 
as they live their lives as veterans in their communities.
  This bill also will establish the Heroes-to-Healers Program, which we 
have created to build on the successes of the Troops-to-Teachers 
Program. In addition to the wonderful work that the Troops-to-Teachers 
program does in training former servicemembers to work in high-need 
school districts, the Heroes-to-Healers Program will train former 
servicemembers to become a part of the mental health workforce. We know 
that major complaints from servicemembers and veterans working to gain 
needed mental health services are the wait times for care that they 
experience due to lack of available staff and their desire to work with 
professionals who understand, first-hand, the difficult things that 
they have seen and type of experiences they have had serving overseas 
in combat zones. Through this program, participants will receive 
financial support to gain the training and licensing they need to 
become a mental health professional, while ensuring there is a minimum 
amount of time that they will then serve their fellow veterans in their 
new profession.
  To further help recruitment and retention efforts for mental health 
service providers, the third part of this bill will provide a new grant 
program to state and local mental health agencies, as well as non-
profit organizations to establish, expand or enhance mental health 
provider recruitment and retention efforts. These efforts will be 
targeted at supporting mid-career professionals who are looking to work 
in the mental health profession.
  We know that we must do a better job of helping our veterans. We can 
do better at ensuring they can remain stable in their communities, that 
they can live healthy lives and that they can prosper as persons to 
whom we owe a great deal of gratitude and compassion.
  I look forward to working with my colleagues to ensure its passage. I 
urge my colleagues on both sides of the aisle to support this bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.

[[Page 17693]]

  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3374

       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 ``Healing Our Nation's Heroes 
     Act of 2008''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Since October 2001, approximately 1,640,000 members of 
     the Armed Forces have been deployed as part of Operation 
     Enduring Freedom or Operation Iraqi Freedom.
       (2) 300,000 members of the Armed Forces are suffering from 
     major depression or post traumatic stress because of service 
     in Operation Enduring Freedom or Operation Iraqi Freedom.
       (3) 320,000 of the members of the Armed Forces who served 
     in Operation Enduring Freedom or Operation Iraqi Freedom, or 
     19 percent of such members, have received brain injuries from 
     such service.
       (4) Only 43 percent of members of the Armed Forces with a 
     probable traumatic brain injury have reported receiving a 
     medical evaluation for their head injury.
       (5) Records of the Department of Veterans Affairs show that 
     120,000 members of the Armed Forces who are no longer on 
     active duty have been diagnosed with mental health problems, 
     approximately half of whom suffer from post traumatic stress 
     disorder (PTSD).
       (6) In the last year, only 53 percent of those members of 
     the Armed Forces with post traumatic stress disorder or 
     depression have sought professional help from a mental health 
     care provider.
       (7) Rates of post traumatic stress disorder and depression 
     are highest among members of the Armed Forces who are women 
     or members of the Reserves.
       (8) Efforts to improve access to quality mental health care 
     are integral to supporting and treating both active duty 
     members of the Armed Forces and veterans.
       (9) Without quality mental health care, members of the 
     Armed Forces and veterans may experience lower work 
     productivity, which negatively affects their physical health, 
     mental health, and family and social relationships.
       (10) Cultural and personal stigmas are factors that 
     contribute to low rates of veterans of Operation Enduring 
     Freedom and Operation Iraqi Freedom who seek mental health 
     care from qualified mental health care providers.
       (11) The capacity of mental health care providers and 
     access to such providers must be improved to meet the needs 
     of members of the Armed Forces who are returning from 
     deployment in Operation Enduring Freedom or Operation Iraqi 
     Freedom.
       (12) Community-based providers of mental health care are 
     invaluable assets in addressing the needs of such members and 
     should not be overlooked.
       (13) Coordination of care among government agencies as well 
     as nongovernmental agencies is integral to the successful 
     treatment of members of the Armed Forces returning from 
     deployment.

     SEC. 3. COMMISSION ON VETERANS AND MEMBERS OF THE ARMED 
                   FORCES WITH POST TRAUMATIC STRESS DISORDER, 
                   TRAUMATIC BRAIN INJURY, OR OTHER MENTAL HEALTH 
                   DISORDERS CAUSED BY SERVICE IN THE ARMED 
                   FORCES.

       (a) Establishment of Commission.--There is established a 
     commission on veterans and members of the Armed Forces with 
     post traumatic stress disorder (PTSD), traumatic brain 
     injury, or other mental health disorders caused by service in 
     the Armed Forces.
       (b) Membership.--
       (1) Composition.--The commission shall be composed of a 
     chair and members appointed jointly by the Secretary of 
     Veterans Affairs and the Secretary of Defense, including not 
     less than one of each of the following:
       (A) Members of the Armed Forces on active duty.
       (B) Veterans who are retired from the Armed Forces.
       (C) Employees of the Department of Veterans Affairs.
       (D) Employees of the Department of Defense.
       (E) Recognized medical or scientific authorities in fields 
     relevant to the commission, including psychiatry and medical 
     care.
       (F) Mental health professionals who are not physicians.
       (G) Veterans who have undergone treatment for post 
     traumatic stress disorder, traumatic brain injury, or other 
     mental health disorders.
       (2) Consideration of recommendations.--In appointing 
     members of the commission, the Secretary of Veterans Affairs 
     and the Secretary of Defense shall consult with 
     nongovernmental organizations that represent veterans, 
     members of the Armed Forces, and families of such veterans 
     and members.
       (c) Duties.--
       (1) In general.--The commission shall--
       (A) oversee the monitoring and treatment of veterans and 
     members of the Armed Forces with post traumatic stress 
     disorder, traumatic brain injury, or other mental health 
     disorders caused by service in the Armed Forces; and
       (B) conduct a thorough study of all matters relating to the 
     long-term adverse consequences of such disorders for such 
     veterans and members, including an analysis of--
       (i) the information gathered from rescreening data obtained 
     from post deployment interviews; and
       (ii) treatments that have been shown to be effective in the 
     treatment of post traumatic stress disorder, traumatic brain 
     injury, or other mental health disorders caused by service in 
     the Armed Forces.
       (2) Recommendations.--The commission shall develop 
     recommendations on the development of initiatives--
       (A) to mitigate the adverse consequences studied under 
     paragraph (1)(B); and
       (B) to reduce cultural stigmas associated with treatment of 
     post traumatic stress disorder, traumatic brain injury, or 
     other mental health disorders of veterans and members of the 
     Armed Forces.
       (3) Annual reports.--Not later than September 30 each year, 
     the commission shall submit to the appropriate committees of 
     Congress a report containing the following:
       (A) A detailed statement of the findings and conclusions of 
     the commission as a result of its activities under paragraph 
     (1).
       (B) The recommendations of the commission developed under 
     paragraph (2).
       (d) Powers of the Commission.--
       (1) Site visits.--The commission may visit locations where 
     veterans and members of the Armed Forces with post traumatic 
     stress disorder, traumatic brain injury, or other mental 
     health disorders caused by service in the Armed Forces 
     receive treatment for such disorders to carry out the 
     oversight and monitoring required by subsection (c)(1)(A).
       (2) Information from federal agencies.--The commission may 
     secure directly from any Federal department or agency such 
     information as the commission considers necessary to carry 
     out the provisions of this Act. Upon request of the chair of 
     the commission, the head of such department or agency shall 
     furnish such information to the commission.
       (e) Termination.--The commission shall be terminated at the 
     joint discretion of the Secretary of Defense and the 
     Secretary of Veterans Affairs.
       (f) Appropriate Committees of Congress Defined.--In this 
     section, the term ``appropriate committees of Congress'' 
     means--
       (1) the Committee on Armed Services and the Committee on 
     Veterans' Affairs of the Senate; and
       (2) the Committee on Armed Services and the Committee on 
     Veterans' Affairs of the House of Representatives.

     SEC. 4. HEROES-TO-HEALERS PROGRAM.

       (a) In General.--Part III of title 38, United States Code, 
     is amended by adding at the end the following:

                ``CHAPTER 44--HEROES-TO-HEALERS PROGRAM

``Sec.
``4400. Purposes.
``4401. Definitions.
``4402. Authorization of Heroes-to-Healers Program.
``4403. Recruitment and selection of Program participants.
``4404. Participation agreement and financial assistance.
``4405. Participation by States.
``4406. Reporting requirements.
``4407. Authorization of appropriations.

     ``Sec. 4400. Purposes

       ``The purposes of this chapter are--
       ``(1) to encourage veterans and members of the Armed Forces 
     separating from the Armed Forces--
       ``(A) to obtain certification or licensing as mental health 
     care providers; and
       ``(B) to obtain employment with Federal, State, and local 
     agencies and nongovernmental organizations that provide 
     mental health care to members of the Armed Forces, veterans, 
     or the families of such members or veterans; and
       ``(2) to enhance the capacity of such agencies and 
     organizations to provide such care, by increasing the number 
     of individuals seeking employment for the provision of such 
     care.

     ``Sec. 4401. Definitions

       ``In this chapter:
       ``(1) The term `mental health care provider', with respect 
     to an individual, means a psychiatrist, psychologist, social 
     worker, psychiatric nurse, mental health counselor, or 
     marriage and family therapist.
       ``(2) The term `Program' means the Heroes-to-Healers 
     Program authorized by section 4402 of this title and 
     described in this chapter.

     ``Sec. 4402. Authorization of Heroes-to-Healers Program

       ``(a) Purpose.--The purpose of this section is to 
     authorize--
       ``(1) the Heroes-to-Healers Program; and
       ``(2) a mechanism for the funding and administration of 
     such program.

[[Page 17694]]

       ``(b) Program Authorized.--(1) The Secretary may carry out 
     a program--
       ``(A) to assist eligible individuals described in section 
     4403 of this title in obtaining certification or licensing 
     (as prescribed for under applicable State law) as mental 
     health care providers; and
       ``(B) to facilitate the employment of such individuals, by 
     Federal, State, and local agencies and nongovernmental 
     organizations that provide mental health care to members of 
     the Armed Forces, veterans, or the families of such members 
     or veterans, to provide such care.
       ``(2) The program authorized by paragraph (1) and described 
     in this chapter shall be known as the `Heroes-to-Healers 
     Program'.
       ``(c) Administration of Program.--The Secretary shall 
     administer the Program in consultation with the Secretary of 
     Defense.
       ``(d) Information Regarding Program.--The Secretary shall 
     provide to the Secretary of Defense information regarding the 
     Program and applications for participation in the Program, 
     for distribution as part of preseparation counseling provided 
     under section 1142 of title 10 to members of the Armed Forces 
     described in section 4403 of this title.
       ``(e) Placement Assistance and Referral Services.--The 
     Secretary may, with the agreement of the Secretary of 
     Defense, provide placement assistance and referral services 
     to individuals who meet the criteria described in section 
     4403 of this title.

     ``Sec. 4403. Recruitment and selection of Program 
       participants

       ``(a) Eligible Individuals.--The following individuals are 
     eligible for selection to participate in the Program:
       ``(1) Any individual who--
       ``(A) was a member of the Armed Forces and becomes entitled 
     to retired or retainer pay in the manner provided in title 10 
     or title 14; or
       ``(B) has an approved date of retirement from service in 
     the Armed Forces.
       ``(2) Any individual who--
       ``(A)(i) is separated or released from active duty in the 
     Armed Forces after two or more years of continuous active 
     duty in the Armed Forces immediately before the separation or 
     release; or
       ``(ii) has completed a total of at least--
       ``(I) three years of active duty service in the Armed 
     Forces;
       ``(II) three years of service computed under section 12732 
     of title 10; or
       ``(III) three years of any combination of such service; and
       ``(B) executes a reserve commitment agreement for a period 
     of not less than 3 years under subsection (e)(2).
       ``(3) Any individual who is retired or separated for 
     physical disability under chapter 61 of title 10.
       ``(b) Submission of Applications.--(1) Selection of 
     eligible individuals to participate in the Program shall be 
     made on the basis of applications submitted to the Secretary 
     within the time periods specified in paragraph (2). An 
     application shall be in such form and contain such 
     information as the Secretary may require.
       ``(2) An application of an individual shall be considered 
     to be submitted on a timely basis under paragraph (1) if the 
     application is submitted not later than five years after the 
     date on which the individual is retired, separated, or 
     released from active duty in the Armed Forces, as the case 
     may be.
       ``(c) Selection Criteria.--(1) The Secretary shall 
     prescribe the criteria to be used to select eligible 
     individuals to participate in the Program.
       ``(2) An individual is eligible to participate in the 
     Program only if the individual's last period of service in 
     the Armed Forces was honorable, as characterized by the 
     Secretary concerned. An individual selected to participate in 
     the Program before the retirement of the individual or the 
     separation or release of the individual from active duty in 
     the Armed Forces may continue to participate in the Program 
     after the retirement, separation, or release only if the 
     individual's last period of service is characterized as 
     honorable by the Secretary concerned.
       ``(d) Selection Priorities.--In selecting eligible 
     individuals to receive assistance under the Program, the 
     Secretary shall give priority to individuals who engaged in 
     combat while serving in the Armed Forces.
       ``(e) Other Conditions on Selection.--(1) The Secretary may 
     not select an eligible individual to participate in the 
     Program under this section and receive financial assistance 
     under section 4404 of this title unless the Secretary has 
     sufficient appropriations for the Program available at the 
     time of the selection to satisfy the obligations to be 
     incurred by the United States under section 4404 of this 
     title with respect to the individual.
       ``(2) The Secretary may not select an eligible individual 
     described in subsection (a)(2)(A) to participate in the 
     Program under this section and receive financial assistance 
     under section 4404 of this title unless--
       ``(A) the Secretary notifies the Secretary concerned and 
     the individual that the Secretary has reserved a full stipend 
     or bonus under section 4404 of this title for the individual; 
     and
       ``(B) the individual executes a written agreement with the 
     Secretary concerned to serve as a member of the Selected 
     Reserve of a reserve component of the Armed Forces for a 
     period of not less than three years (in addition to any other 
     reserve commitment the individual may have).

     ``Sec. 4404. Participation agreement and financial assistance

       ``(a) Participation Agreement.--(1) An eligible individual 
     selected to participate in the Program under section 4403 of 
     this title and receive financial assistance under this 
     section shall be required to enter into an agreement with the 
     Secretary in which the individual agrees--
       ``(A) within such time as the Secretary may require, to 
     obtain certification or licensing as a mental health care 
     provider; and
       ``(B) to accept an offer of full-time employment as a 
     mental health care provider for not less than five years with 
     a Federal, State, or local agency or nongovernmental 
     organization that provides mental health care to members of 
     the Armed Forces, veterans, or the families of such members 
     or veterans.
       ``(2) The Secretary may waive the five-year commitment 
     described in paragraph (1)(B) for a participant if the 
     Secretary determines such waiver to be appropriate. If the 
     Secretary provides the waiver, the participant shall not be 
     considered to be in violation of the agreement and shall not 
     be required to provide reimbursement under subsection (f), 
     for failure to meet the five-year commitment.
       ``(3) The Secretary shall encourage eligible individuals to 
     seek employment with mental health care providers located 
     more than 75 miles from a Department medical center.
       ``(b) Violation of Participation Agreement; Exceptions.--A 
     participant in the Program shall not be considered to be in 
     violation of the participation agreement entered into under 
     subsection (a) during any period in which the participant--
       ``(1) is pursuing a full-time course of study related to 
     the field of mental health care at an institution of higher 
     education;
       ``(2) is serving on active duty as a member of the Armed 
     Forces;
       ``(3) is temporarily totally disabled for a period of time 
     not to exceed three years as established by sworn affidavit 
     of a qualified physician;
       ``(4) is unable to secure employment for a period not to 
     exceed 12 months by reason of the care required by a spouse 
     who is disabled;
       ``(5) is a mental health care provider who is seeking and 
     unable to find full-time employment as a mental health care 
     provider in a Federal, State, or local agency or 
     nongovernmental organization that provides mental health care 
     to members of the Armed Forces, veterans, or the families of 
     such members or veterans for a single period not to exceed 27 
     months; or
       ``(6) satisfies the provisions of additional reimbursement 
     exceptions that may be prescribed by the Secretary.
       ``(c) Stipend for Participants.--(1) Subject to paragraph 
     (2), the Secretary may pay to a participant in the Program 
     selected under section 4403 of this title a stipend in an 
     amount of not more than $5,000 per year of participation in 
     the Program.
       ``(2) The total number of stipends that may be paid under 
     paragraph (1) in any fiscal year may not exceed 2,500.
       ``(d) Bonus for Participants.--(1) Subject to paragraph 
     (2), the Secretary of Education may, in lieu of paying a 
     stipend under subsection (c), pay a bonus of up to $10,000 to 
     a participant in the Program selected under section 4403 of 
     this title who agrees in the participation agreement under 
     subsection (a) to become a mental health care provider and to 
     accept full-time employment as a mental health care provider 
     for not less than five years in a Federal, State, or local 
     agency or nongovernmental organization that provides mental 
     health care to members of the Armed Forces, veterans, or the 
     families of such members or veterans.
       ``(2) The total number of bonuses that may be paid under 
     paragraph (1) in any fiscal year may not exceed 2,000.
       ``(e) Treatment of Stipend and Bonus.--A stipend or bonus 
     paid under this section to a participant in the Program shall 
     not be taken into account in determining the eligibility of 
     the participant for Federal student financial assistance 
     provided under title IV of the Higher Education Act of 1965 
     (20 U.S.C. 1070 et seq.).
       ``(f) Reimbursement Under Certain Circumstances.--(1) A 
     participant in the Program who is paid a stipend or bonus 
     under this section shall be required to repay the stipend or 
     bonus under the following circumstances:
       ``(A) The participant fails to obtain mental health care 
     provider certification or licensing, to become a mental 
     health care provider, or to obtain employment as a mental 
     health care as required by the participation agreement under 
     subsection (a).
       ``(B) The participant voluntarily leaves, or is terminated 
     for cause from, employment as a mental health care provider 
     during the five years of required service in violation of the 
     participation agreement.
       ``(C) The participant executed a written agreement with the 
     Secretary concerned under section 4403(e)(2) of this title to 
     serve as a member of a reserve component of the

[[Page 17695]]

     Armed Forces for a period of three years and fails to 
     complete the required term of service.
       ``(2) A participant required to reimburse the Secretary for 
     a stipend or bonus paid to the participant under this section 
     shall pay an amount that bears the same ratio to the amount 
     of the stipend or bonus as the unserved portion of required 
     service bears to the five years of required service. Any 
     amount owed by the participant shall bear interest at the 
     rate equal to the highest rate being paid by the United 
     States on the day on which the reimbursement is determined to 
     be due for securities having maturities of 90 days or less 
     and such interest shall accrue from the day on which the 
     participant is first notified of the amount due.
       ``(3) The obligation to reimburse the Secretary under this 
     subsection is, for all purposes, a debt owing the United 
     States. A discharge in bankruptcy under title 11 shall not 
     release a participant from the obligation to reimburse the 
     Secretary under this subsection.
       ``(4) A participant shall be excused from reimbursement 
     under this subsection if the participant becomes permanently 
     totally disabled as established by sworn affidavit of a 
     qualified physician. The Secretary may also waive the 
     reimbursement in cases of extreme hardship to the 
     participant, as determined by the Secretary.
       ``(g) Relationship to Educational Assistance Under Titles 
     10 and 38.--The receipt by a participant in the Program of a 
     stipend or bonus under this section shall not reduce or 
     otherwise affect the entitlement of the participant to any 
     benefits under chapters 30, 31, 33, or 35 of this title or 
     chapters 1606 or 1607 of title 10.

     ``Sec. 4405. Participation by States

       ``(a) Discharge of State Activities Through Consortia of 
     States.--The Secretary may permit States participating in the 
     Program to carry out activities authorized for such States 
     under the Program through one or more consortia of such 
     States.
       ``(b) Assistance to States.--(1) Subject to paragraph (2), 
     the Secretary may make grants to States participating in the 
     Program, or to consortia of such States, in order to permit 
     such States or consortia of States to operate offices for 
     purposes of recruiting eligible individuals for participation 
     in the Program and facilitating the employment of 
     participants in the Program as a mental health care provider.
       ``(2) The total amount of grants made under paragraph (1) 
     in any fiscal year may not exceed $5,000,000.

     ``Sec. 4406. Reporting requirements

       ``(a) Annual Report Required.--Not later than 180 days 
     after the date of the enactment of this chapter and annually 
     thereafter, the Secretary shall, in consultation with the 
     Secretary of Defense, the Secretary of Homeland Security, and 
     the Comptroller General of the United States, submit to 
     Congress a report on the effectiveness of the Program in the 
     recruitment and retention of qualified personnel by Federal, 
     State, and local agencies and nongovernmental organizations 
     that provide mental health care to members of the Armed 
     Forces, veterans, or the families of such members or 
     veterans.
       ``(b) Elements of Report.--The report submitted under 
     subsection (a) shall include information on the following:
       ``(1) The number of participants in the Program.
       ``(2) The types of positions in which the participants are 
     employed.
       ``(3) The populations served by the participants.
       ``(4) The agencies and organizations in which the 
     participants are employed as mental health care providers.
       ``(5) The types of agencies and organizations with which 
     the participants are employed.
       ``(6) The geographic distribution of the agencies and 
     organizations with which participants are employed.
       ``(7) The rates of retention of the participants by the 
     Federal, State, and local agencies and nongovernmental 
     organizations employing the participants.
       ``(8) Such other matters as the Secretary considers to be 
     appropriate.

     ``Sec. 4407. Authorization of appropriations

       ``There are authorized to be appropriated to the Secretary 
     to carry out the provisions of this chapter $10,000,000 for 
     fiscal year 2009 and each fiscal year thereafter.''.
       (b) Clerical Amendments.--The tables of chapters at the 
     beginning of title 38, United States Code, and at the 
     beginning of part III of such title, are each amended by 
     inserting after the item relating to chapter 43 the following 
     new item:

``44. Heroes-to-Healers Program............................4400.''.....

     SEC. 5. GRANT PROGRAM TO ENCOURAGE STATE AND LOCAL MENTAL 
                   HEALTH AGENCIES TO ESTABLISH, EXPAND, OR 
                   ENHANCE MENTAL HEALTH PROVIDER RECRUITMENT AND 
                   RETENTION EFFORTS.

       (a) Purposes.--It is the purpose of this section to 
     establish a program to recruit and retain highly qualified 
     mid-career professionals and recent graduates of an 
     institution of higher education, as psychiatrists, 
     psychologists, social workers, psychiatric nurses, mental 
     health counselors, or marriage and family therapists.
       (b) Definitions.--In this section:
       (1) Eligible entity.--The term ``eligible entity'' means an 
     entity described in subsection (c)(2).
       (2) Eligible participant.--The term ``eligible 
     participant'' means--
       (A) an individual with substantial, demonstrable career 
     experience; or
       (B) an individual who has graduated from an institution of 
     higher education not more than 3 years prior to applying to 
     an eligible entity to become to be a mental health provider 
     under this section.
       (3) Mental health provider.--The term ``mental health 
     provider'' means a psychiatrist, psychologist, social worker, 
     psychiatric nurse, mental health counselor, marriage or 
     family therapist, or any other provider determined 
     appropriate by the Secretary.
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of Education.
       (c) Grant Program.--
       (1) In general.--The Secretary may, in consultation with 
     the Secretary of Defense, the Secretary of Health and Human 
     Services, and the Secretary of Veterans Affairs, establish a 
     program to award grants, on a competitive basis, to eligible 
     entities to encourage State and local mental health agencies 
     or other entities to establish, expand, or enhance mental 
     health provider recruitment and retention efforts. The 
     Secretary may establish tiered grant award amounts based on 
     criteria including specific need for highly qualified mental 
     health providers by profession within a high demand area, 
     geographic location, and existing compensation rates.
       (2) Eligible entities.--To be eligible to receive a grant 
     under this section, an entity shall be--
       (A) a State health agency;
       (B) a high-need local health agency;
       (C) a for-profit or nonprofit organization that has a 
     proven record of effectively recruiting and retaining highly 
     qualified mental health providers, that has entered into a 
     partnership with a high-need local health agency or with a 
     State health agency;
       (D) an institution of higher education that has entered 
     into a partnership with a high-need local health agency or 
     with a State health agency;
       (E) a regional consortium of State health agencies; or
       (F) a consortium of high-need local health agencies.
       (3) Priority.--In awarding a grant under this subsection, 
     the Secretary shall give priority to a partnership or 
     consortium that includes a high-need State agency or local 
     health agency.
       (4) Application.--
       (A) In general.--To be eligible to receive a grant under 
     this section, an eligible entity shall submit an application 
     to the Secretary at such time, in such manner, and containing 
     such information as the Secretary may require.
       (B) Contents.--An application submitted under subparagraph 
     (A) shall include a description of--
       (i) one or more target recruitment groups on which the 
     applicant will focus its recruitment efforts under the grant;
       (ii) the characteristics of each such target group that--

       (I) demonstrate the knowledge and experience of the group's 
     members; and
       (II) demonstrate that the members are eligible to achieve 
     the purposes of this section;

       (iii) the manner in which the applicant will use funds 
     received under the grant to develop a cadre of mental health 
     providers, or other programs to recruit and retain highly 
     qualified midcareer professionals, recent college graduates, 
     and recent graduate school graduates, as highly qualified 
     mental health providers, in high-need military or veterans 
     communities, or as part of entities providing care to 
     military or veterans in medical facilities;
       (iv) the manner in which the program carried out under the 
     grant will comply with relevant State laws related to mental 
     health provider certification or licensing and facilitate the 
     certification or licensing of such mental health providers;
       (v) the manner in which activities under the grant will 
     increase the number of highly qualified mental health 
     providers, in high-need Federal, State and local agencies (in 
     urban or rural areas), and in high-need mental health 
     professions, in the jurisdiction served by the applicant; and
       (vi) the manner in which the applicant will collaborate, as 
     needed, with other institutions, agencies, or organizations 
     to recruit (particularly through activities that have proven 
     effective in retaining highly qualified mental health 
     providers), train, place, support, and provide mental health 
     induction programs to eligible participants under this 
     section, including providing evidence of the commitment of 
     the institutions, agencies, or organizations to the 
     applicant's programs.
       (5) Duration of grant.--The Secretary may award grants 
     under this subsection for periods of 5 years. At the end of 
     the 5-year period for such a grant, the grant recipient may 
     apply for an additional grant under this section.
       (6) Equitable distribution.--To the extent practicable, the 
     Secretary shall ensure an equitable geographic distribution 
     of grants

[[Page 17696]]

     under this subsection among the regions of the United States.
       (7) Use of funds.--
       (A) In general.--An entity shall use amounts received under 
     a grant under this subsection to develop a cadre of mental 
     health providers in order to establish, expand, or enhance 
     mental health provider recruitment and retention programs for 
     highly qualified mid-career professionals, and recent 
     graduates of an institution of higher education, who are 
     eligible participants.
       (B) Authorized activities.--A program carried out under 
     subparagraph (A) shall include 2 or more of the following 
     activities:
       (i) To provide scholarships, stipends, bonuses, and other 
     financial incentives, that are linked to participation in 
     activities that have proven effective in retaining mental 
     health providers in high-need areas operated by Federal, 
     State and local health agencies, to all eligible 
     participants, in an amount that shall not be less than 
     $5,000, nor more than $20,000, per participant.
       (ii) To carry out pre- and post-placement induction or 
     support activities that have proven effective in recruiting 
     and retaining mental health providers, such as--

       (I) mentoring;
       (II) providing internships;
       (III) providing high-quality, preservice coursework; and
       (IV) providing high-quality, sustained inservice 
     professional development.

       (iii) To make payments to pay the costs associated with 
     accepting mental health providers under this section from 
     among eligible participants or to provide financial 
     incentives to prospective mental health providers who are 
     eligible participants.
       (iv) To collaborate with institutions of higher education 
     in the development and implementation of programs to 
     facilitate mental health provider recruitment (including 
     credentialing and licensing) and mental health retention 
     programs.
       (v) To carry out other programs, projects, and activities 
     that are designed and have proven to be effective in 
     recruiting and retaining mental health providers, and that 
     the Secretary determines to be appropriate.
       (vi) To develop long-term mental health provider 
     recruitment and retention strategies, including developing--

       (I) a national, statewide or regionwide clearinghouse for 
     the recruitment and placement of mental health providers;
       (II) reciprocity agreements between or among States for the 
     certification or licensing of mental health providers; or
       (III) other long-term teacher recruitment and retention 
     strategies.

       (C) Effective programs.--An entity shall use amounts 
     received under a grant under this subsection only for 
     programs that have proven to be effective in both recruiting 
     and retaining mental health providers (as determined by the 
     Secretary).
       (8) Requirements.--
       (A) Targeting.--An entity that receives a grant under this 
     subsection shall ensure that participants in the program 
     carried out under the grant who are recruited with funds made 
     available under the grant are placed in high-need areas 
     operated by high-need Federal, State, and local health 
     agencies. In placing such participants in mental health 
     facilities, such entity shall give priority to facilities 
     that are located in--
       (i) rural under served areas; or
       (ii) urban areas with high percentages of individuals who 
     are members of the Armed Forces or veterans.
       (B) Supplement, not supplant.--Amounts made available under 
     this section shall be used to supplement, and not supplant, 
     State and local public funds expended for mental health 
     provider recruitment and retention programs.
       (C) Partnerships and consortia of local health agencies.--
     In the case of a partnership established by a Federal, State, 
     or local health agency to carry out a program under this 
     section, or a consortium of such agencies established to 
     carry out such a program, the Federal, State, or local health 
     agency or consortium shall not be eligible to receive funds 
     through a State program under this section.
       (9) Period of service.--A participant in a program under 
     this subsection who receives training through the program 
     shall serve at a high-need medical facility or an agency 
     operated by a high-need Federal, State, or local health 
     agency for a term of not less than 3 years.
       (10) Repayment.--The Secretary shall establish such 
     requirements as the Secretary determines to be appropriate to 
     ensure that a participant in a program under this section who 
     receives a stipend or other financial incentive as provided 
     for in paragraph (7)(B)(i), but who fails to complete their 
     service obligation under paragraph (9), repays all or a 
     portion of such stipend or other incentive.
       (11) Administrative funds.--An entity that receives a grant 
     under this subsection shall not use more than 5 percent of 
     the funds made available under the grant for the 
     administration of a program under this subsection.
       (12) Authorization of appropriations.--There is authorized 
     to be appropriated such sums as may be necessary in each 
     fiscal year to carry out this subsection.
       (d) Evaluation and Accountability for Recruiting and 
     Retaining Mental Health Providers.--
       (1) Evaluation.--An entity that receives a grant under this 
     section shall--
       (A) within 30 days of the end of the 3rd year of the grant 
     period, conduct an interim evaluation of the program funded 
     under the grant; and
       (B) within 30 days of the end of the 5th year of the grant 
     period, conduct a final evaluation of the program funded 
     under the grant.
       (2) Contents.--In conducting an evaluation under paragraph 
     (1), an entity shall describe the extent to which State and 
     local agencies that received funds through the grant have met 
     the goals relating to mental health provider recruitment and 
     retention described in the application submitted by the 
     entity under paragraph (4).
       (3) Reports.--An entity that receives a grant under this 
     Act shall prepare and submit to the Secretary and the 
     appropriate committees of Congress, an interim and final 
     report that contains the results of the interim and final 
     evaluations carried out under subparagraphs (A) and (B) of 
     paragraph (1), respectively.
       (4) Revocation.--If the Secretary determines that the 
     recipient of a grant under this section has not made 
     substantial progress in meeting the goals and the objectives 
     of the grant by the end of the 3rd year of the grant period, 
     the Secretary shall--
       (A) revoke any payments made for the 4th year of the grant 
     period; and
       (B) not make any payment for the 5th year of the grant 
     period.

  Mr. WYDEN. Mr. President, over the past 7 years, hundreds of 
thousands of members of our armed forces have gone to war and returned 
home alive, but suffering. Advances in protective equipment and 
improvements made in battlefield care mean that fewer troops than ever 
before suffer from obvious physical wounds. But many more of these 
service members have returned with less obvious injuries--invisible 
injuries like post-traumatic stress disorder or traumatic brain injury.
  Our armed forces have seen a surge in diagnosed cases of post-
traumatic stress disorder and traumatic brain injury, commonly known as 
PTSD and TBI. And soldiers in the National Guard and Reserves are much 
more likely to suffer from PTSD and depression when they return from 
battle, a fact that is very important in Oregon where almost all of our 
servicemembers serve in the Guard and Reserves.
  While no less real and no less serious than physical wounds of war, 
PTSD and TBI require a specialized kind of diagnosis and treatment. 
Unfortunately, only half of the soldiers and veterans who suffer from 
PTSD or TBI are receiving care for their wounds, according to a RAND 
Corporation study.
  To help our service men and women suffering from PTSD, TBI and other 
mental health conditions, we are introducing a bill today that's 
designed to address some of the overwhelming difficulties faced by many 
of our nation's warriors. This bill, the ``Healing Our Nation's Heroes 
Act of 2008,'' has within it provisions to help improve mental health 
care, and access to care, for service members who suffer from the 
invisible wounds of war.
  First, this legislation would create a standing commission to study 
and oversee mental health treatment of our veterans. This commission 
would make recommendations on methods to improve mental health care 
and, just as importantly, overcome the cultural stigma attached to 
seeking help for mental health disorders. As an ongoing body, this 
commission will continue to help guide Congress and the agencies for 
years, instead of just making recommendations and disappearing.
  Secondly, the bill would create a ``Heroes-to-Healers Program'' which 
would provide financial incentives for veterans and members of the 
armed forces who are separating or retiring to obtain certification or 
licensing as mental health providers. It also encourages them to seek 
employment with organizations that provide mental health care to 
members of the armed forces, veterans and their families.
  One of the more heartbreaking truths surrounding PTSD is that service 
members are often reluctant to seek help from mental health 
professionals who don't share their experiences. This reluctance 
creates the sort of self-isolation that leads to increased risk of 
suicide.
  By increasing the number of veterans working as mental health 
providers, this bill will allow more

[[Page 17697]]

servicemembers and veterans to get treatment from those who truly 
understand what combat is like.
  Our bill would also create a grant program to help state and local 
mental health agencies recruit and retain mental health professionals. 
Some service members and veterans don't feel comfortable seeking mental 
health care from the Department of Defense or VA. But mental health 
agencies are already being stretched thin, especially in rural areas. 
This legislation will provide help in recruiting and retaining the 
mental health providers our wounded heroes so desperately need.
  Surviving the trauma of combat shouldn't sentence our forces to a 
lifetime of mental and emotional pain. They paid the price bravely for 
serving our country in battle. This bill will help them move beyond the 
invisible scars of the battlefield and rebuild their lives at home.
                                 ______
                                 
      By Mr. WYDEN (for himself, Ms. Collins, and Mr. Dodd):
  S. 3375. A bill to prohibit the introduction or delivery for 
introduction into interstate commerce of novelty lighters, and for 
other purposes; to the Committee on Commerce, Science, and 
Transportation.
  Mr. WYDEN. Mr. President, today, I, along with my colleagues Senator 
Collins from Maine and Senator Dodd from Connecticut, am introducing 
the Protect Children From Dangerous Lighters Act, a ban on novelty 
lighters. Novelty lighters, also known as toy-like lighters, are 
cigarette lighters that look like small children's toys or regular 
household items.
  These lighters are dangerous and have terrible consequences. Because 
they are so well disguised as toys, novelty lighters have children 
literally playing with fire.
  The results can be deadly: In Oregon, two boys were playing with a 
novelty lighter disguised as a toy dolphin and accidentally started a 
serious fire. One boy died and the other now has permanent brain 
damage. Also in Oregon, a mother suffered third degree burns on her 
foot when her child was playing with a novelty lighter disguised as a 
small toy Christmas tree and set a bed on fire.
  Tragic accidents like these happen all over the country. In North 
Carolina, a boy sustained second degree burns after playing with a 
novelty lighter that looked like a toy cell phone. One of the most 
tragic incidents occurred in Arkansas, where a 2-year-old and a 15-
month-old child died in a fire they accidentally started playing with a 
novelty lighter shaped like a toy motorcycle.
  These injuries and deaths demand we take action and remove these 
dangerous lighters from shelves everywhere.
  If we don't protect children from novelty lighters, we are condemning 
them to play life-threatening Russian roulette every time they pick up 
what they think is a toy.
  A ban on novelty lighters would require the Consumer Product Safety 
Commission to treat novelty lighters as a banned hazardous substance. 
That means novelty lighters will not be manufactured, imported, sold, 
or given away as promotional gifts anywhere in this country. Passing 
this bill is the only way we can guarantee that novelty lighters will 
be kept out of the hands of children. It's our best tool to prevent 
injuries like those that have already brought tragedy to too many 
families.
  A number of states and cities have taken it upon themselves to take 
action to ban these deadly lighters. Maine and Tennessee passed novelty 
lighter ban legislation and similar bans are being introduced in many 
other states, including Oregon. We should expand and support these 
efforts to protect children in all states.
  A Federal ban on novelty lighters has widespread nationwide support. 
Along with the Oregon Fire Marshal, the National Association of Fire 
Marshals supports a Federal ban on these lighters and has been active 
in promoting public awareness on this issue. Even the cigarette lighter 
industry, represented by the Lighter Association, supports a ban on 
novelty lighters. We also have support from the Congressional Fire 
Institute, Safe Kids USA, Consumer Federation of America and the 
Consumer's Union.
  The more people learn about novelty lighters, the more support there 
is to ban them.
  I urge my colleagues to act now and help kids across America avoid 
the senseless deaths and serious injuries they suffer when they mistake 
novelty lighters for toys.
  Hazardous tools containing flammable fuel should not be dressed up in 
packages that are particularly attractive to children. Kids need our 
help to protect them from the treacherous ``wolf in sheep's clothing'' 
of novelty lighters.
  I urge all my colleagues to support the Protect Children from 
Dangerous Lighters Act.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objetion, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3375

       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 ``Protect Children from 
     Dangerous Lighters Act of 2008''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Lighters are inherently dangerous products containing 
     flammable fuel.
       (2) If lighters are used incorrectly or used by children, 
     dangerous and damaging consequences may result.
       (3) Novelty lighters are easily mistaken by children and 
     adults as children's toys or as common household items.
       (4) Novelty lighters have been the cause of many personal 
     injuries to children and adults and property damage 
     throughout the United States.

     SEC. 3. NOVELTY LIGHTER DEFINED.

       In this Act, the term ``novelty lighter'' means a device 
     typically used for the igniting or lighting of cigarettes, 
     cigars, or pipes that has a toy-like appearance, has 
     entertaining audio or visual effects, or resembles in any way 
     in form or function an item that is commonly recognized as 
     appealing, attractive, or intended for use by children of 10 
     years of age or younger, including such a device that takes 
     toy-like physical forms, including toy animals, cartoon 
     characters, cars, boats, airplanes, common household items, 
     weapons, cell phones, batteries, food, beverages, musical 
     instruments, and watches.

     SEC. 4. BAN ON NOVELTY LIGHTERS.

       (a) Banned Hazardous Substance.--A novelty lighter shall be 
     treated as a banned hazardous substance as defined in section 
     2 of the Federal Hazardous Substances Act (15 U.S.C. 1261) 
     and the prohibitions set out in section 4 of such Act (15 
     U.S.C. 1263) shall apply to novelty lighters.
       (b) Application.--Subsection (a) applies to a novelty 
     lighter--
       (1) manufactured on or after January 1, 1980; and
       (2) that is not considered by the Consumer Product Safety 
     Commission to be an antique or an item with significant 
     artistic value.

  Ms. COLLINS. Mr. President, I rise to join my friend Senator Wyden in 
introducing a bill that will ban the sale of certain novelty lighters 
that children can mistake for toys, often with tragic consequences for 
themselves and their families.
  In Arkansas last year, two boys, ages 15 months and 2 years, died 
when the toddler accidentally started a fire with a lighter shaped like 
a motorcycle. In Oregon, a fire started with a dolphin-shaped lighter 
left one child dead and another brain-damaged. A North Carolina 6-year-
old boy was badly burned by a lighter shaped like a cell phone.
  Sadly, the U.S. Fire Administration has other stories of the hazards 
presented by novelty lighters. When you learn that one looks like a 
rubber duck toy--and quacks--you can imagine the potential for harm.
  As a co-chair of the Congressional Fire Services Caucus, I am proud 
to note that this spring, my home State of Maine became the first State 
to outlaw the sale of novelty lighters.
  My State's pioneering law stems from a tragic 2007 incident in a 
Livermore, Maine, grocery store. While his mother was buying 
sandwiches, six-year-old Shane St. Pierre picked up what appeared to be 
a toy flashlight in the form of a baseball bat. When he flicked the 
switch, a flame shot out and burned his face. Shane's dad, Norm St. 
Pierre, a fire chief in nearby West

[[Page 17698]]

Paris, began advocating for the novelty-lighter ban that became Maine 
law in March 2008.
  The Maine State Fire Marshal's office supported that legislation, and 
a national ban has the support of the Congressional Fire Services 
Institute's National Advisory Committee, the National State Fire 
Marshals Association, and the National Volunteer Fire Council.
  The bill is straightforward. It treats novelty lighters manufactured 
after January 1, 1980, as banned hazardous substances unless the 
Consumer Product Safety Commission determines a particular lighter has 
antique or significant artistic value. Otherwise, sale of lighters with 
toy-like appearance, special audio or visual features, or other 
attributes that would appeal to children under 10 would be banned.
  The novelty lighters targeted in this legislation serve no functional 
need. But they are liable to attract the notice and curiosity of 
children, whose play can too easily turn into a scene of horror and 
death. The sale of lighters that look like animals, cartoon characters, 
food, toys, or other objects is simply irresponsible and an invitation 
to tragedy.
  I urge all of my colleagues to join me in supporting this simple 
measure that can save children from disfigurement and death.
                                 ______
                                 
      By Mr. COLEMAN (for himself, Ms. Collins, and Mr. Lieberman):
  S. 3377. A bill to amend title 46, United States Code, to waive the 
biometric transportation security card requirement for certain small 
business merchant mariners, and for other purposes; to the Committee on 
Commerce, Science, and Transportation.
  Mr. COLEMAN. Mr. President, Minnesota is the land of over 10,000 
lakes and nearly as many fishing guides. We even have a Fishing Hall of 
Fame in Baxter where many of our legendary guides are enshrined--names 
like Al and Ron Lindner, Babe Winkleman, Gary Roach and many others. In 
fact tonight there is a banquet honoring the Hall. The craft of the 
fishing guide is to understand fish and to share their knowledge and 
the sport with many of us who don't possess their skills.
  When I travel my state I meet with folks from all walks of life who 
have dealings with the federal government and last summer I was in the 
city of Baudette, a small community on the Rainy River on the northern 
border of Minnesota. I had the chance to speak with a fishing guide who 
told me about a new federal regulation with which he had to comply. As 
you can imagine, I was amazed when he told me that he was being 
required to get a Transportation Worker Identification Credential--or 
TWIC--in order to stay in business as a fishing guide. Now I understand 
that folks who do business on the water should be able to exhibit 
seamanship and operate a safe watercraft. But, my guides and I are 
having a hard time understanding why a guy whose briefcase is a bucket 
of minnows and his workday starts when he backs his boat into the lake 
should be required to submit to the same security screening as 
operators and workers in our major ports.
  To address this issue, I am introducing the Small Marine Business and 
Fishing Guide Relief Act. I want to thank Senator Collins and Senator 
Lieberman for joining me as original cosponsors of this legislation. 
Our bill is very straightforward--it will exempt mariners from needing 
a TWIC if they are not required to submit a vessel security plan for 
their boat to the Coast Guard. This group of mariners includes fishing 
guides, charter captains and other small recreational boaters.
  I want to be clear these mariners will still be required to have a 
Coast Guard license. Security should not be jeopardized by eliminating 
the TWIC requirement because the Coast Guard conducts significant 
background checks when mariners apply for a Coast Guard license. These 
background checks review crimes against people, property, public 
safety, the environment and examine whether the applicant has prior 
drug offenses or committed a crime against national security.
  These folks already pay a minimum of $140 for their Coast Guard 
licenses which are good for five years. Given these factors, asking 
these operators to pay over $100 more for another credential--
especially with the recent downturn in the economy and the cost of 
gas--is an unnecessary burden that doesn't make sense.
  Additionally, our legislation calls for a report to examine the 
feasibility of identifying which small boat operators already purchased 
a TWIC but will not need it once this legislation is signed into law. 
Once this is done, refunds or credits could be issued towards license 
renewals for these folks.
  The TWIC program is an important tool to ensure the safety of our 
nation's ports, but common sense tells us that a fishing dock on Lake 
of the Woods or Rainy River is vastly different from the major ports 
around the country that receive thousands of cargo containers per day. 
Simply put, we need to make sure our local fishing guides and other 
small marine operators are not being subjected to excessive government 
regulation and this legislation will provide that relief.
  A similar TWIC exemption passed the House on April 24 as part of the 
Coast Guard Reauthorization Act and I encourage my Senate colleagues to 
pass this legislation as well before we adjourn for the year.
  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. 3377

       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 ``Small Marine Business and 
     Fishing Guide Relief Act of 2008''.

     SEC. 2. WAIVER OF BIOMETRIC TRANSPORTATION SECURITY CARD 
                   REQUIREMENT FOR CERTAIN SMALL BUSINESS MERCHANT 
                   MARINERS.

       (a) In General.--Section 70105 (b)(2) of title 46, United 
     States Code, is amended--
       (1) in subparagraph (B), by inserting ``and serving under 
     the authority of such license, certificate of registry, or 
     merchant mariners document on a vessel for which the owner or 
     operator of such vessel is required to submit a vessel 
     security plan under section 70103(c) of this title'' before 
     the semicolon;
       (2) by striking subparagraph (D); and
       (3) by redesignating subparagraphs (E), (F), and (G) as 
     subparagraphs (D), (E), and (F), respectively.
       (b) Report.--Not later than 90 days after the date of the 
     enactment of this Act, the Secretary of Homeland Security 
     shall submit to Congress a report that contains the 
     following:
       (1) A list of the locations that provide service to 
     individuals seeking to obtain or renew a license, certificate 
     of registry, or merchant mariners document under part E of 
     subtitle II of title 46, United States Code.
       (2) An assessment of the feasibility of accepting 
     applications for licenses, certificates of registry, and 
     merchant mariner documents described in paragraph (1) and any 
     applicant biometrics required therefor at the Transportation 
     Worker Identification Credential enrollment facilities or 
     mobile enrollment centers of the Department of Homeland 
     Security.
       (3) An assessment of the administrative feasibility of 
     verifying that an individual has obtained a biometric 
     transportation security card issued under section 70105 of 
     title 46, United States Code, and is serving under the 
     authority of a license, certificate of registry, or merchant 
     mariners document described in paragraph (1) on a vessel for 
     which the owner or operator of such vessel is not required to 
     submit a vessel security plan under section 70103(e) of such 
     title to provide such individual a refund of any fees paid by 
     such individual to obtain such biometric transportation 
     security card.
       (4) An assessment of the administrative feasibility of 
     verifying that an individual has obtained a biometric 
     transportation security card described in paragraph (3) and 
     is serving under the authority of a license, certificate of 
     registry, or merchant mariners document described in 
     paragraph (1) on a vessel described in paragraph (3) to 
     provide such individual a credit towards the renewal of such 
     license, certificate of registry, or merchant mariners 
     document that is equal to the amount of fees paid by such 
     individual for such biometric transportation security card.

  Ms. COLLINS. Mr. President, I am pleased to be an original cosponsor 
of the Small Marine Business and Fishing Guide Relief Act that Senator 
Coleman is introducing today. This legislation will provide much-needed 
relief to charter boat captains and other operators of small marine 
businesses in

[[Page 17699]]

Maine by exempting them from having to obtain a Transportation Worker 
Identification Credential, or TWIC, which costs $132.50 for each 
employee.
  Under current law, any individual who holds a Coast Guard license, as 
most charter boat captains do, must also obtain a TWIC. The purpose of 
the requirement was to ensure that port operators and the Coast Guard 
could inspect a tamper-resistant identification document to verify the 
identity of those who have access to secure areas of ports and large 
vessels.
  Charter boat captains, however, do not have secure areas on their 
boats and usually do not need unescorted access to port facilities. 
Therefore, they have no need for a TWIC. For these small businesses, 
requiring them to obtain a TWIC essentially amounts to an unnecessary 
and costly government regulation.
  Many small businesses are struggling in these lean economic times, 
particularly with high marine fuel prices and tourists who have less to 
spend their discretionary income on charter tours in the Gulf of Maine. 
With these businesses' declining profit margins, they cannot afford an 
additional $132 identification card for their employees.
  Even with this exemption, charter captains with a Coast Guard license 
will have undergone an extensive background check for the same crimes 
that are reviewed when an individual applies for a TWIC. So waiving the 
TWIC requirement for them would not reduce the background information 
available for review before these individuals are licensed as charter 
captains.
  To be sure, the Transportation Worker Identification Credential will 
play a critical role in our Nation's maritime security by limiting 
access to secure areas of ports and large vessels. It must ``be 
implemented, however, in a manner that does not unnecessarily and 
unproductively impede legitimate business operations.
                                 ______
                                 
      By Mr. DOMENICI (for himself and Mr. Bingaman):
  S. 3381. A bill to authorize the Secretary of the Interior, acting 
through the Commissioner of Reclamation, to develop water 
infrastructure in the Rio Grande Basin, and to approve the settlement 
of the water rights claims of the Pueblos of Nambe, Pojoaque, San 
Ildefonso, Tesuque, and Taos; to the Committee on Indian Affairs.
  Mr. DOMENICI. Mr. President, during the previous session I introduced 
legislation to address the funding of Indian water rights claims that 
are of utmost importance in the west, and in particular, within the 
State of New Mexico. Since that time many parties have met for 
countless hours in New Mexico and here in Washington to address how 
these claims could be resolved and finally settled. Rather than spend 
countless hours in litigation, these groups have sat down and worked 
through these issues in a very productive manner.
  As a result, today I am pleased to come before you to introduce, on 
behalf of myself and Senator Bingaman, the Aamodt and Taos Pueblo 
Indian Water Rights Settlement Act of 2008. This legislation will 
resolve these long-standing Indian water rights claims within New 
Mexico and authorize a source of Federal funding to resolve them.
  The Aamodt litigation in New Mexico was filed in 1966 and is the 
longest-standing litigation in the Federal judiciary system. The hard 
work that each party put into the settlement process demonstrates that 
negotiated settlements, with multiple parties working together, can 
best determine how to allocate scarce water supplies among diverse 
parties in a way that does not curtail existing uses. This bill will 
result in additional economic development and improved health benefits 
within these communities.
  The resolution of these claims will not only improve the lives of 
many within these communities by providing a safe and reliable water 
supply, but will also improve the ability of New Mexico to effectively 
undertake water rights planning in the near and long-term future.
  As I have stated before, the costs of not settling these claims in 
New Mexico are dire. The legislation before us will ensure that our 
obligations to these communities are met and that they will have safe 
and reliable water systems.
  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. 3381

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. TABLE OF CONTENTS.

       The table of contents of this Act is as follows:

Sec. 1. Table of contents.

               TITLE I--AAMODT LITIGATION SETTLEMENT ACT

Sec. 101. Short title.
Sec. 102. Definitions.

            Subtitle A--Pojoaque Basin Regional Water System

Sec. 111. Authorization of Regional Water System.
Sec. 112. Operating Agreement.
Sec. 113. Acquisition of Pueblo water supply for the Regional Water 
              System.
Sec. 114. Delivery and allocation of Regional Water System capacity and 
              water.
Sec. 115. Aamodt Settlement Pueblos' Fund.
Sec. 116. Environmental compliance.
Sec. 117. Authorization of appropriations.

       Subtitle B--Pojoaque Basin Indian Water Rights Settlement

Sec. 121. Settlement Agreement and contract approval.
Sec. 122. Environmental compliance.
Sec. 123. Conditions precedent and enforcement date.
Sec. 124. Waivers and releases.
Sec. 125. Effect.

        TITLE II--TAOS PUEBLO INDIAN WATER RIGHTS SETTLEMENT ACT

Sec. 201. Short title.
Sec. 202. Purpose.
Sec. 203. Definitions.
Sec. 204. Pueblo rights.
Sec. 205. Pueblo water infrastructure and watershed enhancement.
Sec. 206. Taos Pueblo Water Development Fund.
Sec. 207. Marketing.
Sec. 208. Mutual-benefit projects.
Sec. 209. San Juan-Chama Project contracts.
Sec. 210. Authorizations, ratifications, confirmations, and conditions 
              precedent.
Sec. 211. Waivers and releases.
Sec. 212. Interpretation and enforcement.
Sec. 213. Disclaimer.

               TITLE I--AAMODT LITIGATION SETTLEMENT ACT

     SEC. 101. SHORT TITLE.

       This title may be cited as the ``Aamodt Litigation 
     Settlement Act''.

     SEC. 102. DEFINITIONS.

       In this title:
       (1) Acre-feet.--The term ``acre-feet'' means acre-feet of 
     water per year.
       (2) Aamodt case.--The term ``Aamodt Case'' means the civil 
     action entitled State of New Mexico, ex rel. State Engineer 
     and United States of America, Pueblo de Nambe, Pueblo de 
     Pojoaque, Pueblo de San Ildefonso, and Pueblo de Tesuque v. 
     R. Lee Aamodt, et al., No. 66 CV 6639 MV/LCS (D.N.M.).
       (3) Authority.--The term ``Authority'' means the Pojoaque 
     Basin Regional Water Authority described in section 9.5 of 
     the Settlement Agreement or an alternate entity acceptable to 
     the Pueblos and the County to operate and maintain the 
     diversion and treatment facilities, certain transmission 
     pipelines, and other facilities of the Regional Water System.
       (4) Bishop's lodge extension.--The term ``Bishop's Lodge 
     Extension'' has the meaning given the term in the Engineering 
     Report.
       (5) City.--The term ``City'' means the city of Santa Fe, 
     New Mexico.
       (6) Cost-sharing and system integration agreement.--The 
     term ``Cost-Sharing and System Integration Agreement'' means 
     the agreement executed by the United States, the State, the 
     Pueblos, the County, and the City that--
       (A) describes the location, capacity, and management 
     (including the distribution of water to customers) of the 
     Regional Water System; and
       (B) allocates the costs of the Regional Water System with 
     respect to--
       (i) the construction, operation, maintenance, and repair of 
     the Regional Water System;
       (ii) rights-of-way for the Regional Water System; and
       (iii) the acquisition of water rights.
       (7) County.--The term ``County'' means Santa Fe County, New 
     Mexico.
       (8) County distribution system.--The term ``County 
     Distribution System'' means the portion of the Regional Water 
     System that serves water customers on non-Pueblo land in the 
     Pojoaque Basin.
       (9) County water utility.--The term ``County Water 
     Utility'' means the water utility organized by the County 
     to--
       (A) receive water distributed by the Authority; and

[[Page 17700]]

       (B) provide the water received under subparagraph (A) to 
     customers on non-Pueblo land in the Pojoaque Basin.
       (10) Engineering report.--The term ``Engineering Report'' 
     means the report entitled ``Pojoaque Regional Water System 
     Engineering Report'' and dated April 2007 and any amendments 
     thereto.
       (11) Fund.--The term ``Fund'' means the Aamodt Settlement 
     Pueblos' Fund established by section 115(a).
       (12) Operating agreement.--The term ``Operating Agreement'' 
     means the agreement between the Pueblos and the County 
     executed under section 112(a).
       (13) Operations, maintenance, and replacement costs.--
       (A) In general.--The term ``operations, maintenance, and 
     replacement costs'' means all costs for the operation of the 
     Regional Water System that are necessary for the safe, 
     efficient, and continued functioning of the Regional Water 
     System to produce the benefits described in the Settlement 
     Agreement.
       (B) Exclusion.--The term ``operations, maintenance, and 
     replacement costs'' does not include construction costs or 
     costs related to construction design and planning.
       (14) Pojoaque basin.--
       (A) In general.--The term ``Pojoaque Basin'' means the 
     geographic area limited by a surface water divide (which can 
     be drawn on a topographic map), within which area rainfall 
     and runoff flow into arroyos, drainages, and named 
     tributaries that eventually drain to--
       (i) the Rio Pojoaque; or
       (ii) the 2 unnamed arroyos immediately south; and
       (iii) 2 arroyos (including the Arroyo Alamo) that are north 
     of the confluence of the Rio Pojoaque and the Rio Grande.
       (B) Inclusion.--The term ``Pojoaque Basin'' includes the 
     San Ildefonso Eastern Reservation recognized by section 8 of 
     Public Law 87-231 (75 Stat. 505).
       (15) Pueblo.--The term ``Pueblo'' means each of the pueblos 
     of Nambe, Pojoaque, San Ildefonso, or Tesuque.
       (16) Pueblos.--The term ``Pueblos'' means collectively the 
     Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
       (17) Pueblo land.--The term ``Pueblo land'' means any real 
     property that is--
       (A) held by the United States in trust for a Pueblo within 
     the Pojoaque Basin;
       (B)(i) owned by a Pueblo within the Pojoaque Basin before 
     the date on which a court approves the Settlement Agreement; 
     or
       (ii) acquired by a Pueblo on or after the date on which a 
     court approves the Settlement Agreement, if the real property 
     is located--
       (I) within the exterior boundaries of the Pueblo, as 
     recognized and conformed by a patent issued under the Act of 
     December 22, 1858 (11 Stat. 374, chapter V); or
       (II) within the exterior boundaries of any territory set 
     aside for the Pueblo by law, executive order, or court 
     decree;
       (C) owned by a Pueblo or held by the United States in trust 
     for the benefit of a Pueblo outside the Pojoaque Basin that 
     is located within the exterior boundaries of the Pueblo as 
     recognized and confirmed by a patent issued under the Act of 
     December 22, 1858 (11 Stat. 374, chapter V); or
       (D) within the exterior boundaries of any real property 
     located outside the Pojoaque Basin set aside for a Pueblo by 
     law, executive order, or court decree, if the land is within 
     or contiguous to land held by the United States in trust for 
     the Pueblo as of January 1, 2005.
       (18) Pueblo water facility.--
       (A) In general.--The term ``Pueblo Water Facility'' means--
       (i) a portion of the Regional Water System that serves only 
     water customers on Pueblo land; and
       (ii) portions of a Pueblo water system in existence on the 
     date of enactment of this Act that serve water customers on 
     non-Pueblo land, also in existence on the date of enactment 
     of this Act, or their successors, that are--

       (I) depicted in the final project design, as modified by 
     the drawings reflecting the completed Regional Water System; 
     and
       (II) described in the Operating Agreement.

       (B) Inclusions.--The term ``Pueblo Water Facility'' 
     includes--
       (i) the barrier dam and infiltration project on the Rio 
     Pojoaque described in the Engineering Report; and
       (ii) the Tesuque Pueblo infiltration pond described in the 
     Engineering Report.
       (19) Regional water system.--
       (A) In general.--The term ``Regional Water System'' means 
     the Regional Water System described in section 111(a).
       (B) Exclusions.--The term ``Regional Water System'' does 
     not include the County or Pueblo water supply delivered 
     through the Regional Water System.
       (20) San juan-chama project.--The term ``San Juan-Chama 
     Project'' means the Project authorized by section 8 of the 
     Act of June 13, 1962 (76 Stat. 96, 97) and the Act of April 
     11, 1956 (70 Stat. 105).
       (21) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (22) Settlement agreement.--The term ``Settlement 
     Agreement'' means the stipulated and binding agreement among 
     the State, the Pueblos, the United States, the County, and 
     the City dated January 19, 2006, and signed by all of the 
     government parties to the Settlement Agreement (other than 
     the United States) on May 3, 2006 and as amended in 
     conformity with this Act.
       (23) State.--The term ``State'' means the State of New 
     Mexico.

            Subtitle A--Pojoaque Basin Regional Water System

     SEC. 111. AUTHORIZATION OF REGIONAL WATER SYSTEM.

       (a) In General.--The Secretary, acting through the 
     Commissioner of Reclamation, shall plan, design, and 
     construct a regional water system in accordance with the 
     Settlement Agreement, to be known as the ``Regional Water 
     System''--
       (1) to divert and distribute water to the Pueblos and to 
     the County Water Utility, in accordance with the Engineering 
     Report; and
       (2) that consists of--
       (A) surface water diversion facilities at San Ildefonso 
     Pueblo on the Rio Grande; and
       (B) any treatment, transmission, storage and distribution 
     facilities and wellfields for the County Distribution System 
     and Pueblo Water Facilities that are necessary to supply a 
     minimum of 4,000 acre-feet of water within the Pojoaque 
     Basin, in accordance with the Engineering Report.
       (b) Final Project Design.--The Secretary shall issue a 
     final project design within 90 days of completion of the 
     environmental compliance described in section 116 for the 
     Regional Water System that--
       (1) is consistent with the Engineering Report; and
       (2) includes a description of any Pueblo Water Facilities.
       (c) Acquisition of Land; Water Rights.--
       (1) Acquisition of land.--Upon request, and in exchange for 
     the funding which shall be provided in section 117(c), the 
     Pueblos shall consent to the grant of such easements and 
     rights-of-way as may be necessary for the construction of the 
     Regional Water System at no cost to the Secretary. To the 
     extent that the State or County own easements or rights-of-
     way that may be used for construction of the Regional Water 
     System, the State or County shall provide that land or 
     interest in land as necessary for construction at no cost to 
     the Secretary. The Secretary shall acquire any other land or 
     interest in land that is necessary for the construction of 
     the Regional Water System with the exception of the Bishop's 
     Lodge Extension.
       (2) Water rights.--The Secretary shall not condemn water 
     rights for purposes of the Regional Water System.
       (d) Conditions for Construction.--
       (1) In general.--The Secretary shall not begin construction 
     of the Regional Water System facilities until the date on 
     which--
       (A) the Secretary executes--
       (i) the Settlement Agreement; and
       (ii) the Cost-Sharing and System Integration Agreement; and
       (B) the State and the County have entered into an agreement 
     with the Secretary to contribute the non-Federal share of the 
     costs of the construction in accordance with the Cost-Sharing 
     and System Integration Agreement.
       (e) Applicable Law.--The Indian Self-Determination and 
     Education Assistance Act (25 U.S.C. 450 et seq.) shall not 
     apply to the design and construction of the Regional Water 
     System.
       (f) Construction Costs.--
       (1) Pueblo water facilities.--The costs of constructing the 
     Pueblo Water Facilities, as determined by the final project 
     design and the Engineering Report--
       (A) shall be at full Federal expense subject to the amount 
     authorized in section 117(a)(1); and
       (B) shall be nonreimbursable to the United States.
       (2) County distribution system.--The costs of constructing 
     the County Distribution System shall be at State and local 
     expense.
       (g) State and Local Capital Obligations.--The State and 
     local capital obligations for the Regional Water System 
     described in the Cost-Sharing and System Integration 
     Agreement shall be satisfied on the payment of the State and 
     local capital obligations described in the Cost-Sharing and 
     System Integration Agreement.
       (h) Conveyance of Regional Water System Facilities.--
       (1) In general.--Subject to paragraph (2), on completion of 
     the construction of the Regional Water System (other than the 
     Bishop's Lodge Extension if construction of the Bishop's 
     Lodge Extension is deferred pursuant to the Cost-Sharing and 
     System Integration Agreement), the Secretary, in accordance 
     with the Operating Agreement, shall convey to--
       (A) each Pueblo the portion of any Pueblo Water Facility 
     that is located within the boundaries of the Pueblo, 
     including any land or interest in land located within the 
     boundaries of the Pueblo that is acquired by the United 
     States for the construction of the Pueblo Water Facility;
       (B) the County the County Distribution System, including 
     any land or interest in land acquired by the United States 
     for the construction of the County Distribution System; and

[[Page 17701]]

       (C) the Authority any portions of the Regional Water System 
     that remain after making the conveyances under subparagraphs 
     (A) and (B), including any land or interest in land acquired 
     by the United States for the construction of the portions of 
     the Regional Water System.
       (2) Conditions for conveyance.--The Secretary shall not 
     convey any portion of the Regional Water System facilities 
     under paragraph (1) until the date on which--
       (A) construction of the Regional Water System (other than 
     the Bishop's Lodge Extension if construction of the Bishop's 
     Lodge Extension is deferred pursuant to the Cost-Sharing and 
     System Integration Agreement) is complete; and
       (B) the Operating Agreement is executed in accordance with 
     section 112.
       (3) Subsequent conveyance.--On conveyance by the Secretary 
     under paragraph (1), the Pueblos, the County, and the 
     Authority shall not reconvey any portion of the Regional 
     Water System conveyed to the Pueblos, the County, and the 
     Authority, respectively, unless the reconveyance is 
     authorized by an Act of Congress enacted after the date of 
     enactment of this Act.
       (4) Interest of the united states.--On conveyance of a 
     portion of the Regional Water System under paragraph (1), the 
     United States shall have no further right, title, or interest 
     in and to the portion of the Regional Water System conveyed.
       (5) Additional construction.--On conveyance of a portion of 
     the Regional Water System under paragraph (1), the Pueblos, 
     County, or the Authority, as applicable, may, at the expense 
     of the Pueblos, County, or the Authority, construct any 
     additional infrastructure that is necessary to fully use the 
     water delivered by the Regional Water System.
       (6) Liability.--
       (A) In general.--Effective on the date of conveyance of any 
     land or facility under this section, the United States shall 
     not be held liable by any court for damages of any kind 
     arising out of any act, omission, or occurrence relating to 
     the land and facilities conveyed, other than damages caused 
     by acts of negligence by the United States, or by employees 
     or agents of the United States, prior to the date of 
     conveyance.
       (B) Tort claims.--Nothing in this section increases the 
     liability of the United States beyond the liability provided 
     in chapter 171 of title 28, United States Code (commonly 
     known as the ``Federal Tort Claims Act'').
       (7) Effect.--Nothing in any transfer of ownership provided 
     or any conveyance thereto as provided in this section shall 
     extinguish the right of any Pueblo, the County, or the 
     Regional Water Authority to the continuous use and benefit of 
     each easement or right of way for the use, operation, 
     maintenance, repair, and replacement of Pueblo Water 
     Facilities, the County Distribution System or the Regional 
     Water System or for wastewater purposes as provided in the 
     Cost-Sharing and System Integration Agreement.

     SEC. 112. OPERATING AGREEMENT.

       (a) In General.--The Pueblos and the County shall submit to 
     the Secretary an executed Operating Agreement for the 
     Regional Water System that is consistent with this Act, the 
     Settlement Agreement, and the Cost-Sharing and System 
     Integration Agreement not later than 180 days after the later 
     of--
       (1) the date of completion of environmental compliance and 
     permitting; or
       (2) the date of issuance of a final project design for the 
     Regional Water System under section 111(b).
       (b) Approval.--Not later than 180 days after receipt of the 
     operating agreement described in subsection (a), the 
     Secretary shall approve the Operating Agreement upon 
     determination that the Operating Agreement is consistent with 
     this Act, the Settlement Agreement, and the Cost-Sharing and 
     System Integration Agreement.
       (c) Contents.--The Operating Agreement shall include--
       (1) provisions consistent with the Settlement Agreement and 
     the Cost-Sharing and System Integration Agreement and 
     necessary to implement the intended benefits of the Regional 
     Water System described in those documents;
       (2) provisions for--
       (A) the distribution of water conveyed through the Regional 
     Water System, including a delineation of--
       (i) distribution lines for the County Distribution System;
       (ii) distribution lines for the Pueblo Water Facilities; 
     and
       (iii) distribution lines that serve both--

       (I) the County Distribution System; and
       (II) the Pueblo Water Facilities;

       (B) the allocation of the Regional Water System capacity;
       (C) the terms of use of unused water capacity in the 
     Regional Water System;
       (D) the construction of additional infrastructure and the 
     acquisition of associated rights-of-way or easements 
     necessary to enable any of the Pueblos or the County to fully 
     use water allocated to the Pueblos or the County from the 
     Regional Water System, including provisions addressing when 
     the construction of such additional infrastructure requires 
     approval by the Authority;
       (E) the allocation and payment of annual operation, 
     maintenance, and replacement costs for the Regional Water 
     System, including the portions of the Regional Water System 
     that are used to treat, transmit, and distribute water to 
     both the Pueblo Water Facilities and the County Water 
     Utility;
       (F) the operation of wellfields located on Pueblo land;
       (G) the transfer of any water rights necessary to provide 
     the Pueblo water supply described in section 113(a);
       (H) the operation of the Regional Water System with respect 
     to the water supply, including the allocation of the water 
     supply in accordance with section 3.1.8.4.2 of the Settlement 
     Agreement so that, in the event of a shortage of supply to 
     the Regional Water System, the supply to each of the Pueblos' 
     and to the County's distribution system shall be reduced on a 
     prorata basis, in proportion to each distribution system's 
     most current annual use; and
       (I) dispute resolution; and
       (3) provisions for operating and maintaining the Regional 
     Water System facilities before and after conveyance under 
     section 111(h), including provisions to--
       (A) ensure that--
       (i) the operation of, and the diversion and conveyance of 
     water by, the Regional Water System is in accordance with the 
     Settlement Agreement;
       (ii) the wells in the Regional Water System are used in 
     conjunction with the surface water supply of the Regional 
     Water System to ensure a reliable firm supply of water to all 
     users of the Regional Water System, consistent with the 
     intent of the Settlement Agreement that surface supplies will 
     be used to the maximum extent feasible;
       (iii) the respective obligations regarding delivery, 
     payment, operation, and management are enforceable; and
       (iv) the County has the right to serve any new water users 
     located on non-Pueblo land in the Pojoaque Basin; and
       (B) allow for any aquifer storage and recovery projects 
     that are approved by the Office of the New Mexico State 
     Engineer.
       (d) Effect.--Nothing in this title precludes the Operating 
     Agreement from authorizing phased or interim operations if 
     the Regional Water System is constructed in phases.

     SEC. 113. ACQUISITION OF PUEBLO WATER SUPPLY FOR THE REGIONAL 
                   WATER SYSTEM.

       (a) In General.--For the purpose of providing a reliable 
     firm supply of water from the Regional Water System for the 
     Pueblos in accordance with the Settlement Agreement, the 
     Secretary, on behalf of the Pueblos, shall--
       (1) acquire water rights to--
       (A) 302 acre-feet of Nambe reserved water described in 
     section 2.6.2 of the Settlement Agreement pursuant to section 
     117(c)(1)(C); and
       (B) 1141 acre-feet from water acquired by the County for 
     water rights commonly referred to as ``Top of the World'' 
     rights in the Aamodt case;
       (2) make available 1079 acre-feet to the Pueblos pursuant 
     to a contract entered into among the Pueblos and the 
     Secretary in accordance with section 11 of the Act of June 
     13, 1962 (76 Stat. 96, 97) (San Juan-Chama Project Act) under 
     water rights held by the Secretary; and
       (3) by application to the State Engineer, obtain approval 
     to divert the water acquired and made available under 
     paragraphs (1) and (2) at the points of diversion for the 
     Regional Water System, consistent with the Settlement 
     Agreement and the Cost-Sharing and System Integration 
     Agreement.
       (b) Forfeiture.--The nonuse of the water supply secured by 
     the Secretary for the Pueblos under subsection (a) shall in 
     no event result in forfeiture, abandonment, relinquishment, 
     or other loss thereof.
       (c) Trust.--The Pueblo water supply secured under 
     subsection (a) shall be held by the United States in trust 
     for the Pueblos.
       (d) Contract for San Juan-Chama Project Water Supply.--With 
     respect to the contract for the water supply required by 
     subsection (a)(2), such San Juan-Chama Project contract shall 
     be pursuant to the following terms:
       (1) Waivers.--Notwithstanding the provisions of the Act of 
     June 13, 1962 (76 Stat, 96, 97) or any other provision of 
     law--
       (A) the Secretary shall waive the entirety of the Pueblos' 
     share of the construction costs for the San Juan-Chama 
     Project, and pursuant to that waiver, the Pueblos' share of 
     all construction costs for the San Juan-Chama Project, 
     inclusive of both principal and interest, due from 1972 to 
     the execution of the contract required by subsection (a)(2), 
     shall be nonreimbursable;
       (B) the Secretary's waiver of each Pueblo's share of the 
     construction costs for the San Juan-Chama Project will not 
     result in an increase in the pro rata shares of other San 
     Juan-Chama Project water contractors, but such costs shall be 
     absorbed by the United States Treasury or otherwise 
     appropriated to the Department of the Interior; and
       (C) the costs associated with any water made available from 
     the San Juan-Chama Project which were determined 
     nonreimbursable and nonreturnable pursuant to Pub. L. No. 88-
     293, 78 Stat. 171 (March 26, 1964) shall remain 
     nonreimbursable and nonreturnable.
       (2) Termination.--The contract shall provide that it shall 
     terminate only upon the following conditions--

[[Page 17702]]

       (A) failure of the United States District Court for the 
     District of New Mexico to enter a final decree for the Aamodt 
     case by December 15, 2012 or within the time period of any 
     extension of that deadline granted by the court; or
       (B) entry of an order by the United States District Court 
     for the District of New Mexico voiding the final decree and 
     Settlement Agreement for the Aamodt case pursuant to section 
     10.3 of the Settlement Agreement.
       (e) Limitation.--The Secretary shall use the water supply 
     secured under subsection (a) only for the purposes described 
     in the Settlement Agreement.
       (f) Fulfillment of Water Supply Acquisition Obligations.--
     Compliance with subsections (a) through (e) shall satisfy any 
     and all obligations of the Secretary to acquire or secure a 
     water supply for the Pueblos pursuant to the Settlement 
     Agreement.
       (g) Rights of Pueblos in Settlement Agreement Unaffected.--
     Notwithstanding the provisions of subsections (a) through 
     (f), the Pueblos, the County or the Regional Water Authority 
     may acquire any additional water rights to ensure all parties 
     to the Settlement Agreement receive the full allocation of 
     water provided by the Settlement Agreement and nothing in 
     this Act amends or modifies the quantities of water allocated 
     to the Pueblos thereunder.

     SEC. 114. DELIVERY AND ALLOCATION OF REGIONAL WATER SYSTEM 
                   CAPACITY AND WATER.

       (a) Allocation of Regional Water System Capacity.--
       (1) In general.--The Regional Water System shall have the 
     capacity to divert from the Rio Grande a quantity of water 
     sufficient to provide--
       (A) 4,000 acre-feet of consumptive use of water; and
       (B) the requisite peaking capacity described in--
       (i) the Engineering Report; and
       (ii) the final project design.
       (2) Allocation to the pueblos and county water utility.--Of 
     the capacity described in paragraph (1)--
       (A) there shall be allocated to the Pueblos--
       (i) sufficient capacity for the conveyance of 2,500 acre-
     feet consumptive use; and
       (ii) the requisite peaking capacity for the quantity of 
     water described in clause (i); and
       (B) there shall be allocated to the County Water Utility--
       (i) sufficient capacity for the conveyance of 1,500 acre-
     feet consumptive use; and
       (ii) the requisite peaking capacity for the quantity of 
     water described in clause (i).
       (3) Applicable law.--Water shall be allocated to the 
     Pueblos and the County Water Utility under this subsection in 
     accordance with--
       (A) this title;
       (B) the Settlement Agreement; and
       (C) the Operating Agreement.
       (b) Delivery of Regional Water System Water.--The Authority 
     shall deliver water from the Regional Water System--
       (1) to the Pueblos water in a quantity sufficient to allow 
     full consumptive use of up to 2,500 acre-feet rights by the 
     Pueblos in accordance with--
       (A) the Settlement Agreement;
       (B) the Operating Agreement; and
       (C) this Title; and
       (2) to the County water in a quantity sufficient to allow 
     full consumptive use of up to 1,500 acre-feet per year of 
     water rights by the County Water Utility in accordance with--
       (A) the Settlement Agreement;
       (B) the Operating Agreement; and
       (C) this title.
       (c) Additional Use of Allocation Quantity and Unused 
     Capacity.--The Regional Water System may be used to--
       (1) provide for use of return flow credits to allow for 
     full consumptive use of the water allocated in the Settlement 
     Agreement to each of the Pueblos and to the County; and
       (2) convey water allocated to one of the Pueblos or the 
     County Water Utility for the benefit of another Pueblo or the 
     County Water Utility or allow use of unused capacity by each 
     other through the Regional Water System in accordance with an 
     intergovernmental agreement between the Pueblos, or between a 
     Pueblo and County Water Utility, as applicable, if--
       (A) such intergovernmental agreements are consistent with 
     the Operating Agreement, the Settlement Agreement and this 
     Act;
       (B) capacity is available without reducing water delivery 
     to any Pueblo or the County Water Utility in accordance with 
     the Settlement Agreement, unless the County Water Utility or 
     Pueblo contracts for a reduction in water delivery or 
     Regional Water System capacity;
       (C) the Pueblo or County Water Utility contracting for use 
     of the unused capacity or water has the right to use the 
     water under applicable law; and
       (D) any agreement for the use of unused capacity or water 
     provides for payment of the operation, maintenance, and 
     replacement costs associated with the use of capacity or 
     water.

     SEC. 115. AAMODT SETTLEMENT PUEBLOS' FUND.

       (a) Establishment of the Aamodt Settlement Pueblos' Fund.--
     There is established in the Treasury of the United States a 
     fund, to be known as the ``Aamodt Settlement Pueblos' Fund,'' 
     consisting of--
       (1) such amounts as are made available to the Fund under 
     section 117(c); and
       (2) any interest earned from investment of amounts in the 
     Fund under subsection (b).
       (b) Management of the Fund.--The Secretary shall manage the 
     Fund, invest amounts in the Fund, and make amounts available 
     from the Fund for distribution to the Pueblos in accordance 
     with--
       (1) the American Indian Trust Fund Management Reform Act of 
     1994 (25 U.S.C. 4001 et seq.); and
       (2) this title.
       (c) Investment of the Fund.--The Secretary shall invest 
     amounts in the Fund in accordance with--
       (1) the Act of April 1, 1880 (25 U.S.C. 161);
       (2) the first section of the Act of June 24, 1938 (25 
     U.S.C. 162a); and
       (3) the American Indian Trust Fund Management Reform Act of 
     1994 (25 U.S.C. 4001 et seq.).
       (d) Tribal Management Plan.--
       (1) In general.--A Pueblo may withdraw all or part of the 
     Pueblo's portion of the Fund on approval by the Secretary of 
     a tribal management plan as described in the American Indian 
     Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et 
     seq.).
       (2) Requirements.--In addition to the requirements under 
     the American Indian Trust Fund Management Reform Act of 1994 
     (25 U.S.C. 4001 et seq.), the tribal management plan shall 
     require that a Pueblo spend any amounts withdrawn from the 
     Fund in accordance with the purposes described in section 
     117(c).
       (3) Enforcement.--The Secretary may take judicial or 
     administrative action to enforce the provisions of any tribal 
     management plan to ensure that any amounts withdrawn from the 
     Fund under an approved tribal management plan are used in 
     accordance with this title.
       (4) Liability.--If a Pueblo or the Pueblos exercise the 
     right to withdraw amounts from the Fund, neither the 
     Secretary nor the Secretary of the Treasury shall retain any 
     liability for the expenditure or investment of the amounts 
     withdrawn.
       (5) Expenditure plan.--
       (A) In general.--The Pueblos shall submit to the Secretary 
     for approval an expenditure plan for any portion of the 
     amounts in the Fund that the Pueblos do not withdraw under 
     this subsection.
       (B) Description.--The expenditure plan shall describe the 
     manner in which, and the purposes for which, amounts 
     remaining in the Fund will be used.
       (C) Approval.--On receipt of an expenditure plan under 
     subparagraph (A), the Secretary shall approve the plan if the 
     Secretary determines that the plan is reasonable and 
     consistent with this title, the Settlement Agreement, and the 
     Cost-Sharing and System Integration Agreement.
       (D) Annual report.--The Pueblos shall submit to the 
     Secretary an annual report that describes all expenditures 
     from the Fund during the year covered by the report.
       (6) No per capita payments.--No part of the principal of 
     the Fund, or the interest or income accruing on the principal 
     shall be distributed to any member of a Pueblo on a per 
     capita basis.
       (7) Availability of amounts from the fund.--
       (A) Approval of settlement agreement.--Amounts made 
     available under subparagraphs (A) and (C) of section 
     117(c)(1) shall be available for expenditure or withdrawal 
     only after the date on which the United States District Court 
     for the District of New Mexico issues an order approving the 
     Settlement Agreement.
       (B) Completion of certain portions of regional water 
     system.--Amounts made available under section 117(c)(1)(B) 
     shall be available for expenditure or withdrawal only after 
     those portions of the Regional Water System described in 
     section 1.5.24 of the Settlement Agreement have been declared 
     substantially complete by the Secretary.
       (C) Failure to fulfill conditions precedent.--If the 
     conditions precedent in section 123 have not been fulfilled 
     by June 30, 2016, the United States shall be entitled to set 
     off any funds expended or withdrawn from the amounts 
     appropriated pursuant to section 117(c), together with any 
     interest accrued, against any claims asserted by the Pueblos 
     against the United States relating to the water rights in the 
     Pojoaque Basin.

     SEC. 116. ENVIRONMENTAL COMPLIANCE.

       (a) In General.--In carrying out this subtitle, the 
     Secretary shall comply with each law of the Federal 
     Government relating to the protection of the environment, 
     including--
       (1) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.); and
       (2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.).
       (b) National Environmental Policy Act.--Nothing in this 
     title affects the outcome of any analysis conducted by the 
     Secretary or any other Federal official under the National 
     Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

     SEC. 117. AUTHORIZATION OF APPROPRIATIONS.

       (a) Regional Water System.--
       (1) In general.--Subject to paragraph (4), there is 
     authorized to be appropriated to the

[[Page 17703]]

     Secretary for the planning, design, and construction of the 
     Regional Water System and the conduct of environmental 
     compliance activities under section 116 a total of 
     $106,400,000 between fiscal years 2009 and 2021.
       (2) Priority of funding.--Of the amounts authorized under 
     paragraph (1), the Secretary shall give priority to funding--
       (A) the construction of the San Ildefonso portion of the 
     Regional Water System, consisting of--
       (i) the surface water diversion, treatment, and 
     transmission facilities at San Ildefonso Pueblo; and
       (ii) the San Ildefonso Pueblo portion of the Pueblo Water 
     Facilities; and
       (B) that part of the Regional Water System providing 475 
     acre-feet to Pojoaque Pueblo pursuant to section 2.2 of the 
     Settlement Agreement.
       (3) Adjustment.--The amount authorized under paragraph (1) 
     shall be adjusted annually to account for increases in 
     construction costs since October 1, 2006, as determined using 
     applicable engineering cost indices.
       (4) Limitations.--
       (A) In general.--No amounts shall be made available under 
     paragraph (1) for the construction of the Regional Water 
     System until the date on which the United States District 
     Court for the District of New Mexico issues an order 
     approving the Settlement Agreement.
       (B) Record of decision.--No amounts made available under 
     paragraph (1) shall be expended unless the record of decision 
     issued by the Secretary after completion of an environmental 
     impact statement provides for a preferred alternative that is 
     in substantial compliance with the proposed Regional Water 
     System, as defined in the Engineering Report.
       (b) Acquisition of Water Rights.--There is authorized to be 
     appropriated to the Secretary funds for the acquisition of 
     the water rights under section 113(a)(1)(B)--
       (1) in the amount of $5,400,000.00 if such acquisition is 
     completed by December 31, 2009; and
       (2) the amount authorized under paragraph (b)(1) shall be 
     adjusted according to the CPI Urban Index commencing January 
     1, 2010.
       (c) Aamodt Settlement Pueblos' Fund.--
       (1) In general.--There is authorized to be appropriated to 
     the Fund the following amounts for the period of fiscal years 
     2009 through 2021:
       (A) $8,000,000, which shall be allocated to the Pueblos, in 
     accordance with section 2.7.1 of the Settlement Agreement, 
     for the rehabilitation, improvement, operation, maintenance, 
     and replacement of the agricultural delivery facilities, 
     waste water systems, and other water-related infrastructure 
     of the applicable Pueblo. The amount authorized herein shall 
     be adjusted according to the CPI Urban Index commencing 
     October 1, 2006.
       (B) $37,500,000, which shall be allocated to an account, to 
     be established not later than January 1, 2016, to assist the 
     Pueblos in paying the Pueblos' share of the cost of 
     operating, maintaining, and replacing the Pueblo Water 
     Facilities and the Regional Water System.
       (C) $5,000,000 and any interest thereon, which shall be 
     allocated to the Pueblo of Nambe for the acquisition of the 
     Nambe reserved water rights in accordance with section 
     113(a)(1)(A). The amount authorized herein shall be adjusted 
     according to the CPI Urban Index commencing January 1, 2011. 
     The funds provided under this section may be used by the 
     Pueblo of Nambe only for the acquisition of land, other real 
     property interests, or economic development.
       (2) Operation, maintenance, and replacement costs.--
       (A) In general.--Prior to conveyance of the Regional Water 
     System pursuant to section 111, the Secretary shall pay any 
     operation, maintenance or replacement costs associated with 
     the Pueblo Water Facilities or the Regional Water System up 
     to an amount that does not exceed $5,000,000, which is 
     authorized to be appropriated to the Secretary.
       (B) Obligation of the federal government after 
     completion.--Except as provided in section 113(a)(4)(B), 
     after construction of the Regional Water System is completed 
     and the amounts required to be deposited in the account have 
     been deposited under this section the Federal Government 
     shall have no obligation to pay for the operation, 
     maintenance, and replacement costs of the Regional Water 
     System.

       Subtitle B--Pojoaque Basin Indian Water Rights Settlement

     SEC. 121. SETTLEMENT AGREEMENT AND CONTRACT APPROVAL.

       (a) Approval.--To the extent the Settlement Agreement and 
     the Cost-Sharing and System Integration Agreement do not 
     conflict with this title, the Settlement Agreement and the 
     Cost-Sharing and System Integration Agreement (including any 
     amendments to the Settlement Agreement and the Cost-Sharing 
     and System Integration Agreement that are executed to make 
     the Settlement Agreement or the Cost-Sharing and System 
     Integration Agreement consistent with this title) are 
     authorized, ratified, and confirmed.
       (b) Execution.--To the extent the Settlement Agreement and 
     the Cost-Sharing and System Integration Agreement do not 
     conflict with this title, the Secretary shall execute the 
     Settlement Agreement and the Cost-Sharing and System 
     Integration Agreement (including any amendments that are 
     necessary to make the Settlement Agreement or the Cost-
     Sharing and System Integration Agreement consistent with this 
     title).
       (c) Authorities of the Pueblos.--
       (1) In general.--Each of the Pueblos may enter into 
     contracts to lease or exchange water rights or to forbear 
     undertaking new or expanded water uses for water rights 
     recognized in section 2.1 of the Settlement Agreement for use 
     within the Pojoaque Basin in accordance with the other 
     limitations of section 2.1.5 of the Settlement Agreement 
     provided that section 2.1.5 is amended accordingly.
       (2) Execution.--The Secretary shall not execute the 
     Settlement Agreement until such amendment is accomplished 
     under paragraph (1).
       (3) Approval by secretary.--Consistent with the Settlement 
     Agreement as amended under paragraph (1), the Secretary shall 
     approve or disapprove a lease entered into under paragraph 
     (1).
       (4) Prohibition on permanent alienation.--No lease or 
     contract under paragraph (1) shall be for a term exceeding 99 
     years, nor shall any such lease or contract provide for 
     permanent alienation of any portion of the water rights made 
     available to the Pueblos under the Settlement Agreement.
       (5) Applicable law.--Section 2116 of the Revised Statutes 
     (25 U.S.C. 177) shall not apply to any lease or contract 
     entered into under paragraph (1).
       (6) Leasing or marketing of water supply.--The water supply 
     provided on behalf of the Pueblos pursuant to section 
     113(a)(1) may only be leased or marketed by any of the 
     Pueblos pursuant to the intergovernmental agreements 
     described in section 114(c)(2).
       (d) Amendments to Contracts.--The Secretary shall amend the 
     contracts relating to the Nambe Falls Dam and Reservoir that 
     are necessary to use water supplied from the Nambe Falls Dam 
     and Reservoir in accordance with the Settlement Agreement.

     SEC. 122. ENVIRONMENTAL COMPLIANCE.

       (a) Effect of Execution of Settlement Agreement.--The 
     execution of the Settlement Agreement under section 121(b) 
     shall not constitute a major Federal action under the 
     National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
     seq.).
       (b) Compliance With Environmental Laws.--In carrying out 
     this subtitle, the Secretary shall comply with each law of 
     the Federal Government relating to the protection of the 
     environment, including--
       (1) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.); and
       (2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.).

     SEC. 123. CONDITIONS PRECEDENT AND ENFORCEMENT DATE.

       (a) Conditions Precedent.--
       (1) In general.--Upon the fulfillment of the conditions 
     precedent described in paragraph (2), the Secretary shall 
     publish in the Federal Register a statement of finding that 
     the conditions have been fulfilled.
       (2) Requirements.--The conditions precedents referred to in 
     paragraph (1) are the conditions that--
       (A) to the extent that the Settlement Agreement conflicts 
     with this title, the Settlement Agreement has been revised to 
     conform with this title;
       (B) the Settlement Agreement, so revised, including waivers 
     and releases pursuant to section 124, has been executed by 
     the appropriate parties and the Secretary;
       (C) Congress has fully appropriated, or the Secretary has 
     provided from other authorized sources, all funds authorized 
     by section 117, with the exception of subsection (a)(1) of 
     that section, by June 30, 2016;
       (D) the State of New Mexico has enacted any necessary 
     legislation and provided any funding that may be required 
     under the Settlement Agreement;
       (E) a partial final decree that sets forth the water rights 
     and other rights to water to which the Pueblos are entitled 
     under the Settlement Agreement and this title and that 
     substantially conforms to the Settlement Agreement has been 
     approved by the United States District Court for the District 
     of New Mexico; and
       (F) a final decree that sets forth the water rights for all 
     parties to the Aamodt Case and that substantially conforms to 
     the Settlement Agreement has been approved by the United 
     States District Court for the District of New Mexico by 
     December 15, 2012, or within the time period of any extension 
     of that deadline granted by that court.
       (b) Enforcement Date.--The Settlement Agreement shall 
     become enforceable as of the date that the United States 
     District Court for the District of New Mexico enters a 
     partial final decree pursuant to subsection (a)(2)(E) and an 
     Interim Administrative Order consistent with the Settlement 
     Agreement. The waivers and releases executed pursuant to 
     section 124 shall become effective as of the date that the 
     conditions precedent described in subsection (a)(2) have been 
     fulfilled.
       (c) Expiration.--If the parties to the Settlement Agreement 
     entitled to provide notice regarding the lack of substantial 
     completion of the Regional Water System provide such notice 
     in accordance with section

[[Page 17704]]

     10.3 of the Settlement Agreement, the Settlement Agreement 
     shall no longer be effective, the waivers and releases 
     executed pursuant to section 124 shall no longer be 
     effective, and any unexpended Federal funds, together with 
     any income earned thereon, and title to any property acquired 
     or constructed with expended Federal funds, shall be returned 
     to the Federal Government unless otherwise agreed to by the 
     appropriate parties in writing and approved by Congress.

     SEC. 124. WAIVERS AND RELEASES.

       (a) Claims by the Pueblo and the United States.--The 
     Pueblos, on behalf of themselves and their members, and the 
     United States, acting in its capacity as trustee for the 
     Pueblos, as part of their obligations under the Settlement 
     Agreement, shall each execute a waiver and release of--
       (1) all past, present, and future claims to surface and 
     groundwater rights that the Pueblos, or the United States on 
     behalf of the Pueblos, asserted or could have asserted in the 
     Aamodt Case;
       (2) all past, present, and future claims for damages, 
     losses or injuries to water rights or claims of interference, 
     diversion or taking of water for lands within the Pojoaque 
     Basin that accrued at any time up to and including the 
     enforcement date identified in section 123(b), that the 
     Pueblos or their members, or the United States on behalf of 
     the Pueblos, asserted or could have asserted against the 
     parties to the Aamodt Case;
       (3) their defenses in the Aamodt Case to the claims 
     previously asserted therein by the other Settlement Parties; 
     and
       (4) all pending inter se challenges against other parties 
     to the Settlement Agreement.
       (b) Claims by the Pueblos.--The Pueblos, on behalf of 
     themselves and their members, as part of their obligations 
     under the Settlement Agreement, shall execute a waiver and 
     release of--
       (1) all causes of action against the United States, its 
     agencies, or employees, arising out of all past, present, and 
     future claims for water rights that were asserted, or could 
     have been asserted, by the United States as trustee for the 
     Pueblos and on behalf of the Pueblos in the Aamodt case;
       (2) all claims for damages, losses or injuries to water 
     rights or claims of interference, diversion or taking of 
     water for lands within the Pojoaque Basin that accrued at any 
     time up to and including the enforcement date identified in 
     section 123(b), that the Pueblos or their members may have 
     against the United States, its agencies, or employees; and
       (3) all claims arising out of or resulting from the 
     negotiation or the adoption of the Settlement Agreement, 
     exhibits thereto, the Final Decree, or this title, that the 
     Pueblos of their members may have against the United States, 
     its agencies, agents or employees.
       (c) Reservation of Rights and Retention of Claims.--
     Notwithstanding subsections (a) and (b), and except as 
     otherwise provided in the Settlement Agreement, the Pueblos 
     and the United States shall retain--
       (1) all claims for water rights or injuries to water rights 
     arising out of activities occurring outside the Pojoaque 
     Basin except insofar as such claims are specifically 
     addressed in the Cost-Sharing and System Integration 
     Agreement;
       (2) all claims for enforcement of the Settlement Agreement, 
     the Final Decree, or this title, through such legal and 
     equitable remedies as may be available in any court of 
     competent jurisdiction;
       (3) all rights to use and protect water rights acquired 
     pursuant to state law to the extent not inconsistent with the 
     Final Decree and the Settlement Agreement;
       (4) all claims relating to activities affecting the quality 
     of water; and
       (5) all rights, remedies, privileges, immunities, powers, 
     and claims not specifically waived and released pursuant to 
     the Settlement Agreement or this title.
       (d) Tolling of Claims.--
       (1) In general.--Each applicable period of limitation and 
     time-based equitable defense relating to a claim described in 
     this section shall be tolled for the period beginning on the 
     date of enactment of this Act and ending on the Enforcement 
     Date.
       (2) No revival of claims.--Nothing in this subsection 
     revives any claim or tolls any period of limitation or time-
     based equitable defense that expired before the date of 
     enactment of this Act.

     SEC. 125. EFFECT.

       Nothing in this title or the Settlement Agreement affects 
     the land and water rights, claims, or entitlements to water 
     of any Indian tribe, pueblo, or community other than the 
     Pueblos.

        TITLE II--TAOS PUEBLO INDIAN WATER RIGHTS SETTLEMENT ACT

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Taos Pueblo Indian Water 
     Rights Settlement Act''.

     SEC. 202. PURPOSE.

       The purposes of this title are--
       (1) to approve, ratify, and confirm the Taos Pueblo Indian 
     Water Rights Settlement Agreement;
       (2) to authorize and direct the Secretary to execute the 
     Settlement Agreement and to perform all obligations of the 
     Secretary under the Settlement Agreement and this title; and
       (3) to authorize all actions and appropriations necessary 
     for the United States to meet its obligations under the 
     Settlement Agreement and this title.

     SEC. 203. DEFINITIONS.

       In this title:
       (1) Eligible non-pueblo entities.--The term ``Eligible Non-
     Pueblo Entities'' means the Town of Taos, EPWSD, and the New 
     Mexico Department of Finance and Administration Local 
     Government Division on behalf of the Acequia Madre del Rio 
     Lucero y del Arroyo Seco, the Acequia Madre del Prado, the 
     Acequia del Monte, the Acequia Madre del Rio Chiquito, the 
     Upper Ranchitos Mutual Domestic Water Consumers Association, 
     the Upper Arroyo Hondo Mutual Domestic Water Consumers 
     Association, and the Llano Quemado Mutual Domestic Water 
     Consumers Association.
       (2) Enforcement date.--The term ``Enforcement Date'' means 
     the date upon which all conditions precedent set forth in 
     section 210(f)(2) have been fulfilled.
       (3) Mutual-benefit projects.--The term ``Mutual-Benefit 
     Projects'' means the projects described and identified in 
     Articles 6 and 10.1 of the Settlement Agreement.
       (4) Partial final decree.--The term ``Partial Final 
     Decree'' means the Decree entered in New Mexico v. Abeyta and 
     New Mexico v. Arellano, Civil Nos. 7896-BB (U.S. D.N.M.) and 
     7939-BB (U.S. D.N.M) (consolidated), for the resolution of 
     the Pueblo's water right claims and which is substantially in 
     the form agreed to by the Parties and attached to the 
     Settlement Agreement as Attachment 5.
       (5) Parties.--The term ``Parties'' means the Parties to the 
     Settlement Agreement, as identified in Article 1 of the 
     Settlement Agreement.
       (6) Pueblo.--The term ``Pueblo'' means the Taos Pueblo, a 
     sovereign Indian Tribe duly recognized by the United States 
     of America.
       (7) Pueblo lands.--The term ``Pueblo lands'' means those 
     lands located within the Taos Valley to which the Pueblo, or 
     the United States in its capacity as trustee for the Pueblo, 
     holds title subject to Federal law limitations on alienation. 
     Such lands include Tracts A, B, and C, the Pueblo's land 
     grant, the Blue Lake Wilderness Area, and the Tenorio and 
     Karavas Tracts and are generally depicted in Attachment 2 to 
     the Settlement Agreement.
       (8) San juan-chama project.--The term ``San Juan-Chama 
     Project'' means the Project authorized by section 8 of the 
     Act of June 13, 1962 (76 Stat. 96, 97), and the Act of April 
     11, 1956 (70 Stat. 105).
       (9) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (10) Settlement agreement.--The term ``Settlement 
     Agreement'' means the contract dated March 31, 2006, between 
     and among--
       (A) the United States, acting solely in its capacity as 
     trustee for Taos Pueblo;
       (B) the Taos Pueblo, on its own behalf;
       (C) the State of New Mexico;
       (D) the Taos Valley Acequia Association and its 55 member 
     ditches (``TVAA'');
       (E) the Town of Taos;
       (F) El Prado Water and Sanitation District (``EPWSD''); and
       (G) the 12 Taos area Mutual Domestic Water Consumers 
     Associations (``MDWCAs''),
     as amended to conform with this title.
       (11) State engineer.--The term ``State Engineer'' means the 
     New Mexico State Engineer.
       (12) Taos valley.--The term ``Taos Valley'' means the 
     geographic area depicted in Attachment 4 of the Settlement 
     Agreement.

     SEC. 204. PUEBLO RIGHTS.

       (a) In General.--Those rights to which the Pueblo is 
     entitled under the Partial Final Decree shall be held in 
     trust by the United States on behalf of the Pueblo and shall 
     not be subject to forfeiture, abandonment or permanent 
     alienation.
       (b) Subsequent Act of Congress.--The Pueblo shall not be 
     denied all or any part of its rights held in trust absent its 
     consent unless such rights are explicitly abrogated by an Act 
     of Congress hereafter enacted.

     SEC. 205. PUEBLO WATER INFRASTRUCTURE AND WATERSHED 
                   ENHANCEMENT.

       (a) In General.--The Secretary, acting through the 
     Commissioner of Reclamation, shall provide grants and 
     technical assistance to the Pueblo on a nonreimbursable basis 
     to--
       (1) plan, permit, design, engineer, construct, reconstruct, 
     replace, or rehabilitate water production, treatment, and 
     delivery infrastructure;
       (2) restore, preserve, and protect the environment 
     associated with the Buffalo Pasture area; and
       (3) protect and enhance watershed conditions.
       (b) Availability of Grants.--Upon the Enforcement Date, all 
     amounts appropriated pursuant to section 210(c)(1) shall be 
     available in grants to the Pueblo after the requirements of 
     subsection (c) have been met.
       (c) Plan.--The Secretary shall provide financial assistance 
     pursuant to subsection (a) upon the Pueblo's submittal of a 
     plan that identifies the projects to be implemented 
     consistent with the purposes of this section and describes 
     how such projects are consistent with the Settlement 
     Agreement.

[[Page 17705]]

       (d) Early Funds.--Notwithstanding subsection (b), 
     $10,000,000 of the monies authorized to be appropriated 
     pursuant to section 210(c)(1)--
       (1) shall be made available in grants to the Pueblo by the 
     Secretary upon appropriation or availability of the funds 
     from other authorized sources; and
       (2) shall be distributed by the Secretary to the Pueblo on 
     receipt by the Secretary from the Pueblo of a written notice, 
     a Tribal Council resolution that describes the purposes under 
     subsection (a) for which the monies will be used, and a plan 
     under subsection (c) for this portion of the funding.

     SEC. 206. TAOS PUEBLO WATER DEVELOPMENT FUND.

       (a) Establishment.--There is established in the Treasury of 
     the United States a fund to be known as the ``Taos Pueblo 
     Water Development Fund'' (hereinafter, ``Fund'') to be used 
     to pay or reimburse costs incurred by the Pueblo for--
       (1) acquiring water rights;
       (2) planning, permitting, designing, engineering, 
     constructing, reconstructing, replacing, rehabilitating, 
     operating, or repairing water production, treatment or 
     delivery infrastructure, on-farm improvements, or wastewater 
     infrastructure;
       (3) restoring, preserving and protecting the Buffalo 
     Pasture, including planning, permitting, designing, 
     engineering, constructing, operating, managing and replacing 
     the Buffalo Pasture Recharge Project;
       (4) administering the Pueblo's water rights acquisition 
     program and water management and administration system; and
       (5) for watershed protection and enhancement, support of 
     agriculture, water-related Pueblo community welfare and 
     economic development, and costs related to the negotiation, 
     authorization, and implementation of the Settlement 
     Agreement.
       (b) Management of the Fund.--The Secretary shall manage the 
     Fund, invest amounts in the Fund, and make monies available 
     from the Fund for distribution to the Pueblo consistent with 
     the American Indian Trust Fund Management Reform Act of 1994 
     (25 U.S.C. 4001, et seq.) (hereinafter, ``Trust Fund Reform 
     Act''), this title, and the Settlement Agreement.
       (c) Investment of the Fund.--The Secretary shall invest 
     amounts in the Fund in accordance with--
       (1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 
     U.S.C. 161);
       (2) the first section of the Act of June 24, 1938 (52 Stat. 
     1037, ch. 648, 25 U.S.C. 162a); and
       (3) the American Indian Trust Fund Management Reform Act of 
     1994 (25 U.S.C. 4001 et seq.).
       (d) Availability of Amounts From the Fund.--Upon the 
     Enforcement Date, all monies deposited in the Fund pursuant 
     to section 210(c)(2) shall be available to the Pueblo for 
     expenditure or withdrawal after the requirements of 
     subsection (e) have been met.
       (e) Expenditures and Withdrawal.--
       (1) Tribal management plan.--
       (A) In general.--The Pueblo may withdraw all or part of the 
     Fund on approval by the Secretary of a tribal management plan 
     as described in the Trust Fund Reform Act.
       (B) Requirements.--In addition to the requirements under 
     the Trust Fund Reform Act, the tribal management plan shall 
     require that the Pueblo spend any funds in accordance with 
     the purposes described in subsection (a).
       (2) Enforcement.--The Secretary may take judicial or 
     administrative action to enforce the requirement that monies 
     withdrawn from the Fund are used for the purposes specified 
     in subsection (a).
       (3) Liability.--If the Pueblo exercises the right to 
     withdraw monies from the Fund, neither the Secretary nor the 
     Secretary of the Treasury shall retain any liability for the 
     expenditure or investment of the monies withdrawn.
       (4) Expenditure plan.--
       (A) In general.--The Pueblo shall submit to the Secretary 
     for approval an expenditure plan for any portions of the 
     funds made available under this title that the Pueblo does 
     not withdraw under paragraph (1)(A).
       (B) Description.--The expenditure plan shall describe the 
     manner in which, and the purposes for which, amounts 
     remaining in the Fund will be used.
       (C) Approval.--On receipt of an expenditure plan under 
     subparagraph (A), the Secretary shall approve the plan if the 
     Secretary determines that the plan is reasonable and 
     consistent with this title.
       (5) Annual report.--The Pueblo shall submit to the 
     Secretary an annual report that describes all expenditures 
     from the Fund during the year covered by the report.
       (f) Funds Available Upon Appropriation.--Notwithstanding 
     subsection (d), $15,000,000 of the monies authorized to be 
     appropriated pursuant to section 210(c)(2)--
       (1) shall be available upon appropriation for the Pueblo's 
     acquisition of water rights in fulfillment of the Settlement 
     Agreement, the Buffalo Pasture Recharge Project, 
     implementation of the Pueblo's water rights acquisition 
     program and water management and administration system, the 
     design, planning, and permitting of water or wastewater 
     infrastructure eligible for funding under sections 205 or 
     206, or costs related to the negotiation, authorization, and 
     implementation of the Settlement Agreement; and
       (2) shall be distributed by the Secretary to the Pueblo on 
     receipt by the Secretary from the Pueblo of a written notice 
     and a Tribal Council resolution that describes the purposes 
     under paragraph (1) for which the monies will be used.
       (g) No Per Capita Distributions.--No part of the Fund shall 
     be distributed on a per capita basis to members of the 
     Pueblo.

     SEC. 207. MARKETING.

       (a) Pueblo Water Rights.--Subject to the approval of the 
     Secretary in accordance with subsection (e), the Pueblo may 
     market water rights secured to it under the Settlement 
     Agreement and Partial Final Decree, provided that such 
     marketing is in accordance with this section.
       (b) Pueblo Contract Rights to San Juan-Chama Project 
     Water.--Subject to the approval of the Secretary in 
     accordance with subsection (e), the Pueblo may subcontract 
     water made available to the Pueblo under the contract 
     authorized under section 209(b)(1)(A) to third parties to 
     supply water for use within or without the Taos Valley, 
     provided that the delivery obligations under such subcontract 
     are not inconsistent with the Secretary's existing San Juan-
     Chama Project obligations and such subcontract is in 
     accordance with this section.
       (c) Limitation.--
       (1) In general.--Diversion or use of water off Pueblo Lands 
     pursuant to Pueblo water rights or Pueblo contract rights to 
     San Juan-Chama Project water shall be subject to and not 
     inconsistent with the same requirements and conditions of 
     State law, any applicable Federal law, and any applicable 
     interstate compact as apply to the exercise of water rights 
     or contract rights to San Juan-Chama Project water held by 
     non-Federal, non-Indian entities, including all applicable 
     State Engineer permitting and reporting requirements.
       (2) Effect on water rights.--Such diversion or use off 
     Pueblo Lands under paragraph (1) shall not impair water 
     rights or increase surface water depletions within the Taos 
     Valley.
       (d) Maximum Term.--
       (1) In general.--The maximum term of any water use lease or 
     subcontract, including all renewals, shall not exceed 99 
     years in duration.
       (2) Alienation of rights.--The Pueblo shall not permanently 
     alienate any rights it has under the Settlement Agreement, 
     the Partial Final Decree, and this title.
       (e) Approval of Secretary.--The Secretary shall approve or 
     disapprove any lease or subcontract submitted by the Pueblo 
     for approval not later than--
       (1) 180 days after submission; or
       (2) 60 days after compliance, if required, with the 
     National Environmental Policy Act of 1969 (42 U.S.C. 
     4332(2)(C)), or any other requirement of Federal law, 
     whichever is later, provided that no Secretarial approval 
     shall be required for any water use lease or subcontract with 
     a term of less than 7 years.
       (f) No Forfeiture or Abandonment.--The nonuse by a lessee 
     or subcontractor of the Pueblo of any right to which the 
     Pueblo is entitled under the Partial Final Decree shall in no 
     event result in a forfeiture, abandonment, relinquishment, or 
     other loss of all or any part of those rights.
       (g) No Preemption.--
       (1) In general.--The approval authority of the Secretary 
     provided under subsection (e) shall not amend, construe, 
     supersede, or preempt any State or Federal law, interstate 
     compact, or international treaty that pertains to the 
     Colorado River, the Rio Grande, or any of their tributaries, 
     including the appropriation, use, development, storage, 
     regulation, allocation, conservation, exportation, or 
     quantity of those waters.
       (2) Applicable law.--The provisions of section 2116 of the 
     Revised Statutes (25 U.S.C. 177) shall not apply to any water 
     made available under the Settlement Agreement.
       (h) No Prejudice.--Nothing in this title shall be construed 
     to establish, address, prejudice, or prevent any party from 
     litigating whether or to what extent any applicable State 
     law, Federal law or interstate compact does or does not 
     permit, govern, or apply to the use of the Pueblo's water 
     outside of New Mexico.

     SEC. 208. MUTUAL-BENEFIT PROJECTS.

       (a) In General.--Upon the Enforcement Date, the Secretary, 
     acting through the Commissioner of Reclamation, shall provide 
     financial assistance in the form of grants on a 
     nonreimbursable basis to Eligible Non-Pueblo Entities to 
     plan, permit, design, engineer, and construct the Mutual 
     Benefits Projects in accordance with the Settlement 
     Agreement--
       (1) to minimize adverse impacts on the Pueblo's water 
     resources by moving future non-Indian ground water pumping 
     away from the Pueblo's Buffalo Pasture; and
       (2) to implement the resolution of a dispute over the 
     allocation of certain surface water flows between the Pueblo 
     and non-Indian irrigation water right owners in the community 
     of Arroyo Seco Arriba.
       (b) Cost-Sharing.--
       (1) Federal share.--The Federal share of the total cost of 
     planning, designing, and constructing the Mutual Benefit 
     Projects authorized in subsection (a) shall be 75 percent and 
     shall be nonreimbursable.

[[Page 17706]]

       (2) Non-federal share.--The non-Federal share of the total 
     cost of planning, designing, and constructing the Mutual 
     Benefit Projects shall be 25 percent and may be in the form 
     of in-kind contributions, including the contribution of any 
     valuable asset or service that the Secretary determines would 
     substantially contribute to completing the Mutual Benefit 
     Projects.

     SEC. 209. SAN JUAN-CHAMA PROJECT CONTRACTS.

       (a) In General.--Contracts issued under this section shall 
     be in accordance with this title and the Settlement 
     Agreement.
       (b) Contracts for San Juan-Chama Project Water.--
       (1) In general.--The Secretary shall enter into 3 repayment 
     contracts by December 31, 2009, for the delivery of San Juan-
     Chama Project water in the following amounts:
       (A) 2,215 acre-feet/annum to the Pueblo.
       (B) 366 acre-feet/annum to the Town of Taos.
       (C) 40 acre-feet/annum to EPWSD.
       (2) Requirements.--Each such contract shall provide that if 
     the conditions precedent set forth in section 210(f)(2) have 
     not been fulfilled by December 31, 2015, the contract shall 
     expire on that date.
       (c) Waiver.--With respect to the contracts authorized and 
     required by subsection (b)(1) and notwithstanding the 
     provisions of Public Law 87-483 (76 Stat. 96) or any other 
     provision of law--
       (1) the Secretary shall waive the entirety of the Pueblo's 
     share of the construction costs, both principal and the 
     interest, for the San Juan-Chama Project and pursuant to that 
     waiver, the Pueblo's share of all construction costs for the 
     San Juan-Chama Project, inclusive of both principal and 
     interest shall be nonreimbursable; and
       (2) the Secretary's waiver of the Pueblo's share of the 
     construction costs for the San Juan-Chama Project will not 
     result in an increase in the pro rata shares of other San 
     Juan-Chama Project water contractors, but such costs shall be 
     absorbed by the United States Treasury or otherwise 
     appropriated to the Department of the Interior.

     SEC. 210. AUTHORIZATIONS, RATIFICATIONS, CONFIRMATIONS, AND 
                   CONDITIONS PRECEDENT.

       (a) Ratification.--
       (1) In general.--Except to the extent that any provision of 
     the Settlement Agreement conflicts with any provision of this 
     title, the Settlement Agreement is authorized, ratified, and 
     confirmed.
       (2) Amendments.--To the extent amendments are executed to 
     make the Settlement Agreement consistent with this title, 
     such amendments are also authorized, ratified, and confirmed.
       (b) Execution of Settlement Agreement.--To the extent that 
     the Settlement Agreement does not conflict with this title, 
     the Secretary shall execute the Settlement Agreement, 
     including all exhibits to the Settlement Agreement requiring 
     the signature of the Secretary and any amendments necessary 
     to make the Settlement Agreement consistent with this title, 
     after the Pueblo has executed the Settlement Agreement and 
     any such amendments.
       (c) Authorization of Appropriations.--
       (1) Taos pueblo infrastructure and watershed fund.--There 
     is authorized to be appropriated to the Secretary to provide 
     grants pursuant to section 205, $30,000,000, as adjusted 
     under paragraph (4), for the period of fiscal years 2009 
     through 2015.
       (2) Taos pueblo water development fund.--There is 
     authorized to be appropriated to the Taos Pueblo Water 
     Development Fund, established at section 206(a), $50,000,000, 
     as adjusted under paragraph (4), for the period of fiscal 
     years 2009 through 2015.
       (3) Mutual-benefit projects funding.--There is further 
     authorized to be appropriated to the Secretary to provide 
     grants pursuant to section 208, a total of $33,000,000, as 
     adjusted under paragraph (4), for the period of fiscal years 
     2009 through 2015.
       (4) Adjustments to amounts authorized.--The amounts 
     authorized to be appropriated under paragraphs (1) through 
     (3) shall be adjusted by such amounts as may be required by 
     reason of changes since April 1, 2007, in construction costs, 
     as indicated by engineering cost indices applicable to the 
     types of construction or rehabilitation involved.
       (5) Deposit in fund.--Except for the funds to be provided 
     to the Pueblo pursuant to section 205(d), the Secretary shall 
     deposit the funds made available pursuant to paragraphs (1) 
     and (3) into a Taos Settlement Fund to be established within 
     the Treasury of the United States so that such funds may be 
     made available to the Pueblo and the Eligible Non-Pueblo 
     Entities upon the Enforcement Date as set forth in sections 
     205(b) and 208(a).
       (d) Authority of the Secretary.--The Secretary is 
     authorized to enter into such agreements and to take such 
     measures as the Secretary may deem necessary or appropriate 
     to fulfill the intent of the Settlement Agreement and this 
     title.
       (e) Environmental Compliance.--
       (1) Effect of execution of settlement agreement.--The 
     Secretary's execution of the Settlement Agreement shall not 
     constitute a major Federal action under the National 
     Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
       (2) Compliance with environmental laws.--In carrying out 
     this title, the Secretary shall comply with each law of the 
     Federal Government relating to the protection of the 
     environment, including--
       (A) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.); and
       (B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.).
       (f) Conditions Precedent and Secretarial Finding.--
       (1) In general.--Upon the fulfillment of the conditions 
     precedent described in paragraph (2), the Secretary shall 
     publish in the Federal Register a statement of finding that 
     the conditions have been fulfilled.
       (2) Conditions.--The conditions precedent referred to in 
     paragraph (1) are the following:
       (A) The President has signed into law the Taos Pueblo 
     Indian Water Rights Settlement Act.
       (B) To the extent that the Settlement Agreement conflicts 
     with this title, the Settlement Agreement has been revised to 
     conform with this title.
       (C) The Settlement Agreement, so revised, including waivers 
     and releases pursuant to section 211, has been executed by 
     the Parties and the Secretary prior to the Parties' motion 
     for entry of the Partial Final Decree.
       (D) Congress has fully appropriated or the Secretary has 
     provided from other authorized sources all funds authorized 
     by paragraphs (1) through (3) of subsection (c) so that the 
     entire amounts so authorized have been previously provided to 
     the Pueblo pursuant to sections 205 and 206, or placed in the 
     Taos Pueblo Water Development Fund or the Taos Settlement 
     Fund as directed in subsection (c).
       (E) The Legislature of the State of New Mexico has fully 
     appropriated the funds for the State contributions as 
     specified in the Settlement Agreement, and those funds have 
     been deposited in appropriate accounts.
       (F) The State of New Mexico has enacted legislation that 
     amends NMSA 1978, section 72-6-3 to state that a water use 
     due under a water right secured to the Pueblo under the 
     Settlement Agreement or the Partial Final Decree may be 
     leased for a term, including all renewals, not to exceed 99 
     years, provided that this condition shall not be construed to 
     require that said amendment state that any State law based 
     water rights acquired by the Pueblo or by the United States 
     on behalf of the Pueblo may be leased for said term.
       (G) A Partial Final Decree that sets forth the water rights 
     and contract rights to water to which the Pueblo is entitled 
     under the Settlement Agreement and this title and that 
     substantially conforms to the Settlement Agreement and 
     Attachment 5 thereto has been approved by the Court and has 
     become final and nonappealable.
       (g) Enforcement Date.--The Settlement Agreement shall 
     become enforceable, and the waivers and releases executed 
     pursuant to section 211 and the limited waiver of sovereign 
     immunity set forth in section 212(a) shall become effective, 
     as of the date that the conditions precedent described in 
     subsection (f)(2) have been fulfilled.
       (h) Expiration Date.--
       (1) In general.--If all of the conditions precedent 
     described in section (f)(2) have not been fulfilled by 
     December 31, 2015, the Settlement Agreement shall be null and 
     void, the waivers and releases executed pursuant to section 
     211 shall not become effective, and any unexpended Federal 
     funds, together with any income earned thereon, and title to 
     any property acquired or constructed with expended Federal 
     funds, shall be returned to the Federal Government, unless 
     otherwise agreed to by the Parties in writing and approved by 
     Congress.
       (2) Exception.--Notwithstanding subsection (h)(1) or any 
     other provision of law, any unexpended Federal funds, 
     together with any income earned thereon, made available under 
     sections 205(d) and 206(f) and title to any property acquired 
     or constructed with expended Federal funds made available 
     under sections 205(d) and 206(f) shall be retained by the 
     Pueblo.
       (3) Right to set-off.--In the event the conditions 
     precedent set forth in subsection (f)(2) have not been 
     fulfilled by December 31, 2015, the United States shall be 
     entitled to set off any funds expended or withdrawn from the 
     amount appropriated pursuant to paragraphs (1) and (2) of 
     subsection (c) or made available from other authorized 
     sources, together with any interest accrued, against any 
     claims asserted by the Pueblo against the United States 
     relating to water rights in the Taos Valley.

     SEC. 211. WAIVERS AND RELEASES.

       (a) Claims by the Pueblo and the United States.--The 
     Pueblo, on behalf of itself and its members, and the United 
     States, acting through the Secretary in its capacity as 
     trustee for the Pueblo, as part of their obligations under 
     the Settlement Agreement, shall each execute a waiver and 
     release of claims against all Parties to the Settlement 
     Agreement, including individual members of signatory 
     Acequias, from--
       (1) all past, present, and future claims to surface and 
     groundwater rights that the Pueblo, or the United States on 
     behalf of the Pueblo, asserted or could have asserted in New 
     Mexico v. Abeyta and New Mexico v.

[[Page 17707]]

     Arellano, Civil Nos. 7896-BB (U.S. D.N.M.) and 7939-BB (U.S. 
     D.N.M.) (consolidated);
       (2) all past, present, and future claims for damages, 
     losses or injuries to water rights or claims of interference, 
     diversion or taking of water for lands within the Taos Valley 
     that accrued from time immemorial through the Enforcement 
     Date that the Pueblo, or the United States on behalf of the 
     Pueblo, asserted or could have asserted;
       (3) all past, present, and future claims to surface and 
     groundwater rights to the use of Rio Grande mainstream or 
     tributary water, whether presently known or unknown, whether 
     for consumptive or nonconsumptive use, that the Pueblo, or 
     the United States on behalf of the Pueblo, could assert in 
     any present or future water rights adjudication proceeding 
     that are not based on ownership of land or that are based on 
     Pueblo or United States ownership of lands or water rights at 
     any time prior to the Enforcement Date, except that nothing 
     in this paragraph shall be construed to prevent the Pueblo or 
     the United States from fully participating in the inter se 
     phase of any such present or future water rights adjudication 
     proceeding;
       (4) all past, present, and future claims for damages, 
     losses or injuries to water rights or claims of interference, 
     diversion or taking of Rio Grande mainstream or tributary 
     water that accrued from time immemorial through the 
     Enforcement Date that the Pueblo, or the United States on 
     behalf of the Pueblo, asserted or could have asserted; and
       (5) all past, present, and future claims arising out of or 
     resulting from the negotiation or the adoption of the 
     Settlement Agreement, attachments thereto, or any specific 
     terms and provisions thereof, against the State of New 
     Mexico, its agencies, agents or employees.
       (b) Claims by the Pueblo.--The Pueblo, on behalf of itself 
     and its members, as part of its obligations under the 
     Settlement Agreement, shall execute a waiver and release of 
     claims against the United States, its agencies, and its 
     employees from--
       (1) all past, present, and future claims for water rights 
     that were asserted, or could have been asserted, by the 
     United States as trustee for the Pueblo and on behalf of the 
     Pueblo in New Mexico v. Abeyta and New Mexico v. Arellano, 
     Civil Nos. 7896-BB (U.S. D.N.M.) and 7939-BB (U.S. D.N.M) 
     (consolidated);
       (2) all past, present, and future claims for damages, 
     losses or injuries to water rights or all past, present, and 
     future claims for failure to intervene or act on the Pueblo's 
     behalf in the protection of its water rights, or all past, 
     present, and future claims for failure to acquire and/or 
     develop the water rights and resources of the Pueblo, that 
     accrued from time immemorial through the Enforcement Date; 
     and
       (3) all past, present, and future claims arising out of or 
     resulting from the negotiation or the adoption of the 
     Settlement Agreement, attachments thereto, or negotiation and 
     enactment of this title or any specific terms and provisions 
     thereof, against the United States, its agencies, agents or 
     employees.
       (c) Reservation of Rights and Retention of Claims.--
     Notwithstanding subsections (a) and (b), the Pueblo and its 
     members, and the United States, as trustee for the Pueblo and 
     its members, shall retain the following rights and claims:
       (1) All claims against persons other than the Parties to 
     the Settlement Agreement for injuries to water rights arising 
     out of activities occurring outside the Taos Valley or the 
     Taos Valley Stream System.
       (2) All claims for enforcement of the Settlement Agreement, 
     the San Juan-Chama Project contract between the Pueblo and 
     the United States, the Partial Final Decree, or this title, 
     through such legal and equitable remedies as may be available 
     in any court of competent jurisdiction.
       (3) All rights to use and protect water rights acquired 
     pursuant to state law, to the extent not inconsistent with 
     the Partial Final Decree and the Settlement Agreement.
       (4) All claims relating to activities affecting the quality 
     of water.
       (5) All rights, remedies, privileges, immunities, powers, 
     and claims not specifically waived and released pursuant to 
     the Settlement Agreement or this title.
       (d) Tolling of Claims.--
       (1) In general.--Each applicable period of limitation and 
     time-based equitable defense relating to a claim described in 
     this section shall be tolled for the period beginning on the 
     date of enactment of this Act and ending on the Enforcement 
     Date.
       (2) No revival of claims.--Nothing in this subsection 
     revives any claim or tolls any period of limitation or time-
     based equitable defense that expired before the date of 
     enactment of this title.
       (3) Limitation.--Nothing in this section precludes the 
     tolling of any period of limitations or any time-based 
     equitable defense under any other applicable law.

     SEC. 212. INTERPRETATION AND ENFORCEMENT.

       (a) Limited Waiver of Sovereign Immunity.--Upon and after 
     the Enforcement Date, if any Party to the Settlement 
     Agreement brings an action in any court of competent 
     jurisdiction over the subject matter relating only and 
     directly to the interpretation or enforcement of the 
     Settlement Agreement or this title, and names the United 
     States or the Pueblo as a party, then the United States, the 
     Pueblo, or both may be added as a party to any such action, 
     and any claim by the United States or the Pueblo to sovereign 
     immunity from the action is waived, but only for the limited 
     and sole purpose of such interpretation or enforcement, and 
     no waiver of sovereign immunity is made for any action 
     against the United States or the Pueblo that seeks money 
     damages.
       (b) Subject Matter Jurisdiction Not Affected.--Nothing in 
     this title shall be deemed as conferring, restricting, 
     enlarging, or determining the subject matter jurisdiction of 
     any court, including the jurisdiction of the court that 
     enters the Partial Final Decree adjudicating the Pueblo's 
     water rights.
       (c) Regulatory Authority Not Affected.--Nothing in this 
     title shall be deemed to determine or limit any authority of 
     the State or the Pueblo to regulate or administer waters or 
     water rights now or in the future.

     SEC. 213. DISCLAIMER.

       Nothing in the Settlement Agreement or this title shall be 
     construed in any way to quantify or otherwise adversely 
     affect the land and water rights, claims, or entitlements to 
     water of any other Indian tribe.

  Mr. BINGAMAN. Mr. President, today Senator Domenici and I are 
introducing a bill that I am pleased to say, will help end contentious 
disputes over water rights claims in two long-standing general stream 
adjudications in northern New Mexico. The bill accomplishes this by 
authorizing two Indian water rights settlements. The first is a 
settlement involving the water rights claims of the Nambe, Pojoaque, 
San Ildefonso, and Tesuque Pueblos in the Rio Pojoaque stream system, 
north of Santa Fe. The second settlement resolves Taos Pueblo's water 
rights claims in the Rio Pueblo de Taos stream system.
  The Rio Pojoaque stream adjudication is known as the Aamodt case, and 
it's my understanding that it's the longest active case in the Federal 
court system nationwide. The case began in 1966, and since that time 
has been actively litigated before the district court in New Mexico and 
the Tenth Circuit Court of Appeals. Forty years of litigation resolved 
very little, certainly not what the parties accomplished by engaging 
directly with each other in an attempt to resolve their differences. 
The Aamodt Litigation Settlement Act represents an agreement by the 
parties that will 1. secure water to meet the present and future needs 
of the four Pueblos involved in the litigation; 2. protect the 
interests and rights of long-standing water users, including century-
old irrigation practices; and 3. ensure that water is available for 
municipal and domestic needs for all residents in the Pojoaque basin. 
Negotiation of this agreement was a lengthy process and the parties had 
to renegotiate several issues to address local, State, and Federal 
policy concerns. In the end, however, their commitment to solving the 
water supply issues in the basin prevailed.
  The Rio Pueblo de Taos adjudication is a dispute that is almost 40 
years old. Similar to the Aamodt case, little has been resolved by the 
pending litigation. The parties have been in settlement discussions for 
well over a decade but it was not until the last 5 years that the 
discussions took on the sense of urgency needed to resolve the issues 
at hand. The settlement will fulfill the rights of the Pueblo 
consistent with the Federal trust responsibility, while continuing the 
practice of sharing the water necessary to protect the sustainability 
of traditional agricultural communities. The town of Taos and other 
local entities are also secure in their ability to access the water 
necessary to meet municipal and domestic needs. The Taos Pueblo Indian 
Water Rights Settlement Act represents a commonsense set of solutions 
that all parties to the adjudication have a stake in implementing.
  Both settlements are widely supported in their respective 
communities. Moreover, the State of New Mexico, under Governor 
Richardson's leadership, deserves special recognition for actively 
pursuing a settlement in both of these matters and committing 
significant resources so that the Federal Government does not have to 
bear the entire cost of these settlements. To the extent that going 
concerns may exist by some remaining water users, I am committed to 
continuing the dialog about the value of these settlements.

[[Page 17708]]

  This bill is critical for New Mexico's future. I look forward to 
working with my colleagues in the Senate to see that it gets enacted 
into law. The U.S. Supreme Court once characterized the Federal 
Government's responsibilities to Indian tribes as ``moral obligation of 
the highest responsibility and trust.'' This bill is an attempt to 
ensure that the Government lives up to that standard, and does so in a 
manner that also addresses the needs of the Pueblos' neighbors.
                                 ______
                                 
      By Mrs. FEINSTEIN:
  S. 3382. A bill for the relief of Guy Privat Tape and Lou Nazie 
Raymonde Toto; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, today I am introducing a private 
relief bill on behalf of Guy Privat Tape and his wife Lou Nazie 
Raymonde Toto. Mr. Tape and Ms. Toto are citizens of the Ivory Coast, 
but have been living in the San Francisco area of California for 
approximately 15 years.
  The story of the Mr. Tape and Ms. Toto is compelling and I believe 
they merit Congress's special consideration for such an extraordinary 
form of relief as a private bill.
  Mr. Tape and Ms. Toto were subjected to numerous atrocities in the 
early 1990s in the Ivory Coast. After participating in a demonstration 
against the ruling party, they were jailed and tortured by their own 
government. Ms. Toto was brutally raped by her captors and several 
years later learned that she had contracted HIV.
  Despite the hardships that they suffered, Mr. Tape and Ms. Toto were 
able to make a better life for themselves in the United States. Mr. 
Tape arrived in the U.S. in 1993 on a B1/B2 non-immigrant visa. Ms. 
Toto entered without inspection in 1995 from Spain. Despite being 
diagnosed with HIV, Ms. Toto gave birth to two healthy children, 
Melody, age 10, and Emmanuel, age 6.
  Since arriving in the United States, this family has dedicated 
themselves to community involvement and a strong work ethic. They pay 
taxes and own their own home in Hercules, California. They are active 
members of Easter Hill United Methodist Church.
  Mr. Tape is the owner of a small business, Melody's Carpet Cleaning & 
Upholstery, which has four other employees. Unfortunately, in 2002, Mr. 
Tape was diagnosed with urologic cancer. While his doctor states that 
the cancer is currently in remission, he will continue to require life-
long surveillance to monitor for recurrence of the disease.
  In addition to raising her two children, Ms. Toto obtained a 
certificate to be a nurse's aide and currently works as a Resident Care 
Specialist at Creekside Health Care in San Pablo, California. She hopes 
to finish her schooling so that she can become a Registered Nurse. She 
is currently taking classes at Contra Costa Community College. Ms. Toto 
continues to receive medical treatment for HIV. According to her 
doctor, without access to adequate health care and laboratory 
monitoring, she is at risk of developing life-threatening illnesses.
  Mr. Tape and Ms. Toto applied for asylum when they arrived in the 
U.S., but after many years of litigation, the claim was ultimately 
denied by the 9th Circuit Court of Appeals.
  Although the regime which subjected Mr. Tape and Ms. Toto to 
imprisonment and torture is no longer in power, Mr. Tape has been 
afraid to return to Ivory Coast due to his prior association with 
President Gbagbo. Mr. Tape had previously sought to promote democracy 
and peace in the region in support of the current President Gbagbo's 
party. However, in 2006 Mr. Tape publically distanced himself from 
President Gbagbo's government when he accused the party of violence and 
corruption. As a result, Mr. Tape strongly believes that his family 
will be targeted if they return to Ivory Coast.
  One of the most compelling reasons for permitting the family to 
remain in the United States is the impact their deportation would have 
on their two U.S. citizen children. For Melody and Emmanuel, the United 
States is the only country they have ever known. Mr. Tape believes that 
if the family returns to Ivory Coast, these two young children will be 
forced to enter the army.
  This bill is the only hope for this family to remain in the United 
States. To send them back to Ivory Coast, where they may face 
persecution and inadequate medical treatment for their illnesses would 
be devastating to the family. They are contributing members of their 
community and have embraced the American dream with their strong work 
ethic and family values. I have received approximately 50 letters from 
the church community in support of this family.
  Mr. President, I ask unanimous consent that the text of the bill and 
letters of support be printed in the Record.
  There being no objection, the material was ordered to be placed in 
the Record, as follows:

                                S. 3382

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PERMANENT RESIDENT STATUS FOR GUY PRIVAT TAPE AND 
                   LOU NAZIE RAYMONDE TOTO.

       (a) In General.--Notwithstanding subsections (a) and (b) of 
     section 201 of the Immigration and Nationality Act (8 U.S.C. 
     1151), Guy Privat Tape and Lou Nazie Raymonde Toto shall each 
     be eligible for the issuance of an immigrant visa or for 
     adjustment of status to that of an alien lawfully admitted 
     for permanent residence upon filing an application for 
     issuance of an immigrant visa under section 204 of such Act 
     or for adjustment of status to lawful permanent resident.
       (b) Adjustment of Status.--If Guy Privat Tape and Lou Nazie 
     Raymonde Toto enters the United States before the filing 
     deadline specified in subsection (c), Guy Privat Tape and Lou 
     Nazie Raymonde Toto shall be considered to have entered and 
     remained lawfully in the United States and shall be eligible 
     for adjustment of status under section 245 of the Immigration 
     and Nationality Act (8 U.S.C. 1255) as of the date of the 
     enactment of this Act.
       (c) Deadline for Application and Payment of Fees.--
     Subsections (a) and (b) shall apply only if the application 
     for the issuance of an immigrant visa or the application for 
     adjustment of status is filed with appropriate fees not later 
     than 2 years after the date of the enactment of this Act.
       (d) Reduction of Immigrant Visa Numbers.--Upon granting an 
     immigrant visa or permanent residence to Guy Privat Tape and 
     Lou Nazie Raymonde Toto, the Secretary of State shall 
     instruct the proper officer to reduce by 2, during the 
     current or next following fiscal year, the total number of 
     immigrant visas that are made available to natives of the 
     country of birth of Guy Privat Tape and Lou Nazie Raymonde 
     Toto under section 203(a) of the Immigration and Nationality 
     Act or, if applicable, the total number of immigrant visas 
     that are made available to natives of the country of birth of 
     Guy Privat Tape and Lou Nazie Raymonde Toto under section 
     202(e) of such Act.
                                  ____

                                                Black Alliance for


                                             Just Immigration,

                                      Berkeley, CA, July 17, 2008.
     Hon. Dianne Feinstein,
     U.S. Senator,
     San Francisco, CA.
       Dear Senator Feinstein: I'm writing on behalf of Guy Privat 
     Tape and Raymond Tape and their three children. The Tape 
     family arrived in the United States in 1993 (husband) and 
     1995 (wife) as political refugees from the Ivory Coast. Both 
     of them were imprisoned, tortured and beaten, and Mrs. Tape 
     was repeatedly raped, while in the Ivory Coast. As a 
     consequence, she is HIV positive. They were very fortunate to 
     escape with their lives. On the facts, they seem to have a 
     strong case for political sanctuary since the same forces are 
     in power in their homeland.
       Recently the Tape family received the terrifying notice 
     from the Immigration and Customs Enforcement (ICE) that on 
     August 6 they should report to be deported. It is outrageous 
     that our government is about to send this family into a 
     dangerous situation. And the impact upon the two children 
     will be devastating.
       Please intervene and use your power to ask ICE to 
     reconsider their petition for political asylum. Thank you for 
     your attention to this matter.
           Sincerely,
                                                    Gerald Lenoir,
     Director.
                                  ____

                                                    June 29, 2008.
     Hon. Dianne Feinstein,
     U.S. Senator,
     San Francisco, CA.
       Dear Senator Feinstein: I am writing this letter on behalf 
     of Guy Privat Tape and his wife, Lou Nazie Toto and their two 
     children. Guy Tape arrived in the United States in 1993 and 
     his wife, Lou Nazie Toto, arrived in 1995 as political 
     refugees from the Ivory

[[Page 17709]]

     Coast. In 1995 they applied for political asylum.
       They became members of Easter Hill United Methodist Church 
     in Richmond, California shortly after they arrived in the 
     United States and have been faithful and loyal members since 
     that time. They are the proud parents of two children who are 
     United States Citizens. Their daughter sings in the 
     children's choir and is a member of the children's usher 
     board.
       Guy Tape is self employed and Lou Nazie Toto is employed as 
     a CNA (Nurse's Assistant). They own their own home and are 
     productive taxpayers.
       The U.S. Immigration and Custom Enforcement (ICE) is 
     deporting Guy Tape and his wife, Lou Nazie Toto, back to the 
     Ivory Coast on August 5, 2008. The United States government 
     will be returning this family back to the people who jailed 
     them, beat them.
       I am asking you to please intervene and use your power to 
     ask ICE to reconsider this couple's petition for political 
     asylum.
       Thank you for your consideration in this matter.
           Sincerely yours,
                                               Rev. Billye Austin,
                                                           Pastor.
       p.s. America made a promise of political asylum to the 
     Tapes--it should keep it!
                                  ____

                                                       Easter Hill


                                      United Methodist Church,

                                      Richmond, CA, June 30, 2008.
     Hon. Dianne Feinstein,
     U.S. Senator,
     San Francisco, CA.
       Dear Senator Feinstein: The members of Easter Hill United 
     Methodist Church are asking your assistance to prevent the 
     deportation of the Tape family on August 5, 2008. The Tape 
     family are faithful members of Easter Hill Church. The 
     enclosed 48 letters asking for your help were signed by 
     members of Easter Hill United Methodist Church on Sunday, 
     June 29, 2008:
       The following are the members who have signed requesting 
     your assistance for the Tape family:
       Joyce Clark; Annie Harris; Horacio Avelino; Thelma Daniels; 
     Augustine Williams; Justin M. McMath; Clara Davis; Karen 
     Colquitt; Meredith Withers; Malanna Wheat; Jay Jackson; Dr. 
     Robert Anderson; Monique Lee; Edward Colquitt; Cecile Smith; 
     Dr. Corann Withers; and Ila Warner.
       Pauline Wesley; Zachary Harris; Shirley Haney; Nicole 
     Kelly; Charlesetta Cannady; Sylvester Weaver; Bennie Smith; 
     Joan Daniels; Valree Wilson; Dr. Nannette Finley Hancock; 
     Adolphus Benjamin; Harriet M. Brown; Beverly Hardy; Ernest 
     Baffo-Gyan; Bassey Effiong; and Girlee Parr.
       Gladys Harvey; Alfred J. Daniels, Jr.; Sheila Phillips; 
     Renee Lowery; James Bell; Vesper Wheat; William Harris; 
     Napoleon Britt; Todd Wheat; Carolyn Benjamin; Samuel Harvey; 
     Cassandra Clarke; Sharon Nash Haynes; Ena A. Harris; Eloise 
     Hewitt; and Frank Fisher.
           Thank you,
                                         Myrtle Braxton Ellington,
                                     Church & Society Chairperson.
                                 ______
                                 
      By Mr. CARDIN (for himself, Mrs. Clinton, Ms. Mikulski, and Mr. 
        Schumer):
  S. 3383. A bill to establish the Harriet Tubman National Historical 
Park in Auburn, New York, and the Harriet Tubman Underground Railroad 
National Historical Park in Caroline, Dorchester, and Talbot Counties, 
Maryland, and for other purposes; to the Committee on Energy and 
Natural Resources.
  Mr. CARDIN. Mr. President, today I am proud to introduce The Harriet 
Tubman National Historical Park and The Harriet Tubman Underground 
Railroad National Historical Park Act. I am joined by Mrs. Clinton, Ms. 
Mikulski, and Mr. Schumer as original cosponsors.
  The woman, who is known to us as Harriet Tubman, was born Araminta, 
Minty, Ross approximately 1822 in Dorchester County, Maryland. She 
spent nearly 30 years of her life as a slave on Maryland's eastern 
shore. As an adult she took the first name Harriet, and when she was 25 
she married John Tubman.
  Harriet Tubman escaped from slavery in 1849. She did so in the dead 
of night, navigating the maze of tidal streams and wetlands that are a 
hallmark of Maryland's Eastern Shore. She did so alone, demonstrating 
courage, strength and fortitude that became her hallmarks. Not 
satisfied with attaining her own freedom, she returned repeatedly for 
more than 10 years to the places of her enslavement in Dorchester and 
Caroline counties where, under the most adverse conditions, she led 
away many family members and other slaves to their freedom. Tubman 
became known as ``Moses'' by African-Americans and white abolitionists. 
She was perhaps the most famous and most important conductor in the 
network of resistance known as the Underground Railroad.
  During the Civil War, Tubman served the Union forces as a spy, a 
scout and a nurse. She served in Virginia, Florida, and South Carolina. 
She is credited with leading hundreds of slaves from those slave states 
to freedom during those years.
  Following the Civil War, Tubman settled in Auburn, New York. There 
she was active in the women's suffrage movement, and she also 
established the one of the first incorporated homes for aged African-
Americans. In 1903 she bequeathed the home to the African Methodist 
Episcopal Zion Church in Auburn. Harriet Tubman died in Auburn in 1913 
and she is buried there in the Fort Hill Cemetery.
  Slaves were forced to live in primitive buildings even though many 
were skilled tradesmen who constructed the substantial homes of their 
owners. Not surprisingly, few of the structures associated with the 
early years of Tubman's life still stand. The landscapes of the Eastern 
Shore of Maryland, however, remain evocative of the time that Tubman 
lived there. Farm fields and forests dot the landscape, which is also 
notable for its extensive network of tidal rivers and wetlands. In 
particular, a number of properties including the homestead of Ben Ross, 
her father, Stewart's Canal, where he worked, the Brodess Farm, where 
she worked as a slave, and others are within the boundaries of the 
Blackwater National Wildlife Refuge.
  Similarly, Poplar Neck, the plantation from which she escaped to 
freedom, is still largely intact in Caroline County. The properties in 
Talbot County, immediately across the Choptank River from the 
plantation, are today protected by various conservation easements. Were 
she alive today, Tubman would recognize much of the landscape that she 
knew intimately as she secretly led black men, women and children to 
their freedom.
  In New York, on the other hand, many of the buildings associated with 
Tubman's life remain intact. Her personal home, as well as the Tubman 
Home for the Aged, the church and rectory of the Thompson Memorial AME 
Zion Episcopal Church, and the Fort Hill Cemetery are all extant.
  In 1999, the Congress approved legislation authorizing a Special 
Resource Study to determine the appropriateness of establishing a unit 
of the National Park Service to honor Harriet Tubman. The Study has 
taken an exceptionally long time to complete, in part because of the 
lack of remaining structures on Maryland's Eastern Shore. There has 
never been any doubt that Tubman led an extraordinary life. Her 
contributions to American history are surpassed by few. Determining the 
most appropriate way to recognize that life and her contributions, 
however, has been more difficult. Eventually, the Park Service came to 
realize that determined that a Park that would include two 
geographically separate units would be appropriate. The New York unit 
would include the tightly clustered Tubman buildings in Auburn. The 
Maryland portion would include large sections of landscapes that are 
evocative of Tubman's time and are historically relevant. The Special 
Resource Study will be finalized and released later this year.


  The Harriet Tubman National Historical Park and The Harriet Tubman 
           Underground Railroad National Historical Park Act

  The legislation I am introducing today establishes two parks. The 
Harriet Tubman National Historical Park includes important historical 
structures in Auburn, New York. They include Tubman's home, the Home 
for the Aged that she established, the African Methodist Episcopal AME 
Zion Church, and the Fort Hill Cemetery where she is buried.
  The Harriet Tubman Underground Railroad National Historical Park 
includes historically important landscapes in Dorchester, Caroline and 
Talbot counties, Maryland, that are evocative of the life of Harriet 
Tubman. The Maryland properties include about 2,200 acres in Caroline 
County that

[[Page 17710]]

comprise the Poplar Neck plantation that Tubman escaped from in 1849. 
The 725 acres of viewshed across the Choptank River in Talbot County 
would also be included in the Park. In Dorchester County, the parcels 
would not be contiguous, but would include about 2,775 acres. All of 
them are included within the Blackwater National Wildlife Refuge 
boundaries or abut that resource land. The National Park Service would 
not own any of these lands.
  The bill authorizes $7.5 million in grants for the New York 
properties for their preservation, rehabilitation, and restoration of 
those resources.
  The bill authorizes $11 million in grants for the Maryland section. 
Funds can be used for the construction of the State Harriet Tubman Park 
Visitors Center and/or for easements or acquisition of properties 
inside or adjacent to the Historical Park boundaries.
  Finally, the bill also authorizes a new grants program. Under the 
program, the National Park Service would award competitive grants to 
historically Black colleges and universities, predominately Black 
institutions, and minority serving institutions for research into the 
life of Harriet Tubman and the African-American experience during the 
years that coincide with the life of Harriet Tubman. The legislation 
authorizes $200,000 annually for this scholarship program.
  Harriet Tubman was a true American patriot. She was someone for whom 
liberty and freedom were not just concepts. She lived those principles 
and shared that freedom with hundreds of others. In doing so, she has 
earned a nation's respect and honor. That is why I am so proud to 
introduce this legislation, establishing the Harriet Tubman National 
Historical Park and the Harriet Tubman Underground Railroad National 
Historical Park.
  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. 3383

       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 ``Harriet Tubman National 
     Historical Park and Harriet Tubman Underground Railroad 
     National Historical Park Act''.

     SEC. 2. FINDINGS; PURPOSES.

       (a) Findings.--Congress finds that--
       (1) Harriet Tubman (born Araminta ``Minty'' Ross)--
       (A) was born into slavery in Maryland around 1822;
       (B) married John Tubman at age 25;
       (C) endured through her youth and young adulthood the 
     hardships of enslaved African Americans; and
       (D) boldly emancipated herself from bondage in 1849;
       (2) not satisfied with attaining her own freedom, Harriet 
     Tubman--
       (A) returned repeatedly for more than 10 years to the 
     places of her enslavement in Dorchester and Caroline 
     Counties, Maryland; and
       (B) under the most adverse circumstances led away many 
     family members and acquaintances to freedom in the northern 
     region of the United States and Canada;
       (3) Harriet Tubman was--
       (A) called ``Moses'' by African-Americans and white 
     abolitionists; and
       (B) acknowledged as 1 of the most prominent ``conductors'' 
     of the resistance that came to be known as the ``Underground 
     Railroad'';
       (4) in 1868, Frederick Douglass wrote that, with the 
     exception of John Brown, Douglass knew of ``no one who has 
     willingly encountered more perils and hardships to serve our 
     enslaved people'' than Harriet Tubman;
       (5) during the Civil War, Harriet Tubman--
       (A) was recruited to assist Union troops as a nurse, a 
     scout, and a spy; and
       (B) served in Virginia, Florida, and South Carolina, where 
     she is credited with facilitating the rescue of hundreds of 
     enslaved people;
       (6) Harriet Tubman established in Auburn, New York, 1 of 
     the first incorporated homes for aged African Americans in 
     the United States, which, 10 years before her death, she 
     bequeathed to the African Methodist Episcopal Zion Church;
       (7) there are nationally significant resources comprised of 
     relatively unchanged landscapes associated with the early 
     life of Harriet Tubman in Caroline, Dorchester, and Talbot 
     Counties, Maryland;
       (8) there are nationally significant resources relating to 
     Harriet Tubman in Auburn, New York, including--
       (A) the residence of Harriet Tubman;
       (B) the Tubman Home for the Aged;
       (C) the Thompson Memorial AME Zion Church; and
       (D) the final resting place of Harriet Tubman in Fort Hill 
     Cemetery;
       (9) in developing interpretive programs, the National Park 
     Service would benefit from increased scholarship of the 
     African-American experience during the decades preceding the 
     Civil War and throughout the remainder of the 19th century; 
     and
       (10) it is fitting and proper that the nationally 
     significant resources relating to Harriet Tubman be preserved 
     for future generations as units of the National Park System 
     so that people may understand and appreciate the 
     contributions of Harriet Tubman to the history and culture of 
     the United States.
       (b) Purposes.--The purposes of this Act are--
       (1) to preserve and promote stewardship of the resources in 
     Auburn, New York, and Caroline, Dorchester, and Talbot 
     Counties, Maryland, relating to the life and contributions of 
     Harriet Tubman;
       (2) to provide for partnerships with the African Methodist 
     Episcopal Zion Church, the States of New York and Maryland, 
     political subdivisions of the States, the Federal Government, 
     local governments, nonprofit organizations, and private 
     property owners for resource protection, research, 
     interpretation, education, and public understanding and 
     appreciation of the life and contributions of Harriet Tubman;
       (3) to sustain agricultural and forestry land uses in 
     Caroline, Dorchester, and Talbot Counties, Maryland, that 
     remain evocative of the landscape during the life of Harriet 
     Tubman; and
       (4) to establish a competitive grants program for scholars 
     of African-American history relating to Harriet Tubman and 
     the Underground Railroad.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Church.--The term ``Church'' means the Thompson 
     Memorial AME Zion Church located in Auburn, New York.
       (2) Historically black college or university.--The term 
     ``historically Black college or university'' has the meaning 
     given the term ``part B institution'' in section 322 of the 
     Higher Education Act of 1965 (20 U.S.C. 1061)).
       (3) Predominantly black institution.--The term 
     ``Predominantly Black Institution'' has the meaning given the 
     term in section 499A(c) of the Higher Education Act of 1965 
     (20 U.S.C. 1099e(c)).
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (5) Visitor center.--The term ``Visitor Center'' means the 
     Harriet Tubman Underground Railroad State Park Visitor Center 
     to be constructed under section 5(d).

     SEC. 4. ESTABLISHMENT OF HARRIET TUBMAN NATIONAL HISTORICAL 
                   PARK.

       (a) Establishment.--On the execution of easements with the 
     Church, the Secretary shall--
       (1) establish the Harriet Tubman National Historical Park 
     (referred to in this section as the ``Historical Park'') in 
     the City of Auburn, New York, as a unit of the National Park 
     System; and
       (2) publish notice of the establishment of the Historical 
     Park in the Federal Register.
       (b) Boundary.--
       (1) In general.--The Historical Park shall be comprised of 
     structures and properties associated with the Harriet Tubman 
     home, the Tubman Home for the Aged, the Church, and the 
     Rectory, as generally depicted on the map entitled ``Harriet 
     Tubman National Historical Park-Proposed Boundary'', numbered 
     [____], and dated [___].
       (2) Availability of map.--The map described in paragraph 
     (1) shall be available for public inspection in the 
     appropriate offices of the National Park Service.
       (c) Acquisition of Land.--The Secretary may acquire from 
     willing sellers, by donation, purchase with donated or 
     appropriated funds, or exchange, land or interests in land 
     within the boundary of the Historical Park.
       (d) Financial Assistance.--The Secretary may provide grants 
     to, and enter into cooperative agreements with--
       (1) the Church for--
       (A) historic preservation of, rehabilitation of, research 
     on, and maintenance of properties within the boundary of the 
     Historical Park; and
       (B) interpretation of the Historical Park;
       (2) the Fort Hill Cemetery Association for maintenance and 
     interpretation of the gravesite of Harriet Tubman; and
       (3) the State of New York, any political subdivisions of 
     the State, the City of Auburn, and nonprofit organizations 
     for--
       (A) preservation and interpretation of resources relating 
     to Harriet Tubman in the City of Auburn, New York;
       (B) conducting research, including archaeological research; 
     and
       (C) providing for stewardship programs, education, public 
     access, signage, and other interpretive devices at the 
     Historical Park for interpretive purposes.
       (e) Interpretation.--The Secretary may provide interpretive 
     tours to sites located outside the boundaries of the 
     Historical Park in Auburn, New York, that include resources 
     relating to Harriet Tubman.
       (f) General Management Plan.--

[[Page 17711]]

       (1) In general.--Not later than 3 years after the date on 
     which funds are made available to carry out this subsection, 
     the Secretary, in cooperation with the Church, shall complete 
     a general management plan for the Historical Park in 
     accordance with section 12(b) of Public Law 91-383 (16 U.S. 
     C. 1a-7(b)).
       (2) Coordination.--The Secretary shall coordinate the 
     preparation and implementation of the general management plan 
     for the Harriet Tubman National Historical Park with--
       (A) the Harriet Tubman Underground Railroad National 
     Historical Park in Maryland; and
       (B) the National Underground Railroad: Network to Freedom.

     SEC. 5. ESTABLISHMENT OF THE HARRIET TUBMAN UNDERGROUND 
                   RAILROAD NATIONAL HISTORICAL PARK.

       (a) Establishment.--There is established as a unit of the 
     National Park System the Harriet Tubman Underground Railroad 
     National Historical Park (referred to in this section as the 
     ``Historical Park'') in Caroline, Dorchester, and Talbot 
     Counties, Maryland.
       (b) Boundary.--
       (1) In general.--The boundary of the Historical Park shall 
     consist of certain landscapes and associated resources 
     relating to the early life and enslavement of Harriet Tubman 
     and the Underground Railroad, as generally depicted on the 
     map entitled ``Harriet Tubman Underground Railroad National 
     Historical Park-Proposed Boundary'', numbered [____], and 
     dated [_____].
       (2) Additional sites.--The Secretary, after consultation 
     with landowners, the State of Maryland, and units of local 
     government, may modify the boundary of the Historical Park to 
     include additional resources relating to Harriet Tubman 
     that--
       (A) are located within the vicinity of the Historical Park; 
     and
       (B) are identified in the general management plan prepared 
     under subsection (g) as appropriate for interpreting the life 
     of Harriet Tubman.
       (3) Availability of map.--On modification of the boundary 
     of the Historical Park under paragraph (2), the Secretary 
     shall make available for public inspection in the appropriate 
     offices of the National Park Service a revised map of the 
     Historical Park.
       (c) Acquisition of Land.--The Secretary may acquire from 
     willing sellers, by donation, purchase with donated or 
     appropriated funds, or exchange, land or an interest in land 
     within the boundaries of the Historical Park.
       (d) Grants.--In accordance with section 7(b)(2), the 
     Secretary may provide grants--
       (1) to the State of Maryland, political subdivisions of the 
     State, and nonprofit organizations for the acquisition of 
     less than fee title (including easements) or fee title to 
     land in Caroline, Dorchester, and Talbot Counties, Maryland, 
     within the boundary of the Historical Park; and
       (2) on execution of a memorandum of understanding between 
     the State of Maryland and the Director of the National Park 
     Service, to the State of Maryland for the construction of the 
     Harriet Tubman Underground Railroad State Park Visitor Center 
     on land owned by the State of Maryland in Dorchester County, 
     Maryland, subject to the condition that the State of Maryland 
     provide the Director of the National Park Service, at no 
     additional cost, sufficient office space and exhibition areas 
     in the Visitor Center to carry out the purposes of the 
     Historical Park.
       (e) Financial Assistance.--The Secretary may provide grants 
     to, and enter into cooperative agreements with, the State of 
     Maryland, political subdivisions of the State, nonprofit 
     organizations, colleges and universities, and private 
     property owners for--
       (1) the restoration or rehabilitation, public use, and 
     interpretation of sites and resources relating to Harriet 
     Tubman;
       (2) the conduct of research, including archaeological 
     research;
       (3) providing stewardship programs, education, signage, and 
     other interpretive devices at the sites and resources for 
     interpretive purposes; and
       (4)(A) the design and construction of the Visitor Center; 
     and
       (B) the operation and maintenance of the Visitor Center.
       (f) Interpretation.--The Secretary may provide interpretive 
     tours to sites and resources located outside the boundary of 
     the Historical Park in Caroline, Dorchester, and Talbot 
     Counties, Maryland, relating to the life of Harriet Tubman 
     and the Underground Railroad.
       (g)  General Management Plan.--
       (1) In general.--Not later than 3 years after the date on 
     which funds are made available to carry out this subsection, 
     the Secretary, in coordination with the State of Maryland, 
     political subdivisions of the State, and the United States 
     Fish and Wildlife Service, shall complete a general 
     management plan for the Historical Park in accordance with 
     section 12(b) of Public Law 91-383 (16 U.S. C. 1a-7(b)).
       (2) Coordination.--The Secretary shall coordinate the 
     preparation and implementation of the general management plan 
     for the Historical Park with--
       (A) the Harriet Tubman National Historical Park in Auburn, 
     New York;
       (B) the National Underground Railroad: Network to Freedom;
       (C) the Maryland Harriet Tubman Underground Railroad State 
     Park; and
       (D) the Harriet Tubman Underground Railroad Byway in 
     Dorchester and Caroline Counties, Maryland.
       (3) Priority treatment.--The general management plan for 
     the Historical Park shall give priority to the adequate 
     protection of, interpretation of, public appreciation for, 
     archaeological investigation of, and research on Stewart's 
     Canal, the Jacob Jackson home site, the Brodess Farm, the Ben 
     Ross and Anthony Thompson properties on Harrisville Road, and 
     the James Cook site, all of which are privately owned and 
     located in the Blackwater National Wildlife Refuge.
       (h) Blackwater National Wildlife Refuge.--
       (1) Interagency agreement.--The Secretary shall ensure 
     that, not later than 1 year after the date of enactment of 
     this Act, the National Park Service and the United States 
     Fish and Wildlife Service enter into an interagency agreement 
     that--
       (A) promotes and mutually supports the compatible 
     stewardship and interpretation of Harriet Tubman resources at 
     the Blackwater National Wildlife Refuge; and
       (B) provides for the maximum level of cooperation between 
     those Federal agencies to further the purposes of this Act.
       (2) Effect of act.--Nothing in this Act modifies, alters, 
     or amends the authorities of the United States Fish and 
     Wildlife Service in the administration and management of the 
     Blackwater National Wildlife Refuge.

     SEC. 6. ADMINISTRATION.

       (a) In General.--The Secretary shall administer the Harriet 
     Tubman National Historical Park and the Harriet Tubman 
     Underground Railroad National Historical Park in accordance 
     with this Act and the laws generally applicable to units of 
     the National Park System including--
       (1) the National Park Service Organic Act (16 U.S.C. 1 et 
     seq.); and
       (2) the Act of August 21, 1935 (16 U.S.C. 461 et seq.).
       (b) Park Regulations.--Notwithstanding subsection (a), 
     regulations and policies applicable to units of the National 
     Park System shall apply only to Federal land administrated by 
     the National Park Service that is located within the boundary 
     of the Harriet Tubman Underground Railroad National 
     Historical Park.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There are authorized to be appropriated 
     such sums as are necessary to carry out this Act (other than 
     subsection (b)), including the provision of National Park 
     Service personnel and National Park Service management funds 
     for the Harriet Tubman National Historical Park and the 
     Harriet Tubman Underground Railroad National Historical Park.
       (b) Grants.--There are authorized to be appropriated not 
     more than--
       (1) $7,500,000 to provide grants to the Church for--
       (A) historic preservation, rehabilitation, and restoration 
     of resources within the boundary of the Harriet Tubman 
     National Historical Park; and
       (B) the costs of design, construction, installation, and 
     maintenance of exhibits and other interpretive devices 
     authorized under section 4(d)(1)(B);
       (2) $11,000,000 for grants to the State of Maryland for 
     activities authorized under subsections (d)(1) and (e)(4)(A) 
     of section 5; and
       (3) $200,000 for fiscal year 2009 and each fiscal year 
     thereafter for competitive grants to historically Black 
     colleges and universities, Predominately Black Institutions, 
     and minority serving institutions for research into the life 
     of Harriet Tubman and the African-American experience during 
     the years that coincide with the life of Harriet Tubman.
       (c) Cost-Sharing Requirement.--
       (1) Church and visitor center grants.--The Federal share of 
     the cost of activities provided grants under paragraph (1) or 
     (2) of subsection (b) and any maintenance, construction, or 
     utility costs incurred pursuant to a cooperative agreement 
     entered into under section 4(d)(1)(A) or section 5(e) shall 
     not be more than 50 percent.
       (2) Historically black colleges and universities.--The 
     Federal share of the cost of activities provided assistance 
     under subsection (b)(3) shall be not more than 75 percent.
       (3) Form of non-federal share.--The non-Federal share 
     required under this subsection may be in the form of in-kind 
     contributions of goods or services fairly valued.
                                 ______
                                 
      By Mr. CARPER (for himself, Ms. Collins, Mr. Lieberman, Mr. 
        Coleman, and Mrs. McCaskill):
  S. 3384. A bill to amend section 11317 of title 40, United States 
Code, to require greater accountability for cost overruns on Federal IT 
investment projects; to the Committee on Homeland Security and 
Governmental Affairs.

[[Page 17712]]


  Mr. CARPER. Mr President, I rise today with my colleagues on the 
Homeland Security and Governmental Affairs Committee to introduce the 
Information Technology Oversight Enhancement and Waste Prevention Act 
of 2008.
  With a long name like that, you would hope that it is addressing a 
very serious problem. Well I assure you, that it is.
  Every year agencies spend billions of dollars on IT investments 
that--if planned and implemented properly--can increase productivity, 
reduce costs, and improve efficiency. As everyone knows, information 
technology has become a cornerstone of the way we conduct business. 
Just look at the rise in popularity of Blackberries, not only outside 
these walls, but right here in the Senate.
  In fiscal year 2009, agencies are planning to spend almost $71 
billion to improve their financial systems for better reporting, 
streamline their grant processes, and reduce wasteful paper 
applications. And this is a good thing.
  However, the Government Accountability Office has reported for 
several years that many of these investments are poorly planned, poorly 
performing--or in some cases--both. Yet, agencies continue to fund 
these risky investments without any oversight or accountability. In 
fact, I was surprised to hear GAO report that $25.2 billion is at 
danger of being wasted because agencies failed to properly plan or 
manage their investments.
  Mr. President, $25.2 billion may not be a very large sum of money 
when you compare it to what we spend every year, but I assure you that 
it is a very real sum of money to those families who can't pay for the 
gas they need to get to work, or who are struggling to put food on 
their table.
  To illustrate my point further, this chamber had to include emergency 
funding in the last supplemental appropriations bill to bail out the 
Census Bureau's 2010 operations. They had been planning for more than a 
decade to use advanced handheld computers to verify addresses and 
follow up with households who don't send their census forms in on time. 
My colleagues and I on the Homeland Security and Governmental Affairs 
Committee heard, however, that Census Bureau officials failed to define 
what they need out of the handheld project and, as a result, the 
contractor was having trouble delivering a product that could work. We 
held two hearings to try and get to the bottom of the problem and find 
a solution but, at the end of the day, the Census Bureau had to scrap 
the handheld project and go with the same expensive and inefficient 
``pen and paper'' counting method that they have used for centuries. 
The cost of this failure on the part of the Census Bureau is expected 
to total in the billions.
  This extra money that the Census Bureau will need to spend between 
now and 2010 could have been used to improve the quality of the final 
count by outreaching to historically-undercounted groups. In fact, it 
could have been used for any number of worthwhile purposes.
  My colleagues and I on the Homeland Security and Governmental Affairs 
Committee's Subcommittee on Federal Financial Management, which I 
chair, have held three hearings on the issue of troubled IT projects 
now, including one this morning. And what we've learned is that some 
agencies can't keep the expected cost of their investments down or 
deliver on time as promised. Nor do these agencies, in many cases, have 
qualified IT experts they can turn to before a project spirals out of 
control. The bill Senators Lieberman, Collins and I have put forward 
today addresses these issues.
  Our bill starts by requiring agencies to inform Congress when an 
investment begins to see increased costs, schedule delays, or 
performance deficiencies outside of 20 percent of the original plan.
  Our bill would also require agencies to inform Congress if an 
investment exceeds 40 percent of their original plan, and require the 
agency head to conduct an analysis that determines whether we should 
continue to fund this investment or just pull the plug.
  Many agencies today simply rewrite their plans when they run into 
trouble. They don't tell Congress that anything is wrong and the 
troubled projects just keep getting funded year in and year out.
  Finally and perhaps most importantly, our bill recognizes that, many 
times, agencies lack the experience necessary to manage complex IT 
investments. To remedy this, we propose that OMB create what my staff 
and I have come to call an ``IT Strike Team.'' This team would be 
comprised of known individuals inside and outside government who have 
records of successfully managing complex IT projects. If an agency or 
OMB recognizes that an investment is beginning to experience problems, 
the team would come in make sure the project is brought online or 
scrapped before more money is wasted.
  I look forward to working with my colleagues to get these important 
and necessary reforms enacted. I think I speak for all of us when I say 
that investing in IT systems is important. But these investments 
shouldn't come with wasted time and money that they all too often 
bring. In tight fiscal times like these, we need to make sure the money 
we do invest is spent wisely.
  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. 3384

       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 ``Information Technology 
     Investment Oversight Enhancement and Waste Prevention Act of 
     2008''.

     SEC. 2. IT INVESTMENT PROJECTS.

       (a) Significant and Gross Deviations.--Section 11317 of 
     title 40, United States Code, is amended to read as follows:

     ``SEC. 11317. SIGNIFICANT AND GROSS DEVIATIONS.

       ``(a) Definitions.--In this subchapter:
       ``(1) Agency head.--The term `Agency Head' means the head 
     of the Federal agency that is primarily responsible for the 
     IT investment project under review.
       ``(2) ANSI eia-748 standard.--The term `ANSI EIA-748 
     Standard' means the measurement tool jointly developed by the 
     American National Standards Institute and the Electronic 
     Industries Alliance to analyze earned value management 
     systems.
       ``(3) Appropriate congressional committees.--The term 
     `appropriate congressional committees' means--
       ``(A) the Committee on Homeland Security and Governmental 
     Affairs of the Senate;
       ``(B) the Committee on Oversight and Government Reform of 
     the House of Representatives;
       ``(C) the Committee on Appropriations of the Senate;
       ``(D) the Committee on Appropriations of the House of 
     Representatives; and
       ``(E) any other relevant congressional committee with 
     jurisdiction over an agency required to take action under 
     this section.
       ``(4) Chief information officer.--The term `Chief 
     Information Officer' means the Chief Information Officer 
     designated under section 3506(a)(2) of title 44 of the 
     Federal agency that is primarily responsible for the IT 
     investment project under review.
       ``(5) Core it investment project.--The terms `core IT 
     investment project' and `core project' mean a mission 
     critical IT investment project jointly designated as such by 
     the Agency Head and the Director under subsection (b).
       ``(6) Director.--The term `Director' means the Director of 
     the Office of Management and Budget.
       ``(7) Grossly deviated.--The term `grossly deviated' means 
     cost, schedule, or performance variance that is at least 40 
     percent from the Original Baseline.
       ``(8) Independent cost estimate.--The term `independent 
     cost estimate' means a pragmatic and neutral analysis, 
     assessment, and quantification of all costs and risks 
     associated with the acquisition of an IT investment project, 
     which--
       ``(A) is based on programmatic and technical specifications 
     provided by the office within the agency with primary 
     responsibility for the development, procurement, and delivery 
     of the project;
       ``(B) is formulated and provided by an entity other than 
     the office within the agency with primary responsibility for 
     the development, procurement, and delivery of the project;
       ``(C) contains sufficient detail to inform the selection of 
     a baseline benchmark measure under the ANSI EIA-748 standard; 
     and
       ``(D) accounts for the full life cycle cost plus associated 
     operations and maintenance expenses over the usable life of 
     the project's deliverables.
       ``(9) IT investment project.--The terms `IT investment 
     project' and `project' mean

[[Page 17713]]

     an information technology system or acquisition that--
       ``(A) requires special management attention because of its 
     importance to the mission or function of the agency, a 
     component of the agency, or another organization;
       ``(B) is for financial management and obligates more than 
     $500,000 annually;
       ``(C) has significant program or policy implications;
       ``(D) has high executive visibility;
       ``(E) has high development, modernization, or enhancement 
     costs;
       ``(F) is funded through other than direct appropriations; 
     or
       ``(G) is defined as major by the agency's capital planning 
     and investment control process.
       ``(10) Life cycle cost.--The term `life cycle cost' means 
     the total cost of an IT investment project for planning, 
     research and development, modernization, and enhancement.
       ``(11) Original baseline.--
       ``(A) In general.--Except as provided under subparagraph 
     (B), the term `Original Baseline' means the ANSI EIA-748 
     Standard-compliant cost, schedule, and performance benchmark 
     established at the commencement of an IT investment project 
     contract.
       ``(B) Grossly deviated project.--If an IT investment 
     project grossly deviates from its Original Baseline (as 
     defined in subparagraph (A)), the term `Original Baseline' 
     means the ANSI EIA-748 Standard-compliant cost, schedule, and 
     performance benchmark established under subsection (e)(3)(C).
       ``(12) Significantly deviated.--The term `significantly 
     deviated' means cost, schedule, or performance variance that 
     is at least 20 percent from the Original Baseline.
       ``(b) Core IT Investment Projects.--
       ``(1) Designation.--Except as provided under paragraph (2), 
     each Agency Head and the Director shall jointly designate not 
     fewer than 5 of the agency's most mission critical IT 
     investment projects as `core IT investment projects' or `core 
     projects', after considering, among other factors--
       ``(A) whether the project represents a high-dollar value 
     relative to the average IT investment project in the agency's 
     portfolio;
       ``(B) whether the project delivers a capability critical to 
     the successful completion of the agency mission, or a portion 
     of such mission; and
       ``(C) whether the project incorporates unproven or 
     previously undeveloped technology to meet primary project 
     technical requirements.
       ``(2) Exception.--If the Agency Head and the Director 
     jointly determine that fewer than 5 IT investment projects 
     meet the criteria described in paragraph (1), the Director--
       ``(A) may provide the agency with written authorization to 
     designate fewer than 5 projects; and
       ``(B) shall submit a report to the appropriate 
     congressional committees that contains notice of, and 
     justification for, any such authorization.
       ``(c) Cost, Schedule, and Performance Reports.--
       ``(1) Quarterly reports.--Not later than 7 days after the 
     end of each fiscal quarter, the project manager for an IT 
     investment project shall submit a written report to the Chief 
     Information Officer that includes, as of the last day of the 
     applicable quarter--
       ``(A) a description of the cost, schedule, and performance 
     of all projects under the project manager's supervision;
       ``(B) the original and current project cost, schedule, and 
     performance benchmarks for each project under the project 
     manager's supervision;
       ``(C) the cost, schedule, or performance variance related 
     to each IT investment project under the project manager's 
     supervision since the commencement of the contract;
       ``(D) for each project under the project manager's 
     supervision, any known, expected, or anticipated changes to 
     project schedule milestones or project performance benchmarks 
     included as part of the original or current baseline 
     description; and
       ``(E) the current cost, schedule, and performance status of 
     all projects under supervision that were previously 
     identified as significantly deviated or grossly deviated.
       ``(2) Interim reports.--If the project manager for an IT 
     investment project determines that there is reasonable cause 
     to believe that an IT investment project has significantly 
     deviated or grossly deviated since the issuance of the latest 
     quarterly report, the project manager shall submit to the 
     Chief Information Officer, not later than 7 days after such 
     determination, a report on the project that includes, as of 
     the date of the report--
       ``(A) a description of the original and current program 
     cost, schedule, and performance benchmarks;
       ``(B) the cost, schedule, or performance variance related 
     to the IT investment project since the commencement of the 
     contract;
       ``(C) any known, expected, or anticipated changes to the 
     project schedule milestones or project performance benchmarks 
     included as part of the original or current baseline 
     description; and
       ``(D) the major reasons underlying the significant or gross 
     deviation of the project.
       ``(d) Determination of Significant Deviation.--
       ``(1) Chief information officer.--Upon receiving a report 
     under subsection (c), the Chief Information Officer shall--
       ``(A) determine if any IT investment project has 
     significantly deviated; and
       ``(B) report such determination to the Agency Head.
       ``(2) Congressional notification.--If the Chief Information 
     Officer determines under paragraph (1) that an IT investment 
     project has significantly deviated and the Agency Head has 
     not issued a report to the appropriate congressional 
     committees of a significant deviation for that project under 
     this section since the project was last required to be re-
     baselined under this section, the Agency Head shall submit a 
     report to the appropriate congressional committees and to the 
     Government Accountability Office that includes--
       ``(A) written notification of such determination;
       ``(B) the date on which such determination was made;
       ``(C) the amount of the cost increases and the extent of 
     the schedule delays with respect to such project;
       ``(D) any requirements that--
       ``(i) were added subsequent to the original contract; or
       ``(ii) were originally contracted for, but were changed by 
     deferment or deletion from the original schedule, or were 
     otherwise no longer included in the requirements contracted 
     for;
       ``(E) an explanation of the differences between--
       ``(i) the estimate at completion between the project 
     manager, any contractor, and any independent analysis; and
       ``(ii) the original budget at completion;
       ``(F) the rough order of magnitude of the costs of any 
     reasonable alternative system, or reasonable alternative 
     approach to establishing an equivalent outcome or capability;
       ``(G) a statement of the reasons underlying the project's 
     significant deviation;
       ``(H) the identities of the project managers responsible 
     for program management and cost control of the program; and
       ``(I) a summary of the plan of action to remedy the 
     significant deviation.
       ``(3) Deadline.--
       ``(A) Notification based on quarterly report.--If the 
     determination of significant deviation is based on a report 
     submitted under subsection (b)(1), the Agency Head shall 
     notify Congress in accordance with paragraph (2) not later 
     than 14 days after the end of the quarter upon which such 
     report is based.
       ``(B) Notification based on interim report.--If the 
     determination of significant deviation is based on a report 
     submitted under subsection (b)(2), the Secretary shall notify 
     Congress in accordance with paragraph (2) not later than 14 
     days after the submission of such report.
       ``(e) Determination of Gross Deviation.--
       ``(1) Chief information officer.--Upon receiving a report 
     under subsection (c), the Chief Information Officer shall--
       ``(A) determine if any IT investment project has grossly 
     deviated; and
       ``(B) report any such determination to the Agency Head.
       ``(2) Congressional notification.--If the Chief Information 
     Officer determines under paragraph (1) that an IT investment 
     project has grossly deviated and the Agency Head has not 
     issued a report to the appropriate congressional committees 
     of a gross deviation for that project under this section 
     since the project was last required to be re-baselined under 
     this section, the Agency Head shall submit a report to the 
     appropriate congressional committees and to the Government 
     Accountability Office that includes--
       ``(A) written notification of such determination, which 
     states--
       ``(i) the date on which such determination was made; and
       ``(ii) an indication of whether or not the project has been 
     previously reported as a significant or gross deviation by 
     the Chief Information Officer, and the date of any such 
     report;
       ``(B) incorporations by reference of all prior reports to 
     Congress on the project required under this section;
       ``(C) updated accounts of the items described in 
     subparagraphs (C) through (H) of subsection (d)(2);
       ``(D) the original estimate at completion for the project 
     manager, any contractor, and any independent analysis;
       ``(E) a graphical depiction of actual cost variance since 
     the commencement of the contract;
       ``(F) the amount, if any, of incentive award fees any 
     contractor has received since the commencement of the 
     contract and the reasons for receiving such award fees;
       ``(G) the project manager's estimated cost at completion 
     and estimated completion date for the project if current 
     requirements are not modified;
       ``(H) the project manager's estimated cost at completion 
     and estimated completion date for the project based on 
     reasonable modification of such requirements;
       ``(I) an explanation of the most significant occurrence 
     contributing to the variance

[[Page 17714]]

     identified, including cost, schedule, and performance 
     variances, and the effect such occurrence will have on future 
     project costs and program schedule;
       ``(J) a statement regarding previous or anticipated re-
     baselining or re-planning of the project and the names of the 
     individuals responsible for approval;
       ``(K) the original life cycle cost of the investment and 
     the expected life cycle cost of the investment expressed in 
     constant base year dollars and in current dollars; and
       ``(L) a comprehensive plan of action to remedy the gross 
     deviation, and milestones established to control future cost, 
     schedule, and performance deviations in the future.
       ``(3) Remedial action.--If the Chief Information Officer 
     determines under paragraph (1) that an IT investment project 
     has grossly deviated, the Agency Head, in consultation with 
     the Chief Information Officer, shall ensure that--
       ``(A) a report is submitted to the appropriate 
     congressional committees that--
       ``(i) describes the primary business case and key 
     functional requirements for the project;
       ``(ii) describes any portions of the project that have 
     technical requirements of sufficient clarity that such 
     portions may be feasibly procured under firm, fixed-price 
     contract;
       ``(iii) includes a certification by the Agency Head, after 
     consultation with the Chief Information Officer, that all 
     technical requirements have been reviewed and validated to 
     ensure alignment with the reported business case;
       ``(iv) describes any changes to the primary business case 
     or key functional requirements which have occurred since 
     project inception; and
       ``(v) includes an independent cost estimate for the project 
     conducted by an entity approved by the Director;
       ``(B) an analysis is submitted to the appropriate 
     congressional committees that--
       ``(i) describes agency business goals that the project was 
     originally designed to address;
       ``(ii) includes a gap analysis of what project deliverables 
     remain in order for the agency to accomplish the business 
     goals referred to in clause (i);
       ``(iii) identifies the 3 most cost-effective alternative 
     approaches to the project which would achieve the business 
     goals referred to in clause (i); and
       ``(iv) includes a cost-benefit analysis, which compares--

       ``(I) the completion of the project with the completion of 
     each alternative approach, after factoring in future costs 
     associated with the termination of the project; and
       ``(II) the termination of the project without pursuit of 
     alternatives, after factoring in foregone benefits; and

       ``(C) a new baseline of the project is established that is 
     consistent with the independent cost estimate required under 
     subparagraph (A)(v); and
       ``(D) the project is designated as a core IT investment 
     project and subjected to the requirements under subsection 
     (f).
       ``(4) Deadline and funding contingency.--
       ``(A) Notification and remedial action based on quarterly 
     report.--
       ``(i) In general.--If the determination of gross deviation 
     is based on a report submitted under subsection (c)(1), the 
     Agency Head shall--

       ``(I) not later than 45 days after the end of the quarter 
     upon which such report is based, notify the appropriate 
     congressional committees in accordance with paragraph (2); 
     and
       ``(II) not later than 180 days after the end of the quarter 
     upon which such report is based, ensure the completion of 
     remedial action under paragraph (3).

       ``(ii) Failure to meet deadlines.--If the Agency Head fails 
     to meet the deadlines described in clause (i)(II), additional 
     funds may not be obligated to support expenditures associated 
     with the project until the requirements of this subsection 
     have been fulfilled.
       ``(B) Notification and remedial action based on interim 
     report.--
       ``(i) In general.--If the determination of gross deviation 
     is based on a report submitted under subsection (c)(2), the 
     Secretary shall--

       ``(I) not later than 45 days after the submission of such 
     report, notify the appropriate congressional committees in 
     accordance with paragraph (2); and
       ``(II) not later than 180 days after the submission of such 
     report, ensure the completion of remedial action in 
     accordance with paragraph (3).

       ``(ii) Failure to meet deadlines.--If the Agency Head fails 
     to meet the deadlines described in clause (i)(II), additional 
     funds may not be obligated to support expenditures associated 
     with the project until the requirements of this subsection 
     have been fulfilled.
       ``(f) Additional Requirements for Core IT Investment 
     Project Reports.--
       ``(1) Initial report.--If a report described in subsection 
     (e)(3)(A) has not been submitted for a core IT investment 
     project, the Agency Head, in coordination with the Chief 
     Information Officer and responsible program managers, shall 
     prepare an initial report for inclusion in the first budget 
     submitted to Congress under section 1105(a) of title 31, 
     United States Code, after the designation of a project as a 
     core IT investment project, which includes--
       ``(A) a description of the primary business case and key 
     functional requirements for the project;
       ``(B) an identification and description of any portions of 
     the project that have technical requirements of sufficient 
     clarity that such portions may be feasibly procured under 
     firm, fixed-price contracts;
       ``(C) an independent cost estimate for the project;
       ``(D) certification by the Chief Information Officer that 
     all technical requirements have been reviewed and validated 
     to ensure alignment with the reported business case; and
       ``(E) any changes to the primary business case or key 
     functional requirements which have occurred since project 
     inception.
       ``(2) Quarterly review of business case.--The Agency Head, 
     in coordination with the Chief Information Officer and 
     responsible program managers, shall--
       ``(A) monitor the primary business case and core 
     functionality requirements reported to Congress for 
     designated core IT investment projects; and
       ``(B) if changes to the primary business case or key 
     functional requirements for a core IT investment project 
     occur in any fiscal quarter, submit a report to Congress not 
     later than 7 days after the end of such quarter that details 
     the changes and describes the impact the changes will have on 
     the cost and ultimate effectiveness of the project.
       ``(3) Alternative significant deviation determination.--If 
     the Chief Information Officer determines, subsequent to a 
     change in the primary business case or key functional 
     requirements, that without such change the project would have 
     significantly deviated--
       ``(A) the Chief Information Officer shall notify the Agency 
     Head of the significant deviation; and
       ``(B) the Agency Head shall fulfill the requirements under 
     subsection (d)(2) in accordance with the deadlines under 
     subsection (d)(3).
       ``(4) Alternative gross deviation determination.--If the 
     Chief Information Officer determines, subsequent to a change 
     in the primary business case or key functional requirements, 
     that without such change the project would have grossly 
     deviated--
       ``(A) the Chief Information Officer shall notify the Agency 
     Head of the gross deviation; and
       ``(B) the Agency Head shall fulfill the requirements under 
     subsections (e)(2) and (e)(3) in accordance with subsection 
     (e)(4).''.
       (b) Inclusion in the Budget Submitted to Congress.--Section 
     1105(a) of title 31, United States Code, is amended--
       (1) in the matter preceding paragraph (1), by striking 
     ``include in each budget the following:'' and inserting 
     ``include in each budget--'';
       (2) by redesignating the second paragraph (33) (as added by 
     section 889(a) of Public Law 107-296) as paragraph (35);
       (3) in each of paragraphs (1) through (34), by striking the 
     period at the end and inserting a semicolon;
       (4) in paragraph (35) (as redesignated by paragraph (2)), 
     by striking the period at the end and inserting ``; and''; 
     and
       (5) by adding at the end the following:
       ``(36) the reports prepared under section 11317(f) of title 
     40, United States Code, relating to the core IT investment 
     projects of the agency.''.
       (c) Improvement of Information Technology Acquisition and 
     Development.--Subchapter II of chapter 113 of title 40, 
     United States Code, is amended by adding at the end the 
     following:

     ``SEC. 11319. ACQUISITION AND DEVELOPMENT.

       ``(a) Establishment of Programs.--Not later than 120 days 
     after the date of the enactment of this section, each Agency 
     Head (as defined in section 11317(a) of title 49, United 
     States Code) shall establish a program to improve the 
     information technology (referred to in this section as `IT') 
     processes of the agency overseen by the Agency Head.
       ``(b) Program Requirements.--Each program established 
     pursuant to this section shall include--
       ``(1) a documented process for information technology 
     acquisition planning, requirements development and 
     management, project management and oversight, earned-value 
     management, and risk management;
       ``(2) the development of appropriate metrics for 
     performance measurement of--
       ``(A) processes and development status; and
       ``(B) continuous process improvement;
       ``(3) a process to ensure that key program personnel have 
     an appropriate level of experience or training in the 
     planning, acquisition, execution, management, and oversight 
     of information technology; and
       ``(4) a process to ensure that the applicable department 
     and subcomponents implement and adhere to established 
     processes and requirements relating to the planning, 
     acquisition, execution, management, and oversight of 
     information technology programs and developments.
       ``(c) OMB Guidance.--The Director of the Office of 
     Management and Budget shall--
       ``(1) prescribe uniformly applicable guidance to the 
     administration of all the programs established under 
     subsection (a); and

[[Page 17715]]

       ``(2) take any actions that are necessary to ensure that 
     Federal agencies comply with the guidance.
       ``(d) Annual Report to Congress.--Not later than the last 
     day of February of each year, the Agency Head shall submit a 
     report to Congress that includes--
       ``(1) a detailed summary of the accomplishments of the 
     program established by the Agency Head pursuant to this 
     section;
       ``(2) the status of completeness of implementation of each 
     of the program requirements, and the date each such 
     requirement was deemed to be completed;
       ``(3) the percentage of Federal IT projects covered under 
     the program compared to all of the IT projects of the agency, 
     listed by number of programs and by annual dollars expended;
       ``(4) the identification, listed by name and position, of--
       ``(A) the person assigned responsibility for implementation 
     and management of the program and the percent of such 
     person's time used to carry out such responsibility; and
       ``(B) the person to whom the person described in 
     subparagraph (A) reports;
       ``(5) a detailed breakdown of the sources and uses of the 
     amounts spent by the agency during the previous fiscal year 
     to support the activities of the program;
       ``(6) a copy of any guidance issued under the program and a 
     statement regarding whether each such guidance is mandatory;
       ``(7) the identification of the metrics developed in 
     accordance with subsection (b)(2);
       ``(8) a description of how paragraphs (3) and (4) of 
     subsection (b) have been implemented and any related agency 
     guidance; and
       ``(9) a description of how continuous process improvement 
     has been implemented and the objectives of such guidance.''.
       (d) Clerical Amendments.--The table of sections for chapter 
     113 of title 40, United States Code, is amended--
       (1) by striking the item relating to section 11317 and 
     inserting the following:

``11317. Significant and gross deviations.''; and

       (2) by inserting after the item relating to section 11318 
     the following:

``11319. Acquisition and development.''.

     SEC. 3. IT STRIKE FORCE.

       (a) Purpose.--The Director of the Office of Management of 
     Budget (referred to in this section as the ``Director''), in 
     consultation with the Administrator of the Office of 
     Electronic Government and Information and Technology at the 
     Office of Management and Budget (referred to in this section 
     as the ``E-Gov Administrator''), shall assist agencies in 
     avoiding significant and gross deviations in the cost, 
     schedule, and performance of IT investment projects (as such 
     terms are defined in section 11317(a) of title 40, United 
     States Code).
       (b) IT Strike Force.--
       (1) Establishment.--Not later than 180 days after the date 
     of the enactment of this Act, the E-Gov Administrator shall 
     establish a small group of individuals (referred to in this 
     section as the ``IT Strike Force'') to carry out the purpose 
     described in subsection (a).
       (2) Qualifications.--Individuals selected for the IT Strike 
     Force--
       (A) shall be certified at the Senior/Expert level according 
     to the Federal Acquisition Certification for Program and 
     Project Managers (FAC-P/PM); or
       (B) shall have comparable education, certification, 
     training, and experience to successfully manage high-risk IT 
     investment projects.
       (3) Number.--The Director, in consultation with the E-Gov 
     Administrator, shall determine the number of individuals who 
     will be selected for the IT Strike Force.
       (c) Outside Consultants.--
       (1) Identification.--The E-Gov Administrator shall identify 
     consultants in the private sector who have expert knowledge 
     in IT program management and program management review teams. 
     Not more than 20 percent of such consultants may be formally 
     associated with any 1 of the following types of entities:
       (A) Commercial firms.
       (B) Nonprofit entities.
       (C) Research and development corporations receiving Federal 
     financial assistance.
       (2) Use of consultants.--
       (A) In general.--Consultants identified under paragraph (1) 
     may be used to assist the IT Strike Force in assessing and 
     improving IT investment projects.
       (B) Limitation.--Consultants with a formally established 
     relationship with an organization may not participate in any 
     assessment involving an IT investment project for which such 
     organization is under contract to provide technical support.
       (C) Exception.--The limitation described in subparagraph 
     (B) may not be construed as precluding access to anyone 
     having relevant information helpful to the conduct of the 
     assessment.
       (3) Contracts.--The E-Gov Administrator, in conjunction 
     with the Administrator of the General Services Administration 
     (GSA), may establish competitively bid contracts with 1 or 
     more qualified consultants, independent of any GSA schedule.
       (d) Initial Response to Anticipated Significant or Gross 
     Deviation.--If the E-Gov Administrator determines there is 
     reasonable cause to believe that a major IT investment 
     project is likely to significantly or grossly deviate (as 
     defined in section 11317(a) of title 40, United States Code), 
     including the receipt of inconsistent or missing data, the E-
     Gov Administrator shall carry out the following activities:
       (1) Recommend the assignment of 1 or more members of the IT 
     Strike Force to assess the project in accordance with the 
     scope and time period described in section 11317(c)(1) of 
     title 40, United States Code, beginning not later than 7 days 
     after such recommendation. No member of the Strike Force who 
     is associated with the department or agency whose IT 
     investment project is the subject of the assessment may be 
     assigned to participate in this assessment. Such limitation 
     may not be construed as precluding access to anyone having 
     relevant information helpful to the conduct of the 
     assessment.
       (2) If the E-Gov Administrator determines that 1 or more 
     qualified consultants are needed to support the efforts of 
     the IT Strike Force under paragraph (1), negotiate a contract 
     with the consultant to provide such support during the period 
     in which the IT Strike Force is conducting the assessment 
     described in paragraph (1).
       (3) Ensure that the costs of an assessment under paragraph 
     (1) and the support services of 1 or more consultants under 
     paragraph (2) are paid by the major IT investment project 
     being assessed.
       (4) Monitor the progress made by the IT Strike Force in 
     assessing the project.
       (e) Reduction of Significant or Gross Deviation.--If the E-
     Gov Administrator determines that the assessment conducted 
     under subsection (d) confirms that a major IT investment 
     project is likely to significantly or grossly deviate, the E-
     Gov Administrator shall recommend that the Agency Head (as 
     defined in section 11317(a)(1) of title 40, United States 
     Code) take steps to reduce the deviation, which may include--
       (1) providing training or mentoring to improve the 
     qualifications of the program manager;
       (2) replacing the program manager or other staff;
       (3) supplementing the program management team with Federal 
     Government employees or independent contractors;
       (4) terminating the project; or
       (5) hiring an independent contractor to report directly to 
     senior management and the E-Gov Administrator.
       (f) Reprogramming of Funds.--
       (1) Authorization.--The Director may direct an Agency Head 
     to reprogram amounts which have been appropriated for such 
     agency to pay for an assessment under subsection (d).
       (2) Notification.--An Agency Head who reprograms 
     appropriations under paragraph (1) shall notify the Committee 
     on Appropriations of the Senate and the Committee on 
     Appropriations of the House of Representatives of any such 
     reprogramming.
       (g) Report to Congress.--The Director shall include in the 
     annual Report to Congress on the Benefits of E-Government 
     Initiatives a detailed summary of the composition and 
     activities of the IT Strike Force, including--
       (1) the number and qualifications of individuals on the IT 
     Strike Force;
       (2) a description of the IT investment projects that the IT 
     Strike Force has worked during the previous fiscal year;
       (3) the major issues that necessitated the involvement of 
     the IT Strike Force to assist agencies with assessing and 
     managing IT investment projects and whether such issues were 
     satisfactorily resolved;
       (4) if the issues referred to in paragraph (3) were not 
     satisfactorily resolved, the issues still needed to be 
     resolved and the Agency Head's plan for resolving such 
     issues;
       (5) a detailed breakdown of the sources and uses of the 
     amounts spent by the Office of Management and Budget and 
     other Federal agencies during the previous fiscal year to 
     support the activities of the IT Strike Force; and
       (6) a determination of whether the IT Strike Force has been 
     effective in reducing the amount of IT investment projects 
     that deviate or significantly deviate.

  Ms. COLLINS. Mr. President, I am pleased to join Senator Carper in 
introducing a bill that will improve agency performance and 
Congressional oversight of major Federal information-technology, IT 
projects.
  The well-publicized cost and performance problems with the Census 
Bureau's handheld computers for the 2010 Census--with its troubling 
implications for the next House reapportionment and for the allocation 
of Federal funds--represent only the most recent and conspicuous 
failure in a long trail of troubles that also includes critical IT 
projects like the FBI's virtual case file initiative. Former IBM 
executive and Carnegie-Mellon University technology expert Watts 
Humphrey makes the point succinctly: ``Software failures are common, 
and the biggest projects fail most often.''

[[Page 17716]]

  During the 108th Congress, the Committee on Governmental Affairs 
investigated the botched automated recordkeeping project for the 
Federal employees' Thrift Savings Plan TSP. This project was terminated 
in 2001 after a 4-year contract produced $36 million in waste that was 
charged to the accounts of TSP participants and beneficiaries. A second 
vendor needed an additional $33 million to bring the system online, 
years overdue and costing more than double its original estimate.
  In a 2004 letter from the Federal Retirement Thrift Investment Board 
to the Governmental Affairs Committee, the board characterized the 
project as ``ill-fated `` and acknowledged the importance of careful 
planning, task definition, communication, proper personnel, and risk 
management--all of which were lacking on that project.
  Large IT project failures have cost U.S. taxpayers billions of 
dollars in wasted expenditures. The waste is troubling, but even more 
troubling is the fact that when Federal IT projects fail, they can 
undermine the Government's ability to defend the Nation, enforce its 
laws, or deliver critical services to citizens. Again and again, we 
have seen IT project failures grounded in poor planning, ill-defined 
and shifting requirements, undisclosed difficulties, poor risk 
management, and lax monitoring of performance.
  Unfortunately, as the Government Accountability Office, GAO, tells us 
in a new report, Federal IT projects still fall short in their use of 
effective oversight techniques to monitor development and to spot signs 
of possible trouble.
  The GAO reports that the Federal Government will spend over $70 
billion in fiscal year 2008 on IT projects. Most of that spending is 
concentrated in two dozen agencies that have 778 major projects 
underway. These Federal entities range from Cabinet departments like 
Commerce, Defense, and Veterans Affairs, to agencies like NASA, the 
Office of Personnel Management, and the Agency for International 
Development.
  The GAO observes that ``Effectively managing projects involves 
pulling together essential cost, schedule, and performance goals in a 
meaningful, coherent fashion so that managers have an accurate view of 
the program's development status.'' This set of goals becomes the 
project ``baseline.''
  When the GAO conducted a study of a random sample of those major 
Federal IT projects, however, they found that 85--nearly half the 
sample--had been ``rebaselined.'' Eighteen of those projects have been 
rebaselined three or more times. For example, the Department of Defense 
Advanced Field Artillery Tactical Data System has been rebaselined four 
times; a Veterans Affairs Health Administration Center project has been 
rebaselined six times.
  Rebaselining can reflect funding changes, revisions in project scope 
or goals, and other perfectly reasonable project modifications. But as 
the GAO notes, ``[rebaselining] can also be used to mask cost overruns 
and schedule delays.'' All major Federal agencies have rebaselining 
policies, but the GAO concludes that they are not comprehensive and 
that ``none of the policies are fully consistent with best practices.''
  The bill that Senator Carper and I are introducing will go far toward 
addressing the weaknesses identified by the GAO and will reduce the 
risks that important Federal IT projects will drag on far beyond 
deadlines, fail to deliver intended capabilities, or waste taxpayers' 
money. We are pleased to have Senators Lieberman, Coleman, and 
McCaskill join us as cosponsors in this effort.
  Our bill will improve both agency and Congressional oversight of 
large Federal IT projects. For all major investments, the bill requires 
agencies to track the earned value management index, a key cost and 
performance measure, and to alert Congress should that measure fall 
below a defined threshold.
  The bill requires additional reports to Congress as well as specific 
corrective actions should those same indicators continue to worsen. 
Further, because the bill's performance thresholds are based on 
original cost baselines, rebaselining can no longer serve as a tactic 
to hide troubled projects. If severe shortfalls remain uncorrected, the 
bill can even suspend commitment of funds to a project until the agency 
takes the required corrective actions.
  Our bill does not envision making Congress a micromanager of Federal 
projects--especially in so complex a field as information technology. 
But it will ensure that, for these important investments, agencies will 
be required to track key performance metrics, inform Congress of 
shortfalls in those metrics, and provide Congress with followup 
reports, independent cost estimates, and analyses of project 
alternatives when the original projects have run off course.
  The bill also provides that each covered agency identify to Congress 
their top mission-critical projects. Those ``core investments'' would 
be subject to additional upfront planning, reporting, and performance 
monitoring requirements. This will help ensure that agencies apply 
extra vigilance to these projects at the planning stage and not just 
when execution begins.
  In addition to tracking cost and schedule slippage, agencies making 
core IT investments must provide a complete ``business case'' that 
outlines the need for the project and its associated costs and 
schedules; produce a rigorous, independent, third-party estimate of the 
project's full, life-cycle costs; have the agency CIO certify the 
project's functional requirements; track these functional requirements; 
and report to Congress any changes in functional requirements, 
including whether those changes concealed a major cost increase.
  To help agencies deliver IT projects on time and on budget, the bill 
also provides two new support mechanisms.
  First, agency heads would be required to establish an internal IT-
management program, subject to OMB guidelines, to improve project 
planning, requirements development, and management of earned value and 
risk.
  Second, the Director of OMB and its E-Gov Administrator will be 
required to establish an IT strike force of experts and independent 
consultants who can be assigned to help agencies reform troubled 
projects. In addition, the E-Gov Administrator can recommend that 
agency heads mentor or replace an IT project manager, reinforce the 
management team, terminate the project, or hire an independent 
contractor to report on the project.
  These and other provisions will help improve project planning, avoid 
problems in project execution, provide early alerts when problems 
arise, and promote prompt corrective action.
  In projects where difficulties persist, our bill provides strong 
remedies. For projects that exhibit a performance shortfall of 20 
percent or more, the agency head involved must not only alert Congress 
but also provide a summary of a concrete plan of action to correct the 
problem. If the shortfall exceeds 40 percent, agencies have 6 months to 
take required remedial steps or else suspend further project spending 
until those steps are completed.
  If the provisions of this bill had been in force during the past 
decade, early indicators of trouble and prompt warnings to Congress 
might have helped prevent much of the added cost, decreased 
functionality, and increased anxiety we now see surrounding the 
handheld computers that were intended to streamline the 2010 Census. 
The additional scrutiny of plans and costs required by this bill might 
have saved some of the billions wasted on other IT projects that 
ultimately landed on high-risk lists.
  Our bill creates a measured, methodical plan to ensure that Federal 
agencies apply best practices to IT projects, supply timely reports of 
problems, and devise corrective actions sooner rather than later. Our 
Government and our citizens will benefit from these improvements. I 
urge every Senator to support this constructive and bipartisan bill.
                                 ______
                                 
      By Mr. DURBIN (for himself, Mr. Gregg, Mr. Dodd, Mr. Burr, Mr. 
        Harkin, and Mr. Alexander):
  S. 3385. A bill to amend the Federal Food, Drug, and Cosmetic Act 
with respect to the safety of the food supply;

[[Page 17717]]

to the Committee on Health, Education, Labor, and Pensions.
  Mr. DURBIN. Mr. President, today I rise to introduce the FDA Food 
Safety Modernization Act.
  Yesterday, the Food and Drug Administration, which is responsible for 
ensuring the safety of about 80 percent of our food supply, announced 
that it was one step closer to pinpointing the source of the current 
Salmonella Saintpaul outbreak. At first we were told tomatoes were the 
culprit. Then tomatoes were exonerated and jalapeno peppers in south 
Texas were to blame. Now FDA is saying it has discovered a strain of 
the bacteria in Serrano peppers from a farm in Tamaulipas, Mexico.
  In the meantime, over three months have passed since the first 
reported case. At least 255 people have been hospitalized and two have 
died because of the outbreak. The tomato industry faces tens of 
millions of dollars in losses and a loss in consumer confidence. Some 
estimate that the economic impact may be as much as $100 to $500 
million.
  Over the last couple of years we have seen news headlines about E. 
coli in spinach, pet food spiked with melamine, Salmonella-tainted 
peanut butter, and now contaminated peppers. It's clear that these are 
not isolated cases but the product of a food safety system that is 
outdated, under-funded, and overwhelmed. Some of our most important 
food safety statutes date back to the early 1900s. Standards have not 
been updated. The budgets of the agencies that act as watchdogs over 
the system have eroded. We import more of our food than ever but we 
don't have the systems in place to make sure this food is as safe as it 
could be. All these shortcomings put consumers at unnecessary risk.
  FDA is struggling to keep up. There are holes in its ability to 
protect consumers from unsafe foods. For example, the Consumer 
Protection Safety Commission, the EPA, and even FDA with respect to 
infant formula all have recall authority. But FDA is unable to pull any 
other contaminated food off the shelf when the company that makes it 
will not. FDA can suggest a recall and most of the time companies 
comply. But there are always bad actors and sometimes companies choose 
not to recall their products because they are afraid of upsetting 
consumer confidence or losing market share. In this case, FDA's hands 
are tied.
  These are significant gaps in our food safety system that need to be 
addressed. We can and should do better.
  That is why I am pleased to introduce The FDA Food Safety 
Modernization Act, along with Senators Gregg, Dodd, Burr, Harkin, and 
Alexander. This bill is a comprehensive, bipartisan effort that 
addresses some of the weaknesses in FDA's authorities and resources and 
updates food safety standards to make important improvements in our 
current food safety system. The bill includes a number of important 
preventive measures, such as increasing the frequency of FDA 
inspections of food facilities, especially high-risk facilities; 
directing FDA to set standards for fresh produce; and requiring the 
food industry to control hazards in the food supply chain. It also 
enables FDA to more effectively respond to an outbreak by giving the 
agency new authorities to order recalls, shut down tainted facilities, 
and access records to track and trace food.
  The food industry is one of the most important sectors of our 
economy, generating more than $1 trillion annually in economic activity 
and employing millions of American workers. Food is also a deeply 
personal experience, a part of our daily lives and our traditions and 
culture. For far too long Congress has gone without a comprehensive 
review of our food safety laws. As long as we continue to do nothing, 
we will pay the price for an outdated and ill-equipped food safety 
system.
  I thank Senators Gregg, Dodd, Burr, Harkin, and Alexander for joining 
me in crafting this bill and urge my colleagues to support.
  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. 3385

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; REFERENCES; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``FDA Food 
     Safety Modernization Act''.
       (b) References.--Except as otherwise specified, whenever in 
     this Act an amendment is expressed in terms of an amendment 
     to a section or other provision, the reference shall be 
     considered to be made to a section or other provision of the 
     Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).
       (c) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; references; table of contents.

                    TITLE I--GENERAL FOOD PROVISIONS

Sec. 101. Inspections of records.
Sec. 102. Registration of food facilities.
Sec. 103. Mandatory recall authority.
Sec. 104. Hazard analysis and risk-based preventive controls.
Sec. 105. Performance standards.
Sec. 106. Standards for produce safety.
Sec. 107. Targeting of inspection resources for domestic facilities, 
              foreign facilities, and ports of entry; annual report.
Sec. 108. Administrative detention of food.
Sec. 109. Protection against intentional adulteration.
Sec. 110. National agriculture and food defense strategy.
Sec. 111. Food and Agriculture Coordinating Councils.
Sec. 112. Decontamination and disposal standards and plans.
Sec. 113. Authority to collect fees.
Sec. 114. Final rule for prevention of Salmonella Enteritidis in shell 
              eggs during production.
Sec. 115. Sanitary transportation of food.
Sec. 116. Food allergy and anaphylaxis management.

                  TITLE II--DETECTION AND SURVEILLANCE

Sec. 201. Recognition of laboratory accreditation for analyses of 
              foods.
Sec. 202. Integrated consortium of laboratory networks.
Sec. 203. Building domestic capacity.
Sec. 204. Enhancing traceback and recordkeeping.
Sec. 205. Surveillance.

            TITLE III--SPECIFIC PROVISIONS FOR IMPORTED FOOD

Sec. 301. Foreign supplier verification program.
Sec. 302. Voluntary qualified importer program.
Sec. 303. Authority to require import certifications for food.
Sec. 304. Prior notice of imported food shipments.
Sec. 305. Review of a regulatory authority of a foreign country.
Sec. 306. Building capacity of foreign governments with respect to 
              food.
Sec. 307. Inspection of foreign food facilities.
Sec. 308. Accreditation of qualified third-party auditors.
Sec. 309. Foreign offices of the Food and Drug Administration.
Sec. 310. Funding for food safety.
Sec. 311. Jurisdiction; authorities.

                    TITLE I--GENERAL FOOD PROVISIONS

     SEC. 101. INSPECTIONS OF RECORDS.

       Section 414(a) (21 U.S.C. 350c(a)) is amended--
       (1) by striking the heading and all follows through ``of 
     food is'' and inserting the following: ``Records 
     Inspection.--
       ``(1) Adulterated food.--If the Secretary has a reasonable 
     belief that an article of food, and any other article of food 
     that the Secretary reasonably believes is likely to be 
     affected in a similar manner, is'';
       (2) by inserting ``, and to any other article of food that 
     the Secretary reasonably believes is likely to be affected in 
     a similar manner,'' after ``relating to such article'';
       (3) by striking the last sentence; and
       (4) by inserting at the end the following:
       ``(2) Serious adverse health consequences.--If the 
     Secretary believes that there is a reasonable probability 
     that the use of or exposure to an article of food, and any 
     other article of food that the Secretary reasonably believes 
     is likely to be affected in a similar manner, will cause 
     serious adverse health consequences or death to humans or 
     animals, each person (excluding farms and restaurants) who 
     manufactures, processes, packs, distributes, receives, holds, 
     or imports such article shall, at the request of an officer 
     or employee duly designated by the Secretary, permit such 
     officer or employee, upon presentation of appropriate 
     credentials and a written notice to such person, at 
     reasonable times and within reasonable limits and in a 
     reasonable manner, to have access to and copy all records 
     relating to such article and to any other article of food 
     that the Secretary reasonably believes is likely to be 
     affected in a similar manner, that are needed to assist the 
     Secretary in determining whether there is a reasonable 
     probability that the use of or exposure to the food will 
     cause serious adverse health consequences or death to humans 
     or animals.

[[Page 17718]]

       ``(3) Application.--The requirement under paragraphs (1) 
     and (2) applies to all records relating to the manufacture, 
     processing, packing, distribution, receipt, holding, or 
     importation of such article maintained by or on behalf of 
     such person in any format (including paper and electronic 
     formats) and at any location.''.

     SEC. 102. REGISTRATION OF FOOD FACILITIES.

       (a) Updating of Food Category Regulations; Biennial 
     Registration Renewal.--Section 415(a) (21 U.S.C. 350d(a)) is 
     amended--
       (1) in paragraph (2), by--
       (A) striking ``conducts business and'' and inserting 
     ``conducts business, the e-mail address for the contact 
     person of the facility, and''; and
       (B) inserting ``, or any other food categories as 
     determined appropriate by the Secretary, including by 
     guidance)'' after ``Code of Federal Regulations'';
       (2) by redesignating paragraphs (3) and (4) as paragraphs 
     (4) and (5), respectively; and
       (3) by inserting after paragraph (2) the following:
       ``(3) Biennial registration renewal.--During the period 
     beginning on October 1 and ending on December 31 of each 
     even-numbered year, a registrant that has submitted a 
     registration under paragraph (1) shall submit to the 
     Secretary a renewal registration containing the information 
     described in paragraph (2). The Secretary shall provide for 
     an abbreviated registration renewal process for any 
     registrant that has not had any changes to such information 
     since the registrant submitted the preceding registration or 
     registration renewal for the facility involved.''.
       (b) Suspension of Registration.--
       (1) In general.--Section 415 (21 U.S.C. 350d) is amended--
       (A) in subsection (a)(2), by inserting after the first 
     sentence the following: ``The registration shall contain a 
     consent to permit the Secretary to inspect such facility.'';
       (B) by redesignating subsections (b) and (c) as subsections 
     (c) and (d), respectively; and
       (C) by inserting after subsection (a) the following:
       ``(b) Suspension of Registration.--
       ``(1) In general.--If the Secretary determines that food 
     manufactured, processed, packed, or held by a facility 
     registered under this section has a reasonable probability of 
     causing serious adverse health consequences or death to 
     humans or animals, the Secretary may by order suspend the 
     registration of the facility under this section in accordance 
     with this subsection.
       ``(2) Hearing on suspension.--The Secretary shall provide 
     the registrant subject to an order under paragraph (1) with 
     an opportunity for an informal hearing, to be held as soon as 
     possible but not later than 2 days after the issuance of the 
     order, on the actions required for reinstatement of 
     registration and why the registration that is subject to 
     suspension should be reinstated. The Secretary may reinstate 
     a registration if the Secretary determines, based on evidence 
     presented, that adequate grounds do not exist to continue the 
     suspension of the registration.
       ``(3) Post-hearing corrective action plan; vacating of 
     order.--
       ``(A) Corrective action plan.--If, after providing 
     opportunity for an informal hearing under paragraph (2), the 
     Secretary determines that the suspension of registration 
     remains necessary, the Secretary shall require the registrant 
     to submit a corrective action plan to demonstrate how the 
     registrant plans to correct the conditions found by the 
     Secretary. The Secretary shall review such plan in a timely 
     manner.
       ``(B) Vacating of order.--Upon a determination by the 
     Secretary that adequate grounds do not exist to continue the 
     suspension actions required by the order, or that such 
     actions should be modified, the Secretary shall vacate the 
     order or modify the order.
       ``(4) Effect of suspension.--If the registration of a 
     facility is suspended under this subsection, such facility 
     shall not import food or offer to import food into the United 
     States, or otherwise introduce food into interstate commerce 
     in the United States.
       ``(5) Regulations.--The Secretary shall promulgate 
     regulations that describe the standards officials will use in 
     making a determination to suspend a registration, and the 
     format such officials will use to explain to the registrant 
     the conditions found at the facility.
       ``(6) No delegation.--The authority conferred by this 
     subsection to issue an order to suspend a registration or 
     vacate an order of suspension shall not be delegated to any 
     officer or employee other than the Commissioner.''.
       (2) Imported food.--Section 801(l) (21 U.S.C. 381(l)) is 
     amended by inserting ``(or for which a registration has been 
     suspended under such section)'' after ``section 415''.
       (c) Conforming Amendments.--
       (1) Section 301(d) (21 U.S.C. 331(d)) is amended by 
     inserting ``415,'' after ``404,''.
       (2) Section 415(d), as redesignated by subsection (b), is 
     amended by adding at the end before the period ``for a 
     facility to be registered, except with respect to the 
     reinstatement of a registration that is suspended under 
     subsection (b)''.

     SEC. 103. MANDATORY RECALL AUTHORITY.

       (a) In General.--Chapter IV (21 U.S.C. 341 et seq.) is 
     amended by adding at the end the following:

     ``SEC. 418. MANDATORY RECALL AUTHORITY.

       ``(a) Voluntary Procedures.--If the Secretary determines, 
     based on information gathered through the reportable food 
     registry under section 417 or through any other means, that 
     there is a reasonable probability that an article of food 
     (other than infant formula) is adulterated under section 402 
     or misbranded under section 403(w) and the use of or exposure 
     to such article will cause serious adverse health 
     consequences or death to humans or animals, the Secretary 
     shall provide the responsible party (as defined in section 
     417) with an opportunity to cease distribution and recall 
     such article.
       ``(b) Prehearing Order To Cease Distribution and Give 
     Notice.--If the responsible party refuses to or does not 
     voluntarily cease distribution or recall such article within 
     the time and in the manner prescribed by the Secretary (if so 
     prescribed), the Secretary may, by order require, as the 
     Secretary deems necessary, such person to--
       ``(1) immediately cease distribution of such article; or
       ``(2) immediately notify all persons--
       ``(A) manufacturing, processing, packing, transporting, 
     distributing, receiving, holding, or importing and selling 
     such article; and
       ``(B) to which such article has been distributed, 
     transported, or sold, to immediately cease distribution of 
     such article.
       ``(c) Hearing on Order.--The Secretary shall provide the 
     responsible party subject to an order under subsection (b) 
     with an opportunity for an informal hearing, to be held as 
     soon as possible but not later than 2 days after the issuance 
     of the order, on the actions required by the order and on why 
     the article that is the subject of the order should not be 
     recalled.
       ``(d) Post-Hearing Recall Order and Modification of 
     Order.--
       ``(1) Amendment of order.--If, after providing opportunity 
     for an informal hearing under subsection (c), the Secretary 
     determines that removal of the article from commerce is 
     necessary, the Secretary shall, as appropriate--
       ``(A) amend the order to require recall of such article or 
     other appropriate action;
       ``(B) specify a timetable in which the recall shall occur;
       ``(C) require periodic reports to the Secretary describing 
     the progress of the recall; and
       ``(D) provide notice to consumers to whom such article was, 
     or may have been, distributed.
       ``(2) Vacating of order.--If, after such hearing, the 
     Secretary determines that adequate grounds do not exist to 
     continue the actions required by the order, or that such 
     actions should be modified, the Secretary shall vacate the 
     order or modify the order.
       ``(e) Cooperation and Consultation.--The Secretary shall 
     work with State and local public health officials in carrying 
     out this section, as appropriate.
       ``(f) Public Notification.--In conducting a recall under 
     this section, the Secretary shall ensure that a press release 
     is published regarding the recall, as well as alerts and 
     public notices, as appropriate, in order to provide 
     notification of the recall to consumers and retailers to whom 
     such article was, or may have been, distributed. The 
     notification shall include, at a minimum--
       ``(1) the name of the article of food subject to the 
     recall; and
       ``(2) a description of the risk associated with such 
     article.
       ``(g) No Delegation.--The authority conferred by this 
     section to order a recall or vacate a recall order shall not 
     be delegated to any officer or employee other than the 
     Commissioner.
       ``(h) Effect.--Nothing in this section shall affect the 
     authority of the Secretary to request or participate in a 
     voluntary recall.''.
       (b) Civil Penalty.--Section 303(f)(2)(A) (21 U.S.C. 
     333(f)(2)(A)) is amended by inserting ``or any person who 
     does not comply with a recall order under section 418'' after 
     ``section 402(a)(2)(B)''.
       (c) Prohibited Acts.--Section 301 (21 U.S.C. 331 et seq.) 
     is amended by adding at the end the following:
       ``(oo) The refusal or failure to follow an order under 
     section 418.''.

     SEC. 104. HAZARD ANALYSIS AND RISK-BASED PREVENTIVE CONTROLS.

       (a) In General.--Chapter IV (21 U.S.C. 341 et seq.), as 
     amended by section 103, is amended by adding at the end the 
     following:

     ``SEC. 419. HAZARD ANALYSIS AND RISK-BASED PREVENTIVE 
                   CONTROLS.

       ``(a) In General.--Each owner, operator, or agent in charge 
     of a facility shall, in accordance with this section, 
     evaluate the hazards that could affect food manufactured, 
     processed, packed, or held by such facility, identify and 
     implement preventive controls to significantly minimize or 
     prevent their occurrence and provide assurances that such 
     food is not adulterated under section 402 or misbranded under 
     section 403(w), monitor the performance of those controls, 
     and maintain records of this monitoring as a matter of 
     routine practice.
       ``(b) Hazard Analysis.--The owner, operator, or agent in 
     charge of a facility shall--

[[Page 17719]]

       ``(1) identify and evaluate known or reasonably foreseeable 
     hazards that may be associated with the facility, including--
       ``(A) biological, chemical, physical, and radiological 
     hazards, natural toxins, pesticides, drug residues, 
     decomposition, parasites, allergens, and unapproved food and 
     color additives; and
       ``(B) hazards that occur naturally, may be unintentionally 
     introduced, or may be intentionally introduced, including by 
     acts of terrorism; and
       ``(2) develop a written analysis of the hazards.
       ``(c) Preventive Controls.--The owner, operator, or agent 
     in charge of a facility shall identify and implement 
     preventive controls, including at critical control points, if 
     any, to provide assurances that--
       ``(1) hazards identified in the hazard analysis conducted 
     under subsection (b) will be significantly minimized or 
     prevented; and
       ``(2) the food manufactured, processed, packed, or held by 
     such facility will not be adulterated under section 402 or 
     misbranded under section 403(w).
       ``(d) Monitoring of Effectiveness.--The owner, operator, or 
     agent in charge of a facility shall monitor the effectiveness 
     of the preventive controls implemented under subsection (c) 
     to provide assurances that the outcomes described in 
     subsection (c) shall be achieved.
       ``(e) Corrective Actions.--The owner, operator, or agent in 
     charge of a facility shall establish procedures that a 
     facility will implement if the preventive controls 
     implemented under subsection (c) are found to be ineffective 
     through monitoring under subsection (d).
       ``(f) Verification.--The owner, operator, or agent in 
     charge of a facility shall verify that--
       ``(1) the preventive controls implemented under subsection 
     (c) are adequate to control the hazards identified under 
     subsection (b);
       ``(2) the owner, operator, or agent is conducting 
     monitoring in accordance with subsection (d);
       ``(3) the owner, operator, or agent is making appropriate 
     decisions about corrective actions taken under subsection 
     (e); and
       ``(4) there is documented, periodic reanalysis of the plan 
     under subsection (i) to ensure that the plan is still 
     relevant to the raw materials, as well as to conditions and 
     processes in the facility, and to new and emerging threats.
       ``(g) Recordkeeping.--The owner, operator, or agent in 
     charge of a facility shall maintain, for not less than 2 
     years, records documenting the monitoring of the preventive 
     controls implemented under subsection (c), instances of 
     nonconformance material to food safety, instances when 
     corrective actions were implemented, and the efficacy of 
     preventive controls and corrective actions.
       ``(h) Written Plan and Documentation.--Each owner, 
     operator, or agent in charge of a facility shall prepare a 
     written plan that documents and describes the procedures used 
     by the facility to comply with the requirements of this 
     section, including analyzing the hazards under subsection (b) 
     and identifying the preventive controls adopted to address 
     those hazards under subsection (c). Such written plan, 
     together with documentation that the plan is being 
     implemented, shall be made promptly available to a duly 
     authorized representative of the Secretary upon oral or 
     written request.
       ``(i) Requirement To Reanalyze.--Each owner, operator, or 
     agent in charge of a facility shall conduct a reanalysis 
     under subsection (b) whenever a significant change is made in 
     the activities conducted at a facility operated by such 
     owner, operator, or agent if the change creates a reasonable 
     potential for a new hazard or a significant increase in a 
     previously identified hazard or not less frequently than once 
     every 3 years, whichever is earlier. Such reanalysis shall be 
     completed and additional preventive controls needed to 
     address the hazard identified, if any, shall be implemented 
     before the change in activities at the facility is commenced. 
     Such owner, operator, or agent shall revise the written plan 
     required under subsection (h) if such a significant change is 
     made or document the basis for the conclusion that no 
     additional or revised preventive controls are needed. The 
     Secretary may require a reanalysis under this section to 
     respond to new hazards and developments in scientific 
     understanding.
       ``(j) Deemed Compliance of Seafood, Juice, and Low-Acid 
     Canned Food Facilities in Compliance With HACCP.--An owner, 
     operator, or agent in charge of a facility required to comply 
     with 1 of the following standards and regulations with 
     respect to such facility shall be deemed to be in compliance 
     with this section, with respect to such facility:
       ``(1) The Seafood Hazard Analysis Critical Control Points 
     Program of the Food and Drug Administration.
       ``(2) The Juice Hazard Analysis Critical Control Points 
     Program of the Food and Drug Administration.
       ``(3) The Thermally Processed Low-Acid Foods Packaged in 
     Hermetically Sealed Containers standards of the Food and Drug 
     Administration (or any successor standards).
       ``(k) Exception for Facilities in Compliance With Section 
     420.--This section shall not apply to a facility that is 
     subject to section 420.
       ``(l) Authority With Respect to Certain Facilities.--The 
     Secretary may, by regulation, exempt or modify the 
     requirements for compliance under this section with respect 
     to facilities that are solely engaged in the storage of 
     packaged foods that are not exposed to the environment.
       ``(m) Definitions.--For purposes of this section:
       ``(1) Critical control point.--The term `critical control 
     point' means a point, step, or procedure in a food process at 
     which control can be applied and is essential to prevent or 
     eliminate a food safety hazard or reduce it to an acceptable 
     level.
       ``(2) Facility.--The term `facility' means a domestic 
     facility or a foreign facility that is required to register 
     under section 415.
       ``(3) Preventive controls.--The term `preventive controls' 
     means those risk-based, reasonably appropriate procedures, 
     practices, and processes that a person knowledgeable about 
     the safe manufacturing, processing, packing, or holding of 
     food would have employed to significantly minimize or prevent 
     the hazards identified under the hazard analysis conducted 
     under subsection (a) and that are consistent with the current 
     scientific understanding of safe food manufacturing, 
     processing, packing, or holding at the time of the analysis. 
     Those procedures, practices, and processes may include the 
     following:
       ``(A) Sanitation procedures for food contact surfaces and 
     utensils and food-contact surfaces of equipment.
       ``(B) Supervisor, manager, and employee hygiene training.
       ``(C) An environmental monitoring program to verify the 
     effectiveness of pathogen controls.
       ``(D) An allergen control program.
       ``(E) A recall contingency plan.
       ``(F) Good Manufacturing Practices (GMPs).
       ``(G) Supplier verification activities.''.
       (b) Regulations.--
       (1) In general.--The Secretary of Health and Human Services 
     (referred to in this Act as the ``Secretary'') shall 
     promulgate regulations to establish science-based minimum 
     standards for conducting a hazard analysis, documenting 
     hazards, implementing preventive controls, and documenting 
     the implementation of the preventive controls under section 
     419 of the Federal Food, Drug, and Cosmetic Act (as added by 
     subsection (a)).
       (2) Content.--The regulations promulgated under paragraph 
     (1) shall provide sufficient flexibility to be applicable in 
     all situations, including in the operations of small 
     businesses.
       (3) Rule of construction.--Nothing in this subsection shall 
     be construed to provide the Secretary with the authority to 
     apply specific technologies, practices, or critical controls 
     to an individual facility.
       (4) Review.--In promulgating the regulations under 
     paragraph (1), the Secretary shall review regulatory hazard 
     analysis and preventive control programs in existence on the 
     date of enactment of this Act to ensure that the program 
     under such section 419 is consistent, to the extent 
     practicable, with applicable internationally recognized 
     standards in existence on such date.
       (c) Guidance Document.--The Secretary shall issue a 
     guidance document related to hazard analysis and preventive 
     controls required under section 419 of the Federal Food, 
     Drug, and Cosmetic Act (as added by subsection (a)).
       (d) Prohibited Acts.--Section 301 (21 U.S.C. 331), as 
     amended by section 103, is amended by adding at the end the 
     following:
       ``(pp) The operation of a facility that manufacturers, 
     processes, packs, or holds food for sale in the United States 
     if the owner, operator, or agent in charge of such facility 
     is not in compliance with section 419.''.
       (e) No Effect on HACCP Authorities.--Nothing in the 
     amendments made by this section limits the authority of the 
     Secretary under the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 301 et seq.) or the Public Health Service Act (42 
     U.S.C. 201 et seq.) to revise, issue, or enforce product and 
     category-specific regulations, such as the Seafood Hazard 
     Analysis Critical Controls Points Program, the Juice Hazard 
     Analysis Critical Control Program, and the Thermally 
     Processed Low-Acid Foods Packaged in Hermetically Sealed 
     Containers standards.
       (f) Effective Date.--
       (1) General rule.--The amendments made by this section 
     shall take effect 18 months after the date of enactment of 
     this Act.
       (2) Exceptions.--Notwithstanding paragraph (1)--
       (A) the amendments made by this section shall apply to a 
     small business (as defined by the Secretary) after the date 
     that is 2 years after the date of enactment of this Act; and
       (B) the amendments made by this section shall apply to a 
     very small business (as defined by the Secretary) after the 
     date that is 3 years after the date of enactment of this Act.

     SEC. 105. PERFORMANCE STANDARDS.

       The Secretary shall, not less frequently than every 2 
     years, review and evaluate epidemiological data and other 
     appropriate sources of information to determine the most 
     significant food-borne contaminants and the most significant 
     resulting hazards,

[[Page 17720]]

     and may issue science-based guidance documents, action 
     levels, and regulations to help prevent adulteration under 
     section 402 of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 342). Such standards shall be applicable to products 
     and product classes and shall not be written to be facility-
     specific.

     SEC. 106. STANDARDS FOR PRODUCE SAFETY.

       (a) In General.--Chapter IV (21 U.S.C. 341 et seq.), as 
     amended by section 104, is amended by adding at the end the 
     following:

     ``SEC. 420. STANDARDS FOR PRODUCE SAFETY.

       ``(a) Proposed Rulemaking.--
       ``(1) In general.--Not later than 1 year after the date of 
     enactment of the FDA Food Safety Modernization Act, the 
     Secretary, in consultation with the Secretary of Agriculture 
     and representatives of State departments of agriculture, 
     shall publish a notice of proposed rulemaking to establish 
     science-based minimum standards for the safe production and 
     harvesting of those types of fruits and vegetables that are 
     raw agricultural commodities for which the Secretary has 
     determined that such standards minimize the risk of serious 
     adverse health consequences or death.
       ``(2) Public input.--During the comment period on the 
     notice of proposed rulemaking under paragraph (1), the 
     Secretary shall conduct not less than 3 public meetings in 
     diverse geographical areas of the United States to provide 
     persons in different regions an opportunity to comment.
       ``(3) Content.--The proposed rulemaking under paragraph (1) 
     shall--
       ``(A) include, with respect to growing, harvesting, 
     sorting, and storage operations, minimum standards related to 
     fertilizer use, nutrients, hygiene, packaging, temperature 
     controls, animal encroachment, and water; and
       ``(B) consider hazards that occur naturally, may be 
     unintentionally introduced, or may be intentionally 
     introduced, including by acts of terrorism.
       ``(4) Prioritization.--The Secretary shall prioritize the 
     implementation of the regulations for specific fruits and 
     vegetables that are raw agricultural commodities that have 
     been associated with food-borne illness outbreaks.
       ``(b) Final Regulation.--
       ``(1) In general.--Not later than 1 year after the close of 
     the comment period for the proposed rulemaking under 
     subsection (a), the Secretary shall adopt a final regulation 
     to provide for minimum standards for those types of fruits 
     and vegetables that are raw agricultural commodities for 
     which the Secretary has determined that such standards 
     minimize the risk of serious adverse health consequences or 
     death.
       ``(2) Final regulation.--The final regulation shall--
       ``(A) provide a reasonable period of time for compliance, 
     taking into account the needs of small businesses for 
     additional time to comply;
       ``(B) provide for coordination of education and enforcement 
     activities by State and local officials, as designated by the 
     Governors of the respective States; and
       ``(C) include a description of the variance process under 
     subsection (c) and the types of permissible variances the 
     Secretary may grant.
       ``(c) Criteria.--
       ``(1) In general.--The regulations adopted under subsection 
     (b) shall--
       ``(A) set forth those procedures, processes, and practices 
     as the Secretary determines to be reasonably necessary to 
     prevent the introduction of known or reasonably foreseeable 
     biological, chemical, and physical hazards, including hazards 
     that occur naturally, may be unintentionally introduced, or 
     may be intentionally introduced, including by acts of 
     terrorism, into fruits and vegetables that are raw 
     agricultural commodities and to provide reasonable assurances 
     that the produce is not adulterated under section 402; and
       ``(B) permit States and foreign countries from which food 
     is imported into the United States, subject to paragraph (2), 
     to request from the Secretary variances from the requirements 
     of the regulations, where upon approval of the Secretary, the 
     variance is considered permissible under the requirements of 
     the regulations adopted under subsection (b)(1)(C) and where 
     the State or foreign country determines that the variance is 
     necessary in light of local growing conditions and that the 
     procedures, processes, and practices to be followed under the 
     variance are reasonably likely to ensure that the produce is 
     not adulterated under section 402 to the same extent as the 
     requirements of the regulation adopted under subsection (b).
       ``(2) Approval of variances.--A State or foreign country 
     from which food is imported into the United States shall 
     request a variance from the Secretary in writing. The 
     Secretary may deny such a request as not reasonably likely to 
     ensure that the produce is not adulterated under section 402 
     to the same extent as the requirements of the regulation 
     adopted under subsection (b).
       ``(d) Enforcement.--The Secretary may coordinate with the 
     Secretary of Agriculture and shall contract and coordinate 
     with the agency or department designated by the Governor of 
     each State to perform activities to ensure compliance with 
     this section.
       ``(e) Guidance.--Not later than 1 year after the date of 
     enactment of the FDA Food Safety Modernization Act, the 
     Secretary shall publish, after consultation with the 
     Secretary of Agriculture and representatives of State 
     departments of agriculture, updated good agricultural 
     practices and guidance for the safe production and harvesting 
     of specific types of fresh produce.
       ``(f) Exception for Facilities in Compliance With Section 
     419.--This section shall not apply to a facility that is 
     subject to section 419.''.
       (b) Prohibited Acts.--Section 301 (21 U.S.C. 331), as 
     amended by section 104, is amended by adding at the end the 
     following:
       ``(qq) The production or harvesting of produce not in 
     accordance with minimum standards as provided by regulation 
     under section 420(b) or a variance issued under section 
     420(c).''.
       (c) No Effect on HACCP Authorities.--Nothing in the 
     amendments made by this section limits the authority of the 
     Secretary under the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 301 et seq.) or the Public Health Service Act (42 
     U.S.C. 201 et seq.) to revise, issue, or enforce product and 
     category-specific regulations, such as the Seafood Hazard 
     Analysis Critical Controls Points Program, the Juice Hazard 
     Analysis Critical Control Program, and the Thermally 
     Processed Low-Acid Foods Packaged in Hermetically Sealed 
     Containers standards.

     SEC. 107. TARGETING OF INSPECTION RESOURCES FOR DOMESTIC 
                   FACILITIES, FOREIGN FACILITIES, AND PORTS OF 
                   ENTRY; ANNUAL REPORT.

       (a) Targeting of Inspection Resources for Domestic 
     Facilities, Foreign Facilities, and Ports of Entry.--Chapter 
     IV (21 U.S.C. 341 et seq.), as amended by section 106, is 
     amended by adding at the end the following:

     ``SEC. 421. TARGETING OF INSPECTION RESOURCES FOR DOMESTIC 
                   FACILITIES, FOREIGN FACILITIES, AND PORTS OF 
                   ENTRY; ANNUAL REPORT.

       ``(a) Identification and Inspection of Facilities.--
       ``(1) Identification.--The Secretary shall allocate 
     resources to inspect facilities according to the risk profile 
     of the facilities, which shall be based on the following 
     factors:
       ``(A) The risk profile of the food manufactured, processed, 
     packed, or held at the facility.
       ``(B) The facility's history of food recalls, outbreaks, 
     and violations of food safety standards.
       ``(C) The rigor of the facility's hazard analysis and risk-
     based preventive controls.
       ``(D) Whether the food manufactured, processed, packed, 
     handled, prepared, treated, distributed, or stored at the 
     facility meets the criteria for priority under section 
     801(h)(1).
       ``(E) Whether the facility has received a certificate as 
     described in section 809(b).
       ``(F) Any other criteria deemed necessary and appropriate 
     by the Secretary for purposes of allocating inspection 
     resources.
       ``(2) Inspections.--The Secretary shall increase the 
     frequency of inspection of all facilities, and shall increase 
     the frequency of inspection of facilities identified under 
     paragraph (1) as high-risk facilities such that--
       ``(A) for the first 2 years after the date of enactment of 
     the FDA Food Safety Modernization Act, each high-risk 
     facility is inspected not less often than once every 2 years; 
     and
       ``(B) for each succeeding year, each high-risk facility is 
     inspected not less often than once each year.
       ``(b) Identification and Inspection at Ports of Entry.--The 
     Secretary, in consultation with the Secretary of Homeland 
     Security, shall allocate resources to inspect articles of 
     food imported into the United States according to the risk 
     profile of the article of food, which shall be based on the 
     following factors:
       ``(1) The risk profile of the food imported.
       ``(2) The risk profile of the countries of origin and 
     countries of transport of the food imported.
       ``(3) The history of food recalls, outbreaks, and 
     violations of food safety standards of the food importer.
       ``(4) The rigor of the foreign supplier verification 
     program under section 805.
       ``(5) Whether the food importer participates in the 
     Voluntary Qualified Importer Program under section 806.
       ``(6) Whether the food meets the criteria for priority 
     under section 801(h)(1).
       ``(7) Whether the food is from a facility that has received 
     a certificate as described in section 809(b).
       ``(8) Any other criteria deemed appropriate by the 
     Secretary for purposes of allocating inspection resources.
       ``(c) Coordination.--The Secretary shall improve 
     coordination and cooperation with the Secretary of 
     Agriculture to target food inspection resources.
       ``(d) Facility.--For purposes of this section, the term 
     `facility' means a domestic facility or a foreign facility 
     that is required to register under section 415.''.
       (b) Annual Report.--Section 903 (21 U.S.C. 393) is amended 
     by adding at the end the following:
       ``(h) Annual Report Regarding Food.--Not later than 
     February 1 of each year, the Secretary shall submit to 
     Congress a report regarding--

[[Page 17721]]

       ``(1) information about food facilities including--
       ``(A) the appropriations used to inspect facilities 
     registered pursuant to section 415 in the previous fiscal 
     year;
       ``(B) the average cost of both a non-high-risk food 
     facility inspection and a high-risk food facility inspection, 
     if such a difference exists, in the previous fiscal year;
       ``(C) the number of domestic facilities and the number of 
     foreign facilities registered pursuant to section 415 that 
     the Secretary inspected in the previous fiscal year;
       ``(D) the number of domestic facilities and the number of 
     foreign facilities registered pursuant to section 415 that 
     the Secretary did not inspect in the previous fiscal year;
       ``(E) the number of high-risk facilities identified 
     pursuant to section 421 that the Secretary inspected in the 
     previous fiscal year; and
       ``(F) the number of high-risk facilities identified 
     pursuant to section 421 that the Secretary did not inspect in 
     the previous fiscal year;
       ``(2) information about food imports including--
       ``(A) the number of lines of food imported into the United 
     States that the Secretary physically inspected or sampled in 
     the previous fiscal year;
       ``(B) the number of lines of food imported into the United 
     States that the Secretary did not physically inspect or 
     sample in the previous fiscal year; and
       ``(C) the average cost of physically inspecting or sampling 
     a food line subject to this Act that is imported or offered 
     for import into the United States; and
       ``(3) information on the foreign offices established under 
     section 309 of the FDA Food Safety Modernization Act 
     including--
       ``(A) the number of foreign offices established; and
       ``(B) the number of personnel permanently stationed in each 
     foreign office.
       ``(i) Public Availability of Annual Food Reports.--The 
     Secretary shall make the reports required under subsection 
     (h) available to the public on the Internet Web site of the 
     Food and Drug Administration.''.

     SEC. 108. ADMINISTRATIVE DETENTION OF FOOD.

       (a) In General.--Section 304(h)(1)(A) (21 U.S.C. 
     334(h)(1)(A)) is amended by--
       (1) striking ``credible evidence or information 
     indicating'' and inserting ``reason to believe''; and
       (2) striking ``presents a threat of serious adverse health 
     consequences or death to humans or animals'' and inserting 
     ``is adulterated or misbranded''.
       (b) Regulations.--Not later than 120 days after the date of 
     enactment of this Act, the Secretary shall issue an interim 
     final rule amending subpart K of part 1 of title 21, Code of 
     Federal Regulations, to implement the amendment made by this 
     section.
       (c) Effective Date.--The amendment made by this section 
     shall take effect 180 days after the date of enactment of 
     this Act.

     SEC. 109. PROTECTION AGAINST INTENTIONAL ADULTERATION.

       (a) In General.--Chapter IV (21 U.S.C. 341 et seq.), as 
     amended by section 107, is amended by adding at the end the 
     following:

     ``SEC. 422. PROTECTION AGAINST INTENTIONAL ADULTERATION.

       ``(a) In General.--Not later than 24 months after the date 
     of enactment of the FDA Food Safety Modernization Act, the 
     Secretary, in consultation with the Secretary of Homeland 
     Security and the Secretary of Agriculture, shall promulgate 
     regulations to protect against the intentional adulteration 
     of food subject to this Act.
       ``(b) Content of Regulations.--Regulations under subsection 
     (a) shall only apply to food--
       ``(1) for which the Secretary has identified clear 
     vulnerabilities (such as short shelf-life or susceptibility 
     to intentional contamination at critical control points);
       ``(2) in bulk or batch form, prior to being packaged for 
     the final consumer; and
       ``(3) for which there is a high risk of intentional 
     contamination, as determined by the Secretary, that could 
     cause serious adverse health consequences or death to humans 
     or animals.
       ``(c) Determinations.--In making the determination under 
     subsection (b)(3), the Secretary shall--
       ``(1) conduct vulnerability assessments of the food system;
       ``(2) consider the best available understanding of 
     uncertainties, risks, costs, and benefits associated with 
     guarding against intentional adulteration at vulnerable 
     points; and
       ``(3) determine the types of science-based mitigation 
     strategies or measures that are necessary to protect against 
     the intentional adulteration of food.
       ``(d) Exception.--This section shall not apply to food 
     produced on farms, except for milk.
       ``(e) Definition.--For purposes of this section, the term 
     `farm' has the meaning given that term in section 1.227 of 
     title 21, Code of Federal Regulations (or any successor 
     regulation).''.
       (b) Guidance Documents.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary, in consultation with 
     the Secretary of Homeland Security and the Secretary of 
     Agriculture, shall issue guidance documents related to 
     protection against the intentional adulteration of food, 
     including mitigation strategies or measures to guard against 
     such adulteration as required under section 422 of the 
     Federal Food, Drug, and Cosmetic Act, as added by subsection 
     (a).
       (2) Content.--The guidance document issued under paragraph 
     (1) shall--
       (A) specify how a person shall assess whether the person is 
     required to implement mitigation strategies or measures 
     intended to protect against the intentional adulteration of 
     food;
       (B) specify appropriate science-based mitigation strategies 
     or measures to prepare and protect the food supply chain at 
     specific vulnerable points, as appropriate;
       (C) include a model assessment for a person to use under 
     subparagraph (A);
       (D) include examples of mitigation strategies or measures 
     described in subparagraph (B); and
       (E) specify situations in which the examples of mitigation 
     strategies or measures described in subparagraph (D) are 
     appropriate.
       (3) Limited distribution.--In the interest of national 
     security, the Secretary, in consultation with the Secretary 
     of Homeland Security, may determine the time and manner in 
     which the guidance documents issued under paragraph (1) are 
     made public, including by releasing such documents to 
     targeted audiences.
       (c) Periodic Review.--The Secretary shall periodically 
     review and, as appropriate, update the regulation under 
     subsection (a) and the guidance documents under subsection 
     (b).
       (d) Prohibited Acts.--Section 301 (21 U.S.C. 331 et seq.), 
     as amended by section 106, is amended by adding at the end 
     the following:
       ``(rr) The failure to comply with section 422.''.

     SEC. 110. NATIONAL AGRICULTURE AND FOOD DEFENSE STRATEGY.

       (a) Development and Submission of Strategy.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary of Health and Human 
     Services and the Secretary of Agriculture, in coordination 
     with the Secretary of Homeland Security, shall prepare and 
     submit to the relevant committees of Congress, and make 
     publicly available on the Internet Web site of the Department 
     of Health and Human Services and the Department of 
     Agriculture, the National Agriculture and Food Defense 
     Strategy.
       (2) Implementation plan.--The strategy shall include an 
     implementation plan for use by the Secretaries described 
     under paragraph (1) in carrying out the strategy.
       (3) Research.--The strategy shall include a coordinated 
     research agenda for use by the Secretaries described under 
     paragraph (1) in conducting research to support the goals and 
     activities described in paragraphs (1) and (2) of subsection 
     (b).
       (4) Revisions.--Not later than 4 years after the date on 
     which the strategy is submitted to the relevant committees of 
     Congress under paragraph (1), and not less frequently than 
     every 4 years thereafter, the Secretary of Health and Human 
     Services and the Secretary of Agriculture, in coordination 
     with the Secretary of Homeland Security, shall revise and 
     submit to the relevant committees of Congress the strategy.
       (5) Consistency with existing plans.--The strategy 
     described in paragraph (1) shall be consistent with--
       (A) the National Incident Management System;
       (B) the National Response Framework;
       (C) the National Infrastructure Protection Plan;
       (D) the National Preparedness Goals; and
       (E) other relevant national strategies.
       (b) Components.--
       (1) In general.--The strategy shall include a description 
     of the process to be used by the Department of Health and 
     Human Services, the Department of Agriculture, and the 
     Department of Homeland Security--
       (A) to achieve each goal described in paragraph (2); and
       (B) to evaluate the progress made by Federal, State, local, 
     and tribal governments towards the achievement of each goal 
     described in paragraph (2).
       (2) Goals.--The strategy shall include a description of the 
     process to be used by the Department of Health and Human 
     Services, the Department of Agriculture, and the Department 
     of Homeland Security to achieve the following goals:
       (A) Preparedness goal.--Enhance the preparedness of the 
     agriculture and food system by--
       (i) conducting vulnerability assessments of the agriculture 
     and food system;
       (ii) mitigating vulnerabilities of the system;
       (iii) improving communication and training relating to the 
     system;
       (iv) developing and conducting exercises to test 
     decontamination and disposal plans;
       (v) developing modeling tools to improve event consequence 
     assessment and decision support; and
       (vi) preparing risk communication tools and enhancing 
     public awareness through outreach.
       (B) Detection goal.--Improve agriculture and food system 
     detection capabilities by--

[[Page 17722]]

       (i) identifying contamination in food products at the 
     earliest possible time; and
       (ii) conducting surveillance to prevent the spread of 
     diseases.
       (C) Emergency response goal.--Ensure an efficient response 
     to agriculture and food emergencies by--
       (i) immediately investigating animal disease outbreaks and 
     suspected food contamination;
       (ii) preventing additional human illnesses;
       (iii) organizing, training, and equipping animal, plant, 
     and food emergency response teams of--

       (I) the Federal Government; and
       (II) State, local, and tribal governments;

       (iv) designing, developing, and evaluating training and 
     exercises carried out under agriculture and food defense 
     plans; and
       (v) ensuring consistent and organized risk communication to 
     the public by--

       (I) the Federal Government;
       (II) State, local, and tribal governments; and
       (III) the private sector.

       (D) Recovery goal.--Secure agriculture and food production 
     after an agriculture or food emergency by--
       (i) working with the private sector to develop business 
     recovery plans to rapidly resume agriculture and food 
     production;
       (ii) conducting exercises of the plans described in 
     subparagraph (C) with the goal of long-term recovery results;
       (iii) rapidly removing, and effectively disposing of--

       (I) contaminated agriculture and food products; and
       (II) infected plants and animals; and

       (iv) decontaminating and restoring areas affected by an 
     agriculture or food emergency.

     SEC. 111. FOOD AND AGRICULTURE COORDINATING COUNCILS.

       The Secretary of Homeland Security, in consultation with 
     the Secretary of Health and Human Services and the Secretary 
     of Agriculture, shall within 180 days of enactment of this 
     Act, and annually thereafter, submit to the relevant 
     committees of Congress, and make publicly available on the 
     Internet Web site of the Department of Homeland Security, a 
     report on the activities of the Food and Agriculture 
     Government Coordinating Council and the Food and Agriculture 
     Sector Coordinating Council, including the progress of such 
     Councils on--
       (1) facilitating partnerships between public and private 
     entities to help unify and enhance the protection of the 
     agriculture and food system of the United States;
       (2) providing for the regular and timely interchange of 
     information between each council relating to the security of 
     the agriculture and food system (including intelligence 
     information);
       (3) identifying best practices and methods for improving 
     the coordination among Federal, State, local, and private 
     sector preparedness and response plans for agriculture and 
     food defense; and
       (4) recommending methods by which to protect the economy 
     and the public health of the United States from the effects 
     of--
       (A) animal or plant disease outbreaks;
       (B) food contamination; and
       (C) natural disasters affecting agriculture and food.

     SEC. 112. DECONTAMINATION AND DISPOSAL STANDARDS AND PLANS.

       (a) In General.--The Administrator of the Environmental 
     Protection Agency (referred to in this section as the 
     ``Administrator''), in coordination with the Secretary of 
     Health and Human Services, Secretary of Homeland Security, 
     and Secretary of Agriculture, shall provide support for, and 
     technical assistance to, State, local, and tribal governments 
     in preparing for, assessing, decontaminating, and recovering 
     from an agriculture or food emergency.
       (b) Development of Standards.--In carrying out subsection 
     (a), the Administrator, in coordination with the Secretary of 
     Health and Human Services, Secretary of Homeland Security, 
     Secretary of Agriculture, and State, local, and tribal 
     governments, shall develop and disseminate specific standards 
     and protocols to undertake clean-up, clearance, and recovery 
     activities following the decontamination and disposal of 
     specific threat agents and foreign animal diseases.
       (c) Development of Model Plans.--In carrying out subsection 
     (a), the Administrator, the Secretary of Health and Human 
     Services, and the Secretary of Agriculture shall jointly 
     develop and disseminate model plans for--
       (1) the decontamination of individuals, equipment, and 
     facilities following an intentional contamination of 
     agriculture or food; and
       (2) the disposal of large quantities of animals, plants, or 
     food products that have been infected or contaminated by 
     specific threat agents and foreign animal diseases.
       (d) Exercises.--In carrying out subsection (a), the 
     Administrator, in coordination with the entities described 
     under subsection (b), shall conduct exercises at least 
     annually to evaluate and identify weaknesses in the 
     decontamination and disposal model plans described in 
     subsection (c). Such exercises shall be carried out, to the 
     maximum extent practicable, as part of the national exercise 
     program under section 648(b)(1) of the Post-Katrina Emergency 
     Management Reform Act of 2006 (6 U.S.C. 748(b)(1)).
       (e) Modifications.--Based on the exercises described in 
     subsection (d), the Administrator, in coordination with the 
     entities described in subsection (b), shall review and modify 
     as necessary the plans described in subsection (c) not less 
     frequently than biennially.
       (f) Prioritization.--The Administrator, in coordination 
     with the entities described in subsection (b), shall develop 
     standards and plans under subsections (b) and (c) in an 
     identified order of priority that takes into account--
       (1) highest-risk biological, chemical, and radiological 
     threat agents;
       (2) agents that could cause the greatest economic 
     devastation to the agriculture and food system; and
       (3) agents that are most difficult to clean or remediate.

     SEC. 113. AUTHORITY TO COLLECT FEES.

       (a) Fees for Reinspection, Recall, and Importation 
     Activities.--Subchapter C of chapter VII (21 U.S.C. 379f et 
     seq.) is amended by inserting after section 740 the 
     following:

                     ``PART 5--FEES RELATED TO FOOD

     ``SEC. 740A. AUTHORITY TO COLLECT AND USE FEES.

       ``(a) In General.--
       ``(1) Purpose and authority.--For fiscal year 2009 and each 
     subsequent fiscal year, the Secretary shall, in accordance 
     with this section, assess and collect fees from--
       ``(A) domestic facilities required to register under 
     section 415, to cover reinspection-related costs for each 
     such year;
       ``(B) domestic facilities required to register under 
     section 415, to cover food recall activities performed by the 
     Secretary, including technical assistance, follow-up 
     effectiveness checks, and public notifications, for each such 
     year;
       ``(C) importers required to register under section 415, to 
     cover the administrative costs of participating in the 
     voluntary qualified importer program under section 806 for 
     each such year; and
       ``(D) importers, to cover reinspection-related costs at 
     ports of entry for each such year.
       ``(2) Definitions.--For purposes of this section--
       ``(A) the term `reinspection' means 1 or more inspections 
     conducted under section 704 of this Act subsequent to an 
     inspection conducted under such provision which identified 
     noncompliance materially related to a food safety requirement 
     of this Act, specifically to determine whether compliance has 
     been achieved to the Secretary's satisfaction; and
       ``(B) the term `reinspection-related costs' means all 
     expenses, including administrative expenses, incurred in 
     connection with--
       ``(i) arranging, conducting, and evaluating the results of 
     reinspections; and
       ``(ii) assessing and collecting reinspection fees under 
     this section.
       ``(b) Establishment of Fees.--
       ``(1) In general.--Subject to subsections (c) and (d), the 
     Secretary shall establish the fees to be collected under this 
     section for each fiscal year specified in subsection (a)(1), 
     based on the methodology described under paragraph (2), and 
     shall publish such fees in a Federal Register notice not 
     later than 60 days before the start of each such year.
       ``(2) Fee methodology.--
       ``(A) Fees.--Fees amounts established for collection--
       ``(i) under subparagraph (A) of subsection (a)(1) for a 
     fiscal year shall be based on the Secretary's estimate of 100 
     percent of the costs of the reinspection-related activities 
     (including by type or level of reinspection activity, as the 
     Secretary determines applicable) described in such 
     subparagraph (A) for such year;
       ``(ii) under subparagraph (B) of subsection (a)(1) for a 
     fiscal year shall be based on the Secretary's estimate of 100 
     percent of the costs of the activities described in such 
     subparagraph (B) for such year;
       ``(iii) under subparagraph (C) of subsection (a)(1) for a 
     fiscal year shall be based on the Secretary's estimate of 100 
     percent of the costs of the activities described in such 
     subparagraph (C) for such year; and
       ``(iv) under subparagraph (D) of subsection (a)(1) for a 
     fiscal year shall be based on the Secretary's estimate of 100 
     percent of the costs of the activities described in such 
     subparagraph (D) for such year.
       ``(B) Other considerations.--In establishing the fee 
     amounts for a fiscal year, the Secretary shall provide for 
     the crediting of fees from the previous year to the next year 
     if the Secretary overestimated the amount of fees needed to 
     carry out such activities, and consider the need to account 
     for any adjustment of fees and such other factors as the 
     Secretary determines appropriate.
       ``(3) Compliance with international agreements.--Nothing in 
     this section shall be construed to authorize the assessment 
     of any fee inconsistent with the agreement establishing the 
     World Trade Organization or any other treaty or international 
     agreement to which the United States is a party.
       ``(c) Limitations.--
       ``(1) In general.--Fees under subsection (a) shall be 
     refunded for a fiscal year beginning after fiscal year 2009 
     unless appropriations for the Center for Food Safety and 
     Applied Nutrition and the Center for Veterinary Medicine and 
     related activities of the Office of Regulatory Affairs at the 
     Food and Drug

[[Page 17723]]

     Administration for such fiscal year (excluding the amount of 
     fees appropriated for such fiscal year) are equal to or 
     greater than the amount of appropriations for the Center for 
     Food Safety and Applied Nutrition and the Center for 
     Veterinary Medicine and related activities of the Office of 
     Regulatory Affairs at the Food and Drug Administration for 
     the preceding fiscal year (excluding the amount of fees 
     appropriated for such fiscal year) multiplied by 1 plus 4.5 
     percent.
       ``(2) Authority.--If the Secretary does not assess fees 
     under subsection (a) during any portion of a fiscal year 
     because of paragraph (1) and if at a later date in such 
     fiscal year the Secretary may assess such fees, the Secretary 
     may assess and collect such fees, without any modification in 
     the rate, under subsection (a), notwithstanding the 
     provisions of subsection (a) relating to the date fees are to 
     be paid.
       ``(3) Limitation on amount of certain fees.--
     Notwithstanding any other provision of this section, in no 
     case may the amount of the fees collected for a fiscal year--
       ``(A) under subparagraph (B) of subsection (a)(1) exceed 
     $20,000,000; and
       ``(B) under subparagraphs (A) and (D) of subsection (a)(1) 
     exceed $25,000,000 combined.
       ``(d) Crediting and Availability of Fees.--Fees authorized 
     under subsection (a) shall be collected and available for 
     obligation only to the extent and in the amount provided in 
     appropriations Acts. Such fees are authorized to remain 
     available until expended. Such sums as may be necessary may 
     be transferred from the Food and Drug Administration salaries 
     and expenses account without fiscal year limitation to such 
     appropriation account for salaries and expenses with such 
     fiscal year limitation. The sums transferred shall be 
     available solely for the purpose of paying the operating 
     expenses of the Food and Drug Administration employees and 
     contractors performing activities associated with these food 
     safety fees.
       ``(e) Collection of Fees.--
       ``(1) In general.--The Secretary shall specify in the 
     Federal Register notice described in subsection (b)(1) the 
     time and manner in which fees assessed under this section 
     shall be collected.
       ``(2) Collection of unpaid fees.--In any case where the 
     Secretary does not receive payment of a fee assessed under 
     this section within 30 days after it is due, such fee shall 
     be treated as a claim of the United States Government subject 
     to provisions of subchapter II of chapter 37 of title 31, 
     United States Code.
       ``(f) Annual Report to Congress.--Not later than 120 days 
     after each fiscal year for which fees are assessed under this 
     section, the Secretary shall submit a report to the Committee 
     on Health, Education, Labor, and Pensions of the United 
     States Senate and the Committee on Energy and Commerce of the 
     United States House of Representatives, to include a 
     description of fees assessed and collected for each such year 
     and a summary description of the entities paying such fees 
     and the types of business in which such entities engage.
       ``(g) Authorization of Appropriations.--For fiscal year 
     2009 and each fiscal year thereafter, there is authorized to 
     be appropriated for fees under this section an amount equal 
     to the total revenue amount determined under subsection (b) 
     for the fiscal year, as adjusted or otherwise affected under 
     the other provisions of this section.''.
       (b) Export Certification Fees for Foods and Animal Feed.--
       (1) Authority for export certifications for food, including 
     animal feed.--Section 801(e)(4)(A) (21 U.S.C. 381(e)(4)(A)) 
     is amended--
       (A) in the matter preceding clause (i), by striking ``a 
     drug'' and inserting ``a food, drug'';
       (B) in clause (i) by striking ``exported drug'' and 
     inserting ``exported food, drug''; and
       (C) in clause (ii) by striking ``the drug'' each place it 
     appears and inserting ``the food, drug''.
       (2) Clarification of certification.--Section 801(e)(4) (21 
     U.S.C. 381(e)(4)) is amended by inserting after subparagraph 
     (B) the following new subparagraph:
       ``(C) For purposes of this paragraph, a certification by 
     the Secretary shall be made on such basis, and in such form 
     (including a publicly available listing) as the Secretary 
     determines appropriate.''.

     SEC. 114. FINAL RULE FOR PREVENTION OF SALMONELLA ENTERITIDIS 
                   IN SHELL EGGS DURING PRODUCTION.

       Not later than 1 year after the date of enactment of this 
     Act, the Secretary shall issue a final rule based on the 
     proposed rule issued by the Commissioner of Food and Drugs 
     entitled ``Prevention of  Salmonella Enteritidis in Shell 
     Eggs During Production'', 69 Fed. Reg. 56824, (September 22, 
     2004).

     SEC. 115. SANITARY TRANSPORTATION OF FOOD.

       Not later than 1 year after the date of enactment of this 
     Act, the Secretary shall promulgate regulations described in 
     section 416(b) of the Federal Food, Drug, and Cosmetic Act 
     (21 U.S.C. 350e(b)).

     SEC. 116. FOOD ALLERGY AND ANAPHYLAXIS MANAGEMENT.

       (a) Definitions.--In this section:
       (1) Early childhood education program.--The term ``early 
     childhood education program'' means--
       (A) a Head Start program or an Early Head Start program 
     carried out under the Head Start Act (42 U.S.C. 9831 et 
     seq.);
       (B) a State licensed or regulated child care program or 
     school; or
       (C) a State prekindergarten program that serves children 
     from birth through kindergarten.
       (2) ESEA definitions.--The terms ``local educational 
     agency'', ``secondary school'', ``elementary school'', and 
     ``parent'' have the meanings given the terms in section 9101 
     of the Elementary and Secondary Education Act of 1965 (20 
     U.S.C. 7801).
       (3) School.--The term ``school'' includes public--
       (A) kindergartens;
       (B) elementary schools; and
       (C) secondary schools.
       (b) Establishment of Voluntary Food Allergy and Anaphylaxis 
     Management Guidelines.--
       (1) Establishment.--
       (A) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary, in consultation with 
     the Secretary of Education, shall--
       (i) develop guidelines to be used on a voluntary basis to 
     develop plans for individuals to manage the risk of food 
     allergy and anaphylaxis in schools and early childhood 
     education programs; and
       (ii) make such guidelines available to local educational 
     agencies, schools, early childhood education programs, and 
     other interested entities and individuals to be implemented 
     on a voluntary basis only.
       (B) Applicability of ferpa.--Each plan described in 
     subparagraph (A) that is developed for an individual shall be 
     considered an education record for the purpose of the Family 
     Educational Rights and Privacy Act of 1974 (20 U.S.C. 1232g).
       (2) Contents.--The voluntary guidelines developed by the 
     Secretary under paragraph (1) shall address each of the 
     following, and may be updated as the Secretary deems 
     necessary:
       (A) Parental obligation to provide the school or early 
     childhood education program, prior to the start of every 
     school year, with--
       (i) documentation from their child's physician or nurse--

       (I) supporting a diagnosis of food allergy and the risk of 
     anaphylaxis;

       (II) identifying any food to which the child is allergic;
       (III) describing, if appropriate, any prior history of 
     anaphylaxis;
       (IV) listing any medication prescribed for the child for 
     the treatment of anaphylaxis;
       (V) detailing emergency treatment procedures in the event 
     of a reaction;
       (VI) listing the signs and symptoms of a reaction; and
       (VII) assessing the child's readiness for self-
     administration of prescription medication; and

       (ii) a list of substitute meals that may be offered to the 
     child by school or early childhood education program food 
     service personnel.
       (B) The creation and maintenance of an individual health 
     care plan for food allergy management, in consultation with 
     the parent, tailored to the needs of each child with a 
     documented risk for anaphylaxis, including any procedures for 
     the self-administration of medication by such children in 
     instances where--
       (i) the children are capable of self-administering 
     medication; and
       (ii) such administration is not prohibited by State law.
       (C) Communication strategies between individual schools or 
     early childhood education programs and local providers of 
     emergency medical services, including appropriate 
     instructions for emergency medical response.
       (D) Strategies to reduce the risk of exposure to 
     anaphylactic causative agents in classrooms and common school 
     or early childhood education program areas such as 
     cafeterias.
       (E) The dissemination of general information on life-
     threatening food allergies to school or early childhood 
     education program staff, parents, and children.
       (F) Food allergy management training of school or early 
     childhood education program personnel who regularly come into 
     contact with children with life-threatening food allergies.
       (G) The authorization and training of school or early 
     childhood education program personnel to administer 
     epinephrine when the nurse is not immediately available.
       (H) The timely accessibility of epinephrine by school or 
     early childhood education program personnel when the nurse is 
     not immediately available.
       (I) The creation of a plan contained in each individual 
     health care plan for food allergy management that addresses 
     the appropriate response to an incident of anaphylaxis of a 
     child while such child is engaged in extracurricular programs 
     of a school or early childhood education program, such as 
     non-academic outings and field trips, before- and after-
     school programs or before- and after-early child education 
     program programs, and school-sponsored or early childhood 
     education program-sponsored programs held on weekends.

[[Page 17724]]

       (J) Maintenance of information for each administration of 
     epinephrine to a child at risk for anaphylaxis and prompt 
     notification to parents.
       (K) Other elements the Secretary deems necessary for the 
     management of food allergies and anaphylaxis in schools and 
     early childhood education programs.
       (3) Relation to state law.--Nothing in this section or the 
     guidelines developed by the Secretary under paragraph (1) 
     shall be construed to preempt State law, including any State 
     law regarding whether students at risk for anaphylaxis may 
     self-administer medication.
       (c) School-Based Food Allergy Management Grants.--
       (1) In general.--The Secretary may award grants to local 
     educational agencies to assist such agencies with 
     implementing voluntary food allergy and anaphylaxis 
     management guidelines described in subsection (b).
       (2) Application.--
       (A) In general.--To be eligible to receive a grant under 
     this subsection, a local educational agency shall submit an 
     application to the Secretary at such time, in such manner, 
     and including such information as the Secretary may 
     reasonably require.
       (B) Contents.--Each application submitted under 
     subparagraph (A) shall include--
       (i) an assurance that the local educational agency has 
     developed plans in accordance with the food allergy and 
     anaphylaxis management guidelines described in subsection 
     (b);
       (ii) a description of the activities to be funded by the 
     grant in carrying out the food allergy and anaphylaxis 
     management guidelines, including--

       (I) how the guidelines will be carried out at individual 
     schools served by the local educational agency;
       (II) how the local educational agency will inform parents 
     and students of the guidelines in place;
       (III) how school nurses, teachers, administrators, and 
     other school-based staff will be made aware of, and given 
     training on, when applicable, the guidelines in place; and
       (IV) any other activities that the Secretary determines 
     appropriate;

       (iii) an itemization of how grant funds received under this 
     subsection will be expended;
       (iv) a description of how adoption of the guidelines and 
     implementation of grant activities will be monitored; and
       (v) an agreement by the local educational agency to report 
     information required by the Secretary to conduct evaluations 
     under this subsection.
       (3) Use of funds.--Each local educational agency that 
     receives a grant under this subsection may use the grant 
     funds for the following:
       (A) Purchase of materials and supplies, including limited 
     medical supplies such as epinephrine and disposable wet 
     wipes, to support carrying out the food allergy and 
     anaphylaxis management guidelines described in subsection 
     (b).
       (B) In partnership with local health departments, school 
     nurse, teacher, and personnel training for food allergy 
     management.
       (C) Programs that educate students as to the presence of, 
     and policies and procedures in place related to, food 
     allergies and anaphylactic shock.
       (D) Outreach to parents.
       (E) Any other activities consistent with the guidelines 
     described in subsection (b).
       (4) Duration of awards.--The Secretary may award grants 
     under this subsection for a period of not more than 2 years. 
     In the event the Secretary conducts a program evaluation 
     under this subsection, funding in the second year of the 
     grant, where applicable, shall be contingent on a successful 
     program evaluation by the Secretary after the first year.
       (5) Limitation on grant funding.--The Secretary may not 
     provide grant funding to a local educational agency under 
     this subsection after such local educational agency has 
     received 2 years of grant funding under this subsection.
       (6) Maximum amount of annual awards.--A grant awarded under 
     this subsection may not be made in an amount that is more 
     than $50,000 annually.
       (7) Priority.--In awarding grants under this subsection, 
     the Secretary shall give priority to local educational 
     agencies with the highest percentages of children who are 
     counted under section 1124(c) of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 6333(c)).
       (8) Matching funds.--
       (A) In general.--The Secretary may not award a grant under 
     this subsection unless the local educational agency agrees 
     that, with respect to the costs to be incurred by such local 
     educational agency in carrying out the grant activities, the 
     local educational agency shall make available (directly or 
     through donations from public or private entities) non-
     Federal funds toward such costs in an amount equal to not 
     less than 25 percent of the amount of the grant.
       (B) Determination of amount of non-federal contribution.--
     Non-Federal funds required under subparagraph (A) may be cash 
     or in kind, including plant, equipment, or services. Amounts 
     provided by the Federal Government, and any portion of any 
     service subsidized by the Federal Government, may not be 
     included in determining the amount of such non-Federal funds.
       (9) Administrative funds.--A local educational agency that 
     receives a grant under this subsection may use not more than 
     2 percent of the grant amount for administrative costs 
     related to carrying out this subsection.
       (10) Progress and evaluations.--At the completion of the 
     grant period referred to in paragraph (4), a local 
     educational agency shall provide the Secretary with 
     information on how grant funds were spent and the status of 
     implementation of the food allergy and anaphylaxis management 
     guidelines described in subsection (b).
       (11) Supplement, not supplant.--Grant funds received under 
     this subsection shall be used to supplement, and not 
     supplant, non-Federal funds and any other Federal funds 
     available to carry out the activities described in this 
     subsection.
       (12) Authorization of appropriations.--There is authorized 
     to be appropriated to carry out this subsection $30,000,000 
     for fiscal year 2009 and such sums as may be necessary for 
     each of the 4 succeeding fiscal years.
       (d) Voluntary Nature of Guidelines.--
       (1) In general.--The food allergy and anaphylaxis 
     management guidelines developed by the Secretary under 
     subsection (b) are voluntary. Nothing in this section or the 
     guidelines developed by the Secretary under subsection (b) 
     shall be construed to require a local educational agency to 
     implement such guidelines.
       (2) Exception.--Notwithstanding paragraph (1), the 
     Secretary may enforce an agreement by a local educational 
     agency to implement food allergy and anaphylaxis management 
     guidelines as a condition of the receipt of a grant under 
     subsection (c).

                  TITLE II--DETECTION AND SURVEILLANCE

     SEC. 201. RECOGNITION OF LABORATORY ACCREDITATION FOR 
                   ANALYSES OF FOODS.

       (a) In General.--Chapter IV (21 U.S.C. 341 et seq.), as 
     amended by section 109, is amended by adding at the end the 
     following:

     ``SEC. 423. RECOGNITION OF LABORATORY ACCREDITATION FOR 
                   ANALYSES OF FOODS.

       ``(a) Recognition of Laboratory Accreditation.--
       ``(1) In general.--Not later than 2 years after the date of 
     enactment of the FDA Food Safety Modernization Act, the 
     Secretary shall--
       ``(A) provide for the recognition of accreditation bodies 
     that accredit laboratories, including laboratories run and 
     operated by a State or locality, with a demonstrated 
     capability to conduct analytical testing of food products; 
     and
       ``(B) establish a publicly available registry of 
     accreditation bodies, including the name of, contact 
     information for, and other information deemed necessary by 
     the Secretary about such bodies.
       ``(2) Model accreditation standards.--The Secretary shall 
     develop model standards that an accreditation body shall 
     require laboratories to meet in order to be included in the 
     registry provided for under paragraph (1). In developing the 
     model standards, the Secretary shall look to existing 
     standards for guidance. The model standards shall include 
     methods to ensure that--
       ``(A) appropriate sampling and analytical procedures are 
     followed and reports of analyses are certified as true and 
     accurate;
       ``(B) internal quality systems are established and 
     maintained;
       ``(C) procedures exist to evaluate and respond promptly to 
     complaints regarding analyses and other activities for which 
     the laboratory is recognized;
       ``(D) individuals who conduct the analyses are qualified by 
     training and experience to do so; and
       ``(E) any other criteria determined appropriate by the 
     Secretary.
       ``(3) Review of accreditation.--To assure compliance with 
     the requirements of this section, the Secretary shall--
       ``(A) periodically, or at least every 5 years, reevaluate 
     accreditation bodies recognized under paragraph (1); and
       ``(B) promptly revoke the recognition of any accreditation 
     body found not to be in compliance with the requirements of 
     this section.
       ``(b) Testing Procedures.--Food testing shall be conducted 
     by either Federal laboratories or non-Federal laboratories 
     that have been accredited by an accreditation body on the 
     registry established by the Secretary under subsection (a) 
     whenever such testing is either conducted by or on behalf of 
     an owner or consignee--
       ``(1) in support of admission of an article of food under 
     section 801(a);
       ``(2) due to a specific testing requirement in this Act or 
     implementing regulations;
       ``(3) under an Import Alert that requires successful 
     consecutive tests; or
       ``(4) is so required by the Secretary as the Secretary 
     deems appropriate.
     The results of any such sampling or testing shall be sent 
     directly to the Food and Drug Administration.
       ``(c) Review by Secretary.--If food sampling and testing 
     performed by a laboratory run and operated by a State or 
     locality that is accredited by an accreditation body on the

[[Page 17725]]

     registry established by the Secretary under subsection (a) 
     result in a State recalling a food, the Secretary shall 
     review the sampling and testing results for the purpose of 
     determining the need for a national recall or other 
     compliance and enforcement activities.''.
       (b) Food Emergency Response Network.--The Secretary, in 
     coordination with the Secretary of Agriculture, the Secretary 
     of Homeland Security, and State, local, and tribal 
     governments shall, not later than 180 days after the date of 
     enactment of this Act, and biennially thereafter, submit to 
     the relevant committees of Congress, and make publicly 
     available on the Internet Web site of the Department of 
     Health and Human Services, a report on the progress in 
     implementing a national food emergency response laboratory 
     network that--
       (1) provides ongoing surveillance, rapid detection, and 
     surge capacity for large-scale food-related emergencies, 
     including intentional adulteration of the food supply;
       (2) coordinates the food laboratory capacities of State 
     food laboratories, including the sharing of data between 
     State laboratories to develop national situational awareness;
       (3) provides accessible, timely, accurate, and consistent 
     food laboratory services throughout the United States;
       (4) develops and implements a methods repository for use by 
     Federal, State, and local officials;
       (5) responds to food-related emergencies; and
       (6) is integrated with relevant laboratory networks 
     administered by other Federal agencies.

     SEC. 202. INTEGRATED CONSORTIUM OF LABORATORY NETWORKS.

       (a) In General.--The Secretary of Homeland Security, in 
     consultation with the Secretary of Health and Human Services, 
     the Secretary of Agriculture, and the Administrator of the 
     Environmental Protection Agency, shall maintain an agreement 
     through which relevant laboratory network members, as 
     determined by the Secretary of Homeland Security, shall--
       (1) agree on common laboratory methods in order to 
     facilitate the sharing of knowledge and information relating 
     to animal health, agriculture, and human health;
       (2) identify the means by which each laboratory network 
     member could work cooperatively--
       (A) to optimize national laboratory preparedness; and
       (B) to provide surge capacity during emergencies; and
       (3) engage in ongoing dialogue and build relationships that 
     will support a more effective and integrated response during 
     emergencies.
       (b) Reporting Requirement.--The Secretary of Homeland 
     Security shall, on a biennial basis, submit to the relevant 
     committees of Congress, and make publicly available on the 
     Internet Web site of the Department of Homeland Security, a 
     report on the progress of the integrated consortium of 
     laboratory networks, as established under subsection (a), in 
     carrying out this section.

     SEC. 203. BUILDING DOMESTIC CAPACITY.

       (a) In General.--
       (1) Initial report.--The Secretary shall, not later than 2 
     years after the date of enactment of this Act, submit to 
     Congress a comprehensive report that identifies programs and 
     practices that are intended to promote the safety and 
     security of food and to prevent outbreaks of food-borne 
     illness and other food-related hazards that can be addressed 
     through preventive activities. Such report shall include a 
     description of the following:
       (A) Analysis of the need for regulations or guidance to 
     industry.
       (B) Outreach to food industry sectors, including through 
     the Food and Agriculture Coordinating Councils referred to in 
     section 111, to identify potential sources of emerging 
     threats to the safety and security of the food supply and 
     preventive strategies to address those threats.
       (C) Systems to ensure the prompt distribution to the food 
     industry of information and technical assistance concerning 
     preventive strategies.
       (D) Communication systems to ensure that information about 
     specific threats to the safety and security of the food 
     supply are rapidly and effectively disseminated.
       (E) Surveillance systems and laboratory networks to rapidly 
     detect and respond to food-borne illness outbreaks and other 
     food-related hazards, including how such systems and networks 
     are integrated.
       (F) Outreach, education, and training provided to States to 
     build State food safety and food defense capabilities, 
     including progress implementing strategies developed under 
     sections 110 and 205.
       (G) The estimated resources needed to effectively implement 
     the programs and practices identified in the report developed 
     in this section over a 5-year period.
       (2) Biennial reports.--On a biennial basis following the 
     submission of the report under paragraph (1), the Secretary 
     shall submit to Congress a report that--
       (A) reviews previous food safety programs and practices;
       (B) outlines the success of those programs and practices;
       (C) identifies future programs and practices; and
       (D) includes information related to any matter described in 
     subparagraphs (A) through (G) of paragraph (1), as necessary.
       (b) Risk-Based Activities.--The report developed under 
     subsection (a)(1) shall describe methods that seek to ensure 
     that resources available to the Secretary for food safety-
     related activities are directed at those actions most likely 
     to reduce risks from food, including the use of preventive 
     strategies and allocation of inspection resources. The 
     Secretary shall promptly undertake those risk-based actions 
     that are identified during the development of the report as 
     likely to contribute to the safety and security of the food 
     supply.
       (c) Capability for Laboratory Analyses; Research.--The 
     report developed under subsection (a)(1) shall provide a 
     description of methods to increase capacity to undertake 
     analyses of food samples promptly after collection, to 
     identify new and rapid analytical techniques, including 
     techniques that can be employed at ports of entry and through 
     Food Emergency Response Network laboratories, and to provide 
     for well-equipped and staffed laboratory facilities.
       (d) Information Technology.--The report developed under 
     subsection (a)(1) shall include a description of such 
     information technology systems as may be needed to identify 
     risks and receive data from multiple sources, including 
     foreign governments, State, local, and tribal governments, 
     other Federal agencies, the food industry, laboratories, 
     laboratory networks, and consumers. The information 
     technology systems that the Secretary describes shall also 
     provide for the integration of the facility registration 
     system under section 415 of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 350d), and the prior notice system 
     under section 801(m) of such Act (21 U.S.C. 381(m)) with 
     other information technology systems that are used by the 
     Federal Government for the processing of food offered for 
     import into the United States.
       (e) Automated Risk Assessment.--The report developed under 
     subsection (a)(1) shall include a description of progress 
     toward developing and improving an automated risk assessment 
     system for food safety surveillance and allocation of 
     resources.
       (f) Traceback and Surveillance Report.--The Secretary shall 
     include in the report developed under subsection (a)(1) an 
     analysis of the Food and Drug Administration's performance in 
     food-borne illness outbreaks during the 5-year period 
     preceding the date of enactment of this Act involving fruits 
     and vegetables that are raw agricultural commodities (as 
     defined in section 201(r) of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 321(r)) and recommendations for 
     enhanced surveillance, outbreak response, and traceability. 
     Such findings and recommendations shall address communication 
     and coordination with the public and industry, outbreak 
     identification, and traceback.
       (g) Biennial Food Safety and Food Defense Research Plan.--
     The Secretary and the Secretary of Agriculture shall, on a 
     biennial basis, submit to Congress a joint food safety and 
     food defense research plan which may include studying the 
     long-term health effects of food-borne illness. Such biennial 
     plan shall include a list and description of projects 
     conducted during the previous 2-year period and the plan for 
     projects to be conducted during the following 2-year period.

     SEC. 204. ENHANCING TRACEBACK AND RECORDKEEPING.

       (a) In General.--The Secretary, in consultation with the 
     Secretary of Agriculture and representatives of State 
     departments of health and agriculture, shall improve the 
     capacity of the Secretary to effectively and rapidly track 
     and trace, in the event of an outbreak, fruits and vegetables 
     that are raw agricultural commodities.
       (b) Pilot Project.--
       (1) In general.--Not later than 9 months after the date of 
     enactment of this Act, the Secretary shall establish a pilot 
     project in coordination with the produce industry to explore 
     and evaluate new methods for rapidly and effectively tracking 
     and tracing fruits and vegetables that are raw agricultural 
     commodities so that, if an outbreak occurs involving such a 
     fruit or vegetable, the Secretary may quickly identify the 
     source of the outbreak and the recipients of the contaminated 
     food.
       (2) Content.--The Secretary shall select participants from 
     the produce industry to run projects which overall shall 
     include at least 3 different types of fruits or vegetables 
     that have been the subject of outbreaks during the 5-year 
     period preceding the date of enactment of this Act, and shall 
     be selected in order to develop and demonstrate--
       (A) methods that are applicable and appropriate for small 
     businesses; and
       (B) technologies, including existing technologies, that 
     enhance traceback and trace forward.
       (c) Report.--Not later than 18 months after the date of 
     enactment of this Act, the Secretary shall report to Congress 
     on the findings of the pilot project under subsection (b) 
     together with recommendations for establishing more effective 
     traceback and trace forward procedures for fruits and 
     vegetables that are raw agricultural commodities.

[[Page 17726]]

       (d) Traceback Performance Requirements.--Not later than 24 
     months after the date of enactment of this Act, the Secretary 
     shall publish a notice of proposed rulemaking to establish 
     standards for the type of information, format, and timeframe 
     for persons to submit records to aid the Secretary in 
     effectively and rapidly tracking and tracing, in the event of 
     an outbreak, fruits and vegetables that are raw agricultural 
     commodities. Nothing in this section shall be construed as 
     giving the Secretary the authority to prescribe specific 
     technologies for the maintenance of records.
       (e) Public Input.--During the comment period in the notice 
     of proposed rulemaking under subsection (d), the Secretary 
     shall conduct not less than 3 public meetings in diverse 
     geographical areas of the United States to provide persons in 
     different regions an opportunity to comment.
       (f) Raw Agricultural Commodity.--In this section, the term 
     ``raw agricultural commodity'' has the meaning given that 
     term in section 201(r) of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 321(r)).

     SEC. 205. SURVEILLANCE.

       (a) Definition of Food-Borne Illness Outbreak.--In this 
     section, the term ``food-borne illness outbreak'' means the 
     occurrence of 2 or more cases of a similar illness resulting 
     from the ingestion of a food.
       (b) Food-Borne Illness Surveillance Systems.--
       (1) In general.--The Secretary, acting through the Director 
     of the Centers for Disease Control and Prevention, shall 
     enhance food-borne illness surveillance systems to improve 
     the collection, analysis, reporting, and usefulness of data 
     on food-borne illnesses by--
       (A) coordinating Federal, State and local food-borne 
     illness surveillance systems, including complaint systems, 
     and increasing participation in national networks of public 
     health and food regulatory agencies and laboratories;
       (B) facilitating sharing of findings on a more timely basis 
     among governmental agencies, including the Food and Drug 
     Administration, the Department of Agriculture, and State and 
     local agencies, and with the public;
       (C) developing improved epidemiological tools for obtaining 
     quality exposure data, and microbiological methods for 
     classifying cases;
       (D) augmenting such systems to improve attribution of a 
     food-borne illness outbreak to a specific food;
       (E) expanding capacity of such systems, including working 
     toward automatic electronic searches, for implementation of 
     fingerprinting strategies for food-borne infectious agents, 
     in order to identify new or rarely documented causes of food-
     borne illness and submit standardized information to a 
     centralized database;
       (F) allowing timely public access to aggregated, de-
     identified surveillance data;
       (G) at least annually, publishing current reports on 
     findings from such systems;
       (H) establishing a flexible mechanism for rapidly 
     initiating scientific research by academic institutions;
       (I) integrating food-borne illness surveillance systems and 
     data with other biosurveillance and public health situational 
     awareness capabilities at the state and federal levels; and
       (J) other activities as determined appropriate by the 
     Secretary.
       (2) Partnerships.--The Secretary shall support and maintain 
     a diverse working group of experts and stakeholders from 
     Federal, State, and local food safety and health agencies, 
     the food industry, consumer organizations, and academia. Such 
     working group shall provide the Secretary, through at least 
     annual meetings of the working group and an annual public 
     report, advice and recommendations on an ongoing and regular 
     basis regarding the improvement of food-borne illness 
     surveillance and implementation of this section, including 
     advice and recommendations on--
       (A) the priority needs of regulatory agencies, the food 
     industry, and consumers for information and analysis on food-
     borne illness and its causes;
       (B) opportunities to improve the effectiveness of 
     initiatives at the Federal, State, and local levels, 
     including coordination and integration of activities among 
     Federal agencies, and between the Federal, State, and local 
     levels of government;
       (C) improvement in the timeliness and depth of access by 
     regulatory and health agencies, the food industry, academic 
     researchers, and consumers to food-borne illness surveillance 
     data collected by government agencies at all levels, 
     including data compiled by the Centers for Disease Control 
     and Prevention;
       (D) key barriers to improvement in food-borne illness 
     surveillance and its utility for preventing food-borne 
     illness at Federal, State, and local levels;
       (E) the capabilities needed for establishing automatic 
     electronic searches of surveillance data; and
       (F) specific actions to reduce barriers to improvement, 
     implement the working group's recommendations, and achieve 
     the purposes of this section, with measurable objectives and 
     timelines, and identification of resource and staffing needs.
       (c) Improving Food Safety and Defense Capacity at the State 
     and Local Level.--
       (1) In general.--The Secretary shall develop and implement 
     strategies to leverage and enhance the food safety and 
     defense capacities of State and local agencies in order to 
     achieve the following goals:
       (A) Improve food-borne illness outbreak response and 
     containment.
       (B) Accelerate food-borne illness surveillance and outbreak 
     investigation, including rapid shipment of clinical isolates 
     from clinical laboratories to appropriate State laboratories, 
     and conducting more standardized illness outbreak interviews.
       (C) Strengthen the capacity of State and local agencies to 
     carry out inspections and enforce safety standards.
       (D) Improve the effectiveness of Federal-State partnerships 
     to coordinate food safety and defense resources and reduce 
     the incidence of food-borne illness.
       (E) Share information on a timely basis among public health 
     and food regulatory agencies, with the food industry, with 
     health care providers, and with the public.
       (F) Strengthen the capacity of State and local agencies to 
     achieve the goals described in section 110.
       (2) Review.--In developing of the strategies required by 
     paragraph (1), the Secretary shall, not later than 1 year 
     after the date of enactment of the FDA Food Safety 
     Modernization Act, complete a review of State and local 
     capacities, and needs for enhancement, which may include a 
     survey with respect to--
       (A) staffing levels and expertise available to perform food 
     safety and defense functions;
       (B) laboratory capacity to support surveillance, outbreak 
     response, inspection, and enforcement activities;
       (C) information systems to support data management and 
     sharing of food safety and defense information among State 
     and local agencies and with counterparts at the Federal 
     level; and
       (D) other State and local activities and needs as 
     determined appropriate by the Secretary.
       (d) Food Safety Capacity Building Grants.--Section 317R(b) 
     of the Public Health Service Act (42 U.S.C. 247b-20(b)) is 
     amended--
       (1) by striking ``2002'' and inserting ``2009''; and
       (2) by striking ``2003 through 2006'' and inserting ``2010 
     through 2013''.

            TITLE III--SPECIFIC PROVISIONS FOR IMPORTED FOOD

     SEC. 301. FOREIGN SUPPLIER VERIFICATION PROGRAM.

       (a) In General.--Chapter VIII (21 U.S.C. 381 et seq.) is 
     amended by adding at the end the following:

     ``SEC. 805. FOREIGN SUPPLIER VERIFICATION PROGRAM.

       ``(a) In General.--
       ``(1) Verification requirement.--Each United States 
     importer of record shall perform risk-based foreign supplier 
     verification activities in accordance with regulations 
     promulgated under subsection (c) for the purpose of verifying 
     that the food imported by the importer of record or its agent 
     is--
       ``(A) produced in compliance with the requirements of 
     section 419 or 420, as appropriate; and
       ``(B) is not adulterated under section 402 or misbranded 
     under section 403(w).
       ``(2) Importer exclusion.--For purposes of this section, an 
     `importer of record' shall not include a person holding a 
     valid license under section 641 of the Tariff Act of 1930 (19 
     U.S.C. 1641) (referred to as a `customs broker') if the 
     customs broker has executed a written agreement with another 
     person who has agreed to comply with the requirements of this 
     section with regard to food imported or offered for import by 
     the customs broker.
       ``(b) Guidance.--Not later than 1 year after the date of 
     enactment of the FDA Food Safety Modernization Act, the 
     Secretary shall issue guidance to assist United States 
     importers of record in developing foreign supplier 
     verification programs.
       ``(c) Regulations.--
       ``(1) In general.--Not later than 1 year after the date of 
     enactment of the FDA Food Safety Modernization Act, the 
     Secretary shall promulgate regulations to provide for the 
     content of the foreign supplier verification program 
     established under subsection (a). Such regulations shall, as 
     appropriate, include a process for verification by a United 
     States importer of record, with respect to each foreign 
     supplier from which it obtains food, that the imported food 
     is produced in compliance with the requirements of section 
     419 or 420, as appropriate, and is not adulterated under 
     section 402 or misbranded under section 403(w).
       ``(2) Verification.--The regulations under paragraph (1) 
     shall require that the foreign supplier verification program 
     of each importer of record be adequate to provide assurances 
     that each foreign supplier to the importer of record produces 
     the imported food employing processes and procedures, 
     including risk-based reasonably appropriate preventive 
     controls, equivalent in preventing adulteration and reducing 
     hazards as those required by section 419 or section 420, as 
     appropriate.
       ``(3) Activities.--Verification activities under a foreign 
     supplier verification program

[[Page 17727]]

     under this section may include monitoring records for 
     shipments, lot-by-lot certification of compliance, annual on-
     site inspections, checking the hazard analysis and risk-based 
     preventive control plan of the foreign supplier, and 
     periodically testing and sampling shipments.
       ``(d) Record Maintenance and Access.--Records of a United 
     States importer of record related to a foreign supplier 
     verification program shall be maintained for a period of not 
     less than 2 years and shall be made available promptly to a 
     duly authorized representative of the Secretary upon request.
       ``(e) Deemed Compliance of Seafood, Juice, and Low-Acid 
     Canned Food Facilities in Compliance With HACCP.--An owner, 
     operator, or agent in charge of a facility required to comply 
     with 1 of the following standards and regulations with 
     respect to such facility shall be deemed to be in compliance 
     with this section with respect to such facility:
       ``(1) The Seafood Hazard Analysis Critical Control Points 
     Program of the Food and Drug Administration.
       ``(2) The Juice Hazard Analysis Critical Control Points 
     Program of the Food and Drug Administration.
       ``(3) The Thermally Processed Low-Acid Foods Packaged in 
     Hermetically Sealed Containers standards of the Food and Drug 
     Administration (or any successor standards).
       ``(f) Publication of List of Participants.--The Secretary 
     shall publish and maintain on the Internet Web site of the 
     Food and Drug Administration a current list that includes the 
     name of, location of, and other information deemed necessary 
     by the Secretary about, importers participating under this 
     section.''.
       (b) Prohibited Act.--Section 301 (21 U.S.C. 331), as 
     amended by section 109, is amended by adding at the end the 
     following:
       ``(ss) The importation or offering for importation of a 
     food if the importer of record does not have in place a 
     foreign supplier verification program in compliance with 
     section 805.''.
       (c) Imports.--Section 801(a) (21 U.S.C. 381(a)) is amended 
     by adding ``or the importer of record is in violation of 
     section 805'' after ``or in violation of section 505''.
       (d) Effective Date.--The amendments made by this section 
     shall take effect 2 years after the date of enactment of this 
     Act.

     SEC. 302. VOLUNTARY QUALIFIED IMPORTER PROGRAM.

       Chapter VIII (21 U.S.C. 381 et seq.), as amended by section 
     301, is amended by adding at the end the following:

     ``SEC. 806. VOLUNTARY QUALIFIED IMPORTER PROGRAM.

       ``(a) In General.--Beginning not later than 1 year after 
     the date of enactment of the FDA Food Safety Modernization 
     Act, the Secretary shall--
       ``(1) establish a program, in consultation with the 
     Department of Homeland Security, to provide for the expedited 
     review and importation of food offered for importation by 
     United States importers who have voluntarily agreed to 
     participate in such program; and
       ``(2) issue a guidance document related to participation 
     and compliance with such program.
       ``(b) Voluntary Participation.--An importer may request the 
     Secretary to provide for the expedited review and importation 
     of designated foods in accordance with the program procedures 
     established by the Secretary.
       ``(c) Eligibility.--In order to be eligible, an importer 
     shall be offering food for importation from a facility that 
     has a certification described in section 809(b). In reviewing 
     the applications and making determinations on such requests, 
     the Secretary shall consider the risk of the food to be 
     imported based on factors, such as the following:
       ``(1) The nature of the food to be imported.
       ``(2) The compliance history of the foreign supplier.
       ``(3) The capability of the regulatory system of the 
     country of export to ensure compliance with United States 
     food safety standards.
       ``(4) The compliance of the importer with the requirements 
     of section 805.
       ``(5) The recordkeeping, testing, inspections and audits of 
     facilities, traceability of articles of food, temperature 
     controls, and sourcing practices of the importer.
       ``(6) The potential risk for intentional adulteration of 
     the food.
       ``(7) Any other factor that the Secretary determines 
     appropriate.
       ``(d) Review and Revocation.--Any importer qualified by the 
     Secretary in accordance with the eligibility criteria set 
     forth in this section shall be reevaluated not less often 
     than once every 3 years and the Secretary shall promptly 
     revoke the qualified importer status of any importer found 
     not to be in compliance with such criteria.
       ``(e) Definition.--For purposes of this section, the term 
     `importer' means the person that brings food, or causes food 
     to be brought, from a foreign country into the customs 
     territory of the United States.''.

     SEC. 303. AUTHORITY TO REQUIRE IMPORT CERTIFICATIONS FOR 
                   FOOD.

       (a) In General.--Section 801(a) (21 U.S.C. 381(a)) is 
     amended by inserting after the third sentence the following: 
     ``With respect to an article of food, if importation of such 
     food is subject to, but not compliant with, the requirement 
     under subsection (p) that such food be accompanied by a 
     certification or other assurance that the food meets some or 
     all applicable requirements of this Act, then such article 
     shall be refused admission.''.
       (b) Addition of Certification Requirement.--Section 801 (21 
     U.S.C. 381) is amended by adding at the end the following new 
     subsection:
       ``(p) Certifications Concerning Imported Foods.--
       ``(1) In general.--The Secretary, based on public health 
     considerations, including risks associated with the food or 
     its place of origin, may require as a condition of granting 
     admission to an article of food imported or offered for 
     import into the United States, that an entity specified in 
     paragraph (2) provide a certification or such other 
     assurances as the Secretary determines appropriate that the 
     article of food complies with some or all applicable 
     requirements of this Act, as specified by the Secretary. Such 
     certification or assurances may be provided in the form of 
     shipment-specific certificates, a listing of certified 
     entities, or in such other form as the Secretary may specify. 
     Such certification shall be used for designated food imported 
     from countries with which the Food and Drug Administration 
     has an agreement to establish a certification program.
       ``(2) Certifying entities.--For purposes of paragraph (1), 
     entities that shall provide the certification or assurances 
     described in such paragraph are--
       ``(A) an agency or a representative of the government of 
     the country from which the article of food at issue 
     originated, as designated by such government or the 
     Secretary; or
       ``(B) such other persons or entities accredited pursuant to 
     section 809 to provide such certification or assurance.
       ``(3) Renewal and refusal of certifications.--The Secretary 
     may--
       ``(A) require that any certification or other assurance 
     provided by an entity specified in paragraph (2) be renewed 
     by such entity at such times as the Secretary determines 
     appropriate; and
       ``(B) refuse to accept any certification or assurance if 
     the Secretary determines that such certification or assurance 
     is no longer valid or reliable.
       ``(4) Electronic submission.--The Secretary shall provide 
     for the electronic submission of certifications under this 
     subsection.''.
       (c) Conforming Technical Amendment.--Section 801(b) (21 
     U.S.C. 381(b)) is amended in the second sentence by striking 
     ``with respect to an article included within the provision of 
     the fourth sentence of subsection (a)'' and inserting ``with 
     respect to an article described in subsection (a) relating to 
     the requirements of sections 760 or 761,''.
       (d) No Limit on Authority.--Nothing in the amendments made 
     by this section shall limit the authority of the Secretary to 
     conduct random inspections of imported food or to take such 
     other steps as the Secretary deems appropriate to determine 
     the admissibility of imported food.

     SEC. 304. PRIOR NOTICE OF IMPORTED FOOD SHIPMENTS.

       (a) In General.--Section 801(m)(1) (21 U.S.C. 381(m)(1)) is 
     amended by inserting ``any country to which the article has 
     been refused entry;'' after ``the country from which the 
     article is shipped;''.
       (b) Regulations.--Not later than 120 days after the date of 
     enactment of this Act, the Secretary shall issue an interim 
     final rule amending subpart I of part 1 of title 21, Code of 
     Federal Regulations, to implement the amendment made by this 
     section.
       (c) Effective Date.--The amendment made by this section 
     shall take effect 180 days after the date of enactment of 
     this Act.

     SEC. 305. REVIEW OF A REGULATORY AUTHORITY OF A FOREIGN 
                   COUNTRY.

       Chapter VIII (21 U.S.C. 381 et seq.), as amended by section 
     302, is amended by adding at the end the following:

     ``SEC. 807. REVIEW OF A REGULATORY AUTHORITY OF A FOREIGN 
                   COUNTRY.

       ``The Secretary may review information from a country 
     outlining the statutes, regulations, standards, and controls 
     of such country, and conduct on-site audits in such country 
     to verify the implementation of those statutes, regulations, 
     standards, and controls. Based on such review, the Secretary 
     shall determine whether such country can provide reasonable 
     assurances that the food supply of the country is equivalent 
     in safety to food manufactured, processed, packed, or held in 
     the United States.''.

     SEC. 306. BUILDING CAPACITY OF FOREIGN GOVERNMENTS WITH 
                   RESPECT TO FOOD.

       (a) In General.--The Secretary shall, not later than 2 
     years of the date of enactment of this Act, develop a 
     comprehensive plan to expand the technical, scientific, and 
     regulatory capacity of foreign governments, and their 
     respective food industries, from which foods are exported to 
     the United States.
       (b) Consultation.--In developing the plan under subsection 
     (a), the Secretary shall consult with the Secretary of 
     Agriculture,

[[Page 17728]]

     Secretary of State, Secretary of the Treasury, and the 
     Secretary of Commerce, representatives of the food industry, 
     appropriate foreign government officials, and nongovernmental 
     organizations that represent the interests of consumers, and 
     other stakeholders.
       (c) Plan.--The plan developed under subsection (a) shall 
     include, as appropriate, the following:
       (1) Recommendations for bilateral and multilateral 
     arrangements and agreements, including provisions to provide 
     for responsibility of exporting countries to ensure the 
     safety of food.
       (2) Provisions for electronic data sharing.
       (3) Provisions for mutual recognition of inspection 
     reports.
       (4) Training of foreign governments and food producers on 
     United States requirements for safe food.
       (5) Recommendations to harmonize requirements under the 
     Codex Alimentarius.
       (6) Provisions for the multilateral acceptance of 
     laboratory methods and detection techniques.

     SEC. 307. INSPECTION OF FOREIGN FOOD FACILITIES.

       Chapter VIII (21 U.S.C. 381 et seq.), as amended by section 
     305, is amended by inserting at the end the following:

     ``SEC. 808. INSPECTION OF FOREIGN FOOD FACILITIES.

       ``(a) Inspection.--The Secretary--
       ``(1) may enter into arrangements and agreements with 
     foreign governments to facilitate the inspection of foreign 
     facilities registered under section 415; and
       ``(2) shall direct resources to inspections of foreign 
     facilities, suppliers, and food types, especially such 
     facilities, suppliers, and food types that present a high 
     risk (as identified by the Secretary), to help ensure the 
     safety and security of the food supply of the United States.
       ``(b) Effect of Inability To Inspect.--Notwithstanding any 
     other provision of law, food shall be refused admission into 
     the United States if it is from a foreign facility registered 
     under section 415 of which the owner, operator, or agent in 
     charge of the facility, or the government of the foreign 
     country, refuses to permit entry of United States inspectors, 
     upon request, to inspect such facility. For purposes of this 
     subsection, such an owner, operator, or agent in charge shall 
     be considered to have refused an inspection if such owner, 
     operator, or agent in charge refuses such a request to 
     inspect a facility more than 48 hours after such request is 
     submitted.''.

     SEC. 308. ACCREDITATION OF QUALIFIED THIRD-PARTY AUDITORS.

       Chapter VIII (21 U.S.C. 381 et seq.), as amended by section 
     307, is further amended by adding at the end the following:

     ``SEC. 809. ACCREDITATION OF QUALIFIED THIRD-PARTY AUDITORS.

       ``(a) Accreditation of Certifying Agents.--
       ``(1) In general.--Beginning not later than 2 years after 
     the date of enactment of the FDA Food Safety Modernization 
     Act, the Secretary shall establish and implement an 
     accreditation system under which a foreign government, a 
     State or regional food authority, a foreign or domestic 
     cooperative that aggregates the products of growers or 
     processors, or any other third party that the Secretary 
     determines appropriate, may request to be accredited as a 
     certifying agent to certify that eligible entities meet the 
     applicable requirements of this Act.
       ``(2) Review by secretary.--When establishing the 
     accreditation system under paragraph (1), the Secretary shall 
     review third-party accreditation systems in existence on the 
     date of enactment of the FDA Food Safety Modernization Act, 
     to avoid unnecessary duplication of efforts and costs.
       ``(3) Request by foreign government.--Prior to accrediting 
     a foreign government as a certifying agent, the Secretary 
     shall perform such reviews and audits of food safety 
     programs, systems, and standards of the government as the 
     Secretary deems necessary to determine that they are adequate 
     to ensure that eligible entities certified by such government 
     meet the requirements of this Act with respect to food 
     manufactured, processed, packed, or held for import to the 
     United States.
       ``(4) Request by state or regional food authority.--Prior 
     to accrediting a State or regional food authority as a 
     certifying agent, the Secretary shall perform such reviews 
     and audits of the training and qualifications of auditors 
     used by the authority and conduct such reviews of internal 
     systems and such other investigation of the authority as the 
     Secretary deems necessary to determine that each eligible 
     entity certified by the authority has systems and standards 
     in use to ensure that such entity meets the requirements of 
     this Act.
       ``(5) Cooperatives and other third parties.--Prior to 
     accrediting a foreign or domestic cooperative that aggregates 
     the products of growers or processors or any other third 
     party that the Secretary determines appropriate as a 
     certifying agent, the Secretary shall perform such reviews 
     and audits of the training and qualifications of auditors 
     used by the cooperative or party and conduct such reviews of 
     internal systems and such other investigation of the 
     cooperative or party as the Secretary deems necessary to 
     determine that each eligible entity certified by the 
     cooperative or party has systems and standards in use to 
     ensure that such entity meets the requirements of this Act.
       ``(6) Limitation on third parties.--The Secretary may not 
     accredit a third party that the Secretary determines 
     appropriate as a certifying agent unless each auditor used by 
     such party prepares the audit report for an audit under this 
     section in a form and manner designated by the Secretary. An 
     audit report shall include--
       ``(A) the identity of the persons at the audited eligible 
     entity responsible for compliance with food safety 
     requirements;
       ``(B) the dates of the audit;
       ``(C) the scope of the audit; and
       ``(D) any other information required by the Secretary that 
     relate to or may influence an assessment of compliance with 
     this Act.
       ``(b) Importation.--As a condition of accrediting a foreign 
     government, a State or regional food authority, a foreign or 
     domestic cooperative that aggregates the products of growers 
     or processors, or any other third party that the Secretary 
     determines appropriate as a certifying agent, such 
     government, authority, cooperative, or party shall agree to 
     issue a written and electronic certification to accompany 
     each food shipment made for import from an eligible entity 
     certified by the certifying agent, subject to requirements 
     set forth by the Secretary. The Secretary shall consider such 
     certificates when targeting inspection resources under 
     section 421.
       ``(c) Monitoring.--Following any accreditation of a 
     certifying agent, the Secretary may at any time--
       ``(1) conduct an on-site audit of any eligible entity 
     certified by the agent, with or without the certifying agent 
     present; or
       ``(2) require the agent to submit to the Secretary, for any 
     eligible entity certified by the agent, an onsite inspection 
     report and such other reports or documents the agent requires 
     as part of the audit process, including, for an eligible 
     entity located outside the United States, documentation that 
     the eligible is in compliance with any applicable 
     registration requirements.
       ``(d) Definitions.--For purposes of this section:
       ``(1) Auditor.--The term `auditor' means an individual 
     who--
       ``(A) is qualified to conduct food safety audits; and
       ``(B) has successfully completed any training requirements 
     established by the Secretary for the conduct of food safety 
     audits.
       ``(2) Certifying agent.--The term `certifying agent' means 
     a foreign government, a State or regional food authority, a 
     foreign or domestic cooperative that aggregates the products 
     of growers or processors, or any other third party that 
     conducts audits of eligible entities and that is accredited 
     by the Secretary under this section.
       ``(3) Eligible entity.--The term `eligible entity' means 
     any entity in the food supply chain that chooses to be 
     audited by a certifying agent.
       ``(e) Avoiding Conflicts of Interest With Certifying 
     Agents.--
       ``(1) In general.--A certifying agent shall--
       ``(A) not be owned, managed, or controlled by any person 
     that owns or operates an eligible entity to be certified by 
     such agent;
       ``(B) have procedures to ensure against the use, in 
     carrying out audits of eligible entities under this section, 
     of any officer or employee of such agent that has a financial 
     conflict of interest regarding an eligible entity to be 
     certified by such agent; and
       ``(C) annually make available to the Secretary, disclosures 
     of the extent to which such agent, and the officers and 
     employees of such agent, have maintained compliance with 
     subparagraphs (A) and (B) relating to financial conflicts of 
     interest.
       ``(2) Regulations.--The Secretary shall promulgate 
     regulations not later than 18 months after the date of 
     enactment of the FDA Food Safety Modernization Act to ensure 
     that there are protections against conflicts of interest 
     between a certifying agent and the eligible entity to be 
     certified by such agent. Such regulations shall include--
       ``(A) requiring that domestic audits performed under this 
     section be unannounced;
       ``(B) a structure, including timing and public disclosure, 
     for fees paid by eligible entities to certifying agents to 
     decrease the potential for conflicts of interest; and
       ``(C) appropriate limits on financial affiliations between 
     a certifying agent and any person that owns or operates an 
     eligible entity to be certified by such agent.
       ``(f) False Statements.--Any statement of representation 
     made by an employee or agent of an eligible entity to an 
     auditor of a certifying agent or a certifying agent shall be 
     subject to section 1001 of title 18, United States Code.
       ``(g) Risks to Public Health.--If, at any time during an 
     audit, an auditor of a certifying agent discovers a condition 
     that could cause or contribute to a serious risk to the 
     public health, the auditor shall immediately notify the 
     Secretary of--
       ``(1) the identification of the eligible entity subject to 
     the audit; and
       ``(2) such condition.
       ``(h) Withdrawal of Accreditation.--The Secretary may 
     withdraw accreditation from a certifying agent--

[[Page 17729]]

       ``(1) if food from eligible entities certified by such 
     agent is linked to an outbreak of human or animal illness;
       ``(2) following a performance audit and finding by the 
     Secretary that the agent no longer meets the requirements for 
     accreditation; or
       ``(3) following a refusal to allow United States officials 
     to conduct such audits and investigations as may be necessary 
     to ensure continued compliance with the requirements set 
     forth in this section.
       ``(i) Performance Audits and Renewal.--To ensure that 
     accreditation of a certifying agent continues to meet the 
     standards of this section and this Act and to allow for the 
     renewal of accreditation of such certifying agent, the 
     Secretary shall--
       ``(1) audit the performance of such certifying agent on a 
     periodic basis, not less than every 4 years, through the 
     review of audit reports by such certifying agent and the 
     compliance history, as available, of eligible entities 
     certified by such certifying agent; and
       ``(2) any other measures deemed necessary by the Secretary.
       ``(j) Publication of List of Certifying Agents.--The 
     Secretary shall publish and maintain on the Internet Web site 
     of the Food and Drug Administration a current list, 
     including, the name, location and other information deemed 
     necessary by the Secretary, of certifying agents under this 
     section.
       ``(k) Neutralizing Costs.--The Secretary shall establish a 
     method, similar to the method used by the Department of 
     Agriculture, by which certifying agents reimburse the Food 
     and Drug Administration for the work performed to accredit 
     such certifying agents. The Secretary shall make operating 
     this program revenue-neutral and shall not generate surplus 
     revenue from such a reimbursement mechanism.
       ``(l) No Effect on Section 704 Inspections.--The audits 
     performed under this section shall not be considered 
     inspections under section 704.
       ``(m) No Effect on Inspection Authority.--Nothing in this 
     section affects the authority of the Secretary to inspect any 
     eligible entity pursuant to this Act.''.

     SEC. 309. FOREIGN OFFICES OF THE FOOD AND DRUG 
                   ADMINISTRATION.

       (a) In General.--The Secretary shall by October 1, 2010, 
     establish an office of the Food and Drug Administration in 
     not less than 5 foreign countries selected by the Secretary, 
     to provide assistance to the appropriate governmental 
     entities of such countries with respect to measures to 
     provide for the safety of articles of food and other products 
     regulated by the Food and Drug Administration exported by 
     such country to the United States, including by directly 
     conducting risk-based inspections of such articles and 
     supporting such inspections by such governmental entity.
       (b) Consultation.--In establishing the foreign offices 
     described in subsection (a), the Secretary shall consult with 
     the Secretary of State and the United States Trade 
     Representative.
       (c) Report.--Not later than October 1, 2011, the Secretary 
     shall submit to Congress a report on the basis for the 
     selection by the Secretary of the foreign countries in which 
     the Secretary established offices under subsection (a), the 
     progress which such offices have made with respect to 
     assisting the governments of such countries in providing for 
     the safety of articles of food and other products regulated 
     by the Food and Drug Administration exported to the United 
     States, and the plans of the Secretary for establishing 
     additional foreign offices of the Food and Drug 
     Administration, as appropriate.

     SEC. 310. FUNDING FOR FOOD SAFETY.

       (a) In General.--There are authorized to be appropriated to 
     carry out the activities of the Center for Food Safety and 
     Applied Nutrition, the Center for Veterinary Medicine, and 
     related field activities in the Office of Regulatory Affairs 
     of the Food and Drug Administration--
       (1) $775,000,000 for fiscal year 2009; and
       (2) such sums as may be necessary for fiscal years 2010 
     through 2013.
       (b) Increased Number of Field Staff.--To carry out the 
     activities of the Center for Food Safety and Applied 
     Nutrition, the Center for Veterinary Medicine, and related 
     field activities of the Office of Regulatory Affairs of the 
     Food and Drug Administration, the Secretary of Health and 
     Human Services shall increase the field staff of such Centers 
     and Office with a goal of not fewer than--
       (1) 3,600 staff members in fiscal year 2009;
       (2) 3,800 staff members in fiscal year 2010;
       (3) 4,000 staff members in fiscal year 2011;
       (4) 4,200 staff members in fiscal year 2012; and
       (5) 4,600 staff members in fiscal year 2013.

     SEC. 311. JURISDICTION; AUTHORITIES.

       Nothing in this Act, or an amendment made by this Act, 
     shall be construed to--
       (1) alter the jurisdiction between the Secretary of 
     Agriculture and the Secretary of Health and Human Services, 
     under applicable statutes and regulations;
       (2) limit the authority of the Secretary of Health and 
     Human Services to issue regulations related to the safety of 
     food under--
       (A) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 
     et seq.) as in effect on the day before the date of enactment 
     of this Act; or
       (B) the Public Health Service Act (42 U.S.C. 301 et seq.) 
     as in effect on the day before the date of enactment of this 
     Act; or
       (3) impede, minimize, or affect the authority of the 
     Secretary of Agriculture to prevent, control, or mitigate a 
     plant or animal health emergency, or a food emergency 
     involving products regulated under the Federal Meat 
     Inspection Act, the Poultry Products Inspection Act, or the 
     Egg Products Inspection Act.
                                 ______
                                 
      By Mr. HATCH (for himself and Mr. Dodd):
  S. 3387. A bill to amend the Public Health Service Act with respect 
to pain care; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. HATCH. Mr. President, I rise today to introduce the National Pain 
Care Policy Act of 2008. I am pleased to have worked with my colleague, 
Senator Christopher Dodd, on this legislation which will help to 
address barriers to pain care by enhancing coordination of research, 
improving healthcare provider education and training, and elevating 
public awareness of pain and pain management.
  According to the American Pain Foundation, an estimated 75 million 
Americans suffer from either chronic or acute pain. Pain is the most 
common reason that people access the health care system and persistent 
pain can interfere with everyday life and make ordinary tasks seem 
impossible. Severe chronic pain also can hinder sleep, work, and social 
functions. Due to its very nature as a prominent feature of many 
chronic conditions, pain is said to affect more Americans than 
diabetes, heart disease and cancer combined.
  Most pain can be relieved with proper treatment. This simple fact 
implies that the pain problems of these countless Americans can be 
easily fixed. Unfortunately, many people in pain face considerable 
barriers to accessing proper diagnosis, treatment, and management of 
their pain.
  Health care professionals are, more often than not, inadequately 
trained regarding pain assessment and management, making it difficult 
for them to treat their patients' pain safely and effectively. As such, 
providers may be unfamiliar with current research and guidelines for 
appropriate pain care. Further, health care professionals may be 
hesitant to prescribe pain medications for pain management due to lack 
of knowledge regarding regulatory policies.
  To make worse the problem, the National Institutes of Health, NIH, 
our country's premier institution for biomedical research, currently 
dedicates less than 1 percent of its research budget to pain research. 
Worse yet, this research is spread across multiple Institutes and 
centers without efficient coordination. Effective education is 
contingent upon adequate research.
  Patients may also create for themselves barriers to pain care and 
management. As impractical as it seems, patients often do not tell 
their doctor about their pain because they do not want to complain or 
appear to be a nuisance. They also may avoid taking pain medicines 
because of addiction or dependency concerns which may be based on 
misinformation due to lack of education.
  The National Pain Care Policy Act of 2008 will help to identify these 
barriers by authorizing an Institute of Medicine, IOM, Conference on 
Pain Care to evaluate the adequacy of pain assessment, treatment and 
management. The conference will establish an action agenda by which to 
address barriers and improve education and training.
  The bill also authorizes permanently the Pain Consortium at the 
National Institutes of Health, NIH, to establish a coordinated clinical 
research agenda and promote pain research across NIH institutes, 
centers, and programs. The Consortium will convene annual conferences 
to make recommendations on pain research and activities at the NIH. The 
legislation also establishes a multidisciplinary Advisory Committee
  The National Pain Care Policy Act of 2008 addresses the lack of pain 
care education by creating a grant program for the development and 
implementation of programs to educate and train

[[Page 17730]]

health care professionals in pain assessment and management. It also 
requires the Agency for Healthcare Research and Quality, AHRQ, to 
collect evidence-based practices regarding pain and disseminate such 
information to the pain care community.
  This bill also will break down barriers to pain care access by 
raising awareness among people who suffer from pain, and helping them 
and their families find the proper information about pain management. A 
national pain management public outreach and awareness campaign will be 
developed and implemented by the Department of Health and Human 
Services, HHS, to focus on the significance of pain as a national 
public health problem.
  The National Pain Care Policy Act of 2008 contains provisions that 
will help the millions of Americans who live everyday with pain by 
heightening awareness, enhancing coordination of research, and 
advancing education. Similar legislation was introduced in the House by 
Representatives Lois Capps and Mike Rogers last year. The House bill is 
supported by more than 100 organizations in the pain care community, 
including the America Pain Society, the American Academy of Pain 
Medicine, and the American Cancer Society. I thank Senator Dodd for his 
leadership on and interest in this issue, and I urge my colleagues to 
support our bill.
  Mr. DODD. Mr. President, I rise today to join my colleague from Utah, 
Senator Orrin Hatch, in introducing the National Pain Care Policy Act 
of 2008. This important legislation would make significant strides in 
the understanding and treatment of pain as a medical condition. Pain is 
the most common symptom leading to medical care and a leading health 
issue. Yet people suffering through pain often struggle to get relief 
because of a variety of issues. This is why we are introducing this 
important legislation.
  Each year pain results in more than 50 million lost workdays 
estimated to cost the United States $100 billion. Beyond the economic 
impact, pain is a leading cause of disability, with back pain alone 
causing chronic disability in 1 percent of the population of this 
country. In the United States 40 million people suffer from arthritis, 
more than 26 million, ages 20 to 64, experience frequent back pain, 
more than 25 million experience migraine headaches, and 20 million have 
jaw and lower facial pain each year. It is estimated that 70 percent of 
cancer patients have significant pain as they fight the disease. And 
half of all patients in hospitals suffer through moderate to severe 
pain in their last days. As with many medical conditions, this is a 
problem that is likely to become worse as the baby boom generation 
approaches retirement and the population ages.
  Sadly, though most pain can be relieved, it often is not. Many 
suffering patients are reluctant to tell their medical provider about 
the pain they are experiencing, for fear of being identified as a ``bad 
patient,'' and concern about addiction often leads patients to avoid 
seeking or using medications to treat their pain. But even if patients 
were more forthcoming about their condition, few medical providers are 
equipped to do something about it. Often they have not been trained in 
assessment techniques or pain management, and are unaware of the latest 
research, guidelines, and standards for treatment. There is also 
concern among most providers that prescribing treatment for pain will 
lead to greater scrutiny by regulatory agencies and insurers.
  But we can do something about these barriers and help individuals 
suffering from pain. The National Pain Care Policy Act would lead to 
improvements in pain care across the country. The legislation would 
call for an Institute of Medicine conference on pain care to increase 
awareness of this issue as a public health problem, identify barriers 
to pain care and determine action for overcoming those barriers. A 
number of years ago, my good friend Senator Hatch helped establish a 
Pain Consortium at the National Institutes of Health to establish a 
coordinated pain research agenda. This legislation will codify that 
consortium and update its mission. The bill addresses the training and 
education of health care professionals through new grant programs at 
the Agency for Health Research and Quality, AHRQ, and the Health 
Resources and Services Administration, HRSA. And finally this 
legislation creates a national outreach and awareness campaign at the 
Department of Health and Human Services to educate patients, families, 
and caregivers about the significance of pain and the importance of 
treatment.
  I want to thank Senator Hatch for his leadership on this issue and 
urge my colleagues to join us on this important effort to help the 
millions of Americans suffering from severe pain.
                                 ______
                                 
      By Mr. DURBIN:
  S. 3390. A bill to amend the National Voter Registration Act of 1993 
to provide for the treatment of institutions of higher education as 
voter registration agencies; to the Committee on Rules and 
Administration.
  Mr. DURBIN. Mr. President, I rise today to introduce the Student 
Voter Opportunity to Encourage Registration Act of 2008--the Student 
VOTER Act.
  The success of America's experiment in democracy lies in broad 
participation and deep civic engagement. From the Reconstruction 
Amendments, to women's suffrage, to the abolition of the poll tax, and 
finally the ratification of the 26th amendment, we have witnessed a 
steady but difficult march toward a more inclusive nation.
  To realize the full potential of these great strides, the Student 
VOTER Act provides a pathway to participation for America's youth.
  The need for this bill is clear. Despite a small rise in youth voting 
in the current Presidential election cycle, the larger trend is 
unmistakable. Young voters--historically independent-minded--are far 
less likely to cast a ballot than older voters. In the 2004 
Presidential election, only 47 percent of 18 to 24-year-old citizens 
voted, compared to 66 percent of citizens 25 and older. This marked the 
eighth straight Presidential contest in which less than half of these 
young Americans actually participated. In fact, the percentage of young 
Americans who vote today is lower than it was in the first Presidential 
election following the 26th amendment's ratification.
  Several obstacles stand in the way of youth voting. Because so many 
students are first-time voters, they often are unfamiliar with how to 
register. In some States, first-time voters must register in person in 
order to cast an absentee ballot. For students who attend college 
outside of their home State or who do not have access to 
transportation, these requirements can be cumbersome, confusing, and 
insurmountable.
  Of course, apathy contributes to the fact that young voters tend to 
stay home on election day. But studies show that when an effort is made 
to reach out to young voters, they will cast a ballot. If we fail to 
reach out to the youth, we may lose a generation of civically minded 
Americans.
  Congress already tried to encourage youth voting with a provision in 
the Higher Education Act of 1998, which requires colleges and 
universities to make a ``good faith effort'' to register students to 
vote. Many universities fulfill that obligation. For example, even 
before orientation begins, Brown University in Providence provides its 
students with voter registration materials not only for Rhode Island 
but also for each student's home State.
  Unfortunately, too many colleges and universities have failed to 
follow Brown's lead. According to a 2004 Harvard University study, only 
17 percent of colleges and universities nationwide fully comply with 
the Higher Education Act. The health of our democracy suffers as a 
result.
  The Student VOTER Act offers a straightforward solution: it requires 
colleges and universities that receive Federal funds to offer voter 
registration services to students. The Student VOTER Act simply amends 
the National Voter Registration Act of 1993, popularly known as the 
Motor Voter Act, to designate colleges and universities that receive 
Federal funds as voter registration agencies.

[[Page 17731]]

  That designation is fitting. Our institutions of higher education are 
among the wealthiest in the world, and they lead the globe in producing 
Nobel laureates and scientific breakthroughs. But colleges and 
universities also have a special obligation to educate an active, 
informed citizenry.
  The act does not impose a heavy burden on colleges and universities. 
We know this because the Student VOTER Act builds on the successful 
model of the Motor Voter Act, which brought voter registration to DMV 
offices across the country, adding 5 million voters--mainly 
independents--to the rolls in the 8 months after its passage. While 
some DMV offices simply mail completed registration forms to the 
appropriate clerk or registrar, others now use efficient, easy-to-use 
computer software to submit registrations electronically.
  This means that the price tag of the Student VOTER Act to colleges 
and universities is at most a 42-cent stamp for each student. I know 
most of my fellow Senators would agree that this is not too high a 
price to pay for a lifetime of civic engagement.
  In reality, costs should be even lower. Colleges and universities can 
provide voter registration services at student orientation or during 
class registration using the same technology that DMV offices already 
have implemented.
  Like the Motor Voter Act, this bill should pass with broad bipartisan 
support. It is a low-cost, commonsense solution to the very real 
problem of low youth voter turnout. It represents a natural but modest 
extension of the Higher Education Act and the Motor Voter Act without 
changing or amending any other State or Federal voting regulations in 
any way.
  The bill may also serve to depoliticize voter registration efforts on 
college campuses. Polls consistently show that young voters are less 
likely to identify with a political party than older voters. Polls 
generally show that more than 4 in 10 young voters identify as 
independents, with roughly 3 in 10 young voters identifying with each 
of the two major political parties. In a July 30, 2008 letter sent to 
Congress in support of this bill, the U.S. Student Association 
explained that under the present system, ``partisan student groups 
often become the main voter registrants, which can alienate undecided 
and independent voters. The Student VOTER Bill of 2008 seeks to 
institutionalize the dissemination of voting procedure and register 
more young people in a systematic and non-partisan capacity.''
  In addition to the U.S. Student Association, this bill is supported 
by U.S. PIRG and the Student Association for Voter Empowerment, SAVE. 
In particular, I would like to recognize Matthew Segal, SAVE's founder 
and a Chicago native, with whom my office worked closely to prepare 
this bill.
  I would also like to applaud the efforts of Representative Jan 
Schakowsky, a Democrat, and Representative Steven LaTourette, a 
Republican, who will introduce a companion bill today in the House of 
Representatives. The Student VOTER Bill of 2008 is a bipartisan effort 
that is an important step toward empowering our Nation's youth. I look 
forward to working with my Democratic and Republican colleagues in 
Congress to ensure its enactment into law.
  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. 3390

       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 ``Student Voter Opportunity To 
     Encourage Registration Act of 2008'' or the ``Student VOTER 
     Act of 2008''.

     SEC. 2. TREATMENT OF UNIVERSITIES AS VOTER REGISTRATION 
                   AGENCIES.

       (a) In General.--Section 7(a) of the National Voter 
     Registration Act of 1993 (42 U.S.C. 1973gg-5(a)) is amended--
       (1) in paragraph (2)--
       (A) by striking ``and'' at the end of subparagraph (A);
       (B) by striking the period at the end of subparagraph (B) 
     and inserting ``; and''; and
       (C) by adding at the end the following new subparagraph:
       ``(C) each institution of higher education (as defined in 
     section 101 of the Higher Education Act of 1965 (20 U.S.C. 
     1001)) in the State that receives Federal funds.''; and
       (2) in paragraph (6)(A), by inserting ``or, in the case of 
     an institution of higher education, with each registration of 
     a student for enrollment in a course of study'' after 
     ``assistance,''.
       (b) Amendment to Higher Education Act of 1965.--Section 
     487(a) of the Higher Education Act of 1965 (20 U.S.C. 
     1094(a)) is amended by striking paragraph (23).
                                 ______
                                 
      By Mr. REID (for himself and Mr. Ensign):
  S. 3393. A bill to promote conservation and provide for sensible 
development in Carson City, Nevada, and for other purposes; to the 
Committee on Energy and Natural Resources.
  Mr. REID. Mr. President, today I rise with my good friend Senator 
Ensign to introduce the Carson City Vital Community Act of 2008.
  The origins of this legislation can be found in Carson City's 
collaborative master planning effort, ``Envision Carson City.'' In 
2004, the elected officials in Carson City started a dialogue with 
their citizens to determine how the city should grow and change over 
the next 20 years. At the end of a 2-year public process, city leaders 
had a clear message from their residents. The community wants to keep 
growth compact, maintain the integrity of the Bureau of Land Management 
(BLM) and Forest Service lands surrounding the town, enhance open space 
opportunities and maintain easy access to public lands. The Carson City 
Vital Community Act of 2008 was developed in close partnership with 
Carson City and other key stakeholders to help fulfill these goals.
  Before I describe this legislation and its importance, it might be 
helpful for me to explain that Carson City is both a city and a county. 
It wasn't always this way. For over a hundred years the town of Carson 
City was the county seat of Ormsby County. But in 1969 the county 
dissolved and the government functions were consolidated into what we 
now simply call Carson City.
  Like all but one of our counties in Nevada, Carson City is mostly 
Federal land. The town of Carson City is bounded on the west by Forest 
Service lands that stretch to the shores of Lake Tahoe and by BLM lands 
on the east. These open landscapes create a dramatic western backdrop 
for Nevada's State capital but also mean that the Federal Government is 
intimately involved in what would normally be local community 
decisions.
  This legislation makes much needed adjustments to the pattern of 
Federal land ownership in Carson City. We have strived to make changes 
that will improve the ability of the Federal land management agencies 
to focus on their core goals. All too often, the BLM and the Forest 
Service are distracted from proper forest and range management by urban 
encroachment issues. We have a unique situation in Carson City where 
the community has offered to take on the responsibilities of managing 
the wildland-urban interface, while also offering to convey a major 
inholding to the Forest Service for incorporation into the Humboldt-
Toiyabe National Forest. This is a major step in the right direction 
and hopefully will serve as a model for other communities around the 
west.
  Our legislation also provides lands to the Washoe Tribe, 
strengthening the Tribe's conservation and commercial efforts in Carson 
City. Additionally, nearly 20,000 acres of BLM lands surrounding Carson 
City will be permanently withdrawn from future develop to protect local 
viewsheds and public access. All of these actions will move Carson City 
one step closer to realizing the vision that it worked hard to develop 
through a public process that has now spanned over four years.
  Title I of this legislation aims to create a sensible land ownership 
pattern in Carson City, aligned with the community's vision of keeping 
growth compact and maintaining the integrity of the surrounding public 
lands. It also addresses two serious concerns facing the community: 
wildfires in the foothills of the Sierras and flooding along the Carson 
River.

[[Page 17732]]

  Under this title, roughly 2,200 acres of Carson City land will be 
transferred to the Forest Service. This prime, forested land is far 
removed from Carson City and is surrounded by state park lands and the 
Humboldt-Toiyabe National Forest. Incorporating this large inholding 
into the Humboldt-Toiyabe will allow for improved management for 
wildlife habitat, watershed protection, and other important uses. It 
will also ensure that the land remains undeveloped and open for public 
access.
  This title also makes important adjustments to the pattern of city 
and Federal lands on the west side of the town. Roughly 1,000 acres of 
Forest Service land bordering urban areas will be conveyed to Carson 
City as protected open space. This conveyance will let both Carson City 
and the Forest Service do what they do best. Carson City can more 
actively manage urban interface uses and the Forest Service can focus 
on their core responsibilities of resource protection and forest 
health.
  Proper management of this buffer area between Carson City's 
neighborhoods and businesses and the broader public lands is an issue 
of great concern to the community. On July 14, 2004, thirty-one homes 
and three businesses were destroyed or damaged in the Waterfall Fire 
which spanned nearly 9,000 acres of public and private land. Through 
our legislation, the Forest Service land that currently borders 
neighborhoods will be conveyed to Carson City, allowing the city to 
take a more prominent role in managing fuel loads in this critical 
area.
  There is a different threat on the east side of Carson Valley. The 
Carson River has a long history of dramatic flooding. Over the last 150 
years the river has flooded over 30 times, with half of those floods 
causing extensive damage. Two 100-year flood events have struck just in 
the last decade, one of which caused over $5 million in damage. In a 
show of real vision and leadership, Carson City has started an 
aggressive campaign to acquire land along the Carson River, recognizing 
the value of protecting the natural function of the local floodplains.
  Our legislation will enhance Carson City's efforts to acquire lands 
in the river corridor by conveying the 3,500-acre Silver Saddle Ranch 
and Prison Hill area from BLM to the city. Transferring these 
properties to Carson City will help create a large regional park along 
the Carson River, support the community's flood control efforts and 
address the community's call for open space. The city has been a key 
partner in the management of the Silver Saddle Ranch for over a decade. 
Along with the Friends of Silver Saddle, Carson City has taken the lead 
on the day-to-day management of the property, including providing law 
enforcement patrols and caring for facilities.
  It is important to note that when this land is conveyed to the city 
it will come with conditions. The Federal Government will hold a 
conservation easement on these parcels to ensure that the scenic and 
natural qualities of the Silver Saddle Ranch and Prison Hill are 
protected in perpetuity. The details of the conservation easement, 
which will focus on protecting the river corridor and the important 
wildlife habitat associated with the property, will be worked out by 
BLM, Carson City and key stakeholders like Friends of Silver Saddle and 
The Nature Conservancy.
  In addition to supporting Carson City's forward-looking plans for the 
Carson River and its floodplain, conveying the Silver Saddle and Prison 
Hill area to Carson City also makes sense from a resource management 
perspective. BLM's Carson City District Office manages over 5 million 
acres of public land in western Nevada and eastern California. Their 
strength is managing Nevada's wide open spaces--not urban interface. 
Carson City, on the other hand, has far more resources to bring to bear 
in managing the Silver Saddle Ranch and Prison Hill area. Carson City 
has over 20 employees working on parks and open space, including two 
park rangers. They also have contracts in place with some of Nevada's 
most respected natural resource experts. The BLM will also keep a light 
hand in the management of this property by virtue of the conservation 
easement.
  There is one unique provision related to the Silver Saddle Ranch and 
Prison Hill conveyance that deserves special mention. A small section 
of this land was once owned by Carson City. This 62-acre property, 
known as the Bernhard parcel, was slated to be subdivided into 35 home 
sites in 2001. The BLM and Carson City both recognized that the 
acquisition of this land was a priority for the protection of the 
Carson River corridor. Carson City responded quickly and acquired the 
parcel for open space before it could be developed. Their purchase 
price in 2001 was roughly $1 million. Later, in 2006, the BLM purchased 
the Bernhard parcel from Carson City for fair market value, which by 
that time had reached $2.5 million.
  Under this legislation, we transfer the Bernhard parcel back to 
Carson City as part of the Silver Saddle Ranch and Carson River Area. 
We feel it is important that Carson City pay back 25 percent of the 
$1.5 million profit they made on their transaction with the BLM. Why 
just 25 percent? The 25 percent reflects the remaining value of the 
land that is being conveyed back to Carson City after the conservation 
easement is taken into account. In western Nevada, conservation 
easements restricting development typically reduce property values by 
anywhere from 75 percent to 90 percent. We have required Carson City to 
come up with 25 percent, the most generous estimate of remaining value 
for the Bernhard parcel. When received, these funds will be placed into 
an endowment account for the BLM to use for the monitoring and 
enforcement of the conservation easement on the Silver Saddle Ranch and 
Prison Hill Area.
  Our legislation also conveys roughly 1,700 acres of BLM land to 
Carson City for recreation and public purposes and open space. These 
are scattered parcels of BLM land in and around Carson City that would 
be used for primarily for parks, but also for flood control structures, 
municipal infrastructure like water tanks, and to give residents room 
to roam. Carson City already controls roughly a third of these acres 
through Recreation and Public Purpose Act leases. This bill would 
quickly and efficiently transfer these lands to the city.
  Another provision of Title I deals with 53 acres of land that Carson 
City acquired from BLM years ago, under the Recreation and Public 
Purposes Act. The city now believes the land is better suited for 
commercial development. Although Carson City already owns these lands, 
by statute, if the city uses the land for something other than public 
purposes, the land reverts back to the BLM. Our legislation would 
remove the reversionary interest on these 50 acres so that Carson City 
can sell the land at an appropriate time. If the City decides to sell 
the land, we require that it be auctioned, with proceeds returning to 
the Carson City special account which provides funding for federal 
acquisition of sensitive lands and protection of noted cultural 
resources.
  One of the parcels where the federal interest would be released is 
home to the Carson City Gun Club. Once on the edge of town, the 
shooting range is now surrounded by commercial development and the 
Eagle Valley Golf Course. Although our legislation would allow Carson 
City to sell this land, we have asked for and received a commitment 
that Carson City will not sell this property until the shooting 
facility has been relocated to another, more appropriate location.
  The first title of our legislation also transfers 50 acres of Forest 
Service land to the BLM. The Forest Service is also authorized to 
develop and implement, in partnership with Carson City, a plan for 
managing its land in a way that minimizes the impact of flood events on 
nearby residential areas.
  Under Title II, 150 acres of federal lands would be made available 
for sale through an open and competitive process. This includes the 50 
acres transferred from the Forest Service to the BLM in Title 1. All of 
the lands identified for sale in our legislation are isolated or 
seriously impacted by nearby

[[Page 17733]]

commercial or residential development. Both agencies have concluded 
that these parcels should be disposed of and that this action is 
consistent with their respective management plans.
  Similar to past Nevada land bills, this legislation directs the 
Secretary of Interior to reinvest the proceeds of these limited land 
sales back into important public projects. Ninety-five percent of the 
proceeds will be used to acquire environmentally sensitive lands in 
Carson City and to protect archaeological resources. The remaining five 
percent of the proceeds will go to Nevada's general education program.
  This title also permanently withdraws nearly 20,000 acres of BLM 
lands in Carson City from land sales and mineral development. These 
same lands, located north and east of Carson City are already 
administratively withdrawn by the BLM. This bill would make the 
withdrawal permanent, preserving foothill views, open space and access 
to public lands, in line with ``Envision Carson City.''
  Our bill also provides guidance that Off-Highway Vehicle (OHV) use on 
BLM lands in Carson City should be restricted to existing roads and 
trails until the BLM completes their travel management planning 
process. The Pine Nut Mountains east of Carson City are a favorite 
destination for local and visiting OHV enthusiasts. This provision will 
better protect this area until routes can be designated.
  Finally, the second title of the bill opens a new avenue for Carson 
City to continue their conservation efforts along the Carson River. The 
Southern Nevada Public Land Management Act (SNPLMA) will be amended to 
authorize funds for Carson City to acquire land for parks and trails 
along the Carson River and to authorize conservation initiatives, also 
along the Carson River. In addition, we make a small change to SNPLMA 
which will only affect Washoe County. In the White Pine County bill of 
2006 (P. L. 109-432), Washoe County was given access to SNPLMA through 
2011 to acquire part of the Ballardini Ranch. The county has made good 
progress towards this acquisition, but may not make the 2011 deadline. 
We are pleased to extend the authorization to 2015.
  Title III addresses the Washoe Tribe's pressing need for more land 
for residential and commercial development. Tribal lands adjacent to 
both of the colonies in Carson City, Stewart and Carson, would be 
expanded by this legislation. Carson Colony tribal lands would grow by 
over 280 acres. On this parcel, the lands located below the 5,200-foot 
elevation contour would be available for residential or commercial 
development. The lands above the 5,200-foot contour would only be 
available for traditional tribal uses, like ceremonial gatherings, 
hunting and plant collecting. Tribal lands at the Stewart Colony would 
grow by only 5 acres, all of which would be available for commercial 
and residential development.
  In 2003, Senator Ensign and I passed legislation that conveyed 25 
acres of Forest Service land at Skunk Harbor, on the shores of Lake 
Tahoe, to the Washoe Tribe. Unfortunately, the parcel was not 
accurately described in the legislation and consequently the land that 
was conveyed did not fully reflect our commitment to the Tribe. This 
bill includes a technical correction that will provide a long overdue 
fix to the Washoe Indian Tribe Trust Land Conveyance (P. L. 108-67).
  Lastly, this bill directs the Forest Service to develop a cooperative 
agreement with the Washoe Tribe to ensure the Tribe's access across 
Forest Service land for their traditional ``lifeway'' walk to Lake 
Tahoe. For centuries the Washoe people have moved from the Pine Nut 
Mountains east of Carson City in the fall to Lake Tahoe in the summer. 
Our legislation ensures that they are able to continue this important 
tradition.
  This bill, is built on years of public input. We believe it is a 
model piece of legislation and appreciate the support of our colleagues 
in this effort. We look forward to working with Chairman Bingaman, 
Ranking Member Domenici and the other distinguished members of the 
Energy and Natural Resources Committee to move this bill forward during 
the time we have remaining in this legislative session.
  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. 3393

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Carson 
     City Vital Community Act of 2008''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.

                      TITLE I--PUBLIC CONVEYANCES

Sec. 101. Conveyances of Federal land and City land.
Sec. 102. Transfer of administrative jurisdiction from the Forest 
              Service to the Bureau of Land Management.

                        TITLE II--LAND DISPOSAL

Sec. 201. Disposal of Carson City land.
Sec. 202. Disposition of proceeds.
Sec. 203. Withdrawal.
Sec. 204. Availability of funds.

 TITLE III--TRANSFER OF LAND TO BE HELD IN TRUST FOR THE WASHOE TRIBE, 
   SKUNK HARBOR CONVEYANCE CORRECTION, FOREST SERVICE AGREEMENT, AND 
                          ARTIFACT COLLECTION

Sec. 301. Transfer of land to be held in trust for Washoe Tribe.
Sec. 302. Correction of Skunk Harbor conveyance.
Sec. 303. Agreement with Forest Service.
Sec. 304. Artifact collection.

               TITLE IV--AUTHORIZATION OF APPROPRIATIONS

Sec. 401. Authorization of appropriations.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) City.--The term ``City'' means Carson City Consolidated 
     Municipality, Nevada.
       (2) Map.--The term ``Map'' means the map entitled ``Carson 
     City, Nevada Area'', dated July 17, 2008, and on file and 
     available for public inspection in the appropriate offices 
     of--
       (A) the Bureau of Land Management;
       (B) the Forest Service; and
       (C) the City.
       (3) Secretary.--The term ``Secretary'' means--
       (A) with respect to land in the National Forest System, the 
     Secretary of Agriculture, acting through the Chief of the 
     Forest Service; and
       (B) with respect to other Federal land, the Secretary of 
     the Interior.
       (4) Tribe.--The term ``Tribe'' means the Washoe Tribe of 
     Nevada and California, which is a federally recognized Indian 
     tribe.

                      TITLE I--PUBLIC CONVEYANCES

     SEC. 101. CONVEYANCES OF FEDERAL LAND AND CITY LAND.

       (a) In General.--Notwithstanding section 202 of the Federal 
     Land Policy and Management Act of 1976 (43 U.S.C. 1712) and 
     the Forest and Rangeland Renewable Resources Planning Act of 
     1974 (16 U.S.C. 1600 et seq.), if the City offers to convey 
     to the United States title to the non-Federal land described 
     in subsection (b)(1) that is acceptable to the Secretary of 
     Agriculture--
       (1) the Secretary of Agriculture shall accept the offer; 
     and
       (2) not later than 180 days after the date on which the 
     Secretary of Agriculture receives acceptable title to the 
     non-Federal land described in subsection (b)(1), the 
     Secretary of Agriculture and the Secretary of Interior shall 
     convey to the City, subject to valid existing rights and for 
     no consideration, except as provided in subsection (c)(1), 
     all right, title, and interest of the United States in and to 
     the Federal land or interest in land described in subsection 
     (b)(2).
       (b) Description of Land.--
       (1) Non-federal land.--The parcels of non-Federal land 
     referred to in subsection (a) are the approximately 2,260 
     acres of land administered by the City and identified on the 
     Map as ``To the U.S. Forest Service''.
       (2) Federal land.--The parcels of Federal land referred to 
     in subsection (a)(2) are--
       (A) the approximately 1,012 acres of Forest Service land 
     identified on the Map as ``To Carson City for Natural 
     Areas'';
       (B) the approximately 3,526 acres of Bureau of Land 
     Management land identified on the Map as ``Silver Saddle 
     Ranch and Carson River Area'';
       (C) the approximately 1,746 acres of Bureau of Land 
     Management land identified on the Map as ``To Carson City for 
     Parks and Public Purposes''; and
       (D) the approximately 53 acres of City land in which the 
     Bureau of Land Management has a reversionary interest that is 
     identified on the Map as ``Reversionary Interest of United 
     States Released''.
       (c) Conditions.--
       (1) Consideration.--Before the conveyance of the 62-acre 
     Bernhard parcel to the City, the City shall deposit in the 
     special account

[[Page 17734]]

     established by section 202(b)(1) an amount equal to 25 
     percent of the difference between--
       (A) the amount for which the Bernhard parcel was purchased 
     by the City on July 18, 2001; and
       (B) the amount for which the Bernhard parcel was purchased 
     by the Secretary on March 17, 2006.
       (2) Conservation easement.--As a condition of the 
     conveyance of the parcels of land described in subsection 
     (b)(2)(B), the Secretary, in consultation with Carson City 
     and affected local interests, shall reserve a perpetual 
     conservation easement to the parcels to protect, preserve, 
     and enhance the conservation values of the parcels, 
     consistent with subsection (d)(2).
       (3) Costs.--Any costs relating to the conveyance under 
     subsection (a), including any costs for surveys and other 
     administrative costs, shall be paid by the recipient of the 
     land being conveyed.
       (d) Use of Land.--
       (1) Natural areas.--
       (A) In general.--Except as provided in subparagraph (B), 
     the parcel of land described in subsection (b)(2)(A) shall be 
     managed by the City to maintain undeveloped open space and to 
     preserve the natural characteristics of the parcel of land in 
     perpetuity.
       (B) Exception.--Notwithstanding subparagraph (A), the City 
     may--
       (i) conduct projects on the parcel of land to reduce fuels;
       (ii) construct and maintain trails, trailhead facilities, 
     and any infrastructure on the parcel of land that is required 
     for municipal water and flood management activities; and
       (iii) maintain or reconstruct any improvements on the 
     parcel of land that are in existence on the date of enactment 
     of this Act.
       (2) Silver saddle ranch and carson river area.--
       (A) In general.--Except as provided in subparagraph (B), 
     the parcel of land described in subsection (b)(2)(B) shall--
       (i) be managed by the City to protect and enhance the 
     Carson River, the floodplain and surrounding upland, and 
     important wildlife habitat; and
       (ii) be used for undeveloped open space, passive 
     recreation, customary agricultural practices, and wildlife 
     protection.
       (B) Exception.--Notwithstanding subparagraph (A), the City 
     may--
       (i) construct and maintain trails and trailhead facilities 
     on the parcel of land;
       (ii) conduct projects on the parcel of land to reduce 
     fuels;
       (iii) maintain or reconstruct any improvements on the 
     parcel of land that are in existence on the date of enactment 
     of this Act; and
       (iv) allow the use of motorized vehicles on designated 
     roads, trails, and areas in the south end of Prison Hill.
       (3) Parks and public purposes.--The parcel of land 
     described in subsection (b)(2)(C) shall be managed by the 
     City for--
       (A) undeveloped open space; or
       (B) recreation or other public purposes in accordance with 
     the Act of June 14, 1926 (commonly known as the ``Recreation 
     and Public Purposes Act'') (43 U.S.C. 869 et seq.).
       (4) Reversionary interest.--
       (A) Release.--The reversionary interest described in 
     subsection (b)(2)(D) shall terminate on the date of enactment 
     of this Act.
       (B) Conveyance by city.--
       (i) In general.--If the City sells, leases, or otherwise 
     conveys any portion of the land described in subsection 
     (b)(2)(D), the sale, lease, or conveyance of land shall be--

       (I) through a competitive bidding process; and
       (II) except as provided in clause (ii), for not less than 
     fair market value.

       (ii) Conveyance to government or nonprofit.--A sale, lease, 
     or conveyance of land described in subsection (b)(2)(D) to 
     the Federal Government, a State government, a unit of local 
     government, or a nonprofit organization shall be for 
     consideration in an amount equal to the price established by 
     the Secretary of the Interior under section 2741.8 of title 
     43, Code of Federal Regulation (or successor regulations).
       (iii) Disposition of proceeds.--The gross proceeds from the 
     sale, lease, or conveyance of land under clause (i) shall be 
     distributed in accordance with section 202(a).
       (e) Reversion.--If a parcel of land conveyed under 
     subsection (a) is used in a manner that is inconsistent with 
     the uses described in paragraph (1), (2), (3), or (4) of 
     subsection (d), the parcel of land shall, at the discretion 
     of the Secretary, revert to the United States.
       (f) Miscellaneous Provisions.--
       (1) In general.--On conveyance of the non-Federal land 
     under subsection (a) to the Secretary of Agriculture, the 
     non-Federal land shall--
       (A) become part of the Humboldt-Toiyabe National Forest; 
     and
       (B) be administered in accordance with the laws (including 
     the regulations) and rules generally applicable to the 
     National Forest System.
       (2) Management plan.--The Secretary of Agriculture, in 
     consultation with the City and other interested parties, may 
     develop and implement a management plan for National Forest 
     System land that ensures the protection and stabilization of 
     the National Forest System land to minimize the impacts of 
     flooding on the City.

     SEC. 102. TRANSFER OF ADMINISTRATIVE JURISDICTION FROM THE 
                   FOREST SERVICE TO THE BUREAU OF LAND 
                   MANAGEMENT.

       (a) Conveyance.--Notwithstanding the Forest and Rangeland 
     Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et 
     seq.), administrative jurisdiction over the approximately 50 
     acres of Forest Service land identified on the Map as 
     ``Parcel #1'' is transferred, from the Secretary of 
     Agriculture to the Secretary of the Interior.
       (b) Costs.--Any costs relating to the transfer under 
     subsection (a), including any costs for surveys and other 
     administrative costs, shall be paid by the Secretary of the 
     Interior.
       (c) Use of Land.--
       (1) Right-of-way.--Not later than 120 days after the date 
     of enactment of this Act, the Secretary of the Interior shall 
     grant to the City a right-of-way for the maintenance of flood 
     management facilities located on the land.
       (2) Disposal.--The land referred to in subsection (a) shall 
     be disposed of in accordance with section 201.
       (3) Disposition of proceeds.--The gross proceeds from the 
     disposal of land under paragraph (2) shall be distributed in 
     accordance with section 202(a).

                        TITLE II--LAND DISPOSAL

     SEC. 201. DISPOSAL OF CARSON CITY LAND.

       (a) In General.--Notwithstanding sections 202 and 203 of 
     the Federal Land Policy and Management Act of 1976 (43 U.S.C. 
     1712, 1713), the Secretary of the Interior shall, in 
     accordance with that Act, this title, and other applicable 
     law, and subject to valid existing rights, conduct sales of 
     the parcels of Federal land described in subsection (b) to 
     qualified bidders.
       (b) Description of Land.--The parcels of Federal land 
     referred to in subsection (a) are--
       (1) the approximately 103 acres of Bureau of Land 
     Management land identified as ``Lands for Disposal'' on the 
     Map; and
       (2) the approximately 50 acres of Bureau of Land Management 
     land identified as ``Parcel #1'' on the Map.
       (c) Compliance With Local Planning and Zoning Laws.--Before 
     a sale of Federal land under subsection (a), the City shall 
     submit to the Secretary a certification that qualified 
     bidders have agreed to comply with--
       (1) City zoning ordinances; and
       (2) any master plan for the area approved by the City.
       (d) Method of Sale; Consideration.--The sale of Federal 
     land under subsection (a) shall be--
       (1) consistent with subsections (d) and (f) of section 203 
     of the Federal Land Policy and Management Act of 1976 (43 
     U.S.C. 1713);
       (2) unless otherwise determined by the Secretary, through a 
     competitive bidding process; and
       (3) for not less than fair market value.
       (e) Withdrawal.--Subject to valid existing rights, the 
     Federal land described in subsection (b) is withdrawn from--
       (1) all forms of entry and appropriation under the public 
     land laws;
       (2) location, entry, and patent under the mining laws; and
       (3) operation of the mineral leasing and geothermal leasing 
     laws.
       (f) Deadline for Sale.--
       (1) In general.--Except as provided in paragraph (2), not 
     later than 1 year after the date of enactment of this Act, if 
     there is a qualified bidder for the land described in 
     paragraphs (1) and (2) of subsection (b), the Secretary of 
     the Interior shall offer the land for sale to the qualified 
     bidder.
       (2) Postponement; exclusion from sale.--
       (A) Request by carson city for postponement or exclusion.--
     At the request of the City, the Secretary shall postpone or 
     exclude from the sale under paragraph (1) all or a portion of 
     the land described in paragraphs (1) and (2) of subsection 
     (b).
       (B) Indefinite postponement.--Unless specifically requested 
     by the City, a postponement under subparagraph (A) shall not 
     be indefinite.

     SEC. 202. DISPOSITION OF PROCEEDS.

       (a) In General.--Of the proceeds from the sale of land 
     under sections 101(d)(4)(B) and 201(a)--
       (1) 5 percent shall be paid directly to the State for use 
     in the general education program of the State; and
       (2) the remainder shall be deposited in a special account 
     in the Treasury of the United States, to be known as the 
     ``Carson City Special Account'', and shall be available 
     without further appropriation to the Secretary until expended 
     to--
       (A) reimburse costs incurred by the Bureau of Land 
     Management for preparing for the sale of the Federal land 
     described in section 201(b), including the costs of--
       (i) surveys and appraisals; and
       (ii) compliance with--

       (I) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.); and
       (II) sections 202 and 203 of the Federal Land Policy and 
     Management Act of 1976 (43 U.S.C. 1712, 1713);

       (B) reimburse costs incurred by the Bureau of Land 
     Management and Forest Service for preparing for, and carrying 
     out, the transfers

[[Page 17735]]

     of land to be held in trust by the United States under 
     section 301;
       (C) acquire land or an interest in environmentally 
     sensitive land; and
       (D) conduct an inventory of, evaluate, and protect unique 
     archaeological resources (as defined in section 3 of the 
     Archaeological Resources Protection Act of 1979 (16 U.S.C. 
     470bb)) of the City.
       (b) Silver Saddle Endowment Account.--
       (1) Establishment.--There is established in the Treasury of 
     the United States a special account, to be known as the 
     ``Silver Saddle Endowment Account'', consisting of such 
     amounts are deposited under section 101(c)(1).
       (2) Availability of amounts.--Amounts deposited in the 
     account established by paragraph (1) shall be available to 
     the Secretary, without further appropriation, for the 
     oversight and enforcement of the conservation easement 
     established under section 101(c)(2).
       (c) Investment of Accounts.--
       (1) In general.--Amounts deposited as principal in the 
     Carson City Special Account established by subsection (a)(2) 
     and the Silver Saddle Endowment Account established by 
     subsection (b)(1) shall earn interest in the amount 
     determined by the Secretary of the Treasury on the basis of 
     the current average market yield on outstanding marketable 
     obligations of the United States of comparable maturities.
       (2) Availability.--Any interest earned under paragraph (1) 
     shall be--
       (A) added to the principal of the applicable account; and
       (B) expended in accordance with subsection (a)(2) or 
     (b)(2), as applicable.

     SEC. 203. WITHDRAWAL.

       (a) In General.--Subject to valid existing rights, the 
     Federal land described in subsection (b) is permanently 
     withdrawn from--
       (1) all forms of entry and appropriation under the public 
     land laws and mining laws;
       (2) location and patent under the mining laws; and
       (3) operation of the mineral laws, geothermal leasing laws, 
     and mineral material laws.
       (b) Description of Land.--The land referred to in 
     subsection (a) consists of approximately 19,747 acres, which 
     is identified on the Map as ``Urban Interface Withdrawal''.
       (c) Off-Highway Vehicle Management.--Until the date on 
     which the Secretary, in consultation with the State, the 
     City, and any other interested persons, completes a 
     transportation plan for Federal land in the City, the use of 
     motorized and mechanical vehicles on Federal land within the 
     City shall be limited to roads and trails in existence on the 
     date of enactment of this Act unless the use of the vehicles 
     is needed--
       (1) for administrative purposes; or
       (2) to respond to an emergency.

     SEC. 204. AVAILABILITY OF FUNDS.

       Section 4(e) of the Southern Nevada Public Land Management 
     Act of 1998 (Public Law 105-263; 112 Stat. 2346; 116 Stat. 
     2007; 117 Stat. 1317; 118 Stat. 2414; 120 Stat. 3045) is 
     amended--
       (1) in paragraph (3)(A)(iv), by striking ``Clark, Lincoln, 
     and White Pine Counties and Washoe County (subject to 
     paragraph 4))'' and inserting ``Clark, Lincoln, and White 
     Pine Counties and Washoe County (subject to paragraph 4)) and 
     Carson City (subject to paragraph (5))'';
       (2) in paragraph (3)(A)(v), by striking ``Clark, Lincoln, 
     and White Pine Counties'' and inserting ``Clark, Lincoln, and 
     White Pine Counties and Carson City (subject to paragraph 
     (5))'';
       (3) in paragraph (4), by striking ``2011'' and inserting 
     ``2015''; and
       (4) by adding at the end the following:
       ``(5) Limitation for carson city.--Carson City shall be 
     eligible to nominate for expenditure amounts to acquire land 
     or an interest in land for parks or natural areas and for 
     conservation initiatives--
       ``(A) adjacent to the Carson River; or
       ``(B) within the floodplain of the Carson River.''.

 TITLE III--TRANSFER OF LAND TO BE HELD IN TRUST FOR THE WASHOE TRIBE, 
   SKUNK HARBOR CONVEYANCE CORRECTION, FOREST SERVICE AGREEMENT, AND 
                          ARTIFACT COLLECTION

     SEC. 301. TRANSFER OF LAND TO BE HELD IN TRUST FOR WASHOE 
                   TRIBE.

       (a) In General.--Subject to valid existing rights, all 
     right, title, and interest of the United States in and to the 
     land described in subsection (b)--
       (1) shall be held in trust by the United States for the 
     benefit and use of the Tribe; and
       (2) shall be part of the reservation of the Tribe.
       (b) Description of Land.--The land referred to in 
     subsection (a) consists of approximately 293 acres, which is 
     identified on the Map as ``To Washoe Tribe''.
       (c) Survey.--Not later than 180 days after the date of 
     enactment of this Act, the Secretary of Agriculture shall 
     complete a survey of the boundary lines to establish the 
     boundaries of the land taken into trust under subsection (a).
       (d) Use of Land.--
       (1) Gaming.--Land taken into trust under subsection (a) 
     shall not be eligible, or considered to have been taken into 
     trust, for class II gaming or class III gaming (as those 
     terms are defined in section 4 of the Indian Gaming 
     Regulatory Act (25 U.S.C. 2703)).
       (2) Trust land for ceremonial use and conservation.--With 
     respect to the use of the land taken into trust under 
     subsection (a), the Tribe--
       (A) shall limit the use of the land above the 5,200' 
     elevation contour to--
       (i) traditional and customary uses; and
       (ii) stewardship conservation for the benefit of the Tribe; 
     and
       (B) shall not permit any--
       (i) permanent residential or recreational development on 
     the land; or
       (ii) commercial use of the land, including commercial 
     development or gaming.
       (3) Trust land for commercial and residential use.--With 
     respect to the use of the land identified as ``To Washoe 
     Tribe'' on the Map, the Tribe shall limit the use of the land 
     below the 5,200' elevation to--
       (A) traditional and customary uses;
       (B) stewardship conservation for the benefit of the Tribe; 
     and
       (C)(i) residential or recreational development; or
       (ii) commercial use.
       (4) Thinning; landscape restoration.--With respect to the 
     land taken into trust under subsection (a), the Secretary of 
     Agriculture, in consultation and coordination with the Tribe, 
     may carry out any thinning and other landscape restoration 
     activities on the land that is beneficial to the Tribe and 
     the Forest Service.

     SEC. 302. CORRECTION OF SKUNK HARBOR CONVEYANCE.

       (a) Purpose.--The purpose of this section is to amend 
     Public Law 108-67 (117 Stat. 880) to make a technical 
     correction relating to the land conveyance authorized under 
     that Act.
       (b) Technical Correction.--Section 2 of Public Law 108-67 
     (117 Stat. 880) is amended--
       (1) by striking ``Subject to'' and inserting the following:
       ``(a) In General.--Subject to'';
       (2) in subsection (a) (as designated by paragraph (1)), by 
     striking ``the parcel'' and all that follows through the 
     period at the end and inserting the following: ``and to 
     approximately 23 acres of land identified as `Parcel #1' on 
     the map entitled `Skunk Harbor Conveyance Correction' and 
     dated June 24, 2008, the western boundary of which is the low 
     water line of Lake Tahoe at elevation 6,223.0 (Lake Tahoe 
     Datum).''; and
       (3) by adding at the end the following:
       ``(b) Survey.--Not later than 180 days after the date of 
     enactment of this subsection, the Secretary of Agriculture 
     shall complete a survey of the boundary lines to establish 
     the boundaries of the trust land.
       ``(c) Public Access and Use.--Nothing in this Act prohibits 
     any approved general public access (through existing 
     easements or by boat) to, or use of, land remaining within 
     the Lake Tahoe Basin Management Unit after the conveyance of 
     the land to the Secretary of the Interior, in trust for the 
     Tribe, under subsection (a), including access to, and use of, 
     the beach and shoreline areas adjacent to the portion of land 
     conveyed under that subsection.''.
       (c) Date of Trust Status.--The trust land described in 
     section 2(a) of Public Law 108-67 (117 Stat. 880) shall be 
     considered to be taken into trust as of August 1, 2003.
       (d) Transfer.--The Secretary of the Interior, acting on 
     behalf of and for the benefit of the Tribe, shall transfer to 
     the Secretary of Agriculture administrative jurisdiction over 
     the land identified as ``Parcel #2'' on the map entitled 
     ``Skunk Harbor Conveyance Correction'' and dated June 24, 
     2008.

     SEC. 303. AGREEMENT WITH FOREST SERVICE.

       The Secretary of Agriculture, in consultation with the 
     Tribe, shall develop and implement a cooperative agreement 
     that ensures regular access by members of the Tribe and other 
     people in the community of the Tribe across National Forest 
     System land from the City to Lake Tahoe for cultural and 
     religious purposes.

     SEC. 304. ARTIFACT COLLECTION.

       (a) Notice.--At least 180 days before conducting any ground 
     disturbing activities on the land identified as ``Parcel #2'' 
     on the Map, the City shall notify the Tribe of the proposed 
     activities to provide the Tribe with adequate time to 
     inventory and collect any artifacts in the affected area.
       (b) Authorized Activities.--On receipt of notice under 
     subsection (a), the Tribe may collect and possess any 
     artifacts relating to the Tribe in the land identified as 
     ``Parcel #2'' on the Map.

               TITLE IV--AUTHORIZATION OF APPROPRIATIONS

     SEC. 401. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as are 
     necessary to carry out this Act.
                                 ______
                                 
      By Mr. INHOFE:
  S. 3395. A bill to provide for marginal well production preservation 
an enhancement; to the Committee on Finance.
  Mr. INHOFE. Mr. President, a marginal well is defined as one which 
produces 15 barrels or less of oil per day. Yet, according to the 
Interstate Oil and Gas Compact Commission, IOGCC,

[[Page 17736]]

these marginal wells contribute nearly 18 percent of the oil and 9 
percent of the natural gas produced in America.
  In fact, marginal wells produced more than 335 million barrels of oil 
in 2006. That's equivalent to more than 60 percent as much as the 
United States imports annually from Saudi Arabia or 67 percent as much 
as the Nation imports annually from Venezuela. In my own State of 
Oklahoma, it is the small independents, basically mom-and-pop 
operations, that produce the majority of oil and natural gas, with 85 
percent of Oklahoma's oil coming from marginal wells.
  In addition to reducing our dependence on foreign oil, a producing 
well provides both State and Federal taxes, pays royalties to land and 
mineral owners, and keeps jobs and dollars on American soil and in 
American pockets. A plugged well provides none of this. On the 
contrary, the IOGCC reported that in 2006, plugged and abandoned 
marginal wells resulted in the loss of $1.77 billion in economic 
output, $369.2 million in earnings reductions, and 8,223 lost jobs.
  These statistics testify to the importance of America's marginal well 
production. With gasoline prices at record highs, Congress must ensure 
that government policies do not discourage, and instead prolong and 
enhance, production from these low volume wells.
  That is why today I am glad to join with my fellow Oklahoman, 
Congressman Dan Boren, to introduce the Marginal Well Production 
Preservation and Enhancement Act. This bill will streamline and clarify 
government regulations, prolong economic feasibility, and enhance 
production volumes from marginal wells. Every onshore oil and gas well 
in the Nation eventually declines into marginal production. The 
Marginal Well Production Preservation and Enhancement Act ensures that 
the Nation's policies recognize and reflect the economic importance of 
marginal well production. It's good for America's small producers, as 
well as America's consumers.
                                 ______
                                 
      By Mr. KOHL (for himself, Mr. Durbin, Mr. Kennedy, and Mr. 
        Casey):
  S. 3396. A bill to amend the Public Health Service Act to provide 
grants or contracts for prescription drug education and outreach for 
healthcare providers and their parents; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. KOHL. Mr. President, I rise today to introduce the Independent 
Drug Education and Outreach Act. Over the past year, the Committee on 
Aging has been taking a close look at the relationship between the 
pharmaceutical industry and our Nation's physicians. Not only does the 
interaction between these two parties seem to be fraught with conflicts 
of interest, but it is likely that the marketing methods employed by 
drug companies--and the manner in which they educate doctors about 
their products--have an impact on the rising costs of prescription 
drugs in America.
  When it comes to knowing what treatment options are available to 
doctors, pharmaceutical sales reps are currently one of the most common 
ways physicians learn about the latest drugs on the market. However, 
these sales reps often seem to confuse educating with selling, and 
evidence shows that doctors' prescribing patterns can be heavily 
influenced by the sometimes biased information handed out by these 
sales representatives.
  The Independent Drug Education and Outreach Act offers an alternative 
method of providing information to doctors. It's called academic 
detailing, and we believe it can have a positive impact on both quality 
and cost of healthcare nationwide. Academic detailing provides 
physicians and other prescribers with an objective source of unbiased 
information on all prescription drugs, based on scientific research 
certified by HHS. The information is presented to doctors in their own 
offices by trained clinicians and pharmacists. Academic detailing 
ensures that physicians have access to the most comprehensive data 
available on drug safety of the full array of pharmaceutical treatment 
options, including low-cost generic alternatives.
  The proposed legislation would provide two sets of grants. The first 
grant program would create educational materials for doctors on the 
safety, efficacy, and cost of prescription drugs, including generic 
drugs and over-the-counter alternatives. A second set of up to ten 
grants would be used to dispatch trained medical staff--such as 
pharmacists, nurses, and other health care professionals--into 
physicians' offices to distribute and discuss the independent 
information. To ensure their neutrality, all grant recipients would be 
prohibited from receiving financial support from drug manufacturers.
  When doctors are better informed about the full range of drugs 
available on the market, they are more likely to prescribe the most 
effective treatment, as opposed to the latest brand-name blockbuster 
drug. The result is also lower health care costs. A study in the New 
England Journal of Medicine projected that for every dollar spent on 
academic detailing, two dollars can be saved in drug costs, due in part 
to the increased use of generic drugs. In this way, a Federal academic 
detailing program will likely pay for itself, while saving the 
government, consumers, and employers a considerable amount of money.
  I would like to thank my cosponsors in the Senate, Majority Whip Dick 
Durbin, HELP Committee Chairman Ted Kennedy, and Senator Bob Casey. I 
would also like to thank Representatives Henry Waxman and Frank 
Pallone, who are introducing a companion bill today in the House. We 
stand together with the goal of providing doctors with unbiased 
information on prescription drugs, and ensuring Americans receive the 
quality health care they deserve.
  Mr. DURBIN. Prescription drugs can restore health, prevent illness, 
and extend lives. But deciding whether to prescribe a drug, and which 
one, requires a careful balancing of potential benefits, risks, and 
costs.
  Prescribing should not be determined by how heavily a drug is 
promoted by a pharmaceutical company. Sadly, this is largely what 
happens today.
  Our health care system does not generate objective, easy-to-access 
information for doctors to guide them when it comes to prescribing 
options.
  New drugs are constantly entering the marketplace, but there's very 
little objective information about what drug might be marginally safer 
or more effective than existing drugs.
  Even the most vigilant doctors would be challenged to monitor the 
dozens of medical journals that could contain a helpful study comparing 
the safety and effectiveness of drugs.
  The pharmaceutical industry has taken advantage of this information 
void.
  It spends about $7 billion a year marketing to physicians and sends 
over 90,000 sales representatives, called detailers, to pitch their 
company's latest and most expensive drugs.
  What the drug industry is doing is not education. It is promotion. 
And there's a big difference between the two.
  The drug company sales representatives are hired more for their 
charisma than their scientific knowledge, and they provide doctors with 
information skewed to portray their company's product in the most 
favorable light.
  The sales representatives arrive with free lunches and free drug 
samples. Lucrative speaking and consulting fees are possible for 
doctors who change their prescribing to the liking of a drug company.
  The consequence of such a system is clear: an over-reliance on 
prescribing the latest, most expensive drugs even when existing drugs 
are as effective, as safe, or cost less.
  The pain-reliever Vioxx provides a cautionary tale of what can happen 
when marketing prowess trumps evidence-based medicine.
  Heavy marketing quickly made Vioxx a blockbuster drug with $3 billion 
a year in sales, despite a lack of evidence that it could provide any 
greater pain relief for most patients than Advil and despite early 
indications that it increased the risk of heart attacks. Many Americans 
needlessly paid more and placed themselves at

[[Page 17737]]

risk because the benefits of Vioxx were oversold and the risks 
minimized.
  Another example is the marketing of calcium-channel blockers in 
1990s. Heavy marketing increased the sales of the new patent-protected 
calcium-channel blockers but decreased sales of other blood-pressure 
drugs, such as thiazide diuretics and betablockers, that were cheaper 
and often more effective.
  A more recent example is the cholesterol drug Vytorin. The new drug 
has been heavily marketed since it was introduced in 2004. But a study 
released earlier this year did not find that Vytorin was any better at 
limiting plaque buildup in the arteries than Zocor, an older 
cholesterol drug that recently came out in a lower-priced generic form.
  We have to find a better way to educate physicians about prescription 
drug options and fill the void of medical information that the drug 
industry is now taking advantage of.
  Part of the solution is academic detailing, an idea first developed 
by Jerry Avorn, a physician at Harvard Medical School and Brigham and 
Women's Hospital in Boston.
  Academic detailing programs use some of the marketing tools that the 
drug industry has used so effectively, such as office visits to 
physicians and easy-to-read materials, but employs them to promote 
appropriate prescribing, based on an objective analysis of the medical 
literature.
  These programs--which send trained nurses and pharmacists, armed with 
unbiased information, to doctors' office--have been shown to generate 
$2 in savings for every $1 that it costs to implement them.
  Pennsylvania's PACE program is the State's pharmacy assistance 
program for low- and moderate-income seniors, and it runs the most 
notable publicly funded academic detailing program.
  The PACE academic detailing program has reduced costs associated with 
the overuse of Nexium, an acid-reflux drug for which there are similar 
lower-cost alternatives, and reduced the use of Cox-2 inhibitors such 
as Vioxx.
  Today, I am joining Senator Kohl and Senators Kennedy and Casey in 
introducing legislation that would promote additional academic 
detailing programs.
  The Independent Drug Education and Outreach Act would provide funds 
to medical schools, schools of pharmacies, and others for the 
development of educational materials based on what unbiased, peer-
reviewed medical literature says about appropriate prescribing for a 
particular condition.
  The bill also would provide funds to ten governmental or non-profit 
groups to train nurses and pharmacists and to send them to physician 
offices to present and discuss this information directly with 
physicians.
  The bill includes protections against financial conflicts of interest 
and calls on the Agency for Health Care Research and Quality to review 
the accuracy of the information provided to doctors.
  The Independent Drug Education and Outreach Act would begin to fix 
one of the glaring shortcomings of our current health care system: the 
lack of a systematic way of disseminating information on the relative 
benefits, risks, and costs of various treatment options directly to 
doctors.
  When it comes to prescription drugs, newer isn't necessarily better. 
In many cases, they are not.
  We can no longer afford to rely on drug company salespersons to be 
doctors' primary source of information about new drugs.
  I urge my colleagues to support this bill.
                                 ______
                                 
      By Mr. REID (for Mr. Kennedy (for himself, Mr. Leahy, Mr. Dodd, 
        Mr. Harkin, Ms. Mikulski, Mr. Bingaman, Mrs. Murray, Mr. Reed, 
        Mrs. Clinton, Mr. Obama, Mr. Sanders, Mr. Brown, and Mr. 
        Whitehouse)):
  S. 3398. A bill to amend the Federal Food, Drug, and Cosmetic Act 
with respect to liability under State and local requirements respecting 
devices; to the Committee on Health, Education, Labor, and Pensions.
  Mr. HARKIN. Mr. President, I am proud to join my colleagues in 
introducing the Medical Device Safety Act. This legislation reverses 
the Supreme Court's erroneous decision in Riegel v. Medtronic. There, 
the Court misread a statute designed to protect consumers by giving the 
Food and Drug Administration the authority to approve medical devices 
as preempting state tort claims when a medical device causes harm. 
Riegel prevents consumers from receiving fair compensation for injuries 
sustained, medical expenses incurred and lost wages, and it must be 
reversed.
  Congressional action should be unnecessary. When Congress passed the 
Medical Device Amendments, or MDA, in 1976, it did so ``[t]o provide 
for the safety and effectiveness of medical devices intended for human 
use.'' In other words, Congress passed the MDA precisely to protect 
consumers from dangerous medical devices. Toward that end, Congress 
gave the FDA the authority to approve, prior to a product entering the 
market, certain medical devices. For over 30 years the MDA has been in 
effect, and over that period FDA regulation and tort liability have 
complemented each other in protecting consumers.
  Given the MDA's purpose, and the fact it has operated successfully 
for 30 years, I was disheartened to find the Court twist the meaning of 
the statute to strip from consumers all remedies when a medical device 
fails. In contorted logic, the Court found that the FDA's requirements 
in approving a medical device preempted state laws designed to ensure 
that manufacturers marketed safe devices. In other words, the Court 
believes that a company's responsibility to its patients ends when it 
receives FDA approval. I strenuously disagree.
  In fact, there is absolutely no evidence that Congress intended that 
under the MDA, consumers would lose their only avenue for receiving 
compensation for injuries caused by negligent or inadequately labeled 
devices. Not a single member or committee report articulated the view 
that the statute would preempt state tort law.
  Nevertheless, because of the Court's decision, it is imperative that 
Congress act to ensure that those harmed by flawed medical devices can 
seek compensation. The bill introduced today addresses the Court's 
action by explicitly stating that actions for damages under state law 
are preserved. Specifically, it amends section 521 of the Federal Food, 
Drug, and Cosmetic Act to state that the section shall not be construed 
to modify or otherwise affect any action for damages or the liability 
of any person under the law of any State. And, the bill applies 
retroactively to the date of the enactment of the MDA, consistent with 
Congress's intent when it passed that act over 30 years ago. 
Practically, that means that it applies to cases pending on the date of 
enactment of this legislation or claims for injuries sustained prior to 
enactment.
  The harm from Riegel, unless Congress acts, cannot be more real. Take 
Riegel itself. In 1996, Charles Riegel had an angioplasty performed on 
his right coronary artery. During the procedure, Mr. Reigel's surgeon 
used Medtronic's Evergreen Balloon Catheter. The catheter burst inside 
Mr. Reigel's artery, causing him severe and permanent injuries and 
disabilities.
  Under our system of law, when someone is injured, he or she can 
normally seek redress from the entity that caused him or her harm. Yet, 
because of the Court's decision, Mr. Riegel and his wife will receive 
no compensation for the defective design and inadequate warning.
  It is not just Mr. Riegel. In 2002, Gary Despain was implanted with a 
defective hearing aid Soundtec manufactured. While working as a welder, 
he suffered damage to his right ear, apparently as a result of 
interference between a magnet in his hearing device and some electronic 
welding equipment being used in the plant. The device caused severe 
ringing in his ear, but the labeling for the device failed to warn of 
this potential risk. Mr. Despain had to have the device surgically 
removed and he remains unemployed and disabled as a result of the 
device.

[[Page 17738]]

  Nevertheless, two weeks after the Court's Riegel decision, Mr. 
Despain's lawsuit against Soundtec was dismissed and Mr. Despain has no 
ability to seek remedies for his injuries.
  The result of Riegel, therefore, is that in the event the FDA does an 
inadequate job of inspecting and assuring the safety of medical 
devices--and because tort actions are now precluded--then consumers are 
left at extreme risk.
  While FDA approval of medical devices, moreover, is important, it 
cannot be the sole protection for consumers. FDA approval is simply 
inadequate to replace the long-standing safety incentives and consumer 
protections that state tort law provides.
  As a senior member of the Health, Education, Labor and Pension 
Committee, which has oversight over FDA, I have worked hard to ensure 
that the FDA performs its job. No matter how effective the FDA is, 
however, the FDA simply cannot guarantee that no defective, dangerous 
and deadly medical device will reach consumers. As the former Director 
of the FDA's Center for Devices and Radiological Health acknowledged, 
the FDA's ``system of approving devices isn't perfect, and that 
unexpected problems [with approved devices] do arise.'' In 1993, a 
House report identified a ``number of cases in which the FDA [had] 
approved devices that proved unsafe in use.''
  The fact is, the FDA conducts the approval process with minimal 
resources and simply does not have adequate funds to genuinely ensure 
that devices are safe or to properly and effectively reevaluate 
approvals as new information becomes available.
  Further, the FDA approval process is based on partial information. A 
principal shortcoming is that the device's manufacturer compiles the 
studies and data supporting an application, and the data is often 
unreliable. And, the FDA does not conduct independent investigations 
into a device's safety. A manufacturer, moreover, is not required to 
submit information about development of the device, including 
alternative designs, manufacturing methods and labeling possibilities 
that the manufacturer considered, but rejected.
  In 1993, an FDA committee found flaws in the design, conduct and 
analysis of the clinical studies used to support applications that were 
``sufficiently serious to impede the agency's ability to make the 
necessary judgments about [device] safety and effectiveness.'' It 
added, ``[o]ne of the main reasons [problems arise after approval] is 
that the data upon which we base our safety and effectiveness decisions 
isn't perfect.'' Likewise, in 1996, the Inspector General of the 
Department of Health and Human Services reported ``serious deficiencies 
. . . in the clinical data submitted as part of pre-market 
applications.''
  FDA review, moreover, is a one-time event with no reevaluation and 
very little FDA oversight once a device reaches doctors and patients. 
In fact, even the best-designed and most reliable clinical studies by 
their very nature cannot duplicate all aspects and hazards of everyday 
use. Moreover, while manufacturers are supposed to report defects and 
injuries, the FDA has admitted that there is ``severe underreporting'' 
of defects and injuries.
  Given the FDA's limitations, it is crucial that an individual have a 
right to seek redress. When defective medical devices reach the market, 
whether or not approved by the FDA, patients are often injured. Those 
injured are often left temporarily unable to work or to enjoy normal 
lives, and in many cases never fully recover. State tort law provides 
the only relief for patients injured by defective medical devices and 
should not be foreclosed.
  Not only does access to State court mean that a person injured can 
receive fair compensation, but there are other advantages. Such suits 
aid in exposing dangers and serve as a catalyst to address their 
consequences. Through discovery, litigation can help uncover previously 
unavailable information on adverse effects of products that might not 
have been caught during the regulatory system. Litigants can demand 
documents and information on product risks that might not have been 
shared with the FDA. In this way, the public as a whole is alerted to 
dangers in medical products.
  Finally, providing the ability to sue when injured provides an 
important incentive to manufacturers to use the utmost care. 
Additionally, threat of product liability suits creates continuing 
incentives for product manufacturers to improve the safety of their 
device, even after FDA approval.
  The Court fundamentally misread Congress's intent in passing the 
Medical Device Amendments in 1976, and Reigel represents yet another 
victory by big business over consumers. Those injured, however, deserve 
to have their day in court and are entitled to compensation when they 
are injured by faulty medical devices, have medical expenses to pay and 
lost wages, regardless of whether FDA approved a device or not. We must 
reverse this erroneous decision and ensure that those who have suffered 
serious injury at the hands of others receive justice.
                                 ______
                                 
      By Mrs. LINCOLN (for herself, Mr. Smith, Ms. Cantwell, Mr. 
        Cornyn, Mrs. Murray, Mrs. Dole, Ms. Landrieu, Mr. Chambliss, 
        Mr. Wicker, and Mr. Vitter):
  S. 3399. A bill to amend the Internal Revenue Code of 1986 to make 
permanent the reduction in the rate of tax on qualified timber gain of 
corporations, and for other purposes; to the Committee on Finance.
  Mrs. LINCOLN. Mr. President, I am very pleased to rise today to 
introduce the Timber Revitalization and Economic Enhancement Act II of 
2008 with my good friend, Senator Smith of Oregon. I also want to say a 
special thanks to our cosponsors, Senators Cantwell, Murray, Dole, 
Chambliss, Cornyn, Landrieu, Wicker and Vitter.
  This legislation has commonly been referred to as the TREE Act. I 
appreciate that Congress understood the importance of the TREE Act with 
its inclusion and enactment in the Farm Bill earlier this year. But, 
unfortunately, this tax policy is already set to expire in less than 
one year. So today, my colleagues and I introduce the TREE Act II to 
make this important forest policy permanent.
  In my home State of Arkansas, the est products industry is a 
foundation of our economy and culture. More than 50 percent of Arkansas 
land is forested. Much of this is sustainably managed to create 
products we use every day. In addition, there are jobs associated with 
the growing of these forests and manufacture of these great products. 
More than 32,000 Arkansas men and women work in our woods, at our 
sawmills and in our paper mills. These are good jobs located in our 
small rural towns.
  However, these jobs and this industry continue to face many 
challenges. The TREE Act II addresses one of these challenges. Just as 
it is important to have diversity in our forests, it is also important 
to maintain diversity in our forestry industry, and we must ensure that 
all business forms have the necessary tools so they can be successful 
in the global marketplace. Timber companies that are organized as 
corporations continue to be under intensifying pressure to reorganize. 
In that case, a corporation that owns substantial manufacturing 
facilities would be forced to sell some of those facilities and to make 
other structural changes in order to comply with the relevant tax rules 
that it would newly become subject to. This would be likely to cause 
disruptions in some of these communities and also would make it harder 
for U.S. companies to compete internationally.
  In Arkansas, like so many other States across our Nation, a strong 
forest product industry is essential to having a strong economy. A 
permanent solution to the TREE Act II is imperative for this industry 
and supporting the jobs it provides. I look forward to working with my 
colleagues on the Senate Finance Committee to ensure this important tax 
policy is made permanent.
                                 ______
                                 
      By Mr. FEINGOLD (for himself and Mr. Whitehouse):
  S. 3405. A bill to prohibit secret modifications and revocations of 
the law, and for other purposes; to the Committee on Homeland Security 
and Governmental Affairs.

[[Page 17739]]


  Mr. FEINGOLD. Mr. President, today, the junior Senator from Rhode 
Island, Senator Whitehouse, and I will introduce the Executive Order 
Integrity Act of 2008. The bill prevents secret changes to published 
Executive Orders by requiring the President to place a notice in the 
Federal Register when he has modified or revoked a published Order. 
Through this simple measure, the bill takes an important step toward 
stemming the growth of secret law in the executive branch.
  The principle behind this bill is straightforward. It is a basic 
tenet of democracy that the people have a right to know the law. 
Indeed, the notion of ``secret law'' has been described in court 
opinions and law treatises as ``repugnant'' and ``an abomination.'' 
That is why the laws passed by Congress have historically been matters 
of public record.
  But the law that applies in this country includes more than just 
statutes. It includes regulations, the controlling legal 
interpretations of courts and the executive branch, and certain 
Presidential directives. As we learned at a hearing of the Judiciary 
Committee's Constitution Subcommittee that I chaired in April, some of 
this body of executive and judicial law is increasingly being kept 
secret from the public, and too often from Congress as well. The Bush 
administration has concealed Department of Justice legal opinions, 
interpretations of the Foreign Intelligence Surveillance Court, and 
even the agency rule that requires Americans to show identification at 
airports.
  The shroud of secrecy extends to Executive Orders and other 
Presidential directives that carry the force of law. The Federal 
Register Act requires the President to publish any Executive Orders 
that have general applicability and legal effect. But through the 
diligent efforts of my colleague Senator Whitehouse, we learned last 
December that the Department of Justice has taken the position that a 
President can ``waive'' or ``modify'' any Executive Order without any 
notice to the public or Congress--simply by not following it. In other 
words, even in cases where the President is required to make the law 
public, the President can change the law in secret.
  The Office of Legal Counsel memorandum that contains this position is 
still classified, but Senator Whitehouse convinced the Department of 
Justice to declassify certain statements in the memorandum. The Senator 
from Rhode Island spoke on the floor last December, and many times 
since then, about these statements. They include the statement that 
``[w]henever [the President] wishes to depart from the terms of a 
previous executive order,'' he may do so, because ``an executive order 
cannot limit a President.'' And he doesn't have to change the executive 
order, or give notice that he's violating it, because by ``depart[ing] 
from the executive order,'' the President ``has instead modified or 
waived it.''
  Now, no one disputes that a President can withdraw or revise an 
Executive Order at any time; that is every President's prerogative. But 
abrogating a published Executive order without any public notice works 
a secret change in the law. Worse, because the published Order stays on 
the books, it actively misleads Congress and the public as to what the 
law is.
  This is not just a hypothetical problem dreamed up by the Office of 
Legal Counsel. It has happened, and it could happen again. To list just 
one example, the administration's warrantless wiretapping program not 
only violated the Foreign Intelligence Surveillance Act; it was 
inconsistent with several provisions of Executive Order 12333, the 
longstanding executive order governing electronic surveillance and 
other intelligence activities. Apparently, the administration believed 
its actions constituted a tacit amendment of that Executive Order. And 
who knows how many other Executive Orders have been secretly revoked or 
amended by the conduct of this Administration.
  The bill that Senator Whitehouse and I will introduce provides a 
simple solution to this problem. If the President revokes, modifies, 
waives, or suspends a published Executive Order or similar directive, 
notice of this change in the law must be placed in the Federal Register 
within 30 days. The notice must specify the Order or the provision that 
has been affected; whether the change is a revocation, a modification, 
a waiver, or a suspension; and the nature and circumstances of the 
change. If information about the nature and circumstances of the change 
is classified, it is exempt from the publication requirement, but the 
information still must be provided to Congress so that we, as 
legislators, know how the law has been changed.
  That is what our bill does; now let me talk briefly about what our 
bill does not do. First, it does not expand the existing legal 
requirements, under the Federal Register Act, that determine which 
Executive Orders must be published. To the extent the Federal Register 
Act permits a certain amount of ``secret law'' in the form of 
unpublished Executive Orders, our bill leaves that framework in place.
  Second, our bill does not require public notice when the President 
revokes or modifies an unpublished Executive Order--even if the 
substance of the unpublished order is well-known to Congress and even 
the American people. This bill is narrowly aimed at the situation in 
which the American people have been given official notice of one 
version of the law, but a different version is being implemented.
  Third, the bill does not require the President to adhere to the terms 
of an Executive Order. Many scholars have argued that a President must 
adhere to a formally promulgated Executive Order unless or until the 
Order is formally withdrawn or amended, just as the head of an agency 
must adhere to the agency's regulations. I happen to agree. But this 
bill does not take a position on OLC's assertion that any deviation 
from the Executive Order by the President is a permissible amendment of 
that Order. It simply requires public notice that the amendment has 
occurred.
  Fourth, the bill does not require the publication of classified 
information about intelligence sources and methods or similar 
information. The basic fact that the published law is no longer in 
effect, however, cannot be classified. On rare occasions, national 
security can justify elected officials keeping some information secret, 
but it can never justify lying to the American people about what the 
law is. Maintaining two different sets of laws, one public and one 
secret, is just that--deceiving the American people about what law 
applies to the government's conduct.
  I commend Senator Whitehouse for his tireless work to bring this 
issue to light, and I urge all of my colleagues in the Senate to 
support this modest effort to ensure the integrity of our published 
laws.
  Mr. President, I ask unanimous consent that the text of the bill be 
placed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3405

       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 ``Executive Order Integrity 
     Act of 2008''.

     SEC. 2. REVOCATIONS, MODIFICATIONS, WAIVERS, AND SUSPENSIONS 
                   OF PRESIDENTIAL PROCLAMATIONS AND EXECUTIVE 
                   ORDERS.

       Section 1505 of title 44, United States Code, is amended by 
     adding at the end the following:
       ``(d) Revocations, Modifications, Waivers, and Suspensions 
     of Presidential Proclamations and Executive Orders.--
       ``(1) Notice required.--If the President, whether formally 
     or informally, and whether through express order, conduct, or 
     other means--
       ``(A) revokes, modifies, waives, or suspends any portion of 
     a Presidential proclamation, Executive Order, or other 
     Presidential directive that was published in the Federal 
     Register; or
       ``(B) authorizes the revocation, modification, waiver, or 
     suspension of any portion of such Presidential proclamation, 
     Executive Order, or other Presidential directive;

     notice of such revocation, modification, waiver, or 
     suspension shall be published in the Federal Register within 
     30 days after the revocation, modification, waiver, or 
     suspension, in accordance with the terms under paragraph (2).

[[Page 17740]]

       ``(2) Content of notice.--
       ``(A) In general.--Except as provided under subparagraph 
     (B), the notice required under paragraph (1) shall specify--
       ``(i) the Presidential proclamation, Executive Order, or 
     other Presidential directive, and any particular portion 
     thereof that is affected;
       ``(ii) for each affected directive or portion thereof, 
     whether that directive or portion thereof was revoked, 
     modified, waived, or suspended; and
       ``(iii) except where such information is classified, the 
     specific nature and circumstances of the revocation, 
     modification, waiver, or suspension.
       ``(B) Revised executive order.--Where the revocation, 
     modification, waiver, or suspension of a Presidential 
     proclamation, Executive Order, or other Presidential 
     directive is accomplished through the publication in the 
     Federal Register of a revised Presidential proclamation, 
     Executive Order, or other Presidential directive that 
     replaces or amends the one that was revoked, modified, 
     waived, or suspended, that revised Presidential proclamation, 
     Executive Order, or other Presidential directive shall 
     constitute notice for purposes of paragraph (1).
       ``(3) Classified information.--If the information specified 
     under paragraph (2)(A)(iii) is classified, such information 
     shall be provided to Congress, using the security procedures 
     established under section 501(d) of the National Security Act 
     of 1947 (50 U.S.C. 413(d)), in the form of a classified annex 
     delivered to--
       ``(A) the majority and minority leader of the Senate;
       ``(B) the Speaker, majority leader, and minority leader of 
     the House of Representatives;
       ``(C) the Committee on the Judiciary of the Senate and the 
     Committee on the Judiciary of the House of Representatives; 
     and
       ``(D) if the information pertains to national security 
     matters, the Select Committee on Intelligence of the Senate 
     and the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       ``(4) Rule of construction.--Nothing in this subsection 
     shall be construed as either authorizing or prohibiting the 
     revocation, modification, waiver, or suspension of any 
     Presidential proclamation, Executive Order, or other 
     Presidential directive that was published in the Federal 
     Register through means other than a formal directive issued 
     by the President and published in the Federal Register.''.
                                 ______
                                 
  By Mr. HARKIN (for himself, Mr. Hatch, Mr. Kennedy, Mr. Enzi, Mr. 
Specter, Mr. Obama, Mr. McCain, Mr. Dodd, Mr. Gregg, Mrs. Clinton, Mr. 
Alexander, Mr. Johnson, Mr. Roberts, Mr. Kerry, Mr. Coleman, Mr. 
Feingold, Ms. Snowe, Mr. Leahy, Mr. Burr, Mr. Brown, Mr. Smith, Mr. 
Durbin, Ms. Murkowski, Mr. Lautenberg, Mr. Warner, Mr. Sanders, Mr. 
Brownback, Mr. Reed, Mr. Martinez, Ms. Mikulski, Mr. Isakson, Mr. 
Casey, Mr. Craig, Mrs. Murray, Mr. Bennett, Ms. Landrieu, Ms. Collins, 
Mr. Biden, Mr. Allard, Mr. Nelson of Florida, Mr. Sununu, Mr. Cardin, 
Mr. Thune, Mr. Levin, Mr. Barrasso, Mrs. McCaskill, Mr. Crapo, Mr. 
Schumer, Mr. Stevens, Mr. Salazar, Mr. Voinovich, Mr. Tester, Mr. 
Cochran, Mr. Reid, Mr. Lugar, and Mr. Chambliss):
  S. 3406. A bill to restore the intent and protections of the 
Americans with Disabilities Act of 1990; read the first time.
  Mr. HARKIN. Mr. President, I am pleased to join with Senators Hatch, 
Obama, and McCain in introducing the ADA Amendments Act of 2008. This 
bipartisan legislation will allow us to advance and fulfill the 
original promise of the Americans with Disabilities Act, which was 
signed into law 18 years ago this month.
  I am especially grateful to the distinguished senior Senator from 
Utah, Senator Hatch, for his partnership and leadership in helping to 
craft our bill here in the Senate and to Senator Kennedy for his 
career-long leadership in fighting for the rights of people with 
disabilities. Senator Kennedy has worked from the beginning to help 
craft this bill.
  This bill is similar to bipartisan legislation introduced in the 
other body by House Majority Leader Steny Hoyer and Congressman Jim 
Sensenbrenner. That bill passed by a 402-17 margin last month.
  I am also grateful that, from the outset, these bills have been 
conceived and crafted in a spirit of genuine bipartisanship, with 
members of both parties coming together to do the right thing for all 
Americans with disabilities.
  Of course, passage of the Americans with Disabilities Act was also a 
bipartisan effort. As chief sponsor in the Senate, I worked very 
closely with Senator Bob Dole and others on both sides of the aisle. We 
received invaluable support from President George Herbert Walker Bush 
and key members of his administration, including White House Counsel 
Boyden Gray, Attorney General Richard Thornburgh, and Transportation 
Secretary Sam Skinner.
  The fact is that Americans of all walks of life take enormous pride 
in the progress we have made since the ADA was passed 18 years ago. 
Nobody wants to go backward.
  The Americans with Disabilities Act was one of the landmark civil 
rights laws of the 20th century--a long-overdue emancipation 
proclamation for Americans with disabilities. Thanks to that law, we 
have removed most physical barriers to movement and access for more 
than 50 million Americans with disabilities. We have required employers 
to provide reasonable accommodations so that people with disabilities 
can have equal opportunity in the workplace. And we have advanced the 
four goals of the ADA--equality of opportunity, full participation, 
independent living, and economic self-sufficiency.
  The reach--the triumph--of the ADA revolution struck home to me, some 
time back, when I attended a Washington convention of several hundred 
disability rights advocates, many with significant disabilities. They 
arrived in Washington on trains and airplanes built to accommodate 
people with mobility impairments. They came to the hotel on Metro and 
in regular busses, all seamlessly accessible by wheelchair. They 
navigated city streets equipped with curb cuts and ramps. The hotel 
where the convention took place was equipped in countless ways to 
accommodate people with disabilities. There was a sign language 
interpreter on the dais so that people with hearing disabilities could 
be full participants.
  For those of us who do not have disabilities, these many changes are 
all but invisible. But for individuals with disabilities, they are 
transforming and liberating. So are provisions in the ADA outlawing 
discrimination against qualified individuals with disabilities in the 
workplace, and requiring employers to provide ``reasonable 
accommodations.''
  But despite this progress, we face a challenge. In recent years, the 
courts have narrowed the definition of who qualifies as an ``individual 
with a disability.'' As a consequence, people with conditions that 
common sense tells us are disabilities are being told by courts that 
they are not in fact disabled, and are not eligible for the protections 
of the law. In a ruling last year, the 11th Circuit Court even 
concluded that a person with an intellectual disability was not 
``disabled'' under the ADA.
  When I explain to people what the Supreme Court has done, they are 
shocked. Impairments that the Court says are not to be considered 
disabilities under the law include amputation, intellectual 
disabilities, epilepsy, diabetes, muscular dystrophy, and multiple 
sclerosis.
  In three rulings in 1999--Sutton v. United Airlines, Murphy v. United 
Parcel Service, and Albertson's v. Kirkingburg--the Court held that 
corrective and mitigating measures must be considered in determining 
whether an individual has a disability under the ADA.
  In Sutton, the Supreme Court held that if a person is taking 
corrective measures to mitigate a physical or mental impairment, the 
effects of those measures must be taken into account when judging 
whether a person is ``disabled.'' Corrective measures could include 
anything from visual aids to a prosthesis. The Court went on to say 
that the approach adopted by the Equal Employment Opportunity 
Commission--that persons are to be evaluated in their hypothetical 
uncorrected state--was an impermissible interpretation of the ADA.
  In Murphy, the Court applied the same analysis to medication used to 
treat hypertension, and concluded that an employee who was fired 
because he

[[Page 17741]]

had hypertension was not protected under the ADA, because medication 
alleviated some of his symptoms.
  In Kirkingburg, the Supreme Court went further and declared that 
mitigating measures to be included in the determination of whether 
someone is disabled included not only artificial aids such as devices 
and medications, but also subconscious measures an individual may use 
to compensate for his or her impairment. Kirkingburg was an individual 
who was blind in one eye, and the court found that he was not 
``disabled'' under the ADA.
  Moreover, in another Supreme Court case, Toyota v. Williams 2002, the 
Court held that there must be a ``demanding standard for qualifying as 
disabled.'' This too, has resulted in a much more restrictive 
requirement than Congress intended. It has had the effect of excluding 
countless individuals with disabilities from the protections of the 
law.
  Together, these Supreme Court cases have created a supreme absurdity: 
The more successful a person is at coping with a disability, the more 
likely it is for a court to find that they are no longer sufficiently 
disabled to be protected by the ADA. And if these individuals are no 
longer protected under the ADA, then their requests for a reasonable 
accommodation at work can be denied. Or they can be fired--without 
recourse.
  Think about it this way: Imagine that you are an individual with a 
disability who has a job. Due to your disability, you take some 
medication or maybe you use an assistive device. The use of the 
medication or the assistive device allows you to be qualified to do 
your job. It's a job that you really love. At some point, you need to 
request a reasonable accommodation from your employer--maybe, if you 
have diabetes, it is 10 minutes a day to take your insulin and check 
your blood levels.
  Or perhaps you use a prosthesis. Your employer says no, they don't 
want to give you an accommodation. Eventually you get fired as a 
result. When you go to court, your employer argues that you aren't 
really a person with a disability so you aren't entitled to the 
protections of the ADA. Then, under these Supreme Court cases, the 
employer prevails by convincing the court that because of the 
mitigating measure--the prosthesis--you can't meet the test of being 
``disabled'' under the law.
  So what are you supposed to do in these cases? If you don't take the 
medication or use the assistive device, then you are not qualified to 
do the job. On the other hand, if you stop taking the medication, or 
stop using your prosthesis, you will be considered a person with a 
disability under the ADA, but you will be unable to do your job.
  What would you do? This is the Catch 22 situation that, today, 
confronts countless people with disabilities. This is clearly not what 
I intended, or what Congress intended, when we passed the ADA in 1990.
  It boggles the mind that any court would rule that, for instance, 
multiple sclerosis or muscular dystrophy, is not a disability covered 
by the ADA. But that is where we are today. And that is why we are 
introducing this bill today.
  This Senate bill builds on the success of the House bill. However, it 
seeks to broaden the definition of disability in a way that maximizes 
bipartisan consensus and minimizes unintended consequences.
  Our bill leaves the ADA's familiar disability definition language 
intact: A person with a disability is one who has a physical or mental 
impairment that ``substantially limits'' one or more of the major life 
activities of the individual. It does not substitute the term 
``materially restricts'' as in the House bill. Instead, the bill takes 
several specific and general steps that, individually and in 
combination, direct courts toward a more generous meaning and 
application of the definition.
  This bill will overturn the basis for the reasoning in the Supreme 
Court decisions--the Sutton trilogy and the Toyota case--that have been 
so problematic for so many people with very real disabilities.
  This bill fixes the ``mitigating measures'' problem by clearly 
stating that mitigating measures--like the medication or assistive 
devices I talked about earlier--are not to be considered in determining 
whether someone is entitled to the protections of the ADA.
  This bill will make it easier for people with disabilities to be 
covered by the ADA because it effectively expands the definition of 
disability to include many more major life activities, as well as a new 
category of major bodily functions. This latter point is important for 
those with immune disorders, or cancer, or kidney disease, or liver 
disease, because they no longer need to show what specific activity 
they are limited in, in order to meet the statutory definition of 
disability.
  This bill rejects the current EEOC regulation which says that 
``substantially limits'' means ``significantly restricted'' as too high 
a standard. We indicate Congress's expectation that the regulation be 
rewritten in a less stringent way, and we provide the authority to do 
so.
  This bill revives the ``regarded as'' prong of the definition of 
disability, and makes it easier for those with physical or mental 
impairments to be able to seek relief if they have been subjected to an 
adverse action because of their disability.
  This bill has a broad construction provision which instructs the 
courts and the agencies that the definition of disability is to be 
interpreted broadly, to the maximum extent permitted by the ADA.
  Mr. President, 18 years ago, the Americans with Disabilities Act 
passed with overwhelming bipartisan support. Likewise, today, with the 
introduction of this bill, we are building a strong bicameral, 
bipartisan majority to support the ADA Amendments Act of 2008.
  Let me say, again, that I am grateful for the bipartisan spirit with 
which we are approaching this legislation. We have an opportunity to 
come together and make an important difference for millions of 
Americans with disabilities.
  This bill also enjoys strong support out in the country. It is 
supported by most national disability organizations, as well as the 
U.S. Chamber of Commerce, the National Association of Manufacturers, 
the Society for Human Resource Management, and the Human Resources 
Policy Association.
  I look forward to working with my colleagues on both sides of the 
aisle to pass this bill, and to advance and fulfill the original 
promise of the Americans with Disabilities Act.
  Mr. President, I ask unanimous consent 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. 3406

       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 ``ADA Amendments Act of 
     2008''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds that--
       (1) in enacting the Americans with Disabilities Act of 1990 
     (ADA), Congress intended that the Act ``provide a clear and 
     comprehensive national mandate for the elimination of 
     discrimination against individuals with disabilities'' and 
     provide broad coverage;
       (2) in enacting the ADA, Congress recognized that physical 
     and mental disabilities in no way diminish a person's right 
     to fully participate in all aspects of society, but that 
     people with physical or mental disabilities are frequently 
     precluded from doing so because of prejudice, antiquated 
     attitudes, or the failure to remove societal and 
     institutional barriers;
       (3) while Congress expected that the definition of 
     disability under the ADA would be interpreted consistently 
     with how courts had applied the definition of a handicapped 
     individual under the Rehabilitation Act of 1973, that 
     expectation has not been fulfilled;
       (4) the holdings of the Supreme Court in Sutton v. United 
     Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases 
     have narrowed the broad scope of protection intended to be 
     afforded by the ADA, thus eliminating protection for many 
     individuals whom Congress intended to protect;
       (5) the holding of the Supreme Court in Toyota Motor 
     Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 
     (2002) further narrowed the broad scope of protection 
     intended to be afforded by the ADA;
       (6) as a result of these Supreme Court cases, lower courts 
     have incorrectly found in individual cases that people with a 
     range of substantially limiting impairments are not people 
     with disabilities;

[[Page 17742]]

       (7) in particular, the Supreme Court, in the case of Toyota 
     Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 
     (2002), interpreted the term ``substantially limits'' to 
     require a greater degree of limitation than was intended by 
     Congress; and
       (8) Congress finds that the current Equal Employment 
     Opportunity Commission ADA regulations defining the term 
     ``substantially limits'' as ``significantly restricted'' are 
     inconsistent with congressional intent, by expressing too 
     high a standard.
       (b) Purposes.--The purposes of this Act are--
       (1) to carry out the ADA's objectives of providing ``a 
     clear and comprehensive national mandate for the elimination 
     of discrimination'' and ``clear, strong, consistent, 
     enforceable standards addressing discrimination'' by 
     reinstating a broad scope of protection to be available under 
     the ADA;
       (2) to reject the requirement enunciated by the Supreme 
     Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 
     (1999) and its companion cases that whether an impairment 
     substantially limits a major life activity is to be 
     determined with reference to the ameliorative effects of 
     mitigating measures;
       (3) to reject the Supreme Court's reasoning in Sutton v. 
     United Air Lines, Inc., 527 U.S. 471 (1999) with regard to 
     coverage under the third prong of the definition of 
     disability and to reinstate the reasoning of the Supreme 
     Court in School Board of Nassau County v. Arline, 480 U.S. 
     273 (1987) which set forth a broad view of the third prong of 
     the definition of handicap under the Rehabilitation Act of 
     1973;
       (4) to reject the standards enunciated by the Supreme Court 
     in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 
     534 U.S. 184 (2002), that the terms ``substantially'' and 
     ``major'' in the definition of disability under the ADA 
     ``need to be interpreted strictly to create a demanding 
     standard for qualifying as disabled,'' and that to be 
     substantially limited in performing a major life activity 
     under the ADA ``an individual must have an impairment that 
     prevents or severely restricts the individual from doing 
     activities that are of central importance to most people's 
     daily lives'';
       (5) to convey congressional intent that the standard 
     created by the Supreme Court in the case of Toyota Motor 
     Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 
     (2002) for ``substantially limits'', and applied by lower 
     courts in numerous decisions, has created an inappropriately 
     high level of limitation necessary to obtain coverage under 
     the ADA, to convey that it is the intent of Congress that the 
     primary object of attention in cases brought under the ADA 
     should be whether entities covered under the ADA have 
     complied with their obligations, and to convey that the 
     question of whether an individual's impairment is a 
     disability under the ADA should not demand extensive 
     analysis; and
       (6) to express Congress' expectation that the Equal 
     Employment Opportunity Commission will revise that portion of 
     its current regulations that defines the term ``substantially 
     limits'' as ``significantly restricted'' to be consistent 
     with this Act, including the amendments made by this Act.

     SEC. 3. CODIFIED FINDINGS.

       Section 2(a) of the Americans with Disabilities Act of 1990 
     (42 U.S.C. 12101) is amended--
       (1) by amending paragraph (1) to read as follows:
       ``(1) physical or mental disabilities in no way diminish a 
     person's right to fully participate in all aspects of 
     society, yet many people with physical or mental disabilities 
     have been precluded from doing so because of discrimination; 
     others who have a record of a disability or are regarded as 
     having a disability also have been subjected to 
     discrimination;'';
       (2) by striking paragraph (7); and
       (3) by redesignating paragraphs (8) and (9) as paragraphs 
     (7) and (8), respectively.

     SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.

       (a) Definition of Disability.--Section 3 of the Americans 
     with Disabilities Act of 1990 (42 U.S.C. 12102) is amended to 
     read as follows:

     ``SEC. 3. DEFINITION OF DISABILITY.

       ``As used in this Act:
       ``(1) Disability.--The term `disability' means, with 
     respect to an individual--
       ``(A) a physical or mental impairment that substantially 
     limits one or more major life activities of such individual;
       ``(B) a record of such an impairment; or
       ``(C) being regarded as having such an impairment (as 
     described in paragraph (3)).
       ``(2) Major life activities.--
       ``(A) In general.--For purposes of paragraph (1), major 
     life activities include, but are not limited to, caring for 
     oneself, performing manual tasks, seeing, hearing, eating, 
     sleeping, walking, standing, lifting, bending, speaking, 
     breathing, learning, reading, concentrating, thinking, 
     communicating, and working.
       ``(B) Major bodily functions.--For purposes of paragraph 
     (1), a major life activity also includes the operation of a 
     major bodily function, including but not limited to, 
     functions of the immune system, normal cell growth, 
     digestive, bowel, bladder, neurological, brain, respiratory, 
     circulatory, endocrine, and reproductive functions.
       ``(3) Regarded as having such an impairment.--For purposes 
     of paragraph (1)(C):
       ``(A) An individual meets the requirement of `being 
     regarded as having such an impairment' if the individual 
     establishes that he or she has been subjected to an action 
     prohibited under this Act because of an actual or perceived 
     physical or mental impairment whether or not the impairment 
     limits or is perceived to limit a major life activity.
       ``(B) Paragraph (1)(C) shall not apply to impairments that 
     are transitory and minor. A transitory impairment is an 
     impairment with an actual or expected duration of 6 months or 
     less.
       ``(4) Rules of construction regarding the definition of 
     disability.--The definition of `disability' in paragraph (1) 
     shall be construed in accordance with the following:
       ``(A) The definition of disability in this Act shall be 
     construed in favor of broad coverage of individuals under 
     this Act, to the maximum extent permitted by the terms of 
     this Act.
       ``(B) The term `substantially limits' shall be interpreted 
     consistently with the findings and purposes of the ADA 
     Amendments Act of 2008.
       ``(C) An impairment that substantially limits one major 
     life activity need not limit other major life activities in 
     order to be considered a disability.
       ``(D) An impairment that is episodic or in remission is a 
     disability if it would substantially limit a major life 
     activity when active.
       ``(E)(i) The determination of whether an impairment 
     substantially limits a major life activity shall be made 
     without regard to the ameliorative effects of mitigating 
     measures such as--
       ``(I) medication, medical supplies, equipment, or 
     appliances, low-vision devices (which do not include ordinary 
     eyeglasses or contact lenses), prosthetics including limbs 
     and devices, hearing aids and cochlear implants or other 
     implantable hearing devices, mobility devices, or oxygen 
     therapy equipment and supplies;
       ``(II) use of assistive technology;
       ``(III) reasonable accommodations or auxiliary aids or 
     services; or
       ``(IV) learned behavioral or adaptive neurological 
     modifications.
       ``(ii) The ameliorative effects of the mitigating measures 
     of ordinary eyeglasses or contact lenses shall be considered 
     in determining whether an impairment substantially limits a 
     major life activity.
       ``(iii) As used in this subparagraph--

       ``(I) the term `ordinary eyeglasses or contact lenses' 
     means lenses that are intended to fully correct visual acuity 
     or eliminate refractive error; and
       ``(II) the term `low-vision devices' means devices that 
     magnify, enhance, or otherwise augment a visual image.''.

       (b) Conforming Amendment.--The Americans with Disabilities 
     Act of 1990 (42 U.S.C. 12101 et seq.) is further amended by 
     adding after section 3 the following:

     ``SEC. 4. ADDITIONAL DEFINITIONS.

       ``As used in this Act:
       ``(1) Auxiliary aids and services.--The term `auxiliary 
     aids and services' includes--
       ``(A) qualified interpreters or other effective methods of 
     making aurally delivered materials available to individuals 
     with hearing impairments;
       ``(B) qualified readers, taped texts, or other effective 
     methods of making visually delivered materials available to 
     individuals with visual impairments;
       ``(C) acquisition or modification of equipment or devices; 
     and
       ``(D) other similar services and actions.
       ``(2) State.--The term `State' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, Guam, American Samoa, the Virgin Islands of the United 
     States, the Trust Territory of the Pacific Islands, and the 
     Commonwealth of the Northern Mariana Islands.''.
       (c) Amendment to the Table of Contents.--The table of 
     contents contained in section 1(b) of the Americans with 
     Disabilities Act of 1990 is amended by striking the item 
     relating to section 3 and inserting the following items:

``Sec. 3. Definition of disability.
``Sec. 4. Additional definitions.''.

     SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

       (a) On the Basis of Disability.--Section 102 of the 
     Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is 
     amended--
       (1) in subsection (a), by striking ``with a disability 
     because of the disability of such individual'' and inserting 
     ``on the basis of disability''; and
       (2) in subsection (b) in the matter preceding paragraph 
     (1), by striking ``discriminate'' and inserting 
     ``discriminate against a qualified individual on the basis of 
     disability''.
       (b) Qualification Standards and Tests Related to 
     Uncorrected Vision.--Section 103 of the Americans with 
     Disabilities Act of 1990 (42 U.S.C. 12113) is amended by 
     redesignating subsections (c) and (d) as subsections (d) and 
     (e), respectively, and inserting after subsection (b) the 
     following new subsection:
       ``(c) Qualification Standards and Tests Related to 
     Uncorrected Vision.--Notwithstanding section 3(4)(E)(ii), a 
     covered entity

[[Page 17743]]

     shall not use qualification standards, employment tests, or 
     other selection criteria based on an individual's uncorrected 
     vision unless the standard, test, or other selection 
     criteria, as used by the covered entity, is shown to be job-
     related for the position in question and consistent with 
     business necessity.''.
       (c) Conforming Amendments.--
       (1) Section 101(8) of the Americans with Disabilities Act 
     of 1990 (42 U.S.C. 12111(8)) is amended--
       (A) in the paragraph heading, by striking ``with a 
     disability''; and
       (B) by striking ``with a disability'' after ``individual'' 
     both places it appears.
       (2) Section 104(a) of the Americans with Disabilities Act 
     of 1990 (42 U.S.C. 12114(a)) is amended by striking ``the 
     term `qualified individual with a disability' shall'' and 
     inserting ``a qualified individual with a disability shall''.

     SEC. 6. RULES OF CONSTRUCTION.

       (a) Title V of the Americans with Disabilities Act of 1990 
     (42 U.S.C. 12201 et seq.) is amended--
       (1) by adding at the end of section 501 the following:
       ``(e) Benefits Under State Worker's Compensation Laws.--
     Nothing in this Act alters the standards for determining 
     eligibility for benefits under State worker's compensation 
     laws or under State and Federal disability benefit programs.
       ``(f) Fundamental Alteration.--Nothing in this Act alters 
     the provision of section 302(b)(2)(A)(ii), specifying that 
     reasonable modifications in policies, practices, or 
     procedures shall be required, unless an entity can 
     demonstrate that making such modifications in policies, 
     practices, or procedures, including academic requirements in 
     postsecondary education, would fundamentally alter the nature 
     of the goods, services, facilities, privileges, advantages, 
     or accommodations involved.
       ``(g) Claims of No Disability.--Nothing in this Act shall 
     provide the basis for a claim by an individual without a 
     disability that the individual was subject to discrimination 
     because of the individual's lack of disability.
       ``(h) Reasonable Accommodations and Modifications.--A 
     covered entity under title I, a public entity under title II, 
     and any person who owns, leases (or leases to), or operates a 
     place of public accommodation under title III, need not 
     provide a reasonable accommodation or a reasonable 
     modification to policies, practices, or procedures to an 
     individual who meets the definition of disability in section 
     3(1) solely under subparagraph (C) of such section.'';
       (2) by redesignating section 506 through 514 as sections 
     507 through 515, respectively, and adding after section 505 
     the following:

     ``SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY 
                   AUTHORITY.

       ``The authority to issue regulations granted to the Equal 
     Employment Opportunity Commission, the Attorney General, and 
     the Secretary of Transportation under this Act includes the 
     authority to issue regulations implementing the definitions 
     of disability in section 3 (including rules of construction) 
     and the definitions in section 4, consistent with the ADA 
     Amendments Act of 2008.''; and
       (3) in section 511 (as redesignated by paragraph (2)) (42 
     U.S.C. 12211), in subsection (c), by striking ``511(b)(3)'' 
     and inserting ``512(b)(3)''.
       (b) The table of contents contained in section 1(b) of the 
     Americans with Disabilities Act of 1990 is amended by 
     redesignating the items relating to sections 506 through 514 
     as the items relating to sections 507 through 515, 
     respectively, and by inserting after the item relating to 
     section 505 the following new item:

``Sec. 506. Rule of construction regarding regulatory authority.''.

     SEC. 7. CONFORMING AMENDMENTS.

       Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705) 
     is amended--
       (1) in paragraph (9)(B), by striking ``a physical'' and all 
     that follows through ``major life activities'', and inserting 
     ``the meaning given it in section 3 of the Americans with 
     Disabilities Act of 1990 (42 U.S.C. 12102)''; and
       (2) in paragraph (20)(B), by striking ``any person who'' 
     and all that follows through the period at the end, and 
     inserting ``any person who has a disability as defined in 
     section 3 of the Americans with Disabilities Act of 1990 (42 
     U.S.C. 12102).''.

     SEC. 8. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall become 
     effective on January 1, 2009.

  Mr. HATCH. Mr. President, I am proud to rise today, as I did 18 years 
ago, and stand beside my good friend from Iowa, Senator Harkin, to 
introduce legislation advancing opportunities for our disabled fellow 
citizens. Our commitment to that cause never ends. We must always 
remain open to learn from experience, to observe and evaluate how laws 
we put on the books work in practice, and to be ready to do our part 
with appropriate legislation. We are doing our part today by 
introducing the ADA Amendments Act.
  The Americans with Disabilities Act is perhaps the most comprehensive 
piece of civil rights legislation we have ever enacted. It prohibits 
discrimination based on present, past, or perceived disabilities. It 
affirmatively requires accommodations in the workplace and 
modifications and assistance to ensure that persons with disabilities 
can access and enjoy places of public accommodation. That combination 
of the negative prohibition and the affirmative obligation makes the 
ADA truly unique and able to make such a positive contribution to the 
lives of so many across our great Nation.
  This legislation responds to Supreme Court decisions that have had 
the effect of narrowing the ADA's definition of disability and thereby 
restricting its coverage. Its goal is to once again broaden the 
definition of disability in a way that maximizes bipartisan consensus 
and minimizes unintended consequences. I am sure that my friend from 
Iowa, Senator Harkin, joins me in thanking so many people and 
organizations who have been part of this process, offering countless 
suggestions and ideas and input about how to achieve this goal.
  This effort has been neither simple nor easy. Because the ADA is such 
a comprehensive statute, virtually any change we make can have effects 
in areas beyond where a problem might have occurred. In addition, 
Members on both sides of the aisle, with liberal or conservative 
perspectives, equally want to help the disabled but have very different 
views about how to do it.
  And so the bill we introduce today is really the third phase in a 
process that began more than a year ago with introduction of the ADA 
Restoration Act and continued with passage last month of the House ADA 
Amendments Act. I am glad to say that it enjoys the support of the 
broad coalitions of disability and business groups that have provided 
valuable input and analysis along the way. It also takes steps to 
address concerns expressed by the education community. While the 
problems this legislation addresses arose in the employment arena, the 
solution this legislation represents will certainly impact the 
education arena.
  Finally, let me say that like the original ADA, this bill is the 
result of negotiation and compromise on all sides. That is the nature 
of the legislative process and the more important the goal, the greater 
the effort to continue the process until we reach a good result. We 
have done that here and I hope and trust that when this legislation 
passes here and in the other body that the margin of the votes will 
reflect the breadth of the consensus behind this new effort to advance 
opportunities for the disabled to participate in all that this great 
country has to offer.
                                 ______
                                 
      By Mr. BURR (for himself, Mr. Wicker, Mr. Alexander, and Mr. 
        inhofe):
  S. 3407. A bill to amend title 10, United States Code, to authorize 
commanders of wounded warrior battalions to accept charitable gifts on 
behalf of the wounded members of the Armed Forces assigned to such 
battalions; to the Committee on Armed Services.
  Mr. BURR. Mr. President, in the years since the War on Terror began, 
we have seen the creation of new Wounded Warrior Battalions and Warrior 
Transition Battalions in the Marines and the Army. These units were 
built from the ground up with one purpose in mind: to ensure that 
seriously wounded service members receive the medical care and benefits 
that they have earned. The service personnel who command and administer 
these units are some of the most competent and dedicated professionals 
in our armed forces, and they deserve our praise.
  These professionals have done much to improve the quality of care 
that is given to our Nation's wounded service members, but many of the 
young men and women who find themselves assigned to a Wounded Warrior 
Battalion still face a tough journey on their road to recovery. 
Thankfully, the challenges that these men and women face rarely go 
unnoticed in their communities. Over the past several years we have 
heard countless stories of private citizens, church congregations and 
other community groups stepping forward to

[[Page 17744]]

donate their time, money and other charitable gifts to our wounded 
service personnel. It is not uncommon to hear about donations of 
$10,000 or more being offered to help provide additional resources to 
help our wounded recover.
  Unfortunately, the military's gift-acceptance rules have not been 
updated to take into account the generosity of the American people. For 
example, if a North Carolinian wished to provide a gift of just over 
$12,000 to the Wounded Warrior Battalion at Camp Lejeune, the 
acceptance paperwork for this donation would spend months working its 
way through a complicated bureaucracy before finally arriving on the 
desk of the Commandant of the Marine Corps. Our taxpayers and our 
wounded veterans are not being served very well when gifts of such a 
small dollar amount must be approved at the very highest levels of 
command.
  That is why I am introducing the Friends of Wounded Warriors Act. 
This legislation will streamline the gift-acceptance process by 
empowering the commanders of Wounded Warrior Battalions and similar 
units with the authority to accept charitable gifts of up to $100,000 
for the benefit of the members of their unit. This will enable these 
commanders to cut through the red tape that is currently the cause of 
needless delay in getting extra resources to our wounded service men 
and women. I hope you will join me in making a commitment to ensure 
that out-dated processes for accepting gifts do not stand in the way of 
the generosity of concerned citizens and communities seeking to 
contribute to the care of our wounded and ill service members.
                                 ______
                                 
      By Mr. BAUCUS (for himself and Mr. Conrad):
  S. 3408. A bill to amend title XI of the Social Security Act to 
provide for the conduct of comparative effectiveness research and to 
amend the Internal Revenue Code of 1986 to establish a Comparative 
Effectiveness Research Trust Fund, and for other purposes; to the 
Committee on Finance.
  Mr. BAUCUS. Mr. President, in 2006, America spent more than $2 
trillion on health care. By any standard, $2 trillion is an enormous 
figure. Health care accounts for 16 percent of our Nation's economy. 
That means that for every $100 in goods and services produced and 
consumed in America in 2006, $16 were for health care. And the health 
care share of the economy is expected to reach 20 percent in just 10 
years.
  These projections are cause for concern. If so much of our Nation's 
resources are devoted to heath care, we need to ask ourselves what we 
are--or are not--getting for it.
  The answer is that we are getting a mixed bag of goods. Some patients 
receive medical treatments that work well. Some patients receive 
treatments that don't work well. In many cases, doctors and patients 
don't have enough reliable evidence to know whether treatments work or 
don't.
  Of the $2 trillion spent on health in 2006, only \1/10\ of 1 percent 
was spent to assess what works and what doesn't. At the Federal level, 
only $15 million was directly appropriated to compare the effectiveness 
of health interventions and services. People who purchase other goods--
anything from cars to computers--use information to compare the value 
of the different products before they purchase. Physicians and patients 
deserve better. We should devote more than \1/10\ of 1 percent of 
health spending to study how well health goods and services actually 
work.
  Rapid innovation has led to an ever-changing array of new and 
sometimes expensive technologies. The age of personalized medicine and 
genetic engineering will provide even more choices for patients and 
their physicians. Indeed, patients and physicians can face great 
difficulty in choosing among treatment options.
  But much of the information about those options is biased. Much 
information about those options is of poor quality. And for many 
treatments, there are large gaps in what is known to be most effective.
  With a paucity of sound evidence, clinical guidelines and treatment 
protocols can vary widely. If there has ever been a need for better 
information--on what works, for which patients, under which 
circumstances--it is in this age of rapid innovation of technology.
  Several august bodies--including the Institute of Medicine, the 
Medicare Payment Advisory Commission, and the Congressional Budget 
Office--have called on Congress to create a national entity charged 
with conducting research to determine what works in health care.
  Today, I am proud to introduce the Comparative Effectiveness Research 
Act of 2008. I am joined by the Chairman of the Budget Committee, 
Senator Conrad. He and I share a deep concern about rising health care 
costs. And we share a deep commitment to finding ways to address it.
  This bill does what the experts suggest. It would create a new entity 
responsible for generating better information on the effectiveness of 
health care treatments.
  Specifically, the bill would create a nonprofit corporation 
responsible for setting national priorities for comparative 
effectiveness research. The corporation, which would be called the 
Health Care Comparative Effectiveness Research Institute, would be a 
private entity. But it would be governed by a public-private sector 
Board of Governors. It would not be an agency of the Federal 
Government.
  In addition to setting national priorities, the Institute would 
provide for the conduct of research studies that answer the most 
pressing questions about what works in health care. The Institute would 
have the authority to contract with experienced Federal agencies, such 
as the Agency for Healthcare Research and Quality, or AHRQ, and the 
National Institutes for Health, or NIH, or with private researchers if 
appropriate, for the conduct of the actual research. The Institute 
would also be charged with disseminating the findings of the research 
in ways that patients and providers can understand.
  The Institute would be required to assess the full spectrum of health 
interventions, including pharmaceuticals, medical devices, medical 
procedures, medical services, and other therapies. This type of 
research is often called ``comparative effectiveness research,'' 
because it evaluates and compares the clinical effect of alternative 
medical treatments. This type of research provides better quality 
evidence concerning the best treatment, prevention, and management of 
the health conditions. Most importantly, this type of research helps 
patients, providers, and payers of health care to make more informed 
decisions.
  While many experts have called for creation of a new entity, they do 
not specify how the entity should be structured. This bill would create 
a private, nonprofit institute rather than a new entity within the 
executive branch or legislative. Keeping it private would remove the 
potential for political influence on the development of national 
research priorities. Comparative effectiveness research will be more 
credible, and more useful, if it is done independently of political 
influence and with broad stakeholder input.
  This bill includes stringent requirements for public input, 
transparency of process and findings, and integrity of the research. 
For example, the Institute would be required to publish its rules, 
proceedings, and reports on a public Internet site. Its meetings would 
be open to the public. It would be required to provide public comment 
periods at key stages, in addition to open forums to solicit and obtain 
public input on the Institute's activities.
  This bill would also require accountability and government oversight 
of finances and the mission. The Institute would be subject to annual 
financial audits. And the Comptroller General would perform periodic 
audits of the activities of the Institute to ensure that the Institute 
would meet its statutory mission and would do so in a fair, open, and 
credible way.
  Finally, this bill would provide a stable source of funding for the 
Institute. For the first 3 years, general revenues would be used to 
start up the Institute. In the 4th year, funding would move to

[[Page 17745]]

an all-payer system--from both public and private sources. Annual 
contributions would be made from the Medicare Trust Funds, from 
revenues generated by a fee on private health insurance policies, and 
from general revenues. The work of the new Institute would benefit 
Americans who receive health care through the public and private 
sources. Therefore, public and private sources should contribute to 
this type of research. The private insurance fee would be $1 per 
insured person per year. Funding from Medicare would also be $1 per 
beneficiary per year.
  All sources of funding for the Institute would sunset after 10 years. 
That way, Congress could review a report from the Comptroller General 
on the value of the research to the public and private insurance 
sectors. Total funding for the first year would be $5 million, and 
funding would increase to $300 million a year by the year 2013.
  It is high time that America invested more than a fraction of a 
percent to generate knowledge about what works in health care, to 
improve the efficiency and the quality of our health care system, and 
to give patients and doctors better information to make treatment 
decisions. It is high time that we built a foundation of evidence for 
the trillions of dollars spent on health in America each year.
  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. 3408

       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 ``Comparative Effectiveness 
     Research Act of 2008''.

     SEC. 2. COMPARATIVE EFFECTIVENESS RESEARCH.

       (a) In General.--Title XI of the Social Security Act (42 
     U.S.C. 1301 et seq.) is amended by adding at the end the 
     following new part:

              ``Part D--Comparative Effectiveness Research


                  ``comparative effectiveness research

       ``Sec. 1181.  (a) Definitions.--In this section:
       ``(1) Board.--The term `Board' means the Board of Governors 
     established under subsection (f).
       ``(2) Comparative clinical effectiveness research.--
       ``(A) In general.--The term `comparative clinical 
     effectiveness research' means research evaluating and 
     comparing the clinical effectiveness, risks, and benefits of 
     2 or more medical treatments, services, and items described 
     in subparagraph (B).
       ``(B) Medical treatments, services, and items described.--
     The medical treatments, services, and items described in this 
     subparagraph are health care interventions, protocols for 
     treatment, procedures, medical devices, diagnostic tools, 
     pharmaceuticals (including drugs and biologicals), and any 
     other processes or items being used in the treatment and 
     diagnosis of, or prevention of illness or injury in, 
     patients.
       ``(3) Comparative effectiveness research.--The term 
     `comparative effectiveness research' means research 
     evaluating and comparing the implications and outcomes of 2 
     or more health care strategies to address a particular 
     medical condition.
       ``(4) Conflicts of interest.--The term `conflicts of 
     interest' means associations, including financial and 
     personal, that may be reasonably assumed to have the 
     potential to bias an individual's decisions in matters 
     related to the Institute or the conduct of activities under 
     this section.
       ``(5) Institute.--The term `Institute' means the `Health 
     Care Comparative Effectiveness Research Institute' 
     established under subsection (b)(1).
       ``(b) Health Care Comparative Effectiveness Research 
     Institute.--
       ``(1) Establishment.--There is authorized to be established 
     a nonprofit corporation, to be known as the ``Health Care 
     Comparative Effectiveness Research Institute'' which is 
     neither an agency nor establishment of the United States 
     Government.
       ``(2) Application of provisions.--The Institute shall be 
     subject to the provisions of this section, and, to the extent 
     consistent with this section, to the District of Columbia 
     Nonprofit Corporation Act.
       ``(3) Funding of comparative effectiveness research.--For 
     fiscal year 2009 and each subsequent fiscal year, amounts in 
     the Comparative Effectiveness Research Trust Fund (referred 
     to in this section as the `CERTF') under section 9511 of the 
     Internal Revenue Code of 1986 shall be available, without 
     further appropriation, to the Institute to carry out this 
     section.
       ``(c) Purpose.--The purpose of the Institute is to improve 
     health care delivered to individuals in the United States by 
     advancing the quality and thoroughness of evidence concerning 
     the manner in which diseases, disorders, and other health 
     conditions can effectively and appropriately be prevented, 
     diagnosed, treated, and managed clinically through research 
     and evidence synthesis, and the dissemination of research 
     findings with respect to the relative outcomes, 
     effectiveness, and appropriateness of the medical treatments, 
     services, and items described in subsection (a)(2)(B).
       ``(d) Duties.--
       ``(1) Identifying research priorities and establishing 
     research project agenda.--
       ``(A) Identifying research priorities.--The Institute shall 
     identify national priorities for comparative clinical 
     effectiveness research, taking into account factors, 
     including--
       ``(i) disease incidence, prevalence, and burden in the 
     United States;
       ``(ii) evidence gaps in terms of clinical outcomes;
       ``(iii) practice variations, including variations in 
     delivery and outcomes by geography, treatment site, provider 
     type, and patient subgroup;
       ``(iv) the potential for new evidence concerning certain 
     categories of health care services or treatments to improve 
     patient health and well-being, and the quality of care; and
       ``(v) the effect or potential for an effect on health 
     expenditures associated with a health condition or the use of 
     a particular medical treatment, service, or item.
       ``(B) Establishing research project agenda.--
       ``(i) In general.--The Institute shall establish and update 
     a research project agenda to address the priorities 
     identified under subparagraph (A), taking into consideration 
     the types of research that might address each priority and 
     the relative value (determined based on the cost of 
     conducting such research compared to the potential usefulness 
     of the information produced by such research) associated with 
     such different types of research, and such other factors as 
     the Institute determines appropriate.
       ``(ii) Consideration of need to conduct a systematic 
     review.--In establishing and updating the research project 
     agenda under clause (i), the Institute shall consider the 
     need to conduct a systematic review of existing research 
     before providing for the conduct of new research under 
     paragraph (2)(A).
       ``(2) Carrying out research project agenda.--
       ``(A) Comparative clinical effectiveness research.--In 
     carrying out the research project agenda established under 
     paragraph (1)(B), the Institute shall provide for the conduct 
     of appropriate research and the synthesis of evidence, in 
     accordance with the methodological standards adopted under 
     paragraph (9), using methods, including the following:
       ``(i) Systematic reviews and assessments of existing 
     research and evidence.
       ``(ii) Clinical research, such as randomized controlled 
     trials and observational studies.
       ``(iii) Any other methodologies recommended by the 
     methodology committee established under paragraph (6) that 
     are adopted by the Board under paragraph (9).
       ``(B)(i) Contracts with federal agencies and 
     instrumentalities.--The Institute shall give preference to 
     agencies and instrumentalities of the Federal Government that 
     have experience in conducting comparative clinical 
     effectiveness research, such as the Agency for Healthcare 
     Research and Quality, when entering into contracts for the 
     management and conduct of research in accordance with the 
     research project agenda established under paragraph (1)(B), 
     to the extent that such contracts are authorized under the 
     governing statutes of such agencies and instrumentalities.
       ``(ii) Contracts with other entities.--The Institute may 
     enter into contracts with appropriate private sector research 
     or study-conducting entities for the conduct of research 
     described in clause (i).
       ``(iii) Conditions for contracts.--A contract entered into 
     under this subparagraph shall require that the agency, 
     instrumentality, or other entity--
       ``(I) abide by the transparency and conflicts of interest 
     requirements that apply to the Institute with respect to the 
     research managed or conducted under such contract;
       ``(II) comply with the methodological standards adopted 
     under paragraph (9) with respect to such research; and
       ``(III) take into consideration public comments on the 
     study design that are transmitted by the Institute to the 
     agency, instrumentality, or other entity under subsection 
     (i)(1)(B) during the finalization of the study design and 
     transmit responses to such comments to the Institute, which 
     will publish such comments, responses, and finalized study 
     design in accordance with subsection (i)(3)(A)(iii) prior to 
     the conduct of such research.
       ``(iv) Coverage of copayments or coinsurance.--A contract 
     entered into under this subparagraph may allow for the 
     coverage of copayments or co-insurance, or allow for other 
     appropriate measures, to the extent that such coverage or 
     other measures are necessary to preserve the validity of a 
     research project, such as in the case where the research 
     project must be blinded.

[[Page 17746]]

       ``(C) Review and update of evidence.--The Institute shall 
     review and update evidence on a periodic basis, in order to 
     take into account new research and evolving evidence as they 
     become available, as appropriate.
       ``(D) Taking into account potential differences.--Research 
     shall--
       ``(i) be designed, as appropriate, to take into account the 
     potential for differences in the effectiveness of health care 
     treatments, services, and items as used with various 
     subpopulations, such as racial and ethnic minorities, women, 
     different age groups, and individuals with different 
     comorbidities; and
       ``(ii) seek to include members of such subpopulations as 
     subjects in the research as feasible and appropriate.
       ``(3) Study and report on feasibility of conducting 
     research in-house.--
       ``(A) Study.--The Institute shall conduct a study on the 
     feasibility of conducting research in-house.
       ``(B) Report.--Not later than 5 years after the date of 
     enactment of this section, the Institute shall submit a 
     report to Congress containing the results of the study 
     conducted under subparagraph (A).
       ``(4) Data collection.--
       ``(A) In general.--The Secretary shall, with appropriate 
     safeguards for privacy, make available to the Institute such 
     data collected by the Centers for Medicare & Medicaid 
     Services under the programs under titles XVIII, XIX, and XXI 
     as the Institute may require to carry out this section. The 
     Institute may also request and, if such request is granted, 
     obtain data from Federal, State, or private entities.
       ``(B) Use of data.--The Institute shall only use data 
     provided to the Institute under subparagraph (A) in 
     accordance with laws and regulations governing the release 
     and use of such data, including applicable confidentiality 
     and privacy standards.
       ``(5) Appointing advisory panels.--
       ``(A) In general.--The Institute may appoint permanent or 
     ad hoc advisory panels as determined appropriate by the 
     Institute to assist in the establishment and carrying out of 
     the research project agenda under paragraphs (1) and (2), 
     respectively. Panels may advise or guide the Institute in 
     matters such as identifying gaps in and updating medical 
     evidence and identifying research priorities and potential 
     study designs in order to ensure that the information 
     produced from such research is clinically relevant to 
     decisions made by clinicians and patients at the point of 
     care and may provide advice throughout the conduct of 
     research.
       ``(B) Composition.--An advisory panel appointed under 
     subparagraph (A) shall include representatives of clinicians 
     and patients and may include experts in scientific and health 
     services research, health services delivery, and the 
     manufacture of health items who have experience in the 
     relevant topic, project, or category for which the panel is 
     established.
       ``(6) Establishing methodology committee.--
       ``(A) In general.--The Institute shall establish a standing 
     methodology committee to carry out the functions described in 
     subparagraph (C).
       ``(B) Appointment and composition.--Members shall be 
     appointed to the methodology committee established under 
     subparagraph (A) by the Comptroller General of the United 
     States. Members appointed to the methodology committee shall 
     be experts in their scientific field, such as health services 
     research, clinical research, comparative effectiveness 
     research, biostatistics, and research methodologies. 
     Stakeholders with such expertise may be appointed to the 
     methodology committee.
       ``(C) Functions.--Subject to subparagraph (D), the 
     methodology committee shall work to develop and improve the 
     science of comparative effectiveness research by undertaking 
     the following activities:
       ``(i) Not later than 1 year after the date on which the 
     members of the methodology committee are appointed under 
     subparagraph (B), developing and periodically updating 
     methodological standards regarding outcomes measures, risk 
     adjustment, statistical protocols, evaluation of evidence, 
     conduct of research, and other aspects of research and 
     assessment to be used when conducting research on comparative 
     clinical effectiveness (and procedures for the use of such 
     standards) in order to help ensure accurate and effective 
     comparisons. Such standards shall also include methods by 
     which new information, data, or advances in technology are 
     considered and incorporated into ongoing research projects by 
     the Institute, as appropriate. In developing and updating 
     methodological standards under this clause, the methodology 
     committee shall ensure that such standards are scientifically 
     based.
       ``(ii) Not later than 5 years after such date, examining 
     the following:

       ``(I) Methods by which various aspects of the health care 
     delivery system (such as benefit design and performance, and 
     health services organization, management, and delivery) could 
     be assessed and compared for their relative effectiveness, 
     benefits, risks, advantages, and disadvantages in a 
     scientifically valid and standardized way.
       ``(II) Methods by which cost-effectiveness and value could 
     be assessed in a scientifically valid and standardized way.

       ``(D) Consultation and conduct of examinations.--
       ``(i) In general.--Subject to clause (iii), in undertaking 
     the activities described in subparagraph (C), the methodology 
     committee shall--

       ``(I) consult or contract with 1 or more of the entities 
     described in clause (ii); and
       ``(II) consult with stakeholders and other entities 
     knowledgeable in relevant fields, as appropriate.

       ``(ii) Entities described.--The following entities are 
     described in this clause:

       ``(I) The Institute of Medicine of the National Academies.
       ``(II) The Agency for Healthcare Research and Quality.
       ``(III) The National Institutes of Health.

       ``(iii) Conduct of examinations.--The methodology committee 
     shall contract with the Institute of Medicine of the National 
     Academies for the conduct of the examinations described in 
     subclauses (I) and (II) of subparagraph (C)(ii).
       ``(E) Reports.--The methodology committee shall submit 
     reports to the Board on the committee's performance of the 
     functions described in subparagraph (C). Reports submitted 
     under the preceding sentence with respect to the functions 
     described in clause (i) of such subparagraph shall contain 
     recommendations--
       ``(i) for the Institute to adopt methodological standards 
     developed and updated by the methodology committee under such 
     subparagraph; and
       ``(ii) for such other action as the methodology committee 
     determines is necessary to comply with such methodological 
     standards.
       ``(7) Providing for a peer-review process.--
       ``(A) In general.--The Institute shall ensure that there is 
     a process for peer review of the research conducted under 
     this section. Under such process--
       ``(i) evidence from research conducted under this section 
     shall be reviewed to assess scientific integrity and 
     adherence to methodological standards adopted under paragraph 
     (9); and
       ``(ii) a list of the names of individuals contributing to 
     any peer-review process during the preceding year or years 
     shall be made public and included in annual reports in 
     accordance with paragraph (11)(D).
       ``(B) Composition.--Such peer-review process shall have 
     been designed in a manner so as to avoid bias and conflicts 
     of interest on the part of the reviewers and shall be 
     composed of experts in the scientific field relevant to the 
     research under review.
       ``(C) Use of existing processes.--In the case where the 
     Institute enters into a contract or other agreement with 
     another entity for the conduct or management of research 
     under this section, the Institute may utilize the peer-review 
     process of such entity if such process meets the requirements 
     under subparagraphs (A) and (B).
       ``(8) Dissemination of research findings.--
       ``(A) In general.--The Institute shall disseminate research 
     findings to clinicians, patients, and the general public in 
     accordance with the dissemination protocols and strategies 
     adopted under paragraph (9). Research findings disseminated--
       ``(i) shall convey findings of research so that they are 
     comprehensible and useful to patients and providers in making 
     health care decisions;
       ``(ii) shall discuss findings and other considerations 
     specific to certain subpopulations, risk factors, and 
     comorbidities, as appropriate;
       ``(iii) shall include considerations such as limitations of 
     research and what further research may be needed, as 
     appropriate;
       ``(iv) shall not include practice guidelines or policy 
     recommendations; and
       ``(v) shall not include any data the dissemination of which 
     would violate the privacy of research participants or violate 
     any confidentiality agreements made with respect to the use 
     of data under this section.
       ``(B) Dissemination protocols and strategies.--The 
     Institute shall develop protocols and strategies for the 
     appropriate dissemination of research findings in order to 
     ensure effective communication of such findings and the use 
     and incorporation of such findings into relevant activities 
     for the purpose of informing higher quality and more 
     effective and efficient decisions regarding medical 
     treatments, services, and items. In developing and adopting 
     such protocols and strategies, the Institute shall consult 
     with stakeholders concerning the types of dissemination that 
     will be most useful to the end users of the information and 
     may provide for the utilization of multiple formats for 
     conveying findings to different audiences.
       ``(C) Definition of research findings.--In this paragraph, 
     the term `research findings' means the results of a study, 
     appraisal, or assessment.
       ``(9) Adoption.--Subject to subsection (i)(1)(A)(i), the 
     Institute shall adopt the national priorities identified 
     under paragraph (1)(A), the research project agenda 
     established under paragraph (1)(B), the methodological 
     standards developed and updated by the methodology committee 
     under paragraph (6)(C)(i), any peer-review process provided 
     under paragraph (7), and dissemination

[[Page 17747]]

     protocols and strategies developed under paragraph (8)(B) by 
     majority vote. In the case where the Institute does not adopt 
     such national priorities, research project agenda, 
     methodological standards, peer-review process, or 
     dissemination protocols and strategies in accordance with the 
     preceding sentence, the national priorities, research project 
     agenda, methodological standards, peer-review process, or 
     dissemination protocols and strategies shall be referred to 
     the appropriate staff or entity within the Institute (or, in 
     the case of the methodological standards, the methodology 
     committee) for further review.
       ``(10) Coordination of research and resources and building 
     capacity for research.--
       ``(A) Coordination of research and resources.--The 
     Institute shall coordinate research conducted, commissioned, 
     or otherwise funded under this section with comparative 
     clinical effectiveness and other relevant research and 
     related efforts conducted by public and private agencies and 
     organizations in order to ensure the most efficient use of 
     the Institute's resources and that research is not duplicated 
     unnecessarily.
       ``(B) Building capacity for research.--The Institute may 
     build capacity for comparative clinical effectiveness 
     research and other relevant research and related efforts 
     through appropriate activities, such as making payments, up 
     to 5 percent of the amounts appropriated or credited to the 
     CERTF under section 9511(b) of the Internal Revenue Code of 
     1986 with respect to the fiscal year, to The Cochrane 
     Collaboration (or a successor organization) to support the 
     infrastructure of The Cochrane Collaboration (or a successor 
     organization) or to provide for sets of reviews related to a 
     particular topic or associated with a particular review 
     group.
       ``(C) Inclusion in annual reports.--The Institute shall 
     report on any coordination and capacity building conducted 
     under this paragraph in annual reports in accordance with 
     paragraph (11)(E).
       ``(11) Annual reports.--The Institute shall submit an 
     annual report to Congress and the President, and shall make 
     the annual report available to the public. Such report shall 
     contain--
       ``(A) a description of the activities conducted under this 
     section during the preceding year, including the use of 
     amounts appropriated or credited to the CERTF under section 
     9511(b) of the Internal Revenue Code of 1986 to carry out 
     this section, research projects completed and underway, and a 
     summary of the findings of such projects;
       ``(B) the research project agenda and budget of the 
     Institute for the following year;
       ``(C) a description of research priorities identified under 
     paragraph (1)(A), dissemination protocols and strategies 
     developed by the Institute under paragraph (8)(B), and 
     methodological standards developed and updated by the 
     methodology committee under paragraph (6)(C)(i) that are 
     adopted under paragraph (9) during the preceding year;
       ``(D) the names of individuals contributing to any peer-
     review process provided under paragraph (7) during the 
     preceding year or years, in a manner such that those 
     individuals cannot be identified with a particular research 
     project; and
       ``(E) a description of efforts by the Institute under 
     paragraph (10) to--
       ``(i) coordinate the research conducted, commissioned, or 
     otherwise funded under this section and the resources of the 
     Institute with research and related efforts conducted by 
     other private and public entities; and
       ``(ii) build capacity for comparative clinical 
     effectiveness research and other relevant research and 
     related efforts through appropriate activities.
       ``(F) any other relevant information (including information 
     on the membership of the Board, advisory panels appointed 
     under paragraph (5), the methodology committee established 
     under paragraph (6), and the executive staff of the 
     Institute, any conflicts of interest with respect to the 
     members of such Board, advisory panels, and methodology 
     committee, or with respect to any individuals selected for 
     employment as executive staff of the Institute, and any 
     bylaws adopted by the Board during the preceding year).
       ``(e) Administration.--
       ``(1) In general.--Subject to paragraph (2), the Board 
     shall carry out the duties of the Institute.
       ``(2) Nondelegable duties.--The activities described in 
     subsections (b)(3)(D), (d)(1), and (d)(9) are nondelegable.
       ``(f) Board of Governors.--
       ``(1) In general.--The Institute shall have a Board of 
     Governors, which shall consist of the following members:
       ``(A) The Secretary of Health and Human Services (or the 
     Secretary's designee).
       ``(B) The Director of the Agency for Healthcare Research 
     and Quality (or the Director's designee).
       ``(C) The Director of the National Institutes of Health (or 
     the Director's designee).
       ``(D) 18 members appointed by the Comptroller General of 
     the United States not later than 6 months after the date of 
     enactment of this section, as follows:
       ``(i) 3 members representing patients and health care 
     consumers.
       ``(ii) 3 members representing practicing physicians, 
     including surgeons.
       ``(iii) 3 members representing agencies that administer 
     public programs, as follows:

       ``(I) 1 member representing the Centers for Medicare & 
     Medicaid Services who has experience in administering the 
     program under title XVIII.
       ``(II) 1 member representing agencies that administer State 
     health programs (who may represent the Centers for Medicare & 
     Medicaid Services and have experience in administering the 
     program under title XIX or the program under title XXI or be 
     a governor of a State).
       ``(III) 1 member representing agencies that administer 
     other Federal health programs (such as a health program of 
     the Department of Defense under chapter 55 of title 10, 
     United States Code, the Federal employees health benefits 
     program under chapter 89 of title 5 of such Code, a health 
     program of the Department of Veterans Affairs under chapter 
     17 of title 38 of such Code, or a medical care program of the 
     Indian Health Service or of a tribal organization).

       ``(iv) 3 members representing private payers, of whom at 
     least 1 member shall represent health insurance issuers and 
     at least 1 member shall represent employers who self-insure 
     employee benefits.
       ``(v) 3 members representing pharmaceutical, device, and 
     technology manufacturers or developers.
       ``(vi) 1 member representing nonprofit organizations 
     involved in health services research.
       ``(vii) 1 member representing organizations that focus on 
     quality measurement and improvement or decision support.
       ``(viii) 1 member representing independent health services 
     researchers.
       ``(2) Qualifications.--
       ``(A) Diverse representation of perspectives.--The Board 
     shall represent a broad range of perspectives and 
     collectively have scientific expertise in clinical health 
     sciences research, including epidemiology, decisions 
     sciences, health economics, and statistics.
       ``(B) Conflicts of interest.--
       ``(i) In general.--In appointing members of the Board under 
     paragraph (1)(D), the Comptroller General of the United 
     States shall take into consideration any conflicts of 
     interest of potential appointees. Any conflicts of interest 
     of members appointed to the Board under paragraph (1) shall 
     be disclosed in accordance with subsection (i)(4)(B).
       ``(ii) Recusal.--A member of the Board shall be recused 
     from participating with respect to a particular research 
     project or other matter considered by the Board in carrying 
     out its research project agenda under subsection (d)(2) in 
     the case where the member (or an immediate family member of 
     such member) has a financial or personal interest directly 
     related to the research project or the matter that could 
     affect or be affected by such participation.
       ``(3) Terms.--
       ``(A) In general.--A member of the Board appointed under 
     paragraph (1)(D) shall be appointed for a term of 6 years, 
     except with respect to the members first appointed under such 
     paragraph--
       ``(i) 6 shall be appointed for a term of 6 years;
       ``(ii) 6 shall be appointed for a term of 4 years; and
       ``(iii) 6 shall be appointed for a term of 2 years.
       ``(B) Limitation.--No individual shall be appointed to the 
     Board under paragraph (1)(D) for more than 2 terms.
       ``(C) Expiration of term.--Any member of the Board whose 
     term has expired may serve until such member's successor has 
     taken office, or until the end of the calendar year in which 
     such member's term has expired, whichever is earlier.
       ``(D) Vacancies.--
       ``(i) In general.--Any member appointed to fill a vacancy 
     prior to the expiration of the term for which such member's 
     predecessor was appointed shall be appointed for the 
     remainder of such term.
       ``(ii) Vacancies not to affect power of board.--A vacancy 
     on the Board shall not affect its powers, but shall be filled 
     in the same manner as the original appointment was made.
       ``(4) Chairperson and vice-chairperson.--
       ``(A) In general.--The Comptroller General of the United 
     States shall designate a Chairperson and Vice-Chairperson of 
     the Board from among the members of the Board appointed under 
     paragraph (1)(D).
       ``(B) Term.--The members so designated shall serve as 
     Chairperson and Vice-Chairperson of the Board for a period of 
     3 years.
       ``(5) Compensation.--
       ``(A) In general.--A member of the Board shall be entitled 
     to compensation at the per diem equivalent of the rate 
     provided for level IV of the Executive Schedule under section 
     5315 of title 5, United States Code.
       ``(B) Travel expenses.--While away from home or regular 
     place of business in the performance of duties for the Board, 
     each member of the Board may receive reasonable travel, 
     subsistence, and other necessary expenses.
       ``(6) Director and staff; experts and consultants.--The 
     Board may--
       ``(A) employ and fix the compensation of an executive 
     director and such other personnel as may be necessary to 
     carry out the duties of the Institute;

[[Page 17748]]

       ``(B) seek such assistance and support as may be required 
     in the performance of the duties of the Institute from 
     appropriate departments and agencies of the Federal 
     Government;
       ``(C) enter into contracts or make other arrangements and 
     make such payments as may be necessary for performance of the 
     duties of the Institute;
       ``(D) provide travel, subsistence, and per diem 
     compensation for individuals performing the duties of the 
     Institute, including members of any advisory panel appointed 
     under subsection (d)(5), members of the methodology committee 
     established under subsection (d)(6), and individuals selected 
     to contribute to any peer-review process under subsection 
     (d)(7); and
       ``(E) prescribe such rules, regulations, and bylaws as the 
     Board determines necessary with respect to the internal 
     organization and operation of the Institute.
       ``(7) Meetings and hearings.--The Board shall meet and hold 
     hearings at the call of the Chairperson or a majority of its 
     members. In the case where the Board is meeting on matters 
     not related to personnel, Board meetings shall be open to the 
     public and advertised.
       ``(8) Quorum.--A majority of the members of the Board shall 
     constitute a quorum for purposes of conducting the duties of 
     the Institute, but a lesser number of members may meet and 
     hold hearings.
       ``(g) Financial Oversight.--
       ``(1) Contract for audit.--The Institute shall provide for 
     the conduct of financial audits of the Institute on an annual 
     basis by a private entity with expertise in conducting 
     financial audits.
       ``(2) Review of audit and report to congress.--The 
     Comptroller General of the United States shall--
       ``(A) review the results of the audits conducted under 
     paragraph (1); and
       ``(B) submit a report to Congress containing the results of 
     such audits and review.
       ``(h) Governmental Oversight.--
       ``(1) Review and reports.--
       ``(A) In general.--The Comptroller General of the United 
     States shall review the following:
       ``(i) Processes established by the Institute, including 
     those with respect to the identification of research 
     priorities under subsection (d)(1)(A) and the conduct of 
     research projects under this section. Such review shall 
     determine whether information produced by such research 
     projects--

       ``(I) is objective and credible;
       ``(II) is produced in a manner consistent with the 
     requirements under this section; and
       ``(III) is developed through a transparent process.

       ``(ii) The overall effect of the Institute and the 
     effectiveness of activities conducted under this section, 
     including an assessment of--

       ``(I) the utilization of the findings of research conducted 
     under this section by health care decision makers; and
       ``(II) the effect of the Institute and such activities on 
     innovation and on the health economy of the United States.

       ``(B) Reports.--Not later than 5 years after the date of 
     enactment of this section, and not less frequently than every 
     5 years thereafter, the Comptroller General of the United 
     States shall submit a report to Congress containing the 
     results of the review conducted under subparagraph (A), 
     together with recommendations for such legislation and 
     administrative action as the Comptroller General determines 
     appropriate.
       ``(2) Funding assessment.--
       ``(A) In general.--The Comptroller General of the United 
     States shall assess the adequacy and use of funding for the 
     Institute and activities conducted under this section under 
     the CERTF under section 9511 of the Internal Revenue Code of 
     1986. Such assessment shall include a determination as to 
     whether, based on the utilization of findings by public and 
     private payers, each of the following are appropriate sources 
     of funding for the Institute, including a determination of 
     whether such sources of funding should be continued or 
     adjusted:
       ``(i) The transfer of funds from the Federal Hospital 
     Insurance Trust Fund under section 1817 and the Federal 
     Supplementary Medical Insurance Trust Fund under section 1841 
     to the CERTF under section 1182.
       ``(ii) The amounts appropriated under subparagraphs (A), 
     (B), (C), (D)(ii), and (E)(ii) of subsection (b)(1) of such 
     section 9511.
       ``(iii) Private sector contributions under subparagraphs 
     (D)(i) and (E)(i) of such subsection (b)(1).
       ``(B) Report.--Not later than 8 years after the date of 
     enactment of this section, the Comptroller General of the 
     United States shall submit a report to Congress containing 
     the results of the assessment conducted under subparagraph 
     (A), together with recommendations for such legislation and 
     administrative action as the Comptroller General determines 
     appropriate.
       ``(i) Ensuring Transparency, Credibility, and Access.--The 
     Institute shall establish procedures to ensure that the 
     following requirements for ensuring transparency, 
     credibility, and access are met:
       ``(1) Public comment periods.--
       ``(A) In general.--The Institute shall provide for a public 
     comment period of not less than 30 and not more than 60 days 
     at the following times:
       ``(i) Prior to the adoption of the national priorities 
     identified under subsection (d)(1)(A), the research project 
     agenda established under subsection (d)(1)(B), the 
     methodological standards developed and updated by the 
     methodology committee under subsection (d)(6)(C)(i), the 
     peer-review process generally provided under subsection 
     (d)(7), and dissemination protocols and strategies developed 
     by the Institute under subsection (d)(8)(B) in accordance 
     with subsection (d)(9).
       ``(ii) Prior to the finalization of individual study 
     designs.
       ``(B) Transmission of public comments on study design.--The 
     Institute shall transmit public comments submitted during the 
     public comment period described in subparagraph (A)(ii) to 
     the entity conducting research with respect to which the 
     individual study design is being finalized.
       ``(2) Additional forums.--The Institute shall, in addition 
     to the public comment periods described in paragraph (1)(A), 
     support forums to increase public awareness and obtain and 
     incorporate public feedback through media (such as an 
     Internet website) on the following:
       ``(A) The identification of research priorities and the 
     establishment of the research project agenda under 
     subparagraphs (A) and (B), respectively, of subsection 
     (d)(1).
       ``(B) Research findings.
       ``(C) Any other duties, activities, or processes the 
     Institute determines appropriate.
       ``(3) Public availability.--The Institute shall make 
     available to the public and disclose through the official 
     public Internet website of the Institute, and through other 
     forums and media the Institute determines appropriate, the 
     following:
       ``(A) The process and methods for the conduct of research 
     under this section, including--
       ``(i) the identity of the entity conducting such research;
       ``(ii) any links the entity has to industry (including such 
     links that are not directly tied to the particular research 
     being conducted under this section);
       ``(iii) draft study designs (including research questions 
     and the finalized study design, together with public comments 
     on such study design and responses to such comments);
       ``(iv) research protocols (including measures taken, 
     methods of research, methods of analysis, research results, 
     and such other information as the Institute determines 
     appropriate);
       ``(v) the identity of investigators conducting such 
     research and any conflicts of interest of such investigators; 
     and
       ``(vi) any progress reports the Institute determines 
     appropriate.
       ``(B) Public comments submitted during each of the public 
     comment periods under paragraph (1)(A).
       ``(C) Bylaws, processes, and proceedings of the Institute, 
     to the extent practicable and as the Institute determines 
     appropriate.
       ``(D) Not later than 90 days after receipt by the Institute 
     of a relevant report or research findings, appropriate 
     information contained in such report or findings.
       ``(4) Conflicts of interest.--The Institute shall--
       ``(A) in appointing members to an advisory panel under 
     subsection (d)(5) and the methodology committee under 
     subsection (d)(6), and in selecting individuals to contribute 
     to any peer-review process under subsection (d)(7) and for 
     employment as executive staff of the Institute, take into 
     consideration any conflicts of interest of potential 
     appointees, participants, and staff; and
       ``(B) include a description of any such conflicts of 
     interest and conflicts of interest of Board members in the 
     annual report under subsection (d)(11), except that, in the 
     case of individuals contributing to any such peer review 
     process, such description shall be in a manner such that 
     those individuals cannot be identified with a particular 
     research project.
       ``(j) Rules.--
       ``(1) Gifts.--The Institute, or the Board and staff of the 
     Institute acting on behalf of the Institute, may not accept 
     gifts, bequeaths, or donations of services or property.
       ``(2) Establishment and prohibition on accepting outside 
     funding or contributions.--The Institute may not--
       ``(A) establish a corporation other than as provided under 
     this section; or
       ``(B) accept any funds or contributions other than as 
     provided under this part.
       ``(k) Rules of Construction.--
       ``(1) Coverage.--Nothing in this section shall be 
     construed--
       ``(A) to permit the Institute to mandate coverage, 
     reimbursement, or other policies for any public or private 
     payer; or
       ``(B) as preventing the Secretary from covering the routine 
     costs of clinical care received by an individual entitled to, 
     or enrolled for, benefits under title XVIII, XIX, or XXI in 
     the case where such individual is participating in a clinical 
     trial and such costs would otherwise be covered under such 
     title with respect to the beneficiary.
       ``(2) Reports and findings.--None of the reports submitted 
     under this section or research findings disseminated by the 
     Institute shall be construed as mandates, guidelines,

[[Page 17749]]

     or recommendations for payment, coverage, or treatment.


``trust fund transfers to comparative effectiveness research trust fund

       ``Sec. 1182.  (a) In General.--The Secretary shall provide 
     for the transfer, from the Federal Hospital Insurance Trust 
     Fund under section 1817 and the Federal Supplementary Medical 
     Insurance Trust Fund under section 1841, in proportion (as 
     estimated by the Secretary) to the total expenditures during 
     such fiscal year that are made under title XVIII from the 
     respective trust fund, to the Comparative Effectiveness 
     Research Trust Fund (referred to in this section as the 
     `CERTF') under section 9511 of the Internal Revenue Code of 
     1986, the following:
       ``(1) For fiscal year 2012, an amount equal to 50 cents 
     multiplied by the average number of individuals entitled to 
     benefits under part A, or enrolled under part B, of title 
     XVIII during such fiscal year.
       ``(2) For each of fiscal years 2013, 2014, 2015, 2016, 
     2017, and 2018, an amount equal to $1 multiplied by the 
     average number of individuals entitled to benefits under part 
     A, or enrolled under part B, of title XVIII during such 
     fiscal year.
       ``(b) Adjustments for Increases in Health Care Spending.--
     In the case of any fiscal year beginning after September 30, 
     2013, the dollar amount in effect under subsection (a)(2) for 
     such fiscal year shall be equal to the sum of such dollar 
     amount for the previous fiscal year (determined after the 
     application of this subsection), plus an amount equal to the 
     product of--
       ``(1) such dollar amount for the previous fiscal year, 
     multiplied by
       ``(2) the percentage increase in the projected per capita 
     amount of National Health Expenditures from the calendar year 
     in which the previous fiscal year ends to the calendar year 
     in which the fiscal year involved ends, as most recently 
     published by the Secretary before the beginning of the fiscal 
     year.''.
       (b) Coordination With Provider Education and Technical 
     Assistance.--Section 1889(a) of the Social Security Act (42 
     U.S.C. 1395zz(a)) is amended by inserting ``and to enhance 
     the understanding of and utilization by providers of services 
     and suppliers of research findings disseminated by the Health 
     Care Comparative Effectiveness Research Institute established 
     under section 1181'' before the period at the end.
       (c) Comparative Effectiveness Research Trust Fund; 
     Financing for Trust Fund.--
       (1) Establishment of trust fund.--
       (A) In general.--Subchapter A of chapter 98 of the Internal 
     Revenue Code of 1986 (relating to establishment of trust 
     funds) is amended by adding at the end the following new 
     section:

     ``SEC. 9511. COMPARATIVE EFFECTIVENESS RESEARCH TRUST FUND.

       ``(a) Creation of Trust Fund.--There is established in the 
     Treasury of the United States a trust fund to be known as the 
     `Comparative Effectiveness Research Trust Fund' (hereafter in 
     this section referred to as the `CERTF'), consisting of such 
     amounts as may be appropriated or credited to such Trust Fund 
     as provided in this section and section 9602(b).
       ``(b) Transfers to Fund.--
       ``(1) Appropriation.--There are hereby appropriated to the 
     Trust Fund the following:
       ``(A) For fiscal year 2009, $5,000,000.
       ``(B) For fiscal year 2010, $25,000,000.
       ``(C) For fiscal year 2011, $75,000,000.
       ``(D) For fiscal year 2012--
       ``(i) an amount equivalent to the net revenues received in 
     the Treasury from the fees imposed under subchapter B of 
     chapter 34 (relating to fees on health insurance and self-
     insured plans) for such fiscal year; and
       ``(ii) $75,000,000.
       ``(E) For each of fiscal years 2013, 2014, 2015, 2016, 
     2017, and 2018--
       ``(i) an amount equivalent to the net revenues received in 
     the Treasury from the fees imposed under subchapter B of 
     chapter 34 (relating to fees on health insurance and self-
     insured plans) for such fiscal year; and
       ``(ii) $75,000,000.
     The amounts appropriated under subparagraphs (A), (B), (C), 
     (D)(ii), and (E)(ii) shall be transferred from the general 
     fund of the Treasury, from funds not otherwise appropriated.
       ``(2) Trust fund transfers.--In addition to the amounts 
     appropriated under paragraph (1), there shall be credited to 
     the CERTF the amounts transferred under section 1182 of the 
     Social Security Act.
       ``(3) Limitation on transfers to certf.--No amount may be 
     appropriated or transferred to the CERTF on and after the 
     date of any expenditure from the CERTF which is not an 
     expenditure permitted under this section. The determination 
     of whether an expenditure is so permitted shall be made 
     without regard to--
       ``(A) any provision of law which is not contained or 
     referenced in this chapter or in a revenue Act, and
       ``(B) whether such provision of law is a subsequently 
     enacted provision or directly or indirectly seeks to waive 
     the application of this paragraph.
       ``(c) Trustee.--The Secretary of Health and Human Services 
     shall be a trustee of the CERTF.
       ``(d) Expenditures From Fund.--Amounts in the CERTF are 
     available, without further appropriation, to the Health Care 
     Comparative Effectiveness Research Institute established by 
     section 2(a) of the Comparative Effectiveness Research Act of 
     2008 for carrying out part D of title XI of the Social 
     Security Act (as in effect on the date of enactment of the 
     Comparative Effectiveness Research Act of 2008).
       ``(e) Net Revenues.--For purposes of this section, the term 
     `net revenues' means the amount estimated by the Secretary of 
     the Treasury based on the excess of--
       ``(1) the fees received in the Treasury under subchapter B 
     of chapter 34, over
       ``(2) the decrease in the tax imposed by chapter 1 
     resulting from the fees imposed by such subchapter.
       ``(f) Termination.--No amounts shall be available for 
     expenditure from the CERTF after September 30, 2018, and any 
     amounts in such Trust Fund after such date shall be 
     transferred to the general fund of the Treasury.''.
       (B) Clerical amendment.--The table of sections for 
     subchapter A of chapter 98 of such Code is amended by adding 
     at the end the following new item:

``Sec. 9511. Comparative Effectiveness Research Trust Fund.''.
       (2) Financing for fund from fees on insured and self-
     insured health plans.--
       (A) General rule.--Chapter 34 of the Internal Revenue Code 
     of 1986 is amended by adding at the end the following new 
     subchapter:

         ``Subchapter B--Insured and Self-Insured Health Plans

``Sec. 4375. Health insurance.
``Sec. 4376. Self-insured health plans.
``Sec. 4377. Definitions and special rules.

     ``SEC. 4375. HEALTH INSURANCE.

       ``(a) Imposition of Fee.--There is hereby imposed on each 
     specified health insurance policy for each policy year ending 
     after September 30, 2011, a fee equal to the product of $1 
     (50 cents in the case of policy years ending during fiscal 
     year 2012) multiplied by the average number of lives covered 
     under the policy.
       ``(b) Liability for Fee.--The fee imposed by subsection (a) 
     shall be paid by the issuer of the policy.
       ``(c) Specified Health Insurance Policy.--For purposes of 
     this section:
       ``(1) In general.--Except as otherwise provided in this 
     section, the term `specified health insurance policy' means 
     any accident or health insurance policy (including a policy 
     under a group health plan) issued with respect to individuals 
     residing in the United States.
       ``(2) Exemption for certain policies.--The term `specified 
     health insurance policy' does not include any insurance if 
     substantially all of its coverage is of excepted benefits 
     described in section 9832(c).
       ``(3) Treatment of prepaid health coverage arrangements.--
       ``(A) In general.--In the case of any arrangement described 
     in subparagraph (B)--
       ``(i) such arrangement shall be treated as a specified 
     health insurance policy, and
       ``(ii) the person referred to in such subparagraph shall be 
     treated as the issuer.
       ``(B) Description of arrangements.--An arrangement is 
     described in this subparagraph if under such arrangement 
     fixed payments or premiums are received as consideration for 
     any person's agreement to provide or arrange for the 
     provision of accident or health coverage to residents of the 
     United States, regardless of how such coverage is provided or 
     arranged to be provided.
       ``(d) Adjustments for Increases in Health Care Spending.--
     In the case of any policy year ending in any fiscal year 
     beginning after September 30, 2013, the dollar amount in 
     effect under subsection (a) for such policy year shall be 
     equal to the sum of such dollar amount for policy years 
     ending in the previous fiscal year (determined after the 
     application of this subsection), plus an amount equal to the 
     product of--
       ``(1) such dollar amount for policy years ending in the 
     previous fiscal year, multiplied by
       ``(2) the percentage increase in the projected per capita 
     amount of National Health Expenditures from the calendar year 
     in which the previous fiscal year ends to the calendar year 
     in which the fiscal year involved ends, as most recently 
     published by the Secretary of Health and Human Services 
     before the beginning of the fiscal year.
       ``(e) Termination.--This section shall not apply to policy 
     years ending after September 30, 2018.

     ``SEC. 4376. SELF-INSURED HEALTH PLANS.

       ``(a) Imposition of Fee.--In the case of any applicable 
     self-insured health plan for each plan year ending after 
     September 30, 2011, there is hereby imposed a fee equal to $1 
     (50 cents in the case of plan years ending during fiscal year 
     2012) multiplied by the average number of lives covered under 
     the plan.
       ``(b) Liability for Fee.--
       ``(1) In general.--The fee imposed by subsection (a) shall 
     be paid by the plan sponsor.
       ``(2) Plan sponsor.--For purposes of paragraph (1) the term 
     `plan sponsor' means--
       ``(A) the employer in the case of a plan established or 
     maintained by a single employer,
       ``(B) the employee organization in the case of a plan 
     established or maintained by an employee organization,
       ``(C) in the case of--

[[Page 17750]]

       ``(i) a plan established or maintained by 2 or more 
     employers or jointly by 1 or more employers and 1 or more 
     employee organizations,
       ``(ii) a multiple employer welfare arrangement, or
       ``(iii) a voluntary employees' beneficiary association 
     described in section 501(c)(9),
     the association, committee, joint board of trustees, or other 
     similar group of representatives of the parties who establish 
     or maintain the plan, or
       ``(D) the cooperative or association described in 
     subsection (c)(2)(F) in the case of a plan established or 
     maintained by such a cooperative or association.
       ``(c) Applicable Self-Insured Health Plan.--For purposes of 
     this section, the term `applicable self-insured health plan' 
     means any plan for providing accident or health coverage if--
       ``(1) any portion of such coverage is provided other than 
     through an insurance policy, and
       ``(2) such plan is established or maintained--
       ``(A) by one or more employers for the benefit of their 
     employees or former employees,
       ``(B) by one or more employee organizations for the benefit 
     of their members or former members,
       ``(C) jointly by 1 or more employers and 1 or more employee 
     organizations for the benefit of employees or former 
     employees,
       ``(D) by a voluntary employees' beneficiary association 
     described in section 501(c)(9),
       ``(E) by any organization described in section 501(c)(6), 
     or
       ``(F) in the case of a plan not described in the preceding 
     subparagraphs, by a multiple employer welfare arrangement (as 
     defined in section 3(40) of Employee Retirement Income 
     Security Act of 1974), a rural electric cooperative (as 
     defined in section 3(40)(B)(iv) of such Act), or a rural 
     telephone cooperative association (as defined in section 
     3(40)(B)(v) of such Act).
       ``(d) Adjustments for Increases in Health Care Spending.--
     In the case of any plan year ending in any fiscal year 
     beginning after September 30, 2013, the dollar amount in 
     effect under subsection (a) for such plan year shall be equal 
     to the sum of such dollar amount for plan years ending in the 
     previous fiscal year (determined after the application of 
     this subsection), plus an amount equal to the product of--
       ``(1) such dollar amount for plan years ending in the 
     previous fiscal year, multiplied by
       ``(2) the percentage increase in the projected per capita 
     amount of National Health Expenditures from the calendar year 
     in which the previous fiscal year ends to the calendar year 
     in which the fiscal year involved ends, as most recently 
     published by the Secretary of Health and Human Services 
     before the beginning of the fiscal year.
       ``(e) Termination.--This section shall not apply to plan 
     years ending after September 30, 2018.

     ``SEC. 4377. DEFINITIONS AND SPECIAL RULES.

       ``(a) Definitions.--For purposes of this subchapter--
       ``(1) Accident and health coverage.--The term `accident and 
     health coverage' means any coverage which, if provided by an 
     insurance policy, would cause such policy to be a specified 
     health insurance policy (as defined in section 4375(c)).
       ``(2) Insurance policy.--The term `insurance policy' means 
     any policy or other instrument whereby a contract of 
     insurance is issued, renewed, or extended.
       ``(3) United states.--The term `United States' includes any 
     possession of the United States.
       ``(b) Treatment of Governmental Entities.--
       ``(1) In general.--For purposes of this subchapter--
       ``(A) the term `person' includes any governmental entity, 
     and
       ``(B) notwithstanding any other law or rule of law, 
     governmental entities shall not be exempt from the fees 
     imposed by this subchapter except as provided in paragraph 
     (2).
       ``(2) Treatment of exempt governmental programs.--In the 
     case of an exempt governmental program, no fee shall be 
     imposed under section 4375 or section 4376 on any covered 
     life under such program.
       ``(3) Exempt governmental program defined.--For purposes of 
     this subchapter, the term `exempt governmental program' 
     means--
       ``(A) any insurance program established under title XVIII 
     of the Social Security Act,
       ``(B) the medical assistance program established by title 
     XIX or XXI of the Social Security Act,
       ``(C) any program established by Federal law for providing 
     medical care (other than through insurance policies) to 
     individuals (or the spouses and dependents thereof) by reason 
     of such individuals being--
       ``(i) members of the Armed Forces of the United States, or
       ``(ii) veterans, and
       ``(D) any program established by Federal law for providing 
     medical care (other than through insurance policies) to 
     members of Indian tribes (as defined in section 4(d) of the 
     Indian Health Care Improvement Act).
       ``(c) Treatment as Tax.--For purposes of subtitle F, the 
     fees imposed by this subchapter shall be treated as if they 
     were taxes.
       ``(d) No Cover Over to Possessions.--Notwithstanding any 
     other provision of law, no amount collected under this 
     subchapter shall be covered over to any possession of the 
     United States.''.
       (B) Clerical amendments.--
       (i) Chapter 34 of such Code is amended by striking the 
     chapter heading and inserting the following:

           ``CHAPTER 34--TAXES ON CERTAIN INSURANCE POLICIES

          ``subchapter a. policies issued by foreign insurers

         ``subchapter b. insured and self-insured health plans

         ``Subchapter A--Policies Issued By Foreign Insurers''.

       (ii) The table of chapters for subtitle D of such Code is 
     amended by striking the item relating to chapter 34 and 
     inserting the following new item:

          ``Chapter 34--Taxes on Certain Insurance Policies''.

     SEC. 3. GAO REPORT ON NATIONAL COVERAGE DETERMINATIONS 
                   PROCESS.

       Not later than 18 months after the date of enactment of 
     this Act, the Comptroller General of the United States shall 
     submit a report to Congress on the process for making 
     national coverage determinations (as defined in section 
     1869(f)(1)(B) of the Social Security Act (42 U.S.C. 
     1395ff(f)(1)(B)) under the Medicare program under title XVIII 
     of the Social Security Act. Such report shall include a 
     determination whether, in initiating and conducting such 
     process, the Secretary of Health and Human Services has 
     complied with applicable law and regulations, including 
     requirements for consultation with appropriate outside 
     experts, providing appropriate notice and comment 
     opportunities to the public, and making information and data 
     (other than proprietary data) considered in making such 
     determinations available to the public and to nonvoting 
     members of any advisory committees established to advise the 
     Secretary with respect to such determinations.

  Mr. CONRAD. Mr. President, today I join my good friend and colleague, 
Senator Baucus, in introducing the Comparative Effectiveness Research 
Act of 2008. This proposal is the product of months of careful 
deliberations regarding the best way to expand the quality and quantity 
of evidence available to health consumers about the comparative 
clinical effectiveness of health care services and treatments. We have 
met with dozens of key stakeholders and thought leaders to discuss 
various aspects of this legislation. I am proud of the result. This 
legislation lays the groundwork for improving health care outcomes, 
enhancing patient safety, and reducing overall health care costs in the 
long-run.
  As chairman of the Senate Budget Committee, I am acutely aware of the 
long-term budget challenges facing our nation. Health care spending is 
growing at an unsustainable rate. Although demographic changes 
associated with the retirement of the baby boom generation contribute 
to this spending growth, the most significant factor is growth in 
health care costs in excess of per capita GDP growth. According to 
Congressional Budget Office projections, by 2050, Medicare and Medicaid 
spending alone will consume 12 percent of our Nation's gross domestic 
product.
  But excess growth in per capita health care costs is not just a 
challenge for Federal health spending and the federal budget. If we 
continue on the current trajectory, the private sector will also be 
overwhelmed by rising health care costs. In fact, total health care 
spending is projected to grow from about 16 percent of GDP in 2007--
which is far higher than in other industrialized countries--to more 
than 37 percent of GDP in 2050.
  Clearly, we need to address the underlying causes of rising health 
care costs, not just in the Medicare and Medicaid programs, but in the 
overall health care system. Simply cutting Medicare and Medicaid 
without making other changes will do little to solve the larger problem 
we face. As GAO Comptroller General David Walker pointed out in 
testimony before the House Budget Committee, in 2005, ``[F]ederal 
health spending trends should not be viewed in isolation from the 
health care system as a whole . . . . Rather, in order to address the 
long-term fiscal challenge, it will be necessary to find approaches 
that deal with health care cost growth in the overall health care 
system.''
  A key problem we must confront is that our health care system does 
not

[[Page 17751]]

deliver care as efficiently or effectively as it should. In fact, the 
United States spends far more on health expenditures as a percent of 
GDP than any other country in the Organization for Economic Cooperation 
and Development. For example, the United States spent 16 percent of GDP 
on health expenditures in 2006, compared to 9 percent in Italy. And the 
disparity is even starker today. Despite this additional health care 
spending, health outcomes in the United States are no better than 
health outcomes in the other OECD countries. In fact, by some measures, 
they are worse.
  We can and must find ways to deliver health care more efficiently, 
reduce ineffective or unnecessary care, and get better health outcomes 
without harming patients.
  One solution is to generate better information about the relative 
effectiveness of alternative health strategies--and encourage patients 
and providers to use that information to make better choices about 
their health. Many newer, more expensive health care services and 
treatments are absorbed quickly into routine medical care--yet there is 
little evidence that these services and treatments are any more 
clinically effective than existing treatments and services.
  The Federal Government currently funds some comparative effectiveness 
research through the Agency for Healthcare Research and Quality. The 
Effective Health Care Program has been a successful initiative, and we 
commend AHRQ for its work, but comparative effectiveness research is 
not the primary focus of any federal agency--nor is this federal 
funding occurring on a large-scale. The Congressional Budget Office, 
CBO, the Medicare Payment Advisory Commission, MedPAC, and the 
Institute of Medicine, IOM, have all discussed the positive impact of 
creating a new entity charged solely with conducting research on the 
comparative effectiveness of health interventions, including 
pharmaceuticals, medical devices, medical procedures, diagnostic tools, 
medical services and other therapies.
  In its June 2007 report to Congress, MedPAC issued a unanimous 
recommendation that ``Congress should charge an independent entity to 
sponsor credible research on comparative effectiveness of health care 
services and disseminate this information to patients, providers, and 
public and private payers.''
  And the Congressional Budget Office agrees. In a recent report, 
entitled, ``Research on the Comparative Effectiveness of Medical 
Treatments: Issues and Options for an Expanded Federal Role,'' CBO 
Director Peter Orszag wrote that, ``generating better information about 
the costs and benefits of different treatment options--through research 
on the comparative effectiveness of those options--could help reduce 
health care spending without adversely affecting health overall.''
  The IOM also supports getting better information into the hands of 
patients and providers. As part of its report, ``Learning What Works 
Best: The Nation's Need for Evidence on Comparative Effectiveness in 
Health Care,'' the Institute concluded that,
``[a] substantially increased capacity to conduct and evaluate research 
      on clinical effectiveness of interventions brings many potential 
    opportunities for improvement across a wide spectrum of healthcare 
                                                               needs.''
  This bill that Senator Baucus and I are introducing today represents 
an important step in expanding comparative effectiveness research. The 
bill would significantly expand the conduct of comparative clinical 
effectiveness research to get better information into the hands of 
patients and providers in the hopes of improving health outcomes and 
reducing unnecessary or ineffective care.
  The purpose of this bill is to provide health care providers and 
patients with objective and credible evidence about which health care 
treatments, services, and items are most clinically effective for 
particular patient populations. The research conducted under our bill 
would evaluate and compare the clinical effectiveness of two or more 
health care interventions, treatment protocols, procedures, medical 
devices, diagnostic tools, pharmaceuticals, and other processes or 
items used in the treatment or diagnosis of patients. Access to better 
evidence about what works best will help patients and health care 
providers make better-informed decisions about how best to treat 
particular diseases and conditions. Our hope is that the evidence 
generated by this research could lead to savings in the overall health 
care system over the long-term by allowing providers to avoid 
treatments that may be clinically ineffective, while at the same time 
improving health care outcomes.
  Specifically, our bill creates a private, nonprofit corporation, 
known as the Health Care Comparative Effectiveness Research Institute, 
which would be responsible for organizing and implementing a national 
comparative effectiveness research agenda. In conducting the research, 
the Institute would contract with the Agency for Healthcare Research 
and Quality, the National Institutes of Health and other appropriate 
public and private entities and could use a variety of research 
methods, including clinical trials, observational studies and 
systematic reviews of existing evidence.
  Many thought leaders on this issue, such as the Medicare Payment 
Advisory Committee, had concerns that a large entity within the Federal 
Government would be vulnerable to political interference that could 
hamper the Institute's credibility, and, therefore, limit the 
usefulness of its research. As a result, we chose a model outside of 
the Federal Government, but subject to government oversight.
  In order to ensure that the information developed is credible and 
unbiased, our bill establishes a 21-Member Board of Governors to 
oversee the Institute's activities. Permanent board members would 
include the Secretary of Health and Human Services and the Directors of 
the Agency for Healthcare Research and Quality and the National 
Institutes of Health, NIH. The remaining 18 board members would be 
appointed by the Comptroller General of the United States and would 
include a balanced mix of patients, physicians, drug, device, and 
technology manufacturers, public and private payers, academic 
researchers, philanthropic organizations and quality improvement 
entities.
  To ensure further credibility, the Institute is also required to 
appoint advisory panels of patients, clinicians, and other stakeholders 
that would assist in the development and carrying out of the research 
agenda; establish a methodology committee that would help create 
standards by which all research commissioned by the Institute must be 
conducted; create a peer review process through which all research 
findings must be assessed; and develop protocols to help translate and 
disseminate the evidence in the most effective, user-friendly way.
  Moreover, Senator Baucus and I want to ensure that the operations of 
the Institute are transparent. Therefore, we built in a strong role for 
public comment prior to all key decisions made by the Institute. For 
example, the bill requires public comment periods prior to the approval 
of the overall research agenda and the individual study designs. In 
addition, the bill calls for periodic public forums to seek input, 
requires that all proceedings of the Institute be made public and 
available through annual reports, and requires that any conflicts of 
interest be made public and that board members recuse themselves from 
matters in which they have a financial or personal interest.
  Because all health care users will benefit from this research, our 
legislation funds the Institute with contributions from both public and 
private payers. These contributions will include mandatory general 
revenues from the Federal Government, amounts from the Medicare Trust 
Funds equal to $1 per beneficiary annually, and amounts from a $1 fee 
per-covered life assessed annually on insured and self-insured health 
plans. Funding will ramp up over a series of years. By the fifth year, 
we expect the Institute's total annual funding to exceed $300 million 
per year and continue to grow thereafter.

[[Page 17752]]

  The concept of an all-payer approach for comparative effectiveness 
research has been embraced by a number of health care experts. For 
example, on the subject of comparative effectiveness information in its 
June 2008 report, MedPAC stated: ``The Commission supports funding from 
federal and private sources as the research findings will benefit all 
users--patients, providers, private health plans, and federal health 
programs. The Commission also supports a dedicated funding mechanism to 
help ensure the entity's independence and stability. Dedicated broadly 
based financing would reduce the likelihood of outside influence and 
would best ensure the entity's stability . . .''
  To ensure accountability for these funds and to the Institute's 
mission, our bill requires an annual financial audit of the Institute. 
In addition, the bill requires GAO to report to Congress every five 
years on the processes developed by the Institute and its overall 
effectiveness, including how the research findings are used by health 
care consumers and what impact the research is having on the health 
economy. Finally, the bill requires a review after eight years of the 
adequacy of the Institute's funding, which will include a review of the 
appropriateness and adequacy of each funding source.
  Let me take a moment to address some of the criticisms that might be 
levied against this proposal. Some may say this Institute will impede 
access to care and will deny coverage for high-cost health care 
services. That is not the case. Our proposal explicitly prohibits the 
Institute from making coverage decisions or setting practice 
guidelines. It will be up to specialty societies and patient groups to 
use the research findings as they see fit. Moreover, to the extent that 
high-cost health care services or new technologies are studied by the 
Institute and found to be clinically ineffective compared to other 
services and technologies, such evidence will be made public to 
consumers and providers so that they can make the best possible health 
care decisions. Other critics may claim that this proposal will result 
in one-size-fits-all approach to comparative clinical effectiveness 
research. We recognize that different health care treatments may have 
different levels of effectiveness for different subpopulations. That is 
why our bill requires that the Institute's research be designed, as 
appropriate, to take into account the potential differences in the 
effectiveness of health care services as used with various 
subpopulations, such as women, racial and ethnic minorities, different 
age groups, and individuals with different comorbidities.
  This bill is a balanced, carefully crafted proposal that has taken 
into consideration the recommendations of a broad range of stakeholders 
and thought-leaders. We welcome further discussion and suggested 
improvements. But we refuse to allow this proposal to get bogged down 
in political maneuvering or scare tactics. Our nation needs to ramp up 
comparative effectiveness research immediately to improve health 
outcomes and reduce ineffective and inefficient care.
  Senator Baucus and I will work jointly to push for the expeditious 
enactment of this bill. I urge all of my colleagues to join our effort 
and cosponsor the Comparative Effectiveness Research Act of 2008. There 
is no time to waste.
                                 ______
                                 
      By Mr. REID (for Mr. Kennedy (for himself and Mr. Grassley)):
  S. 3409. A bill to amend the Federal Food, Drug, and Cosmetic Act to 
ensure the safety and quality of medical products and enhance the 
authorities of the Food and Drug Administration, and for other 
purposes; to the Committee on Health, Education, Labor, and Pensions.
  Mr. GRASSLEY. Mr. President, as Ranking Member of the Senate Finance 
Committee, I view my role as working to ensure the safety and well-
being of the more than 80 million Americans who are beneficiaries of 
the Medicare and Medicaid programs. These programs spend a lot of 
taxpayers' money on prescription drugs and medical devices, and that 
money should be spent on drugs and devices that are safe and effective.
  Over the last four years I have conducted extensive oversight of the 
Food and Drug Administration. I have reviewed and questioned how the 
FDA handles the pre-market review and post-market surveillance of 
drugs, biologics, devices and veterinary medicines to assess whether or 
not the agency is fulfilling its mission to protect the public health. 
As a result of my oversight activities, I identified serious problems 
at the FDA that included the quashing of scientific opinion within the 
agency, delays in informing the public of emerging safety problems, too 
cozy a relationship between the FDA and the industries it is supposed 
to regulate, and a failure to be adequately transparent and accountable 
to the public.
  Last year, when the Senate Health, Education, Labor, and Pensions 
Committee and the House Energy and Commerce Committee were working on 
FDA legislation, I encouraged them to take that opportunity to reform, 
improve, and re-establish the FDA as the gold standard for drug safety. 
I believed the FDA needed additional tools, resources, and authorities 
to do its work.
  The Congress passed the Food and Drug Administration Amendments Act 
last September. While we did not fix a fundamental problem at the FDA 
that's been shown through my investigations over the last few years, 
the new legislation did provide additional tools in FDA's toolbox to 
better protect the American people. It was a positive step toward 
restoring the public's trust in the FDA.
  Today, I am here to talk about another FDA bill. Last summer, I 
started examining FDA's program for inspection of foreign 
pharmaceutical manufacturing plants. I expressed concerns to the FDA 
regarding, among other things, inspection funding, emerging exporters, 
and weaknesses in the inspection process.
  An increasing amount of the drugs and active pharmaceutical 
ingredients (API) Americans use are being manufactured in foreign 
countries. Yet, as reported by the Government Accountability Office in 
November 2007, the Food and Drug Administration does not know how many 
foreign establishments are subject to inspection and the agency 
conducts relatively few inspections each year.
  From fiscal year 2002 through fiscal year 2007, the FDA conducted 
fewer than 1,400 inspections of foreign pharmaceutical facilities, 
often focused in countries with few reported quality concerns. In 
China, the world's largest producer of active pharmaceutical 
ingredients, and where export safety appears to be a growing problem, 
only 11 inspections were conducted during FY 2007, compared to 14 in 
Switzerland, 18 in Germany, and 24 in France, all countries with 
advanced regulatory infrastructures. I was troubled by these numbers.
  Then came the wake-up call in January of this year. FDA announced 
that Baxter International Inc. temporarily suspended production of its 
blood thinner heparin because of an increase in the reports of adverse 
events that may be associated with its drug. It was discovered that the 
active ingredient in heparin was contaminated and that the ingredient 
was produced at a facility in the People's Republic of China. Soon more 
recalls were announced. After several months, the FDA established a 
link between the contaminant found in heparin and the serious adverse 
events seen in patients that were given heparin. FDA's investigation of 
the source of the contamination highlighted significant weaknesses in 
oversight of the production and supply chain.
  With limited inspection resources, the FDA is charged with ensuring 
the safety and efficacy of drugs and pharmaceutical ingredients 
produced in nearly every corner of the globe. To make matters worse, as 
the FDA's challenges multiply, its resources for foreign inspections 
are shrinking. It is troubling that the FDA is grossly under-resourced 
at a time when foreign production of drugs and active pharmaceutical 
ingredients is growing at

[[Page 17753]]

record rates. Adding to the difficulty of this task, it appears that 
many foreign pharmaceutical plants register with the FDA as a means to 
bolster their own standing and with no intention of exporting products 
to the United States market.
  That is why I am introducing the Drug and Device Accountability Act 
today with Senator Kennedy, chairman of the Committee on Health, 
Education, Labor, and Pensions.
  This legislation would augment FDA's resources through the collection 
of registration and inspection fees. The bill also expands the agency's 
authority for ensuring the safety of drugs and medical devices, 
including foreign manufactured drugs and devices, by expanding FDA's 
authority to inspect foreign manufacturers and importers, allowing the 
FDA to issue subpoenas, and allowing the FDA to detain a device or drug 
when its inspectors have reason to believe the product is adulterated 
or misbranded.
  In addition, the bill includes a provision that expands on an 
amendment I filed last spring to the Senate bill, S. 1082 Food and Drug 
Administration Revitalization Act. That amendment provided for a 
certification by drug manufacturers that the information submitted as 
part of a new drug or supplemental application is accurate.
  Under the Drug and Device Accountability Act, individuals responsible 
for the submission of a drug or device application or a report related 
to safety or effectiveness would have to certify that the application 
or report is compliant with applicable regulations and not false or 
misleading. Civil as well as criminal penalties could be imposed for 
false or misleading certifications. I believe this is an important 
provision, especially in light of the troubling findings presented in 
the Journal of the American Medical Association in April. Based on a 
review of documents from recent litigation involving the pain 
medication Vioxx, the authors of those articles concluded that the 
maker of Vioxx was not forthcoming in its communication with the Food 
and Drug Administration about the mortality risks seen in clinical 
trials of Vioxx conducted in patients with Alzheimer disease or 
cognitive impairment.
  Last year, Congress passed legislation that would strengthen FDA's 
ability to act on emerging safety problems. Now we need legislation 
that will enhance FDA's oversight of drugs and devices if the Agency is 
to ensure that America's increasingly foreign-produced drug and device 
supply is both safe and effective.
                                 ______
                                 
      By Mr. AKAKA (for himself, Mr. Schumer, Mr. Lieberman, and Mr. 
        Inouye):
  S. 3410. A bill to authorize a grant program to provide for expanded 
access to mainstream financial institutions; to the Committee on 
Banking, Housing, and Urban Affairs.
  Mr. AKAKA. President, as a member of the Banking Committee, I have 
worked to improve the financial literacy of our country. My interest in 
financial literacy dates back to when my fourth grade teacher required 
me to have a piggy bank. We were made to understand how money saved, a 
little at a time, can grow into a large amount--enough to buy things 
that would have been impossible to obtain without savings. My 
experience with a piggy bank taught me important lessons about money 
management that have stayed with me throughout my life. More people 
need to be taught these important lessons so that they are better able 
to manage their resources.
  Too many Americans lack basic financial literacy. Americans of all 
ages and backgrounds face increasingly complex financial decisions as 
members of the nation's workforce, managers of their families' 
resources, and voting citizens. Many find these decisions confusing and 
frustrating because they lack the tools necessary that would enable 
them to make wise, personal choices about their finances.
  Without a sufficient understanding of economics and personal finance, 
individuals will not be able to appropriately manage their finances, 
effectively evaluate credit opportunities, successfully invest for 
long-term financial goals in an increasingly complex marketplace, or be 
able to cope with difficult financial situations. Unfortunately, today 
too many working families are struggling as they are confronted with 
increases in energy and food costs or the loss of a job.
  It is essential that we work toward improving education, consumer 
protections, and empowering individuals and families through economic 
and financial literacy in order to build stronger families, businesses, 
and communities.
  Today I am introducing the Improving Access to Mainstream Financial 
Institutions Act of 2008. This bill provides economic empowerment and 
educational opportunities for working families by helping bank the 
unbanked. It will also encourage the use of mainstream financial 
institutions for working families that need small loans. I thank my 
cosponsors, Senators Schumer, Lieberman, and Inouye.
  Millions of working families do not have a bank or credit union 
account. The unbanked rely on alternative financial service providers 
to obtain cash from checks, pay bills, and send remittances. Many of 
the unbanked are low- and moderate-income families that can ill afford 
to have their earnings diminished by reliance on these high-cost and 
often predatory financial services. In addition, the unbanked are 
unable to save securely to prepare for the loss of a job, a family 
illness, a down payment on a first home, or education expenses.
  My bill authorizes grants intended to help low- and moderate-income 
unbanked individuals establish bank or credit union accounts. Providing 
access to a bank or credit union account can empower families with 
tremendous financial opportunities. An account at a bank or credit 
union provides consumers with alternatives to rapid refund loans, check 
cashing services, and lower cost remittances. In addition, bank and 
credit union accounts provide access to saving and borrowing services.
  Low- and moderate-income individuals are often challenged with a 
number of barriers that limit their ability to open up and or maintain 
accounts. Regular checking accounts may be too costly for some 
consumers unable to maintain minimum balances or unable to afford 
monthly fees. Poor credit histories may also hinder their ability to 
open accounts. By providing federal resources for product development, 
administration, outreach, and financial education, banks and credit 
unions will be better able to reach out and bank the unbanked.
  The second grant program authorized by my legislation provides 
consumers with a lower cost, short term alternative to payday loans. 
Payday loans are cash loans repaid by borrowers' postdated checks or 
borrowers' authorizations to make electronic debits against existing 
financial accounts. Payday loans often have triple digit interest rates 
that range from 390 percent to 780 percent when expressed as an annual 
percentage rate. Loan flipping, which is a common practice, is the 
renewing of loans at maturity by paying additional fees without any 
principal reduction. Loan flipping often leads to instances where the 
fees paid for a payday loan well exceed the principal borrowed. This 
situation often creates a cycle of debt that is hard to break.
  There is a great need for working families to have access to 
affordable small loans. My legislation would encourage banks and credit 
unions to develop payday loan alternatives. Consumers who apply for 
these loans would be provided with financial literacy and educational 
opportunities. Loans extended to consumers under the grant would be 
subject to the annual percentage rate promulgated by the National 
Credit Union Administration's, NCUA, Loan Interest Rates, currently 
capped at an annual percentage rate of 18 percent. Several credit 
unions have developed similar products. One example is the Windward 
Community Federal Credit Union in Kailua, on the island of Oahu, which 
has developed an affordable alternative to payday loans to help the 
U.S. Marines and the other members that they serve. I am very proud of 
the work done by the staff of

[[Page 17754]]

the Windward Community Federal Credit Union. This program was developed 
with an NCUA grant. More working families need access to affordable 
small loans. More needs to be done to encourage mainstream financial 
service providers to develop affordable small loan products. My 
legislation will help support the development of affordable credit 
products at bank and credit unions. Working families would be better 
off by going to their credit unions and banks, mainstream financial 
services providers, than payday loan shops.
  I will work to enact this legislation so vital to empowering our 
citizens. In our current, modern, complex economy, not having a bank or 
credit union account severely hinders the ability of families to 
improve their financial condition or help them navigate difficult 
financial circumstances. Instead of borrowing money from payday lenders 
at outrageous fees, we need to encourage people to utilize their credit 
unions and banks for affordable small loans. Banks and credit unions 
have the ability to make the lives of working families better by 
helping them save, invest, and borrow at affordable rates.
  Mr. President I ask unanimous consent that the text of the bill and 
letters of support be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 3410

       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 ``Improving Access to 
     Mainstream Financial Institutions Act of 2008''.

     SEC. 2. DEFINITIONS.

       In this Act, the following definitions shall apply:
       (1) Alaska native corporation.--The term ``Alaska Native 
     Corporation'' has the same meaning as the term ``Native 
     Corporation'' under section 3(m) of the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1602(m)).
       (2) Community development financial institution.--The term 
     ``community development financial institution'' has the same 
     meaning as in section 103(5) of the Community Development 
     Banking and Financial Institutions Act of 1994 (12 U.S.C. 
     4702(5)).
       (3) Federally insured depository institution.--The term 
     ``federally insured depository institution'' means any 
     insured depository institution (as that term is defined in 
     section 3 of the Federal Deposit Insurance Act (12 U.S.C. 
     1813)) and any insured credit union (as that term is defined 
     in section 101 of the Federal Credit Union Act (12 U.S.C. 
     1752)).
       (4) Labor organization.--The term ``labor organization'' 
     means an organization--
       (A) in which employees participate;
       (B) which exists for the purpose, in whole or in part, of 
     dealing with employers concerning grievances, labor disputes, 
     wages, rates of pay, hours of employment, or conditions of 
     work; and
       (C) which is described in section 501(c)(5) of the Internal 
     Revenue Code of 1986.
       (5) Native hawaiian organization.--The term ``Native 
     Hawaiian organization'' means any organization that--
       (A) serves and represents the interests of Native 
     Hawaiians; and
       (B) has as a primary and stated purpose, the provision of 
     services to Native Hawaiians.
       (6) Payday loan.--The term ``payday loan'' means any 
     transaction in which a small cash advance is made to a 
     consumer in exchange for--
       (A) the personal check or share draft of the consumer, in 
     the amount of the advance plus a fee, where presentment or 
     negotiation of such check or share draft is deferred by 
     agreement of the parties until a designated future date; or
       (B) the authorization of the consumer to debit the 
     transaction account or share draft account of the consumer, 
     in the amount of the advance plus a fee, where such account 
     will be debited on or after a designated future date.
       (7) Secretary.--The term ``Secretary'' means the Secretary 
     of the Treasury.
       (8) Tribal organization.--The term ``tribal organization'' 
     has the same meaning as in section 4 of the Indian Self-
     Determination and Education Assistance Act (25 U.S.C. 450b).

     SEC. 3. EXPANDED ACCESS TO MAINSTREAM FINANCIAL INSTITUTIONS.

       (a) Establishment of Program.--The Secretary is authorized 
     to award grants, including multi-year grants, to eligible 
     entities to establish an account in a federally insured 
     depository institution for low- and moderate-income 
     individuals that currently do not have such an account.
       (b) Eligible Entities.--An entity is eligible to receive a 
     grant under this section, if such an entity is--
       (1) an organization described in section 501(c)(3) of the 
     Internal Revenue Code of 1986, and is exempt from taxation 
     under section 501(a) of such Code;
       (2) a federally insured depository institution;
       (3) an agency of a State or local government;
       (4) a community development financial institution;
       (5) an Indian tribal organization;
       (6) an Alaska Native Corporation;
       (7) a Native Hawaiian organization;
       (8) a labor organization; or
       (9) a partnership comprised of 1 or more of the entities 
     described in the preceding subparagraphs.
       (c) Evaluation and Reports to Congress.--For each fiscal 
     year in which a grant is awarded under this section, the 
     Secretary shall submit a report to Congress containing a 
     description of the activities funded, amounts distributed, 
     and measurable results, as appropriate and available.

     SEC. 4. LOW COST ALTERNATIVES TO PAYDAY LOANS.

       (a) Establishment of Program.--The Secretary is authorized 
     to award demonstration project grants (including multi-year 
     grants) to eligible entities to provide low-cost, small loans 
     to consumers that will provide alternatives to more costly, 
     predatory payday loans.
       (b) Eligible Entities.--An entity is eligible to receive a 
     grant under this section if such an entity is--
       (1) an organization described in section 501(c)(3) of the 
     Internal Revenue Code of 1986 and exempt from tax under 
     section 501(a) of such Code;
       (2) a federally insured depository institution;
       (3) a community development financial institution; or
       (4) a partnership comprised of 1 or more of the entities 
     described in paragraphs (1) through (3).
       (c) Terms and Conditions.--
       (1) Percentage rate.--For purposes of this section, an 
     eligible entity that is a federally insured depository 
     institution shall be subject to the annual percentage rate 
     promulgated by the National Credit Union Administration's 
     Loan Interest Rates under part 701 of title 12, Code of 
     Federal Regulations (or any successor thereto), in connection 
     with a loan provided to a consumer pursuant to this section.
       (2) Financial literacy and education opportunities.--Each 
     eligible entity awarded a grant under this section shall 
     offer financial literacy and education opportunities, such as 
     relevant counseling services or educational courses, to each 
     consumer provided with a loan pursuant to this section.
       (d) Evaluation and Reports to Congress.--For each fiscal 
     year in which a grant is awarded under this section, the 
     Secretary shall submit a report to Congress containing a 
     description of the activities funded, amounts distributed, 
     and measurable results, as appropriate and available.

     SEC. 5. PROCEDURAL PROVISIONS.

       (a) Applications.--A person desiring a grant under section 
     3 or 4 shall submit an application to the Secretary, in such 
     form and containing such information as the Secretary may 
     require.
       (b) Limitation on Administrative Costs.--A recipient of a 
     grant under section 3 or 4 may use not more than 6 percent of 
     the total amount of such grant in any fiscal year for the 
     administrative costs of carrying out the programs funded by 
     such grant in such fiscal year.

     SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to the Secretary, 
     such sums as are necessary to carry out the grant programs 
     authorized by this Act, to remain available until expended.

     SEC. 7. REGULATIONS.

       The Secretary is authorized to promulgate regulations to 
     implement and administer the grant programs authorized by 
     this Act.
                                  ____

                                           National Association of


                                        Federal Credit Unions,

                                     Arlington, VA, July 29, 2008.
     Hon. Daniel Akaka,
     U.S. Senate,
     Washington, DC.
       Dear Senator Akaka: I am writing on behalf of the National 
     Association of Federal Credit Unions (NAFCU), the only 
     national trade association that exclusively represents the 
     interests of our nation's Federal credit unions, to applaud 
     your leadership on working to get low- and moderate-income 
     unbanked individuals into mainstream financial institutions, 
     such as credit unions, and your continued commitment to 
     financial literacy as demonstrated in the Improving Access to 
     Mainstream Financial Institutions Act of 2008.
       We believe it is important to help the unbanked set up 
     credit union accounts that will allow these individuals to 
     obtain the products and services that they need, such as 
     lower cost check cashing and remittance services, as well as 
     financial education to encourage savings and thank you for 
     your efforts to help this cause.
       Unfortunately, payday lending has also increasingly become 
     a precarious problem for many Americans. People that find 
     themselves in sudden need of a financial boost and

[[Page 17755]]

     individuals unfairly subjected to higher mortgage payments 
     with higher interest rates often rely on payday lenders to 
     help cover their bills. These types of loans can worsen their 
     current financial situation, making the consumer even more 
     dependent than before. Despite our greatest efforts to 
     prevent predatory lending in America, the evidence shows 
     these deceptive practices still occur. Predators continue to 
     target specific communities, such as low-income, minority, 
     elderly and, in recent findings, the men and women of the 
     United States military.
       Luckily, credit unions continue to be part of the solution, 
     not the problem. Many credit unions offer alternative loan 
     programs that ensure the safety and financial reprieve that 
     their members need. These loan programs offer consumers small 
     unsecured loans with low interest rates and encourage 
     financial responsibility. We greatly appreciate your 
     continued support of these efforts.
       NAFCU appreciates the opportunity to share our thoughts on 
     this legislation and strongly support your dedication to this 
     important matter. Please do not hesitate to contact me or 
     NAFCU's Associate Director of Legislative Affairs, Amanda 
     Slater at 703-522-4770 with any questions that you may have.
           Sincerely,
                                              Fred R. Becker, Jr.,
     President/CEO.
                                  ____



                                   Hawaii Credit Union League,

                                      Honolulu, HI, July 28, 2008.
     Hon. Daniel K. Akaka,
     U.S. Senate,
     Washington, DC.
       Dear Senator Akaka: On behalf of the Hawaii Credit Union 
     League and its 93 affiliated credit unions representing 
     approximately 811,000 members, I am writing in support of the 
     proposed Improving Access to Mainstream Financial 
     Institutions Act. This bill, which is targeted to assist low- 
     and moderate-income unbanked individuals, would go a long way 
     toward helping underserved people achieve financial stability 
     and independence.
       Today's volatile economic climate makes it difficult or 
     even unrealistic for people of modest means to borrow money 
     or open an account at an insured depository institution. This 
     measure would establish grant programs within the Department 
     of the Treasury to assist those who would otherwise be 
     unqualified for banking services. In addition, this measure 
     would provide financial literary education opportunities to 
     those applying for loans. Financial education is an 
     invaluable service that credit unions provide, and this 
     legislation would open more doors to this service.
       Please accept our gratitude for introducing legislation to 
     help the unserved residents of our state and nation. Should 
     you have any questions or concerns, please do not hesitate to 
     contact me.
           Sincerely,
                                               Dennis K. Tanimoto,
     President.
                                  ____

         Council for Native Hawaiian Advancement,
                                      Honolulu, HI, July 24, 2008.
     Re Unbanked and Payday Lending

     Hon. Senator Daniel Akaka,
     Hart Senate Office Building,
     Washington, DC.
       Aloha Senator Akaka: The Council for Native Hawaiian 
     Advancement is a nonprofit network of over 100 Native 
     Hawaiian organizations. Its mission is to enhance the 
     cultural, economic and community development of Native 
     Hawaiians. We achieve our mission through policy advocacy, 
     grant training, consultancy, leadership development and 
     connecting resources to challenges in our communities.
       We believe in policies that promote asset building that 
     empowers low and moderate income families to increase 
     financial asset management, home ownership and small business 
     development.
       Senator, there is a clear need for intermediary programming 
     that helps low and moderate income families to connect with 
     financial services, including deposit and savings accounts, 
     as well as loan alternatives to high cost payday lending 
     practices.
       CNHA has developed asset building products that are moving 
     families to financial self sufficiency. For example, we 
     developed the Homestead Individual Development Accounts 
     (HIDA) that is assisting 30 families to open savings accounts 
     at First Hawaiian Bank, provides financial education and 
     helps low income families to save toward the down payment on 
     a home purchase on Hawaiian trust lands. We also developed 
     the Home Ownership Assistance Program (HOAP), a statewide 
     program of the State of Hawaii, Department of Hawaiian Home 
     Lands to expand the reach and delivery of financial literacy 
     counseling to thousands of families.
       Currently, we are in the process of developing a dedicated 
     Earned Income Tax Credit program to assist families in filing 
     for this important tax credit to claim wages they have 
     earned.
       We support Federal legislation that will promote further 
     connections between families and banking services, 
     particularly, the ``unbanked''. We also know that payday 
     lending continues to be a detriment to families on the lowest 
     end of the income scale and would support assistance to place 
     alternatives to these loans in the community development 
     marketplace.
       Mahalo for your consideration. If we can provide additional 
     information, please contact me at any time at 808.596.8155 or 
     via email at robinhawaiiancouncil.org. 
           Sincerely,
                                             Robin Puanani Danner,
     President and Chief Executive Officer.
                                  ____

         Hawai'i Alliance for Community-Based Economic 
           Development,
                                       Honolulu, HI, July 30, 2008
     Re Support for ``Improving Access to Mainstream Financial 
         Institutions Act of 2008''

     Hon. Daniel Kahikina Akaka,
     U.S. Senator for Hawai'i.
       Aloha Senator Akaka: The Hawai'i Alliance for Community-
     Based Economic Development (HACBED) is pleased to support the 
     bill titled, ``Improving Access to Mainstream Financial 
     Institutions Act of 2008.''
       Hawai'i needs comprehensive public policies to help people 
     build assets. This should include a package of programs, tax 
     incentives, regulatory changes, and other mechanisms to help 
     people earn more, save more, protect hard earned assets, 
     start businesses and become homeowners.
       Assets are essential for three reasons:
       To have financial security against difficult times; to 
     create economic opportunities for oneself; and to leave a 
     legacy for future generations to have a better life.
       This legislation would create the following two grant 
     programs within the Department of Treasury:
       1. The first program would authorize grants intended to 
     help low- and moderate-income unbanked individuals to 
     establish bank or credit union accounts.
       2. The second program would provide consumers with a lower 
     cost, short term alternative to payday loans as well as 
     financial education.
       It is proven that ``banked'' households are better of 
     financially and more likely to build and own assets than 
     their ``unbanked'' counterparts. This bill will authorize 
     grants to assist millions of families to enter the financial 
     mainstream.
       Programs that help low- and moderate-income unbanked 
     individuals to establish bank accounts provide families with 
     the opportunity to save and build their assets. Approximately 
     22 million U.S. households do not have a checking or savings 
     account. These households depend on various high-cost, 
     alternative financial service providers to meet their banking 
     needs, including check-cashing stores, payday lenders, title 
     lenders, rent-to-own stores, and tax preparers. Reliance on 
     these types of financial services undermines a family's 
     ability to survive as they can become trapped in a cycle of 
     debt due to high fees and interest rates. These families' put 
     nearly 13.3 billion dollars toward predatory lending scams 
     annually.
       By improving our families' access to mainstream services, 
     we can enhance their financial security and success. Access 
     to savings and checking accounts can provide a foundation for 
     low- and moderate-families to begin accumulating assets. In 
     addition, families are more likely to save for assets such as 
     their children's college education, a home, retirement, and 
     business startup costs. By entering the financial mainstream 
     and having access to financial services, families are also 
     able to establish credit and increase their access to buying 
     power for the purchase of assets.
       Payday loans and other financial services with high fees 
     and interest rates undermine families' ability to truly save 
     and build their assets. This bill will provide families with 
     an alternative to payday loans as well as the opportunity to 
     receive financial education.
       Check cashing, or payday lending, is a short-term, high-
     interest loan that has the potential to severely impact 
     consumers. Many consumers are often not aware of the annual 
     percentage rate associated with the fee structure of payday 
     loans causing millions of families to struggle to meet their 
     most basic needs to survive.
       It is extremely important to protect hard working families 
     from financial services that are predatory in nature, and 
     stripping them of their hard earned income. Particularly 
     worrisome is the practice of targeting military families. 
     According to the Center for Responsible Lending, active-duty 
     military personnel are three times more likely than civilians 
     to take out a payday loan and one in five active-duty 
     personnel are payday borrowers.
       The loans provided to families under the grant in this bill 
     would be subject to the annual percentage rate promulgated by 
     the National Credit Union Administration's (NCUA) Loan 
     Interest Rates, which is currently capped at an annual 
     percentage rate of 18 percent.
       Several credit unions have developed similar products to 
     assist families. In Hawai'i, the Windward Community Federal 
     Credit Union has developed an affordable alternative to 
     payday loans to help the Marines and the other members that 
     they serve. This program was developed with an NCUA grant.
       This bill will also provide financial education to families 
     that apply for the loans.

[[Page 17756]]

     As the financial market expands and becomes more complex, 
     having a financial education is extremely important for every 
     family. More than ever, financial education can help families 
     navigate the maze of financial services that exist. Providing 
     families with a financial education allows them to have 
     choice and control over their finances so they are able to 
     save and build assets.
       We urge the Senate's favorable consideration of this bill 
     that would give millions of low- and moderate-income families 
     the opportunity to successfully enter the financial world.
           Mahalo nui loa,
                                                 Larissa Meinecke,
                                          Public Policy Associate.
                                 ______
                                 
      By Mr. SANDERS (for himself, Mr. Obama, Mrs. Clinton, Mr. 
        Kennedy, Mr. Brown, Ms. Mikulski, Mr. Casey, Mrs. Boxer, Mr. 
        Durbin, and Mr. Inouye):
  S. 3413. A bill to achieve access to comprehensive primary health 
care services for all Americans and to improve primary care delivery 
through an expansion of the community health center and National Health 
Service Corps programs; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. SANDERS. Mr. President, today there is some good news and some 
bad news. The bad news is that oil is at $123 a barrel and working 
people are paying $4 for a gallon of gas, and this coming winter 
residents of the Northeast could be paying over $5 for a gallon of 
heating oil.
  But, there is some good news. Today, the CEOs of ExxonMobil, Shell, 
BP and ConocoPhillips are celebrating. They're feeling pretty good. 
And, they have good reason to feel that way.
  ExxonMobil reported today that it made over $11.68 billion in profits 
over the 2nd quarter alone, breaking its own record for the largest 
quarterly profit of any American company in the history of the world.
  But, ExxonMobil is not alone. Shell's 2nd quarter profit jumped by 33 
percent to $11.56 billion; and BP's 2nd quarter profit jumped by 28 
percent.
  As a matter of fact, since George W. Bush and Dick Cheney have been 
in office, the five largest oil companies have made over $640 billion 
in profits. This includes $212 billion for ExxonMobil; $157 billion for 
Shell; $125 billion for BP; $80 billion for ChevronTexaco; and $66 
billion for ConocoPhillips.
  Believe it or not, the Big 5 oil companies made more profits during 
the 2nd quarter, than they did during the entire year of 2002.
  Now, with the exception of my Republican friends here in Congress, 
there are very few people in this country who believe the oil companies 
give one hoot about the well-being of the American people. Our 
Republican friends are saying that if we just give these huge oil 
companies more acres offshore to drill for oil, they will certainly do 
the right thing, as they always have, for the American people. Let's 
just trust those big oil companies because they are really staying up 
day after day, night after night, worrying about the well-being of the 
American people. That is what their full-page ads in the New York Times 
and all their ads on television are telling us.
  Well, it is good to see there are at least some people in America who 
believe that. I don't, but apparently my Republican colleagues do.
  Let me tell you, big oil companies are so concerned about Americans 
paying high prices for gas and oil that this is what they are doing 
with their profits:
  In 2005, ExxonMobil gave its CEO, Lee Raymond, a $398 million 
retirement package--one of the richest compensation packages in 
corporate history. They weren't going out looking for new land to drill 
on, they weren't building more refineries, and they weren't working on 
energy efficiency. They gave their CEO a $398 million retirement 
package.
  In 2006, Occidental Petroleum, gave its CEO, Ray Irani, over $400 
million in total compensation.
  The situation is so absurd and the greed of the oil companies is so 
outrageous that these companies are not only giving their executives 
huge compensation packages during their life here on earth, but they 
have also created a situation, if you can believe it, where these oil 
companies have carved out huge corporate payments to the heirs of 
senior executives if they die in office. I guess this is what happens 
when you have more money than you know what to do with.
  According to the Wall Street Journal, if the CEO of Occidental 
Petroleum dies in office, his family will get $115 million. The family 
of the CEO of Nabors Industries, another oil company, would receive 
$288 million. This would be funny if it were not so pathetic in the 
sense of the impact this type of spending has on the American people.
  Not only are huge oil companies using their record-breaking profits 
on big compensation benefits for their CEOs, but they are also spending 
large sums of money buying back their own stock. In other words, when 
they are making these very large profits, they are not going out 
drilling for more oil, as our Republican friends are suggesting.
  In fact, While Americans are struggling to pay for the skyrocketing 
price of gasoline; big oil companies are having an entirely different 
problem. For the past seven years, big oil companies are struggling to 
figure out what they are going to do with all of their windfall 
profits.
  Let me quote from a headline taken from the front page of the Wall 
Street Journal way back on July 30 of 2001, ``Pumping Money: Major Oil 
Companies Struggle to Spend Huge Hoards of Cash.'' According to this 
2001 article, ``Royal Dutch/Shell Group said it was pumping out $1.5 
million in profit an hour and sitting on more than $11 billion in the 
bank.'' That was in 2001. Since that time Shell's profits have more 
than tripled.
  On April 18, 2005, Fortune Magazine published an article with the 
Headline ``Poor Little Rich Company,'' referring to ExxonMobil. 
According to this article, ``ExxonMobil CEO Lee Raymond, suddenly has a 
new anxiety: how to spend the windfall wrought by $55 a barrel oil. By 
the end of April [of 2005], Exxon will have a cash hoard of more than 
$25 billion. . . . At a time when domestic energy production is 
declining and drivers are paying a record $2.15 a gallon [remember, 
this was in 2005], American consumers, not to mention politicians, are 
likely to start focusing on whether Exxon is spending enough to find 
oil and gas. While Exxon is returning more money to shareholders via 
dividends and buying back more of its stock, its spending on drilling 
and other development activities actually declined in 2004--even though 
crude prices jumped by a third.'' That was when the price of oil was 
$55 a barrel and gas was $2.15 a gallon. Today oil is over $123 a 
barrel and gas is about $4 a gallon.
  What is happening today? Big oil companies are spending even more on 
stock buybacks and CEO compensation and less on trying to produce more 
oil.
  For example, ConocoPhillips recently announced that it plans to give 
all of the $12 billion in profits it made last year back to 
shareholders, paying more than $3 billion in dividends and spending the 
rest to buy back shares of its own stock. To put this in perspective 
the money that ConocoPhillips is spending on stock buybacks and 
dividends is enough to reduce the price of gas by 9 cents a gallon 
throughout the entire United States.
  Now, I want my Republican friends to listen closely. They have been 
saying over and over again that big oil desperately needs all of these 
windfall profits to drill for more oil.
  But, guess what? According to the CEO of ConocoPhillips, James Mulva, 
``We like the discipline of the share repurchase. If we find that we 
have more cash flow, it's not really going to be going toward capital 
spending.'' In other words, ConocoPhillips won't use their windfall 
profits to drill for more oil, or invest in renewable energy, or 
explore for new sources of oil discoveries no matter how much their 
profits rise.
  Overall, since 2005, the five biggest oil companies have made $345 
billion in profits and spent over $250 billion buying back stock and 
paying dividends to shareholders.
  Last year, ExxonMobil spent 850 percent more buying back its own 
stock

[[Page 17757]]

than it did on capital expenditures in the United States.
  The $38 billion in windfall profits that ExxonMobil gave back to 
shareholders last year could have been used to reduce gas prices at the 
pump throughout the United States by 27 cents a gallon for the entire 
year.
  Mr. President, let's not kid ourselves. One of the major reasons as 
to why Americans are getting ripped-off at the gas pump has to do with 
the tremendous power and influence that big oil companies have in the 
Congress. As a matter of fact, since 1998, the oil and gas industry has 
spent over $616 million on lobbying activities.
  Who have they hired? Well, on April 8 of this year, The Hill reported 
that Chevron hired former Majority Leader Trent Lott, a Republican; 
former Senator John Breaux, a Democrat; their sons Chester Trent Lott, 
Jr. and John Breaux, Jr.; and Trent Boyles, who was Lott's Chief of 
Staff to lobby Congress on issues relating to trade, climate change, 
and energy taxes.
  ExxonMobil has hired former Senator Don Nickles, a Republican from 
Oklahoma, who served in this body for 24 years, to lobby Congress on 
behalf of their issues.
  These are just a few of the hundreds of lobbyists that big oil and 
gas companies have hired to influence Congress, many of them former 
Senators, former Congressmen, and former Congressional staffers.
  That is one of the reasons why, among many other reasons, this 
Congress, in recent years, has decided to give some $18 billion in tax 
breaks to oil companies despite their record-breaking profits.
  In addition, since 1990 big oil companies have made over $213 million 
in campaign contributions. And that is a simple fact.
  Lo and behold, what we are hearing today--just coincidentally, no 
doubt--is that the most important thing we can do in terms of the 
energy crisis is to provide more land offshore for the oil companies to 
drill at a time when they already have some 68 million acres of leased 
land, which they are not drilling on today.
  The American people want action, and there are some things we can 
do--not in 15 or 20 years but that we can do right now.
  First, we need to impose a windfall profits tax on big oil companies 
so that they would be prohibited from gouging consumers at the gas 
pump.
  Unfortunately, instead of taking away big oil's windfall profits and 
giving it back to the American people, Republicans want to provide even 
more tax breaks to big oil. In fact, Sen. McCain has a plan that would 
give ExxonMobil a $1.5 billion tax break.
  Now, we have heard Republicans give three reasons as to why they are 
opposed to a windfall profits tax.
  First, Republicans claim that the last time Congress enacted a 
windfall profits tax in 1981 it had the effect of increasing our 
dependence on foreign oil. Wrong. Mr. President, when Congress repealed 
the windfall profits tax in 1988, the U.S. was importing 7.4 million 
barrels of oil a day. Today, the U.S. is importing over 13.4 million 
barrels of oil a day. We are far more dependent on foreign oil today 
without a windfall profits tax than we were 20 years ago when we had a 
windfall profits tax.
  Secondly, my Republican friends tell us that the windfall profits tax 
didn't work because Congress repealed it in 1988. That is also wrong. 
While I would have structured it differently, the fact of the matter is 
that from 1981 until 1988 when the windfall profits tax was repealed, 
the price of oil fell from $35 a barrel to less than $15 a barrel. In 
addition, gas prices at the pump fell from $1.35 a gallon to 90 cents a 
gallon--a drop of 45 cents a gallon. And the Federal Government 
collected over $80 billion in revenue.
  The reason why the windfall profits tax was repealed was due to low 
oil and gas prices, which makes perfect sense. If oil and gas prices 
are low, big oil companies are not making windfall profits and there is 
no need for a windfall profits tax. If gas prices at the pump were only 
90 cents a gallon, I would be one of the first Senators to say we don't 
need a windfall profits tax. But, they are not. They are over $4 a 
gallon.
  Finally, Republicans claim that big oil companies need to keep their 
windfall profits so that they can increase production and build more 
refineries. That particular argument is laughable.
  Big oil companies have been making windfall profits for over seven 
long years--and they are not using these profits to build more 
refineries and they are not using it to expand production. Instead, 
they are using this money to buy back their own stock, increase 
dividends to their shareholders, and enrich their CEOs, as I have 
explained earlier.
  Not only do we need to impose a windfall profits tax on these 
extremely powerful oil corporations, but we also have to address what I 
perceive is a growing understanding that Wall Street investment banks, 
such as Goldman Sachs, Morgan Stanley, JPMorgan Chase, and hedge fund 
managers are driving up the price of oil in the unregulated energy 
futures market. In other words, they are speculating on energy futures 
and driving up prices.
  There are estimates that 25 to 50 percent of the cost of a barrel of 
oil is attributable to unregulated speculation on oil futures. We have 
heard from some leading energy economists, and we have heard from 
people in the oil industry themselves who tell us that 25 to 50 percent 
of the cost of a barrel of oil today is not due to supply and demand or 
the cost of production but is due to manipulation of markets and 
excessive speculation. In essence, Wall Street firms are making 
billions as they artificially drive up oil prices by buying, holding, 
and selling huge amounts of oil on dark unregulated markets.
  Some of my Republican friends claim that the increase in the price of 
oil has nothing to do with speculation, but it is interesting to me 
that we have had executives of major oil companies--major oil 
companies--who have come before Congress and who are saying, ``Why is 
oil $125, $130, and $140 a barrel?'' Do you know what they say? The CEO 
of Royal Dutch Shell testified before Congress and said: ``The oil 
fundamentals are no problem. They are the same as they were when oil 
was selling for $60 a barrel.''
  This is not some radical economist. It is not some left-winger. This 
is a guy who is the head of Royal Dutch Shell.
  The CEO of Marathon Oil recently said: ``$100 oil isn't justified by 
the physical demand in the market.''
  I know my Republican friends have a lot of respect for the oil 
industry, a great competence in them. They love them and give them huge 
tax breaks. So maybe they should listen to what some of these guys are 
saying in terms of oil speculation.
  For those who believe that excessive speculation is not causing oil 
prices to climb higher, let me just say this. Over the past 7 years, 
Enron; BP; and Amaranth were caught redhanded manipulating the price of 
electricity; propane; and natural gas. Each time, supply and demand was 
to blame and each time the pundits were proven wrong. Excessive 
speculation; manipulation and greed were the cause. Enron employees are 
in jail for manipulating the electricity market in 2001; BP was forced 
to pay a $300 million fine for manipulating propane prices in 2004; and 
the Amaranth hedge fund collapsed after manipulating natural gas prices 
in 2006.
  The Stop Excessive Speculation Act introduced by Majority Leader Reid 
begins to seriously address this problem. We need to pass this bill as 
soon as possible.
  The bottom line is that it is time for the United States Senate to 
say no to big oil companies and greedy hedge fund managers and yes to 
the American people.

[[Page 17758]]



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