[Congressional Record (Bound Edition), Volume 157 (2011), Part 7]
[Senate]
[Pages 9085-9096]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BROWN of Ohio:
  S. 1188. A bill to require the purchase of domestically made flags of 
the United States of America for use by the Federal Government; to the 
Committee on Homeland Security and Governmental Affairs.
  Mr. BROWN of Ohio. Mr. President, I rise today to introduce the All-
American Made Flag Act, on this 234th celebration of Flag Day in our 
Nation, On June 14, 1777, the Second Continental Congress first adopted 
a flag for our new country, bestowing a meaning to the stars and 
stripes of our founding commitment to freedom and democracy.
  Our flag inspires servicemembers in times of war; it looks over state 
capitals and schools, stadiums and veterans halls as a reminder of the 
price of our peace and security. It stood through the smoke in Pearl 
Harbor on December 7, 1941, and the rubble in New York City and 
Washington D.C. on September 11, 2001. The flag instills hope of a 
better life for generations of immigrants, embodying an aspiration of 
free people around the world. Americans pledge allegiance to the flag, 
reminding us about our Nation's history, and the system of checks and 
balances and separation of powers that tenders the balance of our laws 
and freedoms.
  The flag that inspired our national anthem rests in the Smithsonian's 
National Museum of American History. Smaller, hand-held flags are 
waived during Fourth of July Parades and on Memorial Day are placed 
alongside headstones. But whether in museums or in parades or upon 
memorials, the American flag reaffirms the power and meaning first 
ascribed to it by our founders.
  And what better way to celebrate its meaning, our Nation's history 
and virtue, than to ensure it is stamped with the Made-in-America 
label. On this day, I introduce the All-American Made Flag Act, which 
would require that American flags purchased by the Federal Government 
are entirely made in America.
  Across the nation, and especially in Ohio, manufacturers and 
businesses have been making and selling American flags for generations. 
In Coschocton, Ohio, the nation's oldest and largest producer of 
American flags has been doing so since 1851. From the first World's 
Fair in New York City, through the Civil War and World War II, and into 
the universe and onto the moon these flags, made in Coschocton, have 
played a role in our nation's history. Today, on Flag Day, it joins 
other businesses that sell All-American made American flags, from 
Cincinnati to Dayton to Columbus to Cleveland.
  Few things can give better meaning to the Made-in-America label than 
our own flag. The All-American Made Flag Act would provide that 
meaning, and in doing so, would invest in America's workers and 
manufacturers who embody the ingenuity and patriotism embodied in the 
very flag itself.
                                 ______
                                 
      By Mr. BEGICH:
  S. 1192. A bill to supplement State jurisdiction in Alaska Native 
villages with Federal and tribal resources to improve the quality of 
life in rural Alaska while reducing domestic violence against Native 
women and children and to reduce alcohol and drug abuse and for other 
purposes; to the Committee on Indian Affairs.
  Mr. BEGICH. Mr. President, today I introduce legislation to address 
issues of great concern to me and to all who care about public safety 
in Alaska Native villages.
  Last year President Obama signed the Tribal Law and Order bill into 
law. That legislation passed because Congress recognized the great need 
to provide more support for the criminal justice system and communities 
in Indian Country. While this law has some important provisions that 
will benefit Alaska Native communities, I believe the remoteness and 
other unique conditions in many Native villages in my

[[Page 9086]]

State compel us to do more. That is why I am introducing the Alaska 
Safe Families and Villages Act of 2011.
  My bill will establish a demonstration project allowing Alaska Native 
tribes to set up tribal courts, establish tribal ordinances, and impose 
sanctions on those people who violate the ordinances. It would enhance 
current tribal authority, while maintaining the State's primary role 
and responsibility in criminal matters. Additionally, those communities 
selected to be part of the demonstration project would be eligible for 
an Alaska Village Peace Officer grant, enabling a Peace Officer to 
serve participating communities in a holistic manner.
  Due to the vastness of Alaska, too many of our small remote villages 
lack any law enforcement. Too often, minor cases involving alcohol and 
domestic abuse go unreported because the nearest State Trooper resides 
in a distant hub community, located a long and expensive airplane ride 
away. Frequently, harsh weather prevents the Troopers from flying into 
a community even when the most heinous acts have occurred. 
Approximately 71 villages have a sole, unarmed Village Patrol Safety 
Officer, VPSO, who must be on duty 24 hours a day and 7 days a week. 
Compounding the challenges of a small number of local law enforcement, 
these few hard-working VPSOs are often underpaid. While communities try 
to provide some housing and heating assistance, in places where fuel 
oil can cost as much as $10 a gallon, it can be difficult to retain 
qualified VPSOs and also sustain the funding for these public servants.
  As one who believes whole-heartedly in community involvement, I 
strongly believe tribes in Alaska should benefit from true self-
determination and have a role in their law enforcement needs. This 
local control not only provides security for communities, but also 
encourages local acceptance of the established or existing judicial 
system as a whole. With the changes in place that my bill would 
require, residents of Alaska Native villages will see a culturally-
relevant system replacing a crisis-management system that is set in 
place after a tragedy has occurred.
  Unfortunately, Alaska Native communities have grown all too familiar 
with alarming suicide rates. In the Yukon-Kuskokwim Delta, over a two-
month period during the summer of 2010, there were at least nine self-
inflicted deaths in several of the region's villages. Nick Tucker, an 
elder in the village of Emmonak, wrote a letter to the State of 
Alaska's rural affairs advisor to try to bring attention to the issue. 
Part of Mr. Tucker's letter begged for the Governor to call the 
Legislature into session to address the issue. He also said it is no 
longer acceptable for village residents to wait for State Troopers 
because ``in the villages, they take forever.''
  Part of the disturbing cycle of suicide in rural Alaska can be 
attributed to the presence of drugs and alcohol. Despite the knowledge 
that an individual can speak with an elder and learn who is bootlegging 
alcohol or selling drugs, predators do not fear law enforcement 
intervention because there is no consistent police or State Trooper 
presence.
  Further, despite many Alaska Native communities' wealth of cultural 
heritage and tradition, many suffer from economic, cultural, and 
educational depression. Villages often experience high unemployment 
rates, above 20 percent, due to their remoteness and lack of economic 
opportunity. Most economic development in Alaska is centered in either 
the metropolitan areas, or in very remote areas where local residents 
are able to develop local resources. This economic depression, coupled 
with the 10,000-year practice of subsistence, means Alaska Natives' 
physical and spiritual survival remains highly dependent on the land. 
They subsist on game, berries, and fish. However, as hunting and 
fishing stocks dwindle, many of these Alaskans are feeling disconnected 
from their heritage and, at times, have turned to drugs and alcohol. 
Though educational attainment in the last 40 years has increased 
dramatically, the dropout rate in Alaska still hovers at 40 percent. 
Too many of our young men and women have lost hope and are losing a 
sense of community.
  We must give our Nation's communities the tools necessary to protect 
themselves. Too often, we pour resources into urban areas, but decry 
lack of resources when we try to work toward innovative solutions for 
our most remote communities. We should no longer allow the answer from 
anyone to be ``we don't have the resources.'' Alaska Native villages 
are vibrant, strong communities and we should do everything in our 
power to answer their calls for help. I am hoping the Alaska Safe 
Families and Villages Act of 2011 will be just one piece of the puzzle.
  I encourage my colleagues to join me on this legislation, and ask for 
the full Senate to consider and pass it--providing much-needed help and 
resources to some of our country's neediest places.
  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. 1192

       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 ``Alaska Safe Families and 
     Villages Act of 2011''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds that--
       (1) while the State of Alaska and numerous Alaska 
     organizations have struggled for years to address crime and 
     substance abuse problems in Alaska, Native Villages continue 
     to suffer from disproportionally high rates of illicit drug 
     use, alcohol abuse, suicide, and domestic violence;
       (2) the suicide rate in Alaska Native villages is 6 times 
     the national average, and the alcohol-related mortality rate 
     is 3.5 times that of the general national population;
       (3) Alaska Native women suffer the highest rate of forcible 
     sexual assault in the United States, and an Alaska Native 
     woman is sexually assaulted every 18 hours;
       (4) according to the 2006 Initial Report and 
     Recommendations of the Alaska Rural Justice and Law 
     Enforcement Commission more than 95 percent of all crimes 
     committed in rural Alaska can be attributed to alcohol;
       (5) the cost of drug and alcohol abuse in Alaska is 
     estimated at $525,000,000 per year;
       (6) the State of Alaska's public safety system does not 
     effectively serve vast areas of the State in which many 
     remote Alaska Native villages are located, except in response 
     to serious crimes involving severe injury or death, which are 
     handled by Alaska State Troopers who are located in only a 
     small number of hub communities around the State;
       (7) extreme weather conditions often prevent or delay 
     travel into remote Alaska Native villages, forcing residents 
     to wait for several days for an Alaska State Trooper to 
     arrive and respond to these crimes, compared to a law 
     enforcement response time normally within minutes for 
     residents of urban communities;
       (8) in many rural Alaska Native villages, there is no local 
     law enforcement presence whatsoever;
       (9) to the extent there are resident law enforcement 
     officers in rural villages, they consist of Village Public 
     Safety Officers (VPSOs) through the State VPSO Program, and a 
     very limited number of other peace officers such as Village 
     Police Officers (VPOs), Tribal Police Officers (TPOs) and 
     Community Peace Officers (CPOs) who tend to have only minimal 
     training and experience;
       (10) the VPSO Program is not able to adequately serve all 
     remote Alaska Native villages because there is insufficient 
     funding or officers to address the urgent need for additional 
     law enforcement in these communities;
       (11) the number of VPSOs currently serving in Alaska is 
     approximately 71, yet there are about 200 remote villages in 
     Alaska, all of which could benefit from a law enforcement 
     presence;
       (12) studies have concluded that the lack of effective law 
     enforcement in Alaska Native villages contributes 
     significantly to increased crime, alcohol abuse, drug abuse, 
     domestic violence, and rates of suicide, poor educational 
     achievement, and a lack of economic development in those 
     communities;
       (13) law enforcement that is created and administered by 
     Indian tribes in Alaska will be more responsive to the need 
     for greater local control, local responsibility, and local 
     accountability in the administration of justice; and
       (14) it is necessary to invoke the plenary authority of 
     Congress over Indian affairs under section 8 of clause 3 of 
     Article I of the Constitution, in order to improve law 
     enforcement conditions in Alaska Native villages.
       (b) Purposes.--The purposes of this Act are--
       (1) to establish a demonstration project under which a 
     limited number of Indian

[[Page 9087]]

     tribes in Alaska Native villages will exercise local law 
     enforcement responsibilities to combat alcohol and drug abuse 
     and to enhance existing tribal authority over domestic 
     violence and child abuse and neglect;
       (2) to enhance coordination and communication among 
     Federal, State, tribal, and local law enforcement agencies; 
     and
       (3) to increase funding for, and therefore availability of, 
     local law enforcement.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Indian tribe.--The term ``Indian tribe'' means any 
     Indian tribe, band, nation, or other organized group or 
     community of Indians recognized as eligible for the services 
     provided to Indians by the Secretary because of their status 
     as Indians, including any Alaska Native village as defined in 
     section 3(c) of the Alaska Native Claims Settlement Act (43 
     U.S.C. 1602(c)).
       (2) Project.--The term ``Project'' means the Alaska Safe 
     Families and Villages Demonstration Project established by 
     section 4(a).
       (3) Project area.--The term ``Project Area'' means the 
     geographical area within which an Indian tribe proposes to 
     enforce the laws of the Indian tribe developed under the 
     Project, as determined by the tribal government of the 
     applicable Indian tribe and as approved by the Office of 
     Justice Programs upon a showing that the extension of 
     jurisdiction to such area is in the interest of justice.
       (4) Tribal court.--The term ``tribal court'' means any 
     court, council, or other mechanism sanctioned by an Indian 
     tribe for the adjudication of disputes, including the 
     violation of tribal laws, ordinances, or regulations.
       (5) Tribal organization.--The term ``tribal organization'' 
     has the meaning given the term in section 4 of the Indian 
     Self-Determination and Education Assistance Act (25 U.S.C. 
     450b).

     SEC. 4. ALASKA SAFE FAMILIES AND VILLAGES DEMONSTRATION 
                   PROJECT.

       (a) Establishment of Project.--The Office of Justice 
     Programs of the Department of Justice shall carry out the 
     Alaska Safe Families and Villages Demonstration Project as 
     provided by this section.
       (b) Number of Tribes.--The Office of Justice Programs shall 
     select not more than 9 Indian tribes in Alaska to participate 
     in the Project in Alaska over a 3-year period, with not more 
     than 3 Indian tribes selected during each of fiscal years 
     2012, 2013, and 2014.
       (c) Duration of Project.--Each Indian tribe selected to 
     participate in the Project shall remain in the Project for a 
     period of 5 years.
       (d) Annual Report.--
       (1) In general.--On or before May 1 of each year, the 
     Attorney General shall provide to the Committee on Indian 
     Affairs of the Senate and the Committee on Natural Resources 
     of the House of Representatives a brief annual report 
     detailing activities undertaken under the Project and setting 
     forth an assessment of the Project, together with any 
     recommendations of the Attorney General for further action by 
     Congress.
       (2) Requirements.--Each report submitted under this 
     subsection shall be prepared--
       (A) in consultation with the governments of Indian tribes 
     in Alaska; and
       (B) after those governments and the State of Alaska have an 
     opportunity to comment on each report prior to the 
     finalization of the report.
       (e) Applications.--
       (1) Criteria.--To qualify to participate in the Project, an 
     Indian tribe in Alaska shall--
       (A) request participation by resolution or other official 
     action by the governing body of the Indian tribe;
       (B) have for the preceding 3 fiscal years no uncorrected 
     significant and material audit exceptions regarding any 
     Federal contracts or grants;
       (C) demonstrate to the Attorney General sufficient 
     governance capacity to conduct the Project, as evidenced by 
     the history of the Indian tribe in operating government 
     services, including public utilities, children's courts, law 
     enforcement, social service programs, or other activities;
       (D) demonstrate the ability to sustain the goals and 
     purposes of the Project after funding for the Project has 
     expired; and
       (E) meet such other criteria as the Attorney General may 
     promulgate, after providing for public notice.
       (2) Copy to the alaska ag.--Each Indian tribe shall send a 
     copy of its application submitted under this section to the 
     Attorney General of Alaska.
       (f) Tribal Reporting.--The Attorney General may by 
     regulation promulgate such minimum reporting requirements as 
     the Attorney General determines are reasonably necessary to 
     carry out this Act.
       (g) Public Comment.--All applications submitted pursuant to 
     subsection (e) shall be subject to public comment for a 
     period of not less than 30 days following publication of 
     notice in a newspaper or other publication of general 
     circulation in the vicinity of the Alaska Native village of 
     the Indian tribe requesting participation in the Project.
       (h) Planning Phase.--Each Indian tribe selected for 
     participation in the Project shall complete a planning phase 
     that includes--
       (1) internal governmental and organizational planning;
       (2) the development of written tribal law or ordinances 
     detailing the structure and procedures of the tribal court;
       (3) enforcement mechanisms; and
       (4) those aspects of drug or alcohol related matters that 
     the Indian tribe proposes to regulate.
       (i) Certification.--
       (1) In general.--Upon completion of the planning phase 
     under subsection (h), an Indian tribe shall provide to the 
     Office of Tribal Justice--
       (A) the constitution of the Indian tribe (or equivalent 
     organic documents showing the structure of the tribal 
     government and the placement and authority of the tribal 
     court within that structure);
       (B) the written tribal laws or ordinances of the Indian 
     tribe governing court procedures and the regulation and 
     enforcement of drugs, alcohol, and related matters;
       (C) a map depicting the Project Area of the Indian tribe; 
     and
       (D) such other information or materials as the Attorney 
     General may by public notice require.
       (2) Certification.--The Office of Tribal Justice shall 
     certify the completion of the planning phase under this 
     section.
       (3) Timing.--Certification under paragraph (2) may occur at 
     the time at which an Indian tribe applies for participation 
     in the Project if the Indian tribe demonstrates that the 
     Indian tribe has already met the requirements of the planning 
     phase.
       (j) Effect of Certification.--
       (1) In general.--Commencing 30 days after the certification 
     described in subsection (i) and except as provided in 
     paragraph (2), an Indian tribe participating in the Project 
     shall exercise jurisdiction, concurrent with the civil 
     jurisdiction of the State of Alaska under State law, over--
       (A) the drug, alcohol, or related matters described in 
     subsection (i) within the Project Area of the Indian tribe; 
     and
       (B) persons of Indian or Alaska Native descent or other 
     persons with consensual relationships with the Indian tribe 
     or a member of the Indian tribe.
       (2) Sanctions.--An Indian tribe participating in the 
     Project shall impose such sanctions as shall be determined by 
     the tribal court to be appropriate, consistent with the 
     Indian Civil Rights Act and tribal law, including such 
     measures as--
       (A) restorative justice;
       (B) community service;
       (C) fines;
       (D) forfeitures;
       (E) commitments for treatment;
       (F) restraining orders; and
       (G) emergency detentions.
       (3) Agreement required.--A person may not be incarcerated 
     by an Indian tribe participating in the Project except 
     pursuant to an agreement entered into under section 7.
       (4) Treatment of protective orders.--For purposes of this 
     subsection, the protective order of an Indian tribe 
     participating in the Project excluding any member or non-
     member from a community shall be considered a civil remedy.
       (5) Emergency circumstances.--Nothing in this subsection 
     shall prevent an Indian tribe participating in the Project 
     from acting in the following emergency circumstances:
       (A) A tribe may assume protective custody of a tribal 
     member or otherwise take action to prevent imminent harm to 
     self or others.
       (B) A tribe may take immediate, temporary protective 
     measures to address situations involving an imminent threat 
     of harm to self or others by a non-member.
       (k) Effect of Act.--Nothing in this Act--
       (1) limits, alters, or diminishes the civil or criminal 
     jurisdiction of the State of Alaska, or any subdivision of 
     that State, the United States, or any Indian tribe in Alaska, 
     including existing inherent and statutory authority of the 
     tribes over child protection, child custody, and domestic 
     violence;
       (2) confirms or denies that any area of Alaska does or does 
     not constitute Indian country;
       (3) diminishes the trust responsibility of the United 
     States to Indian tribes in Alaska, or abridges or diminishes 
     the sovereign immunity of any Indian tribe in Alaska;
       (4) alters the jurisdiction of the Metlakatla Indian 
     Community within the Annette Islands Reservation;
       (5) limits in any manner the eligibility of the State of 
     Alaska, any political subdivision of the State, or any Indian 
     tribe in Alaska, for any other Federal assistance under any 
     other law; or
       (6) shall be construed to alter the tribes' existing 
     jurisdictional authority over domestic violence under the 
     Violence Against Women Act.
       (l) Liability of State of Alaska.--The State of Alaska and 
     any political subdivision of the State shall not be liable 
     for any act or omission of an Indian tribe participating in 
     the Project, including acts or omissions undertaken pursuant 
     to an intergovernmental agreement entered into under section 
     7.
       (m) Contracts.--
       (1) In general.--Each Indian tribe participating in the 
     Project shall be eligible for a contract from the Office of 
     Justice Programs, in an amount not to exceed $250,000 per 
     year, for use in defraying costs associated with the Project, 
     including costs relating to--

[[Page 9088]]

       (A) tribal court operations and personnel;
       (B) utility and maintenance;
       (C) overhead;
       (D) equipment; and
       (E) continuing education (including travel).
       (2) Requirements.--The contracts made available under this 
     subsection shall be--
       (A) in addition to such grants as may be available under 
     this Act or other provisions of law; and
       (B) awarded as contracts in a form authorized by the Indian 
     Self-Determination and Education Assistance Act (25 U.S.C. 
     450 et seq.).
       (3) Tribal organizations.--A tribal organization may enter 
     into contracts on behalf of an Indian tribe participating in 
     the Project upon express written delegation of authority of 
     the Indian tribe to the tribal organization.
       (n) Regulations.--The Attorney General may promulgate such 
     regulations as the Attorney General determines to be 
     necessary to carry out this section.
       (o) Full Faith and Credit.--
       (1) In general.--Each State shall give full faith and 
     credit to all official acts and decrees of the tribal court 
     of an Indian tribe participating in the Project to the same 
     extent and in the same manner as such State accords full 
     faith and credit to the official acts and decrees of other 
     States.
       (2) Other law.--Nothing in this subsection impairs the duty 
     of a State to give full faith and credit under any other law.
       (p) Federal Jurisdiction.--
       (1) In general.--Subject to paragraph (2), Project Areas 
     and Indian tribes participating in the Project shall be 
     eligible for the same law enforcement programs of the Bureau 
     of Indian Affairs and the Office of Justice Programs, as are 
     applicable to those areas under section 401 of Public Law 90-
     284 (25 U.S.C. 1321).
       (2) Applicability in alaska.--Nothing in this Act limits 
     the application in Alaska of any provision of title II of 
     Public Law 111-211.
       (q) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out subsection (m) $2,500,000 for 
     each of fiscal years 2012 through 2018.

     SEC. 5. ALASKA VILLAGE PEACE OFFICERS.

       (a) Establishment of Alaska Village Peace Officer Grants 
     Program.--The Office of Justice Services of the Department of 
     the Interior shall carry out a contract program for the 
     employment by Indian tribes of Village Peace Officers in 
     Alaska Native villages as provided in this section.
       (b) Application Criteria.--
       (1) In general.--To qualify for a contract under this 
     section, an applicant shall--
       (A) be an Indian tribe in Alaska that participated in a 
     Project;
       (B) demonstrate the lack of other resident law enforcement 
     in the applicable Alaska Native village; and
       (C) satisfy such other criteria as may be established by 
     notice by the Office of Justice Services.
       (2) Limitation.--Each contract awarded under this section 
     shall be in an amount not to exceed $100,000 for the salary 
     and related costs of employing and equipping 1 Village Peace 
     Officer, except that the Office of Justice Services shall be 
     authorized to waive the 1-officer limitation upon a showing 
     of compelling circumstances.
       (c) Contracts.--At the request of an applicant Indian 
     tribe, the Office of Justice Services shall disburse funds 
     awarded under this section through modifications to existing 
     self-determination contracts or self-governance compacts 
     authorized under the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450 et seq.), or by contract to a 
     political subdivision of the State of Alaska pursuant to an 
     agreement, if any, under section 7.
       (d) Eligibility for BIA Training.--Village peace officers 
     hired pursuant to this section shall be eligible to attend 
     the Bureau of Indian Affairs Police Officer Training Program.
       (e) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section $5,000,000 for 
     each of fiscal years 2012 through 2018.

     SEC. 6. TECHNICAL ASSISTANCE.

       (a) In General.--The Attorney General may enter into 18-
     month contracts with tribal organizations in Alaska to 
     provide training and technical assistance on tribal court 
     development to any Indian tribes in Alaska.
       (b) Cooperation.--Tribal organizations may cooperate with 
     other entities for the provision of services under contracts 
     described in subsection (a).
       (c) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section $2,000,000.

     SEC. 7. INTERGOVERNMENTAL AGREEMENTS.

       (a) In General.--The State of Alaska, political 
     subdivisions of that State, Indian tribes in Alaska, and the 
     United States are each authorized and encouraged to enter 
     into intergovernmental agreements, including agreements 
     concerning--
       (1) the employment of law enforcement officers, probation, 
     and parole officers;
       (2) cross-appointment and cross-deputization of tribal, 
     State, municipal, or Federal officials;
       (3) the detention or incarceration of offenders; and
       (4) jurisdictional or financial matters.
       (b) Rule of Construction.--Nothing in this section shall be 
     construed as restricting the right of the judicial system of 
     Alaska to enter into agreements with the tribal courts.
                                 ______
                                 
      By Mr. CARDIN:
  S. 1193. A bill to amend title 23, United States Code, to preserve 
and renew Federal-aid highways to reduce long-term costs, improve 
safety, and improve the condition of Federal-aid highways; to the 
Committee on Environment and Public Works.
  Mr. CARDIN. Mr. President, today I am introducing legislation to help 
improve and extend the value of our Nation's highways and bridges. This 
bill will help ensure that the Federal Government makes better 
investments of the taxpayer dollars spent on transportation 
infrastructure. Helping build the roads and bridges of this Nation has 
been one the best Federal investments our government has made and it is 
an investment that is worth taking care of to ensure the lasting value, 
efficiency and safety of our Nation's highways and bridges.
  It was during the Thomas Jefferson Administration that the Federal 
Government developed the concept of a ``Federal-Aid'' Highway. In 1806, 
Congress authorized federal funding to build the ``National Road.'' 
Much like the National Highway System of today, the purpose of the 
National Road was to facilitate interstate commerce between the large 
commercial centers of the Eastern United States to points west. 
Construction on the National Road began in 1811 in Cumberland, MD, 200 
years, and trillions of dollars, later the United States has one of the 
world's most expansive highway networks.
  The age and expanse of this system underscores the importance of 
ensuring adequate and consistent investments in our existing 
transportation infrastructure. The need for performance measures and 
national state-of-good repair standards are long overdue. Implementing 
such policies are essential ensuring the quality of the road condition, 
the economic value of our Nation's transportation infrastructure, and 
the wise investment of taxpayer dollars on transportation 
infrastructure.
  The American Society of Civil Engineers, ASCE, gave our Nation's 
highways and bridges a grade of ``D-'' in its 2009 ``Report Card for 
America's Infrastructure.'' These poor road conditions are costing 
motorists time, money, and in the worst and most unfortunate 
situations, costing motorists their lives.
  A 2011 transportation infrastructure study produced by TRIP, a non-
partisan non-profit transportation research organization sponsored by 
various transportation stakeholder industries, found that 32 percent of 
America's major roads are in poor or mediocre condition. Poor road 
conditions take a major toll on the repair and operating costs of 
motorist's vehicles to the tune of $67 billion a year, or approximately 
$333 per driver. Poor road conditions contribute to 42 percent of 
America's urban highways being congested. Traffic congestion costs 
American motorists more than $78 billion in wasted fuel and lost 
productivity, and more than 4 billion hours of wasted time that drivers 
could have otherwise spent with family, earning income or engaged in 
personal activities. Poor road conditions are a ``significant factor'' 
in approximately one-third of fatal traffic accidents.
  It is Congress's responsibility to ensure that Federal transportation 
dollars are spent wisely to improve the safety and efficiency of our 
roads. Making repair and maintenance of our existing infrastructure a 
priority, during these times of fiscal restraint, is a wise approach to 
Federal transportation infrastructure. Ignoring maintenance and repair 
needs on Federal-Aid highways, while advancing capacity expansion 
projects at the expense of neglected existing infrastructure, 
exacerbates the decline in the state-of-good repair of our country's 
roads and bridges and exemplifies irresponsible spending of Federal 
taxpayer dollars.
  ASCE put the cost of the maintenance and repair backlog for roads and

[[Page 9089]]

bridges at $930 billion. Therefore it is important to understand that 
this is an infrastructure issue will not be achieved of the course of 
one surface transportation authorization cycle. However, we can change 
our Federal policies in such a way that improves how Federal dollars 
are spent on highway and bridge maintenance so that the taxpayer gets a 
better return on their transportation taxes.
  Breaking the cycle of neglected road and bridge maintenance that 
stems from allowing a highway facility to decline to into poor or very 
poor condition in the first place is critical to improving the quality 
of investment of Federal transportation dollars.
  Highway investment figures from the American Association of State 
Highway and Transportation Officials: ``Rough Roads Ahead: Fix It Now 
or Pay for It Later'' demonstrate that neglecting maintenance and 
instead waiting for the road surface to reach a condition rating of 
``very poor'', on average 16 years, before repairing the road cost 
nearly twice as much, on average, as compared with making biannual 
investments to maintain a ``very good'' road condition over that same 
16-year period. Not to mention the costs in damage to vehicles that is 
caused by the years that a road spends in fair, poor, or very poor 
condition.
  My Preservation and Renewal of Federal-Aid Highways Act aims to 
create a culture of sound transportation investment while providing the 
States improved resources and flexibility to keep their highway 
facilities in a state of good repair.
  The Preservation and Renewal of Federal-Aid Highways Act will 
establish policies that require the Secretary of Transportation to 
establish ``state of good repair standards'' for the various classes of 
Federal-Aid highways to serve as benchmarks of achievement for States 
to reach.
  The act will require States to use an ``Asset Management Process'' to 
develop ``State System Preservation and Renewal Plans'' and ``State 
System Preservation and Renewal Performance Targets'' to ensure that 
their Federal-Aid roads are being kept in a state of good repair.
  The act will consolidate the Interstate Maintenance program, Highway 
Bridge program and half of the National Highway System Federal-Aid 
highway programs funds together to create a flexible System 
Preservation and Renewal Program Fund for the States to use as they see 
fit to meet the goals of their System Preservation and Renewal Plans 
and Performance Targets.
  Both the Federal Government and the States are facing enormous 
challenges to deliver essential services, like well-maintained, safe 
and efficient roads, for the country. As with any proposal that calls 
for a change in the way business is done there needs to be adequate 
time for transition. My bill, while establishing new standards for 
maintaining the quality of highways and bridges, also takes special 
care to grant leeway during emergency circumstances, when essential 
defense infrastructure investments are needed, and gives consideration 
to States that have planned to use these newly consolidated funds prior 
to how these funds would be repurposed under this legislation.
  The backlog of maintenance and repair on our existing transportation 
infrastructure can no longer be ignored. In recent years, our country 
has experienced a number of tragic incidents that resulted in the loss 
of life as a direct result of the poor condition of transportation 
infrastructure. These are preventable incidents that are costly in so 
many ways. We must make transportation system preservation and renewal 
a priority because it makes good fiscal sense, good safety sense, and 
good business sense for our country. My bill does this in a 
collaborative way between the States and the U.S. Department of 
Transportation.
  I urge my colleagues to support my effort to make improved 
investments in our existing transportation infrastructure so as to 
ensure its continued excellence for years to come by co-sponsoring the 
Preservation and Renewal of Federal-Aid Highways Act.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1193

       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 ``Federal-Aid Highway 
     Preservation and Renewal Program Act of 2011''.

     SEC. 2. SYSTEM PRESERVATION AND RENEWAL PROGRAM.

       (a) In General.--Section 119 of title 23, United States 
     Code, is amended to read as follows:

     ``Sec. 119. System preservation and renewal program

       ``(a) Definitions.--In this section:
       ``(1) Asset management.--The term `asset management' means 
     a strategic process for the management of transportation 
     infrastructure that takes into consideration economic and 
     engineering factors to make cost-effective investment 
     decisions to improve the overall state of good repair of 
     facilities.
       ``(2) Eligible cost.--The term `eligible cost' means, with 
     respect to costs incurred for a project, costs of--
       ``(A) development and implementation of asset management 
     systems in support of system preservation and renewal plans;
       ``(B) inspection activities for highway bridges and tunnels 
     in the State;
       ``(C) reducing or eliminating an identified highway or 
     bridge safety problem;
       ``(D) training of personnel responsible for inspection of 
     highway tunnels and inspection and load rating of highway 
     bridges in the State;
       ``(E) data collection to monitor the condition of highways 
     and highway bridges in the State;
       ``(F) environmental restoration and pollution abatement to 
     offset or mitigate the impacts of a project eligible under 
     subparagraph (A);
       ``(G) control of terrestrial and aquatic noxious weeds and 
     establishment of non-native plant species within the limits 
     of a project eligible under subparagraph (A); and
       ``(H) implementation of the policy established pursuant to 
     subsection (l)(1).
       ``(3) Eligible highway facility.--The term `eligible 
     highway facility' means--
       ``(A) a highway located on a Federal-aid highway;
       ``(B) a bridge located on a Federal-aid highway;
       ``(C) a bridge not located on a Federal-aid highway; and
       ``(D) a bicycle or pedestrian lane, path, walkway, or 
     similar travel surface located within the right-of-way of a 
     Federal-aid highway.
       ``(4) Eligible project.--The term `eligible project' means 
     a project that is--
       ``(A)(i) a project for resurfacing, restoration, 
     rehabilitation, replacement, or reconstruction of an eligible 
     highway facility;
       ``(ii) a project for preservation, protection, or other 
     preventive repair of an eligible highway facility; or
       ``(iii) a project to reduce or eliminate an identified 
     highway safety problem, if the project--
       ``(I) is eligible under section 148; and
       ``(II) has a cost of less than $10,000,000; and
       ``(B) consistent with the investment strategy of the State 
     in which the project is to be carried out.
       ``(5) Investment strategy.--The term `investment strategy' 
     means a State investment strategy established under 
     subsection (h)(2)(B).
       ``(6) Overall state of good repair standards.--The term 
     `overall state of good repair standards' means the 
     performance standards established under subsection (f)(1)(B).
       ``(7) Preservation.--
       ``(A) In general.--The term `preservation' means any cost-
     effective activity to prevent, delay, or reduce deterioration 
     on an eligible highway facility, including preventive and 
     corrective actions.
       ``(B) Exclusion.--The term `preservation' does not include 
     structural or operational improvement beyond the originally 
     designed traffic capacity of an existing highway facility 
     except to the extent the improvement occurs as an incidental 
     result of the preservation activity or improves safety.
       ``(8) Program.--The term `program' means the system 
     preservation and renewal program established under subsection 
     (b).
       ``(9) Protection.--The term `protection', with respect to a 
     highway, means the conduct of an activity or action 
     associated with the design and construction of measures to 
     protect highways from hazards such as earthquakes, floods, 
     scour, icing, vessel collision, vehicular impact, and 
     security threats.
       ``(10) State of good repair performance target.--The term 
     `state of good repair performance target' means a performance 
     target established under subsection (f)(2).
       ``(11) System preservation and renewal funds.--The term 
     `system preservation and renewal funds' means funds 
     apportioned under sections 104(b)(4), 104(m), and 144(e) for 
     the program.

[[Page 9090]]

       ``(12) System preservation and renewal plan.--The term 
     `system preservation and renewal plan' means a system 
     preservation and renewal plan established by a State under 
     subsection (h).
       ``(b) Establishment.--The Secretary shall establish and 
     implement a surface transportation infrastructure 
     preservation and renewal program designed to maintain and 
     preserve the quality, efficiency, safety, and value of 
     Federal-aid highways and Federal-aid and non-Federal-aid 
     bridges in accordance with this section.
       ``(c) Purposes.--The purposes of the program shall be--
       ``(1) to establish national priorities and goals for 
     bringing Federal-aid highways and Federal-aid and non-
     Federal-aid bridges into a state of good repair and 
     preserving that state of good repair;
       ``(2) to focus Federal investment on preserving and 
     improving the condition of roadways and bridges; and
       ``(3) to strengthen the connection between the use by a 
     State of Federal surface transportation funding and the 
     accomplishment of performance outcomes.
       ``(d) Use of Apportioned Funds.--
       ``(1) In general.--A State may obligate funds apportioned 
     to the State under the program for--
       ``(A) eligible projects; and
       ``(B) eligible costs.
       ``(2) Priority for national highway system projects.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     a State shall give priority to eligible projects that help 
     meet the overall state of good repair standards for the 
     National Highway System under subsection (f)(1)(B).
       ``(B) Exception.--This paragraph shall not apply to any 
     State that is meeting the overall state of good repair 
     standards for the National Highway System established under 
     subsection (f)(1)(B), as determined by the Secretary.
       ``(3) Limitation.--
       ``(A) In general.--A project cost attributable to expansion 
     of the capacity of a highway located on a Federal-aid 
     highways shall not be eligible for funding under this section 
     if the new capacity consists of 1 or more new travel lanes 
     that are not auxiliary lanes.
       ``(B) Non-federal-aid bridges.--
       ``(i) In general.--Not less than 15 percent of the amount 
     apportioned to each State under section 144(e) for each of 
     fiscal years 2012 through 2017 shall be expended for projects 
     to preserve, rehabilitate, protect, or replace highway 
     bridges, other than those bridges on Federal-aid highways.
       ``(ii) Reduction in expenditures.--The Secretary, after 
     consultation with State and local officials, may reduce the 
     amount required to be expended under clause (i) for bridges 
     in the State that are not located on a Federal-aid highway if 
     the Secretary determines that the State has inadequate needs 
     to justify the expenditure.
       ``(4) Exception.--
       ``(A) Debt financing instruments.--Prior to the 
     apportionment of funds made available for a program, a State 
     may deduct amounts sufficient for the payment of any debt-
     financing instruments committed, guaranteed, or obligated to 
     a third party before the date of enactment of the Federal-Aid 
     Highway Preservation and Renewal Program Act of 2011 for 
     eligible projects under this title (including this section) 
     and title 49.
       ``(B) Defense base closure and realignment impacts.--Before 
     October 1, 2013, a State may use up to 25 percent of the 
     funds of the State for system preservation and renewal for 
     projects to address transportation impacts relating to 
     decisions of the Defense Base Closure and Realignment 
     Commission.
       ``(e) Other Eligible Costs.--In addition to the funds 
     obligated for eligible projects, a State may obligate, in the 
     aggregate, not to exceed 5 percent of the funds apportioned 
     to the State under the program for a fiscal year to pay other 
     eligible costs.
       ``(f) System Preservation and Renewal Performance Standards 
     and Targets.--
       ``(1) Secretary responsibilities.--Not later than 1 year 
     after the date of enactment of the Federal-Aid Highway 
     Preservation and Renewal Program Act of 2011, the Secretary 
     shall, by regulation and in consultation with States, 
     establish--
       ``(A) criteria for determining the state of good repair of 
     eligible highway facilities, based on highway pavement 
     condition or bridge structural adequacy, as applicable; and
       ``(B) overall state of good repair standards for each class 
     of infrastructure described in paragraph (3), based on the 
     criteria established under subparagraph (A).
       ``(2) State responsibilities.--Not later than 2 years after 
     the date of enactment of the Federal-Aid Highway Preservation 
     and Renewal Program Act of 2011, and every 2 years 
     thereafter, each State, in conjunction with the development 
     of the system preservation and renewal plan of the State, 
     shall establish or revise, for each class of infrastructure 
     described in paragraph (3), quantifiable State of good repair 
     performance targets that, at a minimum, estimate the 
     projected percentage change over a 2-year period of 
     infrastructure that is rated as being not in state of good 
     repair based on the criteria established under paragraph 
     (1)(B).
       ``(3) Classes of infrastructure.--The classes of 
     infrastructure referred to in paragraph (1) are--
       ``(A) the total deck area of highway bridges in a State 
     that are located on the National Highway System;
       ``(B) the total deck area of highway bridges in a State 
     that are located on Federal-aid highways;
       ``(C) the total lane miles in a State that are located on 
     the National Highway System; and
       ``(D) the total lane miles in a State that are located on 
     Federal-aid highways.
       ``(4) Compliance.--If a State meets an overall state of 
     good repair standard established under paragraph (1)(B) for a 
     class of infrastructure described in paragraph (3), that 
     class of infrastructure in the State shall be considered to 
     be in a state of good repair.
       ``(5) Applicability.--No State shall be required to 
     establish state of good repair performance targets under 
     paragraph (2) for any class of infrastructure that a State 
     certifies as meeting the overall state of good repair 
     standard under paragraph (1)(B).
       ``(g) State Asset Management Process.--
       ``(1) In general.--Not later than 1 year after the date of 
     enactment of the Federal-Aid Highway Preservation and Renewal 
     Program Act of 2011, a State shall develop an asset 
     management process to support the development and 
     implementation of system preservation and renewal plans under 
     subsection (h).
       ``(2) Requirements.--The process developed under paragraph 
     (1) shall be based on analytical mechanisms to identify cost-
     effective investments to preserve, rehabilitate, restore, 
     resurface, reconstruct, protect, or replace Federal-aid 
     highways and highway bridges on Federal-aid highways to 
     improve the overall state of good repair of those highways 
     and bridges.
       ``(h) State System Preservation and Renewal Plans.--
       ``(1) Submission of plans.--Not later than 2 years after 
     the date of enactment of the Federal-Aid Highway Preservation 
     and Renewal Program Act of 2011 and biennially thereafter, a 
     State shall develop or update, as applicable, and submit to 
     the Secretary for approval, a system preservation and renewal 
     plan.
       ``(2) Plan requirements.--A system preservation plan of a 
     State and any update of such a plan shall--
       ``(A) include documentation on the state of good repair 
     based on the criteria under paragraph (f)(1) and each class 
     of infrastructure described in subsection (f)(3);
       ``(B) include an investment strategy that--
       ``(i) covers a period of 6 years; and
       ``(ii) describes the manner in which the State will 
     allocate funds apportioned to the State to carry out this 
     section among, at a minimum--

       ``(I) facilities in good condition, fair condition, and 
     poor condition;
       ``(II) projects located on each class of infrastructure 
     described in subsection (f)(2);
       ``(III) projects that vary with respect to geographical 
     location, as determined by the State; and
       ``(IV) other eligible costs;

       ``(iii) is based on an asset management process under 
     subsection (g);
       ``(iv) describes any Federal, State, local, or private 
     funds that the State plans to use, in addition to system 
     preservation and renewal funds, on projects that would help 
     to meet the state of good repair performance targets 
     established under this section;
       ``(v) indicates the number of lane miles of highways and 
     quantity of deck area on highway bridges that the State would 
     address through the allocations described in clause (ii); and
       ``(vi) subject to subsection (d)(2), provides for 
     investment in projects that, once completed, would allow the 
     State to meet the applicable state of good repair performance 
     targets;
       ``(C) include a description of the extent to which the use 
     by the State of system preservation and renewal funds 
     apportioned to the State during the 2 most recent fiscal 
     years was consistent with the investment strategy of the 
     State, including--
       ``(i) an identification of the number of lane miles of 
     highways and quantity of deck area on highway bridges on 
     which the State has used those funds during those 2 fiscal 
     years;
       ``(ii) an identification of the distribution of highway and 
     bridge facilities, by level of ownership (Federal, State, 
     tribal, and local) and by functional classification, on which 
     the State has obligated those funds during those 2 fiscal 
     years;
       ``(iii) an assessment of the progress that the State has 
     made toward meeting each of the state of good repair 
     performance targets of the State based on the projects that 
     the State has carried out under this section and the 
     contribution that those projects have made or would make, 
     once complete, to the State meeting those performance 
     targets; and
       ``(iv) a description of the expenditure of funds on a 
     geographical basis, as determined by the State; and
       ``(D) describe the manner in which the investment strategy 
     of the State would enable the State--
       ``(i) to meet the state of good repair performance targets 
     of the State; and

[[Page 9091]]

       ``(ii) improve the condition of the classes of 
     infrastructure described in subsection (f)(3) in the State.
       ``(3) Public availability of plan.--A State shall make the 
     system preservation and renewal plan of the State, and each 
     update of the plan, available to the public.
       ``(i) Failure to Meet State of Good Repair Performance 
     Targets.--
       ``(1) In general.--If a State does not meet the biennial 
     system preservation and renewal performance targets under 
     this section, the State shall coordinate with the Secretary 
     to direct portions of Federal funds available under this 
     title to the State toward projects eligible under this 
     section in order to meet the state of good repair performance 
     targets under this section.
       ``(2) Waiver.--The Secretary may temporarily waive the 
     application of this subsection if--
       ``(A) unforeseen events significantly impact the ability of 
     a State to meet the biennial state of good repair performance 
     targets; or
       ``(B) eligible facilities under this section in the State 
     have suffered serious damage due to an event that results in 
     the declaration of--
       ``(i) an emergency by the Governor of the State; or
       ``(ii) a major disaster by the President under the Robert 
     T. Stafford Disaster Relief and Emergency Assistance Act (42 
     U.S.C. 5121 et seq.).
       ``(j) Oversight.--Beginning for the third fiscal year after 
     the date of enactment of the Federal-Aid Highway Preservation 
     and Renewal Program Act of 2011, and at least biennially 
     thereafter or at such other times or intervals as are 
     determined to be necessary by the Secretary, the Secretary, 
     in conjunction with the submission of the State system 
     preservation and renewal plan under subsection (g), shall 
     conduct oversight activities to assess whether the use by 
     each State of funds under this section is consistent with the 
     investment strategy of the State under this section.
       ``(k) Biennial Report to Congress.--Not later than 
     September 30, 2013, and biennially thereafter, the Secretary 
     shall submit to the Committee on Transportation and 
     Infrastructure of the House of Representatives and the 
     Committee on Environment and Public Works of the Senate a 
     report containing--
       ``(1) an evaluation of the performance of each State with 
     respect to--
       ``(A) the investment strategy of the State under this 
     section; and
       ``(B) the system preservation and renewal performance 
     targets established for the State under this section; and
       ``(2) such recommendations as the Secretary may provide for 
     improvements of the program.
       ``(l) Additional Requirements.--
       ``(1) Safe streets policy.--Not later than 2 years after 
     the date of enactment of the Federal-Aid Highway Preservation 
     and Renewal Program Act of 2011, each State shall develop a 
     policy applicable to any project funded, in whole or in part, 
     under the program that--
       ``(A) ensures the adequate accommodation, in all phases of 
     project planning and development, of all users of the 
     transportation system, including--
       ``(i) pedestrians;
       ``(ii) bicyclists;
       ``(iii) public transit users;
       ``(iv) older individuals;
       ``(v) motorists;
       ``(vi) individuals with disabilities; and
       ``(vii) users of motor vehicles with a taxable gross weight 
     (as defined in section 4481 of the Internal Revenue Code of 
     1986) in excess of 55,000 pounds;
       ``(B) ensures the consideration of the safety and 
     convenience of all users in all phases of project planning 
     and development; and
       ``(C) delineates a clear procedure that gives due 
     consideration to the geographical location, road 
     classification, population density, and other demographic 
     factors by which projects funded, in whole or in part, under 
     this program may be exempted from complying with the policy.
       ``(2) Categorical exclusions.--To the extent appropriate, 
     the Secretary shall develop categorical exclusions from the 
     requirement that an environmental assessment or an 
     environmental impact statement under section 102 of the 
     National Environmental Policy Act of 1969 (42 U.S.C. 4332) be 
     prepared for transportation activities located within an 
     existing right-of-way funded under the program.
       ``(3) Maintenance of effort provision.--
       ``(A) In general.--For any fiscal year for which a State 
     receives funds pursuant to this section, the State shall 
     certify to the Secretary that the State will expend funds for 
     the maintenance and operations of facilities in an amount 
     that is at least equal to the average annual amount of funds 
     expended over the preceding 3 fiscal years.
       ``(B) Form and deadline.--A certification described in 
     subparagraph (A) shall be submitted in such form and not 
     later than such date as shall be determined by the Secretary.
       ``(C) Penalty for noncompliance.--If a State fails to 
     provide a certification to the Secretary in accordance with 
     subparagraph (A), the Secretary shall withhold from the 
     State, for each fiscal year until such time as the State 
     submits the certification in accordance with subparagraph 
     (A), an amount equal to 10 percent of the amounts the State 
     would have received under this section for the fiscal year.
       ``(D) Waiver.--The Secretary may temporarily waive the 
     application of this paragraph if unforeseen events 
     significantly impact the ability of a State to meet the 
     biennial state of good repair performance targets.
       ``(m) Applicability of Planning Requirements.--Nothing in 
     this section limits the applicability of sections 134 and 135 
     to projects carried out under this section.
       ``(n) Continuation of Current Review Practice.--Because 
     each individual project that is carried out under the 
     investment strategy described in the system preservation and 
     renewal plan of a State is subject to review under the 
     National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
     seq.), a decision by the Secretary concerning a system 
     preservation and renewal plan or an update of the plan in 
     connection with this section shall not be considered to be a 
     Federal action subject to review under that Act.
       ``(o) Transfer of NHS, Bridge Program, and Interstate 
     Maintenance Apportionments.--On application by a State and 
     approval by the Secretary, the Secretary may transfer to the 
     apportionment of the State under section 104(b)(1) the amount 
     of funds apportioned to the State for a fiscal year ending 
     before October 1, 2010, under paragraphs (1) and (4) of 
     section 104(b), and section 144(e) (as those sections were in 
     effect on the day before the date of enactment of the 
     Federal-Aid Highway Preservation and Renewal Program Act of 
     2011), that remains available for expenditure by the State.
       ``(p) Regulations on Performance Measures of Structural 
     Adequacy.--Not later than 1 year after the date of enactment 
     of the Federal-Aid Highway Preservation and Renewal Program 
     Act of 2011, the Secretary shall promulgate such regulations 
     as are necessary to carry out this section.''.
       (b) Application to System Preservation and Renewal Funds.--
     Section 126 of title 23, United States Code, is amended--
       (1) in subsection (a), by striking ``subsections (b) and 
     (c)'' and inserting ``subsections (b), (c) and (d)''; and
       (2) by adding at the end the following:
       ``(d) Application to System Preservation and Renewal 
     Funds.--
       ``(1) In general.--A State may transfer funds apportioned 
     to the State under section 104(m) for the system preservation 
     and renewal program if the State meets the overall state of 
     good repair standards established under section 119(f)(1)(B) 
     for classes of infrastructure under subparagraphs (A) and (C) 
     of sections 119(f)(3).
       ``(2) Good repair standards.--A State may transfer funds 
     apportioned to the State under sections 104(b)(4) and 144(e) 
     for the system preservation and renewal program if the State 
     meets each of the overall state of good repair standards 
     established under section 119(f)(1)(B).''.
       (c) Clerical Amendment.--The analysis for chapter 1 of 
     title 23, United States Code, is amended by striking the item 
     relating to section 119 and inserting the following:

``Sec. 119. System preservation and renewal program.''.

       (d) Conforming Amendments.--
       (1) Section 104 of title 23, United States Code, is amended 
     by adding at the end the following:
       ``(m) System Preservation and Renewal.--Notwithstanding any 
     other provision of this section, \1/2\ of the funds 
     apportioned to a State under subsection (b)(1) shall be used 
     for system preservation and renewal under section 119 of 
     title 23, United States Code.''.
       (2) Section 105 of title 23, United States Code, is amended 
     in each of subsections (a)(2) and (b)(2) by striking ``the 
     Interstate maintenance program'' each place it appears and 
     inserting ``the system preservation and renewal program''.
       (3) Section 118 of title 23, United States Code, is 
     amended--
       (A) by striking subsection (c); and
       (B) by redesignating subsections (d) and (e) as subsections 
     (c) and (d), respectively.
                                 ______
                                 
      By Mr. LEAHY:
  S. 1194. A bill to facilitate compliance with Article 36 of the 
Vienna Convention on Consular Relations, done at Vienna April 24, 1963, 
and for other purposes; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today, I am introducing the Consular 
Notification Compliance Act. This legislation will help bring the 
United States into compliance with its obligations under the Vienna 
Convention on Consular Relations, VCCR, and is critical to ensuring the 
protection of Americans traveling overseas.
  Each year, thousands of Americans are arrested and imprisoned when 
they are in foreign countries studying, working, serving the military, 
or traveling. From the moment they are detained, their safety and well-
being depends, often entirely, on the ability of

[[Page 9092]]

United States consular officials to meet with them, monitor their 
treatment, help them obtain legal assistance, and connect them to 
family back home. That access is protected by the consular notification 
provisions of the VCCR, but it only functions effectively if every 
country meets its obligations under the treaty--including the United 
States.
  Unfortunately, in some instances, the United States has not been 
meeting those obligations. There are currently more than 100 foreign 
nationals on death row in the United States, most of whom were never 
told of their right to contact their consulate and their consulate was 
never notified of their arrest, trial, conviction, or sentence. There 
are many other foreigners in U.S. prisons awaiting trial for non-
capital crimes, some facing life sentences, who were similarly denied 
consular access. This failure to comply with our treaty obligations 
undercuts our ability to protect Americans abroad and deeply damages 
our image as a country that abides by its promises and the rule of law. 
It would also be completely unacceptable to us if our citizens were 
treated in this manner.
  The Consular Notification Compliance Act seeks to bring the United 
States one step closer to compliance with the convention. It is not 
perfect. It focuses only on the most serious cases--those involving the 
death penalty--but it is a significant step in the right direction and 
we need to work together to pass it quickly. Texas is poised to execute 
the next foreign national affected by this failure to comply with the 
treaty on July 7, 2011. He was not notified of his right to consular 
assistance, and the Government of Mexico has expressed grave concerns 
about the case. We do not want this execution to be interpreted as a 
sign that the United States does not take its treaty obligations 
seriously. That message puts American lives at risk. The Government of 
Great Britain has expressed similar concerns about a case involving a 
British citizen facing the death penalty here, who was denied consular 
access.
  The bill I am introducing would allow foreign nationals who have been 
convicted and sentenced to death to ask a court to review their cases 
and determine if the failure to provide consular notification led to an 
unfair conviction or sentence.
  The bill also recognizes that law enforcement and the courts must do 
a better job in the future to promptly notify individuals of their 
right to consular assistance so the United States does not find itself 
in this precarious position again. To that end, the bill reaffirms that 
the obligations under the treaty are Federal law and apply to all 
foreign nationals arrested or detained in the United States. For 
individuals arrested on charges that carry a possible punishment of 
death, the bill ensures adequate opportunity for consular assistance 
before a trial begins.
  This bill offers very limited remedies to a very limited number of 
people. I am troubled that it has to be so narrow, as we demand far 
broader protection for American citizens abroad every day. However, 
carrying out a death sentence is an irreversible action, and I believe 
that we must act quickly. I understand that a limited bill has the best 
chance of achieving the bipartisan support needed to move forward on 
such an important issue at this time.
  Compliance with our consular notification obligations is not a 
question of partisan interest. There should be unanimous support for 
this bill. The VCCR was negotiated under President Kennedy, ratified 
during the Nixon administration, and it has been fully supported by 
every President since. President George W. Bush understood the critical 
need to honor our obligations under this treaty. Although he was 
ultimately unsuccessful, he vigorously worked to bring the United 
States into compliance, and he supported action along the lines of what 
I propose today. He understood the implications of non-compliance for 
our citizens, our businesses, and our military. I have no doubt 
President Obama shares the same commitment to resolving this issue.
  I saw the need to resolve this issue first-hand this spring when a 
young, innocent Vermont college student was detained by Syrian police 
simply for taking photos of a demonstration. I worked hard with the 
U.S. consulate in Syria to obtain access to him. His safety depended on 
the ability of our consular officers to see him, provide assistance, 
and monitor his condition.
  Similarly, the United States invoked the VCCR to seek access to the 
three American hikers detained in Iran after accidently crossing an 
unmarked border in 2009. In 2001, when a U.S. Navy surveillance plane 
made an emergency landing in Chinese territory, the State Department 
cited the VCCR in demanding immediate access to the plane's crew.
  I doubt there are many Members of Congress who have not sought 
similar help from our consulates when their constituents have been 
arrested overseas. We know how critically important this access is, and 
we expect other governments to provide it. Those governments expect no 
less of us.
  This bill has the support of the Obama administration, including the 
Department of Justice, the Department of Defense, the Department of 
Homeland Security, and the Department of State. I have heard from 
retired members of the military urging passage of the bill to protect 
service men and women and their families overseas, and from former 
diplomats of both political parties who know that compliance with our 
treaty obligations is critical for America's national security and 
commercial interests.
  Given the long history of bipartisan support for the VCCR, there 
should be unanimous support for this legislation to uphold our treaty 
obligations. A failure to act places Americans at risk.
  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. 1194

       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 ``Consular Notification 
     Compliance Act of 2011''.

     SEC. 2. PURPOSE AND STATEMENT OF AUTHORITY.

       (a) Purpose.--The purpose of this Act is to facilitate 
     compliance with Article 36 of the Vienna Convention on 
     Consular Relations, done at Vienna April 24, 1963 and any 
     comparable provision of a bilateral international agreement 
     addressing consular notification and access.
       (b) Statement of Authority.--This Act is enacted pursuant 
     to authority contained in articles I and VI of the 
     Constitution of the United States.

     SEC. 3. CONSULAR NOTIFICATION AND ACCESS.

       (a) In General.--As required under, and consistent with, 
     Article 36 of the Vienna Convention on Consular Relations, 
     done at Vienna April 24, 1963 and any comparable provision of 
     a bilateral international agreement addressing consular 
     notification and access, if an individual who is not a 
     national of the United States is detained or arrested by an 
     officer or employee of the Federal Government or a State or 
     local government, the arresting or detaining officer or 
     employee, or other appropriate officer or employee of the 
     Federal Government or a State or local government, shall 
     notify that individual without delay that the individual may 
     request that the consulate of the foreign state of which the 
     individual is a national be notified of the detention or 
     arrest.
       (b) Notice.--
       (1) In general.--The consulate of the foreign state of 
     which an individual detained or arrested is a national shall 
     be notified without delay if the individual requests consular 
     notification under subsection (a), and an appropriate officer 
     or employee of the Federal Government or a State or local 
     government shall provide any other consular notification 
     required by an international agreement.
       (2) First appearance.--If an appropriate officer or 
     employee of the Federal Government or a State or local 
     government has not notified the consulate described in 
     paragraph (1) regarding an individual who is detained pending 
     criminal charges and the individual requests notification or 
     notification is mandatory under a bilateral international 
     agreement, notification shall occur not later than the first 
     appearance of the individual before the court with 
     jurisdiction over the charge.
       (c) Communication and Access.--An officer or employee of 
     the Federal Government or a State or local government 
     (including an officer or employee in charge of a facility 
     where an individual who is not a national of the

[[Page 9093]]

     United States is held following detention or arrest) shall 
     reasonably ensure that the individual detained or arrested is 
     able to communicate freely with, and be visited by, officials 
     of the consulate of the foreign state of which the individual 
     detained or arrested is a national, consistent with the 
     obligations described in section 2(a).
       (d) No Cause of Action.--Nothing in this section is 
     intended to create any judicially or administratively 
     enforceable right or benefit, substantive or procedural, by 
     any party against the United States, its departments, 
     agencies, or other entities, its officers or employees, or 
     any other person or entity, including, an officer, employee, 
     or agency of a State or local government.

     SEC. 4. PETITION FOR REVIEW.

       (a) In General.--
       (1) Jurisdiction.--Notwithstanding any other provision of 
     law, a Federal court shall have jurisdiction to review the 
     merits of a petition claiming a violation of Article 36(1)(b) 
     or (c) of the Vienna Convention on Consular Relations, done 
     at Vienna April 24, 1963, or a comparable provision of a 
     bilateral international agreement addressing consular 
     notification and access, filed by an individual convicted and 
     sentenced to death by any Federal or State court before the 
     date of enactment of this Act.
       (2) Date for execution.--If a date for the execution of an 
     individual described in paragraph (1) has been set, the court 
     shall grant a stay of execution if necessary to allow the 
     court to review a petition filed under paragraph (1).
       (3) Standard.--To obtain relief, an individual described in 
     paragraph (1) shall make a showing of actual prejudice to the 
     criminal conviction or sentence as a result of the violation. 
     The court may conduct an evidentiary hearing if necessary to 
     supplement the record and, upon a finding of actual 
     prejudice, shall order a new trial or sentencing proceeding.
       (4) Limitations.--
       (A) In general.--A petition for review under this section 
     shall be filed within 1 year of the later of--
       (i) the date of enactment of this Act;
       (ii) the date on which the Federal or State court judgment 
     against the individual described in paragraph (1) became 
     final by the conclusion of direct review or the expiration of 
     the time for seeking such review; or
       (iii) the date on which the impediment to filing a petition 
     created by Federal or State action in violation of the 
     Constitution or laws of the United States is removed, if the 
     individual described in paragraph (1) was prevented from 
     filing by such Federal or State action.
       (B) Tolling.--The time during which a properly filed 
     application for State post-conviction or other collateral 
     review with respect to the pertinent judgment or claim is 
     pending shall not be counted toward the 1-year period of 
     limitation.
       (5) Habeas petition.--A petition for review under this 
     section shall be part of the first Federal habeas corpus 
     application or motion for Federal collateral relief under 
     chapter 153 of title 28, United States Code, filed by an 
     individual, except that if an individual filed a Federal 
     habeas corpus application or motion for Federal collateral 
     relief before the date of enactment of this Act or if such 
     application is required to be filed before the date that is 1 
     year after the date of enactment of this Act, such petition 
     for review under this section shall be filed not later than 1 
     year after the enactment date or within the period prescribed 
     by paragraph (4)(A)(iii), whichever is later. No petition 
     filed in conformity with the requirements of the preceding 
     sentence shall be considered a second or successive habeas 
     corpus application or subjected to any bars to relief based 
     on pre-enactment proceedings other than as specified in 
     paragraph (3).
       (6) Appeal.--
       (A) In general.--A final order on a petition for review 
     under paragraph (1) shall be subject to review on appeal by 
     the court of appeals for the circuit in which the proceeding 
     is held.
       (B) Appeal by petitioner.--An individual described in 
     paragraph (1) may appeal a final order on a petition for 
     review under paragraph (1) only if a district or circuit 
     judge issues a certificate of appealability. A district judge 
     or circuit judge may issue a certificate of appealability 
     under this subparagraph if the individual has made a 
     substantial showing of actual prejudice to the criminal 
     conviction or sentence of the individual as a result of a 
     violation of Article 36(1) of the Vienna Convention on 
     Consular Relations, done at Vienna April 24, 1963, or a 
     comparable provision of a bilateral international agreement 
     addressing consular notification and access.
       (b) Violation.--
       (1) In general.--An individual not covered by subsection 
     (a) who is arrested, detained, or held for trial on a charge 
     that would expose the individual to a capital sentence if 
     convicted may raise a claim of a violation of Article 
     36(1)(b) or (c) of the Vienna Convention on Consular 
     Relations, done at Vienna April 24, 1963, or of a comparable 
     provision of a bilateral international agreement addressing 
     consular notification and access, at a reasonable time after 
     the individual becomes aware of the violation, before the 
     court with jurisdiction over the charge. Upon a finding of 
     such a violation--
       (A) the consulate of the foreign state of which the 
     individual is a national shall be notified immediately by the 
     detaining authority, and consular access to the individual 
     shall be afforded in accordance with the provisions of the 
     Vienna Convention on Consular Relations, done at Vienna April 
     24, 1963, or the comparable provisions of a bilateral 
     international agreement addressing consular notification and 
     access; and
       (B) the court--
       (i) shall postpone any proceedings to the extent the court 
     determines necessary to allow for adequate opportunity for 
     consular access and assistance; and
       (ii) may enter necessary orders to facilitate consular 
     access and assistance.
       (2) Evidentiary hearings.--The court may conduct 
     evidentiary hearings if necessary to resolve factual issues.
       (3) Rule of construction.--Nothing in this subsection shall 
     be construed to create any additional remedy.

     SEC. 5. DEFINITIONS.

       In this Act--
       (1) the term ``national of the United States'' has the 
     meaning given that term in section 101(a)(22) of the 
     Immigration and Nationality Act (8 U.S.C. 1101(a)(22)); and
       (2) the term ``State'' means any State of the United 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, and any territory or possession of the United States.
                                  ____

                                                    June 14, 2011.
     Re The Consular Notification Compliance Act.

     Hon. Patrick J. Leahy,
     Chairman, U.S. Senate Committee on the Judiciary, Washington, 
         DC.
     Hon. Charles E. Grassley,
     Ranking Member, U.S. Senate Committee on the Judiciary, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Grassley: We write 
     to urge you to support prompt passage of the Consular 
     Notification Compliance Act, legislation that would give 
     domestic legal effect to U.S. obligations under the Vienna 
     Convention on Consular Relations (Vienna Convention) to 
     provide consular access to foreign nationals in U.S. law 
     enforcement custody by providing for judicial review of 
     certain claims that this obligation has not been satisfied. 
     International consular notification and access obligations 
     are essential to ensuring humane, non-discriminatory 
     treatment for both non-citizens in U.S. custody and U.S. 
     citizens in the custody of foreign governments. As retired 
     military leaders, we understand that the preservation of 
     consular access protections is especially important for U.S. 
     military personnel, who when serving our country overseas are 
     at greater risk of being arrested by a foreign government.
       U.S. military personnel are at risk for being taken into 
     foreign custody after accidental incursions into foreign 
     territories, while on leave or furlough, or while stationed 
     abroad pursuant to, or in absence of a Status of Forces 
     Agreement (SOFA). When American military personnel or their 
     family members find themselves in foreign custody, consular 
     access is indispensable in allowing the U.S. government to 
     fulfill its duty to ensure fair and humane treatment for such 
     individuals.
       For example, in 2001 when a U.S. Navy surveillance plane 
     made an emergency landing in Chinese territory after 
     colliding with a Chinese jet, the State Department cited the 
     Vienna Convention and other consular treaties in demanding 
     immediate access to the plane's crew. Chinese authorities 
     responded by granting consular visits to the crew members, 
     who were detained in China for 11 days. Moreover, military 
     regulations implementing SOFA requirements anticipate that 
     consular officers will assist the designated commanding 
     officer in key areas such as protesting inhumane treatment 
     and ensuring that the individual has access to an adequate 
     defense.
       The strength of consular access protections for U.S. 
     military personnel abroad is dependent on the United States' 
     reciprocal commitment to fulfill its obligations at home. But 
     given the Supreme Court's 2008 decision in Medellin v. Texas, 
     the executive branch is unable, without further action by 
     Congress, to enforce certain consular protections under the 
     Vienna Convention with regards to U.S. state law enforcement 
     personnel. In light of the Medellin decision, additional 
     legislation is needed to ensure the integrity of the consular 
     notification and access rights upon which U.S. service 
     members rely.
       Legislation to ensure review and appropriate relief if 
     needed when a foreign national faces or is sentenced to 
     death, while relatively limited in scope, would improve 
     foreign governments' confidence in the United States' ability 
     to uphold its consular access obligations, making it more 
     likely that such governments will giant this access to 
     Americans in their custody.
       Improving U.S. enforcement of its consular notification and 
     access legal obligations will

[[Page 9094]]

     help protect American citizens detained abroad, including 
     U.S. military personnel and their families stationed 
     overseas. We urge you to support those who are serving our 
     country overseas by ensuring swift passage of the Consular 
     Notification Compliance Act to meet our international 
     responsibilities.
           Sincerely,
       Rear Admiral Don Guter, USN (Ret.).
       Rear Admiral John D. Hutson, USN (Ret.).
       Brigadier General James P. Cullen, USA (Ret.).
       Brigadier General David R. Irvine, USA (Ret.).
       Brigadier General Murray G. Sagsveen, USA (Ret.).
       Colonel Lawrence B. Wilkerson, USA (Ret.).
                                  ____

                                                    June 14, 2011.
     Re The Consular Notification Compliance Act.

     Hon. Patrick J. Leahy,
     Chairman, U.S. Senate Committee on the Judiciary, Washington, 
         DC.
     Hon. Charles E. Grassley,
     Ranking Member, U.S. Senate Committee on the Judiciary, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Grassley: As former 
     U.S. diplomats and State Department officials, we write to 
     urge your support for the Consular Notification Compliance 
     Act, legislation that we believe is vitally important to 
     meeting the United States' foreign policy objectives and to 
     protecting the interests of its citizens abroad. We urge you 
     to act promptly to enact this legislation that would secure 
     compliance with the United States' binding treaty obligations 
     by providing a review mechanism for the cases of foreign 
     nationals who--without the benefit of timely consular 
     notification and access--were convicted and received death 
     sentences.
       Each year, thousands of Americans are detained abroad. 
     Prompt knowledge of and access to our fellow-citizens held in 
     foreign jails ensures that U.S. consular officers can help 
     them obtain legal assistance, monitor their treatment, and 
     connect them to family and friends back home. This crucial 
     lifeline of consular support can only function effectively if 
     the detaining authorities comply with their obligations under 
     Article 36 of the Vienna Convention on Consular Relations, 
     which grants all foreigners in custody the right to consular 
     notification, communication and access ``without delay.'' 
     Insisting on compliance with and protesting violations of 
     Article 36 provisions has thus long been an integral element 
     of the U.S. policy of providing protective consular services 
     to detained Americans overseas.
       For instance, when three Americans were detained after 
     accidentally crossing an unmarked border into Iran in 2009, a 
     State Department spokesperson insisted that ``Iran has 
     obligations under the Vienna Convention, and we demand 
     consular access at the first opportunity.'' The Secretary of 
     State later called on the Iranian government ``to live up to 
     its obligations under the Vienna Convention by granting 
     consular access and releasing these three young Americans 
     without further delay.'' Once consular access was finally 
     granted, the State Department ``welcome[d] the fact that Iran 
     is meeting up to its obligations under the Vienna 
     Convention''.
       Unfortunately, the United States has sometimes violated 
     Article 36 requirements even as we call on foreign 
     governments to comply with its terms. In 2004, the 
     International Court of Justice (ICJ) determined that some 
     fifty Mexican nationals were entitled to judicial hearings to 
     determine if Article 36 breaches, which were proven to have 
     occurred, affected the fairness of their capital murder 
     convictions and/or sentences. The United States is required 
     by the U.N. Charter to comply with decisions of the ICJ. 
     President George W. Bush attempted to enforce this decision 
     at the state court level, but the U.S. Supreme Court later 
     ruled in Medellin v. Texas that only Congress could ensure 
     compliance by adopting legislation providing for the 
     compulsory review and reconsideration mandated by the ICJ. 
     The Supreme Court also observed that the ICJ decision 
     undeniably bound the United States under international law 
     and that ``plainly compelling'' reasons existed for its 
     domestic implementation. ``In this case,'' the Medellin Court 
     noted, ``the President seeks to vindicate United States 
     interests in ensuring the reciprocal observance of the Vienna 
     Convention, protecting relations with foreign governments, 
     and demonstrating commitment to the role of international 
     law.''
       Clearly, the safety and well-being of Americans abroad is 
     endangered by the United States maintaining the double 
     standard of protesting denials of consular notification and 
     access to its own citizens while simultaneously failing to 
     comply with its obligation to remedy identical violations. We 
     cannot realistically expect other nations to continue to 
     comply with consular treaty commitments that we refuse to 
     uphold. For that reason alone, it is essential that Congress 
     act swiftly to provide the limited procedural remedy that 
     both our Executive and Judicial Branches have so clearly 
     indicated is in the national interest.
       As the Supreme Court pointed out, however, the United 
     States' interest in implementing these international 
     obligations goes beyond protecting the reciprocal rights and 
     safety of its overseas citizens. Our national security, 
     effective commercial and trade relations relating to our 
     prosperity and almost every matter of national interest, 
     large and small, is covered by reciprocal treaty obligations. 
     We risk jeopardizing these interests if we practice an 
     indifference to these obligations in this or other arenas. We 
     believe that continued non-compliance will surely alienate 
     this nation from its allies. We also believe that any further 
     failure to provide the modest remedy of ``review and 
     reconsideration'' required in these cases will undermine 
     America's credibility as a global champion of the rule of 
     law, thereby seriously hindering our foreign policy 
     objectives. It is worth noting the United States agreed to be 
     bound by the ICJ's decision both before and after the case 
     was heard and has consistently advised multiple international 
     and domestic courts that it is doing everything within its 
     power to comply with this decision. Passing legislation to 
     ensure our nation's compliance needs to be accomplished in 
     order to make good on this representation.
       The ability of the United States to secure future 
     international agreements vital to our commercial interests 
     and national security depends largely on whether this nation 
     is perceived as honoring its international obligations. It is 
     vitally important for Congress to mandate judicial 
     enforcement of America's treaty obligations. Anything less 
     jeopardizes our global reputation as a dependable treaty 
     partner. We therefore urge you to support the rapid passage 
     of the Consular Notification Compliance Act to accomplish 
     this end, and thank you for your attention to this important 
     matter.
           Sincerely,
       Harry Barnes, Jr., U.S. Ambassador to Chile, 1985-1988; 
     U.S. Ambassador to India, 1981-1985; Director General of the 
     Foreign Service 1977-1981; U.S. Ambassador to Romania, 1974-
     1977.
       John B. Bellinger, III, Partner, Arnold & Porter LLP; Legal 
     Advisor to the Department of State, 2005-2009; Legal Advisor 
     to the National Security Council, 2001-2005.
       David E. Birenbaum, of Counsel, Fried, Frank, Harris, 
     Shriver & Jacobson LLP; Senior Scholar, Woodrow Wilson 
     International Center for Scholars; U.S. Ambassador to the UN 
     for UN Management and Reform, 1994-96.
       James R. Jones, U.S. Ambassador to Mexico, 1993-1997; 
     Member of U.S. Congress (D-OK), 1973-1987.
       David Charles Miller, Jr., Special Assistant to the 
     President, National Security Council, 1989-1990; U.S. 
     Ambassador to Zimbabwe, 1984-1986; U.S. Ambassador to 
     Tanzania, 1981-1984.
       Thomas R. Pickering, Undersecretary of State for Political 
     Affairs, 1997-2000; U.S. Ambassador and Representative to the 
     United Nations, 1989-1992.
       William H. Taft, IV, Legal Advisor, U.S. Department of 
     State, 2001-2005; U.S. Ambassador to NATO, 1989-1992.
                                  ____

                                                     June 7, 2011.
     Governor Rick Perry,
     Office of the Governor, Austin, Texas.
     Texas Board of Pardons and Paroles,
     Austin, Texas.
       Dear Governor Perry and Members of the Texas Board of 
     Pardons and Paroles: As former prosecutors and judges, we are 
     strong supporters of a robust and accurate criminal justice 
     system. We are well aware that international consular 
     notification and access, as required under the Vienna 
     Convention on Consular Relations (Vienna Convention), is 
     essential to such a system, and to ensuring non-
     discriminatory treatment for both non-citizens in U.S. 
     custody and U.S. citizens in the custody of foreign 
     governments; and is also critical to the efficient, 
     effective, and fair operations of criminal justice systems 
     throughout the United States. In light of these important 
     considerations and out of concern for the domestic and 
     international implications of an execution without proper 
     compliance with U.S. international obligations, we are 
     writing to urge you to grant a reprieve in the case of 
     Humberto Leal Garcia. We take no position on the merits of 
     his petition, but believe that a reprieve should take place 
     pending congressional enactment of legislation that would 
     allow foreign nationals who were denied consular access while 
     in law enforcement custody and face the death penalty to 
     receive appropriate review of that failure.
       It is appropriate to ensure that our country complies with 
     the laws to which it has obligated itself, and to ensure that 
     those laws apply to our own citizens as well. At all stages 
     of the proceedings, foreign nationals--whether our own 
     citizens in other countries or those from other countries in 
     the United States--face unique disadvantages and challenges 
     when confronted with prosecution and imprisonment under the 
     legal system of another nation. Prompt consular access 
     ensures that they have the means necessary to be advised of 
     their rights and to prepare an adequate defense.
       Ensuring prompt consular access to foreigners arrested in 
     the United States also enhances the truth-seeking function 
     that lies

[[Page 9095]]

     at the heart of American justice. Much in the same way as the 
     right to counsel under the Sixth Amendment, consular 
     notification is essential to enabling fair access for those 
     who are unfamiliar with our legal system. As Chief Judge Juan 
     Torruella of the United States Court of Appeals for the First 
     Circuit observed, ``Without [consular access], I think that 
     we presume too much to think that an alien can present his 
     defense with even a minimum of effectiveness. The result is 
     injury not only to the individual alien, but also to the 
     equity and efficacy of our criminal justice system.'' U.S. v. 
     Li, 206 F.3d 56, 78 (1st Cir. 2000) (Torruella, C.J., 
     concurring in part and dissenting in part).
       Consular assistance provides a unique and indispensable 
     protection for foreign nationals who are unfamiliar with the 
     U.S. criminal justice system. This is true with regard to our 
     own citizens abroad as well. As many domestic courts have 
     recognized, consulates can provide essential resources that 
     are simply not available through other means, particularly in 
     identifying and explaining the ways in which the U.S. 
     criminal justice system differs from their native systems. 
     Early consular access can prevent misunderstandings and 
     missteps by a foreign national that might otherwise prejudice 
     their ability to obtain a fair trial. Consulates can assist 
     defense counsel in locating crucial documents, witnesses, and 
     exonerating evidence available only in their native country 
     and can assist in translations that in too many cases have 
     been demonstrated to be erroneous, thus jeopardizing the 
     accuracy of the proceedings. This can mean the difference 
     between conviction and acquittal, or between life and death.
       We want to emphasize that demonstrating our nation's 
     commitment to complying with Vienna Convention obligations is 
     also critical to ensuring the safety of Americans traveling, 
     living and working abroad. The United States expects 
     countries to grant consular notification and access to 
     Americans in law enforcement custody. In return, we pledge to 
     accord the same right to foreign nationals within our 
     borders. In addition, particularly in states bordering Mexico 
     and Canada, cooperation between law enforcement agencies is 
     critical to ensuring the safety of citizens on all sides of 
     the border. These accords are threatened when the United 
     States erects procedural hurdles that prevent foreign 
     nationals from obtaining meaningful judicial review when 
     denied consular notification and access and may well mean 
     that our own citizens' rights will be jeopardized in 
     countries whose citizens' rights have not been respected by 
     the United States.
       Providing meaningful enforcement of the Vienna Convention's 
     consular notification and access requirements will increase 
     the efficient, effective, and fair operations of our criminal 
     justice system and protect U.S. citizens abroad. Delaying the 
     execution of Humberto Leal Garcia to ensure full opportunity 
     for congressional action and appropriate review of the case 
     will demonstrate to foreign governments the United States' 
     good faith in upholding its consular access obligations, 
     increasing the likelihood that foreign governments will grant 
     access to Americans in their custody. For these reasons, we 
     strongly urge you to support a reprieve in this case pending 
     congressional action on these matters.
           Sincerely,
       Hon. Charles F. Baird, Former Judge, Texas Court of 
     Criminal Appeals; Former Judge, 299th District Court of 
     Travis County, Texas.
       Hon. William G. Bassler, Former Judge, United States 
     District Court for the District of New Jersey (1991-2006); 
     Former Judge, Superior Court of New Jersey (1988-1991).
       A. Bates Butler III, United States Attorney, District of 
     Arizona (1980-81); First Assistant United States Attorney, 
     District of Arizona (1977-80).
       Robert J. Del Tufo, Attorney General, State of New Jersey 
     (1990-1993); United States Attorney, District of New Jersey 
     (1977-1980); Former First Assistant State Attorney General 
     and Director of New Jersey's Division of Criminal Justice.
       W. Thomas Dillard, United States Attorney, Northern 
     District of Florida (1983-1986); United States Attorney, 
     Eastern District of Tennessee (1981).
       Hon. Bruce J. Einhorn, Former United States Immigration 
     Judge (1990-2007); Special Prosecutor and Chief of 
     Litigation, United States Department of Justice Office of 
     Special Investigations (1979-1990).
       Hon. Shirley M. Hufstedler, United States Secretary of 
     Education (1979-1981); Former Judge, United States Court of 
     Appeals for the Ninth Circuit (1968-1979); Former Associate 
     Justice, California Court of Appeal (1966-1968); Former 
     Judge, Los Angeles County Superior Court (1961-1966).
       Hon. John J. Gibbons, Former Judge, United States Court of 
     Appeals for the Third Circuit (1970-1990) (Chief Judge (1987-
     1990)).
       Hon. Nathaniel R. Jones, Former Judge, United States Court 
     of Appeals for the Sixth Circuit, (1979-2002); Assistant 
     United States Attorney, Northern District of Ohio (1962-
     1967).
       Hon. Gerald Kogan, Former Chief Justice, Supreme Court of 
     the State of Florida; Former Chief Prosecutor, Homicide and 
     Capital Crimes Division, Dade County, Florida.
       Kenneth J. Mighell, United States Attorney, Northern 
     District of Texas (1977-1981); Assistant United States 
     Attorney, Northern District of Texas (1961-1977).
       Hon. Stephen M. Orlofsky, Former Judge, United States 
     District Court for the District of New Jersey (1995-2003); 
     Magistrate Judge, United States District Court for the 
     District of New Jersey (1976-1980).
       Professor Mark Osler, Professor of Law, University of St. 
     Thomas, Minnesota; Former Professor of Law, Baylor 
     University, Texas; Former Assistant United States Attorney, 
     Eastern District of Michigan.
       H. James Pickerstein, United States Attorney, District of 
     Connecticut (1974); Chief Assistant United States Attorney, 
     District of Connecticut (1974-1986).
       James H. Reynolds, United States Attorney, Northern 
     District of Iowa (1976-1982).
       Hon. William S. Sessions, Director of the FBI (1987-1993); 
     Former Judge, United States District Court for the Western 
     District of Texas (1974-1987) (Chief Judge (1980-1987)); 
     United States Attorney, Western District of Texas (1971-
     1974).
       John Van de Kamp, Attorney General of California (1983-
     1991); District Attorney of Los Angeles County (1975-1983).
       Mark White, Governor of Texas (1983-1987); Attorney 
     General, State of Texas (1979-1983); Secretary of State of 
     Texas (1973-1977); Assistant Attorney General, State of Texas 
     (1965-1969).
       Hon. Michael Zimmerman, Former Justice, Supreme Court of 
     Utah (1984-2000) (Chief Justice (1994-1998)).
                                 ______
                                 
      By Mr. GRASSLEY (for himself, Mr. Sessions, Mr. Rubio, Mr. 
        Wicker, Mr. Boozman, Mr. Lee, Mr. Hatch, Mr. Vitter, Mr. 
        Coburn, and Mr. Corker):
  S. 1196. A bill to expand the use of E-Verify, to hold employers 
accountable, and for other purposes; to the Committee on the Judiciary.
  Mr. GRASSLEY. Mr. President, today, I am introducing legislation to 
expand the E-Verify program and enhance our ability to hold employers 
accountable for their hiring practices. I am pleased that several of my 
colleagues have joined me in cosponsoring this commonsense bill titled 
Accountability Through Electronic Verification Act.
  Known as the Basic Pilot Program, E-Verify currently provides 
employers with a simple, web-based tool to verify the work eligibility 
of new hires. In 1986, Congress made it unlawful for employers to 
knowingly hire or employ aliens not eligible to work in the United 
States. Under current law, if the documents provided by an employee 
reasonably appear on their face to be genuine, the employer has met its 
obligation to review the worker's documents.
  Unfortunately, since then, identity theft has soared and counterfeit 
documents have become a thriving industry. Because of this, Congress 
created the Basic Pilot Program in 1996. Employers in this program can 
electronically verify a new hires employment authorization with more 
than 455 million Social Security Administration records, more than 122 
million Department of State passport records, and more than 80 million 
Department of Homeland Security immigration records.
  This program is voluntary and free for all employers to use. In fact, 
it is currently used by 269,913 employers representing 903,358 hiring 
sites. More than 11.3 million queries have been made this year. During 
fiscal year 2010, more than 98.3 percent of those were verified almost 
instantly.
  Less than 1.7 percent of employees receive a tentative non-
confirmation, and must sort out their records with the Social Security 
Administration. Many times, it is a simple misunderstanding relating 
from a typo to neglecting to update records after a name change.
  With the program set to expire in a little over a year, I see the 
need to continue its use, without an expiration date. E-Verify is a 
proven tool in combatting illegal immigration. With the unemployment 
rate hovering around 9.1 percent, can we afford not to use every 
instrument available to ensure Americans and legal workers are the ones 
obtaining employment?
  My legislation would make E-Verify a staple in the workplace so that 
American workers are on a level playing field with cheaper labor. 
Should an employer refuse to participate, my bill increases the 
penalties currently used under the Immigration and Nationality Act. 
Employers would be required to

[[Page 9096]]

check the status of current employees within 3 years, and would allow 
employers to run a check prior to offering a job, saving that employer 
valuable time and resources. Employers will also be required to re-
check those workers whose authorization is about to expire, such as 
those who come to the United States on visas. These visas have 
expiration dates, and it is imperative we do not allow employers to 
aide in the overstaying of any alien.
  A commonsense fix that is also included would require the Social 
Security Administration to develop algorithm technology that would flag 
social security numbers that are being used more than once. You would 
think the Social Security Administration would already have this in 
place, but sadly they do not. This provision alone will save many from 
falling victim to identity theft.
  For those who do find themselves victim of identity theft, this bill 
would amend the criminal code to clarify identity fraud is punishable 
regardless if the defendant did not have knowledge of the victim. This 
provision stems from the 2009 Supreme Court decision holding that 
identity theft requires proof that an individual knew the number being 
used belonged to an actual person. This is a commonsense and long 
overdue provision. Anyone who has had their identity stolen by an 
illegal alien would agree. We need to strengthen our laws to deter the 
robust black market for fraudulent documents.
  Another provision in the bill, which I know will benefit many rural 
areas such as small towns in Iowa, would help those businesses without 
internet capabilities to participate in E-Verify. Requiring the U.S. 
Citizenship and Immigration Services to establish a demonstration 
project in these rural areas will greatly measure the needs of our 
rural employers and involve the small business community.
  Some may want to criticize the database used to check employees, but 
with continued enhancements, we are making great strides. For instance, 
just this past March, the Department of Homeland Security initiated the 
``Self Check'' program to allow workers in five States and the District 
of Columbia to self-check employment eligibility. One of my staffers 
used Self Check and received confirmation of work authorization almost 
instantly. The entire process took her less than 90 seconds.
  Another development is the recent launch to include U.S. passport 
photo matching capabilities. This further enhances the integrity of the 
program by enabling E-Verify to automatically check the validity and 
authenticity of all U.S. passports and passport cards presented for 
employment verification checks. E-Verify is supported by many. Most 
notably by DHS Secretary Janet Napolitano who has said, ``E-Verify is a 
smart, simple, and effective tool that allows us to work with employers 
to help them maintain a legal workforce.'' According to DHS, the ``E-
Verify program infrastructure is capable of handling the volume of 
queries that would be necessary for a nationwide mandatory employment 
verification system.'' DHS has been preparing for such an occasion, and 
I'm pleased to put forward my proposal today.
  For those who were here during the 2007 immigration debate, you may 
remember that I, Senator Baucus and then-Senator Obama worked very 
closely on the issue of employment verification. I have kept many of 
the principles agreed upon in 2007 and included them in this bill. With 
that said, I look forward to hearing from my colleagues with any ideas 
they may have to strengthen this system.
  While everyone may not agree with every aspect of this bill, it 
serves as a starting point for a much-needed conversation about illegal 
immigration and our struggling job market. People back home want 
employers to be held accountable. They want to see our government do 
more to make sure we are reducing the magnet for people to cross our 
borders illegally. I hope more colleagues will join me in my effort to 
achieve accountability through electronic verification.
                                 ______
                                 
      By Mr. HATCH (for himself, Mr. Baucus, Mr. Barrasso, Mr. Inhofe, 
        Mr. Vitter, Mr. Lugar, and Mr. Grassley):
  S.J. Res. 19. A joint resolution proposing an amendment to the 
Constitution of the United States authorizing Congress to prohibit the 
physical desecration of the flag of the United States; to the Committee 
on the Judiciary.
  Mr. HATCH. Mr. President, today is Flag Day and it is the perfect day 
to re-introduce a constitutional amendment that would allow Congress to 
protect the American flag from physical desecration. I am joined in 
doing so today by my friend, the distinguished Senator from Montana, 
Senator Baucus. He was an original cosponsor of this amendment on 6 
previous occasions when I have introduced it, including in the 109th 
Congress when this body came within one vote of approving it.
  The American flag is a unique symbol of our country, of its history, 
and of our shared values. There is, in fact, no more powerful unifying 
general symbol. At the same time, the flag no doubt means different 
specific things to different individuals; Congress cannot, and should 
not attempt to, dictate what Americans believe, think, or say about the 
flag and whatever it represents to individuals.
  That said, Congress should have authority to protect this unique 
symbol from at least physical desecration. The Supreme Court stripped 
even that authority from Congress in 1990 when it held that physical 
desecration is ``speech'' protected by the First Amendment. I believe 
the Court was wrong in that conclusion, but because the Court claimed 
to speak for the Constitution, the only way for Congress once again to 
have authority to protect the flag is by amending the Constitution.
  In his farewell address in 1796, President George Washington said 
that the very basis of our political system is the right of the people 
to make and to alter the Constitution. The Constitution belongs to the 
people, not to the Supreme Court. As a result, the American people must 
have the opportunity to decide whether their Constitution should allow 
Congress to protect the flag.
  The amendment we introduce today is as simple as it can be. It 
states: ``The Congress shall have power to prohibit the physical 
desecration of the flag of the United States.'' Unfortunately, 
simplicity does not prevent distortion, either by negligence or 
intention. Critics and some in the media have led many to believe that 
this amendment by itself bans flag desecration. It does not. In fact, 
should Congress propose and the states ratify this amendment, it might 
not result in any change in the law at all. That would be up to 
Congress and the people we represent to decide.
  The issue is that today Congress is today prohibited by the Supreme 
Court from passing laws that protect the flag even if 100 percent of 
the American people wanted those laws and the Congress was ready to 
enact them.
  The American people should be given the opportunity to decide whether 
they want their Constitution to allow their Congress to pass laws 
protecting the American flag. That is the way a representative 
democracy like ours should function. The Supreme Court distorted that 
process and this amendment will correct the Court's error. I urge my 
colleagues on both sides of the aisle, as many of you have done in the 
past, to support this amendment and to give this decision back to the 
American people.

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