[Congressional Record (Bound Edition), Volume 158 (2012), Part 10]
[Senate]
[Pages 13354-13364]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. LEAHY (for himself and Mr. Grassley):
  S. 3486. A bill to implement the provisions of the Hague Agreement 
and the Patent Law Treaty; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, I am pleased to introduce today legislation 
that will help American businesses and inventors by reducing obstacles 
for obtaining patent protection overseas. This bipartisan measure 
implements two patent law treaties that were signed under President 
Clinton and submitted for the Senate's advice and consent by President 
George W. Bush. The Senate voted to ratify the treaties in 2007 without 
a single Senator in dissent. With this implementing legislation, 
Congress will complete its work so that the treaties at last can be 
ratified and go into effect.
  Our patent system plays a key role in encouraging innovation and 
bringing new products to market. The discoveries made by American 
inventors and research institutions, commercialized by our companies, 
and protected and promoted by our patent laws, have made our system the 
envy of the world. But in this global economy, it is not enough to have 
an effective domestic patent system; we must also help American 
inventors and businesses to protect their inventions and thrive in 
markets around the world. Consistent with last year's landmark patent 
reform legislation, the Leahy-Smith America Invents Act, this 
legislation will benefit American inventors by implementing two 
measures to reduce application barriers around the world.
  The Hague Agreement Concerning International Registration of 
Industrial Designs provides a simplified application system for U.S. 
creators of industrial designs who, by filing a single standardized 
application for a design patent at the U.S. Patent and Trademark 
Office, can apply for design protection in each country that has 
ratified the Treaty. American design patent applicants who previously 
had to file separate applications in numerous countries may now file a 
single, English-language application at the U.S. Patent Office, 
reducing the costs and burdens of obtaining international protections. 
The U.S. Patent Office may also receive applications that have been 
filed internationally, but its substantive examination process remains 
unchanged. The standard for obtaining a design patent is not affected. 
By simplifying the process for American businesses to obtain design 
patents overseas, the Hague Agreement will reduce barriers for small 
and mid-size companies to expand into foreign markets.
  The Patent Law Treaty also streamlines the process for American 
businesses seeking patent protection overseas. It limits the 
formalities different countries can require in patent applications, 
which are often used to disadvantage American applications in foreign 
jurisdictions. American businesses and inventors will benefit from 
harmonized applications, reducing the cost of doing business and 
encouraging U.S. innovators to protect and export their products 
internationally.
  In June, Director Kappos of the U.S. Patent and Trademark Office 
testified before the Judiciary Committee about the important need for 
this implementing legislation, stating that the treaties are ``pro-
American innovation, pro-global innovation, pro-jobs, pro-
opportunity.'' I agree. I urge the Senate to act quickly on this final 
step so that the treaties can at last be ratified, and American 
innovators and businesses can benefit from them as U.S. products 
continue to thrive on the global stage.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3486

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Patent Law Treaties 
     Implementation Act of 2012''.

   TITLE I--HAGUE AGREEMENT CONCERNING INTERNATIONAL REGISTRATION OF 
                           INDUSTRIAL DESIGNS

     SEC. 101. THE HAGUE AGREEMENT CONCERNING INTERNATIONAL 
                   REGISTRATION OF INDUSTRIAL DESIGNS.

       (a) In General.--Title 35, United States Code, is amended 
     by adding at the end the following:

``PART V--THE HAGUE AGREEMENT CONCERNING INTERNATIONAL REGISTRATION OF 
                           INDUSTRIAL DESIGNS

``CHAPTER                                                          Sec.
``38. International design applications........................381.....

[[Page 13355]]



            ``CHAPTER 38--INTERNATIONAL DESIGN APPLICATIONS

``Sec.
``381. Definitions.
``382. Filing international design applications.
``383. International design application.
``384. Filing date.
``385. Effect of international design application.
``386. Right of priority.
``387. Relief from prescribed time limits.
``388. Withdrawn or abandoned international design application.
``389. Examination of international design application.
``390. Publication of international design application.

     ``Sec. 381. Definitions

       ``(a) In General.--When used in this part, unless the 
     context otherwise indicates--
       ``(1) the term `treaty' means the Geneva Act of the Hague 
     Agreement Concerning the International Registration of 
     Industrial Designs adopted at Geneva on July 2, 1999;
       ``(2) the term `regulations'--
       ``(A) when capitalized, means the Common Regulations under 
     the treaty; and
       ``(B) when not capitalized, means the regulations 
     established by the Director under this title;
       ``(3) the term `designation' means a request that an 
     international registration have effect in a Contracting Party 
     to the treaty;
       ``(4) the term `International Bureau' means the 
     international intergovernmental organization that is 
     recognized as the coordinating body under the treaty and the 
     Regulations;
       ``(5) the term `effective registration date' means the date 
     of international registration indicated by the International 
     Bureau under the treaty;
       ``(6) the term `international design application' means an 
     application for international registration; and
       ``(7) the term `international registration' means the 
     international registration of an industrial design filed 
     under the treaty.
       ``(b) Rule of Construction.--Terms and expressions not 
     defined in this part are to be taken in the sense indicated 
     by the treaty and the Regulations.

     ``Sec. 382. Filing international design applications

       ``(a) In General.--Any person who is a national of the 
     United States, or has a domicile, a habitual residence, or a 
     real and effective industrial or commercial establishment in 
     the United States, may file an international design 
     application by submitting to the Patent and Trademark Office 
     an application in such form, together with such fees, as may 
     be prescribed by the Director.
       ``(b) Required Action.--The Patent and Trademark Office 
     shall perform all acts connected with the discharge of its 
     duties under the treaty, including the collection of 
     international fees and transmittal thereof to the 
     International Bureau. Subject to chapter 17 of this title, 
     international design applications shall be forwarded by the 
     Patent and Trademark Office to the International Bureau, upon 
     payment of a transmittal fee.
       ``(c) Applicability of Chapter 16.--Except as otherwise 
     provided in this chapter, the provisions of chapter 16 of 
     this title shall apply.
       ``(d) Application Filed in Another Country.--An 
     international design application on an industrial design made 
     in this country shall be considered to constitute the filing 
     of an application in a foreign country within the meaning of 
     chapter 17 of this title if the international design 
     application is filed--
       ``(1) in a country other than the United States;
       ``(2) at the International Bureau; or
       ``(3) with an intergovernmental organization.

     ``Sec. 383. International design application

       ``In addition to any requirements pursuant to chapter 16 of 
     this title, the international design application shall 
     contain--
       ``(1) a request for international registration under the 
     treaty;
       ``(2) an indication of the designated Contracting Parties;
       ``(3) data concerning the applicant as prescribed in the 
     treaty and the Regulations;
       ``(4) copies of a reproduction or, at the choice of the 
     applicant, of several different reproductions of the 
     industrial design that is the subject of the international 
     application, presented in the number and manner prescribed in 
     the treaty and the Regulations;
       ``(5) an indication of the product or products which 
     constitute the industrial design or in relation to which the 
     industrial design is to be used, as prescribed in the treaty 
     and the Regulations;
       ``(6) the fees prescribed in the treaty and the 
     Regulations; and
       ``(7) any other particulars prescribed in the Regulations.

     ``Sec. 384. Filing date

       ``(a) In General.--Subject to subsection (b), the filing 
     date of an international design application in the United 
     States shall be the effective registration date. 
     Notwithstanding the provisions of this part, any 
     international design application designating the United 
     States that otherwise meets the requirements of chapter 16 of 
     this title may be treated as a design application under 
     chapter 16 of this title.
       ``(b) Review.--An applicant may request review by the 
     Director of the filing date of the international design 
     application in the United States. The Director may determine 
     that the filing date of the international design application 
     in the United States is a date other than the effective 
     registration date. The Director may establish procedures, 
     including the payment of a surcharge, to review the filing 
     date under this section. Such review may result in a 
     determination that the application has a filing date in the 
     United States other than the effective registration date.

     ``Sec. 385. Effect of international design application

       ``An international design application designating the 
     United States shall have the effect, for all purposes, from 
     its filing date determined in accordance with section 384 of 
     this part, of an application for patent filed in the Patent 
     and Trademark Office pursuant to chapter 16 of this title.

     ``Sec. 386. Right of priority

       ``(a) National Application.--In accordance with the 
     conditions and requirements of subsections (a) through (d) of 
     section 119 of this title and section 172 of this title, a 
     national application shall be entitled to the right of 
     priority based on a prior international design application 
     which designated at least one country other than the United 
     States.
       ``(b) Prior Foreign Application.--In accordance with the 
     conditions and requirements of subsections (a) through (d) of 
     section 119 of this title and section 172 of this title and 
     the treaty and the Regulations, an international design 
     application designating the United States shall be entitled 
     to the right of priority based on a prior foreign 
     application, a prior international application as defined in 
     section 351(c) of this title designating at least one country 
     other than the United States, or a prior international design 
     application designating at least one country other than the 
     United States.
       ``(c) Prior National Application.--In accordance with the 
     conditions and requirements of section 120 of this title, an 
     international design application designating the United 
     States shall be entitled to the benefit of the filing date of 
     a prior national application, a prior international 
     application as defined in section 351(c) of this title 
     designating the United States, or a prior international 
     design application designating the United States, and a 
     national application shall be entitled to the benefit of the 
     filing date of a prior international design application 
     designating the United States. If any claim for the benefit 
     of an earlier filing date is based on a prior international 
     application as defined in section 351(c) of this title which 
     designated but did not originate in the United States or a 
     prior international design application which designated but 
     did not originate in the United States, the Director may 
     require the filing in the Patent and Trademark Office of a 
     certified copy of such application together with a 
     translation thereof into the English language, if it was 
     filed in another language.

     ``Sec. 387. Relief from prescribed time limits

       ``An applicant's failure to act within prescribed time 
     limits in connection with requirements pertaining to an 
     international design application may be excused as to the 
     United States upon a showing satisfactory to the Director of 
     unintentional delay and under such conditions, including a 
     requirement for payment of the fee specified in section 
     41(a)(7) of this title, as may be prescribed by the Director.

     ``Sec. 388. Withdrawn or abandoned international design 
       application

       ``Subject to sections 384 and 387 of this part, if an 
     international design application designating the United 
     States is withdrawn, renounced or canceled or considered 
     withdrawn or abandoned, either generally or as to the United 
     States, under the conditions of the treaty and the 
     Regulations, the designation of the United States shall have 
     no effect after the date of withdrawal, renunciation, 
     cancellation, or abandonment and shall be considered as not 
     having been made, unless a claim for benefit of a prior 
     filing date under section 386(c) of this part was made in a 
     national application, or an international design application 
     designating the United States, or a claim for benefit under 
     section 365(c) was made in an international application 
     designating the United States, filed before the date of such 
     withdrawal, renunciation, cancellation, or abandonment. 
     However, such withdrawn, renounced, canceled, or abandoned 
     international design application may serve as the basis for a 
     claim of priority under subsections (a) and (b) of section 
     386, or under subsection (a) or (b) of section 365, if it 
     designated a country other than the United States.

     ``Sec. 389. Examination of international design application

       ``(a) In General.--The Director shall cause an examination 
     pursuant to this title of an international design application 
     designating the United States.
       ``(b) Applicability of Chapter 16.--All questions of 
     substance, and, unless otherwise required by the treaty and 
     Regulations, procedures regarding an international design 
     application designating the United States

[[Page 13356]]

     shall be determined as in the case of applications filed 
     under chapter 16 of this title.
       ``(c) Fees.--The Director may prescribe fees for filing 
     international design applications, for designating the United 
     States, and for any other processing, services, or materials 
     relating to international design applications, and may 
     provide for later payment of such fees, including surcharges 
     for later submission of fees.
       ``(d) Issuance of Patent.--The Director may issue a patent 
     based on an international design application designating the 
     United States, in accordance with the provisions of this 
     title. Such patent shall have the force and effect of a 
     patent issued on an application filed under chapter 16 of 
     this title.

     ``Sec. 390. Publication of international design application

       ``The publication under the treaty defined in section 
     381(a)(1) of an international design application designating 
     the United States shall be deemed a publication under section 
     122(b).''.
       (b) Conforming Amendment.--The table of parts at the 
     beginning of title 35, United States Code, is amended by 
     adding at the end the following:

``V. The Hague Agreement concerning international registration of 
    industrial designs.......................................401''.....

     SEC. 102. CONFORMING AMENDMENTS.

       Title 35, United States Code, is amended--
       (1) in section 100(i)(1)(B), by striking ``right of 
     priority under section 119, 365(a), or 365(b) or to the 
     benefit of an earlier filing date under section 120, 121, or 
     365(c)'' and inserting ``right of priority under section 119, 
     365(a), 365(b), 386(a), or 386(b) or to the benefit of an 
     earlier filing date under section 120, 121, 365(c), or 
     386(c)'';
       (2) in section 102(d)(2), by striking ``to claim a right of 
     priority under section 119, 365(a), or 365(b), or to claim 
     the benefit of an earlier filing date under section 120, 121, 
     or 365(c)'' and inserting ``to claim a right of priority 
     under section 119, 365(a), 365(b), 386(a), or 386(b), or to 
     claim the benefit of an earlier filing date under section 
     120, 121, 365(c), or 386(c)'';
       (3) in section 111(b)(7)--
       (A) by striking ``section 119 or 365(a)'' and inserting 
     ``section 119, 365(a), or 386(a)''; and
       (B) by striking ``section 120, 121, or 365(c)'' and 
     inserting ``section 120, 121, 365(c), or 386(c)'';
       (4) in section 115(g)(1), by striking ``section 120, 121, 
     or 365(c)'' and inserting ``section 120, 121, 365(c), or 
     386(c)'';
       (5) in section 120, in the first sentence, by striking 
     ``section 363'' and inserting ``section 363 or 385'';
       (6) in section 154--
       (A) in subsection (a)--
       (i) in paragraph (2), by striking ``section 120, 121, or 
     365(c)'' and inserting ``section 120, 121, 365(c), or 
     386(c)''; and
       (ii) in paragraph (3), by striking ``section 119, 365(a), 
     or 365(b)'' and inserting ``section 119, 365(a), 365(b), 
     386(a), or 386(b)''; and
       (B) in subsection (d)(1), by inserting ``or an 
     international design application filed under the treaty 
     defined in section 381(a)(1) designating the United States 
     under Article 5 of such treaty'' after ``Article 21(2)(a) of 
     such treaty'';
       (7) in section 173, by striking ``fourteen years'' and 
     inserting ``15 years'';
       (8) in section 365(c)--
       (A) in the first sentence, by striking ``or a prior 
     international application designating the United States'' and 
     inserting ``, a prior international application designating 
     the United States, or a prior international design 
     application as defined in section 381(a)(6) of this title 
     designating the United States''; and
       (B) in the second sentence, by inserting ``or a prior 
     international design application as defined in section 
     381(a)(6) of this title which designated but did not 
     originate in the United States'' after ``did not originate in 
     the United States''; and
       (9) in section 366--
       (A) in the first sentence, by striking ``unless a claim'' 
     and all that follows through ``withdrawl.'' and inserting 
     ``unless a claim for benefit of a prior filing date under 
     section 365(c) of this section was made in a national 
     application, or an international application designating the 
     United States, or a claim for benefit under section 386(c) 
     was made in an international design application designating 
     the United States, filed before the date of such 
     withdrawal.''; and
       (B) by striking the second sentence and inserting the 
     following: ``However, such withdrawn international 
     application may serve as the basis for a claim of priority 
     under section 365 (a) and (b) of this part, or under section 
     386 (a) or (b), if it designated a country other than the 
     United States.''.

     SEC. 103. EFFECTIVE DATE.

       (a) In General.--The amendments made by this title shall be 
     effective on the later of--
       (1) the date that is 1 year after the date of enactment of 
     this Act, or
       (2) the date of entry into force of the treaty, as defined 
     in section 381 of title 35, as amended by this Act, with 
     respect to the United States.
       (b) Applicability of Amendments.--
       (1) In general.--Subject to paragraph (2), the amendments 
     made by this title shall apply only to international design 
     applications, international applications as defined in 
     section 351(c) of title 35, United States Code, and national 
     applications filed on and after the effective date set forth 
     in subsection (a), and patents issuing thereon.
       (2) Exception.--Sections 100(i) and 102(d) of title 35, 
     United States Code, as amended by this title, shall not apply 
     to an application, or any patent issuing thereon, unless it 
     is described in section 3(n)(1) of the Leahy-Smith America 
     Invents Act (35 U.S.C. 100 note).

               TITLE II--PATENT LAW TREATY IMPLEMENTATION

     SEC. 201. PROVISIONS TO IMPLEMENT THE PATENT LAW TREATY.

       (a) Application Filing Date.--Section 111 of title 35, 
     United States Code, is amended--
       (1) in subsection (a), by striking paragraphs (3) and (4) 
     and inserting the following:
       ``(3) Fee, oath or declaration, and claims.--The 
     application shall be accompanied by the fee required by law. 
     The fee, oath or declaration, and 1 or more claims may be 
     submitted after the filing date of the application, within 
     such period and under such conditions, including the payment 
     of a surcharge, as may be prescribed by the Director. Upon 
     failure to submit the fee, oath or declaration, and 1 or more 
     claims within such prescribed period, the application shall 
     be regarded as abandoned.
       ``(4) Filing date.--The filing date of an application shall 
     be the date on which a specification, with or without claims, 
     is received in the United States Patent and Trademark 
     Office.'';
       (2) in subsection (b), by striking paragraphs (3) and (4) 
     and inserting the following:
       ``(3) Fee.--The application shall be accompanied by the fee 
     required by law. The fee may be submitted after the filing 
     date of the application, within such period and under such 
     conditions, including the payment of a surcharge, as may be 
     prescribed by the Director. Upon failure to submit the fee 
     within such prescribed period, the application shall be 
     regarded as abandoned.
       ``(4) Filing date.--The filing date of a provisional 
     application shall be the date on which a specification, with 
     or without claims, is received in the United States Patent 
     and Trademark Office.''; and
       (3) by adding at the end the following:
       ``(c) Prior Filed Application.--The Director may prescribe 
     the conditions, including the payment of a surcharge, under 
     which a reference made upon the filing of an application 
     under subsection (a) to a previously filed application, 
     specifying the previously filed application by application 
     number and the intellectual property authority or country in 
     which the application was filed, shall constitute the 
     specification and any drawings of the subsequent application 
     for purposes of a filing date. A copy of the specification 
     and any drawings of the previously filed application shall be 
     submitted within such period and under such conditions as may 
     be prescribed by the Director. A failure to submit the copy 
     of the specification and any drawings of the previously filed 
     application within the prescribed period shall result in 
     application being regarded as abandoned and treated as having 
     never been filed.''.
       (b) Relief in Respect of Time Limits and Reinstatement of 
     Rights.--
       (1) In general.--Chapter 2 of title 35, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 27. Revival of applications; reinstatement of 
       reexamination proceedings

       ``(a) In General.--The Director may establish procedures, 
     including the requirement for payment of the fee specified in 
     section 41(a)(7), to revive an unintentionally abandoned 
     application for patent, accept an unintentionally delayed 
     payment of the fee for issuing each patent, or accept an 
     unintentionally delayed response by the patent owner in a 
     reexamination proceeding, upon petition by the applicant for 
     patent or patent owner.''.
       (2) Technical and conforming amendment.--The table of 
     sections for chapter 2 of title 35, United States Code, is 
     amended by adding at the end the following:

``27. Revival of applications; reinstatement of reexamination 
              proceedings.''.

       (c) Restoration of Priority Right.--Title 35, United States 
     Code, is amended--
       (1) in section 119--
       (A) in subsection (a), by adding at the end the following: 
     ``The Director may prescribe regulations, including the 
     requirement for payment of the fee specified in section 
     41(a)(7), pursuant to which the 12-month period set forth in 
     this subsection may be extended by an additional 2 months if 
     the delay in filing the application in this country within 
     the 12-month period was unintentional.''; and
       (B) in subsection (e)--
       (i) in paragraph (1)--

       (I) by inserting after the first sentence the following: 
     ``The Director may prescribe regulations, including the 
     requirement for payment of the fee specified in section 
     41(a)(7), pursuant to which the 12-month period set forth in 
     this subsection may be extended by an additional 2 months if 
     the delay in filing the application under section 111(a) or 
     section 363 within the 12-month period was unintentional.''; 
     and
       (II) in the last sentence--

       (aa) by striking ``including the payment of a surcharge'' 
     and inserting ``including the

[[Page 13357]]

     payment of the fee specified in section 41(a)(7)''; and
       (bb) by striking ``during the pendency of the 
     application''; and
       (ii) in paragraph (3), by adding at the end the following: 
     ``For an application for patent filed under section 363 in a 
     foreign Receiving Office, the 12-month and additional 2 month 
     period set forth in this subsection shall be extended as 
     provided under the treaty and Regulations as defined in 
     section 351.''; and
       (2) in section 365(b), by adding at the end the following: 
     ``The Director may establish procedures, including the 
     requirement for payment of the fee specified in section 
     41(a)(7), to accept an unintentionally delayed claim for 
     priority under the treaty and the Regulations, and to accept 
     a priority claim where such priority claim pertains to an 
     application that was not filed within the priority period 
     specified in the treaty and Regulations, but was filed within 
     the additional 2-month period specified under section 119(a) 
     or the treaty and Regulations.''.
       (d) Recordation of Ownership Interests.--Section 261 of 
     title 35, United States Code, is amended--
       (1) in the first undesignated paragraph by adding at the 
     end the following: ``The Patent and Trademark Office shall 
     maintain a register of interests in applications for patents 
     and patents and shall record any document related thereto 
     upon request, and may require a fee therefor.''; and
       (2) in the fourth undesignated paragraph by striking ``An 
     assignment'' and inserting ``An interest that constitutes an 
     assignment''.

     SEC. 202. CONFORMING AMENDMENTS.

       (a) In General.--Section 171 of title 35, United States 
     Code, is amended by adding at the end the following:
       ``The filing date of an application for patent for design 
     shall be the date on which the specification as prescribed by 
     section 112 and any required drawings are filed.''.
       (b) Relief in Respect of Time Limits and Reinstatement of 
     Right.--Title 35, United States Code, is amended--
       (1) in section 41--
       (A) in subsection (a), by striking subsection (7) and 
     inserting the following:
       ``(7) Revival fees.--On filing each petition for the 
     revival of an abandoned application for a patent, for the 
     delayed payment of the fee for issuing each patent, for the 
     delayed response by the patent owner in any reexamination 
     proceeding, for the delayed payment of the fee for 
     maintaining a patent in force, for the delayed submission of 
     a priority or benefit claim, or for the extension of the 12-
     month period for filing a subsequent application, $1,700.00. 
     The Director may refund any part of the fee specified in this 
     paragraph, in exceptional circumstances as determined by the 
     Director''; and
       (B) in subsection (c), by striking paragraph (1) and 
     inserting the following:
       ``(1) Acceptance.--The Director may accept the payment of 
     any maintenance fee required by subsection (b) after the 6-
     month grace period if the delay is shown to the satisfaction 
     of the Director to have been unintentional. The Director may 
     require the payment of the fee specified in paragraph (a)(7) 
     as a condition of accepting payment of any maintenance fee 
     after the 6-month grace period. If the Director accepts 
     payment of a maintenance fee after the 6-month grace period, 
     the patent shall be considered as not having expired at the 
     end of the grace period.'';
       (2) in section 119(b)(2), in the second sentence, by 
     striking ``including the payment of a surcharge'' and 
     inserting ``including the requirement for payment of the fee 
     specified in section 41(a)(7)'';
       (3) in section 120, in the fourth sentence, by striking 
     ``including the payment of a surcharge'' and inserting 
     ``including the requirement for payment of the fee specified 
     in section 41(a)(7)'';
       (4) in section 122(b)(2)(B)(iii), in the second sentence, 
     by striking ``, unless it is shown'' and all that follows 
     through ``unintentional'';
       (5) in section 133, by striking ``, unless it be shown'' 
     and all that follows through ``unavoidable'';
       (6) by striking section 151 and inserting the following:

     ``Sec. 151. Issue of patent

       ``If it appears that applicant is entitled to a patent 
     under the law, a written notice of allowance of the 
     application shall be given or mailed to the applicant. The 
     notice shall specify a sum, constituting the issue fee and 
     any required publication fee, which shall be paid within 3 
     months thereafter.
       ``Upon payment of this sum the patent may issue, but if 
     payment is not timely made, the application shall be regarded 
     as abandoned.'';
       (7) in section 361, by striking subsection (c) and 
     inserting the following:
       ``(c) International applications filed in the Patent and 
     Trademark Office shall be filed in the English language, or 
     an English translation shall be filed within such later time 
     as may be fixed by the Director.'';
       (8) in section 364, by striking subsection (b) and 
     inserting the following:
       ``(b) An applicant's failure to act within prescribed time 
     limits in connection with requirements pertaining to an 
     international application may be excused as provided in the 
     treaty and the Regulations.''; and
       (9) in section 371(d), in the third sentence, by striking 
     ``, unless it be shown to the satisfaction of the Director 
     that such failure to comply was unavoidable''.

     SEC. 203. EFFECTIVE DATE.

       (a) In General.--Except as provided in subsection (b), the 
     amendments made by this title shall be effective on the date 
     that is 1 year after the date of enactment of this Act and 
     shall apply to all patents and to all applications for patent 
     pending on or filed after the date that is 1 year after the 
     date of enactment of this Act.
       (b) Exceptions.--
       (1) Section 201(a).--The amendments made by section 201(a) 
     shall apply only to applications filed on or after the date 
     that is 1 year after the date of enactment of this Act.
       (2) Patent that is subject of litigation.--The amendments 
     made by this title shall have no effect with respect to any 
     patent that is the subject of litigation in an action 
     commenced before the date that is 1 year after the date of 
     enactment of this Act.
                                 ______
                                 
      By Mr. KYL:
  S. 3493. A bill to protect first amendment rights of journalists and 
internet service providers by preventing States and the United States 
from allowing meritless lawsuits arising from acts in furtherance of 
those rights, commonly called ``Strategic Lawsuits Against Public 
Participation'' or ``SLAPPs'', and for other purposes; to the Committee 
on the Judiciary.
  Mr. KYL. Mr. President, I rise today to introduce the Free Press Act. 
The FPA would create a Federal anti-SLAPP statute for journalists, 
bloggers, and other news media, authorizing them to bring a special 
motion to dismiss lawsuits brought against them that arise out of their 
speech on public issues. Once the special motion to dismiss is brought, 
the nonmoving party must present a prima facie case supporting the 
lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and 
fees and costs are awarded to the movant.
  Anti-SLAPP laws effectively make it impossible for frivolous or 
marginal libel lawsuits arising out of protected speech to advance 
beyond an initial stage of litigation. Such laws thereby protect 
journalists and bloggers from the financial impact of defending against 
such suits. Approximately 30 States have anti-SLAPP laws, though their 
coverage varies. There is no federal law. The FPA would create a 
federal anti-SLAPP law, and allow parties to remove some state SLAPP 
claims to Federal court.
  At the conclusion of my remarks today, I will submit for the record a 
section-by-section summary of the FPA. I will first, however, comment 
on several features of the bill, including the meaning of some of the 
language that is used, and Congress' authority to enact such 
legislation.
  The FPA's special motion to dismiss requires the plaintiff to present 
``prima facie evidence'' supporting his cause of action. The standard 
definition of ``prima facie evidence,'' which is employed by the FPA, 
is that given by Justice Story in his opinion for the court in Kelly v. 
Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a 
fact? It is such as, in judgment of law, is sufficient to establish a 
fact; and, if not rebutted, remains sufficient for that purpose.'' For 
similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, 
quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 
978, D.C. Cir. 1945, which notes ``Justice Story's often quoted 
definition of prima facie evidence.''
  This definition is also employed by Black's Law Dictionary, which 
defines ``prima facie evidence'' as:

       Such evidence as, in the judgment of the law, is sufficient 
     to establish a given fact and which if not rebutted or 
     contradicted, will remain sufficient. [Prima facie evidence], 
     if unexplained or uncontradicted, is sufficient to sustain a 
     judgment in favor of the issue which it supports, but [it] 
     may be contradicted by other evidence.

  In a recent concurring and dissenting opinion, Justice Scalia went so 
far as to describe this definition of ``prima facie evidence'' as 
``canonical.'' He also stated:

       The established meaning in Virginia, then, of the term 
     ``prima facie evidence'' appears to be perfectly orthodox: It 
     is evidence that suffices, on its own, to establish a 
     particular fact. But it is hornbook law that this is true 
     only to the extent that the evidence goes unrebutted. ``Prima 
     facie evidence of a fact

[[Page 13358]]

     is such evidence as, in judgment of law, is sufficient to 
     establish the fact; and, if not rebutted, remains sufficient 
     for the purpose.'' 7B Michie's Jurisprudence of Virginia and 
     West Virginia Sec.  32, 1998, (emphasis added).

  Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring 
in part, concurring in judgment in part, and dissenting in part.
  Other Federal courts continue to use this definition of ``prima facie 
evidence:''

       ``A prima facie showing simply means evidence of such 
     nature as is sufficient to establish a fact and which, if 
     unrebutted, remains sufficient for that purpose.'' Cumulus 
     Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d 
     1167, 1176 n.13, 11th Cir. 2002.
       ``Under [the prima facie evidence] standard, it is 
     plaintiff's burden to demonstrate the existence of every fact 
     required to satisfy both the forum's long-arm statute and the 
     Due Process Clause of the Constitution. The prima facie 
     showing must be based upon evidence of specific facts set 
     forth in the record. To meet this requirement, the plaintiff 
     must go beyond the pleadings and make affirmative proof. 
     However, in evaluating whether the prima facie standard has 
     been satisfied, the district court is not acting as a 
     factfinder; rather, it accepts properly supported proffers of 
     evidence by a plaintiff as true and makes its ruling as a 
     matter of law. When the district court employs the prima 
     facie standard appellate review is de novo.'' United States 
     v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir. 
     2001, citations and quotations omitted.
       ``Prima facie evidence consists of specific factual 
     information which, in the absence of rebuttal, is sufficient 
     to show that a fairness doctrine violation exists. * * * * In 
     general terms, prima facie evidence is evidence which is 
     sufficient in law to sustain a finding in favor of a claim, 
     but which may be contradicted.'' American Security Council 
     Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24, 
     D.C. Cir. 1979.
       ``A prima facie case is established by evidence adduced by 
     the plaintiff in support of his case up to the time such 
     evidence stands unexplained and uncontradicted. The words 
     `prima facie,' when used to describe evidence, ex vi termini 
     imply that such evidence may be rebutted by competent 
     testimony. The term prima facie evidence' implies evidence 
     which may be rebutted and overcome, and simply means that in 
     the absence of explanatory or contradictory evidence the 
     finding shall be in accordance with the proof establishing 
     the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282, 
     289-90, 7th Cir. 1949, citations and quotations omitted.
       ``The term prima facie evidence means * * * * [e]vidence 
     good and sufficient on its face; such evidence as, in the 
     judgment of the law, is sufficient to establish a given fact, 
     or the group or chain of facts constituting the party's claim 
     or defense, and which if not rebutted or contradicted, will 
     remain sufficient. Prima facie evidence is evidence which, if 
     unexplained or uncontradicted, is sufficient to sustain a 
     judgment in favor of the issue which it supports, but which 
     may be contradicted by other evidence.''' Gibson v. Zant, 547 
     F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law 
     Dictionary, 5th Edition.
       `Prima facie evidence' is evidence which, if unrebutted or 
     unexplained, is sufficient to establish the fact to which it 
     is related. It proves the fact until other proof contradicts 
     or overcomes the factual hypothesis initially set up by the 
     presumption.'' DAL Int'l Trading Co. v. The SS Milton J. 
     Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959.

  The FPA makes its special motion to dismiss available in cases 
arising out of speech on matters of public concern. It bears emphasis 
that ``matters of public concern'' include commentary on consumer 
products. As the Pennsylvania intermediate court of appeals recently 
noted, in American Future Systems, Inc. v. Better Business Bureau of 
Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a 
``statement regarding the effectiveness of a consumer product addresses 
a matter of public concern.'' Similarly, the U.S. Court of Appeals for 
the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th 
Cir. 1990, concluded that ``statements about product effectiveness'' 
address matters of public concern. And the Second Circuit, in Flamm v. 
American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, 
has held that a negative evaluation of an attorney's services, directed 
to potential customers, addresses a matter of public concern.
  The following quotation from a New Jersey Supreme Court opinion, 
citing other courts' decisions, illustrates the breadth of support for 
the proposition that commentary on products or services offered to 
consumers is a matter of public concern. That court noted, in Dairy 
Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 
516 A.2d 220, 230, 1986, that:

       Some courts have developed criteria for determining whether 
     the activities and products of corporations constitute 
     matters of public interest. As previously indicated, matters 
     of public interest include such essentials of life as food 
     and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623 
     F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc., 
     supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American 
     Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863. 
     Widespread effects of a product are yet another indicator 
     that statements about the product are in the public interest. 
     Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th 
     Cir.1971) (possible causes of cancer are a matter of public 
     concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp. 
     at 156, article on an arthritis cure is in public interest 
     because significant portion of population is afflicted with 
     arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet 
     Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90, 
     1974, flammability of 25,000 baby cribs held to be matter of 
     public interest; Krebiozen Research Found. v. Beacon Press, 
     Inc., 334 Mass. 86,
     ----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct. 
     65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter 
     of public concern. Still another criterion is substantial 
     government regulation of business activities and products.

  The FPA thus protects speech consisting of consumer commentary that 
focuses solely on the quality, reliability, or effectiveness of a 
consumer product, regardless of whether such commentary addresses 
broader social issues. The quality of goods and services offered to the 
public is itself a matter of public concern. The FPA protects the 
dissemination of any information about a product that would be of 
interest to potential consumers.
  Finally, the FPA allows removal to Federal court to be sought by a 
defendant. Although current law only allows removal when the Federal 
question appears on the face of a well-pleaded complaint, this rule is 
only statutory. Congress is well within its power to allow removal of 
cases that raise a colorable Federal defense.
  Two current Federal statutes clearly allow removal by defendants 
based only on the assertion of a Federal defense. One is 28 U.S.C. 
Sec.  1442(a), which allows Federal officers, among others, to remove a 
state civil action or prosecution to federal court. The other is 9 
U.S.C. Sec.  205, which allows removal of disputes that appear to be 
covered by an international arbitration agreement.
  Although such a limitation is not stated on the face of section 1442, 
the Supreme Court has long held that ``federal officer removal must be 
predicated on the allegation of a colorable federal defense.'' Mesa v. 
California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which 
notes that ``an unbroken line of this Court's decisions extending back 
nearly a century and a quarter have understood all the various 
incarnations of the federal officer removal statute to require the 
averment of a federal defense.''
  The most recent Supreme Court pronouncements confirm that ``Article 
III `arising under' jurisdiction is broader than federal question 
jurisdiction under Sec.  1331,'' Verlinden B.V. v. Central Bank of 
Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal-
question jurisdiction ``has been construed as permitting Congress to 
extend federal jurisdiction to any case of which federal law 
potentially forms an ingredient,'' Franchise Tax Board v. Construction 
Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of 
the United States, 9 What. 738, 823 (1824)).
  In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme 
Court also noted that

       ``[t]he judicial power * * * * was not to be exercised 
     exclusively for the benefit of parties who might be 
     plaintiffs, and would elect the national forum, but also for 
     the protection of defendants who might be entitled to try 
     their rights, or assert their privileges, in the same 
     forum,'' and further noting that ``we are referred to the 
     power which it is admitted congress possess to remove suits 
     from state courts to the national courts.''

  The Federal-defense-based removal authorized by the FPA is thus well 
within Congress's constitutional authority.
  Mr. President, I ask unanimous consent that the text of the bill and 
a section-by-section summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

[[Page 13359]]



                                S. 3493

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Free Press Act of 2012''.

     SEC. 2. SPECIAL MOTION TO DISMISS.

       Part VI of title 28, United States Code, is amended by 
     adding at the end the following:

                ``CHAPTER 182--SPECIAL MOTION TO DISMISS

``Sec.
``4201. Special motion to dismiss.
``4202. Stay of discovery.
``4203. Exceptions for governmental litigation and commercial speech.
``4204. Interlocutory appeal.
``4205. Special motion to quash.
``4206. Removal.
``4207. Fees, costs, and sanctions.

     ``Sec. 4201. Special motion to dismiss

       ``(a) In General.--A representative of the news media (as 
     defined in section 552(a)(4) of title 5) may file a special 
     motion to dismiss any claim asserted against the 
     representative of the news media in a civil action if the 
     claim arises in whole or in part from an oral or written 
     statement or other expression that is on a matter of public 
     concern or that relates to a public official or figure.
       ``(b) Time Limit.--Unless the court grants an extension, a 
     special motion to dismiss under this section shall be filed--
       ``(1) not later than 45 days after the date of service of 
     the claim, if the claim is filed in Federal court; or
       ``(2) not later than 30 days after the date of removal, if 
     the claim is removed to Federal court under section 4206.
       ``(c) Amendments.--If a special motion to dismiss is filed 
     under this section as to a claim, the claim may not be 
     amended or supplemented until a final and unappealable order 
     is entered denying the special motion to dismiss.
       ``(d) Burdens of Proof.--
       ``(1) Moving party.--A representative of the news media 
     filing a special motion to dismiss under this section as to a 
     claim shall have the burden of making a prima facie showing 
     that the claim is a claim described in subsection (a).
       ``(2) Nonmoving party.--If the movant meets the burden 
     described in paragraph (1) for a claim, the party asserting 
     the claim shall bear the burden of proving that the claim 
     is--
       ``(A) legally sufficient; and
       ``(B) supported by a prima facie showing, based on 
     admissible evidence, of facts sufficient to sustain a 
     favorable judgment.
       ``(3) Failure to meet burden.--If the nonmoving party fails 
     to meet the burden required for a claim under paragraph (2), 
     the claim shall be dismissed with prejudice.

     ``Sec. 4202. Stay of discovery

       ``(a) In General.--Except as provided in subsection (b), 
     upon the filing of a special motion to dismiss under section 
     4201, discovery proceedings in the action shall be stayed 
     until a final and unappealable order is entered on the 
     special motion to dismiss.
       ``(b) Limitation and Exception.--
       ``(1) Limitation.--A stay issued under subsection (a) based 
     on the filing of a special motion to dismiss that only seeks 
     dismissal of a third-party claim or a cross claim asserted by 
     a defendant shall only stay discovery that--
       ``(A) is requested by the party asserting the third-party 
     claim or cross claim; or
       ``(B) relates solely to the third-party claim or cross 
     claim.
       ``(2) Exception.--Upon motion and for good cause shown, a 
     court may order that specified discovery be conducted.

     ``Sec. 4203. Exceptions for governmental litigation and 
       commercial speech

       ``A special motion to dismiss under section 4201 may not be 
     filed as to a claim that--
       ``(1) is brought by the Federal Government or the attorney 
     general of a State; or
       ``(2) arises out of a statement offering or promoting the 
     sale of the goods or services of the person making the 
     statement.

     ``Sec. 4204. Interlocutory appeal

       ``An aggrieved party may take an immediate interlocutory 
     appeal from an order granting or denying in whole or in part 
     a special motion to dismiss under section 4201.

     ``Sec. 4205. Special motion to quash

       ``(a) In General.--A person whose personally identifying 
     information is sought in connection with a claim that arises 
     in whole or in part from an oral or written statement or 
     other expression that is on a matter of public concern or 
     that relates to a public official or figure, or a person from 
     whom such information is sought in connection with such a 
     claim, may file a special motion to quash the request or 
     order to produce the information.
       ``(b) Burdens of Proof.--
       ``(1) Moving party.--A person filing a special motion to 
     quash a request or order under this section shall have the 
     burden of making a prima facie showing that the request or 
     order is a request or order described in subsection (a).
       ``(2) Nonmoving party.--If the movant meets the burden 
     described in paragraph (1), the party who made the request or 
     sought the order shall bear the burden of showing that the 
     claim described in subsection (a) is--
       ``(A) legally sufficient; and
       ``(B) supported by a prima facie showing, based on 
     admissible evidence, of facts sufficient to sustain a 
     favorable judgment.
       ``(3) Failure to meet burden.--If the nonmoving party fails 
     to meet the burden required for a claim under paragraph (2), 
     the request or order to produce the personally identifying 
     information shall be quashed.

     ``Sec. 4206. Removal

       ``(a) Special Motion To Dismiss.--
       ``(1) In general.--Except as provided in paragraph (2), a 
     civil action in a State court that raises a claim that 
     colorably appears to be a claim described in section 4201(a) 
     may be removed to the district court of the United States for 
     the district and division embracing the place where the civil 
     action is pending by a party who may file and who seeks to 
     file a special motion to dismiss under section 4201 that 
     asserts a colorable defense based on the Constitution or laws 
     of the United States.
       ``(2) Exception.--Removal may not be requested under 
     paragraph (1) on the basis of a third-party claim or a cross 
     claim asserted by a defendant.
       ``(3) Remand.--If a civil action is removed under paragraph 
     (1), and a final and unappealable order is entered denying 
     the special motion to dismiss filed under section 4201, the 
     court may remand the remaining claims to the State court from 
     which the civil action was removed.
       ``(b) Special Motion To Quash.--
       ``(1) In general.--A proceeding in a State court in which a 
     request or order that colorably appears to be a request or 
     order described in section 4205(a) is sought, issued, or 
     sought to be enforced may be removed to the district court of 
     the United States for the district and division embracing the 
     place where the civil action is pending by a person who may 
     file and who seeks to file a special motion to quash under 
     section 4205 that asserts a colorable defense based on the 
     Constitution or laws of the United States.
       ``(2) Limitation.--If removal is requested under paragraph 
     (1) for a proceeding in which a request or order described in 
     section 4205(a) is sought, issued, or sought to be enforced, 
     and there is no basis for removal of the remainder of the 
     civil action in connection with which the proceeding is 
     brought, or no party has requested removal of the remainder 
     of the civil action, only the proceeding in which the request 
     or order described is section 4205(a) is sought, issued, or 
     sought to be enforced may be removed.

     ``Sec. 4207. Fees, costs, and sanctions

       ``(a) Attorney's Fees and Costs.--Except as provided in 
     subsection (c), a court shall award a person who files and 
     prevails on a special motion to dismiss under section 4201 or 
     a special motion to quash under section 4205 litigation 
     costs, expert witness fees, and reasonable attorney's fees.
       ``(b) Frivolous Motions or Petitions.--Except as provided 
     in subsection (c)(1), if a court finds that a special motion 
     to dismiss under section 4201, a special motion to quash 
     under section 4205, or a notice of removal under section 4206 
     is frivolous or is solely intended to cause unnecessary 
     delay, the court may award litigation costs, expert witness 
     fees, and reasonable attorney's fees to the party that 
     responded to the motion or notice.
       ``(c) Exceptions.--
       ``(1) Governmental entities.--The Federal Government and 
     the government of a State, or political subdivision thereof, 
     may not recover litigation costs, expert witness fees, or 
     attorney's fees under this section.
       ``(2) Novel legal questions.--A court may not award 
     litigation costs, expert witness fees, or attorney's fees 
     under subsection (a) if the grant of the special motion to 
     dismiss under section 4201 or the special motion to quash 
     under section 4205 depended on the resolution of a novel or 
     unsettled legal question in favor of the movant.''.

     SEC. 3. RELATIONSHIP TO OTHER LAWS.

       Nothing in this Act or the amendments made by this Act 
     shall preempt or supersede any Federal or State statutory, 
     constitutional, case, or common law that provides the 
     equivalent or greater protection for persons engaging in 
     activities protected by the First Amendment to the 
     Constitution of the United States.

     SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.

       (a) Table of Chapters.--The table of chapters for part VI 
     of title 28, United States Code, is amended by adding at the 
     end the following:

``182. Special motion to dismiss............................4201''.....

       (b) Interlocutory Appeals.--Section 1292(a) of title 28, 
     United States Code, is amended--
       (1) in paragraph (3), by striking the period at the end and 
     inserting ``; and''; and
       (2) by adding at the end the following:
       ``(4) Interlocutory orders granting or denying in whole or 
     in part special motions to dismiss under section 4201.''.
       (c) Nondischargability of Fees and Costs.--Section 523(a) 
     of title 11, United States Code, is amended--
       (1) in paragraph (18), by striking ``or'' at the end;

[[Page 13360]]

       (2) in paragraph (19), by striking the period at the end 
     and inserting ``; or''; and
       (3) by inserting after paragraph (19) the following:
       ``(20) for litigation costs, expert witness fees, or 
     reasonable attorney's fees awarded by a court under chapter 
     182 of title 28 or under comparable State laws.''.

     SEC. 5. EFFECTIVE DATE; APPLICABILITY.

       (a) Effective Date.--Except as provided in subsection (b), 
     this Act and the amendments made by this Act shall--
       (1) take effect on the date of enactment of this Act; and
       (2) apply to a claim filed on or after the date of 
     enactment of this Act.
       (b) Claims Filed Before Enactment.--For a claim that was 
     filed before and is pending on the date of enactment of this 
     Act--
       (1) this Act and the amendments made by this Act shall 
     apply to the claim if the court with original jurisdiction of 
     the claim has not entered a judgment on the merits as to the 
     claim as of the date of enactment of this Act; and
       (2) for a claim described in paragraph (1), the periods 
     under sections 4201 and 1446 of title 28, United States Code, 
     as amended by this Act, shall begin on the date of enactment 
     of this Act.

               Free Press Act: Section-by-Section Summary

       Section 4201. Special Motion to Dismiss. A ``representative 
     of the news media'' (as defined in FOIA) may file a special 
     motion to dismiss a legal claim arising out of speech on a 
     matter of public concern or that relates a public official or 
     figure. Once the motion is properly brought, the nonmovant 
     must show that the lawsuit is supported by a prima facie 
     showing of facts sufficient to sustain a favorable judgment. 
     If the nonmovant fails to meet this burden, the lawsuit is 
     dismissed with prejudice.
       Section 4202. Stay of Discovery. Upon filing of the special 
     motion to dismiss, discovery is stayed absent good cause 
     shown. If the motion is filed with respect to a cross claim 
     or third-party claim, discovery is stayed only with respect 
     to that claim. (This exception is made to prevent defendants 
     from using the special motion to dismiss to affect litigation 
     in which the complaint does not assert claims arising out of 
     speech on public issues.)
       Section 4203. Governmental Litigation and Commercial Speech 
     Exceptions. A special motion to dismiss may not be brought 
     against a claim that is brought by the Federal government or 
     a State Attorney General, or that arises out of speech 
     offering or promoting the sale of the speaker's goods or 
     services.
       Section 4204. Interlocutory Appeal. Either side may bring 
     an immediate appeal of the denial or grant of a special 
     motion to dismiss.
       Section 4205. Special Motion to Quash. A party may move to 
     quash a request to obtain the personally identifying 
     information of a person that is made in relation to a legal 
     claim arising out of speech on public issues. (E.g., a 
     company seeks discovery from an ISP of the identity of 
     persons posting unfavorable comments about the company's 
     goods or services on a blog.) If the motion to quash is 
     properly brought, the nonmovant must show that the legal 
     claim is supported by a prima facie showing of facts 
     sufficient to sustain a favorable judgment. If the nonmovant 
     fails to meet this burden, the request for personally 
     identifying information is quashed.
       Section 4206. Removal. A state-court claim arising out of 
     speech on public issues may be removed to federal court by a 
     party that intends to file a special motion to dismiss the 
     claim. Removal may not be requested on the basis of a cross 
     claim or third-party claim. (This exception is made to 
     prevent defendants from removing cases in which the complaint 
     does not assert claims arising out of speech on public 
     issues.) A proceeding to enforce discovery requesting 
     personally identifying information may also be removed, but 
     removal is limited to the discovery-enforcement proceeding.
       Section 4207. Fees, Costs, and Sanctions. A party that 
     prevails on a special motion to dismiss or quash shall be 
     entitled to reasonable attorneys fees and costs. Frivolous 
     motions to dismiss or quash or remove shall be subject to 
     sanctions. Fees may not be recovered by the government, or in 
     cases that turn on the resolution of a novel legal question.
                                 ______
                                 
      By Mr. COCHRAN (for himself and Mr. Wicker):
  S. 3496. A bill to amend title XVIII of the Social Security Act to 
permit direct payment to pharmacies for certain compounded drugs that 
are prepared by the pharmacies for a specific beneficiary for use 
through an implanted infusion pump; to the Committee on Finance.
  Mr. COCHRAN. Mr. President, on May 13, 2011, the Centers for Medicare 
and Medicaid Services issued Change Request 7397 to stop compounding 
pharmacies that prepare medications used in implanted infusion pumps 
from billing Medicare directly for these services. This was an attempt 
to reverse a policy that has been permissible in several States for 
over 20 years. Since then, I have worked with Senator Wicker and other 
Members of Congress to delay the implementation of this change until 
its effects have been fully considered.
  This policy change has been met with opposition from pharmacies, 
physicians, and patients. In Mississippi, pharmacies are prohibited 
from selling infused pain medications to physicians, which would result 
in decreased access to effective treatments for chronic pain disorders. 
While this is a particular issue in my State, this policy change will 
have serious implications across the Nation.
  The Centers for Medicare and Medicaid Services has worked with us 
over the past year to delay this policy change and to propose a rule 
that is now receiving comments. However, CMS officials have continued 
to demonstrate a lack of understanding about the potential consequences 
of changing payment policy. We should protect practices that have been 
effective in treating patients and support those who supply drugs 
necessary for the well-being of patients. This bill would explicitly 
allow compounding pharmacies to bill Medicare directly for their 
services in the interest of helping patients continue to receive the 
quality care they deserve.
                                 ______
                                 
      By Mr. REID (for himself and Mr. McConnell):
  S. 3510. A bill to prevent harm to the national security or 
endangering the military officers and civilian employees to whom 
internet publication of certain information applies, and for other 
purposes; considered and passed.
  Mr. REID. Mr. President, I ask unanimous consent that the text of the 
bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record as follows:

                                S. 3510

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

     SECTION 1. EFFECTIVE DATE DELAY.

       The STOCK Act (Public Law 112-105) is amended--
       (1) in section 8(a)(1), by striking ``August 31, 2012'' and 
     inserting ``September 30, 2012''; and
       (2) in section 11(a)(1), by striking ``August 31, 2012'' 
     and inserting ``September 30, 2012''.

     SEC. 2. IMPLEMENTATION OF PTR REQUIREMENTS UNDER STOCK ACT.

       Effective September 30, 2012, for purposes of implementing 
     subsection (l) of section 103 of the Ethics in Government Act 
     of 1978 (as added by section 6 of the STOCK Act, Public Law 
     112-105) for reporting individuals whose reports under 
     section 101 of such Act (5 U.S.C. App. 101) are required to 
     be filed with the Clerk of the House of Representatives, 
     section 102(e) of such Act (5 U.S.C. App. 102(e)) shall apply 
     as if the report under such subsection (l) were a report 
     under such section 101 but only with respect to the 
     transaction information required under such subsection (l).
                                 ______
                                 
      By Mr. HOEVEN (for himself, Mr. Conrad, Mr. Baucus, Mr. 
        McConnell, Mr. Kohl, Mr. Portman, Ms. Landrieu, Mr. Boozman, 
        Mr. Manchin, Mr. Blunt, Mr. Warner, Mr. Johnson of Wisconsin, 
        Mr. Pryor, Mr. Moran, Mrs. McCaskill, Mr. Alexander, Mr. Nelson 
        of Nebraska, Mr. Toomey, Mr. Nelson of Florida, Mr. Graham, Mr. 
        Casey, Mr. Thune, Mr. Webb, and Mr. Hatch):
  S. 3512. A bill to amend subtitle D of the Solid Waste Disposal Act 
to facilitate recovery and beneficial use, and provide for the proper 
management and disposal, of materials generated by the combustion of 
coal and other fossil fuels; to the Committee on Environment and Public 
Works.
  Mr. HOEVEN. Mr. President, I rise today to introduce legislation on 
another matter, important energy legislation for our country. I am 
today introducing the Hoeven-Conrad-Baucus Coal Ash Recycling and 
Oversight Act of 2012.
  In my home State of North Dakota there is a large powerplant just 
north of the State capital in Bismarck. It is a coal creek power 
station. Now this power station generates 1,100 megawatts of 
electricity every year. There are two 550 megawatt plants. It

[[Page 13361]]

has the latest, greatest technology emission control and clean coal 
technology. They capture the steam that was formally exhausted from the 
plant. They capture that steam and use it to run an ethanol plant. They 
produce transportation fuel with steam, a by-product of the electric 
generation process.
  One of the other things they do, instead of land filling the coal 
ash, fly ash, or coal residuals, they recycle. So, in essence, they 
take that coal ash--they work with a natural resource company, 
Headwaters, based out of Utah, and they turn the coal ash into a 
concrete product, FlexCrete. It is used to make roads, bridges, 
buildings, and also products like shingles. They make building 
materials.
  So whereas they used to take about 600,000 tons a year of coal 
residuals and coal ash flash and landfill it, and it costs $6 a ton or 
so to landfill it, now they take that 600,000 tons a year of fly ash 
and residuals and turn it into building products.
  The difference instead of paying to dispose of something and now 
being paid to recycle something is about a $16 million a year revenue 
item for that plant. That means lower cost for electricity for 
businesses in States such as the great State of North Dakota and the 
great State of Minnesota and other States as well. It truly benefits 
our consumers, our families, and our economy. It benefits small 
businesses throughout the upper Midwest. So it is truly a great example 
of American ingenuity and innovation.
  In fact, I have a picture right here. This is the North Dakota 
Heritage Center. Right now there is a $50 million expansion being 
constructed in that Heritage Center which is located on the capital 
grounds in Bismarck. It is a $50 million expansion. They are using 
building materials made of coal ash for this facility. That is what it 
is going to look like after they do this $50 million expansion.
  Let me give another example. This is the National Energy Center of 
Excellence at Bismarck State College. It is a 2-year college that 
trains people for the energy industry. It is located right above the 
Missouri River. This beautiful window overlooks the Missouri River. 
Again this is a building constructed with building materials made of 
fly ash. We can see how this product is being used and how effectively 
this is being used.
  As a matter of fact, if we look nationwide, by recycling coal ash we 
reduce energy consumption by 162 trillion Btus every year. That is the 
amount of energy we would use to 1.7 million homes in a year. It is 
pretty substantial energy savings. Or measure it in terms of water use. 
By recycling coal ash, we reduce water usage by 32 billion gallons 
annually. That is about one-third of the total amount of water that the 
State of California uses in a year.
  Why do I tell the story? Because right now the EPA is looking at 
changing the regulation of coal ash. They are looking at changing the 
regulation of coal ash to doing it under subtitle C of the Resource 
Conservation and Recovery Act. The problem is that is the hazardous 
waste section. Right now coal ash is regulated under subtitle D of the 
Resource Conservation and Recovery Act, which is the nonhazardous waste 
section. The EPA is looking at making that change in spite of the fact 
that the Department of Energy, the Federal Highway Administration, 
State regulatory agencies, and the EPA itself have done studies, and 
those studies have shown that is not a toxic waste.
  The EPA first proposed this new regulation in June of 2010. This 
regulation would truly undermine the industry, drive up costs, and 
eliminate jobs when our economy can least afford it. In fact, according 
to industry estimates, it would increase electricity costs by up to 
almost $50 billion annually and eliminate 300,000 American jobs.
  Let me elaborate. Meeting the regulatory disposal requirements under 
the EPA's subtitle C proposal would cost between $250 and $450 per ton 
as opposed to about $100 per ton under the current system. That would 
translate into $47 billion in terms of burden on electricity generators 
that use coal and, of course, most importantly, their customers who 
would see their bills increased. As I said, overall it would cost about 
300,000 American jobs for our economy.
  That is why I am introducing the Hoeven-Conrad-Baucus Recycling and 
Oversight Act, which is S. 3512, and it has very strong bipartisan 
support. It is truly a bipartisan bill, including 12 Republican 
sponsors and 12 Democratic sponsors. The Republican sponsors include 
myself, Senator McConnell, Senator Portman, Senator Boozman, Senator 
Blunt, Senator Ron Johnson, Senator Moran, Senator Alexander, Senator 
Toomey, Senator Graham, Senator Thune, and Senator Hatch. The 
Democratic cosponsors include Senator Conrad, Senator Baucus, Senator 
Kohl, Senator Landrieu, Senator Manchin, Senator Warner, Senator Pryor, 
Senator McCaskill, Senator Ben Nelson, Senator Bill Nelson, Senator 
Casey, and Senator Webb. I wish to thank them for their willingness to 
join together in a bipartisan way--12 Republicans, 12 Democrats--coming 
together to provide the kind of energy legislation that is going to 
truly help move this country forward, empowering not only more energy 
development but better environmental stewardship.
  This legislation is similar to H.R. 2273, which was sponsored by 
Representative David McKinley of West Virginia in the House, and it 
passed the House with strong bipartisan support. This legislation is 
very similar. We have made some enhancements, but it is very similar.
  The bill not only preserves coal ash recycling by preventing these 
by-products from being treated as hazardous, it also establishes--and 
this is important because it is also about good environmental 
stewardship--it also establishes comprehensive Federal standards for 
coal ash disposal. Under this legislation, States can set up their own 
permitting program for the management and the disposal of coal ash. 
These programs would be required to be based on existing EPA 
regulations that protect human health and the environment. If a State 
does not implement an acceptable permitting program, then EPA regulates 
the program for the State. As a result, States and industry will know 
where they stand under the bill, since the benchmarks for what 
constitutes a successful State program will be set in statute. EPA can 
say yes, the State does meet those standards, or no, it does not, but 
the EPA cannot move the goalposts.
  This is a States-first approach that provides regulatory certainty. 
Let me repeat that. This is a States-first approach that provides 
regulatory certainty, and it is that regulatory certainty we need to 
stimulate private investment that will deploy the new technologies that 
will not only produce more energy but will produce better environmental 
stewardship.
  What is certain is that under this bill, coal ash disposal sites will 
be required to meet established standards. Those established standards 
include groundwater detection and monitoring, liners, corrective action 
when environmental damage occurs, structural stability criteria, and 
the financial assurance and recordkeeping needed to protect the public.
  This legislation is needed to protect jobs and help reduce the cost 
of homes and roads as well as to help reduce electric bills.
  I wish to thank both Republicans and Democrats who have taken a 
leadership role in this effort as original sponsors of the legislation. 
I especially wish to express thanks to my fellow Senator from North 
Dakota, Mr. Conrad, as well as Senator Baucus of Montana and their 
staffs for the hard work that has gone into this legislation. I urge 
our colleagues to join us in this important energy legislation.
                                 ______
                                 
      By Mr. REED:
  S. 3513. A bill to promote the development of local strategies to 
coordinate use of assistance under sections 8 and 9 of the United 
States Housing Act of 1937 with public and private resources, to enable 
eligible families to achieve economic independence and self-
sufficiency, and for other purposes; to the Committee on Banking, 
Housing, and Urban Affairs.

[[Page 13362]]


  Mr. REED. Mr. President, today I introduce the Family Self-
Sufficiency Act.
  The Family Self Sufficiency, FSS, program is an existing employment 
and savings incentive initiative for families that have section 8 
vouchers or live in public housing. The FSS program provides two key 
tools for its participants: first, it provides access to the resources 
and training that help participants pursue employment opportunities and 
meet financial goals, and second, it encourages FSS families to save by 
establishing an interest-bearing escrow account for them. Upon 
graduation from the FSS program, the family can use these savings to 
pay for job-related expenses, such as the purchase or maintenance of a 
car or for additional workforce training.
  My legislation seeks to enhance the FSS program by streamlining the 
administration of this program, by broadening the supportive services 
that can be provided to a participant, and by extending the FSS program 
to tenants who live in privately-owned properties with project-based 
assistance.
  First, to streamline the FSS program, my bill would combine the two 
separate FSS programs into one. Currently, HUD operates one FSS program 
for those families being served by the Housing Choice Voucher Program 
and another for those families being served by the Public Housing 
program, even though the core purpose of each FSS program, to increase 
economic independence and self-sufficiency, is the same for both. As a 
result, Public Housing Agencies, PHAs, have to operate essentially two 
programs to achieve the same goal. With my bill, PHAs would be relieved 
of this unnecessary burden.
  Second, my legislation broadens the scope of the supportive services 
that may be offered to include attainment of a GED, education in 
pursuit of a post-secondary degree or certification, and training in 
financial literacy. Providing families in need with affordable rental 
housing is critical, but coupling it with the support and services to 
help families get ahead is more effective. This legislation makes it 
easier for FSS participants to obtain the training necessary to secure 
employment and the education to make prudent financial decisions to 
better safeguard their earnings.
  Lastly, this bill opens up the FSS program to families who live in 
privately-owned properties subsidized with project-based rental 
assistance. It shouldn't matter what kind of housing assistance a 
family gets, and families seeking to achieve self-sufficiency shouldn't 
be held back by this sort of technicality.
  I urge my colleagues to support this bill, which will help give those 
receiving housing assistance a better chance to build their skills and 
achieve economic independence.
                                 ______
                                 
      By Ms. SNOWE:
  S. 3516. A bill to encourage spectrum licenses to make unused 
spectrum available for use by rural and smaller carriers in order to 
expand wireless coverage; to the Committee on Commerce, Science, and 
Transportation.
  Ms. SNOWE. Mr. President, I rise today to introduce legislation to 
help expand wireless broadband to rural areas. Specifically, the Rural 
Spectrum Accessibility Act would direct the Federal Communications 
Commission, FCC, establish a program that would provide an incentive, a 
three year extension to a spectrum license, to wireless carriers that 
make available, through partitioning and disaggregation, unused 
spectrum to smaller carriers or carriers serving rural areas.
  As the FCC National Broadband Plan reports ``most areas without 
mobile broadband coverage are in rural or remote areas.'' This 
legislation would provide an additional incentive to increase wireless 
broadband to these areas and make more spectrum available to smaller 
and rural wireless carriers through secondary market mechanisms.
  This bill is loosely based on a wireless carrier's existing program, 
which creates a partnership with rural carriers to build and operate 
Long Term Evolution, LTE, wireless networks in rural areas. Through the 
cooperation the carrier provides spectrum and core network equipment 
and the rural carrier supplies the cell towers and backhaul.
  The Rural Spectrum Accessibility Act is an effort to get other large 
carriers to implement similar initiatives to create more opportunities 
for the smaller and rural carriers. It should be noted the FCC actually 
already has partitioning and disaggregation rules, see 47 CFR 22.948, 
this legislative proposal just provides a simple but attractive 
incentive for carriers to utilize them.
  The main goal of this legislation is to provide another catalyst to 
expand next generation, 4G, Wireless broadband service to rural areas, 
which will mean more reliable service, more innovation, and more choice 
to rural consumers and businesses.
  The increasing importance of wireless communications and broadband 
has a direct correlation to our Nation's competitiveness, economy, and 
national security. We must reform existing spectrum policy and 
management to ensure that all Americans continue to realize the 
boundless benefits of wireless broadband. Congress has taken some steps 
but more can and must be done. That is why I sincerely hope that my 
colleagues join me in supporting this important legislation.
                                 ______
                                 
      By Mr. WYDEN:
  S. 3518. A bill to make it a principal negotiating objective of the 
United States in trade negotiations to eliminate government fisheries 
subsidies, and for other purposes; to the Committee on Finance.
  Mr. WYDEN. Mr. President, I rise today to introduce the Fair Trade in 
Seafood Act.
  Right now, our country is proud to be a world leader in the fishing 
and seafood processing industries. We rank among the world's top five 
exporters of seafood, and its largest importer. However, the U.S. 
seafood industry faces many challenges on the global stage from unfair 
competition. The Congress should be doing everything it can to make 
sure we retain our status as global leader. That is why I am 
introducing the Fair Trade in Seafood Act. This bill will establish 
this issue as a Principal Negotiating Objective of the United States in 
the ongoing Trans-Pacific Partnership and World Trade Organization 
talks.
  Why is this bill important? According to the United Nations Food and 
Agricultural Organization, 85 percent of the world's fisheries are 
fully exploited, overexploited, depleted, or recovering from 
depletion--the highest percentage since the Food and Agricultural 
Organization began keeping records.
  Many governments continue to provide significant subsidies that push 
their fleets to fish longer, more intensively, and farther away than 
otherwise would be possible. These destructive fisheries subsidies are 
estimated to be at least $16 billion annually, an amount equivalent to 
approximately 20 percent of the value of the world catch. The 
detrimental effects of these illegal subsidies are so significant that 
eliminating them is the single greatest action that can be taken to 
protect the world's oceans.
  In contrast to these nefarious actors, the U.S. does not just talk 
about the importance of sustainable fishing practices and marine 
conservation. We are practicing what we preach. That means enforcing 
regulations and changing old, counterproductive, destructive habits. 
Our seafood industry is stronger because of it. At the same time, our 
market is open. In my view, this is the way every country ought to run 
its seafood industry. Our foreign trading partners, as I mentioned, 
often support practices that can cause long-term harm to marine 
habitat. In addition, our trading partners put up trade barriers that 
prevent sustainably caught U.S. seafood from reaching foreign 
consumers. These are practices that skew the playing field in a 
competitive marketplace. They skew the playing field against American 
fishers and give foreign competitors a huge advantage in an industry 
that depends on global trade. Forty percent of global fishery products 
are traded internationally, and seafood is more globally sourced than 
coffee, rice, and tea combined.

[[Page 13363]]

  These harmful foreign trade barriers and practices that encourage 
overfishing are top priorities that need to be addressed. These foreign 
trade barriers harm our country's ability to create good-paying jobs. 
Preserving the wealth of the world's marine environment is of paramount 
importance. The U.S. seafood industry represents a major portion of our 
economy, employing over 1.5 million workers in the commercial sector 
alone. The commercial seafood industry has a significant presence in 
over 23 States and is an industry and, in fact, a way of life, a way of 
life that binds communities and stitches together the regions of our 
country. The seafood sector employs more people than the mining or oil 
industries.
  It is also a foundation of our economy because, without fish, there 
are no jobs. Preserving the wealth of our oceans and rivers is an 
economic imperative as much as a moral one. That is why I urge my 
colleagues to cosponsor the Fair Trade in Seafood Act.
  In short, this Act will codify an official trade negotiating 
objective of the United States with respect to government fisheries 
subsidies. More specifically, the negotiating objective will be to 
eliminate fisheries subsidies provided by governments that unfairly 
destroy markets to the detriment of the United States commercial 
fishing interests and that perpetuate unsustainable fishing practices. 
The bill aims to ensure that any commitments with respect to such 
subsidies are enforceable under appropriate trade laws. This 
negotiating objective will apply to any trade agreement that includes 
any negotiations relating to the elimination or reduction of government 
fisheries subsidies.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3518

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Fair Trade in Seafood Act''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) According to the Food and Agriculture Organization of 
     the United Nations, 85 percent of the world's fisheries are 
     overexploited, fully exploited, significantly depleted, or 
     recovering from overexploitation, the highest percentage ever 
     on record.
       (2) A primary reason for the global fisheries crisis is 
     government subsidies that create perverse incentives for 
     continued fishing in the face of declining catches.
       (3) Despite the dire conditions of the world's marine 
     resources, some of the countries that engage in the most 
     fishing continue to provide significant subsidies to their 
     fishing fleets.
       (4) Fisheries subsidies are estimated to be approximately 
     20 percent of the value of the world catch and have helped 
     create a global fishing fleet that is up to 250 percent 
     larger than that needed to fish sustainably.
       (5) Many long-range foreign fleets are supported by 
     government subsidies for fuel, other operational expenses, 
     and vessel construction that allow their fleets to fish 
     longer, at greater distances, and more intensively than is 
     commercially or environmentally warranted. Those fleets would 
     not be viable without the support of government subsidies.
       (6) Many developing countries are particularly affected by 
     fisheries subsidies provided by other governments because the 
     developing countries are unable to compete against subsidized 
     industrial fleets.
       (7) Fisheries subsidies offered by the governments of other 
     countries give the fleets of those countries an unfair 
     advantage over United States fishermen by reducing the costs 
     of operations and increasing the number, size, and power of 
     vessels competing for fish. Foreign fisheries subsidies also 
     undermine opportunities for United States fishermen in 
     potential export markets.
       (8) Without committed global leadership to reduce 
     ``overfishing subsidies'', there is a significant risk that 
     the oceans will become too depleted to fish, resulting in a 
     catastrophic blow to the world economy and environment.
       (9) As one of the world's largest importers of seafood and 
     one of the top five exporters of seafood, the United States 
     has a particular responsibility to lead trade negotiations to 
     address fisheries subsidies and make the establishment of 
     strong new rules on fisheries subsidies a core priority in 
     United States trade negotiations.
       (10) Paragraphs 28 and 31 of the Ministerial Declaration of 
     the World Trade Organization adopted at Doha November 14, 
     2001, which launched the Doha Development Agenda, called for 
     negotiations to clarify and improve disciplines on trade-
     distorting government fisheries subsidies.
       (11) Paragraphs 9 through 11 of Annex D of the Ministerial 
     Declaration of the World Trade Organization adopted at Hong 
     Kong December 18, 2005, reinforced the Doha fisheries 
     subsidies mandate, noting that ``there is broad agreement 
     that the Group should strengthen disciplines on subsidies in 
     the fisheries sector, including through the prohibition of 
     certain forms of fisheries subsidies that contribute to 
     overcapacity and over-fishing'' and calling on ``Participants 
     promptly to undertake further detailed work to, inter alia, 
     establish the nature and extent of those disciplines, 
     including transparency and enforceability''.
       (12) The negotiations on fisheries subsidies in the World 
     Trade Organization and negotiations for the Trans-Pacific 
     Partnership Agreement are two of the most important, and 
     promising, international efforts to stop global overfishing 
     and represent meaningful efforts to directly address a key 
     environmental issue that directly impacts international 
     trade.
       (13) On November 12, 2011, the leaders of the 9 countries 
     in negotiations for the Trans-Pacific Partnership Agreement--
     Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, 
     Peru, Singapore, Vietnam, and the United States--announced 
     the achievement of the broad outlines of an ambitious, 21st-
     century agreement. According to a statement released by those 
     leaders, the agreed outline calls for ``[a] meaningful 
     outcome on environment [that] will ensure that the agreement 
     appropriately addresses important trade and environment 
     challenges and enhances the mutual supportiveness of trade 
     and environment. The TPP countries share the view that the 
     environment text should include effective provisions on 
     trade-related issues that would help to reinforce 
     environmental protection and are discussing an effective 
     institutional arrangement to oversee implementation and a 
     specific cooperation framework for addressing capacity 
     building needs.''. Various proposals, including a proposal by 
     the United States, to bring disciplines to government-
     subsidized fishing are under active discussion as part of the 
     negotiations on the environment chapter of the Trans-Pacific 
     Partnership Agreement.
       (14) The United States continues to make achievement of an 
     agreement on disciplines on government fisheries subsidies a 
     priority in negotiations in the World Trade Organization and 
     for the Trans-Pacific Partnership Agreement. On December 16, 
     2011, at the Eighth Ministerial Conference of the World Trade 
     Organization in Geneva, the United States Trade 
     Representative issued a statement urging ``continued work 
     toward an ambitious outcome on fisheries subsidies under the 
     WTO''. Noting the acute impact of declining catches on 
     developing countries, the Trade Representative further 
     stated, ``We stand ready to explore new negotiating 
     approaches that can move us towards the elimination of 
     harmful subsidies that contribute to overcapacity and 
     overfishing. . . . WTO Members have a duty to address one of 
     the root causes of overfishing and overcapacity--the 
     fisheries subsidies that encourage fishing enterprises to 
     fish longer, harder, and farther than would otherwise be 
     sustainable without subsidy aid. . . . The United States is 
     ready to continue this work in the WTO and in other 
     appropriate fora--including free trade agreements such as the 
     Trans-Pacific Partnership and other bilateral, regional and 
     multilateral initiatives.''.
       (15) A strong fisheries subsidies agreement by the World 
     Trade Organization and in the Trans-Pacific Partnership 
     Agreement would set an historic precedent by showing that 
     international trade can directly benefit the environment 
     while promoting exports and open markets.

     SEC. 3. TRADE NEGOTIATING OBJECTIVES OF THE UNITED STATES 
                   WITH RESPECT TO GOVERNMENT FISHERIES SUBSIDIES.

       It shall be a principal negotiating objective of the United 
     States in negotiations for a trade agreement--
       (1) to eliminate fisheries subsidies provided by 
     governments that unfairly distort markets to the detriment of 
     United States commercial fishing interests and that 
     perpetuate unsustainable fishing practices; and
       (2) to ensure that any commitments with respect to such 
     subsidies are enforceable under appropriate trade laws.

     SEC. 4. EFFECTIVE DATE.

       This Act takes effect on the date of the enactment of this 
     Act and applies with respect to negotiations for a trade 
     agreement that--
       (1) include any negotiations relating to the elimination or 
     reduction of government fisheries subsidies; and
       (2) are entered into--
       (A) on or after such date of enactment; or
       (B) before such date of enactment if the negotiations 
     continue on or after such date of enactment.

[[Page 13364]]



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