[Pages S4798-S4807]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LOTT (for himself and Mr. Pryor):
S. 2830. A bill to amend the automobile fuel economy provisions of
title 49, United States Code, to reform the setting and calculation of
fuel economy standards for passenger automobiles, and for other
purposes; to the Committee on Commerce, Science, and Transportation.
Mr. LOTT. Mr. President, I rise today to introduce The Corporate
Average Fuel Economy, CAFE, Program Reform Act of 2006. I am pleased to
be joined in this effort by Senator Pryor, who serves on the Commerce
Committee with me.
Since being introduced in the 1970s, CAFE standards have been
controversial. The effectiveness of these standards is often debated as
is their effect on safety, consumer choice, and the automobile
industry.
CAFE became so controversial that it essentially was frozen for many
years.
The stand-off over CAFE finally eased a little bit when a
Congressionally commissioned National Academy of Sciences review of the
CAFE program was released in 2002. Although that study found that CAFE
had in fact reduced energy consumption, the Academy was critical of how
the program was structured and found that there was a negative impact
on safety.
Just this spring, the Department of Transportation issued new
reformed CAFE rules for pickup trucks, vans, and SUVs. This rule is a
radical departure from prior CAFE rules in that it applies different
standards to different sized vehicles rather than a uniform standard
across the whole fleet. The Department's approach addresses many of the
criticisms in the academy's study.
The recent rule did not, however, include new standards for cars.
Those standards have been the same since 1984 and there is considerable
legal ambiguity about the secretary's ability to increase the existing
standards. It is clear, however, that the law does not allow the
secretary to ``reform'' CAFE standards for cars, since that part of the
statute is written differently than for light trucks.
As chairman of the Subcommittee on Surface Transportation and
Merchant Marine, I held a hearing on reforming CAFE standards last
week. We heard from Secretary Mineta, as well as the automobile
industry, safety advocates, and fuel economy experts. After listening
to what our witnesses had to say, I am convinced that ``reform'' is a
necessary approach.
After that hearing, Secretary Mineta transmitted legislation to
Congress asking for the authority to reform CAFE standards.
The bill we are introducing today is very straightforward. The main
feature of the legislation is that it gives the Secretary of
Transportation the authority to reform the CAFE program in a manner
similar to the rule that he issued for light trucks. The bill puts the
responsibility of setting CAFE standards where it belongs--and that is
with the scientists and technical experts at the Department of
Transportation.
The reformed CAFE program authorized by this legislation will address
many of the past criticisms. For example, the legislation specifies
that the Secretary must take motor vehicle safety into consideration
when developing new CAFE standards. The legislation also allows the
trading of CAFE credits between a manufacturer's passenger car and
light truck fleets. This gives manufacturers the flexibility to
increase CAFE where it is most cost effective to do so.
Let me briefly address one issue that is potentially controversial.
That is the issue of what is being called ``backsliding.'' The concern
is that under a reformed CAFE program, manufacturers could simply stop
manufacturing some of their smaller cars since these cars are no longer
needed to ``average out'' the larger, less fuel efficient models. The
manufacturer's overall fuel economy average could then end up

[[Page S4799]]

being below where it is presently. Although this is very unlikely to
happen and that isn't the intent of a ``reformed'' CAFE system, I
understand the concern. Senator Pryor and I have included a provision
in our legislation to address that problem. I know that there are many
opinions on how to deal with this backsliding issue, and some people
may not feel that our approach is strong enough. On the other hand, if
the provision is too strict then the benefits of reform are potentially
wiped out.
In the past, many in Congress have played politics with CAFE--
offering bills that try to set unrealistically high or arbitrary CAFE
standards. On the other side are those that have simply opposed doing
anything. This has resulted in a stalemate and lots of finger pointing.
I hope this doesn't happen again, because we really do need to get
tougher standards in place as soon as we can.
Senator Pryor and I are committed to improving the fuel economy of
our vehicles without reducing safety and reliability or losing jobs. I
urge my colleagues to support this legislation.
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. 2830

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 ``Corporate Average Fuel
Economy Reform Act of 2006''.

SEC. 2. CAFE STANDARDS FOR PASSENGER AUTOMOBILES.

(a) Average Fuel Economy Standards for Automobiles.--
Section 32902 of title 49, United States Code, is amended--
(1) by striking subsections (b) and (c) and inserting the
following:
``(b) Passenger Automobiles.--
``(1) In general.--At least 18 months before the beginning
of each model year, the Secretary of Transportation shall
prescribe by regulation average fuel economy standards for
passenger automobiles manufactured by a manufacturer in that
model year. Each standard shall be the maximum feasible
average fuel economy level that the Secretary decides the
manufacturers can achieve in that model year. The Secretary
may prescribe separate standards for different classes of
passenger automobiles.
``(2) Minimum standard.--In prescribing a standard under
paragraph (1), the Secretary shall ensure that no
manufacturer's standard for a particular model year is less
than the greater of--
``(A) the standard in effect on the date of enactment of
the Corporate Average Fuel Economy Reform Act of 2006; or
``(B) a standard established in accordance with the
requirement of section 5(c)(2) of that Act.
``(c) Flexibility of Authority.--
``(1) In general.--The authority of the Secretary to
prescribe by regulation average fuel economy standards for
automobiles under this section includes the authority to
prescribe standards based on one or more vehicle attributes
that relate to fuel economy, and to express the standards in
the form of a mathematical function. The Secretary may issue
a regulation prescribing standards for one or more model
years.
``(2) Required lead-time.--When the Secretary prescribes an
amendment to a standard under this section that makes an
average fuel economy standard more stringent, the Secretary
shall prescribe the amendment at least 18 months before the
beginning of the model year to which the amendment applies.
``(3) No across-the-board increases.--When the Secretary
prescribes a standard, or prescribes an amendment under this
section that changes a standard, the standard may not be
expressed as a uniform percentage increase from the fuel-
economy performance of automobile classes or categories
already achieved in a model year by a manufacturer.'';
(2) by inserting ``motor vehicle safety, emissions,'' in
subsection (f) after ``economy,'';
(3) by striking ``energy.'' in subsection (f) and inserting
``energy and reduce its dependence on oil for
transportation.'';
(4) by striking subsection (j) and inserting the following:
``(j) Comments from DOE and EPA.--
``(1) Notice of proposed rulemaking.--Before issuing a
notice proposing to prescribe or amend an average fuel
economy standard under subsection (a), (b), or (g), the
Secretary of Transportation shall give the Secretary of
Energy and the Administrator of the Environmental Protection
Agency at least 10 days to comment on the proposed standard
or amendment. If the Secretary of Energy or the Administrator
concludes that the proposed standard or amendment would
adversely affect the conservation goals of the Department of
Energy or the environmental protection goals of the
Environmental Protection Agency, respectively, the Secretary
or the Administrator may provide written comments to the
Secretary of Transportation about the impact of the proposed
standard or amendment on those goals. To the extent that the
Secretary of Transportation does not revise a proposed
standard or amendment to take into account the comments, if
any, the Secretary shall include the comments in the notice.
``(2) Notice of final rule.--Before taking final action on
a standard or an exemption from a standard under this
section, the Secretary of Transportation shall notify the
Secretary of Energy and the Administrator of the
Environmental Protection Agency and provide them a reasonable
time to comment on the standard or exemption.''; and
(5) by adding at the end thereof the following:
``(k) Costs-Benefits.--The Secretary of Transportation may
not prescribe an average fuel economy standard under this
section that imposes marginal costs that exceed marginal
benefits, as determined at the time any change in the
standard is promulgated.''.
(b) Exemption Criteria.--The first sentence of section
32904(b)(6)(B) of title 49, United States Code, is amended--
(1) by striking ``exemption would result in reduced'' and
inserting ``manufacturer requesting the exemption will
transfer'';
(2) by striking ``in the United States'' and inserting
``from the United States''; and
(3) by inserting ``because of the grant of the exemption''
after ``manufacturing''.
(c) Conforming Amendments.--
(1) Section 32902 of title 49, United States Code, is
amended--
(A) by striking ``or (c)'' in subsection (d)(1);
(B) by striking ``(c),'' in subsection (e)(2);
(C) by striking ``subsection (a) or (d)'' each place it
appears in subsection (g)(1) and inserting ``subsection (a),
(b), or (d)'';
(D) by striking ``(1) The'' in subsection (g)(1) and
inserting ``The'';
(E) by striking subsection (g)(2); and
(F) by striking ``(c),'' in subsection (h) and inserting
``(b),''.
(2) Section 32903 of such title is amended by striking
``section 32902(b)-(d)'' each place it appears and inserting
``subsection (b) or (d) of section 32902''.
(3) Section 32904(a)(1)(B) of such title is amended by
striking ``section 32902(b)-(d)'' and inserting ``subsection
(b) or (d) of section 32902''.
(4) The first sentence of section 32909(b) of such title is
amended to read ``The petition must be filed not later than
59 days after the regulation is prescribed.''.
(5) Section 32917(b)(1)(B) of such title is amended by
striking ``or (c)''.

SEC. 3. USE OF EARNED CREDITS.

Section 32903 of title 49, United States Code, is amended--
(1) by striking ``3 consecutive model years'' in subsection
(a)(1) and subsection (a)(2) and inserting ``5 consecutive
model years'';
(2) by striking ``3 model years'' in subsection (b)(2) and
inserting ``5 model years'';
(3) by redesignating subsection (f) as subsection (g); and
(4) by inserting after subsection (e) the following:
``(f) Credit Transfers.--The Secretary of Transportation
may permit by regulation, on such terms and conditions as the
Secretary may specify, a manufacturer of automobiles that
earns credits to transfer such credits attributable to one of
the following production segments in a model year to apply
those credits in that model year to the other production
segment:
``(1) Passenger-automobile production.
``(2) Non-passenger-automobile production.

In promulgating such a regulation, the Secretary shall take
into consideration the potential effect of such transfers on
creating incentives for manufacturers to produce more
efficient vehicles and domestic automotive employment.''.

SEC. 4. USE OF CIVIL PENALTIES FOR RESEARCH AND DEVELOPMENT.

Section 32912 of title 49, United States Code, is amended
by adding at the end thereof the following:
``(e) Research and Development and Use of Civil
Penalties.--
``(1) All civil penalties assessed by the Secretary or by a
Court shall be credited to an account at the Department of
Transportation and shall be available to the Secretary to
carry out the research program described in paragraph (2).
``(2) The Secretary shall carry out a program of research
and development into fuel saving automotive technologies and
to support rulemaking related to the corporate average fuel
economy program.''.

SEC. 5. EFFECTIVE DATE.

(a) In General.--Except as provided in subsection (b), this
Act, and the amendments made by this Act, take effect on the
date of enactment of this Act.
(b) Transition for Passenger Automobile Standard.--
Notwithstanding subsection (a), and except as provided in
subsection (c)(2), until the effective date of a standard for
passenger automobiles that is issued under the authority of
section 32902(b) of title 49, United States Code, as amended
by this Act, the standard or standards in place for passenger
automobiles under the authority of section 32902 of that
title, as that section was in effect on the day before the
date of enactment of this Act, shall remain in effect.
(c) Rulemaking.--
(1) Initiation of rulemaking under amended law.--Within 60
days after the date of enactment of this Act, the Secretary
of Transportation shall initiate a rulemaking for passenger
automobiles under section

[[Page S4800]]

32902(b) of title 49, United States Code, as amended by this
Act.
(2) Amendment of existing standard.--Until the Secretary
issues a final rule pursuant to the rulemaking initiated in
accordance with paragraph (1), the Secretary shall amend the
average fuel economy standard prescribed pursuant to section
32092(b) of title 49, United States Code, with respect to
passenger automobiles in model years to which the standard
adopted by such final rule does not apply.
Mr. PRYOR. Mr. President, I rise today with my good friend and
colleague from Mississippi, Senator Lott, to introduce legislation to
reform and raise the corporate average fuel economy standard for the
first time since its inception over 30 years ago.
In 1975 this body passed, as a part of the Energy Policy and
Conservation Act, the very first fuel economy standards for our
passenger car fleet, setting a standard that all manufacturers must
achieve 27.5 miles per gallon. This was done in response to the first
oil embargo and the energy crisis of the early 1970s. Americans
realized for the first time that we as a nation must set and achieve
attainable goals for energy conservation, not only for our economic
security but also for our national security.
At that time, the fuel economy of passenger cars averaged around 14
miles per gallon. Ten years after CAFE was enacted, the fuel economy of
passenger cars had almost doubled, saving an estimated 2.8 million
barrels of oil a day. There can be no doubts as to the benefits of the
original CAFE standard. Still 20 years after reaching this peak around
1985, the fuel economy of the Nation's passenger car fleet has
stagnated. Some have even argued the fleet of vehicles entering the
marketplace today gets less fuel economy than those models in 1985.
While fuel efficient technology has improved over the years, the fuel
economy of the Nation's passenger fleet has not. Also today, our
dependence on oil is greater than ever before. This dependence has
complicated decisions we make as a country, such as foreign policy
decisions, and as individuals, such as whether or not to fill up your
gas tank or buy groceries.
I believe we must do better for families in Arkansas and around the
Nation. We must protect our national security by reducing our
dependence on foreign oil and uncomplicating our foreign policy
decision-making in oil-rich regions. We must protect the environment by
reducing greenhouse gas emissions. We must reduce the cost of
transportation for consumers. We must begin implementing more stringent
CAFE standards now before these problems worsen. Gasoline is over 70
cents higher than this time last year, and the number of miles driven
by every American over the age of 16 has risen over 60 percent since
1970--and is continuing to climb at a rapid pace.
This is why I have joined my colleague and worked in a bipartisan
manner to introduce comprehensive CAFE reform. For over 30 years the
original CAFE standard has remained in place while a rapidly advancing
marketplace and rapidly advancing technology have left it behind. Each
time fuel economy standards have been debated in this body, they have
been mired in partisan politics resulting in nothing but stalemate.
Senator Lott and I are choosing progress over politics with our
common sense legislation, the Corporate Average Fuel Economy Reform Act
of 2006. The bill will help accomplish our national security and energy
conservation goals while preserving motor vehicle safety, American
manufacturing jobs, and consumer choice for vehicles.
Specifically, it will clarify the authority of the Secretary of
Transportation to raise and reform CAFE standards. It requires the
Secretary to begin the reform process within 60 days in addition to
requiring the Secretary to complete an expedited rulemaking to
immediately amend the current CAFE standard before a reformed standard
takes effect.
For the first time, it will require the Secretary to consider
greenhouse gas emissions when promulgating a CAFE standard as well as
require the Secretary to obtain comments from the Administrator of the
Environmental Protection Agency on the impact of any new rule on the
environment.
Our legislation also gives automobile manufacturers more flexibility
in the way they can apply CAFE credits in order to help them preserve
American jobs. It preserves the 18-month lead time required before the
Secretary can issue more stringent CAFE standards. It also allows the
Secretary to use the fines collected for violations of the CAFE
standard for research and development of fuel saving technologies and
to conduct CAFE rulemakings. Finally, our bill provides a backstop fuel
economy average which no manufacturer can go below, regardless of their
fleet mix.
There is no silver bullet in accomplishing our national security and
energy goals, and we must seek short-term alternatives in addition to
long-term solutions. CAFE reform is one part of a long-term solution to
reduce our dependence on oil, but it is one that can have lasting
impact. Still, I believe for the long-term security of our country,
this is as good a place as any to start. We must start now.
I thank my colleague from the Commerce Committee, Senator Lott, for
his hard work on this bipartisan legislation. I look forward to working
with him and the rest of my colleagues to ensure that this reform
becomes law.
______

By Mr. LUGAR (for himself, Mr. Specter, Mr. Dodd, Mr. Graham, and
Mr. Schumer):
S. 2831. A bill to guarantee the free flow of information to the
public through a free and active press while protecting the right of
the public to effective law enforcement and the fair administration of
justice; to the Committee on the Judiciary.
Mr. LUGAR. Mr. President, the bill at the desk is introduced on
behalf of myself, Senators Specter, Dodd, Graham, and Schumer. I am
pleased to join my good friends and colleagues, Senators Specter and
Dodd, in introducing a revised version of the Free Flow of Information
Act.
I believe that the free flow of information essential element of
democracy. In order for the United States to foster the spread of
freedom and democracy globally, it is incumbent that we first support
an open and free press nationally. The role of the media as a conduit
between government and the citizens it serves must not be devalued.
Unfortunately, the free flow of information to citizens of the United
States is inhibited. Over 30 reporters were recently served or
threatened with jail sentences in at least four different Federal
jurisdictions for refusing to reveal confidential sources. I fear the
end result of such actions is that many whistleblowers will refuse to
come forward and reporters will be unable to provide our constituents
with information they have a right to know.
In 1972, the Supreme Court held in Branzburg v. Hayes, that reporters
did not have an absolute privilege as third party witnesses to protect
their sources from prosecutors. Since Branzburg, every State and the
District of Columbia, excluding Wyoming has created a privilege for
reporters not to reveal their confidential sources. My own State of
Indiana provides qualified reporters an absolute protection from having
to reveal any such information in court.
The Federal courts of appeals, however, have an incongruent view of
this matter. Each circuit has addressed the question of the privilege
in a different manner. Some circuits allow the privilege in one
category of cases, while others, have expressed skepticism about
whether any privilege exists at all.
Congress should clarify the extraordinary differences of opinion in
the Federal courts of appeals and the effect they have on undermining
the general policy of protection already in place among the States.
Likewise, the ambiguity between official Department of Justice rules
and unofficial criteria used to secure media subpoenas is unacceptable.
There is an urgent need for Congress to state clear and concise
policy guidance.
Senators Specter, Dodd, and I have introduced legislation today that
preserves the free flow of information to the public by providing the
press the ability to obtain and protect confidential sources. It
provides journalists with certain rights and abilities to sources and
report appropriate information without fear of intimidation or
imprisonment. This bill sets national standards, based on Department of
Justice guidelines, for subpoenas issued to reporters by the Federal
Government.

[[Page S4801]]

Our legislation promotes greater transparency of government,
maintains the ability of the courts to operate effectively, and
protects the whistleblowers that identify government or corporate
misdeeds and protect national security.
It is also important to note what this legislation does not do. The
legislation does not permit rule breaking, give reporters a license to
break the law, or permit reporters to interfere with crimes prevention
efforts. Furthermore, the Free Flow of Information Act does not weaken
national security nor restrict law enforcement. Additional protections
have been added to this bill to ensure that information will be
disclosed in cases where the guilt or innocence of a criminal is in
question, in cases where a reporter was an eye witness to a crime, and
in cases where the information is critical to prevent death or bodily
harm. The national security exception and continued strict standards
relating to classified information will ensure that reporters are
protected while maintaining an avenue for prosecution and disclosure
when considering the defense of our country.
Reporters Without Borders has reported that more than 100 journalists
are currently in jail around the world, with more than half in China,
Cuba, and Burma. This is not good company for the United States of
America. Global public opinion is always on the lookout to advertise
perceived American double standards.
I believe that passage of this bill would have positive diplomatic
consequences. This legislation not only confirms America's
constitutional commitment to press freedom, it also advances President
Bush's American foreign policy initiatives to promote and protect
democracy. When we support the development of free and independent
press organizations worldwide, it is important to maintain these ideals
at home.
In conclusion, I thank, again, my colleagues, Senator Specter, the
distinguished chairman of the Judiciary Committee, and Senator Dodd for
their tireless work on this issue. With their assistance, I look
forward to working with each of my colleagues to ensure that the free
flow of information is unimpeded.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I am pleased to join with Senator Lugar,
the principal sponsor, and Senators Dodd, Graham, and Schumer on the
introduction of legislation which will codify a reporter's privilege,
something that is very necessary. The matter came into sharp focus
recently with the contempt citation and the incarceration of New York
Times reporter, Judith Miller, for some 85 days. The Judiciary
Committee held two hearings on this subject. Senator Lugar, with
Congressman Pence in the House, introduced legislation which has formed
the nucleus of the bill we are introducing today.
The Branzburg v. Hayes case, 33 years ago, which was a 5-to-4
decision, with a concurring opinion by Justice Powell, has led to what
is accurately called a ``crazy quilt'' situation in the circuits--five
circuits going one way, four circuits going another way, and laws
unsettled in some circuits. This bill, modeled significantly after the
Department of Justice regulations, will codify this important issue.
There is an exception on reporter's privilege for national security
cases. Keeping in mind the incarceration of Judith Miller, this bill
makes a sharp distinction between national security and an inquiry in
the grand jury for obstruction of justice or perjury. As a prosecutor
in the past, I have great appreciation for the offenses of obstruction
of justice and perjury. But in my judgment, they do not rise to the
level of importance as a national security case. When a special
prosecutor's investigation shifts from the disclosure of a CIA agent,
to a question of obstruction of justice, it is a very different
situation. This bill would not permit, would not compel the disclosure
of a source for obstruction of justice or perjury, but would compel the
disclosure of a source for a national security case.
This legislation has the endorsement of 39 of the major media
organizations in the United States: The New York Times, the Washington
Post, the Associated Press, Time, Hearst Corporation, Philadelphia
Inquirer, Newspaper Association of America, ABC, NBC, and CBS. It goes
a long way to protecting sources, but it also leaves latitude, in the
form of a balancing test, for Federal prosecutors to gain information
under limited circumstances for plaintiffs and defendants in civil
cases to have access to sources. And, it does not have a shield if a
reporter is a witness to some criminal incident.
In recent months, there has been a growing consensus that we need to
establish a Federal journalists' privilege to protect the integrity of
the newsgathering process--a process that depends on the free flow of
information between journalists and whistleblowers, as well as other
confidential sources. I do not reach this conclusion lightly. The
Judiciary Committee held two separate hearings in which it heard from
sixteen witnesses. Included in this number were seven journalists, six
attorneys, including current or former prosecutors and some of the
Nation's most distinguished experts on the first amendment.
These witnesses demonstrated that there are two vital, competing
concerns at stake. On one hand, reporters cite the need to maintain
confidentiality in order to ensure that sources will speak openly and
freely with the news media. The renowned William Safire, former
columnist for the New York Times, testified that ``the essence of news
gathering is this: if you don't have sources you trust and who trust
you, then you don't have a solid story--and the public suffers for
it.'' Reporter Matthew Cooper of Time magazine said this to the
Committee: ``As someone who relies on confidential sources all the
time, I simply could not do my job reporting stories big and small
without being able to speak with officials under varying degrees of
anonymity.''
On the other hand, the public has a right to effective law
enforcement and fair trials. Our judicial system needs access to
information in order to prosecute crime and to guarantee fair
administration of the law for plaintiffs and defendants alike. As a
Justice Department representative told the committee, prosecutors need
to ``maintain the ability, in certain vitally important circumstances,
to obtain information identifying a source when a paramount interest is
at stake. For example, obtaining source information may be the only
available means of preventing a murder, locating a kidnapped child, or
identifying a serial arsonist.''
As Federal courts considered such competing interests, they adopted
rules that went in several different directions. Rather than a clear,
uniform standard for deciding claims of journalist privilege, the
Federal courts currently observe a ``crazy quilt'' of different
judicial standards.
The current confusion began 33 years ago, when the Supreme Court
decided Branzburg v. Hayes. The Court held that the press's first
amendment right to publish information does not include a right to keep
information secret from a grand jury investigating a criminal matter.
The Supreme Court also held that the common law did not exempt
reporters from the duty of every citizen to provide information to a
grand jury.
The Court reasoned that just as newspapers and journalists are
subject to the same laws and restrictions as other citizens, they are
also subject to the same duty to provide information to a court as
other citizens. However, Justice Powell, who joined the 5-4 majority,
wrote a separate concurrence in which he explained that the Court's
holding was not an invitation for the government to harass journalists.
If a journalist could show that the grand jury investigation was being
conducted in bad faith, the journalist could ask the court to quash the
subpoena. Justice Powell indicated that courts might assess such claims
on a case-by-case basis by balancing the freedom of the press against
the obligation to give testimony relevant to criminal conduct.

In attempting to apply Justice Powell's concurring opinion, Federal
courts have split on the question of when a journalist is required to
testify. In the 33 years since Branzburg, the Federal courts are split
in at least three ways in their approaches to Federal criminal and
civil cases.
With respect to Federal criminal cases, five circuits--the first,
fourth, fifth, sixth, and seventh circuits--have

[[Page S4802]]

applied Branzburg so as to not allow journalists to withhold
information absent governmental bad faith. Four other circuits--the
second, third, ninth, and eleventh circuits--recognize a qualified
privilege, which requires courts to balance the freedom of the press
against the obligation to provide testimony on a case-by-case basis.
The law in the District of Columbia Circuit is unsettled.
With respect to Federal civil cases, nine of the twelve circuits
apply a balancing test when deciding whether journalists must disclose
confidential sources. One circuit affords journalists no privilege in
any context. Two other circuits have yet to decide whether journalists
have any privilege in civil cases. Meanwhile, 49 States plus the
District of Columbia have recognized a privilege within their own
jurisdictions. Thirty-one States plus the District of Columbia have
passed some form of reporter's shield statute, and 18 States have
recognized a privilege at common law.
There is little wonder that there is a growing consensus concerning
the need for a uniform journalists' privilege in Federal courts. This
system must be simplified.
Today, we are taking the first step to resolving this problem by
introducing the Free Flow of Information Act. This bill draws upon 33
years of experience, as embodied in the Department of Justice's
regulations, the law established by the Federal courts of appeals,
State statutes, and existing national security provisions. The purpose
of this bill is to guarantee the flow of information to the public
through a free and active press, while protecting the public's right to
effective law enforcement and individuals' rights to the fair
administration of justice.
This bill provides ample protection for the Nation's journalists, as
demonstrated by the fact that it has been endorsed by 39 news
organizations identified in a list I will include at the end of my
remarks.
This bill also provides ample protection to the public's interest in
law enforcement and fair trials. In drafting this legislation, we
started with what works. Both the Department of Justice and the vast
majority of journalists with whom we have met--in individual meetings
and over the course of two hearings--have generally voiced strong
support for the regulations that the Department of Justice currently
applies to all of its prosecutors. Moreover, time has proven that these
regulations are workable. The Department of Justice has been
effectively prosecuting cases under these regulations for 25 years and
a majority of State prosecutors carry out their duties under similar
statutes.

I have two concerns with the Department's regulations, however.
First, under current law, these regulations do not apply to special
prosecutors. Special prosecutors are often called upon in cases that
are politically sensitive, may potentially be embarrassing to senior
government officials, and are high profile--those cases that seem to
carry the greatest risk of an overzealous prosecutor needlessly
subpoenaing journalists.
Second, the Department regulations are presently enforced by the
Attorney General, not a neutral court of law. This places the Attorney
General in a difficult position; namely, the primary check on Federal
prosecutors' ability to subpoena journalists is the nation's highest
Federal prosecutor. Most Americans, I believe, would feel more
comfortable having the competing interests weighed by a neutral judge
instead of a political appointee who answers to the President.
Accordingly, this bill, in large part, codifies the Department of
Justice's regulations into law; applies them to all Federal
prosecutors, including special prosecutors; and provides that the
courts, not a political official, shall decide whether the public's
need for information outweighs the interest in allowing a journalist to
protect a confidential source.
The Free Flow of Information Act addresses two additional areas of
considerable confusion and concern. First, it addresses the situation
of a criminal defendant who subpoenas a journalist. To ensure that
every criminal defendant has a fair trial, a criminal defendant has
less of a burden than a prosecutor does, to show that the journalist's
privilege should be waived. This is consistent with our long standing
belief as a nation that a criminal defendant must be given ample
opportunity to defend himself.
Second, it addresses private civil litigation. This bill provides
that before a private party may subpoena a journalist in a civil suit,
the court must find that the party is not trying to harass or punish
the journalist, and that the public interest requires disclosure.
Again, this should help clarify the existing law in federal courts.

Finally, the Free Flow of Information Act adds layers of safeguards
for the public. Reporters are not allowed to withhold information if a
federal court concludes that the information is important to the
defense of our Nation's security or is needed to prevent or stop a
crime that could lead to death or physical injury. Also, the bill
ensures that both crime victims and criminal defendants will have a
fair hearing in court. Under this bill, a journalist who is an
eyewitness to a crime or takes part in a crime may not withhold that
information. Journalists should not be permitted to hide from the law
by writing a story and then claiming a reporter's privilege.
It is time to simplify the patchwork of court decisions and
legislation that has grown over the last three decades. It is time for
Congress to clear up the ambiguities journalists and the Federal
judicial system face in balancing the protections journalists need in
providing confidential information to the public with the ability of
the courts to conduct fair and accurate trials. I urge my colleagues to
support this legislation and help create a fair and efficient means to
serve journalists and the news media, prosecutors and the courts, and
most importantly the public interest on both ends of the spectrum.
I ask unanimous consent to print the list of organizations and
companies that support the legislation in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Organizations/Companies Supporting ``Free Flow of Information Act of
2006''

ABC Inc.; Advance Publications, Inc.; American Business
Media; American Society of Newspaper Editors; Associated
Press; Association of American Publishers, Inc.; Association
of Capitol Reporters and Editors; Belo Corp.; CBS; CNN;
Coalition of Journalists for Open Government; The Copley
Press, Inc., Court TV; Cox Enterprises, Inc.; Freedom
Communication, Inc.; Gannett Co., Inc.; The Hearst
Corporation; Magazine Publishers of America; The McClatchy
Company; The McGraw-Hill Companies.
Media Law Resources Center; National Newspaper Association;
Nation Press Photographers Association; National Public
Radio; NBC Universal; News Corporation; Newspaper Association
of America; Newsweek; The New York Times Company; Radio-
Television News Directors Association; Raycom Media, Inc.;
The Reporters Committee for Freedom of the Press; E. W.
Scripps; Society of Professional Journalists; Time Inc.; Time
Warner; Tribune Company; The Washington Post; White House
Correspondents' Association.

The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Mr. President, let me express my gratitude to my colleague
from Indiana, Senator Lugar, and his colleague from Indiana,
Congressman Pence, and his colleague, Congressman Boucher of Virginia,
who are drafting similar legislation and propose similar legislation in
the other body and, of course, Senator Specter, the chairman of the
Judiciary Committee, my colleague from New York, Senator Schumer, and
the Presiding Officer for their work on pulling together this bill
which is a very sound proposal. As the Senator from Pennsylvania has
explained, it deals with an issue that many were concerned about, and
that is the national security question.
The point I would like to make is that while this is about
journalists and the collection of information and revealing stories
that might otherwise not be told, the real winners of this proposal are
not journalists or news media outlets, television stations, or the
like. The real winners are the people we represent, our constituents,
and the consumers of information. This is most important for them. It
is really not that significant. If it were only about journalists,
frankly, we might have second questions about it.
Jefferson, of course, said it better than anyone many years ago when
he said if he had to choose between a free country and a free press, he
would select the latter. Madison, on the same

[[Page S4803]]

subject, talking about freedom of information, freedom of the press,
had this quote:

Popular government without popular information or the means
of acquiring it is but a prologue to a farce, or tragedy, or
perhaps both.

Today, that fundamental principle--that a well-informed citizenry is
the cornerstone of self-government--is at risk in a manner in which it
has not been at risk previously.
In the past year alone, some two dozen reporters have been subpoenaed
or questioned about their confidential sources. Most of theme face
fines or prison time. Seven have already been held in contempt. One has
been jailed. Another was found guilty of criminal contempt for refusing
to reveal a confidential source and served 6 months under house arrest.
Why? Because they received information from confidential sources and
pledged to protect the confidentiality of those sources. In other
words, they have committed the ``offense'' of being journalists.
These actions by our Government against journalists are having a
profound impact on news gathering. For example, in testimony last
summer before the Senate Judiciary Committee, Norman Pearlstine, the
editor in chief of Time, Inc., said this about the fallout from the
Justice Department's efforts to obtain confidential information from a
Time reporter:

Valuable sources have insisted that they no longer trusted
the magazine and that they would no longer cooperate on
stories. The chilling effect is obvious.

Confidential evidence may be just the tip of the iceberg. We have no
way of knowing for certain the number of journalists who have been
ordered or requested to reveal confidential sources. We can only
speculate as to how many editors and publishers put the brakes on a
story for fear that it could land one of their reporters in a spider
web spun by the Federal prosecutors that could include prison. If
citizens with knowledge of wrongdoing could not or would not come
forward to share what they know in confidence with members of the
press, serious journalism would cease to exist, in my view. Serious
wrongs would remain unexposed. The scandals known as Watergate, the
Enron failure, the Abu Ghraib prison photos--none of these would have
been known to the public but for good journalists doing their work.
That scenario is no longer purely hypothetical. It is, in some
respects, already a reality. When journalists are hauled into court by
prosecutors and threatened with fines and imprisonment if they don't
divulge the sources of their information, we are entering a dangerous
territory for a democracy. That is when not only journalists, but
ordinary citizens, will fear prosecution simply for exposing
wrongdoing. When that happens, the information our citizens need to
remain sovereign will be degraded, making it more and more difficult to
hold accountable those in power. When the public's right to know is
threatened, then I suggest to you that all of the liberties we hold
dear are threatened, as well.
Again, I thank Senator Specter for working out this compromise, and I
emphasize that the issue of national security, which was a very
legitimate concern, has been handled by this proposal. The underlying
issue is the right of citizens to have access to important information
that might otherwise never become available were it not for the ability
to have confidential sources share that information and the ability of
these journalists to protect the confidentiality of those sources.
Thirty-nine States have provisions dealing with the shield law. I think
10 States have regulations regarding the same matter.
I think it is long overdue that the Federal Government have a similar
piece of legislation to protect the kind of information we seek. I
commend my colleagues for their efforts in this regard. I am happy to
join them.
Mr. SESSIONS. Mr. President, I say with regard to what has just taken
place, these are complex areas, and we need to be careful about
protecting our free speech rights. Nobody denies that. But you have to
be careful, too. I was thinking that if a spy comes into our country
and gets secure information and gives it to our enemy, we put him in
jail, and they can be convicted, I guess, of treason. If a reporter
gets information and publishes it to our enemies and to the whole
world, they get the Pulitzer prize.
I think we have to be careful about how we word this. I am sure we
will come up with a pretty good solution.
Mr. SPECTER. Mr. President, I ask unanimous consent that Senator
Schumer be recognized for 4 minutes to speak on the Lugar-Specter-Dodd
bill.
The PRESIDING OFFICER. The Senator from New York is recognized.
Mr. SCHUMER. Mr. President, I join as a cosponsor of the bill just
introduced because I think it really cuts the Gordian knot. There has
been a deadlock on improving the shield law for the very reason that
not all disclosures by Government officials to members of the press are
equal. We certainly want to protect a whistleblower. We certainly want
a person, if they work at the FDA and see that tests are being short-
circuited and they go to higher-ups and get nowhere, to be able to go
to the press and expose it. It is a far different matter when something
is prohibited by statute from being made public, such as with grand
jury minutes. Frankly, that dealt with the Plame case. In both cases
making that information public was a violation of law. There was a
public policy against disclosure, which there is not in the typical
whistleblower case.
I believe the reason that the legislation my colleagues from Indiana
and Connecticut put in didn't get as much support is that it failed to
distinguish that difference. We need to protect the press, especially
with a large Government that keeps things secret more and more. But we
also have to have some respect for the fact that there are certain
things that should not be made public by statute in open debate.
As I said, this legislation cuts the Gordian knot. It protects those
matters that should not be made public and doesn't put them under the
shield of law but strengthens the protections for whistleblowers and
others who might want to expose Government wrongdoing when there is no
other way to expose it.
This is a large step forward. It is legislation I am proud to
cosponsor. I am very glad that the deadlock has been broken by this
thoughtful legislation, which I now believe will garner enough support
to become law. Whereas, the previous legislation, as sweeping as it
was, would not.
I compliment my colleagues from Indiana, Connecticut, Pennsylvania,
and South Carolina, with whom I join as lead cosponsors because it is
going to make our country a better place.
______

By Mr. KOHL (for himself and Mr. DeWine):
S. 2854. A bill to prevent anti-competitive mergers and acquisitions
in the oil and gas industry; to the Committee on the Judiciary.
Mr. KOHL. Mr. President, I rise today to introduce the Oil Industry
Merger Antitrust Enforcement Act. This legislation will significantly
strengthen the antitrust laws to prevent anticompetitive mergers and
acquisitions in oil and gas industry.
We have all seen the suffering felt by consumers and our national
economy resulting from rising energy prices. Gasoline prices have now
shattered the once unthinkable $3.00 a gallon level, have doubled in
the last 5 years, and increased more than 30 percent in the last year
alone. And prices for other crucial energy products--such as natural
gas and home heating oil--have undergone similar sharp increases.
Industry experts debate the causes of these extraordinarily high
prices. Possible culprits are growing worldwide demand, supply
disruptions, the actions of the OPEC oil cartel and limits on refinery
capacity in the United States. But about one thing there can be no
doubt--the substantial rise in concentration and consolidation in the
oil industry. Since 1990, the Government Accountability Office has
counted over 2,600 mergers, acquisitions and joint ventures in the oil
industry. Led by gigantic mergers such as Exxon/Mobil, BP/Arco, Conoco/
Phillips and Chevron/Texaco, by 2004, the five largest U.S. oil
refining companies controlled over 56 percent of domestic refining
capacity, a greater market share than that controlled by the top 10
companies a decade earlier.
This merger wave has led to substantially less competition in the oil
industry. In 2004, the GAO concluded that these mergers have directly
caused increases in the price of gasoline. A

[[Page S4804]]

study by the independent consumer watchdog Public Citizen found that in
the 5 years between 1999 and 2004, U.S. oil refiners increased their
average profits on every gallon of gasoline refined from 22.8 cents to
40.8 cents, a 79 percent jump. And the grossly inflated profit numbers
of the major oil companies--led by Exxon Mobil's $8.4 billion profit in
the first quarter of 2006, which followed its $36 billion profit in
2005, the highest corporate profits ever achieved in U.S. history, are
conclusive evidence--if any more was needed--of the lack of competition
in the U.S. oil industry. While it is true that the world price of
crude oil has substantially increased, the fact that the oil companies
can so easily pass along all of these price increases to consumers of
gasoline and other refined products--and greatly compound their profits
along the way--confirms that that there is a failure of competition in
our oil and gas markets.
More than 90 years ago, one of our Nation's basic antitrust laws--the
Clayton Act--was written to prevent just such industry concentration
harming competition. It makes illegal any merger or acquisition the
effect of which ``may be substantially to lessen competition.'' Despite
the plain command of this law, the Federal Trade Commission--the
Federal agency with responsibility for enforcing antitrust law in the
oil and gas industry--has failed to take any effective action to
prevent undue concentration in this industry. Instead, it permitted
almost all of these 2,600 oil mergers and acquisitions to proceed
without challenge. And where the FTC has ordered divestitures, they
have been wholly ineffective to restore competition. Consumers have
been at the mercy of an increasingly powerful oligopoly of a few giant
oil companies, passing along price increases without remorse as the
market becomes increasingly concentrated and competition diminishes. It
is past time for us in Congress to take action to strengthen our
antitrust law so that it will, as intended, stand as a bulwark to
protect consumers and prevent any further loss of competition in this
essential industry.
Our bill will strengthen merger enforcement under the antitrust law
in two respects. First, it will direct that the FTC, in conjunction
with the Justice Department, revise its Merger Guidelines to take into
account the special conditions prevailing in the oil industry. In
reviewing a pending merger or acquisition to determine whether to
approve it or take legal action to block it, the FTC follows what are
known as ``Merger Guidelines.'' The Merger Guidelines set forth the
factors that the agency must examine to determine if a merger or
acquisition lessens competition, and sets forth the legal tests the FTC
is to follow in deciding whether to approve or challenge a merger. As
presently written, the Merger Guidelines fail to direct the FTC, when
reviewing an oil industry merger, to pay any heed at all to the special
economic conditions prevailing in that industry.
Our bill will correct this deficiency. Many special conditions
prevail in the oil and gas marketplace that warrant scrutiny,
conditions that do not occur in other industries, and the Merger
Guidelines should reflect these conditions. In most industries, when
demand rises and existing producers earn ever-increasing profits, new
producers enter the market and new supply expands, reducing the
pressure on price. However, in the oil industry, there are severe
limitations on supply and environmental and regulatory difficulty in
opening new refineries, so this normal market mechanism cannot work.
Additionally, in most industries, consumers shift to alternative
products in the face of sharp price increases, leading to a reduction
in demand and a corresponding reduction in the pressure to increase
prices. But for such an essential commodity as gasoline, consumers have
no such option--they must continue to consume gasoline to get to work,
to go to school, and to shop. These factors all mean that antitrust
enforcers should be especially cautious about permitting increases in
concentration in the oil industry.
Accordingly, our bill directs the FTC and Justice Department to
revise its Merger Guidelines to take into account the special
conditions prevailing in the oil industry--including the high
inelasticity of demand for oil and petroleum-related products; the ease
of gaining market power; supply and refining capacity limits;
difficulties of market entry; and unique regulatory requirements
applying to the oil industry. This revision of the Merger Guidelines
must be completed within 6 months of enactment of this legislation.
The second manner in which this legislation will strengthen antitrust
enforcement will be to shift the burden of proof in Clayton Act
challenges to oil industry mergers and acquisitions. In such cases, the
burden will be placed on the merging parties to establish, by a
preponderance of evidence, that their transaction does not
substantially lessen competition. This provision would reverse the
usual rule that the government or private plaintiff challenging the
merger must prove that the transaction harms competition. As the
parties seeking to effect a merger with a competitor in an already
concentrated industry, and possessing all the relevant data regarding
the transaction, it is entirely appropriate that the merging parties
bear this burden. This provision does not forbid all mergers in the oil
industry if the merging parties can establish that their merger does
not substantially harm competition, it may proceed. However, shifting
the burden of proof in this manner will undoubtedly make it more
difficult for oil mergers and acquisition to survive court challenge,
thereby enhancing the law's ability to block truly anticompetitive
transactions and deterring companies from even attempting such
transactions. In today's concentrated oil industry and with consumers
suffering record high prices, mergers and acquisitions that even the
merging parties cannot justify should not be tolerated.
As ranking member on the Senate Antitrust Subcommittee, I believe
that this bill is a crucial step to ending this unprecedented move
towards industry concentration and to begin to restore competitive
balance to the oil and gas industry. Since the days of the break-up of
the Standard Oil trust 100 years ago, antitrust enforcement has been
essential to prevent undue concentration in this industry. This bill is
an essential step to ensure that our antitrust laws are sufficiently
strong to ensure a competitive oil industry in the 21st century. I urge
my colleagues to support the Oil Industry Merger Antitrust Enforcement
Act.
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. 2854

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 ``Oil Industry Merger
Antitrust Enforcement Act''.

SEC. 2. STATEMENT OF FINDINGS AND DECLARATIONS OF PURPOSES.

(a) Findings.--Congress finds the following:
(1) American consumers are suffering from excessively high
prices for gasoline, natural gas, heating oil, and other
energy products.
(2) These excessively high energy prices have been caused,
at least in substantial part, by undue concentration among
companies involved in the production, refining, distribution,
and retail sale of oil, gasoline, natural gas, heating oil,
and other petroleum-related products.
(3) There has been a sharp consolidation caused by mergers
and acquisitions among oil companies over the last decade,
and the antitrust enforcement agencies (the Federal Trade
Commission and the Department of Justice Antitrust Division)
have failed to employ the antitrust laws to prevent this
consolidation, to the detriment of consumers and competition.
This consolidation has caused substantial injury to
competition and has enabled the remaining oil companies to
gain market power over the sale, refining, and distribution
of petroleum-related products.
(4) The demand for oil, gasoline, and other petroleum-based
products is highly inelastic so that oil companies can easily
utilize market power to raise prices.
(5) Maintaining competitive markets for oil, gasoline,
natural gas, and other petroleum-related products is in the
highest national interest.
(b) Purposes.--The purposes of this Act are to--
(1) ensure vigorous enforcement of the antitrust laws in
the oil industry;
(2) restore competition to the oil industry and to the
production, refining, distribution, and marketing of gasoline
and other petroleum-related products; and
(3) prevent the accumulation and exercise of market power
by oil companies.

[[Page S4805]]

SEC. 3. BURDEN OF PROOF.

Section 7 of the Clayton Act (15 U.S.C. 18) is amended by
adding at the end the following:
``In any civil action brought against any person for
violating this section in which the plaintiff--
``(1) alleges that the effect of a merger, acquisition, or
other transaction affecting commerce may be to substantially
lessen competition, or to tend to create a monopoly, in the
business of exploring for, producing, refining, or otherwise
processing, storing, marketing, selling, or otherwise making
available petroleum, oil, or natural gas, or products derived
from petroleum, oil, or natural gas; and
``(2) establishes that a merger, acquisition, or
transaction is between or involves persons competing in the
business of exploring for, producing, refining, or otherwise
processing, storing, marketing, selling, or otherwise making
available petroleum, oil, or natural gas, or products derived
from petroleum, oil, or natural gas;

the burden of proof shall be on the defendant or defendants
to establish by a preponderance of the evidence that the
merger, acquisition, or transaction at issue will not
substantially lessen competition or tend to create a
monopoly.''.

SEC. 4. ENSURING FULL AND FREE COMPETITION.

(a) Review.--The Federal Trade Commission and the Antitrust
Division of the Department of Justice shall jointly review
and revise all enforcement guidelines and policies, including
the Horizontal Merger Guidelines issued April 2, 1992 and
revised April 8, 1997, and the Non-Horizontal Merger
Guidelines issued June 14, 1984, and modify those guidelines
in order to--
(1) specifically address mergers and acquisitions in oil
companies and among companies involved in the production,
refining, distribution, or marketing of oil, gasoline,
natural gas, heating oil, or other petroleum-related
products; and
(2) ensure that the application of these guidelines will
prevent any merger and acquisition in the oil industry, when
the effect of such a merger or acquisition may be to
substantially lessen competition, or to tend to create a
monopoly, and reflect the special conditions prevailing in
the oil industry described in subsection (b).
(b) Special Conditions.--The guidelines described in
subsection (a) shall be revised to take into account the
special conditions prevailing in the oil industry,
including--
(1) the high inelasticity of demand for oil and petroleum-
related products;
(2) the ease of gaining market power in the oil industry;
(3) supply and refining capacity limits in the oil
industry;
(4) difficulties of market entry in the oil industry; and
(5) unique regulatory requirements applying to the oil
industry.
(c) Competition.--The review and revision of the
enforcement guidelines required by this section shall be
completed not later than 6 months after the date of enactment
of this Act.
(d) Report.--Not later than 6 months after the date of
enactment of this Act, the Federal Trade Commission and the
Antitrust Division of the Department of Justice shall jointly
report to the Committee on the Judiciary of the Senate and
the Committee on the Judiciary of the House of
Representatives regarding the review and revision of the
enforcement guidelines mandated by this section.

SEC. 5. DEFINITIONS.

In this Act:
(1) Oil industry.--The term ``oil industry'' means
companies and persons involved in the production, refining,
distribution, or marketing of oil or petroleum-based
products.
(2) Petroleum-based product.--The term ``petroleum-based
product'' means gasoline, diesel fuel, jet fuel, home heating
oil, natural gas, or other products derived from the refining
of oil or petroleum.
______

By Mr. BIDEN (for himself and Mr. Jeffords):
S. 2855. A bill to amend the Safe Drinking Water Act to eliminate
security risks by replacing the use of extremely hazardous gaseous
chemicals with inherently safer technologies; to the Committee on
Environment and Public Works.
Mr. BIDEN. Mr. President, I rise today to introduce the Community
Water Treatment Hazards Reduction Act of 2006. This legislation would
completely eliminate a known security risk to millions of Americans
across the United States by facilitating the transfer to safer
technologies from deadly toxic chemicals at our Nation's water
treatment facilities.
Across our Nation, there are thousands of water treatment facilities
that utilize gaseous toxic chemicals to treat drinking and wastewater.
Approximately 2,850 facilities are currently regulated under the Clean
Air Act because they store large quantities of these dangerous
chemicals. In fact, 98 of these facilities threaten over 100,000
citizens. For example, the Fiveash Water Treatment Plant in Fort
Lauderdale, FL, threatens 1,526,000 citizens. The Bachman Water
Treatment in Dallas, TX, threatens up to 2 million citizens. And there
are similar examples in communities throughout the Nation. If these
facilities--and the 95 other facilities that threaten over 100,000
citizens--switched from the use of toxic chemicals to safer
technologies that are widely used within the industry we could
completely eliminate a known threat to nearly 50 million Americans.
Many facilities have already made the prudent decision to switch
without intervention by the government. The Middlesex County Utilities
Authority in Sayreville, NJ, switched to safer technologies and
eliminated the risk to 10.7 million people. The Nottingham Water
Treatment Plant in Cleveland, OH, switched and eliminated the risk to
1.1 million citizens. The Blue Plains Wastewater Treatment Plant
switched and eliminated the risk to 1.7 million people. In my hometown
of Wilmington, DE, the Wilmington Water Pollution Control Facility
switched from using chlorine gas to liquid bleach. This commendable
decision has eliminated the risk to 560,000 citizens, including the
entire city of Wilmington. In fact, this facility no longer has to
submit risk management plans to the Environmental Protection Agency
required by the Clean Air Act because the threat has been completely
eliminated. There are many other examples of facilities that have done
the right thing and eliminated the use of these dangerous, gaseous
chemicals.
The bottom line is that if we can eliminate a known risk, we should.
The legislation I am introducing today will do just that. It will
require the Administrator of the Environmental Protection Agency, in
consultation with the Secretary of Homeland Security, to do a few
simple things. First, water facilities will be prioritized based upon
the risk that they pose to citizens and critical infrastructure. These
facilities--beginning with the most dangerous ones--will be required to
submit a report on the feasibility of utilizing safer technologies and
the anticipated costs to transition. If grant funding is available, the
Administrator will issue a grant and order the facility to transition
to the safer technology chosen by the owner of the facility. I believe
that this approach will allow us to use Federal funds responsibly while
reducing risk to our citizens.
Once the transition is complete, the facility will be required to
track all cost-savings related to the switch, such as decreased
security costs, costs saving by eliminating administrative requirements
under the EPA risk management plan, lower insurance premiums, and
others. If savings are ultimately realized by the facility, it will be
required to return one half of these savings, not to exceed the grant
amount, back to the EPA. In turn, the EPA will utilize any returned
savings to help facilitate the transition of more water facilities.
A 2005 report by the Government Accountability Office found that
providing grants to assist water facilities to transition to safer
technologies was an appropriate use of Federal funds. The costs for an
individual facility to transition will vary, but the cost is very cheap
when you consider the security benefits. For example, the Wilmington
facility invested approximately $160,000 to transition and eliminated
the risk to nearly 600,000 people. Similarly, the Blue Plains facility
spent $500,000 to transition after 9-11 and eliminated the risk to 1.2
million citizens immediately. This, in my view, is a sound use of
funds. And, this legislation will provide sufficient funding to
transition all of our high-priority facilities throughout Nation.
Finally, I would like to point out that facilities making the
decision to transition after 9-11, but before the enactment date of
this legislation will be eligible to participate in the program
authorized by this legislation. I have included this provision because
I believe that the Federal Government should acknowledge--and promote--
local decisions that enhance our homeland security. In addition, we
don't want to create a situation where water facilities wait for
Federal funding, before doing the right thing and eliminating those
dangerous gaseous chemicals.
Last December the 9-11 Discourse Project released its report card for
the

[[Page S4806]]

administration and Congress on efforts to implement the 9-11 Commission
recommendations. It was replete with D's and F's demonstrating that we
have been going in the wrong direction with respect to homeland
security. One of the most troubling findings made by the 9-11
Commission is that with respect to our Nation's critical infrastructure
that ``no risk and vulnerability assessments actually made; no national
priorities established; no recommendations made on allocations of
scarce resources. All key decisions are at least a year away. It is
time that we stop talking about priorities and actually set some.''
While much remains to be done, the Community Water Treatment Hazards
Reduction Act of 2006 sets an important priority for our homeland
security and it affirmatively addresses it. I urge my colleagues to
support this important legislation.
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. 2855

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 ``Community Water Treatment
Hazards Reduction Act of 2006''.

SEC. 2. USE OF INHERENTLY SAFER TECHNOLOGIES AT WATER
FACILITIES.

Part F of the Safe Drinking Water Act (42 U.S.C. 300j-21 et
seq.) is amended by adding at the end the following:

``SEC. 1466. USE OF INHERENTLY SAFER TECHNOLOGIES AT WATER
FACILITIES.

``(a) Definitions.--In this section:
``(1) Harmful intentional act.--The term `harmful
intentional act' means a terrorist attack or other
intentional act carried out upon a water facility that is
intended--
``(A) to substantially disrupt the ability of the water
facility to provide safe and reliable--
``(i) conveyance and treatment of wastewater or drinking
water;
``(ii) disposal of effluent; or
``(iii) storage of a potentially hazardous chemical used to
treat wastewater or drinking water;
``(B) to damage critical infrastructure;
``(C) to have an adverse effect on the environment; or
``(D) to otherwise pose a significant threat to public
health or safety.
``(2) Inherently safer technology.--The term `inherently
safer technology' means a technology, product, raw material,
or practice the use of which, as compared to the current use
of technologies, products, raw materials, or practices,
significantly reduces or eliminates--
``(A) the possibility of release of a substance of concern;
and
``(B) the hazards to public health and safety and the
environment associated with the release or potential release
of a substance of concern.
``(3) Secretary.--The term `Secretary' means the Secretary
of Homeland Security (or a designee).
``(4) Substance of concern.--
``(A) In general.--The term `substance of concern' means
any chemical, toxin, or other substance that, if transported
or stored in a sufficient quantity, would have a high
likelihood of causing casualties and economic damage if
released or otherwise successfully targeted by a harmful
intentional act, as determined by the Administrator, in
consultation with the Secretary.
``(B) Inclusions.--The term `substance of concern'
includes--
``(i) any substance included in Table 1 or 2 contained in
section 68.130 of title 40, Code of Federal Regulations (or a
successor regulation), published in accordance with section
112(r)(3) of the Clean Air Act (42 U.S.C. 7412(r)(3)); and
``(ii) any other highly hazardous gaseous toxic material or
substance that, if transported or stored in a sufficient
quantity, could cause casualties or economic damage if
released or otherwise successfully targeted by a harmful
intentional act, as determined by the Administrator, in
consultation with the Secretary.
``(5) Treatment works.--The term `treatment works' has the
meaning given the term in section 212 of the Federal Water
Pollution Control Act (33 U.S.C. 1292).
``(6) Vulnerability zone.--The term `vulnerability zone'
means, with respect to a substance of concern, the geographic
area that would be affected by a worst-case release of the
substance of concern, as determined by the Administrator on
the basis of--
``(A) an assessment that includes the information described
in section 112(r)(7)(B)(ii)(I) of the Clean Air Act (42
U.S.C. 7412(r)(7)(B)(ii)(I)); or
``(B) such other assessment or criteria as the
Administrator determines to be appropriate.
``(7) Water facility.--The term `water facility' means a
treatment works or public water system owned or operated by
any person.
``(b) Regulations.--
``(1) In general.--Not later than 90 days after the date of
enactment of this section, the Administrator, in consultation
with the Secretary and other Federal, State, and local
governmental entities, security experts, owners and operators
of water facilities, and other interested persons shall--
``(A) compile a list of all high-consequence water
facilities, as determined in accordance with paragraph (2);
and
``(B) notify each owner and operator of a water facility
that is included on the list.
``(2) Identification of high-consequence water
facilities.--
``(A) In general.--Subject to subparagraph (B), in
determining whether a water facility is a high-consequence
water facility, the Administrator shall consider--
``(i) the number of people located in the vulnerability
zone of each substance of concern that could be released at
the water facility;
``(ii) the critical infrastructure (such as health care,
governmental, or industrial facilities or centers) served by
the water facility;
``(iii) any use by the water facility of large quantities
of 1 or more substances of concern; and
``(iv) the quantity and volume of annual shipments of
substances of concern to or from the water facility.
``(B) Tiers of facilities.--
``(i) In general.--Except as provided in clauses (ii)
through (iv), the Administrator shall classify high-
consequence water facilities designated under this paragraph
into 3 tiers, and give priority to orders issued for, actions
taken by, and other matters relating to the security of,
high-consequence water facilities based on the tier
classification of the high-consequence water facilities, as
follows:

``(I) Tier 1 facilities.--A Tier 1 high-consequence water
facility shall have a vulnerability zone that covers more
than 100,000 individuals and shall be given the highest
priority by the Administrator.
``(II) Tier 2 facilities.--A Tier 2 high-consequence water
facility shall have a vulnerability zone that covers more
than 25,000, but not more than 100,000, individuals and shall
be given the second-highest priority by the Administrator.
``(III) Tier 3 facilities.--A Tier 3 high-consequence water
facility shall have a vulnerability zone that covers more
than 10,000, but not more than 25,000, individuals and shall
be given the third-highest priority by the Administrator.

``(ii) Mandatory designation.--If the vulnerability zone
for a substance of concern at a water facility contains more
than 10,000 individuals, the water facility shall be--

``(I) considered to be a high-consequence water facility;
and
``(II) classified by the Administrator to an appropriate
tier under clause (i).

``(iii) Discretionary classification.--A water facility
with a vulnerability zone that covers 10,000 or fewer
individuals may be designated as a high consequence facility,
on the request of the owner or operator of a water facility,
and classified into a tier described in clause (i), at the
discretion of the Administrator.
``(iv) Reclassification.--The Administrator--

``(I) may reclassify a high-consequence water facility into
a tier with higher priority, as described in clause (i),
based on an increase of population covered by the
vulnerability zone or any other appropriate factor, as
determined by the Administrator; but
``(II) may not reclassify a high-consequence water facility
into a tier with a lower priority, as described in clause
(i), for any reason.

``(3) Options feasibility assessment on use of inherently
safer technology.--
``(A) In general.--Not later than 90 days after the date on
which the owner or operator of a high-consequence water
facility receives notice under paragraph (1)(B), the owner or
operator shall submit to the Administrator an options
feasibility assessment that describes--
``(i) an estimate of the costs that would be directly
incurred by the high-consequence water facility in
transitioning from the use of the current technology used for
1 or more substances of concern to inherently safer
technologies; and
``(ii) comparisons of the costs and benefits to
transitioning between different inherently safer
technologies, including the use of--

``(I) sodium hypochlorite;
``(II) ultraviolet light;
``(III) other inherently safer technologies that are in use
within the applicable industry; or
``(IV) any combination of the technologies described in
subclauses (I) through (III).

``(B) Considerations in determining estimated costs.--In
estimating the transition costs described in subparagraph
(A)(i), an owner or operator of a high-consequence water
facility shall consider--
``(i) the costs of capital upgrades to transition to the
use of inherently safer technologies;
``(ii) anticipated increases in operating costs of the
high-consequence water facility;
``(iii) offsets that may be available to reduce or
eliminate the transition costs, such as the savings that may
be achieved by--

``(I) eliminating security needs (such as personnel and
fencing);
``(II) complying with safety regulations;
``(III) complying with environmental regulations and
permits;

[[Page S4807]]

``(IV) complying with fire code requirements;
``(V) providing personal protective equipment;
``(VI) installing safety devices (such as alarms and
scrubbers);
``(VII) purchasing and maintaining insurance coverage;
``(VIII) conducting appropriate emergency response and
contingency planning;
``(IX) conducting employee background checks; and
``(X) potential liability for personal injury and damage to
property; and

``(iv) the efficacy of each technology in treating or
neutralizing biological or chemical agents that could be
introduced into a drinking water supply by a terrorist or act
of terrorism.
``(C) Use of inherently safer technologies.--
``(i) In general.--Subject to clause (ii), not later than
90 days after the date of submission of the options
feasibility assessment required under this paragraph, the
owner or operator of a high-consequence water facility, in
consultation with the Administrator, the Secretary, the
United States Chemical Safety and Hazard Investigation Board,
local officials, and other interested parties, shall
determine which inherently safer technologies are to be used
by the high-consequence water facility.
``(ii) Considerations.--In making the determination under
clause (i), an owner or operator--

``(I) may consider transition costs estimated in the
options feasibility assessment of the owner or operator
(except that those transition costs shall not be the sole
basis for the determination of the owner or operator);
``(II) shall consider long-term security enhancement of the
high-consequence water facility;
``(III) shall consider comparable water facilities that
have transitioned to inherently safer technologies; and
``(IV) shall consider the overall security impact of the
determination, including on the production, processing, and
transportation of substances of concern at other facilities.

``(c) Enforcement.--
``(1) In general.--In accordance with the tiers and
priority system established under subsection (b)(2)(B),
subject to paragraph (2), the Administrator--
``(A) shall prioritize the use of inherently safer
technologies at high-consequence facilities listed under
subsection (b)(1);
``(B) subject to the availability of grant funds under this
section, not later than 90 days after the date on which the
Administrator receives an options feasibility assessment from
an owner or operator of a high-consequence water facility
under subsection (b)(3)(A), shall issue an order requiring
the high-consequence water facility to eliminate the use of 1
or more substances of concern and adopt 1 or more inherently
safer technologies; and
``(C) may seek enforcement of an order issued under
paragraph (2) in the appropriate United States district
court.
``(2) De minimis use.--Nothing in this section prohibits
the de minimis use of a substance of concern as a residual
disinfectant.
``(d) Grants.--
``(1) In general.--In accordance with the tiers and
priority system established under subsection (b)(2)(B), the
Administrator shall provide grants to high-consequence
facilities (including high-consequence facilities subject to
an order issued under subsection (c)(1)(C) and water
facilities described in paragraph (6)) for use in paying
capital expenditures directly required to complete the
transition of the high-consequence water facility to the use
of 1 or more inherently safer technologies.
``(2) Application.--A high-consequence water facility that
seeks to receive a grant under this subsection shall submit
to the Administrator an application by such date, in such
form, and containing such information as the Administrator
shall require, including information relating to the transfer
to inherently safer technologies, and the proposed date of
such a transfer, described in subsection (b)(3)(B).
``(3) Deadline for transition.--An owner or operator of a
high-consequence water facility that is subject to an order
under subsection (c)(1)(C) and that receives a grant under
this subsection shall begin the transition to inherently
safer technologies described in paragraph (1) not later than
90 days after the date of issuance of the order under
subsection (c)(1)(C).
``(4) Facility upgrades.--An owner or operator of a high-
consequence water facility--
``(A) may complete the transition to inherently safer
technologies described in paragraph (1) within the scope of a
greater facility upgrade; but
``(B) shall use amounts from a grant received under this
subsection only for the capital expenditures directly
relating to the transition to inherently safer technologies.
``(5) Operational costs.--An owner or operator of a high-
consequence water facility that receives a grant under this
subsection may not use funds from the grant to pay or offset
any ongoing operational cost of the high-consequence water
facility.
``(6) Other requirements.--As a condition of receiving a
grant under this subsection, the owner or operator of a high-
consequence water facility shall--
``(A) upon receipt of a grant, track all cost savings
resulting from the transition to inherently safer
technologies, including those savings identified in
subsection (b)(4)(B)(iii); and
``(B) for each fiscal year for which grant funds are
received, return an amount to the Administrator equal to 50
percent of the savings achieved by the high-consequence water
facility (but not to exceed the amount of grant funds
received for the fiscal year) for use by the Administrator in
facilitating the future transition of other high-consequence
water facilities to the use of inherently safer technologies.
``(7) Interim transitions.--A water facility that
transitioned to the use of 1 or more inherently safer
technologies after September 11, 2001, but before the date of
enactment of this section, and that qualifies as a high-
consequence facility under subsection (b)(2), in accordance
with any previous report submitted by the water facility
under section 112(r) of the Clean Air Act (42 U.S.C. 7412(r))
and as determined by the Administrator, shall be eligible to
receive a grant under this subsection.
``(e) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $125,000,000 for
each of fiscal years 2007 through 2011.''.

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