[Pages S7908-S7973]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

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

[[Page S7909]]

based sole proprietors generate $102 billion in revenue annually. With
this in mind, it is absolutely critical to endow these small firms with
as much relief from burdensome tax constraints as possible so that they
can focus their efforts on developing the products and services of the
future, as well as creating new jobs. The confusion over the home
office business tax deduction, in my estimation, can be easily solved
by passing this legislation. I urge all Senators to consider the
benefits this bill will provide to thousands of small business owners,
and I look forward to working with my colleagues to enact it in a
timely manner.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3371

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Home Office Tax Deduction
Simplification and Improvement Act of 2008''.

SEC. 2. OPTIONAL STANDARD HOME OFFICE DEDUCTION.

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

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

``(ii) Applicable home office standard rate.--For purposes
of this subparagraph, the term `applicable home office
standard rate' means the rate applicable to the taxpayer's
category of business, as determined and published by the
Secretary for the 3 categories of businesses described in
paragraphs (1), (2), and (4) for the taxable year.
``(iii) Maximum square footage taken into account.--The
Secretary shall determine and publish annually the maximum
square footage that may be taken into account under clause
(i)(II) for each of the 3 categories of businesses described
in paragraphs (1), (2), and (4) for the taxable year.
``(C) Effect of election.--
``(i) General rule.--Except as provided in clause (ii), any
election under this paragraph, once made by the taxpayer with
respect to any dwelling unit, shall continue to apply with
respect to such dwelling unit for each succeeding taxable
year.
``(ii) One-time election per dwelling unit.--A taxpayer who
elects the application of this paragraph in a taxable year
with respect to any dwelling unit may revoke such application
in a subsequent taxable year. After so revoking, the taxpayer
may not elect the application of this paragraph with respect
to such dwelling unit in any subsequent taxable year.
``(D) Denial of double benefit.--
``(i) In general.--Except as provided in clause (ii), in
the case of a taxpayer who elects the application of this
paragraph for the taxable year, no other deduction or credit
shall be allowed under this subtitle for such taxable year
for any amount attributable to the portion of a dwelling unit
taken into account under this paragraph.
``(ii) Exception for disaster losses.--A taxpayer who
elects the application of this paragraph in any taxable year
may take into account any disaster loss described in section
165(i) as a loss under section 165 for the applicable taxable
year, in addition to the standard home office deduction under
this paragraph for such taxable year.
``(E) Regulations.--The Secretary shall prescribe such
regulations as may be necessary to carry out the purposes of
this paragraph.''.
(b) Modification of Home Office Business Use Rules.--
(1) Place of meeting.--Subparagraph (B) of section
280A(c)(1) of the Internal Revenue Code of 1986 is amended to
read as follows:
``(B) as a place of business which is used by the taxpayer
in meeting or dealing with patients, clients, or customers in
the normal course of the taxpayer's trade or business, or''.
(2) De minimis personal use.--Paragraph (1) of section
280A(c) of such Code is amended by striking ``for the
convenience of his employer'' and inserting ``for the
convenience of such employee's employer. A portion of a
dwelling unit shall not fail to be deemed as exclusively used
for business for purposes of this paragraph solely because a
de minimis amount of non-business activity may be carried out
in such portion''.
(c) Reporting of Expenses Relating to Home Office
Deduction.--Within 60 days after the date of the enactment of
this Act, the Secretary of the Treasury shall ensure that all
forms and schedules used to calculate or report itemized
deductions and profits or losses from business or farming
state separately amounts attributable to real estate taxes,
mortgage interest, and depreciation for purposes of the
deductions allowable under paragraphs (1), (2), (4), and (7)
of section 280A(c) of the Internal Revenue Code of 1986.
(d) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2008.
______

By Mrs. MURRAY (for herself and Ms. Cantwell):
S. 3373. A bill to reauthorize and expand the Northwest Straits
Marine Conservation Initiative Act to promote the protection of the
resources of the Northwest Straits, and for other purposes; to the
Committee on Commerce, Science, and Transportation.
Mrs. MURRAY. Mr. President, I rise today to introduce the Northwest
Straits Marine Conservation Initiative Act. This bill will reauthorize
the Northwest Straits Marine Conservation Initiative, which promotes
the protection and restoration of the marine waters, habitats, and
species of the Northwest Straits region of Puget Sound in Washington
State in order to achieve ecosystem health and sustainable resource
use.
The Northwest Straits region makes up 60 percent of the Puget Sound's
shoreline and includes the marine waters, nearshore areas, and
shorelines of the Strait of Juan de Fuca and of Puget Sound from the
Canadian border to the southern end of Snohomish County. This region
represents a unique resource of enormous environmental and economic
value to the people of the United States and, in particular, of the
region surrounding the Northwest Straits. However, in the last several
decades, habitat health, water quality, and populations of commercially
and culturally valuable species found in the Northwest Straits have
sharply declined. During the 20th century, extensive development, a
legacy of lost or abandoned fishing gear, land conversion, loss of
native sea grass, and invasive species have destroyed once intact
native habitats in its ecosystem.
In 1997, I partnered with former Congressman Jack Metcalf and brought
opposing stakeholders together to create an advisory commission to
address regional and local issues in the marine environment. Many were
skeptical of our efforts, but our work created an innovate model for
restoring and protecting marine habitats. As a result, the Northwest
Straits Initiative was created to provide funding to help citizens
design and carry out marine conservation projects driven by local
priorities and informed by science and the Initiative's goals and
benchmarks.
The Northwest Straits Initiative is composed of volunteer-based
marine resources committees in 7 counties, as well as over 100 members
representing residents, tribes, businesses, fishermen, boaters, and
scientists. It has logged thousands of volunteer hours and completed
hundreds of projects, demonstrating that citizen involvement in marine
resource conservation and restoration is powerful, effective, and
necessary. And the program has accomplished a lot: thousands of
derelict crab pots and fishing nets have been removed, miles of forage
fish spawning habitat have been surveyed, hundreds of thousands of
native Olympia oysters have been planted, marine stewardship areas have
been designated, nearly 1,000 tons of creosote wood has been removed,
and dozens of stewardship and public outreach programs have been
completed.
The authorization of the Northwest Straits Marine Conservation
Initiative will ensure the continuation of this successful and
innovative regional approach to marine resource restoration and
protection.
______

By Mr. SMITH (for himself and Mr. Wyden):
S. 3374. A bill to establish a commission on veterans and members of
the Armed Forces with post traumatic

[[Page S7910]]

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

S. 3374

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Healing Our Nation's Heroes
Act of 2008''.

SEC. 2. FINDINGS.

Congress finds the following:
(1) Since October 2001, approximately 1,640,000 members of
the Armed Forces have been deployed as part of Operation
Enduring Freedom or Operation Iraqi Freedom.
(2) 300,000 members of the Armed Forces are suffering from
major depression or post traumatic stress because of service
in Operation Enduring Freedom or Operation Iraqi Freedom.

[[Page S7911]]

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

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

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

SEC. 4. HEROES-TO-HEALERS PROGRAM.

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

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

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

``Sec. 4400. Purposes

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

``Sec. 4401. Definitions

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

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

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

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

``(a) Eligible Individuals.--The following individuals are
eligible for selection to participate in the Program:

[[Page S7912]]

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

``Sec. 4404. Participation agreement and financial assistance

``(a) Participation Agreement.--(1) An eligible individual
selected to participate in the Program under section 4403 of
this title and receive financial assistance under this
section shall be required to enter into an agreement with the
Secretary in which the individual agrees--
``(A) within such time as the Secretary may require, to
obtain certification or licensing as a mental health care
provider; and
``(B) to accept an offer of full-time employment as a
mental health care provider for not less than five years with
a Federal, State, or local agency or nongovernmental
organization that provides mental health care to members of
the Armed Forces, veterans, or the families of such members
or veterans.
``(2) The Secretary may waive the five-year commitment
described in paragraph (1)(B) for a participant if the
Secretary determines such waiver to be appropriate. If the
Secretary provides the waiver, the participant shall not be
considered to be in violation of the agreement and shall not
be required to provide reimbursement under subsection (f),
for failure to meet the five-year commitment.
``(3) The Secretary shall encourage eligible individuals to
seek employment with mental health care providers located
more than 75 miles from a Department medical center.
``(b) Violation of Participation Agreement; Exceptions.--A
participant in the Program shall not be considered to be in
violation of the participation agreement entered into under
subsection (a) during any period in which the participant--
``(1) is pursuing a full-time course of study related to
the field of mental health care at an institution of higher
education;
``(2) is serving on active duty as a member of the Armed
Forces;
``(3) is temporarily totally disabled for a period of time
not to exceed three years as established by sworn affidavit
of a qualified physician;
``(4) is unable to secure employment for a period not to
exceed 12 months by reason of the care required by a spouse
who is disabled;
``(5) is a mental health care provider who is seeking and
unable to find full-time employment as a mental health care
provider in a Federal, State, or local agency or
nongovernmental organization that provides mental health care
to members of the Armed Forces, veterans, or the families of
such members or veterans for a single period not to exceed 27
months; or
``(6) satisfies the provisions of additional reimbursement
exceptions that may be prescribed by the Secretary.
``(c) Stipend for Participants.--(1) Subject to paragraph
(2), the Secretary may pay to a participant in the Program
selected under section 4403 of this title a stipend in an
amount of not more than $5,000 per year of participation in
the Program.
``(2) The total number of stipends that may be paid under
paragraph (1) in any fiscal year may not exceed 2,500.
``(d) Bonus for Participants.--(1) Subject to paragraph
(2), the Secretary of Education may, in lieu of paying a
stipend under subsection (c), pay a bonus of up to $10,000 to
a participant in the Program selected under section 4403 of
this title who agrees in the participation agreement under
subsection (a) to become a mental health care provider and to
accept full-time employment as a mental health care provider
for not less than five years in a Federal, State, or local
agency or nongovernmental organization that provides mental
health care to members of the Armed Forces, veterans, or the
families of such members or veterans.
``(2) The total number of bonuses that may be paid under
paragraph (1) in any fiscal year may not exceed 2,000.
``(e) Treatment of Stipend and Bonus.--A stipend or bonus
paid under this section to a participant in the Program shall
not be taken into account in determining the eligibility of
the participant for Federal student financial assistance
provided under title IV of the Higher Education Act of 1965
(20 U.S.C. 1070 et seq.).
``(f) Reimbursement Under Certain Circumstances.--(1) A
participant in the Program who is paid a stipend or bonus
under this section shall be required to repay the stipend or
bonus under the following circumstances:
``(A) The participant fails to obtain mental health care
provider certification or licensing, to become a mental
health care provider, or to obtain employment as a mental
health care as required by the participation agreement under
subsection (a).
``(B) The participant voluntarily leaves, or is terminated
for cause from, employment as a mental health care provider
during the five years of required service in violation of the
participation agreement.
``(C) The participant executed a written agreement with the
Secretary concerned under section 4403(e)(2) of this title to
serve as a member of a reserve component of the Armed Forces
for a period of three years and fails to complete the
required term of service.
``(2) A participant required to reimburse the Secretary for
a stipend or bonus paid to the participant under this section
shall pay an amount that bears the same ratio to the amount
of the stipend or bonus as the unserved portion of required
service bears to the five years of required service. Any
amount owed by the participant shall bear interest at the
rate equal to the highest rate being paid by the United
States on the day on which the reimbursement is determined to
be due for securities having maturities of 90 days or less
and such interest shall accrue from the day on which the
participant is first notified of the amount due.
``(3) The obligation to reimburse the Secretary under this
subsection is, for all purposes, a debt owing the United
States. A discharge in bankruptcy under title 11 shall not
release a participant from the obligation to reimburse the
Secretary under this subsection.
``(4) A participant shall be excused from reimbursement
under this subsection if the participant becomes permanently
totally disabled as established by sworn affidavit of a
qualified physician. The Secretary may also waive the
reimbursement in cases of extreme hardship to the
participant, as determined by the Secretary.
``(g) Relationship to Educational Assistance Under Titles
10 and 38.--The receipt by a participant in the Program of a
stipend or bonus under this section shall not reduce or
otherwise affect the entitlement of the participant to any
benefits under chapters 30, 31, 33, or 35 of this title or
chapters 1606 or 1607 of title 10.

``Sec. 4405. Participation by States

``(a) Discharge of State Activities Through Consortia of
States.--The Secretary may permit States participating in the
Program to carry out activities authorized for such States
under the Program through one or more consortia of such
States.

[[Page S7913]]

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

``Sec. 4406. Reporting requirements

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

``Sec. 4407. Authorization of appropriations

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

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

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

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

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

(iii) the manner in which the applicant will use funds
received under the grant to develop a cadre of mental health
providers, or other programs to recruit and retain highly
qualified midcareer professionals, recent college graduates,
and recent graduate school graduates, as highly qualified
mental health providers, in high-need military or veterans
communities, or as part of entities providing care to
military or veterans in medical facilities;
(iv) the manner in which the program carried out under the
grant will comply with relevant State laws related to mental
health provider certification or licensing and facilitate the
certification or licensing of such mental health providers;
(v) the manner in which activities under the grant will
increase the number of highly qualified mental health
providers, in high-need Federal, State and local agencies (in
urban or rural areas), and in high-need mental health
professions, in the jurisdiction served by the applicant; and
(vi) the manner in which the applicant will collaborate, as
needed, with other institutions, agencies, or organizations
to recruit (particularly through activities that have proven
effective in retaining highly qualified mental health
providers), train, place, support, and provide mental health
induction programs to eligible participants under this
section, including providing evidence of the commitment of
the institutions, agencies, or organizations to the
applicant's programs.
(5) Duration of grant.--The Secretary may award grants
under this subsection for periods of 5 years. At the end of
the 5-year period for such a grant, the grant recipient may
apply for an additional grant under this section.
(6) Equitable distribution.--To the extent practicable, the
Secretary shall ensure an equitable geographic distribution
of grants under this subsection among the regions of the
United States.
(7) Use of funds.--
(A) In general.--An entity shall use amounts received under
a grant under this subsection to develop a cadre of mental
health providers in order to establish, expand, or enhance
mental health provider recruitment and retention programs for
highly qualified mid-career professionals, and recent
graduates of an institution of higher education, who are
eligible participants.
(B) Authorized activities.--A program carried out under
subparagraph (A) shall include 2 or more of the following
activities:
(i) To provide scholarships, stipends, bonuses, and other
financial incentives, that are linked to participation in
activities that have proven effective in retaining mental
health providers in high-need areas operated by Federal,
State and local health agencies, to all eligible
participants, in an amount that shall not be less than
$5,000, nor more than $20,000, per participant.
(ii) To carry out pre- and post-placement induction or
support activities that have proven effective in recruiting
and retaining mental health providers, such as--

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

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

(I) a national, statewide or regionwide clearinghouse for
the recruitment and placement of mental health providers;
(II) reciprocity agreements between or among States for the
certification or licensing of mental health providers; or

[[Page S7914]]

(III) other long-term teacher recruitment and retention
strategies.

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

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

By Mr. WYDEN (for himself, Ms. Collins, and Mr. Dodd):
S. 3375. A bill to prohibit the introduction or delivery for
introduction into interstate commerce of novelty lighters, and for
other purposes; to the Committee on Commerce, Science, and
Transportation.
Mr. WYDEN. Mr. President, today, I, along with my colleagues Senator
Collins from Maine and Senator Dodd from Connecticut, am introducing
the Protect Children From Dangerous Lighters Act, a ban on novelty
lighters. Novelty lighters, also known as toy-like lighters, are
cigarette lighters that look like small children's toys or regular
household items.
These lighters are dangerous and have terrible consequences. Because
they are so well disguised as toys, novelty lighters have children
literally playing with fire.
The results can be deadly: In Oregon, two boys were playing with a
novelty lighter disguised as a toy dolphin and accidentally started a
serious fire. One boy died and the other now has permanent brain
damage. Also in Oregon, a mother suffered third degree burns on her
foot when her child was playing with a novelty lighter disguised as a
small toy Christmas tree and set a bed on fire.
Tragic accidents like these happen all over the country. In North
Carolina, a boy sustained second degree

[[Page S7915]]

burns after playing with a novelty lighter that looked like a toy cell
phone. One of the most tragic incidents occurred in Arkansas, where a
2-year-old and a 15-month-old child died in a fire they accidentally
started playing with a novelty lighter shaped like a toy motorcycle.
These injuries and deaths demand we take action and remove these
dangerous lighters from shelves everywhere.
If we don't protect children from novelty lighters, we are condemning
them to play life-threatening Russian roulette every time they pick up
what they think is a toy.
A ban on novelty lighters would require the Consumer Product Safety
Commission to treat novelty lighters as a banned hazardous substance.
That means novelty lighters will not be manufactured, imported, sold,
or given away as promotional gifts anywhere in this country. Passing
this bill is the only way we can guarantee that novelty lighters will
be kept out of the hands of children. It's our best tool to prevent
injuries like those that have already brought tragedy to too many
families.
A number of states and cities have taken it upon themselves to take
action to ban these deadly lighters. Maine and Tennessee passed novelty
lighter ban legislation and similar bans are being introduced in many
other states, including Oregon. We should expand and support these
efforts to protect children in all states.
A Federal ban on novelty lighters has widespread nationwide support.
Along with the Oregon Fire Marshal, the National Association of Fire
Marshals supports a Federal ban on these lighters and has been active
in promoting public awareness on this issue. Even the cigarette lighter
industry, represented by the Lighter Association, supports a ban on
novelty lighters. We also have support from the Congressional Fire
Institute, Safe Kids USA, Consumer Federation of America and the
Consumer's Union.
The more people learn about novelty lighters, the more support there
is to ban them.
I urge my colleagues to act now and help kids across America avoid
the senseless deaths and serious injuries they suffer when they mistake
novelty lighters for toys.
Hazardous tools containing flammable fuel should not be dressed up in
packages that are particularly attractive to children. Kids need our
help to protect them from the treacherous ``wolf in sheep's clothing''
of novelty lighters.
I urge all my colleagues to support the Protect Children from
Dangerous Lighters Act.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objetion, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3375

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Protect Children from
Dangerous Lighters Act of 2008''.

SEC. 2. FINDINGS.

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

SEC. 3. NOVELTY LIGHTER DEFINED.

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

SEC. 4. BAN ON NOVELTY LIGHTERS.

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

Ms. COLLINS. Mr. President, I rise to join my friend Senator Wyden in
introducing a bill that will ban the sale of certain novelty lighters
that children can mistake for toys, often with tragic consequences for
themselves and their families.
In Arkansas last year, two boys, ages 15 months and 2 years, died
when the toddler accidentally started a fire with a lighter shaped like
a motorcycle. In Oregon, a fire started with a dolphin-shaped lighter
left one child dead and another brain-damaged. A North Carolina 6-year-
old boy was badly burned by a lighter shaped like a cell phone.
Sadly, the U.S. Fire Administration has other stories of the hazards
presented by novelty lighters. When you learn that one looks like a
rubber duck toy--and quacks--you can imagine the potential for harm.
As a co-chair of the Congressional Fire Services Caucus, I am proud
to note that this spring, my home State of Maine became the first State
to outlaw the sale of novelty lighters.
My State's pioneering law stems from a tragic 2007 incident in a
Livermore, Maine, grocery store. While his mother was buying
sandwiches, six-year-old Shane St. Pierre picked up what appeared to be
a toy flashlight in the form of a baseball bat. When he flicked the
switch, a flame shot out and burned his face. Shane's dad, Norm St.
Pierre, a fire chief in nearby West Paris, began advocating for the
novelty-lighter ban that became Maine law in March 2008.

The Maine State Fire Marshal's office supported that legislation, and
a national ban has the support of the Congressional Fire Services
Institute's National Advisory Committee, the National State Fire
Marshals Association, and the National Volunteer Fire Council.
The bill is straightforward. It treats novelty lighters manufactured
after January 1, 1980, as banned hazardous substances unless the
Consumer Product Safety Commission determines a particular lighter has
antique or significant artistic value. Otherwise, sale of lighters with
toy-like appearance, special audio or visual features, or other
attributes that would appeal to children under 10 would be banned.
The novelty lighters targeted in this legislation serve no functional
need. But they are liable to attract the notice and curiosity of
children, whose play can too easily turn into a scene of horror and
death. The sale of lighters that look like animals, cartoon characters,
food, toys, or other objects is simply irresponsible and an invitation
to tragedy.
I urge all of my colleagues to join me in supporting this simple
measure that can save children from disfigurement and death.
______

By Mr. COLEMAN (for himself, Ms. Collins, and Mr. Lieberman):
S. 3377. A bill to amend title 46, United States Code, to waive the
biometric transportation security card requirement for certain small
business merchant mariners, and for other purposes; to the Committee on
Commerce, Science, and Transportation.
Mr. COLEMAN. Mr. President, Minnesota is the land of over 10,000
lakes and nearly as many fishing guides. We even have a Fishing Hall of
Fame in Baxter where many of our legendary guides are enshrined--names
like Al and Ron Lindner, Babe Winkleman, Gary Roach and many others. In
fact tonight there is a banquet honoring the Hall. The craft of the
fishing guide is to understand fish and to share their knowledge and
the sport with many of us who don't possess their skills.
When I travel my state I meet with folks from all walks of life who
have dealings with the federal government and last summer I was in the
city of Baudette, a small community on the Rainy River on the northern
border of Minnesota. I had the chance to speak with a fishing guide who
told me about a new federal regulation with which he had to comply. As
you can imagine, I was amazed when he told me that he

[[Page S7916]]

was being required to get a Transportation Worker Identification
Credential--or TWIC--in order to stay in business as a fishing guide.
Now I understand that folks who do business on the water should be able
to exhibit seamanship and operate a safe watercraft. But, my guides and
I are having a hard time understanding why a guy whose briefcase is a
bucket of minnows and his workday starts when he backs his boat into
the lake should be required to submit to the same security screening as
operators and workers in our major ports.
To address this issue, I am introducing the Small Marine Business and
Fishing Guide Relief Act. I want to thank Senator Collins and Senator
Lieberman for joining me as original cosponsors of this legislation.
Our bill is very straightforward--it will exempt mariners from needing
a TWIC if they are not required to submit a vessel security plan for
their boat to the Coast Guard. This group of mariners includes fishing
guides, charter captains and other small recreational boaters.
I want to be clear these mariners will still be required to have a
Coast Guard license. Security should not be jeopardized by eliminating
the TWIC requirement because the Coast Guard conducts significant
background checks when mariners apply for a Coast Guard license. These
background checks review crimes against people, property, public
safety, the environment and examine whether the applicant has prior
drug offenses or committed a crime against national security.
These folks already pay a minimum of $140 for their Coast Guard
licenses which are good for five years. Given these factors, asking
these operators to pay over $100 more for another credential--
especially with the recent downturn in the economy and the cost of
gas--is an unnecessary burden that doesn't make sense.
Additionally, our legislation calls for a report to examine the
feasibility of identifying which small boat operators already purchased
a TWIC but will not need it once this legislation is signed into law.
Once this is done, refunds or credits could be issued towards license
renewals for these folks.
The TWIC program is an important tool to ensure the safety of our
nation's ports, but common sense tells us that a fishing dock on Lake
of the Woods or Rainy River is vastly different from the major ports
around the country that receive thousands of cargo containers per day.
Simply put, we need to make sure our local fishing guides and other
small marine operators are not being subjected to excessive government
regulation and this legislation will provide that relief.
A similar TWIC exemption passed the House on April 24 as part of the
Coast Guard Reauthorization Act and I encourage my Senate colleagues to
pass this legislation as well before we adjourn for the year.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3377

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Small Marine Business and
Fishing Guide Relief Act of 2008''.

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

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

Ms. COLLINS. Mr. President, I am pleased to be an original cosponsor
of the Small Marine Business and Fishing Guide Relief Act that Senator
Coleman is introducing today. This legislation will provide much-needed
relief to charter boat captains and other operators of small marine
businesses in Maine by exempting them from having to obtain a
Transportation Worker Identification Credential, or TWIC, which costs
$132.50 for each employee.
Under current law, any individual who holds a Coast Guard license, as
most charter boat captains do, must also obtain a TWIC. The purpose of
the requirement was to ensure that port operators and the Coast Guard
could inspect a tamper-resistant identification document to verify the
identity of those who have access to secure areas of ports and large
vessels.
Charter boat captains, however, do not have secure areas on their
boats and usually do not need unescorted access to port facilities.
Therefore, they have no need for a TWIC. For these small businesses,
requiring them to obtain a TWIC essentially amounts to an unnecessary
and costly government regulation.
Many small businesses are struggling in these lean economic times,
particularly with high marine fuel prices and tourists who have less to
spend their discretionary income on charter tours in the Gulf of Maine.
With these businesses' declining profit margins, they cannot afford an
additional $132 identification card for their employees.
Even with this exemption, charter captains with a Coast Guard license
will have undergone an extensive background check for the same crimes
that are reviewed when an individual applies for a TWIC. So waiving the
TWIC requirement for them would not reduce the background information
available for review before these individuals are licensed as charter
captains.
To be sure, the Transportation Worker Identification Credential will
play a critical role in our Nation's maritime security by limiting
access to secure areas of ports and large vessels. It must ``be
implemented, however, in a manner that does not unnecessarily and
unproductively impede legitimate business operations.
______

By Mr. DOMENICI (for himself and Mr. Bingaman):
S. 3381. A bill to authorize the Secretary of the Interior, acting
through the Commissioner of Reclamation, to develop water
infrastructure in the Rio Grande Basin, and to approve the settlement
of the water rights claims of the Pueblos of Nambe, Pojoaque, San
Ildefonso, Tesuque, and Taos; to the Committee on Indian Affairs.
Mr. DOMENICI. Mr. President, during the previous session I introduced
legislation to address the funding of Indian water rights claims that
are of utmost importance in the west, and in particular, within the
State of New Mexico. Since that time many parties have met for
countless hours in New Mexico and here in Washington to address how
these claims could be resolved and finally settled. Rather than spend
countless hours in litigation, these groups have sat down and worked
through these issues in a very productive manner.

[[Page S7917]]

As a result, today I am pleased to come before you to introduce, on
behalf of myself and Senator Bingaman, the Aamodt and Taos Pueblo
Indian Water Rights Settlement Act of 2008. This legislation will
resolve these long-standing Indian water rights claims within New
Mexico and authorize a source of Federal funding to resolve them.
The Aamodt litigation in New Mexico was filed in 1966 and is the
longest-standing litigation in the Federal judiciary system. The hard
work that each party put into the settlement process demonstrates that
negotiated settlements, with multiple parties working together, can
best determine how to allocate scarce water supplies among diverse
parties in a way that does not curtail existing uses. This bill will
result in additional economic development and improved health benefits
within these communities.
The resolution of these claims will not only improve the lives of
many within these communities by providing a safe and reliable water
supply, but will also improve the ability of New Mexico to effectively
undertake water rights planning in the near and long-term future.
As I have stated before, the costs of not settling these claims in
New Mexico are dire. The legislation before us will ensure that our
obligations to these communities are met and that they will have safe
and reliable water systems.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3381

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

SECTION 1. TABLE OF CONTENTS.

The table of contents of this Act is as follows:

Sec. 1. Table of contents.

TITLE I--AAMODT LITIGATION SETTLEMENT ACT

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

Subtitle A--Pojoaque Basin Regional Water System

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

Subtitle B--Pojoaque Basin Indian Water Rights Settlement

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

TITLE II--TAOS PUEBLO INDIAN WATER RIGHTS SETTLEMENT ACT

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

TITLE I--AAMODT LITIGATION SETTLEMENT ACT

SEC. 101. SHORT TITLE.

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

SEC. 102. DEFINITIONS.

In this title:
(1) Acre-feet.--The term ``acre-feet'' means acre-feet of
water per year.
(2) Aamodt case.--The term ``Aamodt Case'' means the civil
action entitled State of New Mexico, ex rel. State Engineer
and United States of America, Pueblo de Nambe, Pueblo de
Pojoaque, Pueblo de San Ildefonso, and Pueblo de Tesuque v.
R. Lee Aamodt, et al., No. 66 CV 6639 MV/LCS (D.N.M.).
(3) Authority.--The term ``Authority'' means the Pojoaque
Basin Regional Water Authority described in section 9.5 of
the Settlement Agreement or an alternate entity acceptable to
the Pueblos and the County to operate and maintain the
diversion and treatment facilities, certain transmission
pipelines, and other facilities of the Regional Water System.
(4) Bishop's lodge extension.--The term ``Bishop's Lodge
Extension'' has the meaning given the term in the Engineering
Report.
(5) City.--The term ``City'' means the city of Santa Fe,
New Mexico.
(6) Cost-sharing and system integration agreement.--The
term ``Cost-Sharing and System Integration Agreement'' means
the agreement executed by the United States, the State, the
Pueblos, the County, and the City that--
(A) describes the location, capacity, and management
(including the distribution of water to customers) of the
Regional Water System; and
(B) allocates the costs of the Regional Water System with
respect to--
(i) the construction, operation, maintenance, and repair of
the Regional Water System;
(ii) rights-of-way for the Regional Water System; and
(iii) the acquisition of water rights.
(7) County.--The term ``County'' means Santa Fe County, New
Mexico.
(8) County distribution system.--The term ``County
Distribution System'' means the portion of the Regional Water
System that serves water customers on non-Pueblo land in the
Pojoaque Basin.
(9) County water utility.--The term ``County Water
Utility'' means the water utility organized by the County
to--
(A) receive water distributed by the Authority; and
(B) provide the water received under subparagraph (A) to
customers on non-Pueblo land in the Pojoaque Basin.
(10) Engineering report.--The term ``Engineering Report''
means the report entitled ``Pojoaque Regional Water System
Engineering Report'' and dated April 2007 and any amendments
thereto.
(11) Fund.--The term ``Fund'' means the Aamodt Settlement
Pueblos' Fund established by section 115(a).
(12) Operating agreement.--The term ``Operating Agreement''
means the agreement between the Pueblos and the County
executed under section 112(a).
(13) Operations, maintenance, and replacement costs.--
(A) In general.--The term ``operations, maintenance, and
replacement costs'' means all costs for the operation of the
Regional Water System that are necessary for the safe,
efficient, and continued functioning of the Regional Water
System to produce the benefits described in the Settlement
Agreement.
(B) Exclusion.--The term ``operations, maintenance, and
replacement costs'' does not include construction costs or
costs related to construction design and planning.
(14) Pojoaque basin.--
(A) In general.--The term ``Pojoaque Basin'' means the
geographic area limited by a surface water divide (which can
be drawn on a topographic map), within which area rainfall
and runoff flow into arroyos, drainages, and named
tributaries that eventually drain to--
(i) the Rio Pojoaque; or
(ii) the 2 unnamed arroyos immediately south; and
(iii) 2 arroyos (including the Arroyo Alamo) that are north
of the confluence of the Rio Pojoaque and the Rio Grande.
(B) Inclusion.--The term ``Pojoaque Basin'' includes the
San Ildefonso Eastern Reservation recognized by section 8 of
Public Law 87-231 (75 Stat. 505).
(15) Pueblo.--The term ``Pueblo'' means each of the pueblos
of Nambe, Pojoaque, San Ildefonso, or Tesuque.
(16) Pueblos.--The term ``Pueblos'' means collectively the
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
(17) Pueblo land.--The term ``Pueblo land'' means any real
property that is--
(A) held by the United States in trust for a Pueblo within
the Pojoaque Basin;
(B)(i) owned by a Pueblo within the Pojoaque Basin before
the date on which a court approves the Settlement Agreement;
or
(ii) acquired by a Pueblo on or after the date on which a
court approves the Settlement Agreement, if the real property
is located--
(I) within the exterior boundaries of the Pueblo, as
recognized and conformed by a patent issued under the Act of
December 22, 1858 (11 Stat. 374, chapter V); or
(II) within the exterior boundaries of any territory set
aside for the Pueblo by law, executive order, or court
decree;
(C) owned by a Pueblo or held by the United States in trust
for the benefit of a Pueblo outside the Pojoaque Basin that
is located within the exterior boundaries of the Pueblo as
recognized and confirmed by a patent issued under the Act of
December 22, 1858 (11 Stat. 374, chapter V); or
(D) within the exterior boundaries of any real property
located outside the Pojoaque Basin set aside for a Pueblo by
law, executive order, or court decree, if the land is within
or contiguous to land held by the United States in trust for
the Pueblo as of January 1, 2005.
(18) Pueblo water facility.--
(A) In general.--The term ``Pueblo Water Facility'' means--
(i) a portion of the Regional Water System that serves only
water customers on Pueblo land; and
(ii) portions of a Pueblo water system in existence on the
date of enactment of this Act that serve water customers on
non-Pueblo land, also in existence on the date of enactment
of this Act, or their successors, that are--

[[Page S7918]]

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

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

Subtitle A--Pojoaque Basin Regional Water System

SEC. 111. AUTHORIZATION OF REGIONAL WATER SYSTEM.

(a) In General.--The Secretary, acting through the
Commissioner of Reclamation, shall plan, design, and
construct a regional water system in accordance with the
Settlement Agreement, to be known as the ``Regional Water
System''--
(1) to divert and distribute water to the Pueblos and to
the County Water Utility, in accordance with the Engineering
Report; and
(2) that consists of--
(A) surface water diversion facilities at San Ildefonso
Pueblo on the Rio Grande; and
(B) any treatment, transmission, storage and distribution
facilities and wellfields for the County Distribution System
and Pueblo Water Facilities that are necessary to supply a
minimum of 4,000 acre-feet of water within the Pojoaque
Basin, in accordance with the Engineering Report.
(b) Final Project Design.--The Secretary shall issue a
final project design within 90 days of completion of the
environmental compliance described in section 116 for the
Regional Water System that--
(1) is consistent with the Engineering Report; and
(2) includes a description of any Pueblo Water Facilities.
(c) Acquisition of Land; Water Rights.--
(1) Acquisition of land.--Upon request, and in exchange for
the funding which shall be provided in section 117(c), the
Pueblos shall consent to the grant of such easements and
rights-of-way as may be necessary for the construction of the
Regional Water System at no cost to the Secretary. To the
extent that the State or County own easements or rights-of-
way that may be used for construction of the Regional Water
System, the State or County shall provide that land or
interest in land as necessary for construction at no cost to
the Secretary. The Secretary shall acquire any other land or
interest in land that is necessary for the construction of
the Regional Water System with the exception of the Bishop's
Lodge Extension.
(2) Water rights.--The Secretary shall not condemn water
rights for purposes of the Regional Water System.
(d) Conditions for Construction.--
(1) In general.--The Secretary shall not begin construction
of the Regional Water System facilities until the date on
which--
(A) the Secretary executes--
(i) the Settlement Agreement; and
(ii) the Cost-Sharing and System Integration Agreement; and
(B) the State and the County have entered into an agreement
with the Secretary to contribute the non-Federal share of the
costs of the construction in accordance with the Cost-Sharing
and System Integration Agreement.
(e) Applicable Law.--The Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.) shall not
apply to the design and construction of the Regional Water
System.
(f) Construction Costs.--
(1) Pueblo water facilities.--The costs of constructing the
Pueblo Water Facilities, as determined by the final project
design and the Engineering Report--
(A) shall be at full Federal expense subject to the amount
authorized in section 117(a)(1); and
(B) shall be nonreimbursable to the United States.
(2) County distribution system.--The costs of constructing
the County Distribution System shall be at State and local
expense.
(g) State and Local Capital Obligations.--The State and
local capital obligations for the Regional Water System
described in the Cost-Sharing and System Integration
Agreement shall be satisfied on the payment of the State and
local capital obligations described in the Cost-Sharing and
System Integration Agreement.
(h) Conveyance of Regional Water System Facilities.--
(1) In general.--Subject to paragraph (2), on completion of
the construction of the Regional Water System (other than the
Bishop's Lodge Extension if construction of the Bishop's
Lodge Extension is deferred pursuant to the Cost-Sharing and
System Integration Agreement), the Secretary, in accordance
with the Operating Agreement, shall convey to--
(A) each Pueblo the portion of any Pueblo Water Facility
that is located within the boundaries of the Pueblo,
including any land or interest in land located within the
boundaries of the Pueblo that is acquired by the United
States for the construction of the Pueblo Water Facility;
(B) the County the County Distribution System, including
any land or interest in land acquired by the United States
for the construction of the County Distribution System; and
(C) the Authority any portions of the Regional Water System
that remain after making the conveyances under subparagraphs
(A) and (B), including any land or interest in land acquired
by the United States for the construction of the portions of
the Regional Water System.
(2) Conditions for conveyance.--The Secretary shall not
convey any portion of the Regional Water System facilities
under paragraph (1) until the date on which--
(A) construction of the Regional Water System (other than
the Bishop's Lodge Extension if construction of the Bishop's
Lodge Extension is deferred pursuant to the Cost-Sharing and
System Integration Agreement) is complete; and
(B) the Operating Agreement is executed in accordance with
section 112.
(3) Subsequent conveyance.--On conveyance by the Secretary
under paragraph (1), the Pueblos, the County, and the
Authority shall not reconvey any portion of the Regional
Water System conveyed to the Pueblos, the County, and the
Authority, respectively, unless the reconveyance is
authorized by an Act of Congress enacted after the date of
enactment of this Act.
(4) Interest of the united states.--On conveyance of a
portion of the Regional Water System under paragraph (1), the
United States shall have no further right, title, or interest
in and to the portion of the Regional Water System conveyed.
(5) Additional construction.--On conveyance of a portion of
the Regional Water System under paragraph (1), the Pueblos,
County, or the Authority, as applicable, may, at the expense
of the Pueblos, County, or the Authority, construct any
additional infrastructure that is necessary to fully use the
water delivered by the Regional Water System.
(6) Liability.--
(A) In general.--Effective on the date of conveyance of any
land or facility under this section, the United States shall
not be held liable by any court for damages of any kind
arising out of any act, omission, or occurrence relating to
the land and facilities conveyed, other than damages caused
by acts of negligence by the United States, or by employees
or agents of the United States, prior to the date of
conveyance.
(B) Tort claims.--Nothing in this section increases the
liability of the United States beyond the liability provided
in chapter 171 of title 28, United States Code (commonly
known as the ``Federal Tort Claims Act'').
(7) Effect.--Nothing in any transfer of ownership provided
or any conveyance thereto as provided in this section shall
extinguish the right of any Pueblo, the County, or the
Regional Water Authority to the continuous use and benefit of
each easement or right of way for the use, operation,
maintenance, repair, and replacement of Pueblo Water
Facilities, the County Distribution System or the Regional
Water System or for wastewater purposes as provided in the
Cost-Sharing and System Integration Agreement.

SEC. 112. OPERATING AGREEMENT.

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

[[Page S7919]]

(iii) distribution lines that serve both--

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

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

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

(a) In General.--For the purpose of providing a reliable
firm supply of water from the Regional Water System for the
Pueblos in accordance with the Settlement Agreement, the
Secretary, on behalf of the Pueblos, shall--
(1) acquire water rights to--
(A) 302 acre-feet of Nambe reserved water described in
section 2.6.2 of the Settlement Agreement pursuant to section
117(c)(1)(C); and
(B) 1141 acre-feet from water acquired by the County for
water rights commonly referred to as ``Top of the World''
rights in the Aamodt case;
(2) make available 1079 acre-feet to the Pueblos pursuant
to a contract entered into among the Pueblos and the
Secretary in accordance with section 11 of the Act of June
13, 1962 (76 Stat. 96, 97) (San Juan-Chama Project Act) under
water rights held by the Secretary; and
(3) by application to the State Engineer, obtain approval
to divert the water acquired and made available under
paragraphs (1) and (2) at the points of diversion for the
Regional Water System, consistent with the Settlement
Agreement and the Cost-Sharing and System Integration
Agreement.
(b) Forfeiture.--The nonuse of the water supply secured by
the Secretary for the Pueblos under subsection (a) shall in
no event result in forfeiture, abandonment, relinquishment,
or other loss thereof.
(c) Trust.--The Pueblo water supply secured under
subsection (a) shall be held by the United States in trust
for the Pueblos.
(d) Contract for San Juan-Chama Project Water Supply.--With
respect to the contract for the water supply required by
subsection (a)(2), such San Juan-Chama Project contract shall
be pursuant to the following terms:
(1) Waivers.--Notwithstanding the provisions of the Act of
June 13, 1962 (76 Stat, 96, 97) or any other provision of
law--
(A) the Secretary shall waive the entirety of the Pueblos'
share of the construction costs for the San Juan-Chama
Project, and pursuant to that waiver, the Pueblos' share of
all construction costs for the San Juan-Chama Project,
inclusive of both principal and interest, due from 1972 to
the execution of the contract required by subsection (a)(2),
shall be nonreimbursable;
(B) the Secretary's waiver of each Pueblo's share of the
construction costs for the San Juan-Chama Project will not
result in an increase in the pro rata shares of other San
Juan-Chama Project water contractors, but such costs shall be
absorbed by the United States Treasury or otherwise
appropriated to the Department of the Interior; and
(C) the costs associated with any water made available from
the San Juan-Chama Project which were determined
nonreimbursable and nonreturnable pursuant to Pub. L. No. 88-
293, 78 Stat. 171 (March 26, 1964) shall remain
nonreimbursable and nonreturnable.
(2) Termination.--The contract shall provide that it shall
terminate only upon the following conditions--
(A) failure of the United States District Court for the
District of New Mexico to enter a final decree for the Aamodt
case by December 15, 2012 or within the time period of any
extension of that deadline granted by the court; or
(B) entry of an order by the United States District Court
for the District of New Mexico voiding the final decree and
Settlement Agreement for the Aamodt case pursuant to section
10.3 of the Settlement Agreement.
(e) Limitation.--The Secretary shall use the water supply
secured under subsection (a) only for the purposes described
in the Settlement Agreement.
(f) Fulfillment of Water Supply Acquisition Obligations.--
Compliance with subsections (a) through (e) shall satisfy any
and all obligations of the Secretary to acquire or secure a
water supply for the Pueblos pursuant to the Settlement
Agreement.
(g) Rights of Pueblos in Settlement Agreement Unaffected.--
Notwithstanding the provisions of subsections (a) through
(f), the Pueblos, the County or the Regional Water Authority
may acquire any additional water rights to ensure all parties
to the Settlement Agreement receive the full allocation of
water provided by the Settlement Agreement and nothing in
this Act amends or modifies the quantities of water allocated
to the Pueblos thereunder.

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

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

[[Page S7920]]

the operation, maintenance, and replacement costs associated
with the use of capacity or water.

SEC. 115. AAMODT SETTLEMENT PUEBLOS' FUND.

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

SEC. 116. ENVIRONMENTAL COMPLIANCE.

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

SEC. 117. AUTHORIZATION OF APPROPRIATIONS.

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

Subtitle B--Pojoaque Basin Indian Water Rights Settlement

SEC. 121. SETTLEMENT AGREEMENT AND CONTRACT APPROVAL.

(a) Approval.--To the extent the Settlement Agreement and
the Cost-Sharing and System Integration Agreement do not
conflict with this title, the Settlement Agreement and the
Cost-Sharing and System Integration Agreement (including any
amendments to the Settlement Agreement and the Cost-Sharing
and System Integration Agreement that are executed to make
the Settlement Agreement or the Cost-Sharing and System
Integration Agreement consistent with this title) are
authorized, ratified, and confirmed.
(b) Execution.--To the extent the Settlement Agreement and
the Cost-Sharing and System Integration Agreement do not
conflict with this title, the Secretary shall execute the
Settlement Agreement and the Cost-Sharing and System
Integration Agreement (including any amendments that are

[[Page S7921]]

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

SEC. 122. ENVIRONMENTAL COMPLIANCE.

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

SEC. 123. CONDITIONS PRECEDENT AND ENFORCEMENT DATE.

(a) Conditions Precedent.--
(1) In general.--Upon the fulfillment of the conditions
precedent described in paragraph (2), the Secretary shall
publish in the Federal Register a statement of finding that
the conditions have been fulfilled.
(2) Requirements.--The conditions precedents referred to in
paragraph (1) are the conditions that--
(A) to the extent that the Settlement Agreement conflicts
with this title, the Settlement Agreement has been revised to
conform with this title;
(B) the Settlement Agreement, so revised, including waivers
and releases pursuant to section 124, has been executed by
the appropriate parties and the Secretary;
(C) Congress has fully appropriated, or the Secretary has
provided from other authorized sources, all funds authorized
by section 117, with the exception of subsection (a)(1) of
that section, by June 30, 2016;
(D) the State of New Mexico has enacted any necessary
legislation and provided any funding that may be required
under the Settlement Agreement;
(E) a partial final decree that sets forth the water rights
and other rights to water to which the Pueblos are entitled
under the Settlement Agreement and this title and that
substantially conforms to the Settlement Agreement has been
approved by the United States District Court for the District
of New Mexico; and
(F) a final decree that sets forth the water rights for all
parties to the Aamodt Case and that substantially conforms to
the Settlement Agreement has been approved by the United
States District Court for the District of New Mexico by
December 15, 2012, or within the time period of any extension
of that deadline granted by that court.
(b) Enforcement Date.--The Settlement Agreement shall
become enforceable as of the date that the United States
District Court for the District of New Mexico enters a
partial final decree pursuant to subsection (a)(2)(E) and an
Interim Administrative Order consistent with the Settlement
Agreement. The waivers and releases executed pursuant to
section 124 shall become effective as of the date that the
conditions precedent described in subsection (a)(2) have been
fulfilled.
(c) Expiration.--If the parties to the Settlement Agreement
entitled to provide notice regarding the lack of substantial
completion of the Regional Water System provide such notice
in accordance with section 10.3 of the Settlement Agreement,
the Settlement Agreement shall no longer be effective, the
waivers and releases executed pursuant to section 124 shall
no longer be effective, and any unexpended Federal funds,
together with any income earned thereon, and title to any
property acquired or constructed with expended Federal funds,
shall be returned to the Federal Government unless otherwise
agreed to by the appropriate parties in writing and approved
by Congress.

SEC. 124. WAIVERS AND RELEASES.

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

SEC. 125. EFFECT.

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

TITLE II--TAOS PUEBLO INDIAN WATER RIGHTS SETTLEMENT ACT

SEC. 201. SHORT TITLE.

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

SEC. 202. PURPOSE.

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

SEC. 203. DEFINITIONS.

In this title:
(1) Eligible non-pueblo entities.--The term ``Eligible Non-
Pueblo Entities'' means the Town of Taos, EPWSD, and the New
Mexico Department of Finance and Administration Local
Government Division on behalf

[[Page S7922]]

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

SEC. 204. PUEBLO RIGHTS.

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

SEC. 205. PUEBLO WATER INFRASTRUCTURE AND WATERSHED
ENHANCEMENT.

(a) In General.--The Secretary, acting through the
Commissioner of Reclamation, shall provide grants and
technical assistance to the Pueblo on a nonreimbursable basis
to--
(1) plan, permit, design, engineer, construct, reconstruct,
replace, or rehabilitate water production, treatment, and
delivery infrastructure;
(2) restore, preserve, and protect the environment
associated with the Buffalo Pasture area; and
(3) protect and enhance watershed conditions.
(b) Availability of Grants.--Upon the Enforcement Date, all
amounts appropriated pursuant to section 210(c)(1) shall be
available in grants to the Pueblo after the requirements of
subsection (c) have been met.
(c) Plan.--The Secretary shall provide financial assistance
pursuant to subsection (a) upon the Pueblo's submittal of a
plan that identifies the projects to be implemented
consistent with the purposes of this section and describes
how such projects are consistent with the Settlement
Agreement.
(d) Early Funds.--Notwithstanding subsection (b),
$10,000,000 of the monies authorized to be appropriated
pursuant to section 210(c)(1)--
(1) shall be made available in grants to the Pueblo by the
Secretary upon appropriation or availability of the funds
from other authorized sources; and
(2) shall be distributed by the Secretary to the Pueblo on
receipt by the Secretary from the Pueblo of a written notice,
a Tribal Council resolution that describes the purposes under
subsection (a) for which the monies will be used, and a plan
under subsection (c) for this portion of the funding.

SEC. 206. TAOS PUEBLO WATER DEVELOPMENT FUND.

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

SEC. 207. MARKETING.

(a) Pueblo Water Rights.--Subject to the approval of the
Secretary in accordance with subsection (e), the Pueblo may
market water rights secured to it under the Settlement
Agreement and Partial Final Decree, provided that such
marketing is in accordance with this section.
(b) Pueblo Contract Rights to San Juan-Chama Project
Water.--Subject to the approval of the Secretary in
accordance with

[[Page S7923]]

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

SEC. 208. MUTUAL-BENEFIT PROJECTS.

(a) In General.--Upon the Enforcement Date, the Secretary,
acting through the Commissioner of Reclamation, shall provide
financial assistance in the form of grants on a
nonreimbursable basis to Eligible Non-Pueblo Entities to
plan, permit, design, engineer, and construct the Mutual
Benefits Projects in accordance with the Settlement
Agreement--
(1) to minimize adverse impacts on the Pueblo's water
resources by moving future non-Indian ground water pumping
away from the Pueblo's Buffalo Pasture; and
(2) to implement the resolution of a dispute over the
allocation of certain surface water flows between the Pueblo
and non-Indian irrigation water right owners in the community
of Arroyo Seco Arriba.
(b) Cost-Sharing.--
(1) Federal share.--The Federal share of the total cost of
planning, designing, and constructing the Mutual Benefit
Projects authorized in subsection (a) shall be 75 percent and
shall be nonreimbursable.
(2) Non-federal share.--The non-Federal share of the total
cost of planning, designing, and constructing the Mutual
Benefit Projects shall be 25 percent and may be in the form
of in-kind contributions, including the contribution of any
valuable asset or service that the Secretary determines would
substantially contribute to completing the Mutual Benefit
Projects.

SEC. 209. SAN JUAN-CHAMA PROJECT CONTRACTS.

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

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

(a) Ratification.--
(1) In general.--Except to the extent that any provision of
the Settlement Agreement conflicts with any provision of this
title, the Settlement Agreement is authorized, ratified, and
confirmed.
(2) Amendments.--To the extent amendments are executed to
make the Settlement Agreement consistent with this title,
such amendments are also authorized, ratified, and confirmed.
(b) Execution of Settlement Agreement.--To the extent that
the Settlement Agreement does not conflict with this title,
the Secretary shall execute the Settlement Agreement,
including all exhibits to the Settlement Agreement requiring
the signature of the Secretary and any amendments necessary
to make the Settlement Agreement consistent with this title,
after the Pueblo has executed the Settlement Agreement and
any such amendments.
(c) Authorization of Appropriations.--
(1) Taos pueblo infrastructure and watershed fund.--There
is authorized to be appropriated to the Secretary to provide
grants pursuant to section 205, $30,000,000, as adjusted
under paragraph (4), for the period of fiscal years 2009
through 2015.
(2) Taos pueblo water development fund.--There is
authorized to be appropriated to the Taos Pueblo Water
Development Fund, established at section 206(a), $50,000,000,
as adjusted under paragraph (4), for the period of fiscal
years 2009 through 2015.
(3) Mutual-benefit projects funding.--There is further
authorized to be appropriated to the Secretary to provide
grants pursuant to section 208, a total of $33,000,000, as
adjusted under paragraph (4), for the period of fiscal years
2009 through 2015.
(4) Adjustments to amounts authorized.--The amounts
authorized to be appropriated under paragraphs (1) through
(3) shall be adjusted by such amounts as may be required by
reason of changes since April 1, 2007, in construction costs,
as indicated by engineering cost indices applicable to the
types of construction or rehabilitation involved.
(5) Deposit in fund.--Except for the funds to be provided
to the Pueblo pursuant to section 205(d), the Secretary shall
deposit the funds made available pursuant to paragraphs (1)
and (3) into a Taos Settlement Fund to be established within
the Treasury of the United States so that such funds may be
made available to the Pueblo and the Eligible Non-Pueblo
Entities upon the Enforcement Date as set forth in sections
205(b) and 208(a).
(d) Authority of the Secretary.--The Secretary is
authorized to enter into such agreements and to take such
measures as the Secretary may deem necessary or appropriate
to fulfill the intent of the Settlement Agreement and this
title.
(e) Environmental Compliance.--
(1) Effect of execution of settlement agreement.--The
Secretary's execution of the Settlement Agreement shall not
constitute a major Federal action under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(2) Compliance with environmental laws.--In carrying out
this title, the Secretary shall comply with each law of the
Federal Government relating to the protection of the
environment, including--
(A) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); and
(B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).
(f) Conditions Precedent and Secretarial Finding.--
(1) In general.--Upon the fulfillment of the conditions
precedent described in paragraph (2), the Secretary shall
publish in the Federal Register a statement of finding that
the conditions have been fulfilled.
(2) Conditions.--The conditions precedent referred to in
paragraph (1) are the following:
(A) The President has signed into law the Taos Pueblo
Indian Water Rights Settlement Act.
(B) To the extent that the Settlement Agreement conflicts
with this title, the Settlement Agreement has been revised to
conform with this title.
(C) The Settlement Agreement, so revised, including waivers
and releases pursuant to section 211, has been executed by
the Parties and the Secretary prior to the Parties' motion
for entry of the Partial Final Decree.

[[Page S7924]]

(D) Congress has fully appropriated or the Secretary has
provided from other authorized sources all funds authorized
by paragraphs (1) through (3) of subsection (c) so that the
entire amounts so authorized have been previously provided to
the Pueblo pursuant to sections 205 and 206, or placed in the
Taos Pueblo Water Development Fund or the Taos Settlement
Fund as directed in subsection (c).
(E) The Legislature of the State of New Mexico has fully
appropriated the funds for the State contributions as
specified in the Settlement Agreement, and those funds have
been deposited in appropriate accounts.
(F) The State of New Mexico has enacted legislation that
amends NMSA 1978, section 72-6-3 to state that a water use
due under a water right secured to the Pueblo under the
Settlement Agreement or the Partial Final Decree may be
leased for a term, including all renewals, not to exceed 99
years, provided that this condition shall not be construed to
require that said amendment state that any State law based
water rights acquired by the Pueblo or by the United States
on behalf of the Pueblo may be leased for said term.
(G) A Partial Final Decree that sets forth the water rights
and contract rights to water to which the Pueblo is entitled
under the Settlement Agreement and this title and that
substantially conforms to the Settlement Agreement and
Attachment 5 thereto has been approved by the Court and has
become final and nonappealable.
(g) Enforcement Date.--The Settlement Agreement shall
become enforceable, and the waivers and releases executed
pursuant to section 211 and the limited waiver of sovereign
immunity set forth in section 212(a) shall become effective,
as of the date that the conditions precedent described in
subsection (f)(2) have been fulfilled.
(h) Expiration Date.--
(1) In general.--If all of the conditions precedent
described in section (f)(2) have not been fulfilled by
December 31, 2015, the Settlement Agreement shall be null and
void, the waivers and releases executed pursuant to section
211 shall not become effective, and any unexpended Federal
funds, together with any income earned thereon, and title to
any property acquired or constructed with expended Federal
funds, shall be returned to the Federal Government, unless
otherwise agreed to by the Parties in writing and approved by
Congress.
(2) Exception.--Notwithstanding subsection (h)(1) or any
other provision of law, any unexpended Federal funds,
together with any income earned thereon, made available under
sections 205(d) and 206(f) and title to any property acquired
or constructed with expended Federal funds made available
under sections 205(d) and 206(f) shall be retained by the
Pueblo.
(3) Right to set-off.--In the event the conditions
precedent set forth in subsection (f)(2) have not been
fulfilled by December 31, 2015, the United States shall be
entitled to set off any funds expended or withdrawn from the
amount appropriated pursuant to paragraphs (1) and (2) of
subsection (c) or made available from other authorized
sources, together with any interest accrued, against any
claims asserted by the Pueblo against the United States
relating to water rights in the Taos Valley.

SEC. 211. WAIVERS AND RELEASES.

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

SEC. 212. INTERPRETATION AND ENFORCEMENT.

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

SEC. 213. DISCLAIMER.

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

Mr. BINGAMAN. Mr. President, today Senator Domenici and I are
introducing a bill that I am pleased to say, will help end contentious
disputes over water rights claims in two long-standing general stream
adjudications in northern New Mexico. The bill accomplishes this by
authorizing two Indian water rights settlements. The first is a
settlement involving the

[[Page S7925]]

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

By Mrs. FEINSTEIN:
S. 3382. A bill for the relief of Guy Privat Tape and Lou Nazie
Raymonde Toto; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, today I am introducing a private
relief bill on behalf of Guy Privat Tape and his wife Lou Nazie
Raymonde Toto. Mr. Tape and Ms. Toto are citizens of the Ivory Coast,
but have been living in the San Francisco area of California for
approximately 15 years.
The story of the Mr. Tape and Ms. Toto is compelling and I believe
they merit Congress's special consideration for such an extraordinary
form of relief as a private bill.
Mr. Tape and Ms. Toto were subjected to numerous atrocities in the
early 1990s in the Ivory Coast. After participating in a demonstration
against the ruling party, they were jailed and tortured by their own
government. Ms. Toto was brutally raped by her captors and several
years later learned that she had contracted HIV.
Despite the hardships that they suffered, Mr. Tape and Ms. Toto were
able to make a better life for themselves in the United States. Mr.
Tape arrived in the U.S. in 1993 on a B1/B2 non-immigrant visa. Ms.
Toto entered without inspection in 1995 from Spain. Despite being
diagnosed with HIV, Ms. Toto gave birth to two healthy children,
Melody, age 10, and Emmanuel, age 6.
Since arriving in the United States, this family has dedicated
themselves to community involvement and a strong work ethic. They pay
taxes and own their own home in Hercules, California. They are active
members of Easter Hill United Methodist Church.
Mr. Tape is the owner of a small business, Melody's Carpet Cleaning &
Upholstery, which has four other employees. Unfortunately, in 2002, Mr.
Tape was diagnosed with urologic cancer. While his doctor states that
the cancer is currently in remission, he will continue to require life-
long surveillance to monitor for recurrence of the disease.

In addition to raising her two children, Ms. Toto obtained a
certificate to be a nurse's aide and currently works as a Resident Care
Specialist at Creekside Health Care in San Pablo, California. She hopes
to finish her schooling so that she can become a Registered Nurse. She
is currently taking classes at Contra Costa Community College. Ms. Toto
continues to receive medical treatment for HIV. According to her
doctor, without access to adequate health care and laboratory
monitoring, she is at risk of developing life-threatening illnesses.
Mr. Tape and Ms. Toto applied for asylum when they arrived in the
U.S., but after many years of litigation, the claim was ultimately
denied by the 9th Circuit Court of Appeals.
Although the regime which subjected Mr. Tape and Ms. Toto to
imprisonment and torture is no longer in power, Mr. Tape has been
afraid to return to Ivory Coast due to his prior association with
President Gbagbo. Mr. Tape had previously sought to promote democracy
and peace in the region in support of the current President Gbagbo's
party. However, in 2006 Mr. Tape publically distanced himself from
President Gbagbo's government when he accused the party of violence and
corruption. As a result, Mr. Tape strongly believes that his family
will be targeted if they return to Ivory Coast.
One of the most compelling reasons for permitting the family to
remain in the United States is the impact their deportation would have
on their two U.S. citizen children. For Melody and Emmanuel, the United
States is the only country they have ever known. Mr. Tape believes that
if the family returns to Ivory Coast, these two young children will be
forced to enter the army.
This bill is the only hope for this family to remain in the United
States. To send them back to Ivory Coast, where they may face
persecution and inadequate medical treatment for their illnesses would
be devastating to the family. They are contributing members of their
community and have embraced the American dream with their strong work
ethic and family values. I have received approximately 50 letters from
the church community in support of this family.
Mr. President, I ask unanimous consent that the text of the bill and
letters of support be printed in the Record.
There being no objection, the material was ordered to be placed in
the Record, as follows:

S. 3382

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

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

(a) In General.--Notwithstanding subsections (a) and (b) of
section 201 of the Immigration and Nationality Act (8 U.S.C.
1151), Guy Privat Tape and Lou Nazie Raymonde Toto shall each
be eligible for the issuance of an immigrant visa or for
adjustment of status to that of an alien lawfully admitted
for permanent residence upon filing an application for
issuance of an immigrant visa under section 204 of such Act
or for adjustment of status to lawful permanent resident.
(b) Adjustment of Status.--If Guy Privat Tape and Lou Nazie
Raymonde Toto enters the United States before the filing
deadline specified in subsection (c), Guy Privat Tape and Lou
Nazie Raymonde Toto shall be considered to have entered and
remained lawfully in the United States and shall be eligible
for adjustment of status under section

[[Page S7926]]

245 of the Immigration and Nationality Act (8 U.S.C. 1255) as
of the date of the enactment of this Act.
(c) Deadline for Application and Payment of Fees.--
Subsections (a) and (b) shall apply only if the application
for the issuance of an immigrant visa or the application for
adjustment of status is filed with appropriate fees not later
than 2 years after the date of the enactment of this Act.
(d) Reduction of Immigrant Visa Numbers.--Upon granting an
immigrant visa or permanent residence to Guy Privat Tape and
Lou Nazie Raymonde Toto, the Secretary of State shall
instruct the proper officer to reduce by 2, during the
current or next following fiscal year, the total number of
immigrant visas that are made available to natives of the
country of birth of Guy Privat Tape and Lou Nazie Raymonde
Toto under section 203(a) of the Immigration and Nationality
Act or, if applicable, the total number of immigrant visas
that are made available to natives of the country of birth of
Guy Privat Tape and Lou Nazie Raymonde Toto under section
202(e) of such Act.
____

Black Alliance for

Just Immigration,

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

June 29, 2008.
Hon. Dianne Feinstein,
U.S. Senator,
San Francisco, CA.
Dear Senator Feinstein: I am writing this letter on behalf
of Guy Privat Tape and his wife, Lou Nazie Toto and their two
children. Guy Tape arrived in the United States in 1993 and
his wife, Lou Nazie Toto, arrived in 1995 as political
refugees from the Ivory Coast. In 1995 they applied for
political asylum.
They became members of Easter Hill United Methodist Church
in Richmond, California shortly after they arrived in the
United States and have been faithful and loyal members since
that time. They are the proud parents of two children who are
United States Citizens. Their daughter sings in the
children's choir and is a member of the children's usher
board.
Guy Tape is self employed and Lou Nazie Toto is employed as
a CNA (Nurse's Assistant). They own their own home and are
productive taxpayers.
The U.S. Immigration and Custom Enforcement (ICE) is
deporting Guy Tape and his wife, Lou Nazie Toto, back to the
Ivory Coast on August 5, 2008. The United States government
will be returning this family back to the people who jailed
them, beat them.
I am asking you to please intervene and use your power to
ask ICE to reconsider this couple's petition for political
asylum.
Thank you for your consideration in this matter.
Sincerely yours,
Rev. Billye Austin,
Pastor.
p.s. America made a promise of political asylum to the
Tapes--it should keep it!
____

Easter Hill

United Methodist Church,

Richmond, CA, June 30, 2008.
Hon. Dianne Feinstein,
U.S. Senator,
San Francisco, CA.
Dear Senator Feinstein: The members of Easter Hill United
Methodist Church are asking your assistance to prevent the
deportation of the Tape family on August 5, 2008. The Tape
family are faithful members of Easter Hill Church. The
enclosed 48 letters asking for your help were signed by
members of Easter Hill United Methodist Church on Sunday,
June 29, 2008:
The following are the members who have signed requesting
your assistance for the Tape family:
Joyce Clark; Annie Harris; Horacio Avelino; Thelma Daniels;
Augustine Williams; Justin M. McMath; Clara Davis; Karen
Colquitt; Meredith Withers; Malanna Wheat; Jay Jackson; Dr.
Robert Anderson; Monique Lee; Edward Colquitt; Cecile Smith;
Dr. Corann Withers; and Ila Warner.
Pauline Wesley; Zachary Harris; Shirley Haney; Nicole
Kelly; Charlesetta Cannady; Sylvester Weaver; Bennie Smith;
Joan Daniels; Valree Wilson; Dr. Nannette Finley Hancock;
Adolphus Benjamin; Harriet M. Brown; Beverly Hardy; Ernest
Baffo-Gyan; Bassey Effiong; and Girlee Parr.
Gladys Harvey; Alfred J. Daniels, Jr.; Sheila Phillips;
Renee Lowery; James Bell; Vesper Wheat; William Harris;
Napoleon Britt; Todd Wheat; Carolyn Benjamin; Samuel Harvey;
Cassandra Clarke; Sharon Nash Haynes; Ena A. Harris; Eloise
Hewitt; and Frank Fisher.
Thank you,
Myrtle Braxton Ellington,
Church & Society Chairperson.
______

By Mr. CARDIN (for himself, Mrs. Clinton, Ms. Mikulski, and Mr.
Schumer):
S. 3383. A bill to establish the Harriet Tubman National Historical
Park in Auburn, New York, and the Harriet Tubman Underground Railroad
National Historical Park in Caroline, Dorchester, and Talbot Counties,
Maryland, and for other purposes; to the Committee on Energy and
Natural Resources.
Mr. CARDIN. Mr. President, today I am proud to introduce The Harriet
Tubman National Historical Park and The Harriet Tubman Underground
Railroad National Historical Park Act. I am joined by Mrs. Clinton, Ms.
Mikulski, and Mr. Schumer as original cosponsors.
The woman, who is known to us as Harriet Tubman, was born Araminta,
Minty, Ross approximately 1822 in Dorchester County, Maryland. She
spent nearly 30 years of her life as a slave on Maryland's eastern
shore. As an adult she took the first name Harriet, and when she was 25
she married John Tubman.
Harriet Tubman escaped from slavery in 1849. She did so in the dead
of night, navigating the maze of tidal streams and wetlands that are a
hallmark of Maryland's Eastern Shore. She did so alone, demonstrating
courage, strength and fortitude that became her hallmarks. Not
satisfied with attaining her own freedom, she returned repeatedly for
more than 10 years to the places of her enslavement in Dorchester and
Caroline counties where, under the most adverse conditions, she led
away many family members and other slaves to their freedom. Tubman
became known as ``Moses'' by African-Americans and white abolitionists.
She was perhaps the most famous and most important conductor in the
network of resistance known as the Underground Railroad.
During the Civil War, Tubman served the Union forces as a spy, a
scout and a nurse. She served in Virginia, Florida, and South Carolina.
She is credited with leading hundreds of slaves from those slave states
to freedom during those years.
Following the Civil War, Tubman settled in Auburn, New York. There
she was active in the women's suffrage movement, and she also
established the one of the first incorporated homes for aged African-
Americans. In 1903 she bequeathed the home to the African Methodist
Episcopal Zion Church in Auburn. Harriet Tubman died in Auburn in 1913
and she is buried there in the Fort Hill Cemetery.
Slaves were forced to live in primitive buildings even though many
were skilled tradesmen who constructed the substantial homes of their
owners. Not surprisingly, few of the structures associated with the
early years of Tubman's life still stand. The landscapes of the Eastern
Shore of Maryland, however, remain evocative of the time that Tubman
lived there. Farm fields and forests dot the landscape, which is also
notable for its extensive network of tidal rivers and wetlands. In
particular, a number of properties including the homestead of Ben Ross,
her father, Stewart's Canal, where he worked, the Brodess Farm, where
she worked as a slave, and others are within the boundaries of the
Blackwater National Wildlife Refuge.
Similarly, Poplar Neck, the plantation from which she escaped to
freedom, is still largely intact in Caroline County. The properties in
Talbot County, immediately across the Choptank River from the
plantation, are today protected by various conservation easements. Were
she alive today, Tubman would recognize much of the landscape that she
knew intimately as she secretly led black men, women and children to
their freedom.
In New York, on the other hand, many of the buildings associated with

[[Page S7927]]

Tubman's life remain intact. Her personal home, as well as the Tubman
Home for the Aged, the church and rectory of the Thompson Memorial AME
Zion Episcopal Church, and the Fort Hill Cemetery are all extant.
In 1999, the Congress approved legislation authorizing a Special
Resource Study to determine the appropriateness of establishing a unit
of the National Park Service to honor Harriet Tubman. The Study has
taken an exceptionally long time to complete, in part because of the
lack of remaining structures on Maryland's Eastern Shore. There has
never been any doubt that Tubman led an extraordinary life. Her
contributions to American history are surpassed by few. Determining the
most appropriate way to recognize that life and her contributions,
however, has been more difficult. Eventually, the Park Service came to
realize that determined that a Park that would include two
geographically separate units would be appropriate. The New York unit
would include the tightly clustered Tubman buildings in Auburn. The
Maryland portion would include large sections of landscapes that are
evocative of Tubman's time and are historically relevant. The Special
Resource Study will be finalized and released later this year.

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

The legislation I am introducing today establishes two parks. The
Harriet Tubman National Historical Park includes important historical
structures in Auburn, New York. They include Tubman's home, the Home
for the Aged that she established, the African Methodist Episcopal AME
Zion Church, and the Fort Hill Cemetery where she is buried.
The Harriet Tubman Underground Railroad National Historical Park
includes historically important landscapes in Dorchester, Caroline and
Talbot counties, Maryland, that are evocative of the life of Harriet
Tubman. The Maryland properties include about 2,200 acres in Caroline
County that comprise the Poplar Neck plantation that Tubman escaped
from in 1849. The 725 acres of viewshed across the Choptank River in
Talbot County would also be included in the Park. In Dorchester County,
the parcels would not be contiguous, but would include about 2,775
acres. All of them are included within the Blackwater National Wildlife
Refuge boundaries or abut that resource land. The National Park Service
would not own any of these lands.
The bill authorizes $7.5 million in grants for the New York
properties for their preservation, rehabilitation, and restoration of
those resources.
The bill authorizes $11 million in grants for the Maryland section.
Funds can be used for the construction of the State Harriet Tubman Park
Visitors Center and/or for easements or acquisition of properties
inside or adjacent to the Historical Park boundaries.
Finally, the bill also authorizes a new grants program. Under the
program, the National Park Service would award competitive grants to
historically Black colleges and universities, predominately Black
institutions, and minority serving institutions for research into the
life of Harriet Tubman and the African-American experience during the
years that coincide with the life of Harriet Tubman. The legislation
authorizes $200,000 annually for this scholarship program.
Harriet Tubman was a true American patriot. She was someone for whom
liberty and freedom were not just concepts. She lived those principles
and shared that freedom with hundreds of others. In doing so, she has
earned a nation's respect and honor. That is why I am so proud to
introduce this legislation, establishing the Harriet Tubman National
Historical Park and the Harriet Tubman Underground Railroad National
Historical Park.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3383

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Harriet Tubman National
Historical Park and Harriet Tubman Underground Railroad
National Historical Park Act''.

SEC. 2. FINDINGS; PURPOSES.

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

SEC. 3. DEFINITIONS.

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

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

(a) Establishment.--On the execution of easements with the
Church, the Secretary shall--
(1) establish the Harriet Tubman National Historical Park
(referred to in this section as

[[Page S7928]]

the ``Historical Park'') in the City of Auburn, New York, as
a unit of the National Park System; and
(2) publish notice of the establishment of the Historical
Park in the Federal Register.
(b) Boundary.--
(1) In general.--The Historical Park shall be comprised of
structures and properties associated with the Harriet Tubman
home, the Tubman Home for the Aged, the Church, and the
Rectory, as generally depicted on the map entitled ``Harriet
Tubman National Historical Park-Proposed Boundary'', numbered
[____], and dated [___].
(2) Availability of map.--The map described in paragraph
(1) shall be available for public inspection in the
appropriate offices of the National Park Service.
(c) Acquisition of Land.--The Secretary may acquire from
willing sellers, by donation, purchase with donated or
appropriated funds, or exchange, land or interests in land
within the boundary of the Historical Park.
(d) Financial Assistance.--The Secretary may provide grants
to, and enter into cooperative agreements with--
(1) the Church for--
(A) historic preservation of, rehabilitation of, research
on, and maintenance of properties within the boundary of the
Historical Park; and
(B) interpretation of the Historical Park;
(2) the Fort Hill Cemetery Association for maintenance and
interpretation of the gravesite of Harriet Tubman; and
(3) the State of New York, any political subdivisions of
the State, the City of Auburn, and nonprofit organizations
for--
(A) preservation and interpretation of resources relating
to Harriet Tubman in the City of Auburn, New York;
(B) conducting research, including archaeological research;
and
(C) providing for stewardship programs, education, public
access, signage, and other interpretive devices at the
Historical Park for interpretive purposes.
(e) Interpretation.--The Secretary may provide interpretive
tours to sites located outside the boundaries of the
Historical Park in Auburn, New York, that include resources
relating to Harriet Tubman.
(f) General Management Plan.--
(1) In general.--Not later than 3 years after the date on
which funds are made available to carry out this subsection,
the Secretary, in cooperation with the Church, shall complete
a general management plan for the Historical Park in
accordance with section 12(b) of Public Law 91-383 (16 U.S.
C. 1a-7(b)).
(2) Coordination.--The Secretary shall coordinate the
preparation and implementation of the general management plan
for the Harriet Tubman National Historical Park with--
(A) the Harriet Tubman Underground Railroad National
Historical Park in Maryland; and
(B) the National Underground Railroad: Network to Freedom.

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

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

SEC. 6. ADMINISTRATION.

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

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

(a) In General.--There are authorized to be appropriated
such sums as are necessary to carry out this Act (other than
subsection (b)), including the provision of National Park
Service personnel and National Park Service management funds
for the Harriet Tubman National Historical Park and the
Harriet Tubman Underground Railroad National Historical Park.
(b) Grants.--There are authorized to be appropriated not
more than--
(1) $7,500,000 to provide grants to the Church for--
(A) historic preservation, rehabilitation, and restoration
of resources within the boundary of the Harriet Tubman
National Historical Park; and
(B) the costs of design, construction, installation, and
maintenance of exhibits and other interpretive devices
authorized under section 4(d)(1)(B);
(2) $11,000,000 for grants to the State of Maryland for
activities authorized under subsections (d)(1) and (e)(4)(A)
of section 5; and

[[Page S7929]]

(3) $200,000 for fiscal year 2009 and each fiscal year
thereafter for competitive grants to historically Black
colleges and universities, Predominately Black Institutions,
and minority serving institutions for research into the life
of Harriet Tubman and the African-American experience during
the years that coincide with the life of Harriet Tubman.
(c) Cost-Sharing Requirement.--
(1) Church and visitor center grants.--The Federal share of
the cost of activities provided grants under paragraph (1) or
(2) of subsection (b) and any maintenance, construction, or
utility costs incurred pursuant to a cooperative agreement
entered into under section 4(d)(1)(A) or section 5(e) shall
not be more than 50 percent.
(2) Historically black colleges and universities.--The
Federal share of the cost of activities provided assistance
under subsection (b)(3) shall be not more than 75 percent.
(3) Form of non-federal share.--The non-Federal share
required under this subsection may be in the form of in-kind
contributions of goods or services fairly valued.
______

By Mr. CARPER (for himself, Ms. Collins, Mr. Lieberman, Mr.
Coleman, and Mrs. McCaskill):
S. 3384. A bill to amend section 11317 of title 40, United States
Code, to require greater accountability for cost overruns on Federal IT
investment projects; to the Committee on Homeland Security and
Governmental Affairs.
Mr. CARPER. Mr President, I rise today with my colleagues on the
Homeland Security and Governmental Affairs Committee to introduce the
Information Technology Oversight Enhancement and Waste Prevention Act
of 2008.
With a long name like that, you would hope that it is addressing a
very serious problem. Well I assure you, that it is.
Every year agencies spend billions of dollars on IT investments
that--if planned and implemented properly--can increase productivity,
reduce costs, and improve efficiency. As everyone knows, information
technology has become a cornerstone of the way we conduct business.
Just look at the rise in popularity of Blackberries, not only outside
these walls, but right here in the Senate.
In fiscal year 2009, agencies are planning to spend almost $71
billion to improve their financial systems for better reporting,
streamline their grant processes, and reduce wasteful paper
applications. And this is a good thing.
However, the Government Accountability Office has reported for
several years that many of these investments are poorly planned, poorly
performing--or in some cases--both. Yet, agencies continue to fund
these risky investments without any oversight or accountability. In
fact, I was surprised to hear GAO report that $25.2 billion is at
danger of being wasted because agencies failed to properly plan or
manage their investments.
Mr. President, $25.2 billion may not be a very large sum of money
when you compare it to what we spend every year, but I assure you that
it is a very real sum of money to those families who can't pay for the
gas they need to get to work, or who are struggling to put food on
their table.
To illustrate my point further, this chamber had to include emergency
funding in the last supplemental appropriations bill to bail out the
Census Bureau's 2010 operations. They had been planning for more than a
decade to use advanced handheld computers to verify addresses and
follow up with households who don't send their census forms in on time.
My colleagues and I on the Homeland Security and Governmental Affairs
Committee heard, however, that Census Bureau officials failed to define
what they need out of the handheld project and, as a result, the
contractor was having trouble delivering a product that could work. We
held two hearings to try and get to the bottom of the problem and find
a solution but, at the end of the day, the Census Bureau had to scrap
the handheld project and go with the same expensive and inefficient
``pen and paper'' counting method that they have used for centuries.
The cost of this failure on the part of the Census Bureau is expected
to total in the billions.
This extra money that the Census Bureau will need to spend between
now and 2010 could have been used to improve the quality of the final
count by outreaching to historically-undercounted groups. In fact, it
could have been used for any number of worthwhile purposes.
My colleagues and I on the Homeland Security and Governmental Affairs
Committee's Subcommittee on Federal Financial Management, which I
chair, have held three hearings on the issue of troubled IT projects
now, including one this morning. And what we've learned is that some
agencies can't keep the expected cost of their investments down or
deliver on time as promised. Nor do these agencies, in many cases, have
qualified IT experts they can turn to before a project spirals out of
control. The bill Senators Lieberman, Collins and I have put forward
today addresses these issues.
Our bill starts by requiring agencies to inform Congress when an
investment begins to see increased costs, schedule delays, or
performance deficiencies outside of 20 percent of the original plan.
Our bill would also require agencies to inform Congress if an
investment exceeds 40 percent of their original plan, and require the
agency head to conduct an analysis that determines whether we should
continue to fund this investment or just pull the plug.
Many agencies today simply rewrite their plans when they run into
trouble. They don't tell Congress that anything is wrong and the
troubled projects just keep getting funded year in and year out.
Finally and perhaps most importantly, our bill recognizes that, many
times, agencies lack the experience necessary to manage complex IT
investments. To remedy this, we propose that OMB create what my staff
and I have come to call an ``IT Strike Team.'' This team would be
comprised of known individuals inside and outside government who have
records of successfully managing complex IT projects. If an agency or
OMB recognizes that an investment is beginning to experience problems,
the team would come in make sure the project is brought online or
scrapped before more money is wasted.
I look forward to working with my colleagues to get these important
and necessary reforms enacted. I think I speak for all of us when I say
that investing in IT systems is important. But these investments
shouldn't come with wasted time and money that they all too often
bring. In tight fiscal times like these, we need to make sure the money
we do invest is spent wisely.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3384

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Information Technology
Investment Oversight Enhancement and Waste Prevention Act of
2008''.

SEC. 2. IT INVESTMENT PROJECTS.

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

``SEC. 11317. SIGNIFICANT AND GROSS DEVIATIONS.

``(a) Definitions.--In this subchapter:
``(1) Agency head.--The term `Agency Head' means the head
of the Federal agency that is primarily responsible for the
IT investment project under review.
``(2) ANSI eia-748 standard.--The term `ANSI EIA-748
Standard' means the measurement tool jointly developed by the
American National Standards Institute and the Electronic
Industries Alliance to analyze earned value management
systems.
``(3) Appropriate congressional committees.--The term
`appropriate congressional committees' means--
``(A) the Committee on Homeland Security and Governmental
Affairs of the Senate;
``(B) the Committee on Oversight and Government Reform of
the House of Representatives;
``(C) the Committee on Appropriations of the Senate;
``(D) the Committee on Appropriations of the House of
Representatives; and
``(E) any other relevant congressional committee with
jurisdiction over an agency required to take action under
this section.
``(4) Chief information officer.--The term `Chief
Information Officer' means the Chief Information Officer
designated under section 3506(a)(2) of title 44 of the
Federal agency that is primarily responsible for the IT
investment project under review.
``(5) Core it investment project.--The terms `core IT
investment project' and `core project' mean a mission
critical IT investment project jointly designated as such by
the Agency Head and the Director under subsection (b).
``(6) Director.--The term `Director' means the Director of
the Office of Management and Budget.

[[Page S7930]]

``(7) Grossly deviated.--The term `grossly deviated' means
cost, schedule, or performance variance that is at least 40
percent from the Original Baseline.
``(8) Independent cost estimate.--The term `independent
cost estimate' means a pragmatic and neutral analysis,
assessment, and quantification of all costs and risks
associated with the acquisition of an IT investment project,
which--
``(A) is based on programmatic and technical specifications
provided by the office within the agency with primary
responsibility for the development, procurement, and delivery
of the project;
``(B) is formulated and provided by an entity other than
the office within the agency with primary responsibility for
the development, procurement, and delivery of the project;
``(C) contains sufficient detail to inform the selection of
a baseline benchmark measure under the ANSI EIA-748 standard;
and
``(D) accounts for the full life cycle cost plus associated
operations and maintenance expenses over the usable life of
the project's deliverables.
``(9) IT investment project.--The terms `IT investment
project' and `project' mean an information technology system
or acquisition that--
``(A) requires special management attention because of its
importance to the mission or function of the agency, a
component of the agency, or another organization;
``(B) is for financial management and obligates more than
$500,000 annually;
``(C) has significant program or policy implications;
``(D) has high executive visibility;
``(E) has high development, modernization, or enhancement
costs;
``(F) is funded through other than direct appropriations;
or
``(G) is defined as major by the agency's capital planning
and investment control process.
``(10) Life cycle cost.--The term `life cycle cost' means
the total cost of an IT investment project for planning,
research and development, modernization, and enhancement.
``(11) Original baseline.--
``(A) In general.--Except as provided under subparagraph
(B), the term `Original Baseline' means the ANSI EIA-748
Standard-compliant cost, schedule, and performance benchmark
established at the commencement of an IT investment project
contract.
``(B) Grossly deviated project.--If an IT investment
project grossly deviates from its Original Baseline (as
defined in subparagraph (A)), the term `Original Baseline'
means the ANSI EIA-748 Standard-compliant cost, schedule, and
performance benchmark established under subsection (e)(3)(C).
``(12) Significantly deviated.--The term `significantly
deviated' means cost, schedule, or performance variance that
is at least 20 percent from the Original Baseline.
``(b) Core IT Investment Projects.--
``(1) Designation.--Except as provided under paragraph (2),
each Agency Head and the Director shall jointly designate not
fewer than 5 of the agency's most mission critical IT
investment projects as `core IT investment projects' or `core
projects', after considering, among other factors--
``(A) whether the project represents a high-dollar value
relative to the average IT investment project in the agency's
portfolio;
``(B) whether the project delivers a capability critical to
the successful completion of the agency mission, or a portion
of such mission; and
``(C) whether the project incorporates unproven or
previously undeveloped technology to meet primary project
technical requirements.
``(2) Exception.--If the Agency Head and the Director
jointly determine that fewer than 5 IT investment projects
meet the criteria described in paragraph (1), the Director--
``(A) may provide the agency with written authorization to
designate fewer than 5 projects; and
``(B) shall submit a report to the appropriate
congressional committees that contains notice of, and
justification for, any such authorization.
``(c) Cost, Schedule, and Performance Reports.--
``(1) Quarterly reports.--Not later than 7 days after the
end of each fiscal quarter, the project manager for an IT
investment project shall submit a written report to the Chief
Information Officer that includes, as of the last day of the
applicable quarter--
``(A) a description of the cost, schedule, and performance
of all projects under the project manager's supervision;
``(B) the original and current project cost, schedule, and
performance benchmarks for each project under the project
manager's supervision;
``(C) the cost, schedule, or performance variance related
to each IT investment project under the project manager's
supervision since the commencement of the contract;
``(D) for each project under the project manager's
supervision, any known, expected, or anticipated changes to
project schedule milestones or project performance benchmarks
included as part of the original or current baseline
description; and
``(E) the current cost, schedule, and performance status of
all projects under supervision that were previously
identified as significantly deviated or grossly deviated.
``(2) Interim reports.--If the project manager for an IT
investment project determines that there is reasonable cause
to believe that an IT investment project has significantly
deviated or grossly deviated since the issuance of the latest
quarterly report, the project manager shall submit to the
Chief Information Officer, not later than 7 days after such
determination, a report on the project that includes, as of
the date of the report--
``(A) a description of the original and current program
cost, schedule, and performance benchmarks;
``(B) the cost, schedule, or performance variance related
to the IT investment project since the commencement of the
contract;
``(C) any known, expected, or anticipated changes to the
project schedule milestones or project performance benchmarks
included as part of the original or current baseline
description; and
``(D) the major reasons underlying the significant or gross
deviation of the project.
``(d) Determination of Significant Deviation.--
``(1) Chief information officer.--Upon receiving a report
under subsection (c), the Chief Information Officer shall--
``(A) determine if any IT investment project has
significantly deviated; and
``(B) report such determination to the Agency Head.
``(2) Congressional notification.--If the Chief Information
Officer determines under paragraph (1) that an IT investment
project has significantly deviated and the Agency Head has
not issued a report to the appropriate congressional
committees of a significant deviation for that project under
this section since the project was last required to be re-
baselined under this section, the Agency Head shall submit a
report to the appropriate congressional committees and to the
Government Accountability Office that includes--
``(A) written notification of such determination;
``(B) the date on which such determination was made;
``(C) the amount of the cost increases and the extent of
the schedule delays with respect to such project;
``(D) any requirements that--
``(i) were added subsequent to the original contract; or
``(ii) were originally contracted for, but were changed by
deferment or deletion from the original schedule, or were
otherwise no longer included in the requirements contracted
for;
``(E) an explanation of the differences between--
``(i) the estimate at completion between the project
manager, any contractor, and any independent analysis; and
``(ii) the original budget at completion;
``(F) the rough order of magnitude of the costs of any
reasonable alternative system, or reasonable alternative
approach to establishing an equivalent outcome or capability;
``(G) a statement of the reasons underlying the project's
significant deviation;
``(H) the identities of the project managers responsible
for program management and cost control of the program; and
``(I) a summary of the plan of action to remedy the
significant deviation.
``(3) Deadline.--
``(A) Notification based on quarterly report.--If the
determination of significant deviation is based on a report
submitted under subsection (b)(1), the Agency Head shall
notify Congress in accordance with paragraph (2) not later
than 14 days after the end of the quarter upon which such
report is based.
``(B) Notification based on interim report.--If the
determination of significant deviation is based on a report
submitted under subsection (b)(2), the Secretary shall notify
Congress in accordance with paragraph (2) not later than 14
days after the submission of such report.
``(e) Determination of Gross Deviation.--
``(1) Chief information officer.--Upon receiving a report
under subsection (c), the Chief Information Officer shall--
``(A) determine if any IT investment project has grossly
deviated; and
``(B) report any such determination to the Agency Head.
``(2) Congressional notification.--If the Chief Information
Officer determines under paragraph (1) that an IT investment
project has grossly deviated and the Agency Head has not
issued a report to the appropriate congressional committees
of a gross deviation for that project under this section
since the project was last required to be re-baselined under
this section, the Agency Head shall submit a report to the
appropriate congressional committees and to the Government
Accountability Office that includes--
``(A) written notification of such determination, which
states--
``(i) the date on which such determination was made; and
``(ii) an indication of whether or not the project has been
previously reported as a significant or gross deviation by
the Chief Information Officer, and the date of any such
report;
``(B) incorporations by reference of all prior reports to
Congress on the project required under this section;
``(C) updated accounts of the items described in
subparagraphs (C) through (H) of subsection (d)(2);
``(D) the original estimate at completion for the project
manager, any contractor, and any independent analysis;

[[Page S7931]]

``(E) a graphical depiction of actual cost variance since
the commencement of the contract;
``(F) the amount, if any, of incentive award fees any
contractor has received since the commencement of the
contract and the reasons for receiving such award fees;
``(G) the project manager's estimated cost at completion
and estimated completion date for the project if current
requirements are not modified;
``(H) the project manager's estimated cost at completion
and estimated completion date for the project based on
reasonable modification of such requirements;
``(I) an explanation of the most significant occurrence
contributing to the variance identified, including cost,
schedule, and performance variances, and the effect such
occurrence will have on future project costs and program
schedule;
``(J) a statement regarding previous or anticipated re-
baselining or re-planning of the project and the names of the
individuals responsible for approval;
``(K) the original life cycle cost of the investment and
the expected life cycle cost of the investment expressed in
constant base year dollars and in current dollars; and
``(L) a comprehensive plan of action to remedy the gross
deviation, and milestones established to control future cost,
schedule, and performance deviations in the future.
``(3) Remedial action.--If the Chief Information Officer
determines under paragraph (1) that an IT investment project
has grossly deviated, the Agency Head, in consultation with
the Chief Information Officer, shall ensure that--
``(A) a report is submitted to the appropriate
congressional committees that--
``(i) describes the primary business case and key
functional requirements for the project;
``(ii) describes any portions of the project that have
technical requirements of sufficient clarity that such
portions may be feasibly procured under firm, fixed-price
contract;
``(iii) includes a certification by the Agency Head, after
consultation with the Chief Information Officer, that all
technical requirements have been reviewed and validated to
ensure alignment with the reported business case;
``(iv) describes any changes to the primary business case
or key functional requirements which have occurred since
project inception; and
``(v) includes an independent cost estimate for the project
conducted by an entity approved by the Director;
``(B) an analysis is submitted to the appropriate
congressional committees that--
``(i) describes agency business goals that the project was
originally designed to address;
``(ii) includes a gap analysis of what project deliverables
remain in order for the agency to accomplish the business
goals referred to in clause (i);
``(iii) identifies the 3 most cost-effective alternative
approaches to the project which would achieve the business
goals referred to in clause (i); and
``(iv) includes a cost-benefit analysis, which compares--

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

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

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

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

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

``SEC. 11319. ACQUISITION AND DEVELOPMENT.

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

[[Page S7932]]

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

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

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

``11319. Acquisition and development.''.

SEC. 3. IT STRIKE FORCE.

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

Ms. COLLINS. Mr. President, I am pleased to join Senator Carper in
introducing a bill that will improve agency performance and
Congressional oversight of major Federal information-technology, IT
projects.
The well-publicized cost and performance problems with the Census
Bureau's handheld computers for the 2010 Census--with its troubling
implications for the next House reapportionment and for the allocation
of Federal funds--represent only the most recent and conspicuous
failure in a long trail of troubles that also includes critical IT
projects like the FBI's virtual case file initiative. Former IBM
executive and Carnegie-Mellon University technology expert Watts
Humphrey makes the point succinctly: ``Software failures are common,
and the biggest projects fail most often.''
During the 108th Congress, the Committee on Governmental Affairs
investigated the botched automated recordkeeping project for the
Federal employees' Thrift Savings Plan TSP. This project was terminated
in 2001 after a

[[Page S7933]]

4-year contract produced $36 million in waste that was charged to the
accounts of TSP participants and beneficiaries. A second vendor needed
an additional $33 million to bring the system online, years overdue and
costing more than double its original estimate.
In a 2004 letter from the Federal Retirement Thrift Investment Board
to the Governmental Affairs Committee, the board characterized the
project as ``ill-fated `` and acknowledged the importance of careful
planning, task definition, communication, proper personnel, and risk
management--all of which were lacking on that project.
Large IT project failures have cost U.S. taxpayers billions of
dollars in wasted expenditures. The waste is troubling, but even more
troubling is the fact that when Federal IT projects fail, they can
undermine the Government's ability to defend the Nation, enforce its
laws, or deliver critical services to citizens. Again and again, we
have seen IT project failures grounded in poor planning, ill-defined
and shifting requirements, undisclosed difficulties, poor risk
management, and lax monitoring of performance.
Unfortunately, as the Government Accountability Office, GAO, tells us
in a new report, Federal IT projects still fall short in their use of
effective oversight techniques to monitor development and to spot signs
of possible trouble.
The GAO reports that the Federal Government will spend over $70
billion in fiscal year 2008 on IT projects. Most of that spending is
concentrated in two dozen agencies that have 778 major projects
underway. These Federal entities range from Cabinet departments like
Commerce, Defense, and Veterans Affairs, to agencies like NASA, the
Office of Personnel Management, and the Agency for International
Development.
The GAO observes that ``Effectively managing projects involves
pulling together essential cost, schedule, and performance goals in a
meaningful, coherent fashion so that managers have an accurate view of
the program's development status.'' This set of goals becomes the
project ``baseline.''

When the GAO conducted a study of a random sample of those major
Federal IT projects, however, they found that 85--nearly half the
sample--had been ``rebaselined.'' Eighteen of those projects have been
rebaselined three or more times. For example, the Department of Defense
Advanced Field Artillery Tactical Data System has been rebaselined four
times; a Veterans Affairs Health Administration Center project has been
rebaselined six times.
Rebaselining can reflect funding changes, revisions in project scope
or goals, and other perfectly reasonable project modifications. But as
the GAO notes, ``[rebaselining] can also be used to mask cost overruns
and schedule delays.'' All major Federal agencies have rebaselining
policies, but the GAO concludes that they are not comprehensive and
that ``none of the policies are fully consistent with best practices.''
The bill that Senator Carper and I are introducing will go far toward
addressing the weaknesses identified by the GAO and will reduce the
risks that important Federal IT projects will drag on far beyond
deadlines, fail to deliver intended capabilities, or waste taxpayers'
money. We are pleased to have Senators Lieberman, Coleman, and
McCaskill join us as cosponsors in this effort.
Our bill will improve both agency and Congressional oversight of
large Federal IT projects. For all major investments, the bill requires
agencies to track the earned value management index, a key cost and
performance measure, and to alert Congress should that measure fall
below a defined threshold.
The bill requires additional reports to Congress as well as specific
corrective actions should those same indicators continue to worsen.
Further, because the bill's performance thresholds are based on
original cost baselines, rebaselining can no longer serve as a tactic
to hide troubled projects. If severe shortfalls remain uncorrected, the
bill can even suspend commitment of funds to a project until the agency
takes the required corrective actions.
Our bill does not envision making Congress a micromanager of Federal
projects--especially in so complex a field as information technology.
But it will ensure that, for these important investments, agencies will
be required to track key performance metrics, inform Congress of
shortfalls in those metrics, and provide Congress with followup
reports, independent cost estimates, and analyses of project
alternatives when the original projects have run off course.
The bill also provides that each covered agency identify to Congress
their top mission-critical projects. Those ``core investments'' would
be subject to additional upfront planning, reporting, and performance
monitoring requirements. This will help ensure that agencies apply
extra vigilance to these projects at the planning stage and not just
when execution begins.
In addition to tracking cost and schedule slippage, agencies making
core IT investments must provide a complete ``business case'' that
outlines the need for the project and its associated costs and
schedules; produce a rigorous, independent, third-party estimate of the
project's full, life-cycle costs; have the agency CIO certify the
project's functional requirements; track these functional requirements;
and report to Congress any changes in functional requirements,
including whether those changes concealed a major cost increase.
To help agencies deliver IT projects on time and on budget, the bill
also provides two new support mechanisms.
First, agency heads would be required to establish an internal IT-
management program, subject to OMB guidelines, to improve project
planning, requirements development, and management of earned value and
risk.
Second, the Director of OMB and its E-Gov Administrator will be
required to establish an IT strike force of experts and independent
consultants who can be assigned to help agencies reform troubled
projects. In addition, the E-Gov Administrator can recommend that
agency heads mentor or replace an IT project manager, reinforce the
management team, terminate the project, or hire an independent
contractor to report on the project.
These and other provisions will help improve project planning, avoid
problems in project execution, provide early alerts when problems
arise, and promote prompt corrective action.
In projects where difficulties persist, our bill provides strong
remedies. For projects that exhibit a performance shortfall of 20
percent or more, the agency head involved must not only alert Congress
but also provide a summary of a concrete plan of action to correct the
problem. If the shortfall exceeds 40 percent, agencies have 6 months to
take required remedial steps or else suspend further project spending
until those steps are completed.
If the provisions of this bill had been in force during the past
decade, early indicators of trouble and prompt warnings to Congress
might have helped prevent much of the added cost, decreased
functionality, and increased anxiety we now see surrounding the
handheld computers that were intended to streamline the 2010 Census.
The additional scrutiny of plans and costs required by this bill might
have saved some of the billions wasted on other IT projects that
ultimately landed on high-risk lists.
Our bill creates a measured, methodical plan to ensure that Federal
agencies apply best practices to IT projects, supply timely reports of
problems, and devise corrective actions sooner rather than later. Our
Government and our citizens will benefit from these improvements. I
urge every Senator to support this constructive and bipartisan bill.
______

By Mr. DURBIN (for himself, Mr. Gregg, Mr. Dodd, Mr. Burr, Mr.
Harkin, and Mr. Alexander):
S. 3385. A bill to amend the Federal Food, Drug, and Cosmetic Act
with respect to the safety of the food supply; to the Committee on
Health, Education, Labor, and Pensions.
Mr. DURBIN. Mr. President, today I rise to introduce the FDA Food
Safety Modernization Act.
Yesterday, the Food and Drug Administration, which is responsible for
ensuring the safety of about 80 percent of our food supply, announced
that it was one step closer to pinpointing the source of the current
Salmonella Saintpaul outbreak. At first we were told tomatoes were the
culprit. Then tomatoes were exonerated and jalapeno

[[Page S7934]]

peppers in south Texas were to blame. Now FDA is saying it has
discovered a strain of the bacteria in Serrano peppers from a farm in
Tamaulipas, Mexico.
In the meantime, over three months have passed since the first
reported case. At least 255 people have been hospitalized and two have
died because of the outbreak. The tomato industry faces tens of
millions of dollars in losses and a loss in consumer confidence. Some
estimate that the economic impact may be as much as $100 to $500
million.
Over the last couple of years we have seen news headlines about E.
coli in spinach, pet food spiked with melamine, Salmonella-tainted
peanut butter, and now contaminated peppers. It's clear that these are
not isolated cases but the product of a food safety system that is
outdated, under-funded, and overwhelmed. Some of our most important
food safety statutes date back to the early 1900s. Standards have not
been updated. The budgets of the agencies that act as watchdogs over
the system have eroded. We import more of our food than ever but we
don't have the systems in place to make sure this food is as safe as it
could be. All these shortcomings put consumers at unnecessary risk.
FDA is struggling to keep up. There are holes in its ability to
protect consumers from unsafe foods. For example, the Consumer
Protection Safety Commission, the EPA, and even FDA with respect to
infant formula all have recall authority. But FDA is unable to pull any
other contaminated food off the shelf when the company that makes it
will not. FDA can suggest a recall and most of the time companies
comply. But there are always bad actors and sometimes companies choose
not to recall their products because they are afraid of upsetting
consumer confidence or losing market share. In this case, FDA's hands
are tied.
These are significant gaps in our food safety system that need to be
addressed. We can and should do better.
That is why I am pleased to introduce The FDA Food Safety
Modernization Act, along with Senators Gregg, Dodd, Burr, Harkin, and
Alexander. This bill is a comprehensive, bipartisan effort that
addresses some of the weaknesses in FDA's authorities and resources and
updates food safety standards to make important improvements in our
current food safety system. The bill includes a number of important
preventive measures, such as increasing the frequency of FDA
inspections of food facilities, especially high-risk facilities;
directing FDA to set standards for fresh produce; and requiring the
food industry to control hazards in the food supply chain. It also
enables FDA to more effectively respond to an outbreak by giving the
agency new authorities to order recalls, shut down tainted facilities,
and access records to track and trace food.
The food industry is one of the most important sectors of our
economy, generating more than $1 trillion annually in economic activity
and employing millions of American workers. Food is also a deeply
personal experience, a part of our daily lives and our traditions and
culture. For far too long Congress has gone without a comprehensive
review of our food safety laws. As long as we continue to do nothing,
we will pay the price for an outdated and ill-equipped food safety
system.
I thank Senators Gregg, Dodd, Burr, Harkin, and Alexander for joining
me in crafting this bill and urge my colleagues to support.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3385

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

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

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

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

TITLE I--GENERAL FOOD PROVISIONS

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

TITLE II--DETECTION AND SURVEILLANCE

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

TITLE III--SPECIFIC PROVISIONS FOR IMPORTED FOOD

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

TITLE I--GENERAL FOOD PROVISIONS

SEC. 101. INSPECTIONS OF RECORDS.

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

SEC. 102. REGISTRATION OF FOOD FACILITIES.

(a) Updating of Food Category Regulations; Biennial
Registration Renewal.--Section 415(a) (21 U.S.C. 350d(a)) is
amended--
(1) in paragraph (2), by--
(A) striking ``conducts business and'' and inserting
``conducts business, the e-mail address for the contact
person of the facility, and''; and
(B) inserting ``, or any other food categories as
determined appropriate by the Secretary, including by
guidance)'' after ``Code of Federal Regulations'';
(2) by redesignating paragraphs (3) and (4) as paragraphs
(4) and (5), respectively; and
(3) by inserting after paragraph (2) the following:
``(3) Biennial registration renewal.--During the period
beginning on October 1

[[Page S7935]]

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

SEC. 103. MANDATORY RECALL AUTHORITY.

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

``SEC. 418. MANDATORY RECALL AUTHORITY.

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

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

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

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

``(a) In General.--Each owner, operator, or agent in charge
of a facility shall, in accordance with this section,
evaluate the hazards that could affect food manufactured,
processed, packed, or held by such facility, identify and
implement preventive controls to significantly minimize or
prevent their occurrence and provide assurances that such
food is not adulterated under section 402 or misbranded under
section 403(w), monitor the performance of those controls,
and maintain records of this monitoring as a matter of
routine practice.
``(b) Hazard Analysis.--The owner, operator, or agent in
charge of a facility shall--
``(1) identify and evaluate known or reasonably foreseeable
hazards that may be associated with the facility, including--
``(A) biological, chemical, physical, and radiological
hazards, natural toxins, pesticides, drug residues,
decomposition, parasites, allergens, and unapproved food and
color additives; and
``(B) hazards that occur naturally, may be unintentionally
introduced, or may be intentionally introduced, including by
acts of terrorism; and
``(2) develop a written analysis of the hazards.
``(c) Preventive Controls.--The owner, operator, or agent
in charge of a facility shall identify and implement
preventive controls, including at critical control points, if
any, to provide assurances that--
``(1) hazards identified in the hazard analysis conducted
under subsection (b) will be significantly minimized or
prevented; and
``(2) the food manufactured, processed, packed, or held by
such facility will not be adulterated under section 402 or
misbranded under section 403(w).
``(d) Monitoring of Effectiveness.--The owner, operator, or
agent in charge of a facility shall monitor the effectiveness
of the preventive controls implemented under subsection (c)
to provide assurances that the outcomes described in
subsection (c) shall be achieved.
``(e) Corrective Actions.--The owner, operator, or agent in
charge of a facility shall establish procedures that a
facility will implement if the preventive controls
implemented under subsection (c) are found to be

[[Page S7936]]

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

SEC. 105. PERFORMANCE STANDARDS.

The Secretary shall, not less frequently than every 2
years, review and evaluate epidemiological data and other
appropriate sources of information to determine the most
significant food-borne contaminants and the most significant
resulting hazards, and may issue science-based guidance
documents, action levels, and regulations to help prevent
adulteration under section 402 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 342). Such standards shall be
applicable to products and product classes and shall not be
written to be facility-specific.

SEC. 106. STANDARDS FOR PRODUCE SAFETY.

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

``SEC. 420. STANDARDS FOR PRODUCE SAFETY.

``(a) Proposed Rulemaking.--
``(1) In general.--Not later than 1 year after the date of
enactment of the FDA Food Safety Modernization Act, the
Secretary, in consultation with the Secretary of Agriculture
and representatives of State departments of agriculture,
shall publish a notice of proposed rulemaking to establish
science-based minimum standards for the safe production and
harvesting of those types of fruits and vegetables that are
raw agricultural commodities for which the Secretary has
determined that such standards minimize the risk of serious
adverse health consequences or death.
``(2) Public input.--During the comment period on the
notice of proposed rulemaking under paragraph (1), the
Secretary shall conduct not less than 3 public meetings in
diverse geographical areas of the United States to provide
persons in different regions an opportunity to comment.
``(3) Content.--The proposed rulemaking under paragraph (1)
shall--
``(A) include, with respect to growing, harvesting,
sorting, and storage operations, minimum standards related to
fertilizer use, nutrients, hygiene, packaging, temperature
controls, animal encroachment, and water; and
``(B) consider hazards that occur naturally, may be
unintentionally introduced, or may be intentionally
introduced, including by acts of terrorism.
``(4) Prioritization.--The Secretary shall prioritize the
implementation of the regulations for specific fruits and
vegetables that are raw agricultural commodities that have

[[Page S7937]]

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

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

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

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

``(a) Identification and Inspection of Facilities.--
``(1) Identification.--The Secretary shall allocate
resources to inspect facilities according to the risk profile
of the facilities, which shall be based on the following
factors:
``(A) The risk profile of the food manufactured, processed,
packed, or held at the facility.
``(B) The facility's history of food recalls, outbreaks,
and violations of food safety standards.
``(C) The rigor of the facility's hazard analysis and risk-
based preventive controls.
``(D) Whether the food manufactured, processed, packed,
handled, prepared, treated, distributed, or stored at the
facility meets the criteria for priority under section
801(h)(1).
``(E) Whether the facility has received a certificate as
described in section 809(b).
``(F) Any other criteria deemed necessary and appropriate
by the Secretary for purposes of allocating inspection
resources.
``(2) Inspections.--The Secretary shall increase the
frequency of inspection of all facilities, and shall increase
the frequency of inspection of facilities identified under
paragraph (1) as high-risk facilities such that--
``(A) for the first 2 years after the date of enactment of
the FDA Food Safety Modernization Act, each high-risk
facility is inspected not less often than once every 2 years;
and
``(B) for each succeeding year, each high-risk facility is
inspected not less often than once each year.
``(b) Identification and Inspection at Ports of Entry.--The
Secretary, in consultation with the Secretary of Homeland
Security, shall allocate resources to inspect articles of
food imported into the United States according to the risk
profile of the article of food, which shall be based on the
following factors:
``(1) The risk profile of the food imported.
``(2) The risk profile of the countries of origin and
countries of transport of the food imported.
``(3) The history of food recalls, outbreaks, and
violations of food safety standards of the food importer.
``(4) The rigor of the foreign supplier verification
program under section 805.
``(5) Whether the food importer participates in the
Voluntary Qualified Importer Program under section 806.
``(6) Whether the food meets the criteria for priority
under section 801(h)(1).
``(7) Whether the food is from a facility that has received
a certificate as described in section 809(b).
``(8) Any other criteria deemed appropriate by the
Secretary for purposes of allocating inspection resources.
``(c) Coordination.--The Secretary shall improve
coordination and cooperation with the Secretary of
Agriculture to target food inspection resources.
``(d) Facility.--For purposes of this section, the term
`facility' means a domestic facility or a foreign facility
that is required to register under section 415.''.
(b) Annual Report.--Section 903 (21 U.S.C. 393) is amended
by adding at the end the following:
``(h) Annual Report Regarding Food.--Not later than
February 1 of each year, the Secretary shall submit to
Congress a report regarding--
``(1) information about food facilities including--
``(A) the appropriations used to inspect facilities
registered pursuant to section 415 in the previous fiscal
year;
``(B) the average cost of both a non-high-risk food
facility inspection and a high-risk food facility inspection,
if such a difference exists, in the previous fiscal year;
``(C) the number of domestic facilities and the number of
foreign facilities registered pursuant to section 415 that
the Secretary inspected in the previous fiscal year;
``(D) the number of domestic facilities and the number of
foreign facilities registered pursuant to section 415 that
the Secretary did not inspect in the previous fiscal year;
``(E) the number of high-risk facilities identified
pursuant to section 421 that the Secretary inspected in the
previous fiscal year; and
``(F) the number of high-risk facilities identified
pursuant to section 421 that the Secretary did not inspect in
the previous fiscal year;
``(2) information about food imports including--
``(A) the number of lines of food imported into the United
States that the Secretary physically inspected or sampled in
the previous fiscal year;
``(B) the number of lines of food imported into the United
States that the Secretary did not physically inspect or
sample in the previous fiscal year; and
``(C) the average cost of physically inspecting or sampling
a food line subject to this Act that is imported or offered
for import into the United States; and
``(3) information on the foreign offices established under
section 309 of the FDA Food Safety Modernization Act
including--
``(A) the number of foreign offices established; and
``(B) the number of personnel permanently stationed in each
foreign office.
``(i) Public Availability of Annual Food Reports.--The
Secretary shall make the reports required under subsection
(h) available to the public on the Internet Web site of the
Food and Drug Administration.''.

SEC. 108. ADMINISTRATIVE DETENTION OF FOOD.

(a) In General.--Section 304(h)(1)(A) (21 U.S.C.
334(h)(1)(A)) is amended by--
(1) striking ``credible evidence or information
indicating'' and inserting ``reason to believe''; and

[[Page S7938]]

(2) striking ``presents a threat of serious adverse health
consequences or death to humans or animals'' and inserting
``is adulterated or misbranded''.
(b) Regulations.--Not later than 120 days after the date of
enactment of this Act, the Secretary shall issue an interim
final rule amending subpart K of part 1 of title 21, Code of
Federal Regulations, to implement the amendment made by this
section.
(c) Effective Date.--The amendment made by this section
shall take effect 180 days after the date of enactment of
this Act.

SEC. 109. PROTECTION AGAINST INTENTIONAL ADULTERATION.

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

``SEC. 422. PROTECTION AGAINST INTENTIONAL ADULTERATION.

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

SEC. 110. NATIONAL AGRICULTURE AND FOOD DEFENSE STRATEGY.

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

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

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

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

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

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

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

SEC. 111. FOOD AND AGRICULTURE COORDINATING COUNCILS.

The Secretary of Homeland Security, in consultation with
the Secretary of Health and Human Services and the Secretary
of Agriculture, shall within 180 days of enactment of this
Act, and annually thereafter, submit to the relevant
committees of Congress, and make publicly available on the
Internet Web site of the Department of Homeland Security, a
report on the activities of the Food and Agriculture
Government Coordinating Council and the Food and Agriculture
Sector Coordinating Council, including the progress of such
Councils on--
(1) facilitating partnerships between public and private
entities to help unify and enhance the protection of the
agriculture and food system of the United States;
(2) providing for the regular and timely interchange of
information between each council relating to the security of
the agriculture and food system (including intelligence
information);

[[Page S7939]]

(3) identifying best practices and methods for improving
the coordination among Federal, State, local, and private
sector preparedness and response plans for agriculture and
food defense; and
(4) recommending methods by which to protect the economy
and the public health of the United States from the effects
of--
(A) animal or plant disease outbreaks;
(B) food contamination; and
(C) natural disasters affecting agriculture and food.

SEC. 112. DECONTAMINATION AND DISPOSAL STANDARDS AND PLANS.

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

SEC. 113. AUTHORITY TO COLLECT FEES.

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

``PART 5--FEES RELATED TO FOOD

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

``(a) In General.--
``(1) Purpose and authority.--For fiscal year 2009 and each
subsequent fiscal year, the Secretary shall, in accordance
with this section, assess and collect fees from--
``(A) domestic facilities required to register under
section 415, to cover reinspection-related costs for each
such year;
``(B) domestic facilities required to register under
section 415, to cover food recall activities performed by the
Secretary, including technical assistance, follow-up
effectiveness checks, and public notifications, for each such
year;
``(C) importers required to register under section 415, to
cover the administrative costs of participating in the
voluntary qualified importer program under section 806 for
each such year; and
``(D) importers, to cover reinspection-related costs at
ports of entry for each such year.
``(2) Definitions.--For purposes of this section--
``(A) the term `reinspection' means 1 or more inspections
conducted under section 704 of this Act subsequent to an
inspection conducted under such provision which identified
noncompliance materially related to a food safety requirement
of this Act, specifically to determine whether compliance has
been achieved to the Secretary's satisfaction; and
``(B) the term `reinspection-related costs' means all
expenses, including administrative expenses, incurred in
connection with--
``(i) arranging, conducting, and evaluating the results of
reinspections; and
``(ii) assessing and collecting reinspection fees under
this section.
``(b) Establishment of Fees.--
``(1) In general.--Subject to subsections (c) and (d), the
Secretary shall establish the fees to be collected under this
section for each fiscal year specified in subsection (a)(1),
based on the methodology described under paragraph (2), and
shall publish such fees in a Federal Register notice not
later than 60 days before the start of each such year.
``(2) Fee methodology.--
``(A) Fees.--Fees amounts established for collection--
``(i) under subparagraph (A) of subsection (a)(1) for a
fiscal year shall be based on the Secretary's estimate of 100
percent of the costs of the reinspection-related activities
(including by type or level of reinspection activity, as the
Secretary determines applicable) described in such
subparagraph (A) for such year;
``(ii) under subparagraph (B) of subsection (a)(1) for a
fiscal year shall be based on the Secretary's estimate of 100
percent of the costs of the activities described in such
subparagraph (B) for such year;
``(iii) under subparagraph (C) of subsection (a)(1) for a
fiscal year shall be based on the Secretary's estimate of 100
percent of the costs of the activities described in such
subparagraph (C) for such year; and
``(iv) under subparagraph (D) of subsection (a)(1) for a
fiscal year shall be based on the Secretary's estimate of 100
percent of the costs of the activities described in such
subparagraph (D) for such year.
``(B) Other considerations.--In establishing the fee
amounts for a fiscal year, the Secretary shall provide for
the crediting of fees from the previous year to the next year
if the Secretary overestimated the amount of fees needed to
carry out such activities, and consider the need to account
for any adjustment of fees and such other factors as the
Secretary determines appropriate.
``(3) Compliance with international agreements.--Nothing in
this section shall be construed to authorize the assessment
of any fee inconsistent with the agreement establishing the
World Trade Organization or any other treaty or international
agreement to which the United States is a party.
``(c) Limitations.--
``(1) In general.--Fees under subsection (a) shall be
refunded for a fiscal year beginning after fiscal year 2009
unless appropriations for the Center for Food Safety and
Applied Nutrition and the Center for Veterinary Medicine and
related activities of the Office of Regulatory Affairs at the
Food and Drug Administration for such fiscal year (excluding
the amount of fees appropriated for such fiscal year) are
equal to or greater than the amount of appropriations for the
Center for Food Safety and Applied Nutrition and the Center
for Veterinary Medicine and related activities of the Office
of Regulatory Affairs at the Food and Drug Administration for
the preceding fiscal year (excluding the amount of fees
appropriated for such fiscal year) multiplied by 1 plus 4.5
percent.
``(2) Authority.--If the Secretary does not assess fees
under subsection (a) during any portion of a fiscal year
because of paragraph (1) and if at a later date in such
fiscal year the Secretary may assess such fees, the Secretary
may assess and collect such fees, without any modification in
the rate, under subsection (a), notwithstanding the
provisions of subsection (a) relating to the date fees are to
be paid.
``(3) Limitation on amount of certain fees.--
Notwithstanding any other provision of this section, in no
case may the amount of the fees collected for a fiscal year--
``(A) under subparagraph (B) of subsection (a)(1) exceed
$20,000,000; and
``(B) under subparagraphs (A) and (D) of subsection (a)(1)
exceed $25,000,000 combined.
``(d) Crediting and Availability of Fees.--Fees authorized
under subsection (a) shall be collected and available for
obligation only to the extent and in the amount provided in
appropriations Acts. Such fees are authorized to remain
available until expended. Such sums as may be necessary may
be transferred from the Food and Drug Administration salaries
and expenses account without fiscal year limitation to such
appropriation account for salaries and expenses with such
fiscal year limitation. The sums transferred shall be
available solely for the purpose of paying the operating
expenses of the Food and Drug Administration employees and
contractors performing activities associated with these food
safety fees.
``(e) Collection of Fees.--
``(1) In general.--The Secretary shall specify in the
Federal Register notice described in subsection (b)(1) the
time and manner in which fees assessed under this section
shall be collected.
``(2) Collection of unpaid fees.--In any case where the
Secretary does not receive payment of a fee assessed under
this section within 30 days after it is due, such fee shall
be treated as a claim of the United States Government subject
to provisions of subchapter II of chapter 37 of title 31,
United States Code.
``(f) Annual Report to Congress.--Not later than 120 days
after each fiscal year for which fees are assessed under this
section, the Secretary shall submit a report to the Committee
on Health, Education, Labor, and Pensions of the United
States Senate and the Committee on Energy and Commerce of the
United States House of Representatives, to include a
description of fees assessed and collected for each such year
and a summary description of the entities paying such fees
and the types of business in which such entities engage.
``(g) Authorization of Appropriations.--For fiscal year
2009 and each fiscal year

[[Page S7940]]

thereafter, there is authorized to be appropriated for fees
under this section an amount equal to the total revenue
amount determined under subsection (b) for the fiscal year,
as adjusted or otherwise affected under the other provisions
of this section.''.
(b) Export Certification Fees for Foods and Animal Feed.--
(1) Authority for export certifications for food, including
animal feed.--Section 801(e)(4)(A) (21 U.S.C. 381(e)(4)(A))
is amended--
(A) in the matter preceding clause (i), by striking ``a
drug'' and inserting ``a food, drug'';
(B) in clause (i) by striking ``exported drug'' and
inserting ``exported food, drug''; and
(C) in clause (ii) by striking ``the drug'' each place it
appears and inserting ``the food, drug''.
(2) Clarification of certification.--Section 801(e)(4) (21
U.S.C. 381(e)(4)) is amended by inserting after subparagraph
(B) the following new subparagraph:
``(C) For purposes of this paragraph, a certification by
the Secretary shall be made on such basis, and in such form
(including a publicly available listing) as the Secretary
determines appropriate.''.

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

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

SEC. 115. SANITARY TRANSPORTATION OF FOOD.

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

SEC. 116. FOOD ALLERGY AND ANAPHYLAXIS MANAGEMENT.

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

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

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

(ii) a list of substitute meals that may be offered to the
child by school or early childhood education program food
service personnel.
(B) The creation and maintenance of an individual health
care plan for food allergy management, in consultation with
the parent, tailored to the needs of each child with a
documented risk for anaphylaxis, including any procedures for
the self-administration of medication by such children in
instances where--
(i) the children are capable of self-administering
medication; and
(ii) such administration is not prohibited by State law.
(C) Communication strategies between individual schools or
early childhood education programs and local providers of
emergency medical services, including appropriate
instructions for emergency medical response.
(D) Strategies to reduce the risk of exposure to
anaphylactic causative agents in classrooms and common school
or early childhood education program areas such as
cafeterias.
(E) The dissemination of general information on life-
threatening food allergies to school or early childhood
education program staff, parents, and children.
(F) Food allergy management training of school or early
childhood education program personnel who regularly come into
contact with children with life-threatening food allergies.
(G) The authorization and training of school or early
childhood education program personnel to administer
epinephrine when the nurse is not immediately available.
(H) The timely accessibility of epinephrine by school or
early childhood education program personnel when the nurse is
not immediately available.
(I) The creation of a plan contained in each individual
health care plan for food allergy management that addresses
the appropriate response to an incident of anaphylaxis of a
child while such child is engaged in extracurricular programs
of a school or early childhood education program, such as
non-academic outings and field trips, before- and after-
school programs or before- and after-early child education
program programs, and school-sponsored or early childhood
education program-sponsored programs held on weekends.
(J) Maintenance of information for each administration of
epinephrine to a child at risk for anaphylaxis and prompt
notification to parents.
(K) Other elements the Secretary deems necessary for the
management of food allergies and anaphylaxis in schools and
early childhood education programs.
(3) Relation to state law.--Nothing in this section or the
guidelines developed by the Secretary under paragraph (1)
shall be construed to preempt State law, including any State
law regarding whether students at risk for anaphylaxis may
self-administer medication.
(c) School-Based Food Allergy Management Grants.--
(1) In general.--The Secretary may award grants to local
educational agencies to assist such agencies with
implementing voluntary food allergy and anaphylaxis
management guidelines described in subsection (b).
(2) Application.--
(A) In general.--To be eligible to receive a grant under
this subsection, a local educational agency shall submit an
application to the Secretary at such time, in such manner,
and including such information as the Secretary may
reasonably require.
(B) Contents.--Each application submitted under
subparagraph (A) shall include--
(i) an assurance that the local educational agency has
developed plans in accordance with the food allergy and
anaphylaxis management guidelines described in subsection
(b);
(ii) a description of the activities to be funded by the
grant in carrying out the food allergy and anaphylaxis
management guidelines, including--

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

(iii) an itemization of how grant funds received under this
subsection will be expended;
(iv) a description of how adoption of the guidelines and
implementation of grant activities will be monitored; and
(v) an agreement by the local educational agency to report
information required by the Secretary to conduct evaluations
under this subsection.
(3) Use of funds.--Each local educational agency that
receives a grant under this subsection may use the grant
funds for the following:
(A) Purchase of materials and supplies, including limited
medical supplies such as epinephrine and disposable wet
wipes, to support carrying out the food allergy and
anaphylaxis management guidelines described in subsection
(b).
(B) In partnership with local health departments, school
nurse, teacher, and personnel training for food allergy
management.
(C) Programs that educate students as to the presence of,
and policies and procedures in place related to, food
allergies and anaphylactic shock.
(D) Outreach to parents.
(E) Any other activities consistent with the guidelines
described in subsection (b).

[[Page S7941]]

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

TITLE II--DETECTION AND SURVEILLANCE

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

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

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

``(a) Recognition of Laboratory Accreditation.--
``(1) In general.--Not later than 2 years after the date of
enactment of the FDA Food Safety Modernization Act, the
Secretary shall--
``(A) provide for the recognition of accreditation bodies
that accredit laboratories, including laboratories run and
operated by a State or locality, with a demonstrated
capability to conduct analytical testing of food products;
and
``(B) establish a publicly available registry of
accreditation bodies, including the name of, contact
information for, and other information deemed necessary by
the Secretary about such bodies.
``(2) Model accreditation standards.--The Secretary shall
develop model standards that an accreditation body shall
require laboratories to meet in order to be included in the
registry provided for under paragraph (1). In developing the
model standards, the Secretary shall look to existing
standards for guidance. The model standards shall include
methods to ensure that--
``(A) appropriate sampling and analytical procedures are
followed and reports of analyses are certified as true and
accurate;
``(B) internal quality systems are established and
maintained;
``(C) procedures exist to evaluate and respond promptly to
complaints regarding analyses and other activities for which
the laboratory is recognized;
``(D) individuals who conduct the analyses are qualified by
training and experience to do so; and
``(E) any other criteria determined appropriate by the
Secretary.
``(3) Review of accreditation.--To assure compliance with
the requirements of this section, the Secretary shall--
``(A) periodically, or at least every 5 years, reevaluate
accreditation bodies recognized under paragraph (1); and
``(B) promptly revoke the recognition of any accreditation
body found not to be in compliance with the requirements of
this section.
``(b) Testing Procedures.--Food testing shall be conducted
by either Federal laboratories or non-Federal laboratories
that have been accredited by an accreditation body on the
registry established by the Secretary under subsection (a)
whenever such testing is either conducted by or on behalf of
an owner or consignee--
``(1) in support of admission of an article of food under
section 801(a);
``(2) due to a specific testing requirement in this Act or
implementing regulations;
``(3) under an Import Alert that requires successful
consecutive tests; or
``(4) is so required by the Secretary as the Secretary
deems appropriate.
The results of any such sampling or testing shall be sent
directly to the Food and Drug Administration.
``(c) Review by Secretary.--If food sampling and testing
performed by a laboratory run and operated by a State or
locality that is accredited by an accreditation body on the
registry established by the Secretary under subsection (a)
result in a State recalling a food, the Secretary shall
review the sampling and testing results for the purpose of
determining the need for a national recall or other
compliance and enforcement activities.''.
(b) Food Emergency Response Network.--The Secretary, in
coordination with the Secretary of Agriculture, the Secretary
of Homeland Security, and State, local, and tribal
governments shall, not later than 180 days after the date of
enactment of this Act, and biennially thereafter, submit to
the relevant committees of Congress, and make publicly
available on the Internet Web site of the Department of
Health and Human Services, a report on the progress in
implementing a national food emergency response laboratory
network that--
(1) provides ongoing surveillance, rapid detection, and
surge capacity for large-scale food-related emergencies,
including intentional adulteration of the food supply;
(2) coordinates the food laboratory capacities of State
food laboratories, including the sharing of data between
State laboratories to develop national situational awareness;
(3) provides accessible, timely, accurate, and consistent
food laboratory services throughout the United States;
(4) develops and implements a methods repository for use by
Federal, State, and local officials;
(5) responds to food-related emergencies; and
(6) is integrated with relevant laboratory networks
administered by other Federal agencies.

SEC. 202. INTEGRATED CONSORTIUM OF LABORATORY NETWORKS.

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

SEC. 203. BUILDING DOMESTIC CAPACITY.

(a) In General.--
(1) Initial report.--The Secretary shall, not later than 2
years after the date of enactment of this Act, submit to
Congress a comprehensive report that identifies programs and
practices that are intended to promote the safety and
security of food and to prevent outbreaks of food-borne
illness and other food-related hazards that can be addressed
through preventive activities. Such report shall include a
description of the following:
(A) Analysis of the need for regulations or guidance to
industry.
(B) Outreach to food industry sectors, including through
the Food and Agriculture

[[Page S7942]]

Coordinating Councils referred to in section 111, to identify
potential sources of emerging threats to the safety and
security of the food supply and preventive strategies to
address those threats.
(C) Systems to ensure the prompt distribution to the food
industry of information and technical assistance concerning
preventive strategies.
(D) Communication systems to ensure that information about
specific threats to the safety and security of the food
supply are rapidly and effectively disseminated.
(E) Surveillance systems and laboratory networks to rapidly
detect and respond to food-borne illness outbreaks and other
food-related hazards, including how such systems and networks
are integrated.
(F) Outreach, education, and training provided to States to
build State food safety and food defense capabilities,
including progress implementing strategies developed under
sections 110 and 205.
(G) The estimated resources needed to effectively implement
the programs and practices identified in the report developed
in this section over a 5-year period.
(2) Biennial reports.--On a biennial basis following the
submission of the report under paragraph (1), the Secretary
shall submit to Congress a report that--
(A) reviews previous food safety programs and practices;
(B) outlines the success of those programs and practices;
(C) identifies future programs and practices; and
(D) includes information related to any matter described in
subparagraphs (A) through (G) of paragraph (1), as necessary.
(b) Risk-Based Activities.--The report developed under
subsection (a)(1) shall describe methods that seek to ensure
that resources available to the Secretary for food safety-
related activities are directed at those actions most likely
to reduce risks from food, including the use of preventive
strategies and allocation of inspection resources. The
Secretary shall promptly undertake those risk-based actions
that are identified during the development of the report as
likely to contribute to the safety and security of the food
supply.
(c) Capability for Laboratory Analyses; Research.--The
report developed under subsection (a)(1) shall provide a
description of methods to increase capacity to undertake
analyses of food samples promptly after collection, to
identify new and rapid analytical techniques, including
techniques that can be employed at ports of entry and through
Food Emergency Response Network laboratories, and to provide
for well-equipped and staffed laboratory facilities.
(d) Information Technology.--The report developed under
subsection (a)(1) shall include a description of such
information technology systems as may be needed to identify
risks and receive data from multiple sources, including
foreign governments, State, local, and tribal governments,
other Federal agencies, the food industry, laboratories,
laboratory networks, and consumers. The information
technology systems that the Secretary describes shall also
provide for the integration of the facility registration
system under section 415 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 350d), and the prior notice system
under section 801(m) of such Act (21 U.S.C. 381(m)) with
other information technology systems that are used by the
Federal Government for the processing of food offered for
import into the United States.
(e) Automated Risk Assessment.--The report developed under
subsection (a)(1) shall include a description of progress
toward developing and improving an automated risk assessment
system for food safety surveillance and allocation of
resources.
(f) Traceback and Surveillance Report.--The Secretary shall
include in the report developed under subsection (a)(1) an
analysis of the Food and Drug Administration's performance in
food-borne illness outbreaks during the 5-year period
preceding the date of enactment of this Act involving fruits
and vegetables that are raw agricultural commodities (as
defined in section 201(r) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321(r)) and recommendations for
enhanced surveillance, outbreak response, and traceability.
Such findings and recommendations shall address communication
and coordination with the public and industry, outbreak
identification, and traceback.
(g) Biennial Food Safety and Food Defense Research Plan.--
The Secretary and the Secretary of Agriculture shall, on a
biennial basis, submit to Congress a joint food safety and
food defense research plan which may include studying the
long-term health effects of food-borne illness. Such biennial
plan shall include a list and description of projects
conducted during the previous 2-year period and the plan for
projects to be conducted during the following 2-year period.

SEC. 204. ENHANCING TRACEBACK AND RECORDKEEPING.

(a) In General.--The Secretary, in consultation with the
Secretary of Agriculture and representatives of State
departments of health and agriculture, shall improve the
capacity of the Secretary to effectively and rapidly track
and trace, in the event of an outbreak, fruits and vegetables
that are raw agricultural commodities.
(b) Pilot Project.--
(1) In general.--Not later than 9 months after the date of
enactment of this Act, the Secretary shall establish a pilot
project in coordination with the produce industry to explore
and evaluate new methods for rapidly and effectively tracking
and tracing fruits and vegetables that are raw agricultural
commodities so that, if an outbreak occurs involving such a
fruit or vegetable, the Secretary may quickly identify the
source of the outbreak and the recipients of the contaminated
food.
(2) Content.--The Secretary shall select participants from
the produce industry to run projects which overall shall
include at least 3 different types of fruits or vegetables
that have been the subject of outbreaks during the 5-year
period preceding the date of enactment of this Act, and shall
be selected in order to develop and demonstrate--
(A) methods that are applicable and appropriate for small
businesses; and
(B) technologies, including existing technologies, that
enhance traceback and trace forward.
(c) Report.--Not later than 18 months after the date of
enactment of this Act, the Secretary shall report to Congress
on the findings of the pilot project under subsection (b)
together with recommendations for establishing more effective
traceback and trace forward procedures for fruits and
vegetables that are raw agricultural commodities.
(d) Traceback Performance Requirements.--Not later than 24
months after the date of enactment of this Act, the Secretary
shall publish a notice of proposed rulemaking to establish
standards for the type of information, format, and timeframe
for persons to submit records to aid the Secretary in
effectively and rapidly tracking and tracing, in the event of
an outbreak, fruits and vegetables that are raw agricultural
commodities. Nothing in this section shall be construed as
giving the Secretary the authority to prescribe specific
technologies for the maintenance of records.
(e) Public Input.--During the comment period in the notice
of proposed rulemaking under subsection (d), the Secretary
shall conduct not less than 3 public meetings in diverse
geographical areas of the United States to provide persons in
different regions an opportunity to comment.
(f) Raw Agricultural Commodity.--In this section, the term
``raw agricultural commodity'' has the meaning given that
term in section 201(r) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321(r)).

SEC. 205. SURVEILLANCE.

(a) Definition of Food-Borne Illness Outbreak.--In this
section, the term ``food-borne illness outbreak'' means the
occurrence of 2 or more cases of a similar illness resulting
from the ingestion of a food.
(b) Food-Borne Illness Surveillance Systems.--
(1) In general.--The Secretary, acting through the Director
of the Centers for Disease Control and Prevention, shall
enhance food-borne illness surveillance systems to improve
the collection, analysis, reporting, and usefulness of data
on food-borne illnesses by--
(A) coordinating Federal, State and local food-borne
illness surveillance systems, including complaint systems,
and increasing participation in national networks of public
health and food regulatory agencies and laboratories;
(B) facilitating sharing of findings on a more timely basis
among governmental agencies, including the Food and Drug
Administration, the Department of Agriculture, and State and
local agencies, and with the public;
(C) developing improved epidemiological tools for obtaining
quality exposure data, and microbiological methods for
classifying cases;
(D) augmenting such systems to improve attribution of a
food-borne illness outbreak to a specific food;
(E) expanding capacity of such systems, including working
toward automatic electronic searches, for implementation of
fingerprinting strategies for food-borne infectious agents,
in order to identify new or rarely documented causes of food-
borne illness and submit standardized information to a
centralized database;
(F) allowing timely public access to aggregated, de-
identified surveillance data;
(G) at least annually, publishing current reports on
findings from such systems;
(H) establishing a flexible mechanism for rapidly
initiating scientific research by academic institutions;
(I) integrating food-borne illness surveillance systems and
data with other biosurveillance and public health situational
awareness capabilities at the state and federal levels; and
(J) other activities as determined appropriate by the
Secretary.
(2) Partnerships.--The Secretary shall support and maintain
a diverse working group of experts and stakeholders from
Federal, State, and local food safety and health agencies,
the food industry, consumer organizations, and academia. Such
working group shall provide the Secretary, through at least
annual meetings of the working group and an annual public
report, advice and recommendations on an ongoing and regular
basis regarding the improvement of food-borne illness
surveillance and implementation of this section, including
advice and recommendations on--
(A) the priority needs of regulatory agencies, the food
industry, and consumers for information and analysis on food-
borne illness and its causes;
(B) opportunities to improve the effectiveness of
initiatives at the Federal, State, and

[[Page S7943]]

local levels, including coordination and integration of
activities among Federal agencies, and between the Federal,
State, and local levels of government;
(C) improvement in the timeliness and depth of access by
regulatory and health agencies, the food industry, academic
researchers, and consumers to food-borne illness surveillance
data collected by government agencies at all levels,
including data compiled by the Centers for Disease Control
and Prevention;
(D) key barriers to improvement in food-borne illness
surveillance and its utility for preventing food-borne
illness at Federal, State, and local levels;
(E) the capabilities needed for establishing automatic
electronic searches of surveillance data; and
(F) specific actions to reduce barriers to improvement,
implement the working group's recommendations, and achieve
the purposes of this section, with measurable objectives and
timelines, and identification of resource and staffing needs.
(c) Improving Food Safety and Defense Capacity at the State
and Local Level.--
(1) In general.--The Secretary shall develop and implement
strategies to leverage and enhance the food safety and
defense capacities of State and local agencies in order to
achieve the following goals:
(A) Improve food-borne illness outbreak response and
containment.
(B) Accelerate food-borne illness surveillance and outbreak
investigation, including rapid shipment of clinical isolates
from clinical laboratories to appropriate State laboratories,
and conducting more standardized illness outbreak interviews.
(C) Strengthen the capacity of State and local agencies to
carry out inspections and enforce safety standards.
(D) Improve the effectiveness of Federal-State partnerships
to coordinate food safety and defense resources and reduce
the incidence of food-borne illness.
(E) Share information on a timely basis among public health
and food regulatory agencies, with the food industry, with
health care providers, and with the public.
(F) Strengthen the capacity of State and local agencies to
achieve the goals described in section 110.
(2) Review.--In developing of the strategies required by
paragraph (1), the Secretary shall, not later than 1 year
after the date of enactment of the FDA Food Safety
Modernization Act, complete a review of State and local
capacities, and needs for enhancement, which may include a
survey with respect to--
(A) staffing levels and expertise available to perform food
safety and defense functions;
(B) laboratory capacity to support surveillance, outbreak
response, inspection, and enforcement activities;
(C) information systems to support data management and
sharing of food safety and defense information among State
and local agencies and with counterparts at the Federal
level; and
(D) other State and local activities and needs as
determined appropriate by the Secretary.
(d) Food Safety Capacity Building Grants.--Section 317R(b)
of the Public Health Service Act (42 U.S.C. 247b-20(b)) is
amended--
(1) by striking ``2002'' and inserting ``2009''; and
(2) by striking ``2003 through 2006'' and inserting ``2010
through 2013''.

TITLE III--SPECIFIC PROVISIONS FOR IMPORTED FOOD

SEC. 301. FOREIGN SUPPLIER VERIFICATION PROGRAM.

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

``SEC. 805. FOREIGN SUPPLIER VERIFICATION PROGRAM.

``(a) In General.--
``(1) Verification requirement.--Each United States
importer of record shall perform risk-based foreign supplier
verification activities in accordance with regulations
promulgated under subsection (c) for the purpose of verifying
that the food imported by the importer of record or its agent
is--
``(A) produced in compliance with the requirements of
section 419 or 420, as appropriate; and
``(B) is not adulterated under section 402 or misbranded
under section 403(w).
``(2) Importer exclusion.--For purposes of this section, an
`importer of record' shall not include a person holding a
valid license under section 641 of the Tariff Act of 1930 (19
U.S.C. 1641) (referred to as a `customs broker') if the
customs broker has executed a written agreement with another
person who has agreed to comply with the requirements of this
section with regard to food imported or offered for import by
the customs broker.
``(b) Guidance.--Not later than 1 year after the date of
enactment of the FDA Food Safety Modernization Act, the
Secretary shall issue guidance to assist United States
importers of record in developing foreign supplier
verification programs.
``(c) Regulations.--
``(1) In general.--Not later than 1 year after the date of
enactment of the FDA Food Safety Modernization Act, the
Secretary shall promulgate regulations to provide for the
content of the foreign supplier verification program
established under subsection (a). Such regulations shall, as
appropriate, include a process for verification by a United
States importer of record, with respect to each foreign
supplier from which it obtains food, that the imported food
is produced in compliance with the requirements of section
419 or 420, as appropriate, and is not adulterated under
section 402 or misbranded under section 403(w).
``(2) Verification.--The regulations under paragraph (1)
shall require that the foreign supplier verification program
of each importer of record be adequate to provide assurances
that each foreign supplier to the importer of record produces
the imported food employing processes and procedures,
including risk-based reasonably appropriate preventive
controls, equivalent in preventing adulteration and reducing
hazards as those required by section 419 or section 420, as
appropriate.
``(3) Activities.--Verification activities under a foreign
supplier verification program under this section may include
monitoring records for shipments, lot-by-lot certification of
compliance, annual on-site inspections, checking the hazard
analysis and risk-based preventive control plan of the
foreign supplier, and periodically testing and sampling
shipments.
``(d) Record Maintenance and Access.--Records of a United
States importer of record related to a foreign supplier
verification program shall be maintained for a period of not
less than 2 years and shall be made available promptly to a
duly authorized representative of the Secretary upon request.
``(e) Deemed Compliance of Seafood, Juice, and Low-Acid
Canned Food Facilities in Compliance With HACCP.--An owner,
operator, or agent in charge of a facility required to comply
with 1 of the following standards and regulations with
respect to such facility shall be deemed to be in compliance
with this section with respect to such facility:
``(1) The Seafood Hazard Analysis Critical Control Points
Program of the Food and Drug Administration.
``(2) The Juice Hazard Analysis Critical Control Points
Program of the Food and Drug Administration.
``(3) The Thermally Processed Low-Acid Foods Packaged in
Hermetically Sealed Containers standards of the Food and Drug
Administration (or any successor standards).
``(f) Publication of List of Participants.--The Secretary
shall publish and maintain on the Internet Web site of the
Food and Drug Administration a current list that includes the
name of, location of, and other information deemed necessary
by the Secretary about, importers participating under this
section.''.
(b) Prohibited Act.--Section 301 (21 U.S.C. 331), as
amended by section 109, is amended by adding at the end the
following:
``(ss) The importation or offering for importation of a
food if the importer of record does not have in place a
foreign supplier verification program in compliance with
section 805.''.
(c) Imports.--Section 801(a) (21 U.S.C. 381(a)) is amended
by adding ``or the importer of record is in violation of
section 805'' after ``or in violation of section 505''.
(d) Effective Date.--The amendments made by this section
shall take effect 2 years after the date of enactment of this
Act.

SEC. 302. VOLUNTARY QUALIFIED IMPORTER PROGRAM.

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

``SEC. 806. VOLUNTARY QUALIFIED IMPORTER PROGRAM.

``(a) In General.--Beginning not later than 1 year after
the date of enactment of the FDA Food Safety Modernization
Act, the Secretary shall--
``(1) establish a program, in consultation with the
Department of Homeland Security, to provide for the expedited
review and importation of food offered for importation by
United States importers who have voluntarily agreed to
participate in such program; and
``(2) issue a guidance document related to participation
and compliance with such program.
``(b) Voluntary Participation.--An importer may request the
Secretary to provide for the expedited review and importation
of designated foods in accordance with the program procedures
established by the Secretary.
``(c) Eligibility.--In order to be eligible, an importer
shall be offering food for importation from a facility that
has a certification described in section 809(b). In reviewing
the applications and making determinations on such requests,
the Secretary shall consider the risk of the food to be
imported based on factors, such as the following:
``(1) The nature of the food to be imported.
``(2) The compliance history of the foreign supplier.
``(3) The capability of the regulatory system of the
country of export to ensure compliance with United States
food safety standards.
``(4) The compliance of the importer with the requirements
of section 805.
``(5) The recordkeeping, testing, inspections and audits of
facilities, traceability of articles of food, temperature
controls, and sourcing practices of the importer.

[[Page S7944]]

``(6) The potential risk for intentional adulteration of
the food.
``(7) Any other factor that the Secretary determines
appropriate.
``(d) Review and Revocation.--Any importer qualified by the
Secretary in accordance with the eligibility criteria set
forth in this section shall be reevaluated not less often
than once every 3 years and the Secretary shall promptly
revoke the qualified importer status of any importer found
not to be in compliance with such criteria.
``(e) Definition.--For purposes of this section, the term
`importer' means the person that brings food, or causes food
to be brought, from a foreign country into the customs
territory of the United States.''.

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

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

SEC. 304. PRIOR NOTICE OF IMPORTED FOOD SHIPMENTS.

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

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

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

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

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

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

(a) In General.--The Secretary shall, not later than 2
years of the date of enactment of this Act, develop a
comprehensive plan to expand the technical, scientific, and
regulatory capacity of foreign governments, and their
respective food industries, from which foods are exported to
the United States.
(b) Consultation.--In developing the plan under subsection
(a), the Secretary shall consult with the Secretary of
Agriculture, Secretary of State, Secretary of the Treasury,
and the Secretary of Commerce, representatives of the food
industry, appropriate foreign government officials, and
nongovernmental organizations that represent the interests of
consumers, and other stakeholders.
(c) Plan.--The plan developed under subsection (a) shall
include, as appropriate, the following:
(1) Recommendations for bilateral and multilateral
arrangements and agreements, including provisions to provide
for responsibility of exporting countries to ensure the
safety of food.
(2) Provisions for electronic data sharing.
(3) Provisions for mutual recognition of inspection
reports.
(4) Training of foreign governments and food producers on
United States requirements for safe food.
(5) Recommendations to harmonize requirements under the
Codex Alimentarius.
(6) Provisions for the multilateral acceptance of
laboratory methods and detection techniques.

SEC. 307. INSPECTION OF FOREIGN FOOD FACILITIES.

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

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

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

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

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

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

``(a) Accreditation of Certifying Agents.--
``(1) In general.--Beginning not later than 2 years after
the date of enactment of the FDA Food Safety Modernization
Act, the Secretary shall establish and implement an
accreditation system under which a foreign government, a
State or regional food authority, a foreign or domestic
cooperative that aggregates the products of growers or
processors, or any other third party that the Secretary
determines appropriate, may request to be accredited as a
certifying agent to certify that eligible entities meet the
applicable requirements of this Act.
``(2) Review by secretary.--When establishing the
accreditation system under paragraph (1), the Secretary shall
review third-party accreditation systems in existence on the
date of enactment of the FDA Food Safety Modernization Act,
to avoid unnecessary duplication of efforts and costs.
``(3) Request by foreign government.--Prior to accrediting
a foreign government as a certifying agent, the Secretary
shall perform such reviews and audits of food safety
programs, systems, and standards of the government as the
Secretary deems necessary to determine that they are adequate
to ensure that eligible entities certified by such government
meet the requirements of this Act with respect to food
manufactured, processed, packed, or held for import to the
United States.
``(4) Request by state or regional food authority.--Prior
to accrediting a State or regional food authority as a
certifying agent, the Secretary shall perform such reviews
and audits of the training and qualifications of auditors
used by the authority and conduct such reviews of internal
systems and such other investigation of the authority as the
Secretary deems necessary to determine that each eligible
entity certified by the authority has systems and standards
in use to ensure that such entity meets the requirements of
this Act.
``(5) Cooperatives and other third parties.--Prior to
accrediting a foreign or domestic cooperative that aggregates
the products of growers or processors or any other

[[Page S7945]]

third party that the Secretary determines appropriate as a
certifying agent, the Secretary shall perform such reviews
and audits of the training and qualifications of auditors
used by the cooperative or party and conduct such reviews of
internal systems and such other investigation of the
cooperative or party as the Secretary deems necessary to
determine that each eligible entity certified by the
cooperative or party has systems and standards in use to
ensure that such entity meets the requirements of this Act.
``(6) Limitation on third parties.--The Secretary may not
accredit a third party that the Secretary determines
appropriate as a certifying agent unless each auditor used by
such party prepares the audit report for an audit under this
section in a form and manner designated by the Secretary. An
audit report shall include--
``(A) the identity of the persons at the audited eligible
entity responsible for compliance with food safety
requirements;
``(B) the dates of the audit;
``(C) the scope of the audit; and
``(D) any other information required by the Secretary that
relate to or may influence an assessment of compliance with
this Act.
``(b) Importation.--As a condition of accrediting a foreign
government, a State or regional food authority, a foreign or
domestic cooperative that aggregates the products of growers
or processors, or any other third party that the Secretary
determines appropriate as a certifying agent, such
government, authority, cooperative, or party shall agree to
issue a written and electronic certification to accompany
each food shipment made for import from an eligible entity
certified by the certifying agent, subject to requirements
set forth by the Secretary. The Secretary shall consider such
certificates when targeting inspection resources under
section 421.
``(c) Monitoring.--Following any accreditation of a
certifying agent, the Secretary may at any time--
``(1) conduct an on-site audit of any eligible entity
certified by the agent, with or without the certifying agent
present; or
``(2) require the agent to submit to the Secretary, for any
eligible entity certified by the agent, an onsite inspection
report and such other reports or documents the agent requires
as part of the audit process, including, for an eligible
entity located outside the United States, documentation that
the eligible is in compliance with any applicable
registration requirements.
``(d) Definitions.--For purposes of this section:
``(1) Auditor.--The term `auditor' means an individual
who--
``(A) is qualified to conduct food safety audits; and
``(B) has successfully completed any training requirements
established by the Secretary for the conduct of food safety
audits.
``(2) Certifying agent.--The term `certifying agent' means
a foreign government, a State or regional food authority, a
foreign or domestic cooperative that aggregates the products
of growers or processors, or any other third party that
conducts audits of eligible entities and that is accredited
by the Secretary under this section.
``(3) Eligible entity.--The term `eligible entity' means
any entity in the food supply chain that chooses to be
audited by a certifying agent.
``(e) Avoiding Conflicts of Interest With Certifying
Agents.--
``(1) In general.--A certifying agent shall--
``(A) not be owned, managed, or controlled by any person
that owns or operates an eligible entity to be certified by
such agent;
``(B) have procedures to ensure against the use, in
carrying out audits of eligible entities under this section,
of any officer or employee of such agent that has a financial
conflict of interest regarding an eligible entity to be
certified by such agent; and
``(C) annually make available to the Secretary, disclosures
of the extent to which such agent, and the officers and
employees of such agent, have maintained compliance with
subparagraphs (A) and (B) relating to financial conflicts of
interest.
``(2) Regulations.--The Secretary shall promulgate
regulations not later than 18 months after the date of
enactment of the FDA Food Safety Modernization Act to ensure
that there are protections against conflicts of interest
between a certifying agent and the eligible entity to be
certified by such agent. Such regulations shall include--
``(A) requiring that domestic audits performed under this
section be unannounced;
``(B) a structure, including timing and public disclosure,
for fees paid by eligible entities to certifying agents to
decrease the potential for conflicts of interest; and
``(C) appropriate limits on financial affiliations between
a certifying agent and any person that owns or operates an
eligible entity to be certified by such agent.
``(f) False Statements.--Any statement of representation
made by an employee or agent of an eligible entity to an
auditor of a certifying agent or a certifying agent shall be
subject to section 1001 of title 18, United States Code.
``(g) Risks to Public Health.--If, at any time during an
audit, an auditor of a certifying agent discovers a condition
that could cause or contribute to a serious risk to the
public health, the auditor shall immediately notify the
Secretary of--
``(1) the identification of the eligible entity subject to
the audit; and
``(2) such condition.
``(h) Withdrawal of Accreditation.--The Secretary may
withdraw accreditation from a certifying agent--
``(1) if food from eligible entities certified by such
agent is linked to an outbreak of human or animal illness;
``(2) following a performance audit and finding by the
Secretary that the agent no longer meets the requirements for
accreditation; or
``(3) following a refusal to allow United States officials
to conduct such audits and investigations as may be necessary
to ensure continued compliance with the requirements set
forth in this section.
``(i) Performance Audits and Renewal.--To ensure that
accreditation of a certifying agent continues to meet the
standards of this section and this Act and to allow for the
renewal of accreditation of such certifying agent, the
Secretary shall--
``(1) audit the performance of such certifying agent on a
periodic basis, not less than every 4 years, through the
review of audit reports by such certifying agent and the
compliance history, as available, of eligible entities
certified by such certifying agent; and
``(2) any other measures deemed necessary by the Secretary.
``(j) Publication of List of Certifying Agents.--The
Secretary shall publish and maintain on the Internet Web site
of the Food and Drug Administration a current list,
including, the name, location and other information deemed
necessary by the Secretary, of certifying agents under this
section.
``(k) Neutralizing Costs.--The Secretary shall establish a
method, similar to the method used by the Department of
Agriculture, by which certifying agents reimburse the Food
and Drug Administration for the work performed to accredit
such certifying agents. The Secretary shall make operating
this program revenue-neutral and shall not generate surplus
revenue from such a reimbursement mechanism.
``(l) No Effect on Section 704 Inspections.--The audits
performed under this section shall not be considered
inspections under section 704.
``(m) No Effect on Inspection Authority.--Nothing in this
section affects the authority of the Secretary to inspect any
eligible entity pursuant to this Act.''.

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

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

SEC. 310. FUNDING FOR FOOD SAFETY.

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

SEC. 311. JURISDICTION; AUTHORITIES.

Nothing in this Act, or an amendment made by this Act,
shall be construed to--
(1) alter the jurisdiction between the Secretary of
Agriculture and the Secretary of Health and Human Services,
under applicable statutes and regulations;
(2) limit the authority of the Secretary of Health and
Human Services to issue regulations related to the safety of
food under--
(A) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301
et seq.) as in effect on the day before the date of enactment
of this Act; or

[[Page S7946]]

(B) the Public Health Service Act (42 U.S.C. 301 et seq.)
as in effect on the day before the date of enactment of this
Act; or
(3) impede, minimize, or affect the authority of the
Secretary of Agriculture to prevent, control, or mitigate a
plant or animal health emergency, or a food emergency
involving products regulated under the Federal Meat
Inspection Act, the Poultry Products Inspection Act, or the
Egg Products Inspection Act.
______

By Mr. HATCH (for himself and Mr. Dodd):
S. 3387. A bill to amend the Public Health Service Act with respect
to pain care; to the Committee on Health, Education, Labor, and
Pensions.
Mr. HATCH. Mr. President, I rise today to introduce the National Pain
Care Policy Act of 2008. I am pleased to have worked with my colleague,
Senator Christopher Dodd, on this legislation which will help to
address barriers to pain care by enhancing coordination of research,
improving healthcare provider education and training, and elevating
public awareness of pain and pain management.
According to the American Pain Foundation, an estimated 75 million
Americans suffer from either chronic or acute pain. Pain is the most
common reason that people access the health care system and persistent
pain can interfere with everyday life and make ordinary tasks seem
impossible. Severe chronic pain also can hinder sleep, work, and social
functions. Due to its very nature as a prominent feature of many
chronic conditions, pain is said to affect more Americans than
diabetes, heart disease and cancer combined.
Most pain can be relieved with proper treatment. This simple fact
implies that the pain problems of these countless Americans can be
easily fixed. Unfortunately, many people in pain face considerable
barriers to accessing proper diagnosis, treatment, and management of
their pain.
Health care professionals are, more often than not, inadequately
trained regarding pain assessment and management, making it difficult
for them to treat their patients' pain safely and effectively. As such,
providers may be unfamiliar with current research and guidelines for
appropriate pain care. Further, health care professionals may be
hesitant to prescribe pain medications for pain management due to lack
of knowledge regarding regulatory policies.
To make worse the problem, the National Institutes of Health, NIH,
our country's premier institution for biomedical research, currently
dedicates less than 1 percent of its research budget to pain research.
Worse yet, this research is spread across multiple Institutes and
centers without efficient coordination. Effective education is
contingent upon adequate research.
Patients may also create for themselves barriers to pain care and
management. As impractical as it seems, patients often do not tell
their doctor about their pain because they do not want to complain or
appear to be a nuisance. They also may avoid taking pain medicines
because of addiction or dependency concerns which may be based on
misinformation due to lack of education.
The National Pain Care Policy Act of 2008 will help to identify these
barriers by authorizing an Institute of Medicine, IOM, Conference on
Pain Care to evaluate the adequacy of pain assessment, treatment and
management. The conference will establish an action agenda by which to
address barriers and improve education and training.
The bill also authorizes permanently the Pain Consortium at the
National Institutes of Health, NIH, to establish a coordinated clinical
research agenda and promote pain research across NIH institutes,
centers, and programs. The Consortium will convene annual conferences
to make recommendations on pain research and activities at the NIH. The
legislation also establishes a multidisciplinary Advisory Committee
The National Pain Care Policy Act of 2008 addresses the lack of pain
care education by creating a grant program for the development and
implementation of programs to educate and train health care
professionals in pain assessment and management. It also requires the
Agency for Healthcare Research and Quality, AHRQ, to collect evidence-
based practices regarding pain and disseminate such information to the
pain care community.
This bill also will break down barriers to pain care access by
raising awareness among people who suffer from pain, and helping them
and their families find the proper information about pain management. A
national pain management public outreach and awareness campaign will be
developed and implemented by the Department of Health and Human
Services, HHS, to focus on the significance of pain as a national
public health problem.
The National Pain Care Policy Act of 2008 contains provisions that
will help the millions of Americans who live everyday with pain by
heightening awareness, enhancing coordination of research, and
advancing education. Similar legislation was introduced in the House by
Representatives Lois Capps and Mike Rogers last year. The House bill is
supported by more than 100 organizations in the pain care community,
including the America Pain Society, the American Academy of Pain
Medicine, and the American Cancer Society. I thank Senator Dodd for his
leadership on and interest in this issue, and I urge my colleagues to
support our bill.
Mr. DODD. Mr. President, I rise today to join my colleague from Utah,
Senator Orrin Hatch, in introducing the National Pain Care Policy Act
of 2008. This important legislation would make significant strides in
the understanding and treatment of pain as a medical condition. Pain is
the most common symptom leading to medical care and a leading health
issue. Yet people suffering through pain often struggle to get relief
because of a variety of issues. This is why we are introducing this
important legislation.
Each year pain results in more than 50 million lost workdays
estimated to cost the United States $100 billion. Beyond the economic
impact, pain is a leading cause of disability, with back pain alone
causing chronic disability in 1 percent of the population of this
country. In the United States 40 million people suffer from arthritis,
more than 26 million, ages 20 to 64, experience frequent back pain,
more than 25 million experience migraine headaches, and 20 million have
jaw and lower facial pain each year. It is estimated that 70 percent of
cancer patients have significant pain as they fight the disease. And
half of all patients in hospitals suffer through moderate to severe
pain in their last days. As with many medical conditions, this is a
problem that is likely to become worse as the baby boom generation
approaches retirement and the population ages.
Sadly, though most pain can be relieved, it often is not. Many
suffering patients are reluctant to tell their medical provider about
the pain they are experiencing, for fear of being identified as a ``bad
patient,'' and concern about addiction often leads patients to avoid
seeking or using medications to treat their pain. But even if patients
were more forthcoming about their condition, few medical providers are
equipped to do something about it. Often they have not been trained in
assessment techniques or pain management, and are unaware of the latest
research, guidelines, and standards for treatment. There is also
concern among most providers that prescribing treatment for pain will
lead to greater scrutiny by regulatory agencies and insurers.
But we can do something about these barriers and help individuals
suffering from pain. The National Pain Care Policy Act would lead to
improvements in pain care across the country. The legislation would
call for an Institute of Medicine conference on pain care to increase
awareness of this issue as a public health problem, identify barriers
to pain care and determine action for overcoming those barriers. A
number of years ago, my good friend Senator Hatch helped establish a
Pain Consortium at the National Institutes of Health to establish a
coordinated pain research agenda. This legislation will codify that
consortium and update its mission. The bill addresses the training and
education of health care professionals through new grant programs at
the Agency for Health Research and Quality, AHRQ, and the Health
Resources and Services Administration, HRSA. And finally this
legislation creates a national outreach and awareness campaign at the
Department of Health and Human Services to educate patients, families,
and caregivers about

[[Page S7947]]

the significance of pain and the importance of treatment.
I want to thank Senator Hatch for his leadership on this issue and
urge my colleagues to join us on this important effort to help the
millions of Americans suffering from severe pain.
______

By Mr. DURBIN:
S. 3390. A bill to amend the National Voter Registration Act of 1993
to provide for the treatment of institutions of higher education as
voter registration agencies; to the Committee on Rules and
Administration.
Mr. DURBIN. Mr. President, I rise today to introduce the Student
Voter Opportunity to Encourage Registration Act of 2008--the Student
VOTER Act.
The success of America's experiment in democracy lies in broad
participation and deep civic engagement. From the Reconstruction
Amendments, to women's suffrage, to the abolition of the poll tax, and
finally the ratification of the 26th amendment, we have witnessed a
steady but difficult march toward a more inclusive nation.
To realize the full potential of these great strides, the Student
VOTER Act provides a pathway to participation for America's youth.
The need for this bill is clear. Despite a small rise in youth voting
in the current Presidential election cycle, the larger trend is
unmistakable. Young voters--historically independent-minded--are far
less likely to cast a ballot than older voters. In the 2004
Presidential election, only 47 percent of 18 to 24-year-old citizens
voted, compared to 66 percent of citizens 25 and older. This marked the
eighth straight Presidential contest in which less than half of these
young Americans actually participated. In fact, the percentage of young
Americans who vote today is lower than it was in the first Presidential
election following the 26th amendment's ratification.
Several obstacles stand in the way of youth voting. Because so many
students are first-time voters, they often are unfamiliar with how to
register. In some States, first-time voters must register in person in
order to cast an absentee ballot. For students who attend college
outside of their home State or who do not have access to
transportation, these requirements can be cumbersome, confusing, and
insurmountable.
Of course, apathy contributes to the fact that young voters tend to
stay home on election day. But studies show that when an effort is made
to reach out to young voters, they will cast a ballot. If we fail to
reach out to the youth, we may lose a generation of civically minded
Americans.
Congress already tried to encourage youth voting with a provision in
the Higher Education Act of 1998, which requires colleges and
universities to make a ``good faith effort'' to register students to
vote. Many universities fulfill that obligation. For example, even
before orientation begins, Brown University in Providence provides its
students with voter registration materials not only for Rhode Island
but also for each student's home State.
Unfortunately, too many colleges and universities have failed to
follow Brown's lead. According to a 2004 Harvard University study, only
17 percent of colleges and universities nationwide fully comply with
the Higher Education Act. The health of our democracy suffers as a
result.
The Student VOTER Act offers a straightforward solution: it requires
colleges and universities that receive Federal funds to offer voter
registration services to students. The Student VOTER Act simply amends
the National Voter Registration Act of 1993, popularly known as the
Motor Voter Act, to designate colleges and universities that receive
Federal funds as voter registration agencies.
That designation is fitting. Our institutions of higher education are
among the wealthiest in the world, and they lead the globe in producing
Nobel laureates and scientific breakthroughs. But colleges and
universities also have a special obligation to educate an active,
informed citizenry.
The act does not impose a heavy burden on colleges and universities.
We know this because the Student VOTER Act builds on the successful
model of the Motor Voter Act, which brought voter registration to DMV
offices across the country, adding 5 million voters--mainly
independents--to the rolls in the 8 months after its passage. While
some DMV offices simply mail completed registration forms to the
appropriate clerk or registrar, others now use efficient, easy-to-use
computer software to submit registrations electronically.
This means that the price tag of the Student VOTER Act to colleges
and universities is at most a 42-cent stamp for each student. I know
most of my fellow Senators would agree that this is not too high a
price to pay for a lifetime of civic engagement.
In reality, costs should be even lower. Colleges and universities can
provide voter registration services at student orientation or during
class registration using the same technology that DMV offices already
have implemented.
Like the Motor Voter Act, this bill should pass with broad bipartisan
support. It is a low-cost, commonsense solution to the very real
problem of low youth voter turnout. It represents a natural but modest
extension of the Higher Education Act and the Motor Voter Act without
changing or amending any other State or Federal voting regulations in
any way.
The bill may also serve to depoliticize voter registration efforts on
college campuses. Polls consistently show that young voters are less
likely to identify with a political party than older voters. Polls
generally show that more than 4 in 10 young voters identify as
independents, with roughly 3 in 10 young voters identifying with each
of the two major political parties. In a July 30, 2008 letter sent to
Congress in support of this bill, the U.S. Student Association
explained that under the present system, ``partisan student groups
often become the main voter registrants, which can alienate undecided
and independent voters. The Student VOTER Bill of 2008 seeks to
institutionalize the dissemination of voting procedure and register
more young people in a systematic and non-partisan capacity.''
In addition to the U.S. Student Association, this bill is supported
by U.S. PIRG and the Student Association for Voter Empowerment, SAVE.
In particular, I would like to recognize Matthew Segal, SAVE's founder
and a Chicago native, with whom my office worked closely to prepare
this bill.
I would also like to applaud the efforts of Representative Jan
Schakowsky, a Democrat, and Representative Steven LaTourette, a
Republican, who will introduce a companion bill today in the House of
Representatives. The Student VOTER Bill of 2008 is a bipartisan effort
that is an important step toward empowering our Nation's youth. I look
forward to working with my Democratic and Republican colleagues in
Congress to ensure its enactment into law.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3390

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Student Voter Opportunity To
Encourage Registration Act of 2008'' or the ``Student VOTER
Act of 2008''.

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

(a) In General.--Section 7(a) of the National Voter
Registration Act of 1993 (42 U.S.C. 1973gg-5(a)) is amended--
(1) in paragraph (2)--
(A) by striking ``and'' at the end of subparagraph (A);
(B) by striking the period at the end of subparagraph (B)
and inserting ``; and''; and
(C) by adding at the end the following new subparagraph:
``(C) each institution of higher education (as defined in
section 101 of the Higher Education Act of 1965 (20 U.S.C.
1001)) in the State that receives Federal funds.''; and
(2) in paragraph (6)(A), by inserting ``or, in the case of
an institution of higher education, with each registration of
a student for enrollment in a course of study'' after
``assistance,''.
(b) Amendment to Higher Education Act of 1965.--Section
487(a) of the Higher Education Act of 1965 (20 U.S.C.
1094(a)) is amended by striking paragraph (23).
______

By Mr. REID (for himself and Mr. Ensign):
S. 3393. A bill to promote conservation and provide for sensible
development in Carson City, Nevada, and for

[[Page S7948]]

other purposes; to the Committee on Energy and Natural Resources.
Mr. REID. Mr. President, today I rise with my good friend Senator
Ensign to introduce the Carson City Vital Community Act of 2008.
The origins of this legislation can be found in Carson City's
collaborative master planning effort, ``Envision Carson City.'' In
2004, the elected officials in Carson City started a dialogue with
their citizens to determine how the city should grow and change over
the next 20 years. At the end of a 2-year public process, city leaders
had a clear message from their residents. The community wants to keep
growth compact, maintain the integrity of the Bureau of Land Management
(BLM) and Forest Service lands surrounding the town, enhance open space
opportunities and maintain easy access to public lands. The Carson City
Vital Community Act of 2008 was developed in close partnership with
Carson City and other key stakeholders to help fulfill these goals.
Before I describe this legislation and its importance, it might be
helpful for me to explain that Carson City is both a city and a county.
It wasn't always this way. For over a hundred years the town of Carson
City was the county seat of Ormsby County. But in 1969 the county
dissolved and the government functions were consolidated into what we
now simply call Carson City.
Like all but one of our counties in Nevada, Carson City is mostly
Federal land. The town of Carson City is bounded on the west by Forest
Service lands that stretch to the shores of Lake Tahoe and by BLM lands
on the east. These open landscapes create a dramatic western backdrop
for Nevada's State capital but also mean that the Federal Government is
intimately involved in what would normally be local community
decisions.
This legislation makes much needed adjustments to the pattern of
Federal land ownership in Carson City. We have strived to make changes
that will improve the ability of the Federal land management agencies
to focus on their core goals. All too often, the BLM and the Forest
Service are distracted from proper forest and range management by urban
encroachment issues. We have a unique situation in Carson City where
the community has offered to take on the responsibilities of managing
the wildland-urban interface, while also offering to convey a major
inholding to the Forest Service for incorporation into the Humboldt-
Toiyabe National Forest. This is a major step in the right direction
and hopefully will serve as a model for other communities around the
west.
Our legislation also provides lands to the Washoe Tribe,
strengthening the Tribe's conservation and commercial efforts in Carson
City. Additionally, nearly 20,000 acres of BLM lands surrounding Carson
City will be permanently withdrawn from future develop to protect local
viewsheds and public access. All of these actions will move Carson City
one step closer to realizing the vision that it worked hard to develop
through a public process that has now spanned over four years.
Title I of this legislation aims to create a sensible land ownership
pattern in Carson City, aligned with the community's vision of keeping
growth compact and maintaining the integrity of the surrounding public
lands. It also addresses two serious concerns facing the community:
wildfires in the foothills of the Sierras and flooding along the Carson
River.
Under this title, roughly 2,200 acres of Carson City land will be
transferred to the Forest Service. This prime, forested land is far
removed from Carson City and is surrounded by state park lands and the
Humboldt-Toiyabe National Forest. Incorporating this large inholding
into the Humboldt-Toiyabe will allow for improved management for
wildlife habitat, watershed protection, and other important uses. It
will also ensure that the land remains undeveloped and open for public
access.
This title also makes important adjustments to the pattern of city
and Federal lands on the west side of the town. Roughly 1,000 acres of
Forest Service land bordering urban areas will be conveyed to Carson
City as protected open space. This conveyance will let both Carson City
and the Forest Service do what they do best. Carson City can more
actively manage urban interface uses and the Forest Service can focus
on their core responsibilities of resource protection and forest
health.
Proper management of this buffer area between Carson City's
neighborhoods and businesses and the broader public lands is an issue
of great concern to the community. On July 14, 2004, thirty-one homes
and three businesses were destroyed or damaged in the Waterfall Fire
which spanned nearly 9,000 acres of public and private land. Through
our legislation, the Forest Service land that currently borders
neighborhoods will be conveyed to Carson City, allowing the city to
take a more prominent role in managing fuel loads in this critical
area.
There is a different threat on the east side of Carson Valley. The
Carson River has a long history of dramatic flooding. Over the last 150
years the river has flooded over 30 times, with half of those floods
causing extensive damage. Two 100-year flood events have struck just in
the last decade, one of which caused over $5 million in damage. In a
show of real vision and leadership, Carson City has started an
aggressive campaign to acquire land along the Carson River, recognizing
the value of protecting the natural function of the local floodplains.

Our legislation will enhance Carson City's efforts to acquire lands
in the river corridor by conveying the 3,500-acre Silver Saddle Ranch
and Prison Hill area from BLM to the city. Transferring these
properties to Carson City will help create a large regional park along
the Carson River, support the community's flood control efforts and
address the community's call for open space. The city has been a key
partner in the management of the Silver Saddle Ranch for over a decade.
Along with the Friends of Silver Saddle, Carson City has taken the lead
on the day-to-day management of the property, including providing law
enforcement patrols and caring for facilities.
It is important to note that when this land is conveyed to the city
it will come with conditions. The Federal Government will hold a
conservation easement on these parcels to ensure that the scenic and
natural qualities of the Silver Saddle Ranch and Prison Hill are
protected in perpetuity. The details of the conservation easement,
which will focus on protecting the river corridor and the important
wildlife habitat associated with the property, will be worked out by
BLM, Carson City and key stakeholders like Friends of Silver Saddle and
The Nature Conservancy.
In addition to supporting Carson City's forward-looking plans for the
Carson River and its floodplain, conveying the Silver Saddle and Prison
Hill area to Carson City also makes sense from a resource management
perspective. BLM's Carson City District Office manages over 5 million
acres of public land in western Nevada and eastern California. Their
strength is managing Nevada's wide open spaces--not urban interface.
Carson City, on the other hand, has far more resources to bring to bear
in managing the Silver Saddle Ranch and Prison Hill area. Carson City
has over 20 employees working on parks and open space, including two
park rangers. They also have contracts in place with some of Nevada's
most respected natural resource experts. The BLM will also keep a light
hand in the management of this property by virtue of the conservation
easement.
There is one unique provision related to the Silver Saddle Ranch and
Prison Hill conveyance that deserves special mention. A small section
of this land was once owned by Carson City. This 62-acre property,
known as the Bernhard parcel, was slated to be subdivided into 35 home
sites in 2001. The BLM and Carson City both recognized that the
acquisition of this land was a priority for the protection of the
Carson River corridor. Carson City responded quickly and acquired the
parcel for open space before it could be developed. Their purchase
price in 2001 was roughly $1 million. Later, in 2006, the BLM purchased
the Bernhard parcel from Carson City for fair market value, which by
that time had reached $2.5 million.
Under this legislation, we transfer the Bernhard parcel back to
Carson City as part of the Silver Saddle Ranch and Carson River Area.
We feel it is important that Carson City pay back 25 percent of the
$1.5 million profit they made on their transaction with the

[[Page S7949]]

BLM. Why just 25 percent? The 25 percent reflects the remaining value
of the land that is being conveyed back to Carson City after the
conservation easement is taken into account. In western Nevada,
conservation easements restricting development typically reduce
property values by anywhere from 75 percent to 90 percent. We have
required Carson City to come up with 25 percent, the most generous
estimate of remaining value for the Bernhard parcel. When received,
these funds will be placed into an endowment account for the BLM to use
for the monitoring and enforcement of the conservation easement on the
Silver Saddle Ranch and Prison Hill Area.
Our legislation also conveys roughly 1,700 acres of BLM land to
Carson City for recreation and public purposes and open space. These
are scattered parcels of BLM land in and around Carson City that would
be used for primarily for parks, but also for flood control structures,
municipal infrastructure like water tanks, and to give residents room
to roam. Carson City already controls roughly a third of these acres
through Recreation and Public Purpose Act leases. This bill would
quickly and efficiently transfer these lands to the city.
Another provision of Title I deals with 53 acres of land that Carson
City acquired from BLM years ago, under the Recreation and Public
Purposes Act. The city now believes the land is better suited for
commercial development. Although Carson City already owns these lands,
by statute, if the city uses the land for something other than public
purposes, the land reverts back to the BLM. Our legislation would
remove the reversionary interest on these 50 acres so that Carson City
can sell the land at an appropriate time. If the City decides to sell
the land, we require that it be auctioned, with proceeds returning to
the Carson City special account which provides funding for federal
acquisition of sensitive lands and protection of noted cultural
resources.
One of the parcels where the federal interest would be released is
home to the Carson City Gun Club. Once on the edge of town, the
shooting range is now surrounded by commercial development and the
Eagle Valley Golf Course. Although our legislation would allow Carson
City to sell this land, we have asked for and received a commitment
that Carson City will not sell this property until the shooting
facility has been relocated to another, more appropriate location.

The first title of our legislation also transfers 50 acres of Forest
Service land to the BLM. The Forest Service is also authorized to
develop and implement, in partnership with Carson City, a plan for
managing its land in a way that minimizes the impact of flood events on
nearby residential areas.
Under Title II, 150 acres of federal lands would be made available
for sale through an open and competitive process. This includes the 50
acres transferred from the Forest Service to the BLM in Title 1. All of
the lands identified for sale in our legislation are isolated or
seriously impacted by nearby commercial or residential development.
Both agencies have concluded that these parcels should be disposed of
and that this action is consistent with their respective management
plans.
Similar to past Nevada land bills, this legislation directs the
Secretary of Interior to reinvest the proceeds of these limited land
sales back into important public projects. Ninety-five percent of the
proceeds will be used to acquire environmentally sensitive lands in
Carson City and to protect archaeological resources. The remaining five
percent of the proceeds will go to Nevada's general education program.
This title also permanently withdraws nearly 20,000 acres of BLM
lands in Carson City from land sales and mineral development. These
same lands, located north and east of Carson City are already
administratively withdrawn by the BLM. This bill would make the
withdrawal permanent, preserving foothill views, open space and access
to public lands, in line with ``Envision Carson City.''
Our bill also provides guidance that Off-Highway Vehicle (OHV) use on
BLM lands in Carson City should be restricted to existing roads and
trails until the BLM completes their travel management planning
process. The Pine Nut Mountains east of Carson City are a favorite
destination for local and visiting OHV enthusiasts. This provision will
better protect this area until routes can be designated.
Finally, the second title of the bill opens a new avenue for Carson
City to continue their conservation efforts along the Carson River. The
Southern Nevada Public Land Management Act (SNPLMA) will be amended to
authorize funds for Carson City to acquire land for parks and trails
along the Carson River and to authorize conservation initiatives, also
along the Carson River. In addition, we make a small change to SNPLMA
which will only affect Washoe County. In the White Pine County bill of
2006 (P. L. 109-432), Washoe County was given access to SNPLMA through
2011 to acquire part of the Ballardini Ranch. The county has made good
progress towards this acquisition, but may not make the 2011 deadline.
We are pleased to extend the authorization to 2015.
Title III addresses the Washoe Tribe's pressing need for more land
for residential and commercial development. Tribal lands adjacent to
both of the colonies in Carson City, Stewart and Carson, would be
expanded by this legislation. Carson Colony tribal lands would grow by
over 280 acres. On this parcel, the lands located below the 5,200-foot
elevation contour would be available for residential or commercial
development. The lands above the 5,200-foot contour would only be
available for traditional tribal uses, like ceremonial gatherings,
hunting and plant collecting. Tribal lands at the Stewart Colony would
grow by only 5 acres, all of which would be available for commercial
and residential development.
In 2003, Senator Ensign and I passed legislation that conveyed 25
acres of Forest Service land at Skunk Harbor, on the shores of Lake
Tahoe, to the Washoe Tribe. Unfortunately, the parcel was not
accurately described in the legislation and consequently the land that
was conveyed did not fully reflect our commitment to the Tribe. This
bill includes a technical correction that will provide a long overdue
fix to the Washoe Indian Tribe Trust Land Conveyance (P. L. 108-67).
Lastly, this bill directs the Forest Service to develop a cooperative
agreement with the Washoe Tribe to ensure the Tribe's access across
Forest Service land for their traditional ``lifeway'' walk to Lake
Tahoe. For centuries the Washoe people have moved from the Pine Nut
Mountains east of Carson City in the fall to Lake Tahoe in the summer.
Our legislation ensures that they are able to continue this important
tradition.
This bill, is built on years of public input. We believe it is a
model piece of legislation and appreciate the support of our colleagues
in this effort. We look forward to working with Chairman Bingaman,
Ranking Member Domenici and the other distinguished members of the
Energy and Natural Resources Committee to move this bill forward during
the time we have remaining in this legislative session.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3393

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

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

TITLE I--PUBLIC CONVEYANCES

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

TITLE II--LAND DISPOSAL

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

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

Sec. 301. Transfer of land to be held in trust for Washoe Tribe.

[[Page S7950]]

Sec. 302. Correction of Skunk Harbor conveyance.
Sec. 303. Agreement with Forest Service.
Sec. 304. Artifact collection.

TITLE IV--AUTHORIZATION OF APPROPRIATIONS

Sec. 401. Authorization of appropriations.

SEC. 2. DEFINITIONS.

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

TITLE I--PUBLIC CONVEYANCES

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

(a) In General.--Notwithstanding section 202 of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1712) and
the Forest and Rangeland Renewable Resources Planning Act of
1974 (16 U.S.C. 1600 et seq.), if the City offers to convey
to the United States title to the non-Federal land described
in subsection (b)(1) that is acceptable to the Secretary of
Agriculture--
(1) the Secretary of Agriculture shall accept the offer;
and
(2) not later than 180 days after the date on which the
Secretary of Agriculture receives acceptable title to the
non-Federal land described in subsection (b)(1), the
Secretary of Agriculture and the Secretary of Interior shall
convey to the City, subject to valid existing rights and for
no consideration, except as provided in subsection (c)(1),
all right, title, and interest of the United States in and to
the Federal land or interest in land described in subsection
(b)(2).
(b) Description of Land.--
(1) Non-federal land.--The parcels of non-Federal land
referred to in subsection (a) are the approximately 2,260
acres of land administered by the City and identified on the
Map as ``To the U.S. Forest Service''.
(2) Federal land.--The parcels of Federal land referred to
in subsection (a)(2) are--
(A) the approximately 1,012 acres of Forest Service land
identified on the Map as ``To Carson City for Natural
Areas'';
(B) the approximately 3,526 acres of Bureau of Land
Management land identified on the Map as ``Silver Saddle
Ranch and Carson River Area'';
(C) the approximately 1,746 acres of Bureau of Land
Management land identified on the Map as ``To Carson City for
Parks and Public Purposes''; and
(D) the approximately 53 acres of City land in which the
Bureau of Land Management has a reversionary interest that is
identified on the Map as ``Reversionary Interest of United
States Released''.
(c) Conditions.--
(1) Consideration.--Before the conveyance of the 62-acre
Bernhard parcel to the City, the City shall deposit in the
special account established by section 202(b)(1) an amount
equal to 25 percent of the difference between--
(A) the amount for which the Bernhard parcel was purchased
by the City on July 18, 2001; and
(B) the amount for which the Bernhard parcel was purchased
by the Secretary on March 17, 2006.
(2) Conservation easement.--As a condition of the
conveyance of the parcels of land described in subsection
(b)(2)(B), the Secretary, in consultation with Carson City
and affected local interests, shall reserve a perpetual
conservation easement to the parcels to protect, preserve,
and enhance the conservation values of the parcels,
consistent with subsection (d)(2).
(3) Costs.--Any costs relating to the conveyance under
subsection (a), including any costs for surveys and other
administrative costs, shall be paid by the recipient of the
land being conveyed.
(d) Use of Land.--
(1) Natural areas.--
(A) In general.--Except as provided in subparagraph (B),
the parcel of land described in subsection (b)(2)(A) shall be
managed by the City to maintain undeveloped open space and to
preserve the natural characteristics of the parcel of land in
perpetuity.
(B) Exception.--Notwithstanding subparagraph (A), the City
may--
(i) conduct projects on the parcel of land to reduce fuels;
(ii) construct and maintain trails, trailhead facilities,
and any infrastructure on the parcel of land that is required
for municipal water and flood management activities; and
(iii) maintain or reconstruct any improvements on the
parcel of land that are in existence on the date of enactment
of this Act.
(2) Silver saddle ranch and carson river area.--
(A) In general.--Except as provided in subparagraph (B),
the parcel of land described in subsection (b)(2)(B) shall--
(i) be managed by the City to protect and enhance the
Carson River, the floodplain and surrounding upland, and
important wildlife habitat; and
(ii) be used for undeveloped open space, passive
recreation, customary agricultural practices, and wildlife
protection.
(B) Exception.--Notwithstanding subparagraph (A), the City
may--
(i) construct and maintain trails and trailhead facilities
on the parcel of land;
(ii) conduct projects on the parcel of land to reduce
fuels;
(iii) maintain or reconstruct any improvements on the
parcel of land that are in existence on the date of enactment
of this Act; and
(iv) allow the use of motorized vehicles on designated
roads, trails, and areas in the south end of Prison Hill.
(3) Parks and public purposes.--The parcel of land
described in subsection (b)(2)(C) shall be managed by the
City for--
(A) undeveloped open space; or
(B) recreation or other public purposes in accordance with
the Act of June 14, 1926 (commonly known as the ``Recreation
and Public Purposes Act'') (43 U.S.C. 869 et seq.).
(4) Reversionary interest.--
(A) Release.--The reversionary interest described in
subsection (b)(2)(D) shall terminate on the date of enactment
of this Act.
(B) Conveyance by city.--
(i) In general.--If the City sells, leases, or otherwise
conveys any portion of the land described in subsection
(b)(2)(D), the sale, lease, or conveyance of land shall be--

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

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

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

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

TITLE II--LAND DISPOSAL

SEC. 201. DISPOSAL OF CARSON CITY LAND.

(a) In General.--Notwithstanding sections 202 and 203 of
the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1712, 1713), the Secretary of the Interior shall, in
accordance with that Act, this title, and other applicable
law, and subject to valid existing rights, conduct sales of
the parcels of Federal land described in subsection (b) to
qualified bidders.
(b) Description of Land.--The parcels of Federal land
referred to in subsection (a) are--
(1) the approximately 103 acres of Bureau of Land
Management land identified as ``Lands for Disposal'' on the
Map; and
(2) the approximately 50 acres of Bureau of Land Management
land identified as ``Parcel #1'' on the Map.

[[Page S7951]]

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

SEC. 202. DISPOSITION OF PROCEEDS.

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

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

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

SEC. 203. WITHDRAWAL.

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

SEC. 204. AVAILABILITY OF FUNDS.

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

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

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

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

SEC. 302. CORRECTION OF SKUNK HARBOR CONVEYANCE.

(a) Purpose.--The purpose of this section is to amend
Public Law 108-67 (117 Stat. 880) to make a technical
correction relating to the land conveyance authorized under
that Act.
(b) Technical Correction.--Section 2 of Public Law 108-67
(117 Stat. 880) is amended--
(1) by striking ``Subject to'' and inserting the following:
``(a) In General.--Subject to'';
(2) in subsection (a) (as designated by paragraph (1)), by
striking ``the parcel'' and all that follows through the
period at the end and inserting the following: ``and to
approximately 23 acres of land identified as `Parcel #1' on
the map entitled `Skunk Harbor Conveyance Correction' and
dated June 24, 2008, the western boundary of which is the low
water line of Lake Tahoe at elevation 6,223.0 (Lake Tahoe
Datum).''; and

[[Page S7952]]

(3) by adding at the end the following:
``(b) Survey.--Not later than 180 days after the date of
enactment of this subsection, the Secretary of Agriculture
shall complete a survey of the boundary lines to establish
the boundaries of the trust land.
``(c) Public Access and Use.--Nothing in this Act prohibits
any approved general public access (through existing
easements or by boat) to, or use of, land remaining within
the Lake Tahoe Basin Management Unit after the conveyance of
the land to the Secretary of the Interior, in trust for the
Tribe, under subsection (a), including access to, and use of,
the beach and shoreline areas adjacent to the portion of land
conveyed under that subsection.''.
(c) Date of Trust Status.--The trust land described in
section 2(a) of Public Law 108-67 (117 Stat. 880) shall be
considered to be taken into trust as of August 1, 2003.
(d) Transfer.--The Secretary of the Interior, acting on
behalf of and for the benefit of the Tribe, shall transfer to
the Secretary of Agriculture administrative jurisdiction over
the land identified as ``Parcel #2'' on the map entitled
``Skunk Harbor Conveyance Correction'' and dated June 24,
2008.

SEC. 303. AGREEMENT WITH FOREST SERVICE.

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

SEC. 304. ARTIFACT COLLECTION.

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

TITLE IV--AUTHORIZATION OF APPROPRIATIONS

SEC. 401. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as are
necessary to carry out this Act.
______

By Mr. INHOFE:
S. 3395. A bill to provide for marginal well production preservation
an enhancement; to the Committee on Finance.
Mr. INHOFE. Mr. President, a marginal well is defined as one which
produces 15 barrels or less of oil per day. Yet, according to the
Interstate Oil and Gas Compact Commission, IOGCC, these marginal wells
contribute nearly 18 percent of the oil and 9 percent of the natural
gas produced in America.
In fact, marginal wells produced more than 335 million barrels of oil
in 2006. That's equivalent to more than 60 percent as much as the
United States imports annually from Saudi Arabia or 67 percent as much
as the Nation imports annually from Venezuela. In my own State of
Oklahoma, it is the small independents, basically mom-and-pop
operations, that produce the majority of oil and natural gas, with 85
percent of Oklahoma's oil coming from marginal wells.
In addition to reducing our dependence on foreign oil, a producing
well provides both State and Federal taxes, pays royalties to land and
mineral owners, and keeps jobs and dollars on American soil and in
American pockets. A plugged well provides none of this. On the
contrary, the IOGCC reported that in 2006, plugged and abandoned
marginal wells resulted in the loss of $1.77 billion in economic
output, $369.2 million in earnings reductions, and 8,223 lost jobs.
These statistics testify to the importance of America's marginal well
production. With gasoline prices at record highs, Congress must ensure
that government policies do not discourage, and instead prolong and
enhance, production from these low volume wells.
That is why today I am glad to join with my fellow Oklahoman,
Congressman Dan Boren, to introduce the Marginal Well Production
Preservation and Enhancement Act. This bill will streamline and clarify
government regulations, prolong economic feasibility, and enhance
production volumes from marginal wells. Every onshore oil and gas well
in the Nation eventually declines into marginal production. The
Marginal Well Production Preservation and Enhancement Act ensures that
the Nation's policies recognize and reflect the economic importance of
marginal well production. It's good for America's small producers, as
well as America's consumers.
______

By Mr. KOHL (for himself, Mr. Durbin, Mr. Kennedy, and Mr.
Casey):
S. 3396. A bill to amend the Public Health Service Act to provide
grants or contracts for prescription drug education and outreach for
healthcare providers and their parents; to the Committee on Health,
Education, Labor, and Pensions.
Mr. KOHL. Mr. President, I rise today to introduce the Independent
Drug Education and Outreach Act. Over the past year, the Committee on
Aging has been taking a close look at the relationship between the
pharmaceutical industry and our Nation's physicians. Not only does the
interaction between these two parties seem to be fraught with conflicts
of interest, but it is likely that the marketing methods employed by
drug companies--and the manner in which they educate doctors about
their products--have an impact on the rising costs of prescription
drugs in America.
When it comes to knowing what treatment options are available to
doctors, pharmaceutical sales reps are currently one of the most common
ways physicians learn about the latest drugs on the market. However,
these sales reps often seem to confuse educating with selling, and
evidence shows that doctors' prescribing patterns can be heavily
influenced by the sometimes biased information handed out by these
sales representatives.
The Independent Drug Education and Outreach Act offers an alternative
method of providing information to doctors. It's called academic
detailing, and we believe it can have a positive impact on both quality
and cost of healthcare nationwide. Academic detailing provides
physicians and other prescribers with an objective source of unbiased
information on all prescription drugs, based on scientific research
certified by HHS. The information is presented to doctors in their own
offices by trained clinicians and pharmacists. Academic detailing
ensures that physicians have access to the most comprehensive data
available on drug safety of the full array of pharmaceutical treatment
options, including low-cost generic alternatives.
The proposed legislation would provide two sets of grants. The first
grant program would create educational materials for doctors on the
safety, efficacy, and cost of prescription drugs, including generic
drugs and over-the-counter alternatives. A second set of up to ten
grants would be used to dispatch trained medical staff--such as
pharmacists, nurses, and other health care professionals--into
physicians' offices to distribute and discuss the independent
information. To ensure their neutrality, all grant recipients would be
prohibited from receiving financial support from drug manufacturers.
When doctors are better informed about the full range of drugs
available on the market, they are more likely to prescribe the most
effective treatment, as opposed to the latest brand-name blockbuster
drug. The result is also lower health care costs. A study in the New
England Journal of Medicine projected that for every dollar spent on
academic detailing, two dollars can be saved in drug costs, due in part
to the increased use of generic drugs. In this way, a Federal academic
detailing program will likely pay for itself, while saving the
government, consumers, and employers a considerable amount of money.
I would like to thank my cosponsors in the Senate, Majority Whip Dick
Durbin, HELP Committee Chairman Ted Kennedy, and Senator Bob Casey. I
would also like to thank Representatives Henry Waxman and Frank
Pallone, who are introducing a companion bill today in the House. We
stand together with the goal of providing doctors with unbiased
information on prescription drugs, and ensuring Americans receive the
quality health care they deserve.
Mr. DURBIN. Prescription drugs can restore health, prevent illness,
and extend lives. But deciding whether to prescribe a drug, and which
one, requires a careful balancing of potential benefits, risks, and
costs.
Prescribing should not be determined by how heavily a drug is
promoted by a pharmaceutical company. Sadly, this is largely what
happens today.
Our health care system does not generate objective, easy-to-access
information for doctors to guide them when it comes to prescribing
options.

[[Page S7953]]

New drugs are constantly entering the marketplace, but there's very
little objective information about what drug might be marginally safer
or more effective than existing drugs.
Even the most vigilant doctors would be challenged to monitor the
dozens of medical journals that could contain a helpful study comparing
the safety and effectiveness of drugs.
The pharmaceutical industry has taken advantage of this information
void.
It spends about $7 billion a year marketing to physicians and sends
over 90,000 sales representatives, called detailers, to pitch their
company's latest and most expensive drugs.
What the drug industry is doing is not education. It is promotion.
And there's a big difference between the two.
The drug company sales representatives are hired more for their
charisma than their scientific knowledge, and they provide doctors with
information skewed to portray their company's product in the most
favorable light.
The sales representatives arrive with free lunches and free drug
samples. Lucrative speaking and consulting fees are possible for
doctors who change their prescribing to the liking of a drug company.
The consequence of such a system is clear: an over-reliance on
prescribing the latest, most expensive drugs even when existing drugs
are as effective, as safe, or cost less.
The pain-reliever Vioxx provides a cautionary tale of what can happen
when marketing prowess trumps evidence-based medicine.
Heavy marketing quickly made Vioxx a blockbuster drug with $3 billion
a year in sales, despite a lack of evidence that it could provide any
greater pain relief for most patients than Advil and despite early
indications that it increased the risk of heart attacks. Many Americans
needlessly paid more and placed themselves at risk because the benefits
of Vioxx were oversold and the risks minimized.

Another example is the marketing of calcium-channel blockers in
1990s. Heavy marketing increased the sales of the new patent-protected
calcium-channel blockers but decreased sales of other blood-pressure
drugs, such as thiazide diuretics and betablockers, that were cheaper
and often more effective.
A more recent example is the cholesterol drug Vytorin. The new drug
has been heavily marketed since it was introduced in 2004. But a study
released earlier this year did not find that Vytorin was any better at
limiting plaque buildup in the arteries than Zocor, an older
cholesterol drug that recently came out in a lower-priced generic form.
We have to find a better way to educate physicians about prescription
drug options and fill the void of medical information that the drug
industry is now taking advantage of.
Part of the solution is academic detailing, an idea first developed
by Jerry Avorn, a physician at Harvard Medical School and Brigham and
Women's Hospital in Boston.
Academic detailing programs use some of the marketing tools that the
drug industry has used so effectively, such as office visits to
physicians and easy-to-read materials, but employs them to promote
appropriate prescribing, based on an objective analysis of the medical
literature.
These programs--which send trained nurses and pharmacists, armed with
unbiased information, to doctors' office--have been shown to generate
$2 in savings for every $1 that it costs to implement them.
Pennsylvania's PACE program is the State's pharmacy assistance
program for low- and moderate-income seniors, and it runs the most
notable publicly funded academic detailing program.
The PACE academic detailing program has reduced costs associated with
the overuse of Nexium, an acid-reflux drug for which there are similar
lower-cost alternatives, and reduced the use of Cox-2 inhibitors such
as Vioxx.
Today, I am joining Senator Kohl and Senators Kennedy and Casey in
introducing legislation that would promote additional academic
detailing programs.
The Independent Drug Education and Outreach Act would provide funds
to medical schools, schools of pharmacies, and others for the
development of educational materials based on what unbiased, peer-
reviewed medical literature says about appropriate prescribing for a
particular condition.
The bill also would provide funds to ten governmental or non-profit
groups to train nurses and pharmacists and to send them to physician
offices to present and discuss this information directly with
physicians.
The bill includes protections against financial conflicts of interest
and calls on the Agency for Health Care Research and Quality to review
the accuracy of the information provided to doctors.
The Independent Drug Education and Outreach Act would begin to fix
one of the glaring shortcomings of our current health care system: the
lack of a systematic way of disseminating information on the relative
benefits, risks, and costs of various treatment options directly to
doctors.
When it comes to prescription drugs, newer isn't necessarily better.
In many cases, they are not.
We can no longer afford to rely on drug company salespersons to be
doctors' primary source of information about new drugs.
I urge my colleagues to support this bill.
______

By Mr. REID (for Mr. Kennedy (for himself, Mr. Leahy, Mr. Dodd,
Mr. Harkin, Ms. Mikulski, Mr. Bingaman, Mrs. Murray, Mr. Reed,
Mrs. Clinton, Mr. Obama, Mr. Sanders, Mr. Brown, and Mr.
Whitehouse)):
S. 3398. A bill to amend the Federal Food, Drug, and Cosmetic Act
with respect to liability under State and local requirements respecting
devices; to the Committee on Health, Education, Labor, and Pensions.
Mr. HARKIN. Mr. President, I am proud to join my colleagues in
introducing the Medical Device Safety Act. This legislation reverses
the Supreme Court's erroneous decision in Riegel v. Medtronic. There,
the Court misread a statute designed to protect consumers by giving the
Food and Drug Administration the authority to approve medical devices
as preempting state tort claims when a medical device causes harm.
Riegel prevents consumers from receiving fair compensation for injuries
sustained, medical expenses incurred and lost wages, and it must be
reversed.
Congressional action should be unnecessary. When Congress passed the
Medical Device Amendments, or MDA, in 1976, it did so ``[t]o provide
for the safety and effectiveness of medical devices intended for human
use.'' In other words, Congress passed the MDA precisely to protect
consumers from dangerous medical devices. Toward that end, Congress
gave the FDA the authority to approve, prior to a product entering the
market, certain medical devices. For over 30 years the MDA has been in
effect, and over that period FDA regulation and tort liability have
complemented each other in protecting consumers.
Given the MDA's purpose, and the fact it has operated successfully
for 30 years, I was disheartened to find the Court twist the meaning of
the statute to strip from consumers all remedies when a medical device
fails. In contorted logic, the Court found that the FDA's requirements
in approving a medical device preempted state laws designed to ensure
that manufacturers marketed safe devices. In other words, the Court
believes that a company's responsibility to its patients ends when it
receives FDA approval. I strenuously disagree.
In fact, there is absolutely no evidence that Congress intended that
under the MDA, consumers would lose their only avenue for receiving
compensation for injuries caused by negligent or inadequately labeled
devices. Not a single member or committee report articulated the view
that the statute would preempt state tort law.
Nevertheless, because of the Court's decision, it is imperative that
Congress act to ensure that those harmed by flawed medical devices can
seek compensation. The bill introduced today addresses the Court's
action by explicitly stating that actions for damages under state law
are preserved. Specifically, it amends section 521 of the Federal Food,
Drug, and Cosmetic Act to state that the section shall not be construed
to modify or otherwise affect any action for damages or the liability

[[Page S7954]]

of any person under the law of any State. And, the bill applies
retroactively to the date of the enactment of the MDA, consistent with
Congress's intent when it passed that act over 30 years ago.
Practically, that means that it applies to cases pending on the date of
enactment of this legislation or claims for injuries sustained prior to
enactment.
The harm from Riegel, unless Congress acts, cannot be more real. Take
Riegel itself. In 1996, Charles Riegel had an angioplasty performed on
his right coronary artery. During the procedure, Mr. Reigel's surgeon
used Medtronic's Evergreen Balloon Catheter. The catheter burst inside
Mr. Reigel's artery, causing him severe and permanent injuries and
disabilities.
Under our system of law, when someone is injured, he or she can
normally seek redress from the entity that caused him or her harm. Yet,
because of the Court's decision, Mr. Riegel and his wife will receive
no compensation for the defective design and inadequate warning.
It is not just Mr. Riegel. In 2002, Gary Despain was implanted with a
defective hearing aid Soundtec manufactured. While working as a welder,
he suffered damage to his right ear, apparently as a result of
interference between a magnet in his hearing device and some electronic
welding equipment being used in the plant. The device caused severe
ringing in his ear, but the labeling for the device failed to warn of
this potential risk. Mr. Despain had to have the device surgically
removed and he remains unemployed and disabled as a result of the
device.
Nevertheless, two weeks after the Court's Riegel decision, Mr.
Despain's lawsuit against Soundtec was dismissed and Mr. Despain has no
ability to seek remedies for his injuries.
The result of Riegel, therefore, is that in the event the FDA does an
inadequate job of inspecting and assuring the safety of medical
devices--and because tort actions are now precluded--then consumers are
left at extreme risk.
While FDA approval of medical devices, moreover, is important, it
cannot be the sole protection for consumers. FDA approval is simply
inadequate to replace the long-standing safety incentives and consumer
protections that state tort law provides.
As a senior member of the Health, Education, Labor and Pension
Committee, which has oversight over FDA, I have worked hard to ensure
that the FDA performs its job. No matter how effective the FDA is,
however, the FDA simply cannot guarantee that no defective, dangerous
and deadly medical device will reach consumers. As the former Director
of the FDA's Center for Devices and Radiological Health acknowledged,
the FDA's ``system of approving devices isn't perfect, and that
unexpected problems [with approved devices] do arise.'' In 1993, a
House report identified a ``number of cases in which the FDA [had]
approved devices that proved unsafe in use.''

The fact is, the FDA conducts the approval process with minimal
resources and simply does not have adequate funds to genuinely ensure
that devices are safe or to properly and effectively reevaluate
approvals as new information becomes available.
Further, the FDA approval process is based on partial information. A
principal shortcoming is that the device's manufacturer compiles the
studies and data supporting an application, and the data is often
unreliable. And, the FDA does not conduct independent investigations
into a device's safety. A manufacturer, moreover, is not required to
submit information about development of the device, including
alternative designs, manufacturing methods and labeling possibilities
that the manufacturer considered, but rejected.
In 1993, an FDA committee found flaws in the design, conduct and
analysis of the clinical studies used to support applications that were
``sufficiently serious to impede the agency's ability to make the
necessary judgments about [device] safety and effectiveness.'' It
added, ``[o]ne of the main reasons [problems arise after approval] is
that the data upon which we base our safety and effectiveness decisions
isn't perfect.'' Likewise, in 1996, the Inspector General of the
Department of Health and Human Services reported ``serious deficiencies
. . . in the clinical data submitted as part of pre-market
applications.''
FDA review, moreover, is a one-time event with no reevaluation and
very little FDA oversight once a device reaches doctors and patients.
In fact, even the best-designed and most reliable clinical studies by
their very nature cannot duplicate all aspects and hazards of everyday
use. Moreover, while manufacturers are supposed to report defects and
injuries, the FDA has admitted that there is ``severe underreporting''
of defects and injuries.
Given the FDA's limitations, it is crucial that an individual have a
right to seek redress. When defective medical devices reach the market,
whether or not approved by the FDA, patients are often injured. Those
injured are often left temporarily unable to work or to enjoy normal
lives, and in many cases never fully recover. State tort law provides
the only relief for patients injured by defective medical devices and
should not be foreclosed.
Not only does access to State court mean that a person injured can
receive fair compensation, but there are other advantages. Such suits
aid in exposing dangers and serve as a catalyst to address their
consequences. Through discovery, litigation can help uncover previously
unavailable information on adverse effects of products that might not
have been caught during the regulatory system. Litigants can demand
documents and information on product risks that might not have been
shared with the FDA. In this way, the public as a whole is alerted to
dangers in medical products.
Finally, providing the ability to sue when injured provides an
important incentive to manufacturers to use the utmost care.
Additionally, threat of product liability suits creates continuing
incentives for product manufacturers to improve the safety of their
device, even after FDA approval.
The Court fundamentally misread Congress's intent in passing the
Medical Device Amendments in 1976, and Reigel represents yet another
victory by big business over consumers. Those injured, however, deserve
to have their day in court and are entitled to compensation when they
are injured by faulty medical devices, have medical expenses to pay and
lost wages, regardless of whether FDA approved a device or not. We must
reverse this erroneous decision and ensure that those who have suffered
serious injury at the hands of others receive justice.
______

By Mrs. LINCOLN (for herself, Mr. Smith, Ms. Cantwell, Mr.
Cornyn, Mrs. Murray, Mrs. Dole, Ms. Landrieu, Mr. Chambliss,
Mr. Wicker, and Mr. Vitter):
S. 3399. A bill to amend the Internal Revenue Code of 1986 to make
permanent the reduction in the rate of tax on qualified timber gain of
corporations, and for other purposes; to the Committee on Finance.
Mrs. LINCOLN. Mr. President, I am very pleased to rise today to
introduce the Timber Revitalization and Economic Enhancement Act II of
2008 with my good friend, Senator Smith of Oregon. I also want to say a
special thanks to our cosponsors, Senators Cantwell, Murray, Dole,
Chambliss, Cornyn, Landrieu, Wicker and Vitter.
This legislation has commonly been referred to as the TREE Act. I
appreciate that Congress understood the importance of the TREE Act with
its inclusion and enactment in the Farm Bill earlier this year. But,
unfortunately, this tax policy is already set to expire in less than
one year. So today, my colleagues and I introduce the TREE Act II to
make this important forest policy permanent.
In my home State of Arkansas, the est products industry is a
foundation of our economy and culture. More than 50 percent of Arkansas
land is forested. Much of this is sustainably managed to create
products we use every day. In addition, there are jobs associated with
the growing of these forests and manufacture of these great products.
More than 32,000 Arkansas men and women work in our woods, at our
sawmills and in our paper mills. These are good jobs located in our
small rural towns.
However, these jobs and this industry continue to face many
challenges. The TREE Act II addresses one of these challenges. Just as
it is important to have diversity in our forests, it is also important
to maintain diversity in our forestry industry, and we must ensure

[[Page S7955]]

that all business forms have the necessary tools so they can be
successful in the global marketplace. Timber companies that are
organized as corporations continue to be under intensifying pressure to
reorganize. In that case, a corporation that owns substantial
manufacturing facilities would be forced to sell some of those
facilities and to make other structural changes in order to comply with
the relevant tax rules that it would newly become subject to. This
would be likely to cause disruptions in some of these communities and
also would make it harder for U.S. companies to compete
internationally.
In Arkansas, like so many other States across our Nation, a strong
forest product industry is essential to having a strong economy. A
permanent solution to the TREE Act II is imperative for this industry
and supporting the jobs it provides. I look forward to working with my
colleagues on the Senate Finance Committee to ensure this important tax
policy is made permanent.
______

By Mr. FEINGOLD (for himself and Mr. Whitehouse):
S. 3405. A bill to prohibit secret modifications and revocations of
the law, and for other purposes; to the Committee on Homeland Security
and Governmental Affairs.
Mr. FEINGOLD. Mr. President, today, the junior Senator from Rhode
Island, Senator Whitehouse, and I will introduce the Executive Order
Integrity Act of 2008. The bill prevents secret changes to published
Executive Orders by requiring the President to place a notice in the
Federal Register when he has modified or revoked a published Order.
Through this simple measure, the bill takes an important step toward
stemming the growth of secret law in the executive branch.
The principle behind this bill is straightforward. It is a basic
tenet of democracy that the people have a right to know the law.
Indeed, the notion of ``secret law'' has been described in court
opinions and law treatises as ``repugnant'' and ``an abomination.''
That is why the laws passed by Congress have historically been matters
of public record.
But the law that applies in this country includes more than just
statutes. It includes regulations, the controlling legal
interpretations of courts and the executive branch, and certain
Presidential directives. As we learned at a hearing of the Judiciary
Committee's Constitution Subcommittee that I chaired in April, some of
this body of executive and judicial law is increasingly being kept
secret from the public, and too often from Congress as well. The Bush
administration has concealed Department of Justice legal opinions,
interpretations of the Foreign Intelligence Surveillance Court, and
even the agency rule that requires Americans to show identification at
airports.
The shroud of secrecy extends to Executive Orders and other
Presidential directives that carry the force of law. The Federal
Register Act requires the President to publish any Executive Orders
that have general applicability and legal effect. But through the
diligent efforts of my colleague Senator Whitehouse, we learned last
December that the Department of Justice has taken the position that a
President can ``waive'' or ``modify'' any Executive Order without any
notice to the public or Congress--simply by not following it. In other
words, even in cases where the President is required to make the law
public, the President can change the law in secret.
The Office of Legal Counsel memorandum that contains this position is
still classified, but Senator Whitehouse convinced the Department of
Justice to declassify certain statements in the memorandum. The Senator
from Rhode Island spoke on the floor last December, and many times
since then, about these statements. They include the statement that
``[w]henever [the President] wishes to depart from the terms of a
previous executive order,'' he may do so, because ``an executive order
cannot limit a President.'' And he doesn't have to change the executive
order, or give notice that he's violating it, because by ``depart[ing]
from the executive order,'' the President ``has instead modified or
waived it.''
Now, no one disputes that a President can withdraw or revise an
Executive Order at any time; that is every President's prerogative. But
abrogating a published Executive order without any public notice works
a secret change in the law. Worse, because the published Order stays on
the books, it actively misleads Congress and the public as to what the
law is.
This is not just a hypothetical problem dreamed up by the Office of
Legal Counsel. It has happened, and it could happen again. To list just
one example, the administration's warrantless wiretapping program not
only violated the Foreign Intelligence Surveillance Act; it was
inconsistent with several provisions of Executive Order 12333, the
longstanding executive order governing electronic surveillance and
other intelligence activities. Apparently, the administration believed
its actions constituted a tacit amendment of that Executive Order. And
who knows how many other Executive Orders have been secretly revoked or
amended by the conduct of this Administration.
The bill that Senator Whitehouse and I will introduce provides a
simple solution to this problem. If the President revokes, modifies,
waives, or suspends a published Executive Order or similar directive,
notice of this change in the law must be placed in the Federal Register
within 30 days. The notice must specify the Order or the provision that
has been affected; whether the change is a revocation, a modification,
a waiver, or a suspension; and the nature and circumstances of the
change. If information about the nature and circumstances of the change
is classified, it is exempt from the publication requirement, but the
information still must be provided to Congress so that we, as
legislators, know how the law has been changed.
That is what our bill does; now let me talk briefly about what our
bill does not do. First, it does not expand the existing legal
requirements, under the Federal Register Act, that determine which
Executive Orders must be published. To the extent the Federal Register
Act permits a certain amount of ``secret law'' in the form of
unpublished Executive Orders, our bill leaves that framework in place.
Second, our bill does not require public notice when the President
revokes or modifies an unpublished Executive Order--even if the
substance of the unpublished order is well-known to Congress and even
the American people. This bill is narrowly aimed at the situation in
which the American people have been given official notice of one
version of the law, but a different version is being implemented.
Third, the bill does not require the President to adhere to the terms
of an Executive Order. Many scholars have argued that a President must
adhere to a formally promulgated Executive Order unless or until the
Order is formally withdrawn or amended, just as the head of an agency
must adhere to the agency's regulations. I happen to agree. But this
bill does not take a position on OLC's assertion that any deviation
from the Executive Order by the President is a permissible amendment of
that Order. It simply requires public notice that the amendment has
occurred.
Fourth, the bill does not require the publication of classified
information about intelligence sources and methods or similar
information. The basic fact that the published law is no longer in
effect, however, cannot be classified. On rare occasions, national
security can justify elected officials keeping some information secret,
but it can never justify lying to the American people about what the
law is. Maintaining two different sets of laws, one public and one
secret, is just that--deceiving the American people about what law
applies to the government's conduct.
I commend Senator Whitehouse for his tireless work to bring this
issue to light, and I urge all of my colleagues in the Senate to
support this modest effort to ensure the integrity of our published
laws.
Mr. President, I ask unanimous consent that the text of the bill be
placed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3405

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Executive Order Integrity
Act of 2008''.

[[Page S7956]]

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

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

notice of such revocation, modification, waiver, or
suspension shall be published in the Federal Register within
30 days after the revocation, modification, waiver, or
suspension, in accordance with the terms under paragraph (2).
``(2) Content of notice.--
``(A) In general.--Except as provided under subparagraph
(B), the notice required under paragraph (1) shall specify--
``(i) the Presidential proclamation, Executive Order, or
other Presidential directive, and any particular portion
thereof that is affected;
``(ii) for each affected directive or portion thereof,
whether that directive or portion thereof was revoked,
modified, waived, or suspended; and
``(iii) except where such information is classified, the
specific nature and circumstances of the revocation,
modification, waiver, or suspension.
``(B) Revised executive order.--Where the revocation,
modification, waiver, or suspension of a Presidential
proclamation, Executive Order, or other Presidential
directive is accomplished through the publication in the
Federal Register of a revised Presidential proclamation,
Executive Order, or other Presidential directive that
replaces or amends the one that was revoked, modified,
waived, or suspended, that revised Presidential proclamation,
Executive Order, or other Presidential directive shall
constitute notice for purposes of paragraph (1).
``(3) Classified information.--If the information specified
under paragraph (2)(A)(iii) is classified, such information
shall be provided to Congress, using the security procedures
established under section 501(d) of the National Security Act
of 1947 (50 U.S.C. 413(d)), in the form of a classified annex
delivered to--
``(A) the majority and minority leader of the Senate;
``(B) the Speaker, majority leader, and minority leader of
the House of Representatives;
``(C) the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives;
and
``(D) if the information pertains to national security
matters, the Select Committee on Intelligence of the Senate
and the Permanent Select Committee on Intelligence of the
House of Representatives.
``(4) Rule of construction.--Nothing in this subsection
shall be construed as either authorizing or prohibiting the
revocation, modification, waiver, or suspension of any
Presidential proclamation, Executive Order, or other
Presidential directive that was published in the Federal
Register through means other than a formal directive issued
by the President and published in the Federal Register.''.
______

By Mr. HARKIN (for himself, Mr. Hatch, Mr. Kennedy, Mr. Enzi, Mr.
Specter, Mr. Obama, Mr. McCain, Mr. Dodd, Mr. Gregg, Mrs. Clinton, Mr.
Alexander, Mr. Johnson, Mr. Roberts, Mr. Kerry, Mr. Coleman, Mr.
Feingold, Ms. Snowe, Mr. Leahy, Mr. Burr, Mr. Brown, Mr. Smith, Mr.
Durbin, Ms. Murkowski, Mr. Lautenberg, Mr. Warner, Mr. Sanders, Mr.
Brownback, Mr. Reed, Mr. Martinez, Ms. Mikulski, Mr. Isakson, Mr.
Casey, Mr. Craig, Mrs. Murray, Mr. Bennett, Ms. Landrieu, Ms. Collins,
Mr. Biden, Mr. Allard, Mr. Nelson of Florida, Mr. Sununu, Mr. Cardin,
Mr. Thune, Mr. Levin, Mr. Barrasso, Mrs. McCaskill, Mr. Crapo, Mr.
Schumer, Mr. Stevens, Mr. Salazar, Mr. Voinovich, Mr. Tester, Mr.
Cochran, Mr. Reid, Mr. Lugar, and Mr. Chambliss):
S. 3406. A bill to restore the intent and protections of the
Americans with Disabilities Act of 1990; read the first time.
Mr. HARKIN. Mr. President, I am pleased to join with Senators Hatch,
Obama, and McCain in introducing the ADA Amendments Act of 2008. This
bipartisan legislation will allow us to advance and fulfill the
original promise of the Americans with Disabilities Act, which was
signed into law 18 years ago this month.
I am especially grateful to the distinguished senior Senator from
Utah, Senator Hatch, for his partnership and leadership in helping to
craft our bill here in the Senate and to Senator Kennedy for his
career-long leadership in fighting for the rights of people with
disabilities. Senator Kennedy has worked from the beginning to help
craft this bill.
This bill is similar to bipartisan legislation introduced in the
other body by House Majority Leader Steny Hoyer and Congressman Jim
Sensenbrenner. That bill passed by a 402-17 margin last month.
I am also grateful that, from the outset, these bills have been
conceived and crafted in a spirit of genuine bipartisanship, with
members of both parties coming together to do the right thing for all
Americans with disabilities.
Of course, passage of the Americans with Disabilities Act was also a
bipartisan effort. As chief sponsor in the Senate, I worked very
closely with Senator Bob Dole and others on both sides of the aisle. We
received invaluable support from President George Herbert Walker Bush
and key members of his administration, including White House Counsel
Boyden Gray, Attorney General Richard Thornburgh, and Transportation
Secretary Sam Skinner.
The fact is that Americans of all walks of life take enormous pride
in the progress we have made since the ADA was passed 18 years ago.
Nobody wants to go backward.
The Americans with Disabilities Act was one of the landmark civil
rights laws of the 20th century--a long-overdue emancipation
proclamation for Americans with disabilities. Thanks to that law, we
have removed most physical barriers to movement and access for more
than 50 million Americans with disabilities. We have required employers
to provide reasonable accommodations so that people with disabilities
can have equal opportunity in the workplace. And we have advanced the
four goals of the ADA--equality of opportunity, full participation,
independent living, and economic self-sufficiency.
The reach--the triumph--of the ADA revolution struck home to me, some
time back, when I attended a Washington convention of several hundred
disability rights advocates, many with significant disabilities. They
arrived in Washington on trains and airplanes built to accommodate
people with mobility impairments. They came to the hotel on Metro and
in regular busses, all seamlessly accessible by wheelchair. They
navigated city streets equipped with curb cuts and ramps. The hotel
where the convention took place was equipped in countless ways to
accommodate people with disabilities. There was a sign language
interpreter on the dais so that people with hearing disabilities could
be full participants.
For those of us who do not have disabilities, these many changes are
all but invisible. But for individuals with disabilities, they are
transforming and liberating. So are provisions in the ADA outlawing
discrimination against qualified individuals with disabilities in the
workplace, and requiring employers to provide ``reasonable
accommodations.''
But despite this progress, we face a challenge. In recent years, the
courts have narrowed the definition of who qualifies as an ``individual
with a disability.'' As a consequence, people with conditions that
common sense tells us are disabilities are being told by courts that
they are not in fact disabled, and are not eligible for the protections
of the law. In a ruling last year, the 11th Circuit Court even
concluded that a person with an intellectual disability was not
``disabled'' under the ADA.
When I explain to people what the Supreme Court has done, they are
shocked. Impairments that the Court says are not to be considered
disabilities under the law include amputation, intellectual
disabilities, epilepsy, diabetes, muscular dystrophy, and multiple
sclerosis.
In three rulings in 1999--Sutton v. United Airlines, Murphy v. United
Parcel Service, and Albertson's v. Kirkingburg--the Court held that
corrective and mitigating measures must be considered in determining
whether an individual has a disability under the ADA.
In Sutton, the Supreme Court held that if a person is taking
corrective

[[Page S7957]]

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

S. 3406

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``ADA Amendments Act of
2008''.

SEC. 2. FINDINGS AND PURPOSES.

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

[[Page S7958]]

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

SEC. 3. CODIFIED FINDINGS.

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

SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.

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

``SEC. 3. DEFINITION OF DISABILITY.

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

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

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

``SEC. 4. ADDITIONAL DEFINITIONS.

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

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

SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

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

[[Page S7959]]

``(c) Qualification Standards and Tests Related to
Uncorrected Vision.--Notwithstanding section 3(4)(E)(ii), a
covered entity shall not use qualification standards,
employment tests, or other selection criteria based on an
individual's uncorrected vision unless the standard, test, or
other selection criteria, as used by the covered entity, is
shown to be job-related for the position in question and
consistent with business necessity.''.
(c) Conforming Amendments.--
(1) Section 101(8) of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12111(8)) is amended--
(A) in the paragraph heading, by striking ``with a
disability''; and
(B) by striking ``with a disability'' after ``individual''
both places it appears.
(2) Section 104(a) of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12114(a)) is amended by striking ``the
term `qualified individual with a disability' shall'' and
inserting ``a qualified individual with a disability shall''.

SEC. 6. RULES OF CONSTRUCTION.

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

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

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

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

SEC. 7. CONFORMING AMENDMENTS.

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

SEC. 8. EFFECTIVE DATE.

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

Mr. HATCH. Mr. President, I am proud to rise today, as I did 18 years
ago, and stand beside my good friend from Iowa, Senator Harkin, to
introduce legislation advancing opportunities for our disabled fellow
citizens. Our commitment to that cause never ends. We must always
remain open to learn from experience, to observe and evaluate how laws
we put on the books work in practice, and to be ready to do our part
with appropriate legislation. We are doing our part today by
introducing the ADA Amendments Act.
The Americans with Disabilities Act is perhaps the most comprehensive
piece of civil rights legislation we have ever enacted. It prohibits
discrimination based on present, past, or perceived disabilities. It
affirmatively requires accommodations in the workplace and
modifications and assistance to ensure that persons with disabilities
can access and enjoy places of public accommodation. That combination
of the negative prohibition and the affirmative obligation makes the
ADA truly unique and able to make such a positive contribution to the
lives of so many across our great Nation.
This legislation responds to Supreme Court decisions that have had
the effect of narrowing the ADA's definition of disability and thereby
restricting its coverage. Its goal is to once again broaden the
definition of disability in a way that maximizes bipartisan consensus
and minimizes unintended consequences. I am sure that my friend from
Iowa, Senator Harkin, joins me in thanking so many people and
organizations who have been part of this process, offering countless
suggestions and ideas and input about how to achieve this goal.
This effort has been neither simple nor easy. Because the ADA is such
a comprehensive statute, virtually any change we make can have effects
in areas beyond where a problem might have occurred. In addition,
Members on both sides of the aisle, with liberal or conservative
perspectives, equally want to help the disabled but have very different
views about how to do it.
And so the bill we introduce today is really the third phase in a
process that began more than a year ago with introduction of the ADA
Restoration Act and continued with passage last month of the House ADA
Amendments Act. I am glad to say that it enjoys the support of the
broad coalitions of disability and business groups that have provided
valuable input and analysis along the way. It also takes steps to
address concerns expressed by the education community. While the
problems this legislation addresses arose in the employment arena, the
solution this legislation represents will certainly impact the
education arena.
Finally, let me say that like the original ADA, this bill is the
result of negotiation and compromise on all sides. That is the nature
of the legislative process and the more important the goal, the greater
the effort to continue the process until we reach a good result. We
have done that here and I hope and trust that when this legislation
passes here and in the other body that the margin of the votes will
reflect the breadth of the consensus behind this new effort to advance
opportunities for the disabled to participate in all that this great
country has to offer.
______

By Mr. BURR (for himself, Mr. Wicker, Mr. Alexander, and Mr.
inhofe):
S. 3407. A bill to amend title 10, United States Code, to authorize
commanders of wounded warrior battalions to accept charitable gifts on
behalf of the wounded members of the Armed Forces assigned to such
battalions; to the Committee on Armed Services.
Mr. BURR. Mr. President, in the years since the War on Terror began,
we have seen the creation of new Wounded Warrior Battalions and Warrior
Transition Battalions in the Marines and the Army. These units were
built from the ground up with one purpose in mind: to ensure that
seriously wounded service members receive the medical care and benefits
that they have earned. The service personnel who command and administer
these units are some of the most competent and dedicated professionals
in our armed forces, and they deserve our praise.
These professionals have done much to improve the quality of care
that is given to our Nation's wounded service members, but many of the
young men and women who find themselves assigned to a Wounded Warrior
Battalion still face a tough journey on their road to recovery.
Thankfully, the challenges that these men and women face rarely go
unnoticed in their communities. Over the past several years we have
heard countless stories of private citizens, church congregations and
other community groups stepping forward to donate their time, money and
other charitable gifts to our wounded service personnel. It is not
uncommon to hear about donations of $10,000 or more being offered to
help provide additional resources to help our wounded recover.
Unfortunately, the military's gift-acceptance rules have not been
updated

[[Page S7960]]

to take into account the generosity of the American people. For
example, if a North Carolinian wished to provide a gift of just over
$12,000 to the Wounded Warrior Battalion at Camp Lejeune, the
acceptance paperwork for this donation would spend months working its
way through a complicated bureaucracy before finally arriving on the
desk of the Commandant of the Marine Corps. Our taxpayers and our
wounded veterans are not being served very well when gifts of such a
small dollar amount must be approved at the very highest levels of
command.
That is why I am introducing the Friends of Wounded Warriors Act.
This legislation will streamline the gift-acceptance process by
empowering the commanders of Wounded Warrior Battalions and similar
units with the authority to accept charitable gifts of up to $100,000
for the benefit of the members of their unit. This will enable these
commanders to cut through the red tape that is currently the cause of
needless delay in getting extra resources to our wounded service men
and women. I hope you will join me in making a commitment to ensure
that out-dated processes for accepting gifts do not stand in the way of
the generosity of concerned citizens and communities seeking to
contribute to the care of our wounded and ill service members.
______

By Mr. BAUCUS (for himself and Mr. Conrad):
S. 3408. A bill to amend title XI of the Social Security Act to
provide for the conduct of comparative effectiveness research and to
amend the Internal Revenue Code of 1986 to establish a Comparative
Effectiveness Research Trust Fund, and for other purposes; to the
Committee on Finance.
Mr. BAUCUS. Mr. President, in 2006, America spent more than $2
trillion on health care. By any standard, $2 trillion is an enormous
figure. Health care accounts for 16 percent of our Nation's economy.
That means that for every $100 in goods and services produced and
consumed in America in 2006, $16 were for health care. And the health
care share of the economy is expected to reach 20 percent in just 10
years.
These projections are cause for concern. If so much of our Nation's
resources are devoted to heath care, we need to ask ourselves what we
are--or are not--getting for it.
The answer is that we are getting a mixed bag of goods. Some patients
receive medical treatments that work well. Some patients receive
treatments that don't work well. In many cases, doctors and patients
don't have enough reliable evidence to know whether treatments work or
don't.
Of the $2 trillion spent on health in 2006, only \1/10\ of 1 percent
was spent to assess what works and what doesn't. At the Federal level,
only $15 million was directly appropriated to compare the effectiveness
of health interventions and services. People who purchase other goods--
anything from cars to computers--use information to compare the value
of the different products before they purchase. Physicians and patients
deserve better. We should devote more than \1/10\ of 1 percent of
health spending to study how well health goods and services actually
work.
Rapid innovation has led to an ever-changing array of new and
sometimes expensive technologies. The age of personalized medicine and
genetic engineering will provide even more choices for patients and
their physicians. Indeed, patients and physicians can face great
difficulty in choosing among treatment options.
But much of the information about those options is biased. Much
information about those options is of poor quality. And for many
treatments, there are large gaps in what is known to be most effective.
With a paucity of sound evidence, clinical guidelines and treatment
protocols can vary widely. If there has ever been a need for better
information--on what works, for which patients, under which
circumstances--it is in this age of rapid innovation of technology.
Several august bodies--including the Institute of Medicine, the
Medicare Payment Advisory Commission, and the Congressional Budget
Office--have called on Congress to create a national entity charged
with conducting research to determine what works in health care.
Today, I am proud to introduce the Comparative Effectiveness Research
Act of 2008. I am joined by the Chairman of the Budget Committee,
Senator Conrad. He and I share a deep concern about rising health care
costs. And we share a deep commitment to finding ways to address it.
This bill does what the experts suggest. It would create a new entity
responsible for generating better information on the effectiveness of
health care treatments.
Specifically, the bill would create a nonprofit corporation
responsible for setting national priorities for comparative
effectiveness research. The corporation, which would be called the
Health Care Comparative Effectiveness Research Institute, would be a
private entity. But it would be governed by a public-private sector
Board of Governors. It would not be an agency of the Federal
Government.
In addition to setting national priorities, the Institute would
provide for the conduct of research studies that answer the most
pressing questions about what works in health care. The Institute would
have the authority to contract with experienced Federal agencies, such
as the Agency for Healthcare Research and Quality, or AHRQ, and the
National Institutes for Health, or NIH, or with private researchers if
appropriate, for the conduct of the actual research. The Institute
would also be charged with disseminating the findings of the research
in ways that patients and providers can understand.
The Institute would be required to assess the full spectrum of health
interventions, including pharmaceuticals, medical devices, medical
procedures, medical services, and other therapies. This type of
research is often called ``comparative effectiveness research,''
because it evaluates and compares the clinical effect of alternative
medical treatments. This type of research provides better quality
evidence concerning the best treatment, prevention, and management of
the health conditions. Most importantly, this type of research helps
patients, providers, and payers of health care to make more informed
decisions.
While many experts have called for creation of a new entity, they do
not specify how the entity should be structured. This bill would create
a private, nonprofit institute rather than a new entity within the
executive branch or legislative. Keeping it private would remove the
potential for political influence on the development of national
research priorities. Comparative effectiveness research will be more
credible, and more useful, if it is done independently of political
influence and with broad stakeholder input.
This bill includes stringent requirements for public input,
transparency of process and findings, and integrity of the research.
For example, the Institute would be required to publish its rules,
proceedings, and reports on a public Internet site. Its meetings would
be open to the public. It would be required to provide public comment
periods at key stages, in addition to open forums to solicit and obtain
public input on the Institute's activities.
This bill would also require accountability and government oversight
of finances and the mission. The Institute would be subject to annual
financial audits. And the Comptroller General would perform periodic
audits of the activities of the Institute to ensure that the Institute
would meet its statutory mission and would do so in a fair, open, and
credible way.
Finally, this bill would provide a stable source of funding for the
Institute. For the first 3 years, general revenues would be used to
start up the Institute. In the 4th year, funding would move to an all-
payer system--from both public and private sources. Annual
contributions would be made from the Medicare Trust Funds, from
revenues generated by a fee on private health insurance policies, and
from general revenues. The work of the new Institute would benefit
Americans who receive health care through the public and private
sources. Therefore, public and private sources should contribute to
this type of research. The private insurance fee would be $1 per
insured person per year. Funding from Medicare would also be $1 per
beneficiary per year.
All sources of funding for the Institute would sunset after 10 years.
That

[[Page S7961]]

way, Congress could review a report from the Comptroller General on the
value of the research to the public and private insurance sectors.
Total funding for the first year would be $5 million, and funding would
increase to $300 million a year by the year 2013.
It is high time that America invested more than a fraction of a
percent to generate knowledge about what works in health care, to
improve the efficiency and the quality of our health care system, and
to give patients and doctors better information to make treatment
decisions. It is high time that we built a foundation of evidence for
the trillions of dollars spent on health in America each year.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 3408

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Comparative Effectiveness
Research Act of 2008''.

SEC. 2. COMPARATIVE EFFECTIVENESS RESEARCH.

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

``Part D--Comparative Effectiveness Research

``comparative effectiveness research

``Sec. 1181. (a) Definitions.--In this section:
``(1) Board.--The term `Board' means the Board of Governors
established under subsection (f).
``(2) Comparative clinical effectiveness research.--
``(A) In general.--The term `comparative clinical
effectiveness research' means research evaluating and
comparing the clinical effectiveness, risks, and benefits of
2 or more medical treatments, services, and items described
in subparagraph (B).
``(B) Medical treatments, services, and items described.--
The medical treatments, services, and items described in this
subparagraph are health care interventions, protocols for
treatment, procedures, medical devices, diagnostic tools,
pharmaceuticals (including drugs and biologicals), and any
other processes or items being used in the treatment and
diagnosis of, or prevention of illness or injury in,
patients.
``(3) Comparative effectiveness research.--The term
`comparative effectiveness research' means research
evaluating and comparing the implications and outcomes of 2
or more health care strategies to address a particular
medical condition.
``(4) Conflicts of interest.--The term `conflicts of
interest' means associations, including financial and
personal, that may be reasonably assumed to have the
potential to bias an individual's decisions in matters
related to the Institute or the conduct of activities under
this section.
``(5) Institute.--The term `Institute' means the `Health
Care Comparative Effectiveness Research Institute'
established under subsection (b)(1).
``(b) Health Care Comparative Effectiveness Research
Institute.--
``(1) Establishment.--There is authorized to be established
a nonprofit corporation, to be known as the ``Health Care
Comparative Effectiveness Research Institute'' which is
neither an agency nor establishment of the United States
Government.
``(2) Application of provisions.--The Institute shall be
subject to the provisions of this section, and, to the extent
consistent with this section, to the District of Columbia
Nonprofit Corporation Act.
``(3) Funding of comparative effectiveness research.--For
fiscal year 2009 and each subsequent fiscal year, amounts in
the Comparative Effectiveness Research Trust Fund (referred
to in this section as the `CERTF') under section 9511 of the
Internal Revenue Code of 1986 shall be available, without
further appropriation, to the Institute to carry out this
section.
``(c) Purpose.--The purpose of the Institute is to improve
health care delivered to individuals in the United States by
advancing the quality and thoroughness of evidence concerning
the manner in which diseases, disorders, and other health
conditions can effectively and appropriately be prevented,
diagnosed, treated, and managed clinically through research
and evidence synthesis, and the dissemination of research
findings with respect to the relative outcomes,
effectiveness, and appropriateness of the medical treatments,
services, and items described in subsection (a)(2)(B).
``(d) Duties.--
``(1) Identifying research priorities and establishing
research project agenda.--
``(A) Identifying research priorities.--The Institute shall
identify national priorities for comparative clinical
effectiveness research, taking into account factors,
including--
``(i) disease incidence, prevalence, and burden in the
United States;
``(ii) evidence gaps in terms of clinical outcomes;
``(iii) practice variations, including variations in
delivery and outcomes by geography, treatment site, provider
type, and patient subgroup;
``(iv) the potential for new evidence concerning certain
categories of health care services or treatments to improve
patient health and well-being, and the quality of care; and
``(v) the effect or potential for an effect on health
expenditures associated with a health condition or the use of
a particular medical treatment, service, or item.
``(B) Establishing research project agenda.--
``(i) In general.--The Institute shall establish and update
a research project agenda to address the priorities
identified under subparagraph (A), taking into consideration
the types of research that might address each priority and
the relative value (determined based on the cost of
conducting such research compared to the potential usefulness
of the information produced by such research) associated with
such different types of research, and such other factors as
the Institute determines appropriate.
``(ii) Consideration of need to conduct a systematic
review.--In establishing and updating the research project
agenda under clause (i), the Institute shall consider the
need to conduct a systematic review of existing research
before providing for the conduct of new research under
paragraph (2)(A).
``(2) Carrying out research project agenda.--
``(A) Comparative clinical effectiveness research.--In
carrying out the research project agenda established under
paragraph (1)(B), the Institute shall provide for the conduct
of appropriate research and the synthesis of evidence, in
accordance with the methodological standards adopted under
paragraph (9), using methods, including the following:
``(i) Systematic reviews and assessments of existing
research and evidence.
``(ii) Clinical research, such as randomized controlled
trials and observational studies.
``(iii) Any other methodologies recommended by the
methodology committee established under paragraph (6) that
are adopted by the Board under paragraph (9).
``(B)(i) Contracts with federal agencies and
instrumentalities.--The Institute shall give preference to
agencies and instrumentalities of the Federal Government that
have experience in conducting comparative clinical
effectiveness research, such as the Agency for Healthcare
Research and Quality, when entering into contracts for the
management and conduct of research in accordance with the
research project agenda established under paragraph (1)(B),
to the extent that such contracts are authorized under the
governing statutes of such agencies and instrumentalities.
``(ii) Contracts with other entities.--The Institute may
enter into contracts with appropriate private sector research
or study-conducting entities for the conduct of research
described in clause (i).
``(iii) Conditions for contracts.--A contract entered into
under this subparagraph shall require that the agency,
instrumentality, or other entity--
``(I) abide by the transparency and conflicts of interest
requirements that apply to the Institute with respect to the
research managed or conducted under such contract;
``(II) comply with the methodological standards adopted
under paragraph (9) with respect to such research; and
``(III) take into consideration public comments on the
study design that are transmitted by the Institute to the
agency, instrumentality, or other entity under subsection
(i)(1)(B) during the finalization of the study design and
transmit responses to such comments to the Institute, which
will publish such comments, responses, and finalized study
design in accordance with subsection (i)(3)(A)(iii) prior to
the conduct of such research.
``(iv) Coverage of copayments or coinsurance.--A contract
entered into under this subparagraph may allow for the
coverage of copayments or co-insurance, or allow for other
appropriate measures, to the extent that such coverage or
other measures are necessary to preserve the validity of a
research project, such as in the case where the research
project must be blinded.
``(C) Review and update of evidence.--The Institute shall
review and update evidence on a periodic basis, in order to
take into account new research and evolving evidence as they
become available, as appropriate.
``(D) Taking into account potential differences.--Research
shall--
``(i) be designed, as appropriate, to take into account the
potential for differences in the effectiveness of health care
treatments, services, and items as used with various
subpopulations, such as racial and ethnic minorities, women,
different age groups, and individuals with different
comorbidities; and
``(ii) seek to include members of such subpopulations as
subjects in the research as feasible and appropriate.
``(3) Study and report on feasibility of conducting
research in-house.--
``(A) Study.--The Institute shall conduct a study on the
feasibility of conducting research in-house.
``(B) Report.--Not later than 5 years after the date of
enactment of this section, the Institute shall submit a
report to Congress containing the results of the study
conducted under subparagraph (A).

[[Page S7962]]

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

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

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

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

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

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

``(iii) Conduct of examinations.--The methodology committee
shall contract with the Institute of Medicine of the National
Academies for the conduct of the examinations described in
subclauses (I) and (II) of subparagraph (C)(ii).
``(E) Reports.--The methodology committee shall submit
reports to the Board on the committee's performance of the
functions described in subparagraph (C). Reports submitted
under the preceding sentence with respect to the functions
described in clause (i) of such subparagraph shall contain
recommendations--
``(i) for the Institute to adopt methodological standards
developed and updated by the methodology committee under such
subparagraph; and
``(ii) for such other action as the methodology committee
determines is necessary to comply with such methodological
standards.
``(7) Providing for a peer-review process.--
``(A) In general.--The Institute shall ensure that there is
a process for peer review of the research conducted under
this section. Under such process--
``(i) evidence from research conducted under this section
shall be reviewed to assess scientific integrity and
adherence to methodological standards adopted under paragraph
(9); and
``(ii) a list of the names of individuals contributing to
any peer-review process during the preceding year or years
shall be made public and included in annual reports in
accordance with paragraph (11)(D).
``(B) Composition.--Such peer-review process shall have
been designed in a manner so as to avoid bias and conflicts
of interest on the part of the reviewers and shall be
composed of experts in the scientific field relevant to the
research under review.
``(C) Use of existing processes.--In the case where the
Institute enters into a contract or other agreement with
another entity for the conduct or management of research
under this section, the Institute may utilize the peer-review
process of such entity if such process meets the requirements
under subparagraphs (A) and (B).
``(8) Dissemination of research findings.--
``(A) In general.--The Institute shall disseminate research
findings to clinicians, patients, and the general public in
accordance with the dissemination protocols and strategies
adopted under paragraph (9). Research findings disseminated--
``(i) shall convey findings of research so that they are
comprehensible and useful to patients and providers in making
health care decisions;
``(ii) shall discuss findings and other considerations
specific to certain subpopulations, risk factors, and
comorbidities, as appropriate;
``(iii) shall include considerations such as limitations of
research and what further research may be needed, as
appropriate;
``(iv) shall not include practice guidelines or policy
recommendations; and
``(v) shall not include any data the dissemination of which
would violate the privacy of research participants or violate
any confidentiality agreements made with respect to the use
of data under this section.
``(B) Dissemination protocols and strategies.--The
Institute shall develop protocols and strategies for the
appropriate dissemination of research findings in order to
ensure effective communication of such findings and the use
and incorporation of such findings into relevant activities
for the purpose of informing higher quality and more
effective and efficient decisions regarding medical
treatments, services, and items. In developing and adopting
such protocols and strategies, the Institute shall consult
with stakeholders concerning the types of dissemination that
will be most useful to the end users of the information and
may provide for the utilization of multiple formats for
conveying findings to different audiences.
``(C) Definition of research findings.--In this paragraph,
the term `research findings' means the results of a study,
appraisal, or assessment.
``(9) Adoption.--Subject to subsection (i)(1)(A)(i), the
Institute shall adopt the national priorities identified
under paragraph (1)(A), the research project agenda
established under paragraph (1)(B), the methodological
standards developed and updated by the methodology committee
under paragraph (6)(C)(i), any peer-review process provided
under paragraph (7), and dissemination protocols and
strategies developed under paragraph (8)(B) by majority vote.
In the case where the Institute does not adopt such national
priorities, research project agenda, methodological
standards, peer-review process, or dissemination protocols
and strategies in accordance with the preceding sentence, the
national priorities, research project agenda, methodological
standards, peer-review process, or dissemination protocols
and strategies shall be referred to the appropriate staff or
entity within the Institute (or, in the case of the
methodological standards, the methodology committee) for
further review.
``(10) Coordination of research and resources and building
capacity for research.--
``(A) Coordination of research and resources.--The
Institute shall coordinate research conducted, commissioned,
or otherwise funded under this section with comparative
clinical effectiveness and other relevant research and
related efforts conducted by public and private agencies and
organizations in order to ensure the most efficient use of
the Institute's resources and that research is not duplicated
unnecessarily.
``(B) Building capacity for research.--The Institute may
build capacity for comparative clinical effectiveness
research and other relevant research and related efforts
through appropriate activities, such as making payments, up
to 5 percent of the amounts appropriated or credited to the
CERTF under section 9511(b) of the Internal Revenue Code of
1986 with respect to the fiscal year, to The Cochrane
Collaboration (or a successor organization) to support the
infrastructure of The Cochrane Collaboration (or a successor

[[Page S7963]]

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

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

``(iv) 3 members representing private payers, of whom at
least 1 member shall represent health insurance issuers and
at least 1 member shall represent employers who self-insure
employee benefits.
``(v) 3 members representing pharmaceutical, device, and
technology manufacturers or developers.
``(vi) 1 member representing nonprofit organizations
involved in health services research.
``(vii) 1 member representing organizations that focus on
quality measurement and improvement or decision support.
``(viii) 1 member representing independent health services
researchers.
``(2) Qualifications.--
``(A) Diverse representation of perspectives.--The Board
shall represent a broad range of perspectives and
collectively have scientific expertise in clinical health
sciences research, including epidemiology, decisions
sciences, health economics, and statistics.
``(B) Conflicts of interest.--
``(i) In general.--In appointing members of the Board under
paragraph (1)(D), the Comptroller General of the United
States shall take into consideration any conflicts of
interest of potential appointees. Any conflicts of interest
of members appointed to the Board under paragraph (1) shall
be disclosed in accordance with subsection (i)(4)(B).
``(ii) Recusal.--A member of the Board shall be recused
from participating with respect to a particular research
project or other matter considered by the Board in carrying
out its research project agenda under subsection (d)(2) in
the case where the member (or an immediate family member of
such member) has a financial or personal interest directly
related to the research project or the matter that could
affect or be affected by such participation.
``(3) Terms.--
``(A) In general.--A member of the Board appointed under
paragraph (1)(D) shall be appointed for a term of 6 years,
except with respect to the members first appointed under such
paragraph--
``(i) 6 shall be appointed for a term of 6 years;
``(ii) 6 shall be appointed for a term of 4 years; and
``(iii) 6 shall be appointed for a term of 2 years.
``(B) Limitation.--No individual shall be appointed to the
Board under paragraph (1)(D) for more than 2 terms.
``(C) Expiration of term.--Any member of the Board whose
term has expired may serve until such member's successor has
taken office, or until the end of the calendar year in which
such member's term has expired, whichever is earlier.
``(D) Vacancies.--
``(i) In general.--Any member appointed to fill a vacancy
prior to the expiration of the term for which such member's
predecessor was appointed shall be appointed for the
remainder of such term.
``(ii) Vacancies not to affect power of board.--A vacancy
on the Board shall not affect its powers, but shall be filled
in the same manner as the original appointment was made.
``(4) Chairperson and vice-chairperson.--
``(A) In general.--The Comptroller General of the United
States shall designate a Chairperson and Vice-Chairperson of
the Board from among the members of the Board appointed under
paragraph (1)(D).
``(B) Term.--The members so designated shall serve as
Chairperson and Vice-Chairperson of the Board for a period of
3 years.
``(5) Compensation.--
``(A) In general.--A member of the Board shall be entitled
to compensation at the per diem equivalent of the rate
provided for level IV of the Executive Schedule under section
5315 of title 5, United States Code.
``(B) Travel expenses.--While away from home or regular
place of business in the performance of duties for the Board,
each member of the Board may receive reasonable travel,
subsistence, and other necessary expenses.
``(6) Director and staff; experts and consultants.--The
Board may--
``(A) employ and fix the compensation of an executive
director and such other personnel as may be necessary to
carry out the duties of the Institute;
``(B) seek such assistance and support as may be required
in the performance of the duties of the Institute from
appropriate departments and agencies of the Federal
Government;
``(C) enter into contracts or make other arrangements and
make such payments as may be necessary for performance of the
duties of the Institute;
``(D) provide travel, subsistence, and per diem
compensation for individuals performing the duties of the
Institute, including members of any advisory panel appointed
under subsection (d)(5), members of the methodology committee
established under subsection (d)(6), and individuals selected
to contribute to any peer-review process under subsection
(d)(7); and
``(E) prescribe such rules, regulations, and bylaws as the
Board determines necessary with respect to the internal
organization and operation of the Institute.
``(7) Meetings and hearings.--The Board shall meet and hold
hearings at the call of the Chairperson or a majority of its
members. In the case where the Board is meeting on matters
not related to personnel, Board meetings shall be open to the
public and advertised.
``(8) Quorum.--A majority of the members of the Board shall
constitute a quorum for purposes of conducting the duties of
the Institute, but a lesser number of members may meet and
hold hearings.
``(g) Financial Oversight.--
``(1) Contract for audit.--The Institute shall provide for
the conduct of financial audits of the Institute on an annual
basis by a private entity with expertise in conducting
financial audits.
``(2) Review of audit and report to congress.--The
Comptroller General of the United States shall--
``(A) review the results of the audits conducted under
paragraph (1); and
``(B) submit a report to Congress containing the results of
such audits and review.
``(h) Governmental Oversight.--

[[Page S7964]]

``(1) Review and reports.--
``(A) In general.--The Comptroller General of the United
States shall review the following:
``(i) Processes established by the Institute, including
those with respect to the identification of research
priorities under subsection (d)(1)(A) and the conduct of
research projects under this section. Such review shall
determine whether information produced by such research
projects--

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

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

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

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

``trust fund transfers to comparative effectiveness research trust fund

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

[[Page S7965]]

(1) Establishment of trust fund.--
(A) In general.--Subchapter A of chapter 98 of the Internal
Revenue Code of 1986 (relating to establishment of trust
funds) is amended by adding at the end the following new
section:

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

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

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

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

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

``SEC. 4375. HEALTH INSURANCE.

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

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

``(a) Imposition of Fee.--In the case of any applicable
self-insured health plan for each plan year ending after
September 30, 2011, there is hereby imposed a fee equal to $1
(50 cents in the case of plan years ending during fiscal year
2012) multiplied by the average number of lives covered under
the plan.
``(b) Liability for Fee.--
``(1) In general.--The fee imposed by subsection (a) shall
be paid by the plan sponsor.
``(2) Plan sponsor.--For purposes of paragraph (1) the term
`plan sponsor' means--
``(A) the employer in the case of a plan established or
maintained by a single employer,
``(B) the employee organization in the case of a plan
established or maintained by an employee organization,
``(C) in the case of--
``(i) a plan established or maintained by 2 or more
employers or jointly by 1 or more employers and 1 or more
employee organizations,
``(ii) a multiple employer welfare arrangement, or
``(iii) a voluntary employees' beneficiary association
described in section 501(c)(9),
the association, committee, joint board of trustees, or other
similar group of representatives of the parties who establish
or maintain the plan, or
``(D) the cooperative or association described in
subsection (c)(2)(F) in the case of a plan established or
maintained by such a cooperative or association.
``(c) Applicable Self-Insured Health Plan.--For purposes of
this section, the term `applicable self-insured health plan'
means any plan for providing accident or health coverage if--
``(1) any portion of such coverage is provided other than
through an insurance policy, and
``(2) such plan is established or maintained--
``(A) by one or more employers for the benefit of their
employees or former employees,
``(B) by one or more employee organizations for the benefit
of their members or former members,
``(C) jointly by 1 or more employers and 1 or more employee
organizations for the benefit of employees or former
employees,
``(D) by a voluntary employees' beneficiary association
described in section 501(c)(9),
``(E) by any organization described in section 501(c)(6),
or
``(F) in the case of a plan not described in the preceding
subparagraphs, by a multiple employer welfare arrangement (as
defined in section 3(40) of Employee Retirement Income
Security Act of 1974), a rural electric cooperative (as
defined in section 3(40)(B)(iv) of such Act), or a rural
telephone cooperative association (as defined in section
3(40)(B)(v) of such Act).
``(d) Adjustments for Increases in Health Care Spending.--
In the case of any plan year ending in any fiscal year
beginning after September 30, 2013, the dollar amount in
effect under subsection (a) for such plan year shall be equal
to the sum of such dollar amount for plan years ending in the
previous fiscal year (determined after the application of
this subsection), plus an amount equal to the product of--
``(1) such dollar amount for plan years ending in the
previous fiscal year, multiplied by
``(2) the percentage increase in the projected per capita
amount of National Health Expenditures from the calendar year
in which the previous fiscal year ends to the calendar year
in which the fiscal year involved ends, as most recently
published by the Secretary of Health and Human Services
before the beginning of the fiscal year.

[[Page S7966]]

``(e) Termination.--This section shall not apply to plan
years ending after September 30, 2018.

``SEC. 4377. DEFINITIONS AND SPECIAL RULES.

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

``CHAPTER 34--TAXES ON CERTAIN INSURANCE POLICIES

``subchapter a. policies issued by foreign insurers

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

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

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

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

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

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

Mr. CONRAD. Mr. President, today I join my good friend and colleague,
Senator Baucus, in introducing the Comparative Effectiveness Research
Act of 2008. This proposal is the product of months of careful
deliberations regarding the best way to expand the quality and quantity
of evidence available to health consumers about the comparative
clinical effectiveness of health care services and treatments. We have
met with dozens of key stakeholders and thought leaders to discuss
various aspects of this legislation. I am proud of the result. This
legislation lays the groundwork for improving health care outcomes,
enhancing patient safety, and reducing overall health care costs in the
long-run.
As chairman of the Senate Budget Committee, I am acutely aware of the
long-term budget challenges facing our nation. Health care spending is
growing at an unsustainable rate. Although demographic changes
associated with the retirement of the baby boom generation contribute
to this spending growth, the most significant factor is growth in
health care costs in excess of per capita GDP growth. According to
Congressional Budget Office projections, by 2050, Medicare and Medicaid
spending alone will consume 12 percent of our Nation's gross domestic
product.
But excess growth in per capita health care costs is not just a
challenge for Federal health spending and the federal budget. If we
continue on the current trajectory, the private sector will also be
overwhelmed by rising health care costs. In fact, total health care
spending is projected to grow from about 16 percent of GDP in 2007--
which is far higher than in other industrialized countries--to more
than 37 percent of GDP in 2050.
Clearly, we need to address the underlying causes of rising health
care costs, not just in the Medicare and Medicaid programs, but in the
overall health care system. Simply cutting Medicare and Medicaid
without making other changes will do little to solve the larger problem
we face. As GAO Comptroller General David Walker pointed out in
testimony before the House Budget Committee, in 2005, ``[F]ederal
health spending trends should not be viewed in isolation from the
health care system as a whole . . . . Rather, in order to address the
long-term fiscal challenge, it will be necessary to find approaches
that deal with health care cost growth in the overall health care
system.''
A key problem we must confront is that our health care system does
not deliver care as efficiently or effectively as it should. In fact,
the United States spends far more on health expenditures as a percent
of GDP than any other country in the Organization for Economic
Cooperation and Development. For example, the United States spent 16
percent of GDP on health expenditures in 2006, compared to 9 percent in
Italy. And the disparity is even starker today. Despite this additional
health care spending, health outcomes in the United States are no
better than health outcomes in the other OECD countries. In fact, by
some measures, they are worse.
We can and must find ways to deliver health care more efficiently,
reduce ineffective or unnecessary care, and get better health outcomes
without harming patients.
One solution is to generate better information about the relative
effectiveness of alternative health strategies--and encourage patients
and providers to use that information to make better choices about
their health. Many newer, more expensive health care services and
treatments are absorbed quickly into routine medical care--yet there is
little evidence that these services and treatments are any more
clinically effective than existing treatments and services.

The Federal Government currently funds some comparative effectiveness
research through the Agency for Healthcare Research and Quality. The
Effective Health Care Program has been a successful initiative, and we
commend AHRQ for its work, but comparative effectiveness research is
not the primary focus of any federal agency--nor is this federal
funding occurring on a large-scale. The Congressional Budget Office,
CBO, the Medicare Payment Advisory Commission, MedPAC, and the
Institute of Medicine, IOM, have all discussed the positive impact of
creating a new entity charged solely with conducting research on the
comparative effectiveness of health interventions, including
pharmaceuticals, medical devices, medical procedures, diagnostic tools,
medical services and other therapies.
In its June 2007 report to Congress, MedPAC issued a unanimous
recommendation that ``Congress should charge an independent entity to
sponsor credible research on comparative effectiveness of health care
services and disseminate this information to patients, providers, and
public and private payers.''
And the Congressional Budget Office agrees. In a recent report,
entitled, ``Research on the Comparative Effectiveness of Medical
Treatments: Issues and Options for an Expanded Federal

[[Page S7967]]

Role,'' CBO Director Peter Orszag wrote that, ``generating better
information about the costs and benefits of different treatment
options--through research on the comparative effectiveness of those
options--could help reduce health care spending without adversely
affecting health overall.''
The IOM also supports getting better information into the hands of
patients and providers. As part of its report, ``Learning What Works
Best: The Nation's Need for Evidence on Comparative Effectiveness in
Health Care,'' the Institute concluded that,
``[a] substantially increased capacity to conduct and evaluate research
on clinical effectiveness of interventions brings many potential
opportunities for improvement across a wide spectrum of healthcare
needs.''
This bill that Senator Baucus and I are introducing today represents
an important step in expanding comparative effectiveness research. The
bill would significantly expand the conduct of comparative clinical
effectiveness research to get better information into the hands of
patients and providers in the hopes of improving health outcomes and
reducing unnecessary or ineffective care.
The purpose of this bill is to provide health care providers and
patients with objective and credible evidence about which health care
treatments, services, and items are most clinically effective for
particular patient populations. The research conducted under our bill
would evaluate and compare the clinical effectiveness of two or more
health care interventions, treatment protocols, procedures, medical
devices, diagnostic tools, pharmaceuticals, and other processes or
items used in the treatment or diagnosis of patients. Access to better
evidence about what works best will help patients and health care
providers make better-informed decisions about how best to treat
particular diseases and conditions. Our hope is that the evidence
generated by this research could lead to savings in the overall health
care system over the long-term by allowing providers to avoid
treatments that may be clinically ineffective, while at the same time
improving health care outcomes.
Specifically, our bill creates a private, nonprofit corporation,
known as the Health Care Comparative Effectiveness Research Institute,
which would be responsible for organizing and implementing a national
comparative effectiveness research agenda. In conducting the research,
the Institute would contract with the Agency for Healthcare Research
and Quality, the National Institutes of Health and other appropriate
public and private entities and could use a variety of research
methods, including clinical trials, observational studies and
systematic reviews of existing evidence.
Many thought leaders on this issue, such as the Medicare Payment
Advisory Committee, had concerns that a large entity within the Federal
Government would be vulnerable to political interference that could
hamper the Institute's credibility, and, therefore, limit the
usefulness of its research. As a result, we chose a model outside of
the Federal Government, but subject to government oversight.
In order to ensure that the information developed is credible and
unbiased, our bill establishes a 21-Member Board of Governors to
oversee the Institute's activities. Permanent board members would
include the Secretary of Health and Human Services and the Directors of
the Agency for Healthcare Research and Quality and the National
Institutes of Health, NIH. The remaining 18 board members would be
appointed by the Comptroller General of the United States and would
include a balanced mix of patients, physicians, drug, device, and
technology manufacturers, public and private payers, academic
researchers, philanthropic organizations and quality improvement
entities.
To ensure further credibility, the Institute is also required to
appoint advisory panels of patients, clinicians, and other stakeholders
that would assist in the development and carrying out of the research
agenda; establish a methodology committee that would help create
standards by which all research commissioned by the Institute must be
conducted; create a peer review process through which all research
findings must be assessed; and develop protocols to help translate and
disseminate the evidence in the most effective, user-friendly way.
Moreover, Senator Baucus and I want to ensure that the operations of
the Institute are transparent. Therefore, we built in a strong role for
public comment prior to all key decisions made by the Institute. For
example, the bill requires public comment periods prior to the approval
of the overall research agenda and the individual study designs. In
addition, the bill calls for periodic public forums to seek input,
requires that all proceedings of the Institute be made public and
available through annual reports, and requires that any conflicts of
interest be made public and that board members recuse themselves from
matters in which they have a financial or personal interest.
Because all health care users will benefit from this research, our
legislation funds the Institute with contributions from both public and
private payers. These contributions will include mandatory general
revenues from the Federal Government, amounts from the Medicare Trust
Funds equal to $1 per beneficiary annually, and amounts from a $1 fee
per-covered life assessed annually on insured and self-insured health
plans. Funding will ramp up over a series of years. By the fifth year,
we expect the Institute's total annual funding to exceed $300 million
per year and continue to grow thereafter.
The concept of an all-payer approach for comparative effectiveness
research has been embraced by a number of health care experts. For
example, on the subject of comparative effectiveness information in its
June 2008 report, MedPAC stated: ``The Commission supports funding from
federal and private sources as the research findings will benefit all
users--patients, providers, private health plans, and federal health
programs. The Commission also supports a dedicated funding mechanism to
help ensure the entity's independence and stability. Dedicated broadly
based financing would reduce the likelihood of outside influence and
would best ensure the entity's stability . . .''

To ensure accountability for these funds and to the Institute's
mission, our bill requires an annual financial audit of the Institute.
In addition, the bill requires GAO to report to Congress every five
years on the processes developed by the Institute and its overall
effectiveness, including how the research findings are used by health
care consumers and what impact the research is having on the health
economy. Finally, the bill requires a review after eight years of the
adequacy of the Institute's funding, which will include a review of the
appropriateness and adequacy of each funding source.
Let me take a moment to address some of the criticisms that might be
levied against this proposal. Some may say this Institute will impede
access to care and will deny coverage for high-cost health care
services. That is not the case. Our proposal explicitly prohibits the
Institute from making coverage decisions or setting practice
guidelines. It will be up to specialty societies and patient groups to
use the research findings as they see fit. Moreover, to the extent that
high-cost health care services or new technologies are studied by the
Institute and found to be clinically ineffective compared to other
services and technologies, such evidence will be made public to
consumers and providers so that they can make the best possible health
care decisions. Other critics may claim that this proposal will result
in one-size-fits-all approach to comparative clinical effectiveness
research. We recognize that different health care treatments may have
different levels of effectiveness for different subpopulations. That is
why our bill requires that the Institute's research be designed, as
appropriate, to take into account the potential differences in the
effectiveness of health care services as used with various
subpopulations, such as women, racial and ethnic minorities, different
age groups, and individuals with different comorbidities.
This bill is a balanced, carefully crafted proposal that has taken
into consideration the recommendations of a broad range of stakeholders
and thought-leaders. We welcome further discussion and suggested
improvements. But we refuse to allow this proposal to get bogged down
in political

[[Page S7968]]

maneuvering or scare tactics. Our nation needs to ramp up comparative
effectiveness research immediately to improve health outcomes and
reduce ineffective and inefficient care.
Senator Baucus and I will work jointly to push for the expeditious
enactment of this bill. I urge all of my colleagues to join our effort
and cosponsor the Comparative Effectiveness Research Act of 2008. There
is no time to waste.
______

By Mr. REID (for Mr. Kennedy (for himself and Mr. Grassley)):
S. 3409. A bill to amend the Federal Food, Drug, and Cosmetic Act to
ensure the safety and quality of medical products and enhance the
authorities of the Food and Drug Administration, and for other
purposes; to the Committee on Health, Education, Labor, and Pensions.
Mr. GRASSLEY. Mr. President, as Ranking Member of the Senate Finance
Committee, I view my role as working to ensure the safety and well-
being of the more than 80 million Americans who are beneficiaries of
the Medicare and Medicaid programs. These programs spend a lot of
taxpayers' money on prescription drugs and medical devices, and that
money should be spent on drugs and devices that are safe and effective.
Over the last four years I have conducted extensive oversight of the
Food and Drug Administration. I have reviewed and questioned how the
FDA handles the pre-market review and post-market surveillance of
drugs, biologics, devices and veterinary medicines to assess whether or
not the agency is fulfilling its mission to protect the public health.
As a result of my oversight activities, I identified serious problems
at the FDA that included the quashing of scientific opinion within the
agency, delays in informing the public of emerging safety problems, too
cozy a relationship between the FDA and the industries it is supposed
to regulate, and a failure to be adequately transparent and accountable
to the public.
Last year, when the Senate Health, Education, Labor, and Pensions
Committee and the House Energy and Commerce Committee were working on
FDA legislation, I encouraged them to take that opportunity to reform,
improve, and re-establish the FDA as the gold standard for drug safety.
I believed the FDA needed additional tools, resources, and authorities
to do its work.
The Congress passed the Food and Drug Administration Amendments Act
last September. While we did not fix a fundamental problem at the FDA
that's been shown through my investigations over the last few years,
the new legislation did provide additional tools in FDA's toolbox to
better protect the American people. It was a positive step toward
restoring the public's trust in the FDA.
Today, I am here to talk about another FDA bill. Last summer, I
started examining FDA's program for inspection of foreign
pharmaceutical manufacturing plants. I expressed concerns to the FDA
regarding, among other things, inspection funding, emerging exporters,
and weaknesses in the inspection process.
An increasing amount of the drugs and active pharmaceutical
ingredients (API) Americans use are being manufactured in foreign
countries. Yet, as reported by the Government Accountability Office in
November 2007, the Food and Drug Administration does not know how many
foreign establishments are subject to inspection and the agency
conducts relatively few inspections each year.
From fiscal year 2002 through fiscal year 2007, the FDA conducted
fewer than 1,400 inspections of foreign pharmaceutical facilities,
often focused in countries with few reported quality concerns. In
China, the world's largest producer of active pharmaceutical
ingredients, and where export safety appears to be a growing problem,
only 11 inspections were conducted during FY 2007, compared to 14 in
Switzerland, 18 in Germany, and 24 in France, all countries with
advanced regulatory infrastructures. I was troubled by these numbers.
Then came the wake-up call in January of this year. FDA announced
that Baxter International Inc. temporarily suspended production of its
blood thinner heparin because of an increase in the reports of adverse
events that may be associated with its drug. It was discovered that the
active ingredient in heparin was contaminated and that the ingredient
was produced at a facility in the People's Republic of China. Soon more
recalls were announced. After several months, the FDA established a
link between the contaminant found in heparin and the serious adverse
events seen in patients that were given heparin. FDA's investigation of
the source of the contamination highlighted significant weaknesses in
oversight of the production and supply chain.
With limited inspection resources, the FDA is charged with ensuring
the safety and efficacy of drugs and pharmaceutical ingredients
produced in nearly every corner of the globe. To make matters worse, as
the FDA's challenges multiply, its resources for foreign inspections
are shrinking. It is troubling that the FDA is grossly under-resourced
at a time when foreign production of drugs and active pharmaceutical
ingredients is growing at record rates. Adding to the difficulty of
this task, it appears that many foreign pharmaceutical plants register
with the FDA as a means to bolster their own standing and with no
intention of exporting products to the United States market.
That is why I am introducing the Drug and Device Accountability Act
today with Senator Kennedy, chairman of the Committee on Health,
Education, Labor, and Pensions.
This legislation would augment FDA's resources through the collection
of registration and inspection fees. The bill also expands the agency's
authority for ensuring the safety of drugs and medical devices,
including foreign manufactured drugs and devices, by expanding FDA's
authority to inspect foreign manufacturers and importers, allowing the
FDA to issue subpoenas, and allowing the FDA to detain a device or drug
when its inspectors have reason to believe the product is adulterated
or misbranded.
In addition, the bill includes a provision that expands on an
amendment I filed last spring to the Senate bill, S. 1082 Food and Drug
Administration Revitalization Act. That amendment provided for a
certification by drug manufacturers that the information submitted as
part of a new drug or supplemental application is accurate.
Under the Drug and Device Accountability Act, individuals responsible
for the submission of a drug or device application or a report related
to safety or effectiveness would have to certify that the application
or report is compliant with applicable regulations and not false or
misleading. Civil as well as criminal penalties could be imposed for
false or misleading certifications. I believe this is an important
provision, especially in light of the troubling findings presented in
the Journal of the American Medical Association in April. Based on a
review of documents from recent litigation involving the pain
medication Vioxx, the authors of those articles concluded that the
maker of Vioxx was not forthcoming in its communication with the Food
and Drug Administration about the mortality risks seen in clinical
trials of Vioxx conducted in patients with Alzheimer disease or
cognitive impairment.
Last year, Congress passed legislation that would strengthen FDA's
ability to act on emerging safety problems. Now we need legislation
that will enhance FDA's oversight of drugs and devices if the Agency is
to ensure that America's increasingly foreign-produced drug and device
supply is both safe and effective.
______

By Mr. AKAKA (for himself, Mr. Schumer, Mr. Lieberman, and Mr.
Inouye):
S. 3410. A bill to authorize a grant program to provide for expanded
access to mainstream financial institutions; to the Committee on
Banking, Housing, and Urban Affairs.
Mr. AKAKA. President, as a member of the Banking Committee, I have
worked to improve the financial literacy of our country. My interest in
financial literacy dates back to when my fourth grade teacher required
me to have a piggy bank. We were made to understand how money saved, a
little at a time, can grow into a large amount--enough to buy things
that would have been impossible to obtain without savings. My
experience with a piggy bank taught me important lessons about money
management that

[[Page S7969]]

have stayed with me throughout my life. More people need to be taught
these important lessons so that they are better able to manage their
resources.
Too many Americans lack basic financial literacy. Americans of all
ages and backgrounds face increasingly complex financial decisions as
members of the nation's workforce, managers of their families'
resources, and voting citizens. Many find these decisions confusing and
frustrating because they lack the tools necessary that would enable
them to make wise, personal choices about their finances.
Without a sufficient understanding of economics and personal finance,
individuals will not be able to appropriately manage their finances,
effectively evaluate credit opportunities, successfully invest for
long-term financial goals in an increasingly complex marketplace, or be
able to cope with difficult financial situations. Unfortunately, today
too many working families are struggling as they are confronted with
increases in energy and food costs or the loss of a job.
It is essential that we work toward improving education, consumer
protections, and empowering individuals and families through economic
and financial literacy in order to build stronger families, businesses,
and communities.
Today I am introducing the Improving Access to Mainstream Financial
Institutions Act of 2008. This bill provides economic empowerment and
educational opportunities for working families by helping bank the
unbanked. It will also encourage the use of mainstream financial
institutions for working families that need small loans. I thank my
cosponsors, Senators Schumer, Lieberman, and Inouye.
Millions of working families do not have a bank or credit union
account. The unbanked rely on alternative financial service providers
to obtain cash from checks, pay bills, and send remittances. Many of
the unbanked are low- and moderate-income families that can ill afford
to have their earnings diminished by reliance on these high-cost and
often predatory financial services. In addition, the unbanked are
unable to save securely to prepare for the loss of a job, a family
illness, a down payment on a first home, or education expenses.
My bill authorizes grants intended to help low- and moderate-income
unbanked individuals establish bank or credit union accounts. Providing
access to a bank or credit union account can empower families with
tremendous financial opportunities. An account at a bank or credit
union provides consumers with alternatives to rapid refund loans, check
cashing services, and lower cost remittances. In addition, bank and
credit union accounts provide access to saving and borrowing services.
Low- and moderate-income individuals are often challenged with a
number of barriers that limit their ability to open up and or maintain
accounts. Regular checking accounts may be too costly for some
consumers unable to maintain minimum balances or unable to afford
monthly fees. Poor credit histories may also hinder their ability to
open accounts. By providing federal resources for product development,
administration, outreach, and financial education, banks and credit
unions will be better able to reach out and bank the unbanked.
The second grant program authorized by my legislation provides
consumers with a lower cost, short term alternative to payday loans.
Payday loans are cash loans repaid by borrowers' postdated checks or
borrowers' authorizations to make electronic debits against existing
financial accounts. Payday loans often have triple digit interest rates
that range from 390 percent to 780 percent when expressed as an annual
percentage rate. Loan flipping, which is a common practice, is the
renewing of loans at maturity by paying additional fees without any
principal reduction. Loan flipping often leads to instances where the
fees paid for a payday loan well exceed the principal borrowed. This
situation often creates a cycle of debt that is hard to break.
There is a great need for working families to have access to
affordable small loans. My legislation would encourage banks and credit
unions to develop payday loan alternatives. Consumers who apply for
these loans would be provided with financial literacy and educational
opportunities. Loans extended to consumers under the grant would be
subject to the annual percentage rate promulgated by the National
Credit Union Administration's, NCUA, Loan Interest Rates, currently
capped at an annual percentage rate of 18 percent. Several credit
unions have developed similar products. One example is the Windward
Community Federal Credit Union in Kailua, on the island of Oahu, which
has developed an affordable alternative to payday loans to help the
U.S. Marines and the other members that they serve. I am very proud of
the work done by the staff of the Windward Community Federal Credit
Union. This program was developed with an NCUA grant. More working
families need access to affordable small loans. More needs to be done
to encourage mainstream financial service providers to develop
affordable small loan products. My legislation will help support the
development of affordable credit products at bank and credit unions.
Working families would be better off by going to their credit unions
and banks, mainstream financial services providers, than payday loan
shops.
I will work to enact this legislation so vital to empowering our
citizens. In our current, modern, complex economy, not having a bank or
credit union account severely hinders the ability of families to
improve their financial condition or help them navigate difficult
financial circumstances. Instead of borrowing money from payday lenders
at outrageous fees, we need to encourage people to utilize their credit
unions and banks for affordable small loans. Banks and credit unions
have the ability to make the lives of working families better by
helping them save, invest, and borrow at affordable rates.
Mr. President I ask unanimous consent that the text of the bill and
letters of support be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 3410

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Improving Access to
Mainstream Financial Institutions Act of 2008''.

SEC. 2. DEFINITIONS.

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

[[Page S7970]]

section 4 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b).

SEC. 3. EXPANDED ACCESS TO MAINSTREAM FINANCIAL INSTITUTIONS.

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

SEC. 4. LOW COST ALTERNATIVES TO PAYDAY LOANS.

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

SEC. 5. PROCEDURAL PROVISIONS.

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

SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

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

SEC. 7. REGULATIONS.

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

National Association of

Federal Credit Unions,

Arlington, VA, July 29, 2008.
Hon. Daniel Akaka,
U.S. Senate,
Washington, DC.
Dear Senator Akaka: I am writing on behalf of the National
Association of Federal Credit Unions (NAFCU), the only
national trade association that exclusively represents the
interests of our nation's Federal credit unions, to applaud
your leadership on working to get low- and moderate-income
unbanked individuals into mainstream financial institutions,
such as credit unions, and your continued commitment to
financial literacy as demonstrated in the Improving Access to
Mainstream Financial Institutions Act of 2008.
We believe it is important to help the unbanked set up
credit union accounts that will allow these individuals to
obtain the products and services that they need, such as
lower cost check cashing and remittance services, as well as
financial education to encourage savings and thank you for
your efforts to help this cause.
Unfortunately, payday lending has also increasingly become
a precarious problem for many Americans. People that find
themselves in sudden need of a financial boost and
individuals unfairly subjected to higher mortgage payments
with higher interest rates often rely on payday lenders to
help cover their bills. These types of loans can worsen their
current financial situation, making the consumer even more
dependent than before. Despite our greatest efforts to
prevent predatory lending in America, the evidence shows
these deceptive practices still occur. Predators continue to
target specific communities, such as low-income, minority,
elderly and, in recent findings, the men and women of the
United States military.
Luckily, credit unions continue to be part of the solution,
not the problem. Many credit unions offer alternative loan
programs that ensure the safety and financial reprieve that
their members need. These loan programs offer consumers small
unsecured loans with low interest rates and encourage
financial responsibility. We greatly appreciate your
continued support of these efforts.
NAFCU appreciates the opportunity to share our thoughts on
this legislation and strongly support your dedication to this
important matter. Please do not hesitate to contact me or
NAFCU's Associate Director of Legislative Affairs, Amanda
Slater at 703-522-4770 with any questions that you may have.
Sincerely,
Fred R. Becker, Jr.,
President/CEO.
____

Hawaii Credit Union League,

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

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

Hon. Senator Daniel Akaka,
Hart Senate Office Building,
Washington, DC.
Aloha Senator Akaka: The Council for Native Hawaiian
Advancement is a nonprofit network of over 100 Native
Hawaiian organizations. Its mission is to enhance the
cultural, economic and community development of Native
Hawaiians. We achieve our mission through policy advocacy,
grant training, consultancy, leadership development and
connecting resources to challenges in our communities.
We believe in policies that promote asset building that
empowers low and moderate income families to increase
financial asset management, home ownership and small business
development.
Senator, there is a clear need for intermediary programming
that helps low and moderate income families to connect with
financial services, including deposit and savings accounts,
as well as loan alternatives to high cost payday lending
practices.
CNHA has developed asset building products that are moving
families to financial self sufficiency. For example, we
developed the Homestead Individual Development Accounts
(HIDA) that is assisting 30 families to open savings accounts
at First Hawaiian Bank, provides financial education and
helps low income families to save toward the down payment on
a home purchase on Hawaiian trust lands. We also developed
the Home Ownership Assistance Program (HOAP), a statewide
program of the State of Hawaii, Department of Hawaiian Home
Lands to expand the reach and delivery of financial literacy
counseling to thousands of families.
Currently, we are in the process of developing a dedicated
Earned Income Tax Credit program to assist families in filing
for this important tax credit to claim wages they have
earned.

[[Page S7971]]

We support Federal legislation that will promote further
connections between families and banking services,
particularly, the ``unbanked''. We also know that payday
lending continues to be a detriment to families on the lowest
end of the income scale and would support assistance to place
alternatives to these loans in the community development
marketplace.
Mahalo for your consideration. If we can provide additional
information, please contact me at any time at 808.596.8155 or
via email at robinhawaiiancouncil.org.
Sincerely,
Robin Puanani Danner,
President and Chief Executive Officer.
____

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

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

By Mr. SANDERS (for himself, Mr. Obama, Mrs. Clinton, Mr.
Kennedy, Mr. Brown, Ms. Mikulski, Mr. Casey, Mrs. Boxer, Mr.
Durbin, and Mr. Inouye):
S. 3413. A bill to achieve access to comprehensive primary health
care services for all Americans and to improve primary care delivery
through an expansion of the community health center and National Health
Service Corps programs; to the Committee on Health, Education, Labor,
and Pensions.
Mr. SANDERS. Mr. President, today there is some good news and some
bad news. The bad news is that oil is at $123 a barrel and working
people are paying $4 for a gallon of gas, and this coming winter
residents of the Northeast could be paying over $5 for a gallon of
heating oil.
But, there is some good news. Today, the CEOs of ExxonMobil, Shell,
BP and ConocoPhillips are celebrating. They're feeling pretty good.
And, they have good reason to feel that way.
ExxonMobil reported today that it made over $11.68 billion in profits
over the 2nd quarter alone, breaking its own record for the largest
quarterly profit of any American company in the history of the world.
But, ExxonMobil is not alone. Shell's 2nd quarter profit jumped by 33
percent to $11.56 billion; and BP's 2nd quarter profit jumped by 28
percent.
As a matter of fact, since George W. Bush and Dick Cheney have been
in office, the five largest oil companies have made over $640 billion
in profits. This includes $212 billion for ExxonMobil; $157 billion for
Shell; $125 billion for BP; $80 billion for ChevronTexaco; and $66
billion for ConocoPhillips.
Believe it or not, the Big 5 oil companies made more profits during
the 2nd quarter, than they did during the entire year of 2002.
Now, with the exception of my Republican friends here in Congress,
there are very few people in this country who believe the oil companies
give one hoot about the well-being of the American people. Our
Republican friends are saying that if we just give these huge oil
companies more acres offshore to drill for oil, they will certainly do
the right thing, as they always have, for the American people. Let's
just trust those big oil companies because they are really staying up
day after day, night after night, worrying about the well-being of the
American people. That is what their full-page ads in the New York Times
and all their ads on television are telling us.
Well, it is good to see there are at least some people in America who
believe that. I don't, but apparently my Republican colleagues do.
Let me tell you, big oil companies are so concerned about Americans
paying high prices for gas and oil that this is what they are doing
with their profits:
In 2005, ExxonMobil gave its CEO, Lee Raymond, a $398 million
retirement package--one of the richest compensation packages in
corporate history. They weren't going out looking for new land to drill
on, they weren't building more refineries, and they weren't working on
energy efficiency. They gave their CEO a $398 million retirement
package.
In 2006, Occidental Petroleum, gave its CEO, Ray Irani, over $400
million in total compensation.
The situation is so absurd and the greed of the oil companies is so
outrageous that these companies are not only giving their executives
huge compensation packages during their life here on earth, but they
have also created a situation, if you can believe it, where these oil
companies have carved out huge corporate payments to the heirs of
senior executives if they die in office. I guess this is what happens
when you have more money than you know what to do with.

[[Page S7972]]

According to the Wall Street Journal, if the CEO of Occidental
Petroleum dies in office, his family will get $115 million. The family
of the CEO of Nabors Industries, another oil company, would receive
$288 million. This would be funny if it were not so pathetic in the
sense of the impact this type of spending has on the American people.
Not only are huge oil companies using their record-breaking profits
on big compensation benefits for their CEOs, but they are also spending
large sums of money buying back their own stock. In other words, when
they are making these very large profits, they are not going out
drilling for more oil, as our Republican friends are suggesting.
In fact, While Americans are struggling to pay for the skyrocketing
price of gasoline; big oil companies are having an entirely different
problem. For the past seven years, big oil companies are struggling to
figure out what they are going to do with all of their windfall
profits.
Let me quote from a headline taken from the front page of the Wall
Street Journal way back on July 30 of 2001, ``Pumping Money: Major Oil
Companies Struggle to Spend Huge Hoards of Cash.'' According to this
2001 article, ``Royal Dutch/Shell Group said it was pumping out $1.5
million in profit an hour and sitting on more than $11 billion in the
bank.'' That was in 2001. Since that time Shell's profits have more
than tripled.
On April 18, 2005, Fortune Magazine published an article with the
Headline ``Poor Little Rich Company,'' referring to ExxonMobil.
According to this article, ``ExxonMobil CEO Lee Raymond, suddenly has a
new anxiety: how to spend the windfall wrought by $55 a barrel oil. By
the end of April [of 2005], Exxon will have a cash hoard of more than
$25 billion. . . . At a time when domestic energy production is
declining and drivers are paying a record $2.15 a gallon [remember,
this was in 2005], American consumers, not to mention politicians, are
likely to start focusing on whether Exxon is spending enough to find
oil and gas. While Exxon is returning more money to shareholders via
dividends and buying back more of its stock, its spending on drilling
and other development activities actually declined in 2004--even though
crude prices jumped by a third.'' That was when the price of oil was
$55 a barrel and gas was $2.15 a gallon. Today oil is over $123 a
barrel and gas is about $4 a gallon.
What is happening today? Big oil companies are spending even more on
stock buybacks and CEO compensation and less on trying to produce more
oil.
For example, ConocoPhillips recently announced that it plans to give
all of the $12 billion in profits it made last year back to
shareholders, paying more than $3 billion in dividends and spending the
rest to buy back shares of its own stock. To put this in perspective
the money that ConocoPhillips is spending on stock buybacks and
dividends is enough to reduce the price of gas by 9 cents a gallon
throughout the entire United States.
Now, I want my Republican friends to listen closely. They have been
saying over and over again that big oil desperately needs all of these
windfall profits to drill for more oil.
But, guess what? According to the CEO of ConocoPhillips, James Mulva,
``We like the discipline of the share repurchase. If we find that we
have more cash flow, it's not really going to be going toward capital
spending.'' In other words, ConocoPhillips won't use their windfall
profits to drill for more oil, or invest in renewable energy, or
explore for new sources of oil discoveries no matter how much their
profits rise.
Overall, since 2005, the five biggest oil companies have made $345
billion in profits and spent over $250 billion buying back stock and
paying dividends to shareholders.
Last year, ExxonMobil spent 850 percent more buying back its own
stock than it did on capital expenditures in the United States.
The $38 billion in windfall profits that ExxonMobil gave back to
shareholders last year could have been used to reduce gas prices at the
pump throughout the United States by 27 cents a gallon for the entire
year.
Mr. President, let's not kid ourselves. One of the major reasons as
to why Americans are getting ripped-off at the gas pump has to do with
the tremendous power and influence that big oil companies have in the
Congress. As a matter of fact, since 1998, the oil and gas industry has
spent over $616 million on lobbying activities.
Who have they hired? Well, on April 8 of this year, The Hill reported
that Chevron hired former Majority Leader Trent Lott, a Republican;
former Senator John Breaux, a Democrat; their sons Chester Trent Lott,
Jr. and John Breaux, Jr.; and Trent Boyles, who was Lott's Chief of
Staff to lobby Congress on issues relating to trade, climate change,
and energy taxes.
ExxonMobil has hired former Senator Don Nickles, a Republican from
Oklahoma, who served in this body for 24 years, to lobby Congress on
behalf of their issues.
These are just a few of the hundreds of lobbyists that big oil and
gas companies have hired to influence Congress, many of them former
Senators, former Congressmen, and former Congressional staffers.
That is one of the reasons why, among many other reasons, this
Congress, in recent years, has decided to give some $18 billion in tax
breaks to oil companies despite their record-breaking profits.
In addition, since 1990 big oil companies have made over $213 million
in campaign contributions. And that is a simple fact.
Lo and behold, what we are hearing today--just coincidentally, no
doubt--is that the most important thing we can do in terms of the
energy crisis is to provide more land offshore for the oil companies to
drill at a time when they already have some 68 million acres of leased
land, which they are not drilling on today.
The American people want action, and there are some things we can
do--not in 15 or 20 years but that we can do right now.
First, we need to impose a windfall profits tax on big oil companies
so that they would be prohibited from gouging consumers at the gas
pump.
Unfortunately, instead of taking away big oil's windfall profits and
giving it back to the American people, Republicans want to provide even
more tax breaks to big oil. In fact, Sen. McCain has a plan that would
give ExxonMobil a $1.5 billion tax break.
Now, we have heard Republicans give three reasons as to why they are
opposed to a windfall profits tax.
First, Republicans claim that the last time Congress enacted a
windfall profits tax in 1981 it had the effect of increasing our
dependence on foreign oil. Wrong. Mr. President, when Congress repealed
the windfall profits tax in 1988, the U.S. was importing 7.4 million
barrels of oil a day. Today, the U.S. is importing over 13.4 million
barrels of oil a day. We are far more dependent on foreign oil today
without a windfall profits tax than we were 20 years ago when we had a
windfall profits tax.
Secondly, my Republican friends tell us that the windfall profits tax
didn't work because Congress repealed it in 1988. That is also wrong.
While I would have structured it differently, the fact of the matter is
that from 1981 until 1988 when the windfall profits tax was repealed,
the price of oil fell from $35 a barrel to less than $15 a barrel. In
addition, gas prices at the pump fell from $1.35 a gallon to 90 cents a
gallon--a drop of 45 cents a gallon. And the Federal Government
collected over $80 billion in revenue.
The reason why the windfall profits tax was repealed was due to low
oil and gas prices, which makes perfect sense. If oil and gas prices
are low, big oil companies are not making windfall profits and there is
no need for a windfall profits tax. If gas prices at the pump were only
90 cents a gallon, I would be one of the first Senators to say we don't
need a windfall profits tax. But, they are not. They are over $4 a
gallon.
Finally, Republicans claim that big oil companies need to keep their
windfall profits so that they can increase production and build more
refineries. That particular argument is laughable.
Big oil companies have been making windfall profits for over seven
long years--and they are not using these profits to build more
refineries and they are not using it to expand production. Instead,
they are using this money to buy back their own stock, increase
dividends to their shareholders,

[[Page S7973]]

and enrich their CEOs, as I have explained earlier.
Not only do we need to impose a windfall profits tax on these
extremely powerful oil corporations, but we also have to address what I
perceive is a growing understanding that Wall Street investment banks,
such as Goldman Sachs, Morgan Stanley, JPMorgan Chase, and hedge fund
managers are driving up the price of oil in the unregulated energy
futures market. In other words, they are speculating on energy futures
and driving up prices.
There are estimates that 25 to 50 percent of the cost of a barrel of
oil is attributable to unregulated speculation on oil futures. We have
heard from some leading energy economists, and we have heard from
people in the oil industry themselves who tell us that 25 to 50 percent
of the cost of a barrel of oil today is not due to supply and demand or
the cost of production but is due to manipulation of markets and
excessive speculation. In essence, Wall Street firms are making
billions as they artificially drive up oil prices by buying, holding,
and selling huge amounts of oil on dark unregulated markets.
Some of my Republican friends claim that the increase in the price of
oil has nothing to do with speculation, but it is interesting to me
that we have had executives of major oil companies--major oil
companies--who have come before Congress and who are saying, ``Why is
oil $125, $130, and $140 a barrel?'' Do you know what they say? The CEO
of Royal Dutch Shell testified before Congress and said: ``The oil
fundamentals are no problem. They are the same as they were when oil
was selling for $60 a barrel.''
This is not some radical economist. It is not some left-winger. This
is a guy who is the head of Royal Dutch Shell.
The CEO of Marathon Oil recently said: ``$100 oil isn't justified by
the physical demand in the market.''
I know my Republican friends have a lot of respect for the oil
industry, a great competence in them. They love them and give them huge
tax breaks. So maybe they should listen to what some of these guys are
saying in terms of oil speculation.
For those who believe that excessive speculation is not causing oil
prices to climb higher, let me just say this. Over the past 7 years,
Enron; BP; and Amaranth were caught redhanded manipulating the price of
electricity; propane; and natural gas. Each time, supply and demand was
to blame and each time the pundits were proven wrong. Excessive
speculation; manipulation and greed were the cause. Enron employees are
in jail for manipulating the electricity market in 2001; BP was forced
to pay a $300 million fine for manipulating propane prices in 2004; and
the Amaranth hedge fund collapsed after manipulating natural gas prices
in 2006.
The Stop Excessive Speculation Act introduced by Majority Leader Reid
begins to seriously address this problem. We need to pass this bill as
soon as possible.
The bottom line is that it is time for the United States Senate to
say no to big oil companies and greedy hedge fund managers and yes to
the American people.

____________________